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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 84-Q OF 2011 (On appeal against the judgment dated 26.05.2011 passed by the High Court of Balochistan, Quetta in Sales Tax Appeal No. 3/2004) M/s Chiltan Ghee Mills, Quetta etc … Petitioners VERSUS Deputy Collector of Sales Tax (Refund), Customs House, Quetta and another … Respondents For the Petitioners: Mr. Sahibzada Muhammad Khan, M.D, in person For the Respondents: N.R. Date of Hearing: 03.10.2016 JUDGMENT FAISAL ARAB, J.- The petitioner is engaged in the activity of producing ‘ghee’, which before its marketing is canned in tin containers also manufactured by the petitioner. For the purpose of manufacturing tin containers, the petitioner purchases tin plates. On the purchase of tin plates, sales tax is payable whereas the petitioner mill at the relevant time was exempted from the payment of sales tax on its taxable supplies under SRO 580(I)/91 dated 27.06.1991. For the period during which the petitioner was enjoying tax exemption on its supplies, the petitioner sought refund of the sales tax paid on the purchase of tin plates that were used in the manufacture of tin containers. The reasoning behind such claim was that as its tin containers are exempt from the payment of sales tax under the said SRO No. 580(I)/91 dated 27.06.1991, the sales tax paid on tin plates may be refunded. Taking into consideration the legal position that the sales tax paid on goods that are used in the manufacture of ‘exempt supplies’ cannot be refunded under Section 8(1)(a) of the Sales Tax Act, 1990, the Sales Tax Department refused to accept the petitioner’s claim. The decision 2 Civil Petition No. 84-Q/2011 of the Department was challenged by the petitioner in an appeal before the Customs, Excise and Sales Tax Appellate Tribunal, which was dismissed. The same was then challenged in Sales Tax Appeal before the High Court, which too met the same fate. Hence this petition. 2. Sahibzada Muhammad Khan, who is the Managing Director of the petitioner company, appeared in person and argued the case. He submitted that since the tin containers, which the petitioner manufactured during the relevant period, were exempt from sales tax under SRO No. 580(I)/91 dated 27.06.1991 then any input tax paid on tin plates used in the manufacture of such tin containers was liable to be refunded as denying such relief would defeat the purpose of granting exemption under the said SRO. In support of his contention, he relied upon the cases of M/s Mayfair Spinning Mills Ltd, Lahore Vs. Customs, Excise and Sales Tax Appellate Tribunal, Lahore etc (PTCL 2002 CL 115) and Azad Jammu & Kashmir Government Vs. Spintex Limited (1998 PTD 3200) in order to demonstrate that where exemption is granted then the principle of promissory estoppel is attracted and no tax is to be charged. 3. We have considered the contention of the petitioner mill’s Managing Director. Section 7 of the Sales Tax Act provides that for the purposes of determining tax liability in respect of ‘taxable supplies’, a registered person shall be entitled to deduct input tax paid during the tax period. Such concession is clearly available only when a registered person makes ‘taxable supplies’ and is not available where the supplies are totally exempt from the sales tax liability. This mandate of the law is further affirmed in Section 8(1)(a) of the Act, which provides that notwithstanding anything contained in any other provision of the Act, a registered person shall not be entitled to claim input tax paid on goods that are used in the making of supplies which have been exempted from the sales tax liability under the provisions of Section 13 of the Act. This clearly means that adjustment of input tax only can be claimed in a situation where the goods that have been manufactured 3 Civil Petition No. 84-Q/2011 or produced fall within the definition of ‘taxable supplies’. Where the goods that are to be supplied are exempt from sales tax then the question of seeking refund of the sales tax paid on the purchase of raw material used in the production of exempt supplies does not arise at all. The whole object behind the provision of Section 8(1)(a) of Sales Tax Act, 1990 seems to be that where at any stage sales tax has been legitimately paid then refund of input tax cannot be claimed where such goods were used in the manufacture of ‘exempt supplies’. Thus where a registered person is exempted from the liability of sales tax on its supplies, it does not mean that the tax that was paid on the purchase of raw material used in the making of such supplies would be liable to be refunded. The Department, therefore, was not liable to refund the same. In view of the legal position as emanating from the plain reading of the provisions of Section 7 and 8 of the Sales Tax Act, 1990, it is evident that there is no promise of the Legislature that the sales tax paid on the goods used in the manufacture of ‘exempt supplies’ would be liable to be refunded. Reliance placed on the cases of M/s Mayfair Spinning Mills Ltd, Lahore Vs. Customs, Excise and Sales Tax Appellate Tribunal, Lahore etc (PTCL 2002 CL 115) and Azad Jammu & Kashmir Government Vs. Spintex Limited (1998 PTD 3200) is totally misplaced as the same have no application to the present case. 4. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave is refused. CHIEF JUSTICE JUDGE JUDGE Quetta, the 3rd of October, 2016 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MANZOOR AHMED MALIK MR. JUSTICE FAISAL ARAB CIVIL PETITIONS NO.842 OF 2016, 3331, 3332, 3674 & 3777 OF 2015, 06, 32, 211, 278, 417, 1263, 1306, 1335, 1353, 1503 AND 1541 OF 2016 (On appeal from the judgment dated 26.01.2016 Lahore High Court, Rawalpindi Bench in WP No.05/2016, judgment dated 14.10.2015 of the Peshawar High Court, Peshawar passed in WP No.2915/ 2015, judgment dated 14.10.2015 of the Peshawar High Court, Peshawar passed in WP No.2979 of 2015, order dated 09.12.2015 of the Peshawar High Court, Peshawar passed in WP No.3219-P/2015, order dated 09.12.2015 of the Peshawar High Court, Peshawar passed in WP No.3076-P/2015, order dated 09.12.2015 of the Peshawar High Court, Peshawar passed in WP No.(HCP) No.3878-P/2015), order dated 23.12.2015 of the Peshawar High Court, Peshawar passed in WP No.4433-P/2015, order dated 27.01.2016 of the Lahore High Court, Rawalpindi Bench passed in WP No.197/2016, order dated 19.01.2016 of the Peshawar High Court, Peshawar passed in WP No.133- P/2016, judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in WP No.1048-P/2016. judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in WP No.1184-P/2016, judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in WP No.1190-P/2016, order dated 19.01.2016 of the Lahore High Court, Rawalpindi Bench passed in WP No.117/2016, judgment dated 12.4.2016 of the Peshawar High Court, Peshawar passed in WP No.1271-P/2016, order dated 12.5.2016 of the Lahore High Court, Bahawalpur Bench passed in WP No.3315 of 2016 respectively) 1. Said Zaman Khan v. Federation of Pakistan through Secretary Ministry of Defence, Government of Pakistan Superintendent HSP, Sahiwal (In CP No.842/2016) 2. Mst. Bacha Liaqa v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others (In CP No.3331/2015) CPs.842/2016, etc. 2 3. Mst. Anwar Bibi v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others (In CP No.3332/2015) 4. Ali-ur-Rehman v. Government of Pakistan through Secretary Defence, Ministry of Defence Rawalpindi and others (In CP No.3674/2015) 5. Mst. Nek Maro v. Special Military Court and others (In CP No.3777/2015) 6. Sakhi Muhammad v. Special Military Court and others (In CP No.06/2016) 7. Sher Alam v. The Superintendent, District Jail Timergarah, District Dir Lower and others (In CP No.32/2016) 8. Mashooqa Bibi v. The Superintendent, District Jail Temergara District Dir Lower (In CP No.211/2016) 9. Mr. Javed Iqbal Ghauri v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and others (In CP No.278/2016) 10. Mohibullah v. Government of Pakistan through Secretary Defence Ministry of Defence, Rawalpindi and others (In CP No.417/2016) 11. Fazal Ghaffar v. The State through Deputy Attorney General for Pakistan and others (In CP No.1263/2016) 12. Mst. Zarba Khela v. Federation of Pakistan through Secretary Defence, Islamabad (In CP No.1306/2016) 13. Ajab Gul v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and others (In CP No.1335/2016) CPs.842/2016, etc. 3 14. Aqsan Mahboob v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan (In CP No.1353/2016) 15. Khan Afsar Khan v. SHO Police Station Bugnotar, District Abboottabad and others (In CP No.1503/2016) 16. Hafiz Muhammad Sadiq v. Government of Pakistan through Secretary Defence, Ministry of Defence and others (In CP No.1541/2016) For the Petitioners : Ms. Asma Jahanghir, ASC Ch. Akhtar Ali, AOR (in CPs Nos.3331/2015, 3332/2015, 32, 211, 1335 & 1503/2016) Abdul Latif Afridi, Sr. ASC and Khalid Anwar Afridi, ASC (in CPs Nos.3674, 3777/2015 & 278/2016) Malik Muhammad Akram, ASC Ch. Akhtar Ali, AOR (in CP No.842/2016) Mr. Mehmood Raza, ASC Ch. Akhtar Ali, AOR (in CP No.417/2016) Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC Mr. Ahmed Nawaz Ch. AOR (Absent) (in CP No.1263/2016) Mr. Khalid Anwar Afridi, ASC Haji Muhammad Zahir Shah, AOR (in CP No.06/2016) Mr. Laiq Khan Swati, ASC Syed Rafaqat Hussain Shah, AOR (in CP No.1306/2016) Col (R) Muhammad Akram, ASC Ch. Akhtar Ali, AOR (in CP No.1353/2016) Sardar Muhammad Shahzad Khan Dhukhan, ASC Syed Rafaqat Hussain Shah, AOR (in CP No.1541/2016) CPs.842/2016, etc. 4 For Federation (On Court’s notice) : Mr. Ashtar Ausaf Ali, AGP Syed Attique Shah, Addl. AGP Mr. Sajid Ilyas Bhatti, DAG assisted by Barrister Asad Rahim Khan, Consultant to AGP Major Asad, JAG Branch (in all cases) For Govt. of KPK : Mian Arshad Jan, Addl. AG Mr. Tahir Saleem, SHO, Bagnoter (in CP No.1503/2016) Mr. Iqbal Ahmed Durrani, Standing Counsel, FATA Date of hearing : 13th, 14th and 20th June, 2016 JUDGMENT SH. AZMAT SAEED, J.- This judgment is proposed to decide Civil Petitions for Leave to Appeal Nos.842 of 2016, 3331, 3332, 3674 and 3777 of 2015, 06, 32, 211, 278, 417, 1263, 1306, 1335, 1353, 1503 and 1541 of 2016. 2. Civil Petition for Leave to Appeal No.842 of 2016 is directed against the Order dated 26.01.2016 of the learned Lahore High Court, Rawalpindi Bench, whereby a Constitutional Petition i.e. Writ Petition bearing No.5 of 2016, filed by Mst. Momin Taj, mother of the present Petitioner, was dismissed. 3. The brief facts as narrated in the Petition are that the Petitioner was allegedly taken into custody by the Military Intelligence on 10.12.2014 from Kurri Road, Rawalpindi and despite best efforts his whereabouts CPs.842/2016, etc. 5 could not be ascertained by his family. In October, 2015, the family of the Petitioner was informed through an unknown telephonic call that the Petitioner was confined in Adyala Jail, Rawalpindi and he had been awarded a death sentence by a Field General Court Martial (FGCM). The Petitioner’s Appeal filed through the Jail before the Court of Appeal, constituted under the Pakistan Army Act, 1952 as well as his Mercy Petition to the Chief of Army Staff, was rejected. Thereafter, the Petitioner sent a Mercy Petition through the Jail to the President of Pakistan, which is allegedly pending. 4. In the above backdrop, the Petitioner’s mother (Mst. Momin Taj) challenged his conviction by invoking the Constitutional Jurisdiction of the learned Lahore High Court, Rawalpindi Bench by filing Writ Petition No.5 of 2016, which has been dismissed vide the Order impugned dated 26.01.2016. However, instead of Petitioner’s mother, he himself has approached this Court by filing the instant Civil Petition for Leave to Appeal. 5. Civil Petition for Leave to Appeal No.3331 of 2015 is directed against the judgment dated 14.10.2015, passed by the learned Peshawar High CPs.842/2016, etc. 6 Court, whereby a Constitutional Petition i.e. Writ Petition No.2915 of 2015, filed by the present Petitioner, was dismissed. 6. The brief facts necessary for disposal of the instant Petition are that the Petitioner invoked the Constitutional Jurisdiction of the learned Peshawar High Court, Peshawar through Writ Petition bearing No.2915 of 2015, contending therein that his son Haider Ali was taken into custody on 21.09.2009 when he was a student of Class 10 on being produced by the Petitioner’s husband before the Law Enforcement Agencies, as directed. It was contended that the Petitioner was not informed about the whereabouts of her son Haider Ali. Eventually through a news item in the daily Mushriq dated 03.4.2015, it was discovered that her son Haider Ali had been convicted by a FGCM and sentenced to death. Through the Writ Petition, the conviction and sentence of the Petitioner’s son was called into question. The said Petition was heard and eventually dismissed vide judgment dated 14.10.2015, which has been impugned through the instant Civil Petition for Leave to Appeal. CPs.842/2016, etc. 7 7. Civil Petition for Leave to Appeal No.3332 of 2015 is directed against the impugned judgment dated 14.10.2015 of the learned Peshawar High Court, Peshawar, whereby Constitutional Petition i.e. Writ Petition No.2979 of 2015, filed by the present Petitioner, was dismissed. 8. The brief facts of the instant case are that the Petitioner filed a Constitutional Petition before the learned Peshawar High Court, Peshawar contending therein that the Petitioner’s son Qari Zahir Gul was taken into custody by the Law Enforcement Agencies on 27.04.2011 from an Internal Displaced Persons (IDPs) Camp, whereafter his whereabouts were kept secret from the present Petitioner. In the above circumstances, his other son Waheed Gul filed Writ Petition No.815-P of 2012 and later Writ Petition No.1976 of 2014 before the learned Peshawar High Court seeking production of Qari Zahir Gul. During course of the aforesaid proceedings, it was contended that, it was disclosed by the Respondents that the Petitioner’s son had been detained under Actions (In Aid of Civil Power) Regulations, 2011. Subsequently, in April, 2015, the Petitioner through the CPs.842/2016, etc. 8 press learnt that his son Qari Zahir Gul had been tried by a FGCM and convicted and sentenced to death. 9. In the above backdrop, the said Constitutional Petition i.e. Writ Petition No.2979 of 2015, was filed by the Petitioner challenging the conviction and sentence of his son Qari Zahir Gul awarded by the FGCM. The wife of Qari Zahir Gul had also brought the matter before this Court by filing Constitution Petition No.50 of 2015, which was disposed of vide Order dated 07.10.2015 by directing her to approach the learned Peshawar High Court. Eventually, the learned Peshawar High Court dismissed the aforesaid Constitutional Petition filed by the present Petitioner vide the impugned judgment dated 14.10.2015. 10. Civil Petition for Leave to Appeal No.3674 of 2015 is directed against the impugned Order dated 09.12.2015 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ Petition No.3219-P of 2015, filed by the present Petitioner, was dismissed. 11. The brief facts necessary for a just decision of the instant case are that the Petitioner filed a Constitutional Petition i.e. Writ Petition No.3219-P of CPs.842/2016, etc. 9 2015, stating therein that he is an ex-army personnel whose son namely, Atteeq-ur-Rehman was missing for the last eight months and he tried to locate his son but in vain. The Petitioner in this regard has also lodged FIR No.369 dated 06.12.2014, under Section 365, 324/34 PPC at Police Station, Nowshera Cantt. However, on 14.08.2015, he came to know through a news item published in different newspapers that his said son along with others has been tried by a FGCM on the charge of attacking the Army Public School, Peshawar on 16.12.2014 and had been sentenced to death. 12. With the above contentions, the Petitioner filed Constitutional Petition i.e. Writ Petition No.3219-P of 2015 before the learned Peshawar High Court, challenging the conviction and sentence awarded to the Petitioner’s son Atteeq-ur-Rehman and also seeking an order for the production of the said Convict. The said Writ Petition was dismissed by the learned Peshawar High Court vide Order dated 09.12.2015. Hence, this Civil Petition for Leave to Appeal. 13. Civil Petition for Leave to Appeal No.3777 of 2015 is directed against the Order dated 09.12.2015 of the learned Peshawar High Court, Peshawar, whereby a CPs.842/2016, etc. 10 Constitutional Petition i.e. Writ Petition bearing No.3076-P of 2015, filed by the present Petitioner, was dismissed. 14. The brief facts as narrated in the instant Petition are that the Petitioner is the mother of one Taj Muhammad alias Rizwan, who was allegedly picked-up from his house by some personnel of the Law Enforcement Agencies accompanied by the local police of Pishtakhara Police Station on 07.02.2015. The male members of the family searched for Taj Muhammad alias Rizwan but could not discover his whereabouts. It was contended that the said Taj Muhammad alias Rizwan neither had a criminal history nor he or his family was associated with any banned or terrorist organization, except that in the year 2007, Taj Muhammad, in the company of one Nazeer of the same tribe, visited South Waziristan, where he stayed in Wana for 40 days. 15. Eventually, it was contended that, through a news item dated 14.08.2015, it was discovered that the son of the Petitioner (Taj Muhammad alias Rizwan) had been tried and convicted by a FGCM and sentenced to death in the Army Public School’s case. CPs.842/2016, etc. 11 16. The Petitioner challenged the such conviction by invoking the Constitutional jurisdiction of the learned Peshawar High Court, Peshawar through Writ Petition No.3076-P of 2015, which was dismissed vide the Order impugned dated 09.12.2015. 17. Civil Petition for Leave to Appeal No.6 of 2016 is directed against the impugned Order dated 09.12.2015 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ Petition bearing No.4019-P of 2015, filed by the present Petitioner, was dismissed. 18. The brief facts as narrated in this Petition are that the Petitioner is the father of one Qari Zubair Mohammad, who was allegedly picked up from his house by Army personnel and Intelligence Agencies, accompanied by the local police on 16.08.2009. In respect of his disappearance, the Petitioner filed an application before the Commission of Inquiry of Enforced Disappearance (COIOED), to locate and recover his son. The COIOED inquired into the matter and gave direction to lodge an FIR against the responsible police officials. After lodging the FIR, the police officials were brought to trial by the Senior Civil Judge/Judicial CPs.842/2016, etc. 12 Magistrate, Nowshera, and a formal charge was framed. However, subsequently the proceedings were stopped under Section 249 Cr.P.C. on 07.07.2012. 19. Eventually, through the Internet on 10.11.2015, it was disclosed that Qari Zubair Mohammad had been tried and convicted by a FGCM and sentenced to death. 20. The Petitioner challenged such conviction by invoking the Constitutional jurisdiction of the learned Peshawar High Court, Peshawar, through Writ Petition No.4019-P of 2015, which has been dismissed vide the impugned Order dated 09.12.2015. 21. Civil Petition for Leave to Appeal No.32 of 2016 is directed against the impugned Order dated 09.12.2015 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ Petition (HCP) No.3878-P of 2015, filed by the present Petitioner, was dismissed. 22. The brief facts as narrated in the instant Petition are that the nephew of the Petitioner, namely, Jameel ur Rehman was taken into custody by the Intelligence Agencies in the year 2014. Eventually, through a news item published on 22.09.2015 in Daily CPs.842/2016, etc. 13 Aaj, it was disclosed that Jameel ur Rehman had been tried and convicted by a FGCM and sentenced to death. 23. The Petitioner challenged such conviction by invoking the Constitutional jurisdiction of the learned Peshawar High Court, Peshawar through Writ Petition (HCP) No.3878-P of 2015, which has been dismissed vide the Order impugned dated 09.12.2015. 24. Civil Petition for Leave to Appeal No.211 of 2016 is directed against the impugned Order dated 23.12.2015 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ Petition bearing No.4433-P of 2015, filed by the present Petitioner, was dismissed. 25. The brief facts as narrated in the instant Petition are that the brother of the Petitioner, namely, Aslam Khan, was taken into custody by the security forces about 4-5 years ago, while he was returning from Afghanistan after visiting his relatives, and was shifted to an unknown destination. The whereabouts of Aslam Khan remained unknown. 26. In due course, it was contended, that through a news item published in the Daily Aaj, Peshawar, dated 22.09.2015, it was revealed that the Petitioner’s brother CPs.842/2016, etc. 14 Aslam Khan had been tried and convicted by a FGCM and sentenced to death. 27. The Petitioner challenged such conviction by invoking the constitutional jurisdiction of the learned Peshawar High Court, Peshawar through Writ Petition No.4433-P of 2015, which was dismissed in limine vide the Order impugned dated 23.12.2015, upholding the conviction and sentence awarded to the said Aslam Khan. 28. Civil Petition for Leave to Appeal No.278 of 2016 is directed against the impugned Order dated 27.01.2016 of the learned Lahore High Court, Rawalpindi Bench, whereby a Constitutional Petition i.e. Writ Petition bearing No.197 of 2016, filed by the present Petitioner, was dismissed. 29. The brief facts as narrated in this Petition are that the son of the Petitioner, namely, Muhammad Ghauri went missing on 07.01.2010. In respect of his disappearance, the Petitioner filed an application on 21.01.2010 in the concerned Police Station and FIR No.107 dated 16.02.2011 was registered at the Police Station Shalimar, Islamabad. In order to procure the recovery of his son, the Petitioner invoked the CPs.842/2016, etc. 15 Constitutional jurisdiction of the learned Lahore High Court, Rawalpindi Bench as well as this Court. The Petitioner also approached the COIOED but to no avail. Eventually, it was disclosed that the Petitioner’s son was confined in the Internment Center, Lakki Marwat. 30. In due course, it was contended, that through a news item dated 01.01.2016, it was revealed that the Petitioner’s son Muhammad Ghauri had been tried by a FGCM and sentenced to death. 31. The Petitioner challenged such conviction by invoking the Constitutional jurisdiction of the learned Lahore High Court, Rawalpindi Bench through Writ Petition No.197 of 2016, which has been dismissed vide the Order impugned dated 27.01.2016. 32. Civil Petition for Leave to Appeal No.417 of 2016 is directed against the impugned Order dated 19.01.2016 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ Petition bearing No.133-P of 2016, filed by the present Petitioner, was dismissed. 33. The brief facts as narrated in the instant Petition are that the younger brother of the Petitioner, namely, Tahir, was arrested on 23.02.2014 from Lahore. CPs.842/2016, etc. 16 On 03.09.2015, the Petitioner came to know through a news item published in the daily Mashriq, Peshawar that his brother has been convicted by a FGCM at Peshawar and awarded a death sentence. Earlier the Petitioner’s father invoked the Constitutional jurisdiction of the learned Islamabad High Court by filing a Constitutional Petition i.e. Writ Petition bearing No.2788 of 2015, seeking information regarding the whereabouts of Tahir and to meet him, which was disposed of on 18.09.2015. In order to meet his said brother who it was discovered was confined in District Jail, Peshawar, the Petitioner invoked the jurisdiction of the learned Peshawar High Court, Peshawar through Writ Petition bearing No.3468-P of 2015, whereupon a direction was issued to the Respondents to act in accordance with the law and the Petitioner was permitted to meet his brother. 34. In the above backdrop, the Petitioner challenged the conviction of his brother by invoking the Constitutional Jurisdiction of the learned Peshawar High Court, Peshawar, through a Constitutional Petition i.e. Writ Petition No.133-P of 2016, which was dismissed vide the Order impugned dated 19.01.2016. CPs.842/2016, etc. 17 35. Civil Petition for Leave to Appeal No.1263 of 2016 is directed against the impugned judgment dated 12.04.2016 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ Petition bearing No.1048-P of 2016, filed by the present Petitioner, was dismissed. 36. The brief facts as narrated in the Petition are that the Petitioner voluntarily surrendered himself before the Army Authorities on 27.12.2009 and was confined at Internment Center, Gulibagh. Neither any FIR nor any criminal case was registered against him. On 16.03.2016, the Petitioner’s family came to know through various newspapers that the Petitioner along with some others has been awarded death sentence by the FGCM and the Chief of Army Staff has given assent to the death warrants of all the said Convicts, including the Petitioner. 37. In the above backdrop, the Petitioner challenged his conviction and sentence by invoking the Constitutional jurisdiction of the learned Peshawar High Court, Peshawar through Writ Petition No.1048-P of 2016, which has been dismissed vide the impugned judgment dated 12.04.2016. CPs.842/2016, etc. 18 38. Civil Petition for Leave to Appeal No.1306 of 2016 is directed against the impugned judgment dated 12.04.2016 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ Petition No.1184-P of 2014, filed by the present Petitioner, was dismissed. 39. The brief facts of the case, as narrated in this Petition are that on 20.11.2014, the Petitioner’s son namely, Fateh Khan was allegedly arrested by the Law Enforcement Agencies from Sarband, Peshawar. The whereabouts of her son, despite hectic efforts, could not be discovered. The Petitioner in this regard approached the Police Station Sarband, Peshawar, for registration of the FIR in November, 2014 but could not succeed. 40. Being aggrieved of the conduct of the police and the Political Agent, she sent an application to the learned Chief Justice, Peshawar High Court, who took up the action and repeatedly directed the concerned quarters to record the statement of the Complainant and submit a report. It is alleged that neither the police recorded her statement nor submitted any comments, in this behalf. CPs.842/2016, etc. 19 41. On 25.03.2016, she received information through the Political Agent, Barah that her son would be hanged on 30.03.2016. 42. In view of the above, the Petitioner invoked the Constitutional jurisdiction of the learned Peshawar High Court by filing the above said Constitutional Petition, which was dismissed vide impugned judgment dated 12.04.2016. Hence, this Civil Petition for Leave to Appeal. 43. Civil Petition for Leave to Appeal No.1335 of 2016 is directed against the impugned judgment dated 12.04.2016 of the learned Peshawar High Court, Peshawar, whereby Writ Petition No.1190-P of 2016, filed by the present Petitioner, was dismissed. 44. The brief facts necessary for disposal of this Petition are that the Petitioner, who is the brother of Convict Taj Gul stated in his Petition that in the year 2011, his brother was handed over by the elders of the locality to the Law Enforcement Agencies as directed and thereafter, he was shifted to some unknown place and later detained/confined at Internment Center, Paitham, Swat, where he was allowed visits by his relatives and the last such visit took place in the year CPs.842/2016, etc. 20 2015. Subsequently, through the print media, the Petitioner came to know about the confirmation of death sentence awarded to his brother by the FGCM. 45. The Petitioner invoked the Constitutional jurisdiction of the learned Peshawar High Court, Peshawar, by challenging the said conviction and sentence awarded to the Convict through the Writ Petition bearing No.1190-P of 2016, which was dismissed through the judgment impugned dated 12.04.2016. Hence, this Civil Petition for Leave to Appeal. 46. Civil Petition for Leave to Appeal No.1353 of 2016 is directed against the impugned Order dated 19.01.2016 of the learned Lahore High Court, Rawalpindi Bench, whereby a Constitutional Petition i.e. Writ Petition No.117 of 2016, filed by the mother of the Petitioner was, dismissed in limine. 47. The brief facts of this case as narrated in this Petition are that allegedly on 14.07.2014 the son of the Petitioner namely, Aksan Mehboob disappeared from Lahore. The Petitioner tried her best to locate her son but in vain. Subsequently, through the print media, it was revealed that on 18.07.2014 the Petitioner’s son CPs.842/2016, etc. 21 had been killed alongwith another terrorist in an encounter near Raiwind. She tried unsuccessfully to get the dead body from the Law Enforcement Agencies. On 22.07.2014, she came to know that her son was alive and in the custody of the Military Intelligence. She tried to meet her son but failed. On 01.01.2016, it was discovered through a press release issued by the Inter- Services Public Relations (ISPR) that her son had been convicted and sentenced to death by a FGCM and such sentence had been confirmed by the Chief of Army Staff. 48. The Petitioner invoked the Constitutional jurisdiction of the learned Lahore High Court, Rawalpindi Bench, challenging her son's conviction and sentence by filing a Constitutional Petition i.e. Writ Petition No.117 of 2016, which was dismissed by the learned High Court vide the Order impugned dated 19.01.2016. Hence, this Civil Petition for Leave to Appeal. 49. Civil Petition for Leave to Appeal No.1503 of 2016 is directed against the impugned judgment dated 12.04.2016 of the learned Peshawar High Court, Peshawar, whereby a Constitutional Petition i.e. Writ CPs.842/2016, etc. 22 Petition bearing No.1271-P of 2016, filed by the present Petitioner, was dismissed. 50. The brief facts as narrated in the instant Petition are that the Petitioner is the father of the Convict, namely, Nasir Khan, who was allegedly taken into custody by the security forces on 03.07.2014 from Harno Azizabad and shifted to an unknown destination. Thereafter, a daily diary dated 08.07.2014 was recorded by Respondent No.1 i.e. SHO, Police Station Bugnotar, District Abbottabad in respect of the disappearance of Nasir Khan. Subsequently, the Petitioner invoked the Constitutional jurisdiction of the learned Peshawar High Court, Abbottabad Bench by filing Writ Petition bearing No.268 of 2016, which was dismissed, being not pressed, pursuant to the progress report, submitted by Respondent No.1. It was eventually discovered that the Petitioner’s son has been convicted under the Pakistan Army Act, 1952. 51. The Petitioner challenged such conviction by invoking the Constitutional jurisdiction of the learned Peshawar High Court, Peshawar through Writ Petition No.1271-P of 2016, which was dismissed vide the judgment impugned dated 12.04.2016. CPs.842/2016, etc. 23 52. Civil Petition for Leave to Appeal No.1541 of 2016 is directed against the impugned Order dated 12.05.2016 of the learned Lahore High Court, Bahawalpur Bench, whereby a Constitutional Petition i.e. Writ Petition No.3315 of 2016, filed by the present Petitioner, was dismissed, being not maintainable. 53. The brief facts, as narrated in the instant Petition are that the Petitioner’s son namely Muhammad Arbi was falsely involved in a criminal case FIR No.39 of 2014 dated 07.02.2014, under Section 365-B PPC registered with Police Station Nowshehra Jadeed, District Bahawalpur but was acquitted in the said case and was never involved in any other case. However, through print media, the Petitioner discovered that his son has been convicted and sentenced to death by a "Military Court" on the basis of alleged confession. 54. It appears that the Petitioner had earlier invoked the jurisdiction of this Court by filing a Constitutional Petition, which was returned by the Office vide Order dated 22.02.2016, being not maintainable and with a direction to seek his remedy before an appropriate forum. CPs.842/2016, etc. 24 55. The Petitioner filed a Constitutional Petition i.e. Writ Petition No.3315 of 2016 before the learned Lahore High Court, Bahawalpur Bench, challenging the said conviction and sentence of his son, which was dismissed vide the Order impugned dated 12.05.2016. Hence, this Civil Petition for Leave to Appeal. 56. In the aforementioned Civil Petitions for Leave to Appeal, the convictions and sentences awarded by the FGCMs to various Convicts have been called into question. No doubt, the learned counsel for the Petitioners advanced some arguments, which were case specific, yet the main thrust of their contentions was on a legal plane and common in all these Civil Petitions for Leave to Appeal 57. In this behalf, it was contended by the learned counsels for the Petitioners that the Convicts in the instant cases have been subjected to a secret trial without access to legal assistance, having been deprived of the right to be represented by a Legal Practitioner of their own choice in violation of rights so guaranteed by Articles 10 and 10A of the Constitution of the Islamic Republic of Pakistan, 1973. Thus, the procedure adopted and followed denuded the proceedings of the CPs.842/2016, etc. 25 requirements of a “fair trial” and “due process”. It was further contended that even otherwise, the Fundamental Rights of the Convicts guaranteed under Articles 10 and 10A of the Constitution have thus been violated and the trials were also not in consonance with Article 4 of the Constitution. It was added that the Rules applicable i.e. the Pakistan Army Act Rules, 1954, were violated to the prejudice of the Convicts, as a consequence whereof, the trials and the convictions were illegal and invalid. Reference, in this behalf, was made to Rules 23 and 24 as well as Rules 81 to 87 of the Pakistan Army Act Rules, 1954. It was further contended that the Convicts were deprived of their rights to produce evidence in their defence or to cross-examine the prosecution witnesses. It was further added that sufficient time and opportunity to prepare the defence was not provided in terms of Rule 23 of the Pakistan Army Act Rules, 1954. The learned counsels for the Petitioners next added that the trials were conducted more than three years after the alleged occurrence in violation of the bar contained in Section 91 of the Pakistan Army Act, 1952, hence, the said trials were without jurisdiction. CPs.842/2016, etc. 26 58. It was also contended by the learned counsels for the Petitioners that in respect of the alleged occurrences for which the Convicts were tried and sentenced, no FIR was ever registered. It was added that the Convicts were kept in illegal detention for years on end and the proceedings of the FGCMs, were a mala fide attempt to cover up such illegalities. The convictions are based primarily on the alleged confessions before the Judicial Magistrates, which were not recorded in accordance with the law and the Convicts were handed back to the Law Enforcement Agencies after recording the alleged confessions. Furthermore, the Convicts were kept in the Internment Centers under the Actions (in aid of Civil Power) Regulation, 2011 and the very vires thereof are sub judice before this Court for being, inter alia, in violation of Articles 10 and 10A of the Constitution. 59. It was added that no pre-trial proceedings were conducted, which is a requirement under the Pakistan Army Act, 1952, nor such summary of evidence was provided to the accused nor has been made available to their counsels or has been presented CPs.842/2016, etc. 27 to this Court establishing beyond any doubt that the Pakistan Army Act Rules, 1954, have been violated. 60. The learned counsels further contended that the privilege has been claimed with regard to the record of the trials, which is not permissible under the law with respect to criminal proceedings in view of the judgments, reported as Mohtarma Benazir Bhutto v. The President of Pakistan through the Secretary to the President (1992 SCMR 1357 & PLD 1992 SC 492) and Muhammad Uris v. Government of Sindh through Secretary, Revenue Department, Board of Revenue, Hyderabad and 2 others (1998 CLC 1359). 61. An issue was also raised with regard to the selection of the cases for trial by the FGCMs in respect of the matters at hand. In this behalf, it is contended, no objective criteria exists nor was employed and nothing is on the record to illustrate the basis for the selection of these cases for trial by the FGCMs. 62. It was further contended that the Convict Haider Ali (in Civil Petition for Leave to Appeal No.3331 of 2015) was a juvenile at the time of the alleged occurrence, hence, could not be tried by the FGCM especially as the factum of his age stood established CPs.842/2016, etc. 28 through documentary evidence placed before the learned High Court, which has been ignored. 63. It is the case of the Petitioners that the aforesaid failures in the mode and method of the trial renders the same illegal and unconstitutional and the convictions and sentences awarded without jurisdiction, coram non judice and suffering from mala fides, therefore, the learned High Court as well as this Court were not only vested with the jurisdiction to entertain, examine and adjudicate upon the contentions raised on behalf of the Petitioners but also to set aside the convictions and sentences awarded by the FGCMs in the instant cases notwithstanding the bar contained in Article 199(3) of the Constitution especially in view of the interpretation thereof as set forth in the various judgments of this Court. The learned counsels also complained that they were handicapped by their limited access to the record of the trials. 64. The learned DAG for Pakistan has controverted the contentions raised on behalf of the Petitioners by contending that the Convicts and the offences for which they were tried in each and everyone of the cases at hand were subject to the Pakistan Army CPs.842/2016, etc. 29 Act, hence, the convictions could not be challenged before the learned High Court in exercise of its jurisdiction conferred under Article 199 of the Constitution in view of Sub Article (3) thereof. It is added that it is settled law that the jurisdiction of the High Court and this Court is limited, in this behalf, to the cases of coram non judice, without jurisdiction and mala fides and the contentions raised on behalf of the Petitioners do not fall in any of three categories. It was further contended that no objection was raised or established on record that the FGCMs in question were not legally constituted in accordance with the law so as to render the convictions and sentences handed down coram non judice. The learned DAG further added that no mala fide had been alleged against the Members of the FGCMs nor such mala fides have been pleaded with the requisite particularity or ex facie established on the record. It was added that it has been conclusively held by a Larger Bench of this Court in the case, reported as District Bar Association, Rawalpindi and others v. Federation of Pakistan and others (PLD 2015 SC 401) that the Convicts in view of the offences for which they were accused, were subject to the Pakistan Army Act CPs.842/2016, etc. 30 and the FGCMs constituted under the said Act were vested with the jurisdiction to try the Convicts and sentence them, hence, the convictions and sentences awarded are not without jurisdiction. 65. The learned DAG for Pakistan also contended that each and every Convict was given full opportunity to defend himself. The option to engage a Legal Practitioner of their own choice was afforded and upon failure to take advantage of such option, an Officer was deputed to defend them in terms of the Pakistan Army Act Rules, 1954. The procedure, as provided in the Pakistan Army Act and the Rules framed thereunder was meticulously followed in letter and spirit and no specific deviation therefrom have been pointed out by the Petitioners. The learned DAG stated that the convictions are the result of a "fair trial", which were held in accordance with the law i.e. the Pakistan Army Act and the Rules framed thereunder without in any manner transgressing against any of the provision of the Constitution or violating any right guaranteed thereby. It is added that the aforesaid Convicts not only admitted their guilt but in fact boasted of their “exploits” of waging war against Pakistan and killing innocent CPs.842/2016, etc. 31 civilians and the Members of the Law Enforcement Agencies, yet as required by the Pakistan Army Act, their pleas of guilty were altered to not guilty, and evidence produced by the prosecution to establish the charges against them. It was further contended that full access was given to the learned counsels for the Petitioners under the Orders of this Court to examine the record of the trials in question, subject only to the constraints necessitated by the concern for safety and security of the Members of the FGCMs and the witnesses in accordance with the provisions of Section 2-C of the Pakistan Army Act. The learned DAG further contended that reference to Section 91 of Pakistan Army Act is misconceived, as the provisions thereof were inapplicable to the offences for which the Convicts in the instant cases have been tried and sentenced. 66. With regard to Convict, Haider Ali (in Civil Petition for Leave to Appeal No.3331 of 2015), it was contended by the learned DAG that he was not a juvenile at the time of the occurrence. During the proceedings before the learned High Court, the relevant record was examined by the learned High Court, which recorded its satisfaction with regard to the age of the CPs.842/2016, etc. 32 Convict and he being a major at the time of the occurrence. Even otherwise, the Pakistan Army Act has an overriding effect over any other law, in this behalf, in view of Section 4 of the Pakistan Army (Amendment), Act, 2015. 67. The learned Deputy Attorney General for Pakistan added that pre-trial proceedings were conducted and the summary of evidence recorded, as is evident from the record of the trial by the FGCMs. It was added that the Pakistan Army Act and the Rules framed thereunder were followed in letter and spirit, however, any deviation therefrom does not vitiate the trial in view of Rule 132. Furthermore, neither the learned High Court nor this Court in exercise of their respective constitutional jurisdiction can examine or set aside the trial only on the ground that the procedure was not followed. In his behalf, reliance was placed on the judgments, reported as Brig. (Retd) F.B. Ali and another v. The State (PLD 1975 SC 506), Muhammad Din and others v. The State (PLD 1977 SC 52), Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 SC 632) and District Bar Association, Rawalpindi and others v. Federation of Pakistan and CPs.842/2016, etc. 33 others (PLD 2015 SC 401). With regard to Articles 10 and 10A of the Constitution, 1973, it was contended that since the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment Act), 2015, has been incorporated in the First Schedule of Article 8, therefore, the provisions thereof and proceedings conducted thereunder are immune from challenge on the ground of any alleged violation of the Fundamental Rights, including Articles 10 and 10A of the Constitution and the benefit thereof is not available to the Convicts in the instant cases. 68. Heard. Available record perused. 69. The instant Civil Petitions for Leave to Appeal are directed against the various Judgments/Orders of the different learned High Courts, whereby Writ Petitions calling into question the convictions and sentences of individuals awarded by the FGCMs were dismissed. The Convicts in respect whereof the Constitutional Petitions had been filed before the learned High Courts were all civilians, who were tried by FGCM purportedly in view of the Constitution (Twenty- first Amendment) Act (Act I of 2015) read with the Pakistan Army (Amendment) Act (Act II of 2015). The CPs.842/2016, etc. 34 Constitutionality of the Twenty-first Amendment as well as the Pakistan Army (Amendment) Act of 2015, were called into question before this Court and a Larger Bench by majority of 11 to 6 held the aforesaid Twenty- first Constitutional Amendment and the Pakistan Army (Amendment) Act, 2015, not to be ultra vires the Constitution vide judgment, reported as District Bar Association, Rawalpindi and others (supra). 70. In the proceedings culminating in the impugned Judgments/Orders, the jurisdiction of the learned High Courts under Article 199 of the Constitution, had been invoked. The said Article contains a non-obstantive provision i.e. sub-article (3) thereof, which reads as under: "(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law." (emphasis supplied) 71. A bare perusal of the aforesaid provision would suggest that prima facie a High Court in exercise of its jurisdiction under Article 199(1) of the Constitution CPs.842/2016, etc. 35 cannot pass any order in respect of any person who even for the time being is subject to any law pertaining to the Armed Forces with regard to any action taken under such law. The Pakistan Army Act, 1952, is one of the laws applicable to the Armed Forces of Pakistan. The jurisdiction of the learned High Courts with regard to the exercise of the powers of Judicial Review with respect to trial by the FGCM under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, and the convictions and sentences handed down thereunder were also examined in the case of District Bar Association, Rawalpindi and others (supra). This Court considered, inter alia, the ratio of the previous judgments of this Court, reported as The State v. Zia-ur-Rahman and others (PLD 1973 SC 49), Brig. (Retd) F.B. Ali and another v. The State (PLD 1975 SC 506), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26), Mrs. Shahida Zahir Abbas and 4 others v. President of Pakistan and others (PLD 1996 SC 632), Ex.Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others (PLD 2001 SC 549), Mst. Tahira Alams and another v. CPs.842/2016, etc. 36 Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another (PLD 2002 SC 830), Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another (PLD 2007 SC 498), Ghulam Abbas Niazi v. Federation of Pakistan and others (PLD 2009 SC 866), Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171), Begum Syed Azra Masood v. Begum Noshaba Moeen and others (2007 SCMR 914), Syed Rashid Ali and others v. Pakistan Telecommunication Company Ltd and others (2008 SCMR 314), Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCMR 1229), Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary M/o Defence (2013 SCMR 596), Karamat Ali v. State (PLJ 1976 SC 341) and Ex.PJO-162510 Risaldar Ghulam Abbas v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and others (PLJ 2013 SC 876). CPs.842/2016, etc. 37 The settled law as gleaned from the aforesaid judgments was reiterated in the following terms: "171. In view of the above, there can be no manner of doubt that it is a settled law that any order passed or sentence awarded by a Court Martial or other Forums under the Pakistan Army Act, 1952, included as amended by the Pakistan Army (Amendment) Act, 2015, is subject to the Judicial Review both by the High Courts and this Court, inter alia, on the ground of coram-non-judice, without jurisdiction or suffering from mala fides including malice in law. This would also hold true for any decision selecting or transferring a case for trial before a Court Martial. …" (emphasis supplied) 72. Before the contentions of the learned counsels for the Petitioners in the context of the available record with regard to the individual's case can be examined, it would perhaps be appropriate to ascertain the extent and contours of the jurisdiction of Judicial Review available with the learned High Courts under Article 199 of the Constitution in such like matters. 73. The grounds on the basis whereof a challenge can be thrown to the proceedings taken, convictions and sentences awarded by the FGCM have been specified hereinabove so as to include the grounds of coram non judice, without jurisdiction or suffering from mala fides, including malice in law only. CPs.842/2016, etc. 38 An overview of the judicial pronouncements on the point reveals that the expression coram non judice is usually employed in conjunction with the expression "without jurisdiction" and occasionally as synonymous therewith. However, in Black's Law Dictionary, Ninth Edition, the term coram non judice has been defined as follows: "Coram non judice (kor-em non joo-di- see). [Latin "not before a judge"] 1. Outside the presence of a judge. 2. Before a judge or court that is not the proper one or that cannot take legal cognizance of the matter." Hamoodur Rahman, C.J., as he then was, in the judgment of this Court, reported as Chittaranjan Cotton Nulls Ltd v. Staff Union (1971 PLC 499) very succinctly observed as follows: "Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances. …" 74. Thus, it appears that the coram non judice in fact is perhaps a fatal flaw germane to the very constitution of the judicial forum rendering its proceedings non-est in the eye of law. Though a forum may be vested with the jurisdiction yet its actions may be invalid, if such forum has been set up in clear and CPs.842/2016, etc. 39 absolute violation of the law applicable in this behalf. The purpose of undertaking this exercise is not to circumscribe or limit the jurisdiction of the learned High Court but to amplify the same. 75. The other expression which needs to be dilated upon, in this behalf, is "mala fides including malice in law". The expression "mala fides" has been explained in great detail by this Court in the judgment, reported as The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151), in the following terms: "Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. …" CPs.842/2016, etc. 40 In the above-said judgment, it was also observed as follows: "In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession." A similar view was also taken by this Court in the cases, reported as Abdul Baqi Baluch v. Government of Pakistan through the Cabinet Secretary, Rawalpindi (PLD 1968 SC 313). In the case, reported as Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671), this Court observed as follows: "… A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granted the power to pass the order, but for some other collateral or ulterior purposes." In the case, reported as Zafar-ul-Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan) (PLD 1960 SC 113) this Court held as follows: CPs.842/2016, etc. 41 "… If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law. Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute." This Court in the case, reported as Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14) observed as follows: "… It is not to be turned into a roving enquiry permitting the detenu to hunt for some ground to support his case of mala fides nor should an enquiry be launched upon merely on the basis of vague and indefinite allegations. Mala fide must be pleaded with particularity and once one kind of mala fide is alleged, the detenu should not be allowed to adduce proof of any other kind of mala fide." 76. Malice in law is a term distinct from mala fides of fact. In this behalf, reference may be made to the Black's Law Dictionary, Ninth Edition, where "implied malice" has been defined as follows: "Implied malice. Malice inferred from a person's conduct. – Also termed constructive malice; legal malice; malice in law. Cf. actual malice." (emphasis supplied) CPs.842/2016, etc. 42 Bayley, J. in Bromage v. Prosser (4 B. & C. 255) observed: "… Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. …" 77. These observations were quoted with approval by the House of Lords in the case of Allen v. Flood (1897 A.C. 1) where Lord Watson said: "…. The root of the principle is that, in any legal question, malice depends, not upon evil motive which influenced the mind of the actor, but upon the illegal character of the act which he contemplated and committed. …" 78. The House of Lords in its judgment, reported as Shearer and another v. Shields (1914 A.C. 808) held as follows: "Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently." 79. The aforesaid has been quoted with approval by the Indian Supreme Court in the judgment, reported CPs.842/2016, etc. 43 as Addl. Distt. Magistrate, Jubalpur v. Shivakant Shukla (AIR 1976 SC 1207) and by the Lahore High Court in the judgment, reported as Mian Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others (PLD 1997 Lahore 38). 80. Muhammad Haleem, J., as he then was, in the case reported as Haji Hashmatullah and 9 others vs. Karachi Municipal Corporation and 3 others (PLD 1971 Karachi 514), observed as follows: "… An order in violation of law is mala fide in law, though actual malice may not be present in the mind of the authority passing the order." 81. The Supreme Court of India in the case, reported as State of Andhra Pradesh and others v. Goverdhanlal Pitti (AIR 2003 SC 1941) held as under: "12. The legal meaning of malice is "ill- will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in act". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, 'it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others. (See Words and Phrases legally defined in Third Edition, London Butterworths 1989.)" CPs.842/2016, etc. 44 82. All judicial and quasi-judicial forums for that matter even the Executive Authorities exercise only the powers conferred upon them by law so as to fulfill the mandate of such law and to achieve its declared and self-evident purpose. However, where any action is taken or order passed not with the intention of fulfilling its mandate or to achieve its purpose but is inspired by a collateral purpose or instigated by a personal motive to wrongfully hurt somebody or benefit oneself or another, it is said to suffer from malice of facts. In such cases, the seat of the malice or bad faith is the evil mind of the person taking the action be it spite or personal bias or ulterior motive. Mere allegations, in this behalf, do not suffice. Malice of fact must be pleaded and established at least prima facie on record through supporting material. 83. All persons purporting to act under a law are presumed to be aware of it. Hence, where an action taken is so unreasonable, improbable or blatantly illegal that it ceases to be an action countenanced or contemplated by the law under which it is purportedly taken malice will be implied and act would be deemed to suffer from malice in law or constructive malice. Strict CPs.842/2016, etc. 45 proof of bad faith or collateral propose in such cases may not be required. 84. Having explored the concept of malice in law to the extent of its most liberal connotation, we cannot lose sight of the fact that the jurisdiction exercised by the learned High Court, in this behalf, has to be navigated through a non-obstantive provision in the Constitution i.e. Article 199(3), reproduced herein above. In this behalf, it may perhaps be appropriated to refer the note of caution expressed in the judgment of this Court, reported as Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), wherein it has been observed as follows: "… This is settled principle of law that constitutional protection and immunity of judicial review in performance of constitutional duty cannot be extended to the mala fide acts and actions, therefore distinction must be drawn between malice in fact and malice in law for the purpose of interpretation of the relevant provision of the Constitution or a statute so that an impression must not be created that such provision has been amended, altered or reconstituted which may make the same redundant. The Supreme Court has always been careful and conscious in interpreting the Constitution so as in a manner that it may not create chaos or conflict or CPs.842/2016, etc. 46 make the provision ineffective or nullified." 85. This Court in the specific context of challenging the sentences and convictions awarded by the FGCM in the case, reported as Ex-gunner Muhammad Mushtaq and another v. Secretary Ministry of Defence through Chief of Army Staff and others (2015 SCMR 1071), after examining the previous case law on the subject, observed as follows: "9. … Neither the order passed by the Field General Court Martial is a case of no evidence nor the evidence led by the prosecution is insufficient. There is sufficient material available to prove the guilt of the appellants. In absence of any mala fide on the part of the prosecution, the conviction and sentences awarded to the appellants by the Field General Court Martial cannot be stamped to be coram non judice. …" 86. In the case reported as Ex. Lt.-Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others (PLD 2001 SC 549), it was held as under: “8. This Court can interfere only in extraordinary cases involving question of jurisdictional defect when proceedings before that forum become coram non judice or mala fide. …” 87. Again after an overview of the case law on the subject, this Court in the case of Ghulam Abbas v. CPs.842/2016, etc. 47 Federation of Pakistan through Secretary, Ministry of Defence and others (2014 SCMR 849), held as follows: 6. … It would further be seen that the High Court in its constitutional jurisdiction is not a Court of Appeal and hence is not empowered to analyze each and every piece of evidence in order to return a verdict. In this regard its jurisdiction would be limited to scanning the evidence in order to ensure that the accused has been given a fair trial. Indeed, in the case of Sabur Rehman v. The Government of Sindh (supra) it was observed by this Court (majority view), "That in some of the decided cases it has been held that if a finding is based on no evidence it will be a case of without jurisdiction but again the basic question is as to whether the High Court in exercise of constitutional jurisdiction or this Court while hearing an appeal arising out of a refusal of the High Court to set aside the conviction can take upon itself the role of an Appellate Court to reappraise the entire evidence on record and to analyze it and then to conclude that it is a case of no evidence in order to render the conviction as without jurisdiction. In my humble opinion, this is not permissible. The High Court, after going through the record, was satisfied that it was not a case of no evidence. In our view, the approach of the High Court was correct that it had not reappraised the evidence and had not analyzed the same in the judgment as it was not hearing a regular appeal". We would respectfully agree with the majority view in the instant case but would hasten to add that where a finding is perverse or based on no evidence at all, then certainly the High Court in exercise of its constitutional jurisdiction could interfere." "7. Consequently, in order to do full justice to the petitioner, we have with CPs.842/2016, etc. 48 the assistance of learned Advocate Supreme Court, gone through the evidence and we do not find that either it is a case of no evidence or that evidence led by the prosecution was insufficient to convict the petitioner. Indeed, the victim has himself very candidly described the petitioner's forced sexual encounter when he committed the unnatural offence. This has been corroborated by the medical evidence on record." 88. In the case reported as Ex. Lt.-Col. Anwar Aziz (PA-7122) (supra), it was held as under: "6. As per record it is noticed that petitioner had candidly admitted the jurisdiction of Field General Court Martial, the trial Court; and that of the Court of Appeals, the Appellate Court. Admittedly he did not challenge the jurisdiction of the Army Courts at any stage. He voluntarily surrendered to their jurisdiction and remained silent and contested the proceedings fully. It was after exhausting the remedies available to him according to the Act, he resorted to the Constitutional jurisdiction of the High Court without any legal justification. The learned counsel of the petitioner frankly conceded that during the hearing of the petition before the High Court the petitioner had accepted the jurisdiction of Army Courts and failed to convince that the conviction was either mala fide or coram non judice or without jurisdiction. The petitioner being member of Armed Forces was thus rightly tried, convicted and sentenced by the properly constituted forums under the Act, as such his case does not attract the question of public importance." CPs.842/2016, etc. 49 89. In the case of Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others (PLD 2007 SC 405), against the convictions and sentences awarded by the FGCM, the contention raised pertaining to the “merits” of the case was rejected in the following terms: "33. In this behalf it may be noted that these are the questions which relate to the merits of the case. Further more, during the trial no such objection was raised on behalf of the appellants, therefore, the same is not entertainable for want of jurisdiction of the High Court, as concluded herein above." 90. From the above law as declared through various precedents, it can be gathered that any proceedings taken, convictions and sentences awarded by the FGCM can be called into question on the ground of mala fides of fact i.e. being tainted with bias or bad faith or taken for a collateral purpose or inspired by a personal motive to hurt a person or benefit oneself or another. The mere allegation that an action has been taken wrongly is not sufficient to establish mala fide of facts. Specific allegations of the collateral purpose or an ulterior motive must be made and proved to the satisfaction of the Court. CPs.842/2016, etc. 50 91. A challenge can also be thrown on the independent ground of malice in law or constructive or implied malice for which purpose it is sufficient to establish that the action complained of was not only illegal but so unreasonable and improbable that it cannot be said to be contemplated or countenanced by the law whereunder such action has purportedly been taken. It would include an act done wrongfully and willfully without reasonable or probable justification. Unlike cases of malice in fact evil intention need not necessarily exist or required to be proved. Any action suffering from mala fides of fact or malice in law constitutes a fraud upon the law and is without jurisdiction. 92. Similarly, if there is a fundamental legal flaw in the constitution of the forum (in our case FGCM) the actions taken thereby would be coram non judice, hence, also without jurisdiction. 93. It may be noted that the actions complained of can even otherwise be without jurisdiction, a separate and independent ground available to challenge the sentences and convictions of the FGCM, therefore, it must necessarily be examined whether the FGCM had CPs.842/2016, etc. 51 the jurisdiction over the person tried and the offence for which such trial has taken place and to ascertain existence or otherwise of any other defect or a gross illegality in the exercise of jurisdiction denuding the same of validity. However, we cannot lose sight of the non- obstantive provision [in the Constitution i.e. Article 199(3)] impeding the exercise the powers of Judicial Review by the High Court under Article 199 of the Constitution. Consequently, the boundaries of the available jurisdiction cannot be pushed so as to negate and frustrate the said provision of the Constitution. An exception to the rule barring exercise of jurisdiction cannot be extended so as to defeat and destroy the rule itself. It is by now a well settled proposition of law, as is obvious from the judgments of this Court, referred to and reproduced hereinabove, that the powers of Judicial Review under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, against the sentences and convictions of the FGCM is not legally identical to the powers of an Appellate Court. The evidence produced cannot be analyzed in detail to displace any reasonable or probable conclusion drawn CPs.842/2016, etc. 52 by the FGCM nor can the High Court venture into the realm of the "merits" of the case. However, the learned High Court can always satisfy itself that it is not a case of no evidence or insufficient evidence or the absence of jurisdiction. 94. It is in the above backdrop, the contentions of the learned counsels in respect of each individual's case at hand needs to be examined. 95. Subject matter of Civil Petition for Leave to Appeal No.842 of 2016 is the conviction and sentence awarded to a civilian Said Zaman Khan (Convict) son of Said Nawas Khan by a FGCM convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. The Convict was accused of several counts of the commission of offences of being a Member of a known religiously motivated terrorist organization and attacking, alongwith others, the Armed Forces of Pakistan, while armed with deadly weapons and thereby causing death of several Army personnel. The place of occurrence, it is alleged, was North Waziristan. The Convict was accused of the commission of an offence under clause 2(1)(d)(iii) of the Pakistan Army Act, CPs.842/2016, etc. 53 1952, as incorporated by the Pakistan Army (Amendment) Act, 2015. Hence, by operation of law became subject to the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, in view of Section 2(1) thereof, therefore, the Convict became liable to be dealt with under the Pakistan Army Act, including by way of trial thereunder by a FGCM. The offence of which the Convict was accused is obviously punishable under the ordinary law of the lands triable by a Criminal Court, hence, constituted a "civil offence" as defined by sub-section (3) of Section 8 and liable to be tried by the FGCM in view of the provisions of Section 59 of the said Act. It may be noted that no new offence has been created and only a change of Forum has been brought about by the Pakistan Army (Amendment) Act, 2015. The date of occurrence has no real significance. The offence in question as noted above is a "civil offence", as defined in Sections 8(3) of the Pakistan Army Act, and was thus not only triable by the FGCM per-se but also regardless of the date when the offence was committed, as is clear not only from the First Proviso to Section 2(1)(d)(iii) but also Section 59(4) of the Pakistan Army CPs.842/2016, etc. 54 Act, which is reproduced hereunder for ease of reference: 59. Civil Offences.—(4) Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of sub-section (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly.” 96. From the aforesaid it appears that in view of the nature of the offences of which, the Convict was accused of, he became subject to the Pakistan Army Act and thus liable to be tried by the FGCM, for such offences regardless of the fact where he became subject to the Pakistan Army Act or when the offence was committed. Therefore, the FGCM was vested with the jurisdiction to proceed against the Convict. Hence, the conviction and sentence cannot be held to be without jurisdiction on this account especially, as the learned counsel for the Petitioner was unable to point out any jurisdictional defect, in this behalf. Furthermore, during the course of the trial, the Convict did not object to the CPs.842/2016, etc. 55 jurisdiction of the FGCM, when granted an opportunity to do so, as is evident from the record. 97. The learned counsels for the Petitioners complained of limited access to the record of the proceedings conducted by the FGCM. We cannot ignore the fact that in view of the peculiar nature of the offences for the commission whereof the Convicts have been accused, it was imperative that efforts should be made to ensure the security and safety of the Members of the FGCM, witnesses produced, the Prosecuting and the Defending Officers and the Interpreters. Such sensitivity necessitated by the existing extra-ordinary circumstances has been reflected in Section 2-C of the Pakistan Army Act, incorporated through a subsequent Amending Act dated 19.11.2015. In the instant cases through specific Order passed by this Court, all the learned counsels were permitted to examine the record of the proceedings of the FGCM, which has been made available to this Court. It has also been noticed that at no point of time after the confirmation of the sentence by the FGCM, any application was filed to the Competent Authority for the supply of the copies of the proceedings, if so required, in terms of Rule 130 of the CPs.842/2016, etc. 56 Pakistan Army Act Rules, 1954. Such applications were not even moved during the pendency of the proceedings before the High Courts or even before this Court. In the circumstances, we are not persuaded that any prejudice has been caused to the Petitioners, in this behalf. 98. At no point of time during the course of trial by the FGCM or the pendency of the proceedings before the High Court or even before this Court any allegation of specific mala fides of fact were made against the Members of the FGCM. It is not the case of the Petitioners that any Member of the FGCM either had any personal bias against the Convict or established on record that any proceeding or conviction by the FGCM was the result of any evil intention of any Member thereof or otherwise conducted in bad faith for a collateral purpose. It has been noticed that during the course of proceedings, the Convict was specifically inquired from as to whether he had any objection against any Member of the FGCM. He responded in the negative, which fact is apparent from the record of the proceedings. In the above circumstances, no case for mala fides of fact has been made out. Consequently, the CPs.842/2016, etc. 57 conviction and sentence of the Convict cannot be set aside on the ground of mala fides of fact. 99. It is not the case of the Petitioner that the FGCM was not duly convened and constituted in terms of the Pakistan Army Act, 1952, as amended. No illegality or infirmity, in this behalf, was pointed out or noticed. In the circumstances, the conviction and sentence cannot be said to be coram non judice. 100. The learned counsels for the Petitioners, by relying upon Article 10 sub-article (2) of the Constitution, contended that the trial before the FGCM was vitiated as the Convict was not defended by a Civil Defence Counsel or Legal Practitioner of his own choice. 101. The convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. This Court in its judgment in the case of District Bar Association, Rawalpindi and others (supra) has held that the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, was validly and effectively incorporated through the Amendment in the First Schedule to the Constitution, as a consequence whereof, the provisions thereof cannot be called into question on the ground of CPs.842/2016, etc. 58 being in violation of the Fundamental Rights guaranteed under the Constitution in view of Article 8 sub-article (3). Be that as it may, it is, even otherwise, apparent from the record that prior to the commencement of the trial, the Convict was specifically asked by the FGCM whether he needed an adjournment to prepare his defence or to engage a Civil Defence Counsel. The Convict responded in the negative. In the above circumstances, a Defending Officer was appointed in terms of Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in accordance with the applicable law and the dictum of this Court, as laid down in the judgment, reported as Ex-Gunner Muhammad Mushtaq and another (supra). Thus, the contentions, in this behalf, are misconceived. 102. It was also urged on behalf of the Petitioner that the trial by the FGCM in the instant case was invalid in view of Section 91 of the Pakistan Army Act, 1952, as the period of more than three years had passed between the alleged occurrence and the commencement of the trial. The Convict, being subject to the Pakistan Army Act, 1952, was tried for the civil offence in terms of CPs.842/2016, etc. 59 Section 59. The provisions of Section 91 were thus not attracted, as a trial for a civil offence under Section 59 has been specifically excluded from the operation of Section 91 as is mentioned therein. Thus, the contentions of the learned counsel, in this behalf, cannot be accepted. 103. The nature and extent of the power of Judicial Review in matters arising from an action taken under the Pakistan Army Act, 1952, has by and large been settled by this Court through its various judgments, referred to above. It now stands clarified that neither the High Court nor this Court can sit in appeal over the findings of the FGCM or undertake an exercise of analyzing the evidence produced before it or dwell into the "merits" of the case. However, we have scanned the evidence produced and proceedings conducted by the FGCM. The Convict pleaded guilty to the charges, which were altered to not guilty by operation of the law. There was a judicial confession of the Convict before a learned Judicial Magistrate, which was proved in evidence by the said Judicial Magistrate, who appeared as a witness. Such confession was never retracted by the Convict. Other relevant evidence, including eye witnesses of the CPs.842/2016, etc. 60 occurrence was also produced. The prosecution witnesses made their statements on Oath and were cross-examined by the Defending Officer. Opportunity to produce evidence in defence was given, which was declined. The Convict was permitted to address the Court and made a statement, wherein he again admitted his guilt. In the above circumstances, it is not possible for us to conclude that it was a case of no evidence or insufficient evidence nor is it possible to hold that the conclusions drawn by the FGCM are blatantly unreasonable or wholly improbable. 104. A perusal of the record of the FGCM reveals that in order to ensure a fair trial and to protect the rights of the Convict, the relevant Rules were complied with. The Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. An Interpreter was appointed with the consent of the Convict in terms of Rule 91 of the Pakistan Army Act Rules, 1954. The nature of the offence for the commission whereof, the Convict was charged, was explained to him as too the possible sentence that would be awarded, as required by Rule 95. He was given an opportunity to prepare his defence CPs.842/2016, etc. 61 and engage Civil Defence Counsel, if he so desired, in terms of Rules 23 and 24. On his exercising the option not to do so, a Defending Officer was appointed in terms of Rule 81. He was given an opportunity to object to the constitution of the FGCM and to the Prosecutor as well as the Defending Officer, in terms of Section 104 and Rule 35 also. No objection, in this behalf, was raised. The Members of the FGCM, the Prosecutor, the Defending Officer and the Interpreter were duly sworn in, as required by Rules 36 and 37. The charge was formally framed to which incidentally, the Convict pleaded guilty. The evidence was recorded on Oath. An opportunity to cross-examine was granted, which was availed off and an opportunity was also given to produce evidence in defence in terms of Rule 142, which was declined. He was also allowed to record his own statement and to address the Court in terms of Rule 143 wherein he admitted his guilt. The sentence was passed, which has been confirmed in accordance with Section 130 and the Appeal therefrom was dismissed by the Competent Authority. It appears that the provisions of the Pakistan Army Act and the Rules framed thereunder, applicable to the trial at hand have not been CPs.842/2016, etc. 62 violated. Even otherwise, the procedural defects, if any, would not vitiate the trial in view of Rule 132 of the Pakistan Army Act Rules, 1954 nor did the High Court have the jurisdiction to enter into the domain of the procedural irregularities in view of the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra), especially as no prejudice appears to have been caused to the Convict nor any such prejudice has been pointed out by the learned counsel or specifically pleaded before the High Court. The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 105. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. CPs.842/2016, etc. 63 The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or otherwise was without jurisdiction or coram non judice. 106. In view of the above, the Convict was subject to the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, and liable to be tried thereunder and the offence was also triable by the FGCM, hence, the proceedings are not without jurisdiction. No mala fides of fact were pleaded or proved on record. The conviction did not suffer from coram non judice. No case of malice in law has been made out. Consequently, no ground for interference with the impugned Order dated 12.05.2016 of the Lahore High Court, Bahawalpur Bench, has been made out. Accordingly, this Civil Petition for Leave to Appeal No.842 of 2016, being without merit is liable to be dismissed. 107. Civil Petition for Leave to Appeal No.3331 of 2015, arises from the conviction and sentence awarded CPs.842/2016, etc. 64 to a civilian Haider Ali alias Asmatullah (Convict) son of Zahir Shah by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. Haider Ali was accused of the offences of being Member of a known religiously motivated terrorist organization, who, alongwith others, attacked the Armed Forces of Pakistan, causing the death of Army personnel. He was also accused separately of kidnapping, attacking and causing the death of civilians and the officials of the Law Enforcement Agencies and for abetment in the killing of the civilians. He was also charged with the possession of arms, ammunitions and explosives. 108. The learned counsel for the Petitioner at the very outset contended that the Convict Haider Ali was a minor at the time of the commission of the alleged offence, hence, could not be tried by the FGCM. The learned Deputy Attorney General for Pakistan not only disputed such assertion on the factual plane but also contended that the Pakistan Army Act, 1952, in view of Section 4 of the Pakistan Army (Amendment) Act, 2015, had an overriding effect over all the other laws. Be that as it may, the question of the age of Convict Haider Ali CPs.842/2016, etc. 65 was raised before the learned Peshawar High Court by the Petitioner. However, by way of the impugned judgment, the learned High Court was not satisfied that the Convict Haider Ali was a minor at any material point of time and understandably so, as the primary basis for such assertion was a Birth Certificate, purportedly pertaining to the Convict Haider Ali. The entry in the said Certificate regarding the birth of the Convict Haider Ali was inserted in the record on 05.08.2015, after the Writ Petition had been filed before the learned High Court and many decades after the alleged birth of the Convict Haider Ali. The other documents were private documents, having no evidentiary significance. We are not persuaded to interfere in the said findings. 109. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of Section 8(3) of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section CPs.842/2016, etc. 66 2(1), the Convict, by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It was also noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 110. The contention of the learned counsel for the Petitioner regarding the alleged lack of full access to the record is also misconceived as such access was given in terms of a specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever filed to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 111. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal CPs.842/2016, etc. 67 bias against the Convict or that the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any objection, in this behalf. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 112. The learned counsel for the Petitioner had contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. Reference, in this behalf, was made to Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi (supra), was validly and effectively incorporated in the First Schedule of the Constitution, hence, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, in view of Article 8(3) of the Constitution, are immune from challenge on the ground of being in violation of the Fundamental Rights, CPs.842/2016, etc. 68 including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not claim to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 113. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the date of occurrence and the date of the trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and CPs.842/2016, etc. 69 preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all sworn in as required by the law. The charge was formally framed to which the Convict pleaded guilty, which was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 114. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity CPs.842/2016, etc. 70 if any, stood cured in view of Rule 132 of the Pakistan Army Act Rules, 1954, and furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the learned High Court, as has been stated above. 115. It is settled law that while exercising the power of Judicial Review in the matters of this nature neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have examined the record in the instant case, the Convict pleaded guilty to the charges framed against him. This was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own, in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise improbable or blatantly unreasonable. The learned counsel for the Petitioner has not been able to CPs.842/2016, etc. 71 persuade us that the conclusions drawn, conviction recorded and sentence passed are not as countenanced by the law. Hence, no case of malice in law has been made out. 116. The examination of the record also reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act, 1952, and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 117. In short, it appears from the record that the Convict being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fides or conducted in bad faith for a collateral purpose. The FGCM was validly convened and constituted, hence, the conviction and sentence was not coram non judice. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn are wholly unreasonable and improbable. No illegality in the conduct of the trial exists. The Law and CPs.842/2016, etc. 72 the Rules, more particularly, those protecting the rights of the accused were adhered to. 118. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 119. In this view of the matter, we find ourselves unable to interfere with the impugned judgment dated 14.10.2015 of the learned Peshawar High Court dismissing the Constitutional Petition i.e. Writ Petition No.2915 of 2015, challenging the conviction and sentence of the Convict. CPs.842/2016, etc. 73 120. Civil Petition for Leave to Appeal No.3332 of 2015, arises from the conviction and sentence awarded to a Civilian Qari Zahir Gul alias Qari (Convict) son of Rehmat Gul by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. Qari Zahir Gul was accused of the offences of being a Member of a known religiously motivated terrorist organization, who attacked the Armed Forces of Pakistan, causing the injuries to Army personnel. He was also accused separately of abducting persons for ransom and causing the death of civilians. He was also charged with receiving funds from local sources for illegal activities. 121. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of Section 8(3), therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. CPs.842/2016, etc. 74 In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused, hence, the FGCM, was vested with the requisite jurisdiction, in this behalf, that too irrespective to the point of time when the offence was committed. It has also been noticed that the Convict did not object to his trial by the FGCM when afforded an opportunity to do so, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 122. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 123. The contention of the learned counsel for the Petitioner regarding the alleged lack of full access to the record is also misconceived as such access was given in terms of the specific order passed by this Court. It has also been noticed that no application was ever filed to the Competent Authority for the supply of copies of the proceedings of the FGCM in terms of Rule 130 of the CPs.842/2016, etc. 75 Pakistan Army Act Rules, 1954, at any point of time, not even when the matter was pending before the learned High Court or before this Court. 124. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or that the proceedings were taken in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case of mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 125. The learned counsel for the Petitioner had argued that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which, as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra), was validly and effectively incorporated in the First Schedule of the CPs.842/2016, etc. 76 Constitution, hence, in view of Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in accordance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict too are of little significance and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 126. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Army Act, was not applicable, as a consequence whereof, the period between the date of the occurrence and the date CPs.842/2016, etc. 77 of the trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all sworn in according to the law. The charge was formally framed to which the Convict pleaded guilty, which was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. CPs.842/2016, etc. 78 127. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Act Rules, 1954, and even otherwise, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the learned High Court, as has been stated above. 128. It is settled law that in the exercise of its jurisdiction in the instant cases neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record of evidence produced and proceedings conducted by the FGCM. The Convict pleaded guilty to the charges framed against him, which was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict on his own in his statement before the FGCM yet again CPs.842/2016, etc. 79 admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise improbable and unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusions drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 129. In short, it appears from the record that the Convict being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias by any Member of the FGCM against the Convict has been established nor that the proceedings conducted were mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 130. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act CPs.842/2016, etc. 80 and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 131. In this view of the matter, we are not persuaded to interfere with the impugned judgment dated 14.10.2015 of the learned Peshawar High Court dismissing the Constitutional Petition i.e. Writ Petition No.2979 of 2015, challenging the conviction and sentence of the Convict. 132. Civil Petition for Leave to Appeal No.3674 of 2015, arises from the conviction and sentence awarded to a Civilian Ateeq-ur-Rehman (Convict) alias Usman son of Ali Rehman by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan CPs.842/2016, etc. 81 Army (Amendment) Act, 2015. Ateeq-ur-Rehman was accused of the offences of being Member of a known religiously motivated terrorist organization, who, alongwith others, attacked the Army personnel/ employees of a Security Organization through suicide bombers and Vehicle Borne Explosive Device (VBIED) and thereby caused death of Army personnel and civilian, and in the like manner attacking an Education Institution. He was also accused of providing funds to a terrorist organization. 133. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of Section 8(3), therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the CPs.842/2016, etc. 82 offence was committed. It was also noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 134. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in terms of the specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever filed with the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 135. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object the Members of the FGCM but he did not raise CPs.842/2016, etc. 83 any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 136. The learned counsel for the Petitioner contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, the provisions of the Pakistan Army Act, 1952, as amended by Pakistan Army (Amendment) Act, 2015, in view of Article 8(3) of the Constitution, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a CPs.842/2016, etc. 84 course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 137. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the occurrence and the trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An interpreter was also appointed. The Convict chose not to engage a Civil CPs.842/2016, etc. 85 Defence Counsel thus a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer as well as the Interpreter, who were all duly sworn in. The charge was formally framed to which the Convict pleaded guilty. Such plea was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was also given to produce evidence in defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 138. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Act Rules, 1954, and even otherwise, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. CPs.842/2016, etc. 86 139. It is settled law that while exercising the power of Judicial Review in such like cases neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record in the instant case. The Convict pleaded guilty to the charges framed against him. This was altered to not guilty in accordance with law. The evidence, inter alia, includes a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same while appearing as a witness before the FGCM. The Convict never retracted from his confession. The Convict on his own in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise improbable or unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by the law. Hence, no case of malice in law has been made out. 140. The examination of the record reveals that the FGCM was constituted and convened in accordance with CPs.842/2016, etc. 87 the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 141. In short, it appears from the record that the Convict, being a subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn blatantly unreasonable or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice has been made out. 142. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the CPs.842/2016, etc. 88 instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 143. In this view of the matter, we are not persuaded to interfere with the impugned Order dated 09.12.2015 of the learned Peshawar High Court dismissing the Constitutional Petition i.e. Writ Petition No.3219-P of 2015, challenging the conviction and sentence of the Convict. 144. In Civil Petition for Leave to Appeal No.3777 of 2015, a Civilian Taj Muhammad alias Rizwan son of Alaf Khan, was convicted and sentenced by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, for the offences on several counts of being a Member of a known religiously motivated terrorist organization and attacking, alongwith others, the Armed Forces of CPs.842/2016, etc. 89 Pakistan and Law Enforcement Agencies and thereby causing death of several soldiers and officials. He was also charged of abetting an attack on an Educational Institution and separately of causing death of civilians. 145. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of Section 8(3) of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It has also been noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. CPs.842/2016, etc. 90 146. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 147. The contention of the learned counsel for the Petitioner regarding the alleged lack of full access to the record is also misconceived as such access was given in terms of a specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever filed to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 148. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings have been conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case CPs.842/2016, etc. 91 for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 149. The learned counsel for the Petitioner contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi (supra), was validly and effectively incorporated in the First Schedule of the Constitution, hence, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, in view of Article 8(3) of the Constitution, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance CPs.842/2016, etc. 92 with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 150. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period between the date of occurrence and the trial is of no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel thus a Defending Officer was CPs.842/2016, etc. 93 appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all duly sworn in. The charge was formally framed to which the Convict pleaded guilty. The plea was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 151. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Act Rules, 1954, and furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 152. It is settled law that in exercise of the jurisdiction invoked neither the learned High Court nor CPs.842/2016, etc. 94 this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record in the instant case. The Convict pleaded guilty to the charges framed against him. The plea was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict on his own in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise improbable and wholly unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 153. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for an offence triable by the FGCM, which was convened and constituted in accordance with the law. CPs.842/2016, etc. 95 No personal bias of any Member of the FGCM against the Convict has been established nor the proceedings were mala fide or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn are blatantly unreasonable or improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 154. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with CPs.842/2016, etc. 96 mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 155. In this view of the matter, we are not persuaded to interfere with the impugned Order of the learned Peshawar High Court dated 09.12.2015, dismissing the Constitution Petition challenging the conviction and sentence of the Convict. 156. Civil Petition for Leave to Appeal No.06 of 2016, arises from the conviction and sentence awarded to a Civilian Qari Zubair Muhammad alias Ameer Sahib (Convict) son of Sakhi Muhammad by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. Qari Zubair Muhammad was accused of the offences of being a Member of a known religiously motivated terrorist organization, who, alongwith others, attacked civilians and officials of the Law Enforcement Agencies, causing death and injuries. Qari Zubair Muhammad was also accused of using, alongwith others, Improvised Explosive Devices (IEDs), which resulted in the destruction of various shops. He was also accused of abetment in the use of explosives at a place of worship, causing the death and injuries to the Army personnel as CPs.842/2016, etc. 97 well as the civilians. He was also charged with the possession of arms, ammunitions and explosives. 157. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time the offence was committed. It has also been noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 158. The contention of the learned counsel for the Petitioner regarding the alleged lack of full access to the CPs.842/2016, etc. 98 record is also misconceived as such access in this case was also given in terms of a specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever filed to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 159. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings have been conducted in bad faith for a collateral purpose. The record reveals that the Convict was afforded an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 160. The learned counsel for the Petitioner contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of CPs.842/2016, etc. 99 the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra), was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of the Article 8(3) of the Constitution the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another. (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, CPs.842/2016, etc. 100 as has been held by this Court in the case of Mrs. Shahida Zahir Abbas and 4 others (supra). 161. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period between the date of occurrence and the trial is of no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel thus a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all duly sworn in. The charge was formally framed to which the Convict pleaded guilty. The plea was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to CPs.842/2016, etc. 101 cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 162. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Rules Act, 1954, and furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 163. It is now settled law that in exercise of the jurisdiction invoked neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record in the instant case. The Convict pleaded guilty to the charges framed against him. The plea was altered to not guilty in accordance with the law. The evidence, inter alia, CPs.842/2016, etc. 102 included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise wholly unreasonable and improbable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by the law. Hence, no case of malice in law has been made out. 164. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder. No violation of the law, in this behalf, was pointed out at the bar. Hence, the conviction and sentence do not appear to be coram non judice. 165. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. CPs.842/2016, etc. 103 No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings conducted were mala fide or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn blatantly unreasonable or improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice has been made out. 166. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with CPs.842/2016, etc. 104 mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 167. In this view of the matter, we are not persuaded to interfere with the impugned Order dated 09.12.2015 of the learned Peshawar High Court dismissing the Constitutional Petition i.e. Writ Petition No.4019-P of 2015, challenging the conviction and sentence of the Convict. 168. The subject matter of Civil Petition for Leave to Appeal No.32 of 2016, is the conviction and sentence awarded to a Civilian namely Jameel ur Rehman (Convict) son of Sher Rehman by a FGCM, convened and constituted under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. Jameel ur Rehman was accused of the offences of being a Member of a known religiously motivated terrorist organization and attacking the Armed Forces of Pakistan, causing death and injuries to Army personnel. He was also accused of kidnapping the officials of the Law Enforcement Agencies and further causing death and injuries to civilians and abetting in use of explosive. 169. The offences for which the Convict was charged were punishable under the ordinary law of the CPs.842/2016, etc. 105 land triable by a Criminal Court, hence, constituted a "civil offence" in terms of Section 8(3) of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It has also been noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 170. The contention of the learned counsel for the Petitioner regarding the alleged lack of full access to the record is also misconceived as such access was granted to the learned counsel for the Petitioner in terms of the specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the CPs.842/2016, etc. 106 Pakistan Army Act Rules, was ever filed to the Competent Authority for the supply of copies of the proceedings of the FGCM 1954 at any point of time, not even when the matter was pending before the learned High Court or before this Court. 171. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 172. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were taken in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 173. The learned counsel for the Petitioner had further argued that the Convict was not defended by a Civil Defence Counsel of his own choice before the CPs.842/2016, etc. 107 FGCM. In this behalf, reference was made to Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra), was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of the Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (Supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict too are of little significance and do not vitiate the trial by the FGCM, as CPs.842/2016, etc. 108 has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 174. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period between the date of occurrence and the date of trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all duly sworn in. The charge was formally framed to which the Convict pleaded guilty, which was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to CPs.842/2016, etc. 109 cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 175. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Act Rules, 1954 and, furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 176. It is now settled law that in exercise of its jurisdiction in the instant case neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record of evidence produced and proceedings conducted by the FGCM. The Convict pleaded guilty to the charges framed against him, which was altered to not guilty in CPs.842/2016, etc. 110 accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict on his own in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise unreasonable and improbable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 177. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which convened and constituted in accordance with the law. No personal bias by any Member of the FGCM against the Convict has been established nor that the proceedings conducted were mala fide or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence. No CPs.842/2016, etc. 111 illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. 178. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 179. In this view of the matter, we are not persuaded to interfere with the impugned Order of the learned Peshawar High Court dated 09.12.2015, dismissing the Constitutional Petition i.e. Writ Petition (HCP) No.3878-P of 2015, challenging the conviction and sentence of the Convict. CPs.842/2016, etc. 112 180. In Civil Petition for Leave to Appeal No.211 of 2016, a Civilian Aslam Khan (Convict) son of Rozi Khan was convicted and sentenced by a FGCM convened and constituted under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, for the offences of being a Member of a known religiously motivated terrorist organization and attacking, alongwith others, the officials of the Law Enforcement Agencies and causing the death and injuries to them. He was separately accused of attacking and causing the death and injuries to civilians. The Convict was charged with six separate offences. He pleaded guilty to all of such charges. However, such pleas were altered to not guilty by operation of the law. After recording of evidence, the Convict was found not guilty in respect of two of such charges, both pertaining to causing the death and injuries to civilians. However, he was found guilty of the remaining four charges. 181. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of Section 8(3), therefore, the offences were liable to be tried by the FGCM in view of CPs.842/2016, etc. 113 Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged, fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time the offence was committed. It has also been noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 182. The contention of the learned counsel for the Petitioner regarding the alleged lack of full access to the record is also misconceived as such access was given in terms of a specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. CPs.842/2016, etc. 114 183. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were taken in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 184. The learned counsel for the Petitioner had argued that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, in view of the Article 8(3) of the CPs.842/2016, etc. 115 Constitution, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). 185. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period between the date of the occurrence and the date of the trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An CPs.842/2016, etc. 116 interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer as well as the Interpreter, who were all duly sworn in. The charge was formally framed to which the Convict pleaded guilty. Such plea was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was granted to produce evidence in defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. The contentions of the learned counsel with regard to the arrest and detention of the Convict too are of little significance and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 186. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity CPs.842/2016, etc. 117 if any, stood cured in view of Rule 132 of the Pakistan Army Act Rules, 1954 and, even otherwise, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 187. It is settled law that in exercise of the jurisdiction in the instant case neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record of the evidence and proceedings conducted by the FGCM. The Convict pleaded guilty to the charges framed against him, which was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict on his own in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence nor even otherwise, improbable and unreasonable. The learned CPs.842/2016, etc. 118 counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 188. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 189. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn blatantly unreasonable or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. CPs.842/2016, etc. 119 190. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 191. In this view of the matter, we are not persuaded to interfere with the impugned Order dated 23.12.2015 of the learned Peshawar High Court, dismissing the Constitutional Petition i.e. Writ Petition No.4433-P of 2015, challenging the conviction and sentence of the Convict. 192. Civil Petition for Leave to Appeal No.278 of 2016, arises from the conviction and sentence awarded to a Civilian Muhammad Ghauri (Convict) son of Javed CPs.842/2016, etc. 120 Iqbal by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. Muhammad Ghauri was accused of the offences of being a Member of a known religiously motivated terrorist organization, who, alongwith others, abetted in the use of explosives at a place of worship, causing the death and injuries to civilians. He was also accused of possession of arms, ammunitions and explosives. 193. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of Section 8(3) of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time the offence was committed. It was also noticed CPs.842/2016, etc. 121 that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 194. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 195. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in the instant case too in terms of a specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 196. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the CPs.842/2016, etc. 122 Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 197. The learned counsel for the Petitioner next contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra), was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, included CPs.842/2016, etc. 123 those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 198. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the occurrence and the trial has no material effect. 199. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and CPs.842/2016, etc. 124 preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel thus a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all duly sworn in. The charge was formally framed to which the Convict pleaded guilty. Such plea was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 200. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan CPs.842/2016, etc. 125 Army Rules Act, 1954 and, even otherwise, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 201. It is well settled law that while exercising the jurisdiction of Judicial Review in such like cases neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record in the instant case. The Convict pleaded guilty to the charges framed against him, which was altered to not guilty in accordance with law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same while appearing as witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own, in his statement before the FGCM, yet, again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise, improbable or unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, CPs.842/2016, etc. 126 conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 202. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fide or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn are blatantly unreasonable or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 203. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” CPs.842/2016, etc. 127 sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 204. In this view of the matter, we are not persuaded to interfere with the impugned Order of the learned Lahore High Court, Rawalpindi Bench, dated 27.01.2016, dismissing the Constitutional Petition i.e. Writ Petition No.197 of 2016, challenging the conviction and sentence of the Convict. 205. Civil Petition for Leave to Appeal No.417 of 2016, arises from the conviction and sentence awarded to a Civilian Tahir (Convict) son of Mir Shah Jahan by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. The said Tahir was accused of the offences of being a Member of a known religiously motivated terrorist organization, who, alongwith others, attacked the Frontier Constabulary, causing the death and injuries to CPs.842/2016, etc. 128 the personnel of the said Law Enforcement Agency. Tahir was also accused of attacking, alongwith others, the prison at Bannu. He was further charged of attacking, alongwith others, the Frontier Constabulary Fort Jani Khel. 206. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It has also been noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and CPs.842/2016, etc. 129 sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 207. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in terms of a specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 208. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were taken in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. CPs.842/2016, etc. 130 209. The learned counsel for the Petitioner had argued that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, in view of Article 8(3) of the Constitution, are immune from challenge on the ground of being in violation of the Fundamental Rights, included those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). CPs.842/2016, etc. 131 The contentions of the learned counsel with regard to the arrest and detention of the Convict too are of little significance and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 210. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period between the date of occurrence and the date of trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all duly sworn in. The charge CPs.842/2016, etc. 132 was formally framed to which the Convict pleaded guilty. Such plea altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 211. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Rules Act, 1954, and furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 212. It is settled law that in exercise of the jurisdiction in the instant case neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the CPs.842/2016, etc. 133 record of evidence produced and proceedings conducted by the FGCM. The Convict pleaded guilty to the charges framed against him, which was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own, in his statement before the FGCM, yet, again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or even otherwise improbable and unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 213. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. CPs.842/2016, etc. 134 214. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fide or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn are blatantly unreasonable or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 215. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose CPs.842/2016, etc. 135 of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 216. In this view of the matter, we are not persuaded to interfere with the impugned Order of the learned Peshawar High Court dated 19.01.2016, dismissing the Constitutional Petition i.e. Writ Petition No.133-P of 2016, challenging the conviction and sentence of the Convict. 217. In Civil Petition for Leave to Appeal No.1263 of 2016, a Civilian Fazal-e-Ghaffar alias Abdul Afazal Qari (Convict) son of Shehzada was convicted and sentenced by a FGCM convened and constituted under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, for the offences of being a Member of a known religiously motivated terrorist organization and attacking, alongwith others, the Armed Forces of Pakistan, causing the death and injuries to Army personnel. Fazal-e-Ghaffar alias Abdul Afazal Qari was also charged of planting explosive devices at the roadside to kill Army personnel and also of having been CPs.842/2016, etc. 136 found in possession of a suicide jacket and explosive material. 218. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict, by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It was also noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of its proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 219. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the CPs.842/2016, etc. 137 record is also misconceived as such access was given in the instant case too, in terms of the specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time nor even when the matter was pending before the learned High Court or before this Court. 220. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fide of fact has been made out warranting interference by the learned High Court or by this Court. 221. The learned counsel for the Petitioner had contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to Article 10(2) of the CPs.842/2016, etc. 138 Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of Article 8(3) of the Constitution the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not claim to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, CPs.842/2016, etc. 139 reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 222. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the date of occurrence and the date of the trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all sworn in as required by the law. The charge was formally framed to which the Convict pleaded guilty, which was altered to not guilty. The prosecution CPs.842/2016, etc. 140 witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 223. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Rules Act, 1954 and, furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 224. It is settled law that while exercising the power of Judicial Review of this nature neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have examined the record in the instant case, the Convict pleaded guilty to the charges framed against him. This was altered to not CPs.842/2016, etc. 141 guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict on his own in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise improbable or blatantly unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 225. The examination of the record also reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 226. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. CPs.842/2016, etc. 142 No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fide or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn wholly unreasonable and improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. 227. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. CPs.842/2016, etc. 143 228. In this view of the matter, we find ourselves unable to interfere with the impugned judgment dated 12.04.2016 of the learned Peshawar High Court, dismissing the Constitutional Petition i.e. Writ Petition No.1048-P of 2016, challenging the conviction and sentence of the Convict. 229. Civil Petition for Leave to Appeal No.1306 of 2016, arises from the conviction and sentence awarded by a FGCM, convened under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, to a Civilian Fateh Khan (Convict) son of Mukaram Khan who was charged with several counts of the commission of the offences of being a Member of a known religiously motivated terrorist organization, and attacked, alongwith others, the Armed Forces of Pakistan and thereby causing death and injuries to several Army personnel. He was also separately accused of attacking and causing the death and injuries to the officials of the Law Enforcement Agencies. He was also accused of causing death of civilians and health officials. The alleged offences were committed in the Khyber Agency. CPs.842/2016, etc. 144 230. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It has also been noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 231. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in terms of a specific Order passed by this Court. It has CPs.842/2016, etc. 145 also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 232. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 233. The learned counsel for the Petitioner had contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of CPs.842/2016, etc. 146 this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not seek to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). CPs.842/2016, etc. 147 234. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period between the date of occurrence and the date of trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all duly sworn in. The charge was formally framed to which the Convict pleaded guilty. Such plea was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was granted to produce evidence in defence, which was declined. The CPs.842/2016, etc. 148 Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 235. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Rules Act, 1954 and, even otherwise, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 236. It is settled law that while exercising the powers of Judicial Review of this nature neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have examined the record in the instant case, the Convict pleaded guilty to the charges framed against him. This was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same CPs.842/2016, etc. 149 and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own in his statement before the FGCM, yet, again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise improbable or blatantly unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 237. The examination of the record also reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 238. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the CPs.842/2016, etc. 150 proceedings were mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn wholly unreasonable and improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 239. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. CPs.842/2016, etc. 151 240. In this view of the matter, we find ourselves unable to interfere with the impugned judgment dated 12.04.2016 of the learned Peshawar High Court, dismissing the Constitutional Petition i.e. Writ Petition No.1184-P of 2016, challenging the conviction and sentence of the Convict. 241. Civil Petition for Leave to Appeal No.1335 of 2016, arises out of conviction and sentence of a Civilian Taj Gul alias Javid (Convict) son of Sultan Zareen by a FGCM, convened and constituted under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. Taj Gul alias Javid was accused of the offences of being a Member of a known religiously motivated terrorist organization, who attacked and caused the death of the officials of the Law Enforcement Agencies and further for possession of arms and ammunitions. 242. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section CPs.842/2016, etc. 152 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It was also noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 243. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in terms of the specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 244. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the CPs.842/2016, etc. 153 Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 245. The learned counsel for the Petitioner had contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of the Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including CPs.842/2016, etc. 154 those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not claim to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 246. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the date of occurrence and the date of trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to CPs.842/2016, etc. 155 the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all sworn in as required by the law. The charge was formally framed to which the Convict pleaded guilty, which was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 247. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan CPs.842/2016, etc. 156 Army Rules Act, 1954, and even otherwise, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 248. It is now settled law that while exercising the powers of Judicial Review in such like cases neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it, in this behalf. However, we have examined the record in the instant case, the Convict pleaded guilty to the charges framed against him. This was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own, in his statement before the FGCM, yet, again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or were otherwise improbable or blatantly unreasonable. The learned counsel for the Petitioner has not been able to persuade CPs.842/2016, etc. 157 us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. 249. The examination of the record also reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 250. In short, it appears from the record that the Convict, being subject to Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn blatantly unreasonable or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. CPs.842/2016, etc. 158 251. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 252. In this view of the matter, we find ourselves unable to interfere with the impugned judgment dated 12.04.2015 of the learned Peshawar High Court, dismissing the Constitutional Petition i.e. Writ Petition No.1190-P of 2016, challenging the conviction and sentence of the Convict. 253. In Civil Petition for Leave to Appeal No.1353 of 2016, a Civilian Aksan Mahboob alias Khubab (Convict) son of Asghar Ali was convicted and sentenced by a CPs.842/2016, etc. 159 FGCM, convened and constituted under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, for the offences on several counts of being a Member of a known religiously motivated terrorist organization and attacking, alongwith others, the officials of the Law Enforcement Agencies, which resulted in death and injuries to the officials of the Law Enforcement Agencies and having possession of firearms, explosives and receiving funds for committing the aforesaid offences. 254. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of the law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which, he was accused that too irrespective CPs.842/2016, etc. 160 of the point of time when the offence was committed. It was also noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 255. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in terms of the specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 256. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not CPs.842/2016, etc. 161 raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 257. The learned counsel for the Petitioner had contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not claim to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a CPs.842/2016, etc. 162 course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 258. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the date of occurrence and the date of trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and precluded prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to CPs.842/2016, etc. 163 engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all sworn in as required by the law. The charge was formally framed to which the Convict pleaded guilty, which was altered to not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 259. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Rules Act, 1954 and, furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. CPs.842/2016, etc. 164 260. It is now settled law that while exercising the powers of Judicial Review in such like cases neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it, in this behalf. However, we have examined the record in the instant case, the Convict pleaded guilty to the charges framed against him. This was altered to not guilty in accordance with the law. The evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own, in his statement before the FGCM yet again admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or otherwise improbable or blatantly unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not as countenanced by law. Hence, no case of malice in law has been made out. CPs.842/2016, etc. 165 261. The examination of the record also reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 262. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor that the proceedings were mala fide or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn blatantly unreasonable or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 263. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the CPs.842/2016, etc. 166 offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 264. In this view of the matter, we find ourselves unable to interfere with the impugned Order dated 19.01.2016 of the learned Lahore High Court, Rawalpindi Bench, dismissing the Constitutional Petition i.e. Writ Petition No.117 of 2016, challenging the conviction and sentence of the Convict. 265. Civil Petition for Leave to Appeal No.1503 of 2016, is arising from the conviction and sentence awarded to Nasir Khan (Convict) son of Khan Afsar Khan by a FGCM, convened and constituted under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015. The said Nasir Khan was accused for the offences of being a Member of a known CPs.842/2016, etc. 167 religiously motivated terrorist organization, who, alongwith others, attacked the Armed Forces of Pakistan, causing the death and injuries to Army personnel and for possession of arms and explosives. 266. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which, he was accused that too irrespective of the point of time when the offence was committed. It was also noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. CPs.842/2016, etc. 168 267. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in terms of a specific Order passed by this Court. It has also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM at any point of time, not even when the matter was pending before the learned High Court or before this Court. 268. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 269. The learned counsel for the Petitioner had contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In CPs.842/2016, etc. 169 this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of the Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict was specifically asked whether he wished to be defended by a Civil Defence Counsel but he declined, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict too are of little CPs.842/2016, etc. 170 significance and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). 270. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the date of occurrence and the date of trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel despite being given an opportunity to do so, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all sworn in as required by the law. The charge was formally framed to which the CPs.842/2016, etc. 171 Convict pleaded not guilty. The prosecution witnesses were examined on Oath and subjected to cross- examination and an opportunity was given to produce evidence in his defence, which was declined. The Convict was allowed to make a statement, which was so recorded and the Convict again admitted his guilt. The sentence has been confirmed in accordance with the law. 271. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Rules Act, 1954 and, even otherwise, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 272. It is now settled law that while exercising the powers of Judicial Review in such like cases neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it, in this behalf. However, we have examined the record in the instant case. The CPs.842/2016, etc. 172 evidence, inter alia, included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own, in his statement before the FGCM, admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or are otherwise improbable or blatantly unreasonable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not countenanced by law. Hence, no case of malice in law has been made out. 273. The examination of the record also reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 274. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against CPs.842/2016, etc. 173 the Convict has been established nor that the proceedings were mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn blatantly unreasonable or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 275. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. CPs.842/2016, etc. 174 276. In this view of the matter, we find ourselves unable to interfere with the impugned judgment dated 12.04.2016 of the learned Peshawar High Court, dismissing the Constitutional Petition i.e. Writ Petition No.1271-P of 2016, challenging the conviction and sentence of the Convict. 277. Civil Petition for Leave to Appeal No.1541 of 2016, pertains to a Civilian Muhammad Arbi alias Sher Khan (Convict) son of Hafiz Muhammad Sadiq, who was convicted and sentenced by a FGCM convened and constituted under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, for the offences of being a Member of a known religiously motivated terrorist organization and attacked, alongwith others, the Law Enforcement Agencies, causing the death and injuries to its personnel. He was also accused of preparing explosives devices and suicide jackets for terrorist activities against the Law Enforcement Agencies as well as for the abetment of the attack on Bannu Jail and providing assistance in the escape of high profile terrorists and other prisoners from the said Jail and causing injuries to the officials of the Law Enforcement Agencies. CPs.842/2016, etc. 175 278. The offences for which the Convict was charged were punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" in terms of sub-section (3) of Section 8 of the Pakistan Army Act, therefore, the offences were liable to be tried by the FGCM in view of Section 59 of the Pakistan Army Act, 1952. The offences for which the accused was charged fell within the purview of Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, hence, in view of Section 2(1), the Convict by operation of law was subject to the Pakistan Army Act. In the circumstances, the FGCM had the jurisdiction to try the Convict for the offences of which he was accused that too irrespective of the point of time when the offence was committed. It was also noticed that the Convict did not object to his trial by the FGCM, as is evident from the record of the proceedings. In the circumstances, the conviction and sentence awarded by the FGCM do not suffer from want of inherent jurisdiction. 279. The contention of the learned counsel for the Petitioner regarding alleged lack of full access to the record is also misconceived as such access was given in terms of a specific Order passed by this Court. It has CPs.842/2016, etc. 176 also been noticed that no application in terms of Rule 130 of the Pakistan Army Act Rules, 1954, was ever made to the Competent Authority for the supply of copies of the proceedings of the FGCM, at any point of time, not even when the matter was pending before the learned High Court or before this Court. 280. The Petitioner has neither pleaded nor proved on record with the requisite particularity that the Members of the FGCM or any of them had a personal bias against the Convict or the proceedings were conducted in bad faith for a collateral purpose. The record reveals that the Convict was given an opportunity to object to the Members of the FGCM but he did not raise any such objection. In the circumstances, no case for mala fides of fact has been made out warranting interference by the learned High Court or by this Court. 281. The learned counsel for the Petitioner had contended that the Convict was not defended by a Civil Defence Counsel of his own choice before the FGCM. In this behalf, reference was made to the Article 10(2) of the Constitution. The Convict was tried under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, which as per the CPs.842/2016, etc. 177 judgment of this Court, reported as District Bar Association, Rawalpindi and others (supra) was validly and effectively incorporated in the First Schedule of the Constitution, hence, in view of the Article 8(3) of the Constitution, the provisions of the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are immune from challenge on the ground of being in violation of the Fundamental Rights, including those guaranteed by Articles 10 and 10-A. Furthermore, the record reveals that the Convict did not claim to be defended by a Civil Defence Counsel, therefore, a Defending Officer was appointed in accordance with Rule 81 of the Pakistan Army Act Rules, 1954. Such a course of action is in consonance with the law, as has been held by this Court in the case of Muhammad Mushtaq and another (supra). The contentions of the learned counsel with regard to the arrest and detention of the Convict are of little consequence and do not vitiate the trial by the FGCM, as has been held by this Court in the judgment, reported as Mrs. Shahida Zahir Abbasi and 4 others (supra). CPs.842/2016, etc. 178 282. Since the Convict was accused of civil offence and tried under Section 59 of the Pakistan Army Act, 1952, as amended, therefore, Section 91 of the Pakistan Army Act, was not applicable, as a consequence whereof, the period of time between the date of occurrence and the date of trial has no material effect. The examination of the record of the FGCM reveals that all the procedural requirements, more particularly, the Rules that ensure a fair trial and preclude prejudice to the accused were complied with. Summary of evidence had been taken and was laid before the FGCM, as is apparent from the record of the proceedings thereof. The nature of the charge was explained to him. An Interpreter was also appointed. The Convict chose not to engage a Civil Defence Counsel, hence, a Defending Officer was appointed. He was granted an opportunity to object to the Members of the FGCM, the Defending Officer and the Interpreter, who were all sworn in as required by the law. The charge was formally framed to which the Convict pleaded not guilty. The prosecution witnesses were examined on Oath and subjected to cross-examination and an opportunity was given to produce evidence in his defence, which was declined. CPs.842/2016, etc. 179 The Convict was allowed to make a statement, which was so recorded and the Convict admitted his guilt. The sentence has been confirmed in accordance with the law. 283. Though the learned counsel for the Petitioner has not been able to point out any deviation from the Pakistan Army Act or the Rules framed thereunder in the conduct of the trial, yet, even otherwise, irregularity if any, stood cured in view of Rule 132 of the Pakistan Army Rules Act, 1954, and furthermore, the matter of procedural irregularities is beyond the scope of the Constitutional jurisdiction of the High Court, as has been stated above. 284. It is settled law that neither the learned High Court nor this Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. However, we have scanned the record in the instant case. The evidence besides an eye witness account included a judicial confession, which was proved by the learned Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. The Convict never retracted from his confession. The Convict, on his own, in his statement before the CPs.842/2016, etc. 180 FGCM, admitted his guilt. In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or otherwise improbable. The learned counsel for the Petitioner has not been able to persuade us that the conclusion drawn, conviction recorded and sentence passed are not countenanced by law. Hence, no case of malice in law has been made out. 285. The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder, hence, the conviction and sentence do not appear to be coram non judice. 286. In short, it appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the FGCM, which was convened and constituted in accordance with the law. No personal bias of any Member of the FGCM against the Convict has been established nor was the proceedings conducted mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn appear to be blatantly unreasonable CPs.842/2016, etc. 181 or wholly improbable. No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out. 287. The extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the “mischief” sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. The learned counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with mala fides of facts or law or even otherwise was without jurisdiction or coram non judice. 288. In this view of the matter, we are not persuaded to interfere with the impugned Order dated 12.05.2016 of the learned Lahore High Court, Bahawalpur Bench, dismissing the Constitutional CPs.842/2016, etc. 182 Petition i.e. Writ Petition No.3315-P of 2016, challenging the conviction and sentence of the Convict. 289. In view of the above, all the titled Civil Petitions for Leave to Appeal are dismissed and leave declined. Chief Justice Judge Judge Judge Judge 'NOT APPROVED FOR REPORTING' Announced on ____________ at ___________ Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Umar Ata Bandial Mr. Justice Syed Mansoor Ali Shah Mr. Justice Munib Akhtar CIVIL PETITION NO.846-L OF 2017 AND CIVIL PETITION NO.2074-L OF 2017 (Against the order of Lahore High Court, Multan Bench dated 23.01.2017, passed in W.P. No.570 /2017 and order of Lahore High Court, Lahore dated 08.12.2016 passed in W.P. No.37508/2016) Commissioner Inland Revenue, Multan, etc. : (In CP 846-L/2017) The Federation of Pakistan through Chairman FBR, etc. : (In CP 2074-L/2017) ... Petitioner(s) Versus M/s. Acro Spinning & Weaving Mills Ltd., Multan, etc. : (In CP 846-L/2017) M/S Al-Hamd Corp. (Pvt.) Ltd, etc. : (In CP 2074-L/2017) ... Respondent(s) For the petitioner(s): Mr. Sarfraz Ahmad Cheema, ASC. (In both cases) For the respondent(s): Ex-parte (In CP 846-L/2017) Nemo (Iin CP 2074-L/2017) Date of hearing: 27.05.2021 ORDER UMAR ATA BANDIAL, J.- These leave petitions, filed by the department, are against various orders of the learned High Court whereby that Court, relying on its own earlier judgment dated 09.11.2016, allowed the writ petitions that had been filed by the respondent taxpayers. The judgment last mentioned is reported as MKB Spinning Mills (Pvt) Ltd. v. Federation of Pakistan and others 2018 PTD 2364 (“MKB Spinning Mills”). (We may note that the C.P.846-L of 2017, etc. 2 department had earlier sought leave to appeal against the judgment in MKB Spinning Mills but the same was refused by a learned two member Bench of this Court vide order dated 01.08.2019.) The issues of law arising in these leave petitions are the same as those in the reported case. 2. The matters arise under the Sales Tax Act, 1990 (“Act”), and are concerned with taxable supplies made by the respondent taxpayers to persons not registered under the Act. At the relevant time subsections (1) and (1A) of section 3 had provided as follows (as presently material): “(1) Subject to the provisions of this Act, there shall be charged, levied and paid a tax known as sales tax at the rate of seventeen per cent of the value of– (a) taxable supplies made by a registered person in the course or furtherance of any taxable activity carried on by him; …. (1A) Subject to the provision of sub section (6) of section 8 or any notification issued thereunder, where taxable supplies are made to a person who has not obtained registration number, there shall be charged, levied and paid a further tax at the rate of two percent of the value in addition to the rate specified in sub sections (1), (1B), (2), (5), and (6) provided that the Federal Government may, by notification in the official Gazette, specify the taxable supplies in respect of which the further tax shall not be charged, levied and paid.” The combined effect of these two subsections was that sales tax was levied and payable on supplies made to persons not registered under the Act at the rate of 19%. The last portion of subsection (1A) empowered the Federal Government to exclude, by notification, such taxable supplies as it deemed fit from the applicability of the said subsection. In respect of such supplies it would (as presently relevant) be only subsection (1) that would apply, i.e., the rate of sales tax would be 17%. It is common ground C.P.846-L of 2017, etc. 3 that no such notification was in the field at any time relevant for present purposes. 3. Section 4 of the Act provided that notwithstanding anything contained in section 3, the goods specified in the various clauses thereof were to be charged to tax at the rate of zero percent. Thus, clause (a) specifies, inter alia, that goods that are exported are to be so charged. Clause (c) empowers the Federal Government to notify other goods also for purposes of section 4, and those goods would then charged to tax at zero percent. In exercise of this power (and certain others as specified therein) the Federal Government issued SRO 1125(I)/2011 dated 31.12.2011. This notification was amended vide SRO 491(I)/2016 dated 30.06.2016, and the present matters are concerned with the amended notification (“amended SRO 1125”). The amended SRO 1125 provided, in sub-entry (iii) of entry No. 1 of Table II thereof that taxable supplies made by persons doing business in five specified sectors to “registered or unregistered persons” would be taxed at zero percent. It is common ground that each of the respondent taxpayers is a person who falls in one of the five sectors so specified. 4. In view of the amended SRO 1125, the respondent taxpayers charged sales tax in respect of supplies made to persons not registered under the Act at zero percent. This led to the issuance of show cause notices that were challenged by way of writ petitions filed in the High Court. Now earlier other such persons had also filed writ petitions which were allowed by the learned High Court by means of the judgment in MKB Spinning Mills. It was C.P.846-L of 2017, etc. 4 held there that the amended SRO 1125 applied, as it stated on the face of it, not only to supplies made to registered persons (who would otherwise be covered by subsection (1) of section 3) but also those made to unregistered persons, who would be covered by both subsections (1) and (1A) of the said section. As already noted, in the present matters, the learned High Court relied on the earlier decision to allow the writ petitions. Hence, these leave petitions filed by the department. 5. Learned counsel for the department submitted that the power to exclude the levy of the further tax under section 3(1A) could only be exercised under the said sub-section, i.e., in terms of the last portion thereof, which has already been noticed. As noted, there was no relevant notification in the field under that provision. It was contended that the terms of section 4, allowing taxable supplies to be charged at zero percent, did not operate to relieve such taxable supplies from the further tax. It was contended that the charging of tax at zero percent on supplies made to unregistered persons was therefore a violation of section 3(1A) for which show cause notices had been validly issued. It was prayed that leave to appeal be granted. 6. The relevant provision for zero rating under section 4, to which reference has already been made, may also be reproduced for ready reference: “4. Zero rating.- Notwithstanding the provisions of section 3, the following goods shall be charged to tax at the rate of zero per cent:- … (c) such other goods as the Federal Government may by notification in the Gazette, specify….” C.P.846-L of 2017, etc. 5 It is clear from the aforesaid provision that zero rating of taxable supplies is an overriding provision on account of the non-obstante clause by which it starts. The provisions of section 3(1A) pertaining to further tax are subservient to the effect of zero rating. Consequently, zero rated goods are not liable to any of the provisions under section 3 of the Act. It follows (subject to what is further said below) that the learned High Court correctly considered and decided the matter in the MKB Spinning Mills case. 7. Notwithstanding what has just been said, there are unfortunately certain observations made by the learned High Court in the reported decision that are erroneous and cannot be sustained. It has been observed in para 5 of the judgment that “the Act visualizes two regimes of tax; one under section 3…. and the other under section 4 under which tax is to be charged at zero rate”. It has also been said, of section 4, in para 10 of the judgment that “the benefit of zero percent tax conferred by this provision was meant to support that component of local industry which was engaged in manufacturing export oriented products”. It must be clearly understood that these observations are incorrect. The Act does not impose two (or more) tax regimes. It creates and enforces one integrated tax regime, which operates as a single whole, namely the levy of tax in VAT (value added) mode. The manner in which the VAT mechanism works and the conceptual framework of the same including, in particular, the reason why exports are zero rated has been considered and explained in some detail by one of us (Munib Akhtar, J.) while in the High Court: see Pakistan Beverage Ltd. v. Large Taxpayer Unit 2010 PTD 2673 (paras 10-17; “Pakistan Beverage”). The cited observations of the learned High C.P.846-L of 2017, etc. 6 Court run contrary to the conceptual framework of a tax levied in the VAT mode, and, if not corrected, are liable to mislead. However, this error, which is hereby rectified in terms of what has been said in Pakistan Beverage, does not affect the overall reasoning and conclusions of the High Court insofar as the facts and circumstances of the present cases are concerned. We may note for completeness that the learned counsel for the department submitted that by the Finance Act, 2017, section 4 was specifically amended such that the opening words now read as follows: “Notwithstanding the provisions of Section 3 except those of sub- section (1A)….” It may also be noted that the said Finance Act also amended section 3(1A), such that the various provisions listed therein now also include section 4. However, it is common ground that these amendments have no bearing on, or relevance for, the matters at hand. 8. In view of what has been said above, but subject to the clarifications made with regard to the MKB Spinning Mills case, no exception can be taken to the impugned orders, and we are of the view that they do not warrant any interference. Leave is therefore declined and these petitions are dismissed. Islamabad, 27th May, 2021. Approved for reporting Iqbal Judge Judge Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE MUNIB AKHTAR Civil Petition No. 84/2016 (On appeal from the judgment dated 26.10.2015 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R.No.902-M/2012). Sajjad Ahmad Khan …Petitioner VERSUS Mohammad Saleem Alvi & others …Respondents For the petitioner: Mr. Naveed Akhtar, ASC Respondents: Mr. Muhammad Ilyas Siddiqui, ASC (No.2-3) Date of hearing: 20.10.2020 JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J-. Petitioner being plaintiff of a suit for specific performance through instant Petition for Leave to Appeal, has questioned the impugned judgment dated 26th October, 2015 rendered by learned single Judge in Chambers of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, whereby the learned Judge while dismissing the civil revision upheld the concurrent findings of the two courts below regarding dismissal of suit of the petitioner. 2. Learned counsel for the parties were heard and record of the case was perused. C.P.84/2016 2 3. It appears from the record that there was an oral sale agreement between Petitioner and Defendant/Respondent No.1 probably on or before 6th August, 1991 when first receipt of earnest money was executed between them and later on an agreement to sell (which itself does not bear any date of execution). (Agreement), Ex-PW-2/1, was executed between parties ibid and Petitioner signed the agreement on 16th February, 1992. The agreement, Ex-PW-2/1, refers to a sale, in lieu of Rs.3,37,500/- (Rupees three lac thirty seven thousand five hundred) with Respondent No.1 regarding suit property fully described in the agreement and the plaint. Certain amounts of sale consideration were paid in advance and proper receipts were duly executed by Respondent No.1 and Rs.200,000/- (Rupees two lac) was paid to Respondent No.1 on 24th January, 1992. The entire amount of Rs.2,71,000/- (Rupees two lac seventy one thousand) paid to Respondent No.1 as earnest/advance at different times was duly reflected in the agreement Ex-PW-2/1 alongwith the dates. It was also agreed upon between the parties that the balance sale consideration of Rs.66,500/- (Rupees sixty six thousand five hundred) would be paid at the time of registration of sale deed. We may observe that no specific date for completion of the agreement was given. The physical possession of the suit property was also handed over to the petitioner before the execution of agreement and this very fact has also been reflected in the agreement Ex-PW-2/1 besides being established from the record. When Respondent No.1 failed to execute a proper sale deed in favour of petitioner, a suit for specific performance was filed by the petitioner and the same was decreed ex-parte vide judgment and decree dated 18th December, 1997 in favour of petitioner. C.P.84/2016 3 4. The other part of the story which appears from the record is that Defendant/Respondent No.2 (subsequent vendee) (Respondent No.2) filed an application under Section 12(2) of the Code of Civil Procedure, 1908 (C.P.C.) which was accepted vide order dated 25th November, 2004 and the said order was upheld in appeal. Resultantly, ex-parte judgment and decree dated 18th December, 1997 ibid was set aside and an amended plaint was accordingly filed wherein Respondent No.2 was also impleaded as Defendant No.2. Respondent No.1 being vendor and Respondent No.2 being subsequent vendee, filed their joint written statement by alleging an agreement to sell dated 11th February, 1992 (subsequent agreement) by Respondent No.1 in favour of Respondent No.2. Record of the case further reveals that Respondent No.1 and Respondent No.2 were also locked in a litigation due to this subsequent agreement and ultimately a fresh agreement dated 16th September, 1997 followed by a compromise between them was effected. Accordingly, a decree on the basis of said compromise in favour of Respondent No.2 was passed in the Civil Court of District Rawalpindi (leaving aside the question of territorial jurisdiction and cause of action). Thereafter, Respondent No.1 executed a registered deed of general power of attorney in favour of Respondent No.2. Respondent No.2 then transferred the suit property as an attorney in favour of Respondent No.3 (His Son) through a registered deed bearing No.38 dated 15th January, 2005. The Respondent No.3 after becoming owner of the property filed a suit for possession and permanent injunction against the petitioner and his wife. This suit by Respondent No.3 itself establishes the factum of possession of the suit property with the C.P.84/2016 4 petitioner. Both the suits (suit for specific performance filed by petitioner and suit for possession filed by Respondent No.3), pending trial were consolidated. After a full-fledged trial, the trial court dismissed both the suits vide its judgment and decree dated 18th August, 2011. Two separate appeals filed by plaintiffs of both the suits, were also dismissed by the appellate court vide its judgment and decree dated 14th September, 2012. The issues regarding alleged subsequent sale in favour of Respondent No.2 and then to Respondent No.3 were decided against Respondents No.2 & 3. Though Respondent No.3 challenged said findings by way of an appeal but that too was dismissed by upholding the findings of Trial Court and did not question the same before High Court. So, the findings regarding subsequent sale attained finality against Respondents No.2 & 3. The High Court maintained and upheld the concurrent findings of dismissal of suits and appeals by dismissing the civil revision filed by present petitioner vide impugned judgment. Respondent No.3 did not question the findings of dismissal of his appeal which attained finality. 5. The main reason which prevailed with the learned Judge of the High Court in Chambers was that payment of sale consideration reflected in three different receipts was not proved according to law and witnesses mentioned in the receipts were also not produced and similarly the very agreement (Ex-PW-2/1) was also not proved in accordance with the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984 (Q.S.O.,1984) as out of the two attesting witnesses only one witness was produced. 6. As far as the payment of part of sale consideration through three different receipts ibid is concerned, the same as well as C.P.84/2016 5 further payment of Rs.200,000/- (Rupees two lac) on 24th January, 1992 has been reflected in the agreement alongwith their respective dates and thereby an amount of Rs.2,71,000/- (Rupees two lac seventy one thousand) out of total sale consideration of Rs.3,37,500/- (Rupees three lac thirty seven thousand five hundred) was admitted to have been received. Respondent No.1 himself was the author of the agreement. Record reflects that it was an oral agreement to sell when first part payment was paid on 6th August, 1991. Needless to mention here that it is a settled law that a sale/agreement to sell can be oral or offer and acceptance of sale can also be inferred from the acts of the parties to the sale agreement. We may refer to a judgment dated 9.7.2020 of this court titled Abdul Hameed v. Jahangir Khan passed in Civil Petition No.3097/2015 & Civil Appeal No.1074/2015) and Muhammad Sattar v. Tariq Javaid (2017 SCMR 98) and this question has very well been dealt with in the above judgments. Respondent No.1 though in his joint written statement has alleged the agreement and his signatures over the same as fake and fictitious but has not specifically challenged the agreement in question either by way of criminal proceedings or through a civil suit. Simple denial of a document being fake and fictitious is not legally sufficient unless the same facts are proved and established on the record. Possession of the petitioner at the site has also been admitted even by Respondent No.3, in his suit, in the shape of some sort of constructions made by the petitioner. Respondent No.1 even disappeared from the scene and left the Respondents No.2 & 3 to contest the suit with petitioner. He even did not appear as a witness to rebut the material brought against him what to talk of proving his allegations against the petitioner. C.P.84/2016 6 7. As far as non-appearance of the second attesting witness of the agreement, Ex-PW-2/1, is concerned, that has undisputedly been brought on the record that the other witness, Dr. Fazal Sher Khan was not available and was residing in America. The provisions of Article 79 (Q.S.O.,1984), are applicable only in those cases where execution of a document is disputed between maker of document and the person in whose favour purportedly the same is executed. Here in this case, execution of the agreement Ex-PW-2/1, though has been denied and disputed by Respondent No.1 by filing his joint written statement but mere denial would not be sufficient in presence of plethora of overwhelming evidence on the record. Such an evidence cannot be discarded merely for non-production/appearance of second marginal witness. The prime and foremost requirement of Article 79 (Q.S.O.,1984) is to prove execution of a document in case of a denial of execution by producing two marginal witnesses. When the allegation goes un-rebutted that Respondent No.1 himself was the author/scribe of the document. When again un-rebutted fact is there on the record that the other witness being abroad was not capable of giving evidence, when the stance of Notary Public regarding attestation of agreement goes un-shattered, when PW-1, Hamayoon Shinwari not only confirms the execution rather gives each and every detail of the transaction between petitioner and Respondent No.1 and PW-4 is also the witness of execution and the entire evidence supported by the petitioner himself then in the given circumstances mere non-production of other attesting witness of Ex-PW-2/1 being not available would be nothing much less a hyper technicality and not the violation of Article 79 ibid. We may observe that concurrent findings of dismissal of suit by the three courts are a bitter and C.P.84/2016 7 distressing example of misreading and non-reading of material evidence available on the record and misapplication of law. 8. We in the circumstances are left with no option but to convert this petition into appeal and allow the same with costs. The concurrent findings of the three courts below dismissing the suit of petitioner are set-aside. 9. By keeping in mind the conduct of Respondent No.1, we hereby decree the suit of petitioner for specific performance of agreement to sell Ex-PW-2/1 in lieu of Rs.3,37,500/- (Rupees three lac thirty seven thousand five hundred) out of which Rs.2,71,000/- (Rupees two lac seventy one thousand) have already been paid to the Respondent No.1. Balance of Rs.66,500/- (Rupees sixty six thousand five hundred) be deposited in the trial court within sixty (60) days from today. Needless to mention that the alleged subsequent sale of suit property in favour of respondent No.2 and then in favour of respondent No.3 being sham transactions are hereby cancelled and the same will have no adverse effects on the rights of the petitioner. Judge Judge Islamabad, 20th October, 2020 Sarfraz /- ‘’APPROVED FOR REPORTING’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE MIAN SAQIB NISAR CIVIL PETITIONS NO.853 TO 876 OF 2014 (On appeal from the judgment dated 17.5.2014 of the Islamabad High Court, Islamabad passed in Writ Petitions No.1949, 1866, 1861, 1860, 1973, 1865, 2045, 2277, 1974, 2167, 2264, 2061, 2166, 1972, 1971, 1859, 2057, 2055, 2056, 2060, 1864, 2059, 2082 and 2058 of 2014) 1. Ministry of Inter Provincial Coordination Islamabad through its Secretary etc. …in C.Ps.854 to 876/2014 2. Chairman Management Committee PCB etc. … in C.P.853/2014 …Petitioner(s) (in all petitions) VERSUS 1. Sanobar Gul etc. … in C.P.853/2014 2. Muhammad Irfan etc. … in C.P.854/2014 3. Farrukh Munir Chaudhry etc. … in C.P.855/2014 4. Aneela Arshad etc. … in C.P.856/2014 5. Adnan Ahmed Siddiqui etc. … in C.P.857/2014 6. Ihtesham-ul-Haq etc. … in C.P.858/2014 7. Syed Tanveer Jafri etc. … in C.P.859/2014 8. Commodore (R) M. Arshad Hussain etc. … in C.P.860/2014 9. Amjad Ali etc. … in C.P.861/2014 10. Muhammad Ilyas etc. … in C.P.862/2014 11. Ejaz Hussain etc. … in C.P.863/2014 12. Muhammad Liaquat etc. … in C.P.864/2014 13. Syed Azhar Ali Shah etc. … in C.P.865/2014 14. Alveena Tariq etc. … in C.P.866/2014 15. Muhammad Akhtar etc. … in C.P.867/2014 16. Syed M. Akram Shabbir Gillani etc. … in C.P.868/2014 17. Idrees Ali etc. … in C.P.869/2014 18. Muhammad Faisal etc. … in C.P.870/2014 19. Nabeel Edger Pace etc. … in C.P.871/2014 20. Muhammad Asim etc. … in C.P.872/2014 21. Shahnaz Asif etc. … in C.P.873/2014 22. Waseem-ud-Din etc. … in C.P.874/2014 23. Salman Ahmed Shah etc. … in C.P.875/2014 24. Sajid Yasin Hashmi etc. … in C.P.876/2014 …Respondent(s) For the petitioner(s): (in C.Ps.854 to 876/2014) Mrs. Asma Jehangir, Sr. ASC For the petitioner(s): (in C.P.853/2014) Malik Muhammad Qayyum, Sr. ASC Mr. Taffazul H. Rizvi, ASC Mr. C. M. Latif, AOR C.Ps.853 to 876 of 2014 -: 2 :- For respondent No.1: (in C.Ps.854 to 857, 866, 868 & 873/2014) Sahibzada Ahmed Raza Kasuri, Sr. ASC Ms. Tasneem Amin, AOR For respondents (2, 4, 5, 8 to 13): (in C.Ps.854 to 876/2014) Malik Muhammad Qayyum, Sr. ASC Mr. Taffazul H. Rizvi, ASC Mr. C. M. Latif, AOR For the respondent(s): (in C.Ps.859 & 860/2014) Mr. Imtiaz Rashid Siddiqui, ASC Syed Hasnain Ibrahim Kazmi, ASC For respondent No.2: (in C.P.875/2014) Raja Ghazanfar Ali Khan, ASC For respondent No.1: (in C.Ps.853 & 862/2014) Ghulam Asghar Khokhar, ASC For the Federation: Mr. Salman Aslam Butt, Attorney General for Pakistan Mr. Waqas Rana, ASC/Consultant to A.G. Mr. Tairmur Khan, Consultant to A.G. Mr. Najam Aziz Sethi, in person Respondents/Employees of Cricket Board: Faisal Rai, in person Nabeel Edger Pace, in person Ehtisham, in person Irfan, in person Adnan Siddiqui, in person Akram Gillani, in person Ilyas Ahmed, in person Date of hearing: 21.07.2014 … ORDER ANWAR ZAHEER JAMALI, J.- For reasons to be recorded separately, these petitions are converted into appeals and allowed; the judgment impugned therein is, therefore, set aside as the petitions filed by the respondents before the Islamabad High Court were, inter alia, incompetent; the Board having no statutory rules. Besides, their appointments were on contract basis. Other pending applications are also disposed of accordingly. JUDGE JUDGE Lahore, the 21st July, 2014 NOT APPROVED FOR REPORTING Riaz/*

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Qazi Faez Isa CIVIL PETITION NOS.866-L & 867-L OF 2015 [On appeal against common order dated 06.03.2015 passed by the Lahore High Court, Multan Bench, Multan, in W.P.Nos.1712 & 5133 of 2014] Chief Executive MEPCO & others [in both cases] …Petitioner(s) VERSUS Muhammad Fazil, etc [in both cases] …Respondent(s) For the Petitioner(s) [in both cases] : Rao Muhammad Iqbal, ASC Ms. Tasneem Amin, AOR (absent) For Respondent No.1 [in both cases] : Mr. Asad Munir, ASC Ch. Akhtar Ali, AOR Date of Hearing : 18.04.2019 JUDGMENT GULZAR AHMED, J.— The respondent Muhammad Fazil, in both petitions, was employed as an Assistant Lineman (BS-5) by the petitioner on 16.09.2000 on one-year contract. This contractual employment of the respondent was extended from time to time. The President Sports MEPCO wrote a letter to the Executive Engineer/Deputy Manager to spare the respondent from duty for cricket practice and he was accordingly spared from duty and it was done from time to time. On 18.07.2005, SDO/Assistant Manager wrote letter to the respondent to join duty but the respondent instead filed an application for medical leave for 112- days, from 29.06.2005 to 18.10.2005. This application for medical leave apparently was not accepted by the petitioners and ultimately the respondent joined service on 16.02.2007 when he was dismissed from service for being absent without sanctioned leave. The respondent thereafter served grievance notice on the C.P.Nos.866 & 867-L of 2015.doc - 2 - petitioners and then filed grievance petition in the Punjab Labour Court No.9, Multan (Labour Court). This petition was opposed by the petitioners. After hearing the matter, learned Labour Court vide its judgment dated 04.09.2013 accepted the respondent’s grievance petition and set aside order of his dismissal but at the same time directed holding of inquiry against the respondent. Back benefits were not allowed by the Labour Court. The respondent challenged this judgment by filing Labour Appeal No.MN-1096 of 2013 before the Punjab Labour Appellate Tribunal No.2, Multan (the Tribunal) with the prayer that he be reinstated with full back benefits and the order of holding inquiry be set aside. The Tribunal vide its judgment dated 09.12.2013 came to the conclusion that the Labour Court ought to have passed order of reinstatement of the respondent and allowed the petitioners to hold de novo inquiry but as no de novo inquiry was held by them in terms of the order of the Labour Court, the respondent’s appeal was allowed by setting aside order dated 04.09.2013 directing the petitioners to reinstate the respondent in service but without back benefits. Against the judgment dated 09.12.2013 of the Tribunal, both the petitioners and respondent filed writ petitions in the Lahore High Court, Multan Bench. The petitioners in its Writ Petition No.1712 of 2014 sought setting aside of judgment of the Tribunal and dismissal of the grievance petition. However, the respondent in his Writ Petition No.5133 of 2014 prayed for setting aside of the judgment of the Tribunal to the extent where it had refused him the grant of back benefits. Both these writ petitions were heard by a learned Judge in Chamber of the High Court and vide common impugned order dated 06.03.2015 the same were disposed of by modifying judgment of the Tribunal by extending all back benefits to the respondent. The petitioners were, however, allowed to initiate fresh proceeding, if so, authorized by law. Both these petitions for leave to appeal have been filed against the said impugned order. 2. It is contended by Rao Muhammad Iqbal, learned ASC for the petitioners that both the Labour Court as well as the Tribunal have concurrently passed order not allowing back C.P.Nos.866 & 867-L of 2015.doc - 3 - benefits to the respondent in exercise of their jurisdiction vested under the law and the High Court while exercising writ jurisdiction under Article 199 of the Constitution was not competent to upset such concurrent judgments and in this respect relied upon the case of Muhammad Tufail v. Divisional Forest Officer, Forest Division, Lahore & 3 others [1990 SCMR 1708] and Syed Kamaluddin Ahmad v. Federal Service Tribunal & others [1992 SCMR 1348]. 3. On the other hand, Mr. Asad Munir, learned ASC for the respondent has contended that the High Court while dealing with the Constitution Petition under Article 199 of the Constitution has exercised its discretion in favour of the respondent by granting him back benefits and further the High Court has also found that the respondent was on sanctioned leave and on this ground justified grant of back benefits to the respondent. 4. We have heard learned counsel for the parties and have also gone through the record of the case. 5. We are cognizant that both the Labour Court and the Tribunal in their respective judgments have not allowed back benefits to the respondent and we understand that such decision of the two Courts below was mainly based upon the fact that the respondent though alleges to have made application for leave but without obtaining its approval went on leave and thus wilfully absented himself. The respondent’s counsel has relied upon the leave application of the respondent filed at page 27 of CMA No.1933 of 2019, which is a form of application containing name of the respondent where he sought medical leave with effect from 29.06.2005 to 18.10.2005 (112-days) which seems to have been recommended by the Assistant Manager (Operation) but ultimately there is no order passed by the competent authority sanctioning this leave. We also note that this application is even not signed by the respondent as his signature does not appear on the application form. Apart from this document which obviously shows that there was no sanction of leave, the respondent on his own admission states that he has joined service after availing leave on 16.02.2007 which is mentioned in the judgment of the Labour Court to be the C.P.Nos.866 & 867-L of 2015.doc - 4 - date on which he came to report for duty after availing leave. We are unable to understand how the leave which respondent has initially claimed from 29.06.2005 to 18.10.2005 (112-days) came to be extended up to 16.02.2007 for neither the respondent has explained this position in his grievance petition nor the Labour Court has adverted to this issue and similarly the Tribunal and the High Court have also omitted to consider the same. Be that as it may, there was no sanction of leave to the respondent by the petitioner and there is no material on record to show that even the leave from 29.06.2005 to 18.10.2005 was at all sanctioned to the respondent. The respondent’s very application for grant of leave was not signed by him and it also does not contain the order of the competent authority sanctioning the same. Thus, what appears to us is that the respondent has remained absent from duty not only for the period for which he sought leave but beyond that period, therefore, the High Court in its impugned order dated 06.03.2015 was not justified to hold that the respondent has remained on sanctioned leave. The learned ASC for the respondent has further contended that the only principle on which back benefits could be denied to the respondent is his gainful employment between the period of his dismissal from service to his reinstatement and there being no evidence available on the record showing that he was gainfully employed, back benefits could not be refused to him. In this respect he has made reference to the case of Sohail Ahmed Usmani v. Director General Pakistan Civil Aviation Authority & another [2014 SCMR 1843]. It is true that in the cited judgment this Court has allowed back benefits on the ground that the employee was not gainfully employed during the period of his dismissal up to his reinstatement. However, the employee being gainfully employed or not while remaining out of service has not always been a reason for granting or non-granting of back benefits rather it has been held by this Court in a number of cases that where the Court concerned reinstates the employee in service, it is not bound to grant back benefits automatically rather it is within the discretion of that Court to grant back benefits or not and exercise of such discretion could not be interfered with by the High C.P.Nos.866 & 867-L of 2015.doc - 5 - Court in exercise of writ jurisdiction unless it is shown that such discretion has been exercised without lawful authority and is of no legal effect. Such discretion has not been interfered with by the superior forum. In this regard, reference is made to the cases of Abdul Majid v. Chairman, WAPDA & 2 others [1990 SCMR 1458], Muhammad Tufail v. Divisional Forest Officer, Forest Division, Lahore & 3 others [1990 SCMR 1708], Humayun Badshah v. Habib Bank Limited & 3 others [1996 SCMR 1606] and Syed Kamaluddin Ahmed v. Federal Service Tribunal & others [1992 SCMR 1348]. The further principle is that where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution. The very facts of the case amply demonstrate that the respondent himself was liable for being proceeded against by the department for that he remained on unsanctioned leave not only for the period he applied in the purported application but also beyond that period. Both the Labour Court and the Tribunal having exercised discretion in not granting back benefits to the respondent, such exercise of discretion could not be found to be without lawful authority and of no legal effect. Thus, the impugned order of the High Court cannot be sustained in the eye of law being in excess of the jurisdiction vested in it, which is liable to be set aside. We, therefore, convert this petition into an appeal and partly allow the same by setting aside the impugned order dated 06.03.2015 to the extent of granting back benefits to the respondent. Bench-II ISLAMABAD 18.04.2019 APPROVED FOR REPORTING JUDGE *Hashmi* JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL PETITION NO. 873 OF 2021 (On appeal against the judgment dated 02.02.2021 passed by the Federal Service Tribunal, Lahore in Appeal No. 12(L)/2017) Muhammad Yaseen …Petitioner(s) VERSUS Secretary, Ministry of Interior & Narcotics Control, Narcotics Control Division, Islamabad and another …Respondent(s) For the Petitioner(s): Mr. Manzar Abbas Khokhar, ASC Syed Rifaqat Hussain Shah, AOR For the State: Ch. Ehtisham ul Haq, Special Prosecutor ANF Mr. Muhammad Tariq, Joint Director Law, ANF Date of Hearing: 25.07.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality of the judgment dated 02.02.2021 passed by the learned Federal Service Tribunal, Lahore, whereby the service appeal filed by the petitioner was dismissed and the penalty of dismissal from service imposed by the departmental authority was upheld. 2. Briefly stated the facts of the matter are that petitioner was serving as ASI in the Anti Narcotics Force. On 03.02.2016, he was charge-sheeted on the allegation that he illegally took/snatched an amount of Rs.103,000/- from civilian Khalid Mehmood (PW-2) when a picket was set by ANF officials on Sargodha Khushab Road. An inquiry was conducted and on the recommendations of the Inquiry Officer, major penalty of dismissal from service was awarded to the petitioner. He filed departmental appeal, which was declined vide order dated 28.11.2016. He then filed appeal before the Federal Service Tribunal, Lahore, but CIVIL PETITION NO. 873 OF 2021 -: 2 :- it also met the same fate vide impugned judgment. Hence, this petition seeking leave to appeal. 3. At the very outset, learned counsel for the petitioner contended that the co-accused of the petitioner, who were charge-sheeted on the same allegation, have been dealt leniently by the department as minor penalties of censure have been awarded to them whereas a harsh penalty of dismissal from service has been imposed upon the petitioner. Contends that the petitioner had an unblemished service record of 33 years and was at the verge of retirement when he was dismissed from service and depriving him the retirement benefit would not be in the interest of justice. 4. On the other hand, learned Special Prosecutor ANF vehemently opposed this petition by contending that the petitioner was directly charged for taking money from Khalid Mehmood (PW-2), therefore, his case being distinguishable, he was rightly awarded major penalty of dismissal from service. 5. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 6. There is no denial to this fact that the petitioner along with three other ANF officials was charge-sheeted for illegally taking/snatching an amount of Rs.103,000/- from Khalid Mehmood (PW-2) and a joint inquiry in this regard was conducted by Mr. Maqbool Ahmed, Deputy Director, ANF. After inquiring into the matter, the Inquiry Officer recommended imposition of minor penalties on the co-accused of the petitioner namely (i) Muhammad Zeb, Inspector, (ii) Amjad Ali, Inspector and (iii) Usman Shafique, Constable. The perusal of record shows that Constable Usman Shafiq was awarded the penalty of censure along with stoppage of increments for three years whereas Inspector Amjad Ali was given the punishment of forfeiture of approved service upto 02 years along with stoppage of increments for three years. However, there is no mention as to what minor penalty was awarded to Muhammad Zeb Inspector. On our specific query as to why the petitioner has been treated differently, learned Law Officer stated that his case is distinguishable from that of the other ANF officials. However, he could not spell out the same from the record. We have noted that in his statement before the Inquiry Officer, Khalid Mehmood stated that the petitioner CIVIL PETITION NO. 873 OF 2021 -: 3 :- Muhammad Yasin, Constable Usman Shafiq and Ashfaq Ahmed snatched Rs.103,000/- from him but later returned the same in a Police Station situated in Saddar Bhalwal. It is clear from his statement that the case of the petitioner was not distinguishable from the others. Even otherwise, we have noted that during cross-examination, the said Khalid Mehmood took an altogether different stance and stated that the petitioner had taken Rs.8000/- from him directly, therefore, both the stances taken by him are at variance. The said Khalid Mehmood stated that when he was stopped by the petitioner and other ANF officials, an amount of Rs.175,000/- was in his wallet. However, this is also a matter of consideration as to truthfulness of such stance. We have been informed that the petitioner has 33 years of unblemished service on his part and during these proceedings, his retirement age has passed. After serving the department for such a long period, the pensionary benefits are the right of an employee, which enable him to spend rest of his life peacefully. Article 25(1) of the Constitution ordains defiance of discrimination. However, by dismissing the petitioner from service while awarding minor penalties to the other officials, the petitioner has been discriminated against and the learned Service Tribunal did not take into consideration this aspect of the matter. As the petitioner has since retired from service, hence, no order for reinstatement is required. 7. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned judgment to the extent of the petitioner and direct the respondent No. 2 to similarly treat the petitioner as his co- accused/colleagues were dealt with by awarding him minor penalty. If the date of retirement of the petitioner has passed, all pensionary benefits for which he is entitled, shall be given to him within a period of two months from the date of receipt of certified copy of this order. JUDGE JUDGE Islamabad, the 25th of July, 2023 Approved For Reporting Khurram

> IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRBSBNT: Mr. Justice Ijaz ul Ahsan Mr. Justice Syed Hasan Azhar Rizvi Mr. Justice Irfan Saadat Khan Civil Petitions No.890-K to 909-K/2023 (Against the Order dated 14.03.2023 passed by High Court of Sindh, Karachi in C.P Nos. 5389, 5245,5004, 6120, 47, 361, 529, 530, 583, 5069,56891 60289 7470, 7668, 7771/2021 and 241, 242, 474, 966/2023) Collector of Customs & another (in all cases) VERSUS M/s. Young Tech Private Limited & another Club Mobile.(Pvt) Ltd. & another M/s Bellco Trading Co.(Pvt) Ltd. & another M/s Young Tech. (Pvt) Ltd. & another M/s. Young Tech Private Limited & another M/s. A.S. Telecom (Pvt) Ltd. & another M/s.G' Five Mobile (Pvt) Ltd. & another M/s. A.S. Telecom (Pvt) Ltd. & another M/s Young Tech (Pvt) Ltd. & another M/s.SSH Telecom SMC (Private) Ltd. & another M/s. Inovi Teleco (Private) Ltd. & another M/s. SSH Telecom SMC (Private) Ltd. & another M/s. A.S. Telecom (Private) Limited & another M/s. Young Tech (Private) Ltd. & another M/s. G' Five Mobile (Pvt) Limited &; another M/s. Young Tech (Private) Ltd. & another M/s. G' Five Mobile (Pvt) Limited & another M/s. Young Tech (Private) Ltd. & another M/s. Young Tech (Private) Ltd. & another M/s. A.S. Telecom (Private) Ltd. & another Dr. Farhat Zafar, ASC (in all cases) 9/w Ms. UIne Kalsoom, D.C. Law East Karachi Mr.Nabeel Siraj, D.C Custom (both vIa video link, Karachi) 22. 11.2023 For the Petitioner(s) : Fa, ReSeQv\ debt(S) , Date of Hearing: ORDER Ijaz ul Ahsan, J .- Leave to appeal is sought against the order dated 14.03.2023 of the High Court of Sindh, Karachi in C.P. No.D-5389 of 2022 etc. Through the impugned order a number of constitutional petitions filed by the respondents were allowed and it . . . Petitioner(s) (in CP 890-K/ 23) (in CP 89 1-K/23) (in CP 892-K/23) (in CP 893-K/23) (in CP 894-K/23) (in CP 895-K/23) (in CP 896-K/23) (in CP 897-K/23) (in CP 898-K/23) (in CP 899-K/ 23) (in CP 900-K/23) (in CP 901-K/ 23) (in CP 902-K/23) (in CP 903-K/23) (in CP 904-K/23) (in CP 905-K/23) (in CP 906-K/ 23) (in CP 907-K/23) (in CP 908-K/23) (in CP 909-K/23) . . . Respondent(s) Civil Petitions No.890-K 2023 etc. 2 was held that the demand for mobile handset levy on phones other than smart phones was unlawful and without jurisdiction. 2. Briefly stated the facts of the case are that the respondents had imported mobile phones and were aggrieved by the imposition of mobile handset levy under section 10 of the Finance Act, 2018 (“Act”) on mobile phones that were admittedly not smart phones. Section 10 of the Act imposed mobile handset levy on smart phones in the following terms: “10. Mobile handset levy-–(1) There shall be levied a Mobile handset levy, at the rates specified in column (3) of the Table below, on smart phones of different categories as specified in column (2) of the said Table, namely: TABLE Sr. No Category of smart phone Rate of levy set in ru (3) (1) Where Import value of handset (including duties taxes) and does exceed not Rs. 10,000 Where Import value of handset (including duties and taxes) exceeds Rs. 10,000 but does not exceed Rs.40,000 Where Import value of handset (including duties and taxes) exceeds Rs.40,000 but does not exceed Rs.8 C),000 Where Import value of handset (including duties and taxes) exceeds Rs.40,000 but does not exceed Rs.80,000 1000 3000 5000 Section 10 of the Act was supported by a table which gave categories of smart phones and the rates of levy per set. It was also stated that the Federal Board of Revenue shall collect the levy on mobile handsets in the prescribed mmlner. 3. It appears that subsequently in the Finance Act, 2022, the table of section IO was amended and the amended table replaced the words “category of smmt phone” with the words “Mobile Phones having C&F Value (US Dollars)”. The case of the respondents was that mobile handset levy was imposed only on smart phones and since the imported ,,n,ig„m,nt, admitt,dIy did Civil Petitions No.890-K 2023 etc. 3 not fall under that category, recovery of the levy was unlawful. The stance of the department was that by changing the table, it had been conferred the power to recover the said levy not only on the smart phones but also on the ordinary phone which did not fall in the category of smart phones. It was, however, stated before the High Court that the respondents had made a representation which had been referred to the Federal Board of Revenue. However, in the representation sent by the Collector, with which he appears to have agreed, it was clearly stated as follows: “The colectorate is of view that contention of the importers’ merits consideration as originally in Finance Act, 2018, the handset levy was meant for Smart phones only and now the same is being also charged on low cost feature mobile phones imported in CKD/SKD condition. Accordingly, the above referred representation of the importer may be referred to the Finance Division for clarification as to whether the said levy is applicable on both Smart and Feature phones or Smart phones only.” 4. The High Court came to the conclusion that without amending the charging section, and merely by amending the table, the levy could not be recovered. The reference to the table was to the extent of the rates which were to be specified and in view of the fact that the charging section, namely, section 10 of the Act remained unaltered, by a mere substitution of column in the heading of the table, the charging section itself could not and did not stand altered or amended. 5. The learned counsel for the petitioners has argued that the intention of the legislature was clear that the phones other than smart phones were also subjected to the levy and such intention was reflected in th, tabl,. Th, mW,n,nt ha, n.t app,al,d t. u, in view of the fact that the right to recover any levy rests in the Civil Petitions No.890-K 2023 etc BP 4 charging section and not in the table that specifies the rates at which such charge is to be recovered. The power to recover a levy is anchored in the charging section and the table is merely meant to prescribe the rates at which such levy is to be recovered on various goods/items. Unless the charging section confers a power to recover a levy on an article or class of goods, mere mention of a different class, types or category of goods clearly goes beyond the scope of the charging section. This, in our opinion, cannot be done. A schedule/table is merely a supplement of the charging section and cannot go beyond it and create a new and altogether different levy on a different class of goods not mentioned or contemplated by the charging section. We have gone through the order of the High Court which has examined the original section as well as the amendments made therein and recorded conclusions which are duly supported by settled law on the subject. We find no error, legal or jurisdictional in the impugned order of the High Court which is in-line with settled principles of law on interpretation of fiscal statutes and tax laws. 6. Consequently, we do not find any merit in these petitions. The same are accordingly dismissed. refused. appeal ISLAMABAD 22.11.2023 Naseer For Reno TO Fu

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 928-L OF 2015 (On appeal against the judgment dated 19.02.2015 passed by the Lahore High Court, Lahore in Writ Petition No. 193/2013) Jan Muhammad … Petitioner VERSUS The Member (Colony) etc …Respondents For the Petitioner: Mr. Akhtar Masood Khan, ASC Mr. M. Ozair Chughtai, AOR (Absent) For Respondents (1-2): Mr. Razzaq A. Mirza, Addl. A.G. For the Respondent (3): Mr. M.A. Ghaffar ul Haq, ASC Mr. Muhammad Anwar Khan, AOR (Absent) Date of Hearing: 20.10.2016. JUDGMENT FAISAL ARAB, J.- On 23.11.1956, the Board of Revenue of the then West Pakistan launched a Scheme described as ‘Grow More Food’. Under the said scheme, the barren state land was to be leased out in compact blocks of not exceeding 12 ½ acres for growing food grains. Temporary leases were initially granted for a period of three years, which period was subsequently enhanced to five years. After expiry of five years, leases were extended for another one year. It was one of the terms and conditions of the lease that in case the lessee fails to cultivate the leased land or any part thereof, the lease shall terminate. Civil Petition No. 928-L/2015 2 Thereafter, vide notification No. 5449-58/7272-C(G) dated 29.10.1958 this condition was relaxed and it was provided that at- least 50% area must be brought under cultivation to avoid termination of the lease. 2. Vide notification dated 22.10.1962 bearing No. 4826- 62/4419-S (G) III, the state land leased out under ‘Grow More Food Scheme’ was to be sold by private treaty to the lessees to the extent of 12 ½ acres with the maximum upper limit of 13 acres to those lessees only who are self cultivators and whose term of temporary lease had expired in Rabi 1962 or on any other period thereafter, except for such lands, which fall within certain radius of a town or municipality limits. 3. Vide notification dated 01.06.1970 bearing No. 5086- 69/1683-CL III, it was made clear that where a lessee cannot be granted proprietary rights on account of the land being in the proximity of a municipality or town or within one mile of a railway station, though the lessees were otherwise entitled to the grant of proprietary rights, they would be offered alternative State land elsewhere. Such lessees were not to be dispossessed from their lands until the alternate land is provided to them and in case they have already been dispossessed and their lands have been utilized by the government for some permanent scheme, they would also be entitled for the alternate land. 4. On 26.04.1971 another notification bearing No. 1488- 71/1217-CL-III was issued which provided that all allottees under the ‘Grow More Food Scheme’ shall be granted proprietary rights, Civil Petition No. 928-L/2015 3 provided they have fulfilled the terms and conditions on which leases were granted and those who had fulfilled the terms and conditions but have been evicted by the Government, their possession shall be restored and in cases leases of such lands have been subsequently granted to other persons, the same shall stand automatically cancelled. It was further provided that in case such lands have already been allotted by the government for any permanent scheme and restoration of possession to the allottees has become impossible, then, such allottees were to be accommodated in some alternate area with the same rights as they would have exercised in the lands allotted to them. 5. In the present case, the petitioner was allotted land measuring 96 kanals 18 marlas in Chak No. 556/GB Tehsil Samundari, District Faisalabad on temporary lease bases in 1957 under the Grow More Food Scheme. The lease came to an end after the expiry of lease period in Rabi 1962 and the possession reverted back to the State. After termination of lease way back in 1962, the petitioner in the year 1984 applied for grant of alternate land in lieu of the land that was allotted to him in 1957 under the ‘Grow More Food Scheme’ to the Assistant Commissioner/Collector Samundari, who vide his order dated 02.12.1984 declared the petitioner eligible under Notification No.1488-71/1217-CL-III dated 26.04.1971 for such allotment. Hence vide order dated 21.07.1986 the petitioner’s application for alternate land was allowed and he was granted proprietary rights in another piece of land measuring 52 kanals 9 marlas in Chak No. 485/GB, Tehsil Samundari, District Faisalabad. At this stage, the respondent No. 3 came forward and filed an application before Member (Colonies) Board of Civil Petition No. 928-L/2015 4 Revenue and District Officer (Revenue), Faisalabad seeking cancellation of allotment order issued in favour of the petitioner by taking the plea that the land which was originally allotted to the petitioner in 1957 was surrendered by him and no longer remained under his cultivation. Thereafter, the same was leased out to him for a period of five years under the ‘Grow More Food Scheme’ from Khareef 1973 to Rabi 1978, which lease was extended upto 1983, therefore, respondent No.3 was eligible for the grant of proprietary rights and not the petitioner. The application moved on behalf of respondent No.3 was however dismissed vide order dated 04.11.2004. The respondent No.3 then filed a review petition before the revenue authority. During the pendency of the said petition, he filed another application under Section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912 for cancellation of allotment of alternate land that was granted in favour of the petitioner. The Member Board of Revenue vide order dated 19.09.2012 declared the order dated 21.07.1986 passed by the Assistant Commissioner/Collector, Faisalabad to be ultra vires and cancelled the sale deed executed in favour of the petitioner on the ground that he obtained allotment order of alternate land by committing fraud and misrepresentation and restored the allotment in favour of respondent No. 3. The petitioner challenged the said order before the Lahore High Court in Writ Petition No. 193/2013, which was dismissed vide impugned judgment. Hence this petition. 6. All allottees under the ‘Grow More Food Scheme’ were to be conferred proprietary rights, provided that they have fulfilled the terms and conditions on which temporary leases were granted. Those who had fulfilled the terms and conditions but had been Civil Petition No. 928-L/2015 5 evicted by the government on the expiry of temporary leases, their possession was to be restored and the leases that had been subsequently granted to other persons were to be automatically cancelled. So in terms of Notifications dated 1.6.1970 bearing No 5086-69/1683-CL III and dated 26.04.1971 bearing No. 1488- 71/1217-CL-III alternate land was to be given only where the terms and conditions on which temporary leases were granted have been fulfilled by the lessee but (i) the allotted lands were situated either within the proximity of a municipality or a town or where it was within one mile of a railway station or (ii) for some reason the allottees were dispossessed by the government and their lands were utilized for some permanent scheme. All such allottees in terms of the above referred two notifications of 1970 & 1971 were to be accommodated in some alternate area with the same rights as they would have exercised in the lands originally allotted to them. It is an admitted position that the petitioner was granted lease in 1957, which lease expired in Rabi 1962 and on expiry of the lease the land reverted back to the State. He remained no more in its cultivation. Thereafter from time to time the same was leased out to others and finally it was leased out to respondent No.3 who held the lease from the years 1973 to 1983. There is no material on record to show he falls within the situations as envisaged by the above referred notifications of 1970 and 1971. 7. The Additional Advocate General submitted that the petitioner was granted lease in 1957, which lease expired in Rabi 1962 and it is an admitted position that upon expiry of the lease the land reverted back to the State therefore he was not entitled for alternate land under Notification dated 26.04.1971 bearing No. Civil Petition No. 928-L/2015 6 1488-71/1217-CL-III. He also pointed out that insofar as the claim of respondent No.3 is concerned, he at the relevant time was a teacher in Government school and was not eligible for grant of temporary lease, he too cannot claim any right under Notification dated 26.04.1971 bearing No. 1488-71/1217-CL-III, therefore, allotments were rightly cancelled as the same were obtained by playing fraud and misrepresentation. This aspect was also not examined by the Board of Revenue. 8. We have noted that in terms of Notifications dated 1.6.1970 bearing No 5086-69/1683-CL-III and dated 26.04.1971 bearing No. 1488-71/1217-CL-III alternate land was to be given only where the terms and conditions on which temporary leases were granted have been fulfilled by the lessee but (i) the allotted lands were situated either within the proximity of a municipality or a town or where it was within one mile of a railway station or (ii) for some reason the allottees were dispossessed by the government and their lands were utilized for some permanent scheme. Only such allottees, in terms of the above referred two notifications of 1970 & 1971, were to be accommodated in alternate areas with the same rights as they would have exercised in the lands originally allotted to them. As fora below have not examined this case from the perspective of the applicability of the above-referred two notifications, we deem it appropriate to set aside the impugned judgment passed by the High Court and remand the case back to the Board of Revenue, which shall decide whether the petitioner or the respondent No.3 was entitled to the grant of alternate land in terms of the notifications discussed above or the land rightly reverted back to the State. Civil Petition No. 928-L/2015 7 9. Vide short order dated 20.10.2016, we converted this petition into appeal, allowed it and remanded the case back to the Board of Revenue and these are the reasons for the same. JUDGE JUDGE JUDGE Islamabad, the 20th of October, 2016 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE FAISAL ARAB CIVIL PETITION NO. 935 OF 2015 (On appeal against the judgment dated 24.03.2015 passed by the Federal Service Tribunal, Islamabad in Appeal No. 745(P)CS-2013) Federation of Pakistan through Secretary Ministry of Defence and another … Petitioners VERSUS Bashir Ahmed, SBA in MES, Ministry of Defence, GE(Army), Nowshera … Respondent For the Petitioners: Syed Nayyab Hassan Gardezi, Assistant Attorney General Qari Abdul Rasheed, AOR (Absent) For the Respondent: Mr. Muhammad Shoaib Shaheen, ASC Mr. Ahmed Nawaz Ch, AOR Date of Hearing: 18.04.2017 JUDGMENT FAISAL ARAB, J.- The respondent was appointed as SBA in MES, Ministry of Defence in the year 1990. On 20.06.2010 he was nominated as an accused in a murder case registered vide FIR No. 335/2010 under Sections 302/34 PPC at Police Station Azakhel, District Nowshera. He remained absent without any authorization from the day the FIR was registered against him. Between 27.06.2010 to 01.09.2010, he was issued five letters calling upon him to resume duty but he failed to do so. On account of his absence, disciplinary proceedings were initiated against him on 26.10.2010. He was then served with show cause notice on 25.04.2011, to which he failed to respond. Ultimately, major penalty of compulsory retirement was recommended on 15.09.2011. The respondent was then given an opportunity of personal hearing but he failed to appear, hence the Civil Petition No. 935/2015 2 Authorized Officer imposed major penalty vide order dated 31.01.2012 on account of his continuous absence from duty. The respondent belatedly filed departmental appeal on 03.07.2012 which was considered to be barred by time. The respondent then filed appeal before the Service Tribunal on the ground that he was not given the opportunity of hearing. The Tribunal while disposing of the appeal vide order dated 02.07.2013 directed the petitioner to hear the respondent’s departmental appeal afresh and decide within 30 days. After hearing the respondent, the departmental appeal was rejected on 11.10.2013, whereafter he again preferred appeal before the Service Tribunal on 08.11.2013. Before the Tribunal, it was admitted by respondent’s Advocate that after the registration, the respondent went underground as he could not live a normal life on account of his involvement in a criminal case and thus remained absent from duty. With regard to the disciplinary proceedings, the Service Tribunal held that on account of murder charges and the enmity with the complainant party, his absence was justified. The Service Tribunal thus converted the major penalty of compulsory retirement into minor penalty of withholding of three increments and reinstated him back in service. Against such decision, present petition for leave to appeal has been preferred. Notice was issued to the respondent. 2. Learned counsel for the petitioners contended that it is an admitted position that the respondent absented himself from 20.06.2010 onwards without seeking leave of absence from the department. The letters calling upon him to resume duty as well as show cause notice delivered at his known address were also not responded to, hence, the department was left with no other option but Civil Petition No. 935/2015 3 to initiate disciplinary proceedings. Learned counsel further submitted that the Authorized Officer in fact showed leniency by not dismissing the respondent from service and only imposed a penalty of compulsory retirement, which would still entitle him to receive pensionary benefits for the term that he served from 1990 until he was compulsorily retired on 31.01.2012. 3. Learned counsel for the respondent, on the other hand, contended that the respondent was involved in a murder case on 20.06.2010 and was finally acquitted on 20.09.2012, hence, his absence was not willful, therefore, imposition of major penalty was too harsh. He submitted that at best a minor penalty could have been imposed and the Service Tribunal after taking into consideration all this rightly converted major penalty into minor penalty. In support of his contention he relied upon the case of Central Board of Revenue Vs. Shafiq Muhammad (2008 SCMR 1666). He also submitted that even otherwise no case of public importance as envisaged under Article 212(3) of the Constitution is made out and this petition may be dismissed on this score alone. 4. It has come on the record that during the period of absence, no attempt was made on behalf of the respondent to apply for leave. The respondent’s counsel himself stated before the Tribunal that the reason for his absence was that he went underground being involved in a murder case and it was only on the basis of a compromise with the victim’s relatives that he was acquitted in September, 2012. Though the criminal case came to an end in September, 2012 and he was acquitted on account of compromise Civil Petition No. 935/2015 4 reached with the complainant party, nevertheless before reaching the compromise, he was not in custody but remained an absconder and only surrendered before the law after the compromise was reached with the victim’s family members. To seek condonation of absence during his absconsion would amount to putting premium on such act. If this is made a ground for condonation of absence, then in every case where the civil servant is involved in a criminal case and absconds, his absence from duty would have to be condoned. The act of absconsion or being a fugitive from law cannot be regarded as a reasonable ground to explain absence. Even where a person is innocent, absconsion amounts to showing mistrust in the judicial system. Learned counsel for the respondent was asked to show as to whether in any case, this Court has condoned the absconsion and the departmental action was set aside, he was unable to satisfy this Court on this point. In the circumstances, the case relied upon by the respondent’s counsel is of no help to the case of the respondent as it has no relevance in the facts and circumstances of this case. 5. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned judgment and restore the departmental action of imposition of major penalty of compulsory retirement. JUDGE JUDGE Islamabad, the 18th of April, 2017 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL PETITION NO.945 OF 2018 (Against the order dated 24.01.2018 passed by the Lahore High Court, Lahore in I.T.R. No.20/2017) Farrukh Shahzad … Petitioner Versus Commissioner Inland Revenue (Legal) RTO, Rawalpindi and others … Respondents For the Petitioner: Hafiz Muhammad Idrees, ASC. Syed Rifaqat Hussain Shah, AOR. For the Respondents: Dr. Farhat Zafar, ASC. Mr. M.S. Khattak, AOR. Date of Hearing: 10.04.2018 ORDER IJAZ UL AHSAN, J. – Petitioner seeks leave to appeal against a judgment dated 24.01.2018 passed by a learned Division Bench of the Lahore High Court in Income Tax Reference No.20 of 2017. 2. The brief facts necessary for decision of this lis are that proceedings under Section 122(C) of the Income Tax Ordinance, 2001 (“the Ordinance”) were initiated against the petitioner and a demand in the sum of Rs.3.3 million was created. The petitioner failed to deposit the said amount, in consequence whereof, notice under section 137(2) read with Section 138(1)/140 of the Ordinance was issued to him. He filed his income tax return, wealth statement, wealth reconciliation statement and written explanation. The documents filed by the petitioner were not found satisfactory by the department. Consequently, notice under Section 122(9) was issued to him. The petitioner filed a response which was again not found satisfactory by the department. On the basis of C.P.945/2018 -: 2 :- material available with the department, it was held that the petitioner was engaged in the real estate business without having been registered as a taxpayer. The department proceeded to amend the assessment making an addition of Rs.60,360,912/- under Section 111(1)(b) for the subsequent tax year. Being aggrieved, the petitioner filed an appeal which did not find favour with the Appellate Authority and was dismissed. The appeal before the Appellate Tribunal Inland Revenue (ATIR) did not succeed either. The petitioner therefore, approached the High Court by way of a reference under the Ordinance. Vide order dated 24.01.2018 relief was denied to the petitioner. Hence, this petition for leave to appeal. 3. Although three questions were referred to the learned High Court for its opinion, the first question was not pressed. Therefore, no opinion was expressed by the learned High Court on the said question. 4. The learned High Court expressed its opinion on questions No.2 and 3 which for ease of reference are reproduced below: - “2. Whether under the facts and circumstances of the case the learned ATIR was justified to uphold an addition made under section 18 of the Income Tax Ordinance, 2001 against its every spirit as explained in the Income Tax Ordinance, 2001? 3. Whether under the facts and circumstances of the case learned ATIR was justified in not considering the additions made under section 111(1)(b) of Income Tax Ordinance 2001 in the income of a Tax Year to which these are not related to therefore are in violation of section 111(1)(b) of the Income Tax Ordinance, 2001?” 5. The learned High Court answered question No.2 in the “negative”, whereas question No.1 in the “affirmative”. 6. Learned counsel for the petitioner submits that by virtue of Section 37(1)(A) of the Ordinance, the petitioner was not liable to pay Capital Gains Tax as the property was purchased in the year 2008 and sold in the year 2013. He maintains that the lower fora fell in error in C.P.945/2018 -: 3 :- treating the sale consideration of the property as business income of the petitioner under Section 18 of the Ordinance. 7. With reference to question No.3 the learned counsel submits that by virtue of Section 111(1)(b) of the Ordinance there was no justification for adding Rs.60 million in the accumulative wealth of the petitioner for the year 2013. He maintains that Section 111(2) of the Ordinance only permits inclusion of the amounts mentioned in sub- section (1) of Section 111 in the person’s income chargeable to tax, in the tax year to which such amount relates. He maintains that the petitioner filed his return for the first time in 2013. As such, the amount of wealth shown for the year 2012 amounting to Rs.60 million could not be taxed in terms of Section 111(2) of the Ordinance by treating it as an investment for the tax year 2013. 8. We have heard the learned counsel for the petitioner and examined the record. As far as inapplicability of Section 18 of the Ordinance is concerned, we find that the same deals with business income. However, Section 37(1)(A) read with Division VIII of Part 1 of the First Schedule provides that where holding period of immovable property is more than two years, the rate of capital gains shall be zero percent. The department however, found that the petitioner was engaged in the real estate business for a number of years before 2014 which is the year the petitioner claimed that he started his business of real estate. In this regard, the department relied upon the material (which was not rebutted) indicating that the petitioner had been engaged in the real estate business for many years before 2014. Consequently, it was correctly held that the benefit of zero percent capital gains tax was not available to the petitioner on the sale and purchase of property in the absence of reliable material necessary to avail the benefit of Section 37(1)(A) ibid. C.P.945/2018 -: 4 :- 9. We also notice that the addition of Rs.60 million was made in the taxable income of the petitioner under Section 111(1)(b) of the Ordinance on account of the petitioner’s failure to furnish material in support of his defence during reconciliation proceedings. The said provisions stipulate that where a person fails to offer a satisfactory explanation about the nature and source of the investment, the value of the investment shall be included in the person’s income chargeable to tax to the extent it is not adequately explained. 10. The learned counsel for the petitioner heavily relied upon Section 111(1)(2) to contend that only wealth for the year 2013 could be added to the income tax of the petitioner for the purposes of tax in view of the specific language of the said section. The record indicates that the petitioner had shown his net wealth as of 30.06.2013 to be Rs.64,346,112/-. However, the department was not satisfied with the veracity of the return and called upon him through show cause notice to explain net wealth amounting to Rs.60,360,912/- as on 30.06.2012 which had remained unexplained. Although he submitted his reply but the same was neither satisfactory nor did it substantiate his source of investment. It is also significant that the petitioner had all along taken the stance that he had started his real estate business in 2014 and as such he could not be assessed for the year 2013. We have specifically asked the learned counsel for the petitioner to explain the accretion of net wealth as on 30.06.2012. However, he has not been able to refer to any material that may even remotely explain such accretion. We are, therefore, satisfied that the findings of the subordinate fora that the said accretion was chargeable to tax for the year 2013 do not suffer from any error of interpretation or application of the afore-noted provisions of law. The learned counsel for the petitioner has not been able to convince us that the judgments of the High Court or the Appellate fora suffer from C.P.945/2018 -: 5 :- any legal, procedural or jurisdictional error or flaw calling for interference by this Court in terms of Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. 11. For reasons recorded above, we do not find any merit in this petition. It is accordingly dismissed. Leave to appeal is refused. JUDGE JUDGE Islamabad, the 10th of April, 2018 Naveed Ahmad/* APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, CJ MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI C.P.95/2023, C.P.112/2023, C.P.113/2023 AND C.P.204/2023 1. C.P.95/2023 Muhammad Shaharyar Khan Mahar v. Election Commission of Pakistan through its Secretary, Islamabad 2. C.P.112/2023 Muhammad Ibrahim Jatoi v. Election Commission of Pakistan ECP, Islamabad and others 3. C.P.113/2023 Muhammad Ibrahim Jatoi v. Election Commission of Pakistan ECP, Islamabad and others 4. C.P.204/2023 Imtiaz Ahmed Sheikh and others v. Election Commission of Pakistan through its Secretary, Islamabad For the Petitioner(s) : Mr. Hussain Ali Almani, ASC video link from Karachi Mr. Salahuddin Ahmed, ASC video link from Karachi Mr. Zulfikar Khalid Maluka, ASC ECP : Mr. Muhammad Arshad, DG ECP Mr. Falak Sher, Consultant Date of Hearing : 15.08.2023 O R D E R The ECP has defended its impugned action on the basis of Rule 10(4) of the Election Rules, 2017 (“Rules”). By that provision, the limits of a Tapedar Circle should not be breached in the delimitation process. In the present case, the contention of the petitioner is that the delimitation in 2018 election without violating Tapedar Circle was closer to the limits now being demanded by the petitioner. In the present case, the plea being taken by the petitioners is that the difference in the number of voters in each of the three Provincial Constituencies in District Shikarpur is more C.P.95/2023 etc 2 pronounced and exceeds the variation limits set by Section 20(3) of the Elections Act, 2017 (“Act”). On a challenge made by the petitioners on the above grounds, the ECP passed an order under Section 22(1) of the Act holding that the information furnished by the petitioner was time barred. Whereas there is no limitation prescribed for bringing information to the notice of the ECP under the said provision. Therefore, the ground taken in the order is invalid. 2. Be that as it may, the ECP is given an opportunity to consider whether it would be willing to answer the petitioner’s objection through a fresh order or would like to contest the matter before us. 3. Re-fix soon after the vacations. Sd/- Chief Justice Sd/- Judge Islamabad 15.08.2023 Rashid/* Not approved for reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ MR. JUSTICE TARIQ PARVEZ MR. JUSTICE GHULAM RABBANI Civil Petitions No. 987 to 989 of 2011 (On appeal from the judgment of High Court of Sindh at Karachi dated 31.5.2011 passed in Const. P.Nos.D-1391/2004, D-1151/2007 and D-494/ 2008) All Pakistan Newspapers Society and others (in CPs.987, 989/11) M/s Pakistan Heralds Publications and others (in CP 988/11) … PETITIONERS VERSUS Federation of Pakistan and others (in CPs.987, 989/11) Chairman Implementation Tribunal etc. (in CP. 988/11) … RESPONDENTS For the petitioners/ Mr. Abdul Hafeez Pirzada, Sr. ASC Employers: Mr. Afzal Siddiqui, ASC, Mr. Mehmood A. Sheikh, AOR Assisted by: M/s Hameed Ahmad, Mustafa Aftab Sherpao and Bilal Akbar Tarar, Advocates On Court Notice: Maulvi Anwar-ul-Haq, Attorney General for Pakistan Assisted by M/s Salman Faisal, Syed Ali Mustafa Gillani and Mrs. Shafaq Mohsin, Advocates For PFUJ (Dastoor Group): Mr. Muhammad Akram Sheikh, Sr. ASC For respondent No. 2C(i) Mr. Mehr Khan Malik, AOR (ii)(iii)& (v) [CP 987/2011] & for respondent No. 4 [CP 989/2011] For respondent No. 3 Mr. Salman Akram Raja, ASC [CP 987/2011] & Mr. Mehr Khan Malik, AOR assisted by For respondent No. 4 M/s Umar Akram Chaudhry, [CP 988/2011] & Smeer Khosa, Malik Ghulam Sabir, For respondent No. 6 Yasir Latif Hamdani, Faiz Ghanghro, [CP 989/2011] Ms. Aneesa Agha & Ms. Sahr Bandial, Advocates For respondent No.3 Mr. Shaukat Aziz Siddiqui, ASC [CP 988/2011] Raja Abdul Ghafoor, AOR For respondent no. 1: Nemo [despite service of notice] [CP 987/2011] CPs 987-989/2011 2 For respondent no. 1-3: Nemo [despite service of notice] [CP 988/2011] For respondent no. 1-2: Nemo [despite service of notice] [CP 989/2011] Dates of hearing : 20, 21, 28 & 29th September, 2011 … J U D G M E N T IFTIKHAR MUHAMMAD CHAUDHRY, CJ. — The petitioners seek leave against two separate judgments of even date, (31st May, 2011) passed by a learned Division Bench of the High Court of Sindh at Karachi whereby Constitution Petitions No. D-1391/2004, D-1151/2007 and D-494/ 2008 filed by them challenging the constitutionality of the Newspaper Employees (Conditions of Service) Act, 1973 [Act No. LVIII of 1973], hereinafter referred to as the “NECOSA”, or in the alternative, the constitutionality of the Seventh Wage Award dated 25th October, 2001, and the powers of the Implementation Tribunal for Newspaper Employees, hereinafter referred to as the “ITNE” were dismissed with costs throughout. 2. Brief facts giving rise to the instant petitions are that on 8th July, 2000, the Government of Pakistan constituted the Seventh Wage Board under the NECOSA for the purpose of fixing the rates of wages of the newspaper employees. The Wage Board (hereinafter referred to as ‘the Board’), headed by Hon’ble Mr. Justice Raja Afrasiab Khan, a former Judge of the Supreme Court of Pakistan as Chairman along with 10 members, five each nominated by the employers and the employees pronounced its Award, published by the Government of Pakistan vide S.R.O. No.744(I)/2001, dated 25th October, 2001. The petitioners, All Pakistan Newspapers Society (APNS) and others, felt aggrieved by the Award and made a representation to the Government of Pakistan through Secretary, Information and Media Development CPs 987-989/2011 3 and Secretary Labour Manpower and Overseas Pakistanis, but no relief having been provided to them, they filed Constitution Petition No. 35 of 2002 before this Court under Article 184(3) of the Constitution challenging, inter alia, the constitutionality of the NECOSA on the ground of being violative of their Fundamental Rights and ultra vires the Constitution, as also the Award being void ab initio and of no legal effect and consequence. This Court, vide judgment dated 8th April, 2004 reported as All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600), dismissed the petition as not maintainable and the petitioners were asked to avail remedy before the proper forum, if they so desired. 3. Three sets of the newspaper establishments, namely, APNS & 14 others (petitioners in CP 987/2011); Pakistan Heralds Publications & 7 others (petitioners in CP 988/2011); and APNS & 4 others (petitioners in CP 989/2011) then filed Constitution Petitions No. D-1391/2004, D-1151/2007 and D-834/ 2004 under Article 199 of the Constitution before the High Court of Sindh. A learned Division Bench of High Court of Sindh, vide two separate judgments of even date, i.e., 31st May, 2011 dismissed the said petitions. Aggrieved by the aforesaid judgments of the High Court of Sindh, the petitioners have filed the instant petitions for leave to appeal under Article 185(3) of the Constitution before this Court. As caveat was filed by the contesting respondents, therefore, notices were issued to the learned Attorney General for Pakistan and official respondents so as to finally dispose of the petitions as the matter was lingering on for the last about ten years. 4. Mr. Abdul Hafeez Pirzada, Sr. ASC for the petitioners has argued that the NECOSA is ultra vires the Constitution and liable to be CPs 987-989/2011 4 struck down as a void law, inter alia, on the grounds that it has not provided even a single right of appeal from any adjudicatory or directory orders or actions, interim or final made or issued under it; although the decision of the Board is deemed an Award of the Full Bench of the National Industrial Relations Commission (NIRC), which can be questioned in appeal/review/revision before a larger bench of the NIRC, yet no appeal is provided against it; Chairman of the Board is empowered to hand down edicts and Bills of Attainder, which violates not only Article 19 of the Constitution, but also the fundamental principles of trichotomy of power, access to justice and the independence of the judiciary; the Legislature has completely abdicated its powers as it is excessive delegation of powers to the Wage Board, without any guidelines, in terms of the judgments of this Court. There are various laws already existing on the subject, incorporated in the Act of 1973 itself, namely, (i) The Payment of Wages Act, 1936 [Section 2(h)]; (ii) The Provident Fund Act, 1928 [Section 5(v)]; (iv) The Factories Act, 1934 [Section 6]; (v) The Industrial & Commercial Standing Orders Ordinance, 1968 [Section 17]; (vi) The Industrial Relations Ordinance, 1965 [Section 18]; (vii) The Social Security Ordinance, 1965 [Section 19]; (viii) The Cost of Living Act, 1973; (ix) The Employees Old Age Benefit Act, 1974; (x) The Workers’ Participation & Profit Act; and (xi) the Minimum Wages Ordinance, 1969; the Wage Board and the Tribunal, constituted under the Act of 1973 are not judicial or quasi-judicial forums/bodies who are exercising purely executive and administrative functions in a discretionary manner. On merits of the Award, the learned counsel has made the following submissions: - CPs 987-989/2011 5 (1) The newspaper owners are ready to implement the Wage Board Award and what they had done, it was conditional implementation and they are making payments in terms of the 6th Award conditional upon the outcome of the pending proceedings in the courts of law including the intra-court appeals before a Division Bench of the Lahore High Court; (2) The 6th Award, which came in 1995, had inbuilt provisions and a machinery in annual increment of not less than 10% per annum and promotion to higher grades. These increments have been regularly given and promotions have not been withheld, so the workers are presently getting more than 300% of their emoluments; (3) As far as the Seventh Award is concerned, it is to be noted that it is not as if they are totally oblivious because both owners and working journalists cannot exist without each other. This recognition is always there. Ex-gratia payments, i.e. payments without commitment, are being made, especially under the Seventh Award. However, one commitment was made that if and when the Seventh Award would be implemented, these payments, which they are receiving, would be set-off; (4) Under the Seventh Award, the newspapers exist in categories A and B, i.e., the metropolitan newspapers fall in Category A while the regional papers fall in Category B. In the first category, there are only three metropolitan cities, namely, Karachi, Lahore and Rawalpindi-Islamabad, the publication whereof is listed as Grade A. The basic pay of an Editor Grade employee of a metropolitan newspaper was proposed at Rs.9,400/- with a maximum of Rs.13,900/- and now the said employee with perks and privileges is getting in lacs; (5) Nobody has been denied annual increments and now some of them are getting more than twice or thrice; (6) There are about 40,000 declarations of the newspapers at the moment floating around Pakistan with an initial list of 260 who are the members and the membership has gone up to 2300 in Pakistan – this process of increment is CPs 987-989/2011 6 automatic and it is calculated over a period of 16 years since 1995 and even if it were to be taken at the rate of 10% with compound increase over and over, it will not be less than 300% to 400% of what they were getting in 1994, which would be less than 250% of what the Seventh Award has given them; (7) The metropolitan newspapers cannot be judged according to the standard of the Jang, the Recorder or the Dawn or the Nawa-e-Waqt who are giants in their own rights, having their own TV channels; (8) Many of the journalists have now opted out of being newspapers journalists to the electronic media where they are getting approximately 2 to 3 times salaries. Voluntarily they are coming and entering into agreements. It is a universal phenomenon all over the world – people always have ingenious minds to find ways how to circumvent the things. Access has been evaded, companies have been found in camel islands. Now here it is happening including in the State organizations is that many of these services, which are to be performed by the employees, are being so stout. Many of newspapers have handed over entire security to many security companies, which PIA and other organizations has done in various fields, such as catering, etc.. As such, when a big chunk of employees are no longer employees of an organization, their responsibilities no longer rest upon the organization. They are no longer entitled to the benefits of the Wage Board Award. Employer’s contract is with an independent body to provide those services instead of getting such services directly from the employees. Many companies hire the security agencies, which have contract with many companies and the employees are of security agencies and they are not employees of the companies so this is happening all over Pakistan. The learned counsel has proposed to his clients that they accept in spirit the Seventh Wage Board Award vis-à-vis the working journalists. His advice has been well received at this moment because it is a body, which has to CPs 987-989/2011 7 take a decision. And to this extent he is hopeful that they will come back with a positive response. According to him, millions are not being made anywhere except some newspapers, i.e. Jang, Dawn, etc., but for the newspapers having three members staff sitting in Mastung, this is arbitrary. Today, the editor of Kohistan is sitting with aside. Daily news papers; Nasim Hijazi’s newspaper; and this gentleman along with another outstanding newspaper “Sun” were the first victims of the Wage Board Awards and it closed down. The newspaper Muslim of Agha Murtaza Poya’s had to shut down; Taamir was shut down after the 4th Wage Board Award; The Morning News from Karachi, with Khawaja Khairuddin as the Editor was shut down following the 5th Wage Board Award. There is a statement that 190 newspapers have been shut down - what would be about their workers/hawkers? The Government is the biggest advertiser in the country. Since 2001 when this Award came, the Government has not increased the rates of advertisement even by 1%. 5. Mr. Muhammad Akram Sheikh, learned Sr. ASC stated that he is representing Dastoor Group of the PFUJ whereas Ms. Asma Jehangir would be representing the Working Group, the other component of the PFUJ. He submitted that the decision of the Wage Board is akin to arbitration proceedings, which is suggestive of a greater cordiality amongst the employers and the employees. 6. Mr. Salman Akram Raja, ASC, who also argued on behalf of Ms. Asma Jehangir, learned counsel for the Working Group of PFUJ submitted that the Wage Board Award has wrongly been characterized as a judicial verdict rendered by a non-judicial forum. Even, it is not akin to arbitration; rather it is in the nature of price fixation of different commodities. The former essentially decides an existing dispute between two parties whereas no dispute was presented before CPs 987-989/2011 8 the Board. In the latter case, whenever rates are fixed, it is in the nature of rule making, which is always done for the future. Right of appeal would come in where any individual right is determined one way or the other. Even the function performed by the ITNE is not adjudication or determination of the rights and obligations, but it simply implements the decision of the Board, not to make any further determination. The Tribunal is like the Collector of Customs because he simply applies the law. No trial is pending before the Tribunal, nor any punishment has ever been awarded by it. There is no cause of action and the courts do not entertain challenges where there is no cause of action or where there is no live issue. The impugned powers of the Tribunal have never been invoked or exercised, therefore, there is no occasion to challenge the same. The question is purely academic in nature. As to the discrimination argument, it is established law that there can be a class. The newspaper industry is clearly distinguishable from other industries, e.g. cement, textile, etc. So, in order to regulate one, all do not have to be regulated. The Constitution leaves that area open to the legislature. This is the only sector referred to as the fourth pillar of the State. As to the bias, the Chairman is not a judge, his function is essentially information gathering and then laying down the rates of wages. Nothing has been brought on the record to show that the finding of the Board is perverse except taking advantage of their own boycotts. As to the excessive delegation, guidelines are there in the statute and it is a ground used most sparingly to strike down a legislation. It is not shown with any specific instances from the Award that the Chairman has acted in excess of the authority vested in him. The ground of occupied field is not available. This happens all the time. General civil law is in place, but special laws, such as banking, CPs 987-989/2011 9 cooperative societies etc., creating special procedures for the determination of certain rights are enacted. On the role of the Chairman and Members of the Board, the High Court of Sindh in its judgments has given finding. The language of the law is clear that the divergent parties are represented in equal number and it is the Chairman who decides by putting the casting vote. 7. Mr. Shaukat Aziz Siddiqui, learned ASC supported the arguments advanced by Mr. Salman Akram Raja and added that the representatives of the newspaper establishments, after joining in the consultative process before the pronouncement of the Award, cannot insist upon providing a right of appeal to them. 8. The learned Attorney General for Pakistan supported the constitutionality of the NECOSA and the Wage Award. 9. Keeping in view of the importance of the constitutional issues raised in these petitions, challenging the vires of NECOSA, it is considered appropriate to look into the history of the laws on the subject for the purpose of better understanding of such issues. Initially, the Working Journalists (Conditions of Service) Ordinance, 1960 (hereinafter referred to as “the Ordinance, 1960”) was promulgated to regulate certain conditions of service of working journalists and other persons and to provide for constitution of a Wage Board. Section 8 of the Ordinance, 1960 provided that it was within the jurisdiction of the Provincial Government to constitute a Wage Board. The scope of the Wage Board was confined to the fixation of wages of working journalists as defined under section 2(f) of the Ordinance. On 30th May, 1960, the First Wage Board was constituted headed by late Mr. Justice Sajjad Ahmad Jan, the then Judge of the High Court, as the Chairman of the Board. The Wage Board gave its CPs 987-989/2011 10 decision on 31st December, 1960. The decision of the Wage Board was subject to review and revision after five years from the date of its enforcement by an authority that might be set up by the Federal Government. However, instead of five years, the Second Wage Board was constituted on 25th April, 1969. The Board announced its decision on 8th June, 1974, fixing new pay scales of the newspaper employees while maintaining the categorization of the newspapers, periodicals and the news agencies as was already done in the First Wage Board Award. 10. It seems that despite pronouncement of two Wage Boards Awards, it failed to achieve the object as no effective/independent forum was provided for the redressal of the grievances of non- journalist newspaper employees, as a result whereof the newspaper employees had been observing strikes, etc. Thus, after the integration of the Provinces of West Pakistan and East Pakistan, the Provinces were authorized to constitute Wage Boards for fixing wages of the newspaper working in the respective Provinces. All the Provinces agreed on the constitution of one Wage Board. The journalists started demanding that the constitution of the Wage Board should be brought under the control of the Federal Government (reference may be made to the Parliamentary Debates). As such, under the circumstances, keeping in view the difficulties highlighted hereinbefore as well as to avoid uncertainty and to provide smooth and peaceful atmosphere, the NECOSA was enacted on 11th August, 1973. The difference in both the enactments is apparent from their titles. Former i.e. the Ordinance was only to regulate the service conditions of working journalists, whereas, the NECOSA was meant for the working journalists as well as other persons employed in the newspaper establishments. It would not CPs 987-989/2011 11 be out of context to mention here that the latter enactment, in fact, was in continuation of the Ordinance, 1960 as the former was repealed by it with certain amendments, re-enacting sections 2(c), (d) and (e) and section 9, 10, 11, 12, 12A, 13 and 13A. 11. The Third Wage Board, constituted on 24th January, 1979, headed by Mr. Justice (R) Mohammad Munir Faruquee as its Chairman, initially provided interim relief on 5th August, 1979 and then announced final decision on 25th May, 1980, following the existing scheme of categorization of establishments and the gradation of the employees. The Fourth Wage Board, constituted on 4th October 1984 under the chairmanship of Mr. Justice Mian Fazle Mahmood, Judge of the Lahore High Court, initially provided interim relief on 10th January, 1985 and then announced the final decision on 28th September, 1985, following the existing scheme of categorization of establishments and the gradation of the employees. The Fifth Wage Board constituted on 20th July, 1989 under the chairmanship of Mr. Justice Agha Ali Haider, Judge of the High Court of Sindh gave its decision on 18th December, 1990. The Sixth Wage Board, headed by Mr. Justice Zia Mahmood Mirza, a former Judge of the Supreme Court of Pakistan was constituted on 23rd October, 1994, granted interim relief on 1st December, 1994 and thereafter announced the final decision on 13th March, 1996. 12. It is informed that the Sixth Wage Board was challenged before the Lahore High Court by filing Writ Petition No. 8926 of 1996, which was dismissed vide judgment dated 12th September, 1997 reported in Pakistan Herald Publications (Private) Ltd. v. Federation of Pakistan (1998 CLC 65). Against the said judgment, ICA No. 859 of 1997 was instituted in the Lahore High Court, which remained pending CPs 987-989/2011 12 from 1997 until 16th June, 2010 when it was consigned to record, in terms of the order of the said date, with the observation that “we, therefore, consign this appeal to record. If and when the appellants make arrangements for appropriate representation before this court, they may make any application for re-fixation/revival of this case.” Mr. Afzal Siddiqui, learned ASC stated that so far no application has been filed for re-fixation or the revival of the ICA. It would also not be out of context to note that in absence of stay order, reportedly the Sixth Wage Board Award has been implemented. 13. One of the questions agitated by Mr. Abdul Hafeez Pirzada, Sr. ASC is in respect of violation of Article 25 of the Constitution qua classification between the working journalists and non-working journalists given in section 2(d) of the NECOSA. According to him, the definition of newspaper employees is unjustified and unreasonable as two distinct classes of persons, i.e., working and non-working journalists have been combined through it, which does not stand the test of reasonable classification, thus, the NECOSA has been rendered as a bad law and unconstitutional and the same is liable to be struck down on this ground. In this context his arguments are twofold:- (i) There is no reasonable classification under section 2(e) of the NECOSA between working and non- working journalists. (ii) Except newspaper establishments no other industry has been subjected to any special law for fixing wages of the employees working therein and newspaper industry has been picked up with an object not recognized under the law. 14. Mr. Salman Akram Raja, learned ASC submitted that the Ordinance of 1960 was promulgated wherein in terms of section 8(1), the Wage Board was empowered to fix rates of wages of the working CPs 987-989/2011 13 journalists only, therefore, on promulgation of the NECOSA the Board was empowered to fix wages of the newspaper employees, which includes a whole-time journalist and a whole-time non-journalist to ensure smooth working of the newspaper industry. 15. Learned counsel in the same breath has made a statement that the owners of the newspapers (petitioners) are likely to accept in spirit the Seventh Wage Award vis-à-vis the working journalists. It may be noted that somehow identical statement was also made by him while appearing in the case of All Pakistan Newspapers Society (PLD 2004 SC 600). When we drew his attention towards the said statement, he did not deny the same, but stated that it was a conditional statement and to elaborate his plea in respect of the same stand, he had gone to the extent of stating that advice so given by him would be considered in a meeting by the newspaper establishments. The representative of the respondents vehemently opposed the statement and stated that the Court may decide the case on merits instead of leaving it to the newspaper establishments. However, from his above stance, prima facie, it is established that the petitioners are ready to accept the Seventh Wage Award as far as the working journalists as defined in section 2(d)(i) ibid. Be that as it may, to deal with this argument, we have to refresh our memory with the background/history/circumstances, which persuaded the legislature to make amendments in the Ordinance of 1960 and without any fear of contradiction that all the Awards given by the Wage Board for both the categories of newspaper employees, i.e., working journalists and non- working journalists in terms of section 2(d) of the NECOSA have been implemented. Learned counsel without supporting his arguments on the basis of material stated that some of the allied services, e.g., CPs 987-989/2011 14 printing and publication, security services, catering, etc., have been outsourced, therefore, the persons engaged in those areas could not be treated as the employees of newspaper establishments. As such, the definition of newspaper employee based on irrational classification being violative of Article 25 of the Constitution is not acceptable. There is no cavil with the proposition that all citizens are equal before the law and are entitled to equal protection of law. But, we fail to understand as to how this point is available to the newspaper establishments because they have to plead discrimination under Article 25 of the Constitution if for the sake of argument, they have not been treated equally under the definition of newspaper employees given in section 2(d) of the NECOSA. Apparently, under this provision of the law, categories of working journalists and non-working journalists have been created for argument’s sake, newspaper employees could plead discrimination or irrational classification against themselves. However, the petitioners/newspaper establishments legitimately can agitate against the rate of wages fixed by the Wage Board for both the categories of the newspaper employees. 16. In the case of Pakistan Herald Publications (supra) on behalf of a group of owners of newspapers, contention was raised that though there may be some justification for treating the working journalists as a separate class and fix their wages considering the nature of their duties, but there was no occasion for giving similar treatment to other employees of the newspaper establishments who are non-working journalists. This contention on their behalf was repelled as under: - “38. I am unable to agree with the learned counsel. The Act on.-the face of it provides for fixation of wages of all newspaper employees, both journalist and non-journalists. CPs 987-989/2011 15 The law was framed to ensure payment of wages and salaries of the persons engaged in the newspaper industry as a whole in recognition of the position that dissemination of news is vital to public interest. It was, therefore, necessary to ensure that all those persons who are engaged in bringing out newspapers should be free from shackle of economic misery and the resultant sense of despondency. The nature of duties being performed by the journalists may be unique and of more importance but it is equally clear that without the participation of other non-journalists employees it is not possible to bring out a newspaper. The legislature, being alive to this position, has chosen to frame the law for the newspaper industry as a whole which by itself is a separate class. This classification cannot be said to be arbitrary or irrational and the question of violation of Article 25 of the Constitution which does not prohibit reasonable classification, does not arise. It may be noticed that the earlier law namely the Working Journalists (Conditions of Service) Ordinance, 1960 provides for fixation of wages of the working journalists only which was found to be unsatisfactory. The Newspapers Employees (Conditions of Service) Act, 1973 which repealed the aforesaid Ordinance, therefore, provides for fixation of wages of both whole time journalists and whole time non-journalists and defined in sub-clause (i) and sub-clause (ii) of clau3e (8) of section 2 of the Newspaper Employees (Conditions of Service) Act, 1973. 39. There is also merit in the contention of Mr. Minto that the grant of better conditions of service only to the journalists as compared to other persons engaged in bringing out of the newspapers tended to create friction among the two sets of employees and was not congenial to the better relations inter se. It may also be mentioned here that relevant law in India namely The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 was originally applicable only to CPs 987-989/2011 16 working journalists but by subsequent amendment, provision has been made for fixing wages of the non journalists also. In Independent Newspapers Corporation (Pvt.) Ltd. v. Chairman Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad (1993 SCMR 1533), it was observed that the purpose of Newspaper Employees (Conditions of Service) Act, 1973 is the betterment of financial condition of persons employed in the newspaper establishments and it should receive beneficial construction.” At this juncture, it is to be observed that as far as the working journalists or non-working journalists are concerned, they have no reservations against each other although according to the Wage Board Award, the wages of both types of newspaper employees are not at par as is evident from the contents of the Award. The argument so raised by the learned counsel has not impressed us, as it has already been observed hereinabove that the grievance of the petitioners at the best could be that the wages of the newspaper employees of both categories i.e., working journalists and non-working journalists, fixed by the Board are irrational. 17. There has been a protracted litigation in the instant case. Earlier, a petition under Article 184(3) of the Constitution was filed before this Court, which was decided in the case of All Pakistan Newspapers Society (supra). Then petitions under Article 199 were filed before the High Court of Sindh, which remained pending for a considerable period of time, and prior to instant legal proceedings, the question being raised, has been decided by the Lahore High Court in 1998 in Herald Publications’ case. But despite it, no material has been brought on record to substantiate the plea of discrimination to the CPs 987-989/2011 17 petitioners by defining “newspaper employees” under section 2(d) of NECOSA has caused to them and how wages fixed by the Board were irrational. Article 25 of the Constitution confers a right upon the citizens that they should be treated equally and whosoever challenges any provision of the law, it becomes his responsibility to prove the same and in absence thereof it is held that section 2(d) of the NECOSA is not violative of Article 25 of the Constitution. 18. Mr. Salman Akram Raja, while laying down foundation of his case, has drawn our attention towards the case of All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600) and submitted that the NECOSA is a beneficial legislation, which is aimed at the betterment of the newspaper employees, therefore, it should receive beneficial construction. It is well-settled that there is a presumption in favour of the constitutionality of legislative enactments, the Courts must lean in favour of upholding the constitutionality of a legislation and that the law should be saved rather than destroying it. Reference in this behalf may be made to the cases of Abdul Aziz v. Province of West Pakistan (PLD 1958 SC 499), Province of East Pakistan v. Siraj-ul-Haq Patwari (PLD 1966 SC 854), Inam-ur-Rehman v. Federation of Pakistan (1992 SCMR 563), Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956), Asif Islam v. Muhammad Asif (PLD 2001 SC 499) and Federation of Pakistan v. Muhammad Sadiq (PLD 2007 SC 133). He further contended that as far as the Parliament is concerned, it is competent to legislate a law making rational classification amongst different persons similarly placed in view of the CPs 987-989/2011 18 judgments pronounced by this Court from time to time, including the case of I.A. Sharwani v. Government of Pakistan (1992 SCMR 1041) wherein the principles governing reasonable classification were highlighted. In I.A. Sharwani’s case (supra), this Court had highlighted that reasonable classification should be based on– (a) intelligible differentia, which distinguishes persons or things that each group together from those who have been left out. (b) That differentia must have nexus to the appeal cited achieve by such classification. 19. Although we have held hereinabove that the plea of unjustified or unreasonable classification in terms of Article 25 of the Constitution of creating two categories of employees, working journalists and non-working journalists would only be available to the newspaper employees who have been placed in one compartment, although the nature of their job, for the sake of argument, is different from each other, i.e., a whole time journalist: an editor, a leader writer, news editor, feature writer, reporter, correspondent, copy tester, cartoonist, news photographer, calligraphist, writer, news editor, feature writer, reporter correspondent, copy tester, cartoonist news photographer, calligraphist and proof reader, and a whole time non-journalist: manager, clerk, stenotypist, printing engineer, linotype, operator, composer, type-seller, photo studio attendant, printing worker, accountant and office peon, who are performing distinct and different functions. However, without prejudice to the discussion made hereinabove, looking from this angle as well and presuming that the petitioners have grievance that a reasonable classification has not been made amongst the working journalists and non-working journalists. We have to apply the test noted hereinabove CPs 987-989/2011 19 from the case of I.A. Sharwani (supra) on the definition of the newspaper employees. In this context, it may be noted with reference to the object and text as a whole of the NECOSA is to be made to ascertain that it is not a journalist or any other individual alone who can successfully provide support to the newspaper industry for printing and publication of the newspapers containing public news or comments, etc. Argument of Mr. Shaukat Aziz Siddiqui, learned counsel for the respondents at this stage seems to be very relevant as according to him without causing prejudice to the case of any of the categories of the newspaper employees, whenever a news is generated or broken, it would be of no use without the help of the supporting staff who fall within the category of a whole time non- journalist specified in section 2(d)(ii) of the NECOSA to publish and print it because the object and purpose is to print, publish and circulate the newspapers, therefore, there is a nexus in the performance of the duties by the different categories of both types of persons with cooperation and collaboration with each others. Thus, on the basis of intelligible differentia the categories of the newspapers employees are different and distinct from other persons who are engaged in some other industries, but their object and purpose is not common as is shown that object and purpose of both the categories is common and to achieve the same there was a necessity of classification. 20. Thus, such classification calls for equal protection of law to the working journalists and non-working journalists because they are equally placed, as such deserves to be treated alike both in privileges and liabilities. As far as promulgation of the NECOSA is concerned, it is the domain and prerogative of the legislature, which has wisdom to CPs 987-989/2011 20 promulgate a law to achieve a particular object and purpose presumably promulgating such laws legally, validly and constitutionally on the basis of its competence. In the instant case, the competence of the legislature has not been questioned except, inter alia putting forward the arguments noted hereinabove. 21. Learned counsel also contended that the employees of the electronic media, i.e., radio and television are not covered by the NECOSA, therefore, applying phenomena of pick and choose, prejudice has been caused to the petitioners. Suffice to observe that in view of the above discussion, the newspaper industry is distinct and different from all other industries referred to hereinabove by the learned counsel and at the same time for such reason alone the NECOSA cannot be declared ultra vires the Constitution. 22. It may be noted that as far as Article 19 of the Constitution is concerned, it deals with freedom of speech, etc. Thus, argument raised by the learned counsel that by phenomena of pick and choose, discrimination has been caused to the petitioners has no substance. 23. Mr. Abdul Hafeez Prizada, Sr. ASC, learned counsel for the petitioners vehemently contended that the provisions of the NECOSA are violative of the Fundamental Rights enshrined in Articles, 4, 10A, 18, 19, 24 and 25 as well as Article 2-A of the Constitution, therefore, the same deserve to be declared as void. The learned counsel vehemently contended that it is, in particular, violative of the due process of law clause as recently introduced into the Constitution by means of Article 10A inserted by the 18th Amendment as in section 9 of the NECOSA, no right of appeal was provided against the Wage Award. In support of his argument, he relied upon the judgment in the case of In re: Islamization of Laws (PLD 1986 FSC 29) wherein on the CPs 987-989/2011 21 recommendations of the Federal Shariat Court, right of appeal was ordered to be provided to the convicts of the Field Court Martial. He also submitted that it is violative of the judicial system as it negates the rights of access to justice in terms of Sharaf Faridi Case (PLD 1994 SC 105). 24. On the other hand, Mr. Muhammad Akram Sheikh, learned counsel for the respondents contended that the Legislature, keeping in view the history of the service conditions of the working journalists and newspaper employees, validly promulgated the NECOSA in accordance with the constitutional provisions, which, in no way, violated the Fundamental Rights of the petitioners. According to him, the NECOSA has survived since 1973 during course whereof five awards have been pronounced, which have been implemented and in no manner it has been found violative of the due process of law. He submitted that non-availability of any right of appeal could not be a ground to strike down any legislative instrument on the pretext of violation of due process of law. Further, the NECOSA is not a discriminatory, unjustified or an unreasonable law, as the definition of newspaper employees has not created a separate class between working and non-working journalists and other persons working in the newspaper industry on account of nature of their duties, rather it creates a nexus with the object of the legislation, viz., to regulate the conditions of service of the newspaper employees. The legislation in question, in order to ensure smooth functioning of the newspaper industry and to establish nexus between newspaper establishments and newspaper employees brought about amendments in the Working Journalists (Conditions of Service) Ordinance, 1960 as a result whereof the NECOSA was promulgated and on account of the mechanism CPs 987-989/2011 22 provided for fixation of the wages, all the previous Awards under the NECOSA, except the Seventh Award, have been implemented and the newspaper industry is functioning smoothly and satisfactorily. The learned counsel were of the opinion that the nature of function entrusted to the Wage Board of determining future wages of the newspaper employees under the NECOSA was a legislative act, against which non-providing of right of appeal would not be tantamount to denial of the due process of law. 25. Mr. Shaukat Aziz Siddiqui, learned ASC fully supported the arguments advanced by Mr. Salman Akram Raja and added that the vires of the NECOSA for ascertaining whether it is inconsistent with any of the Fundamental Rights as per Article 8 of the Constitution, the petitioners who represent certain newspaper establishments, not more than 80 newspapers in number, are not holding brief on behalf of the whole lot of newspaper establishments, whereas rest of them have not challenged the vires of the NECOSA, therefore, from this angle alone, the bona fides of the petitioners can be judged. He submitted that the learned counsel for the petitioners has failed to point out any violation of the Fundamental Rights, except claiming a right of appeal against the Award. According to him, equal numbers of representatives of the newspaper establishments (petitioners) and of the newspaper employees (respondents) are nominated to advise the Chairman of the Wage Board, therefore, after joining in the consultative process before the pronouncement of the Award, they cannot insist for providing a right of appeal to them. The non-working journalists are the backbone of the newspaper industry and in absence of the services, which are provided by them for the smooth running of the newspaper industry, the State cannot enforce Article 19 of the Constitution. CPs 987-989/2011 23 26. The learned Attorney General for Pakistan submitted that the NECOSA as well as the Seventh Award dated 25th October, 2001 are not violative of any of the Fundamental Rights of the petitioners or the due process of law as envisaged by the Constitution. Therefore, the same are intra vires the Constitution. 27. Under Article 8 of the Constitution this Court is empowered to declare void any law or any custom or usage having the force of law if it is inconsistent with, or is in derogation of any of the Fundamental Rights. In the instant case, the petitioners have challenged the constitutionality of the NECOSA on the strength of arguments that it is in derogation of the Fundamental Rights. His specific argument for declaring the NECOSA unconstitutional is that right of appeal has not been provided against the Wage Award, therefore, it is against the due process of law and is also discriminatory in nature. 28. Before dilating upon the respective contentions of the learned counsel for the parties, it is to be noted that under section 9(1) of the NECOSA, the Federal Government vide notification No. Lab-II-I(19)/99 dated 8th July, 2000 constituted the Wage Board for fixing the rates of wages in respect of the newspaper employees in accordance with the provisions of the NECOSA. Hon’ble Mr. Justice Afrasiab Khan, former Judge of the Supreme Court was appointed as the Chairman of the Board vide notification No. I-19-99-Lab-II dated 19th June, 2000. The petitioners, All Pakistan Newspapers Society, nominated five persons vide letter dated 26th January, 2000 as members of the Wage Board. Similarly, five members were nominated on behalf of the newspaper employees. For reference composition of the Board is given below: - Chairman CPs 987-989/2011 24 Mr. Justice Raja Afrasiab Khan Former Judge, Supreme Court of Pakistan Employers Members (i) Mr. Hameed Haroon, President APNS and Chief Executive Officer, Pakistan Herald Publications (Pvt.) Ltd. (ii) Mir Shakil-ur-Rahman , Chief Editor Jang (iii) Mr. Arif Nizami, President, CPNE and Editor, The Nation, Daily Nawa-e-Waqat (iv) Mr. Arshad A. Zuberi, Editor Business Recorder (v) Syed Fasih Iqbal, Editor, Daily Balochistan Times Employees Members (i) Mr. Abdul Hameed Chhapra, Chairman, APNEC, Karachi (ii) Mr. I.H. Raashid, President PFUJ, Lahore (iii) Mr. Pervez Shaukat, Secretary General, APNEC, Rawalpindi (iv) Mr. Majid Fauz, President, Union of Balochistan Journalists, Quetta (v) Mr. Abdullah Jan, Assistant Secretary General, PFUJ, Peshawar Under section 9(2) of the NECOSA, both categories of the members were to advise the Chairman. Under section 9(3) of the NECOSA, the time limit fixed for giving an Award by the Board is 180 days. Under section 10(1) the Board, while fixing rates of wages in respect of newspaper employees [both journalists and non-journalists as per section 2(d)] is required to take into consideration the cost of living, prevailing rates of wages of comparable employment, the circumstances relating to the newspaper industry in different regions of the country and any other circumstances, which the Board may deem relevant. It is important to note that as per section 10(2) of the NECOSA, the Board is also empowered to fix the wages for timework and for piecework. 29. The Board convened its first meeting on 29th August, 2000 at Islamabad. The Members of the newspaper establishments boycotted the first meeting and a letter dated 24th April, 2000 was CPs 987-989/2011 25 addressed to the Director General (Internal Publicity), Ministry of Information, wherein without prejudice to, and subject to the conditions noted therein, it was stated that in absence of clear and categorical assurance in terms of the letter, the persons nominated will not participate in the proceedings of the Board and nomination would be deemed to have been withdrawn. The said conditions were as under: - “II. 7. The prior to being signed by the Chairman and publication in the official Gazette the Award must be circulated amongst the members, the members must be allowed to record their concurrence with or dissent from the Award and such concurrences and/or dissents must also be published along with the Award signed by the Chairman. III. That unless the above requests are acceded to the proceedings before the Board will neither be fair nor will they appear to be fair. That our members have no intention of being part of a Board or of participating in the proceedings thereof unless it conforms to the Fundamental Rights guaranteed by the Constitution, adopts the necessary procedural safeguards and does not deny due process both substantive and procedural to the members of the various newspaper establishment(s) that will appear before it in due course.” Similarly, they also did not attend the second meeting held on 3rd October, 2000 at Chamba House Lahore and the third meeting held on 30th & 31st October, 2000 at Quetta and ultimately they ended their boycott and took part in the deliberations of the Wage Board during the meeting held on 13th & 14th November, 2000 at Peshawar. Pending process of the completion of the proceedings of the Wage Board, an interim relief was given to the employees. Again, for the second time, the representatives of the owners boycotted the Wage Board meeting. CPs 987-989/2011 26 As the decision of the Wage Board had to be given within 180 days of its constitution, therefore, the Chairman visited different places, collected evidence and also procured the evidence of financial experts, namely, Dr. A.R. Kamal and Dr. Muhammad Irfan and on the basis of deliberations and the material so collected, gave the decision. 30. As far as question of declaring the NECOSA unconstitutional on the ground of non-provision of right of appeal against the decision of the Board is concerned, it is necessary to bear in mind the questions as to whether there is any dispute between two parties in an adversarial litigation against each other, which requires to be decided by the Board, and as to whether the claim of entitlement of one of the parties is against the State or any State agency, which requires determination by the Board or the Board is performing a legislative act where there is no existing right or dispute to be decided between the parties. As it has been pointed out while noting the history of all the Wage Board Awards in this country, somewhat similar position has prevailed in the neighbouring country with the difference in the composition of the Board and the duties assigned to the members. Initially, in the said country as well, the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955 was promulgated, which was subsequently amended in 1974 in pursuance whereof separate wage boards were constituted in respect of working journalists and non-working journalists under sections 9 and 13, however, in both the categories of the Board, the Chairman and the members were to perform their functions collectively whereas under the NECOSA though they have to work collectively, but the members are to give advice, on the basis of which decision is to be given by the Chairman. CPs 987-989/2011 27 31. Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word ‘life’ has been interpreted by this Court in various cases, notably Shehla Zia v. WAPDA (PLD 1994 SC 693), Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), Moulvi Iqbal Haider v. Federation of Pakistan (PLD 2006 SC 394), Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109), In Re: Suo Motu Case No.13 of 2009 (PLD 2011 SC 619). It has been held that the word ‘life’ is very significant as it covers all facets of human existence. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. Further, the right to life also includes the right to livelihood. Under Article 3 of the Constitution, the State is bound to ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work; therefore, a right person is required to be engaged in the right job and there should not be any exploitation whatsoever. The scheme of the NECOSA is required to be understood with reference to the object and purpose of the legislation. It has already been pointed out that the NECOSA is the result of amendment in the Working Journalists (Conditions of Service) Ordinance, 1960, and for this reason, its Preamble recites that it is an Act to repeal and, with certain amendments, re-enact the Working Journalists (Conditions of Service) Ordinance, 1960; therefore, for the purpose of ascertaining the object we have to read the Preamble of the Ordinance No. XVI of 1960, which provided that “whereas it is expedient to regulate certain conditions of service of working journalists and other persons in newspaper establishments.” In both the enactments, there was no CPs 987-989/2011 28 difference in the definition of the term “newspaper establishment”. According to section 2(e) of the NECOSA, it means “an establishment under the control of any person or body of persons, whether incorporated or not, for the production, printing or publication of one or more newspapers or for conducting any news agency or syndicate.” And, in both the laws, same is the position in respect of the definition of the term “wages”, which according to section 2(h) of the NECOSA means wages as defined in the Payment of Wages Act, 1936 and includes any gratuity or other payment declared as wages by the Board. Clause (i) ibid provides that all words and expressions used but not defined in the Act and defined in the Ordinance shall have the meanings respectively assigned to them in the Ordinance. As it has been pointed out that one of the objects of promulgating the Ordinance of 1960 and the NECOSA was to regulate certain conditions of service of working journalists and other persons employed in newspapers, therefore, to achieve the object of regulating their conditions of service, the newspaper establishments have been bound down under section 3 of the NECOSA to furnish to a newspaper employee at the time of his appointment or transfer or promotion an order in writing showing the terms and conditions of his service. This is one of the substantive provisions of the NECOSA to ensure that the terms and conditions of service of the newspaper employees are documented. Similarly, to provide security of job the newspaper establishment under section 4 is required not to terminate the services of a newspaper employee without good cause shown through a notice, in writing, of such termination (a) of one month, if the total period of continuous service of the newspaper employees with the newspaper establishment is not less than three months but less than two years; CPs 987-989/2011 29 (b) of two months, if the total period of such service is not less than two years but less than three years; and (c) of three months, if total period of such service is not less than three years. Section 5 of the Ordinance cast a duty upon a newspaper establishment to constitute, for the benefit of its working journalists, a Provident Fund in the prescribed manner. Similarly, the rights of the newspaper employees have also been protected in line with the provisions of the Factories Act, 1934 and their entitlement to receive full wages, medical cover, etc., have been protected/secured under sections 6, 7 & 8 of the NECOSA. Under section 10 of the NECOSA, guidelines for fixing the wages have been provided. Any such right, if in force in any manner, would give rise to adverse dispute between the newspaper employee and the newspaper establishment as a natural person providing service to the newspaper establishment. They, as a matter of right, under Article 9 of the Constitution are entitled to the purpose of securing their lives. Thus, on the same analogy when they are performing their duties in different newspaper establishments; would they not be entitled to the wages of the work performed by them? In the past, as it has been noted above, there had been unrest between the newspaper establishments and the newspaper employees, may be working journalists or the non-working journalist, thus, it was not possible to fully enforce Article 19 of the Constitution, which provides that 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 CPs 987-989/2011 30 morality, or in relation to contempt of court, commission of or incitement to an offence. 32. The Fundamental Right guaranteeing freedom of press has been considered in a number of cases. Reference may be made to Independent Newspaper Corporation Pvt. Ltd. v. Chairman Fourth Wage Board Award (1993 SCMR 1533) and I.E. Newspaper (Bombay) P. Ltd. v. Union of India (AIR 1986 SC 515). In the latter judgment, a joint petition under Article 32 of the Indian Constitution was filed by certain companies, their shareholders and their employees engaged in the business of editing, printing and publishing newspapers, periodicals, magazines, etc. challenging the validity of imposition of import duty on the newsprint imported from abroad under section 12 of the Customs Act, 1962 etc. The case was remanded to the Government with certain observations and arrangements pending decision with the latter but on the question of freedom of the press it was held that “in today's free world freedom of Press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in large scale particularly in the developing world where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspaper being surveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.” Similarly, In re: Harijai Singh (AIR 1997 SC 73), it has been held that freedom of press is always regarded as an essential pre-requisite of a democratic form of CPs 987-989/2011 31 Government and also mother of all liberties in a democratic society. Without freedom of press, truth cannot be attained. It is considered necessary not only for the mental health and the well being of society, but also for the full development of the personality of the individual. Under Article 19, not only the newspaper owners but the citizens at large also enjoy the right of receiving independent news and views along with articles, etc. Any disturbance in this industry is bound to cast negative aspersion and it would also be developing a perception, which is against the democratic norms and this is the reason that due to certain defects in the Ordinance of 1960, the smooth functioning of the newspaper industry was not possible. It is reported that on 25th April, 1969, the second Wage Board was constituted with late Mr. Justice Sajjad Ahmad Jan as its Chairman, who unfortunately had to resign, reportedly not for a good reason. He was succeeded by Mr. Justice A.S. Farooqi, Judge of the High Court of West Pakistan in October, 1969. 33. Be that as it may, as discussed hereinbefore, by means of the NECOSA, with a view to remove the defects from the Ordinance of 1960 important amendments were brought about in the said Ordinance. The new law provided a mechanism for fixing the wages after advice rendered to the Chairman by the representatives of the newspaper employees and the newspaper establishments. A perusal of section 9 of the NECOSA, makes it abundantly clear that the Board has to perform the function of fixing of rates of wages of the newspaper employees keeping in view the parameters of the guidelines provided in section 10 of the NECOSA for the purpose of payment of wages to them in future, as is manifest from the provision of section 11(1) of the NECOSA, according to which the decision of the Board is to be CPs 987-989/2011 32 published within a period of one month from the date of its receipt by the Federal Government in the prescribed manner. The decision of the Board published under sub-section 1 shall come into operation on such date, as may be specified in the decision, and where no date is so specified, it shall come into operation on the date of its publication and shall remain in force till it is modified or varied by a later decision of the Board published in the manner provided in sub-section (1). A plain reading of this provision of law, keeping in view the principle of interpretation that ordinary and natural meanings have to be assigned to the language employed in the legislation because it would help in finding out the object and the purpose for which the same has been enacted. 34. Thus, no other interpretation can be given to this provision of the NECOSA except that it is making reference to a certain eventuality, which will happen in future. According to Mr. Salman Akram Raja, learned ASC, the Award applies prospectively whereas Mr. Abdul Hafeez Pirzada, learned counsel for the petitioners has stated that the Seventh Award has been made applicable retrospectively, with effect from 1st July, 2000. We have pointed out to him that the Award has to come into operation on the date specified in the decision, in this case, from the 1st of the month in which the Wage Board was constituted, i.e., 8th July, 2000, therefore, the Award has been made applicable from the said date. Similarly, no adversarial dispute was referred to the Wage Board to resolve or decide any controversy between the parties in respect of a pending dispute. It is to be observed that when there is adversarial nature of litigation between the parties, then it is only the judicial forum which decides the same like the property cases, etc. The learned counsel for the petitioners CPs 987-989/2011 33 himself candidly conceded that the Wage Board does not perform judicial or quasi-judicial function, rather it performs only a delegated executive function of the legislature– be it Federal or the Provincial – of fixing the wages of newspaper employees, as is done by a Pay Commission in fixing salaries of the Government/civil servants. M/S Salman Akram Raja and Shaukat Aziz Siddiqui, ASCs as well as the learned Attorney General for Pakistan stated that the Board performs a legislative act. 35. Mr. Pirzada vehemently contended that the NECOSA is void and liable to be struck down for having failed to provide even a single right of appeal from any adjudicatory or directory orders or actions, interim or final made thereunder, though it has been authoritatively ruled by this Court that at least one right of appeal is an essential component of any statute. To strengthen his argument, the learned counsel submitted that the decision of the Wage Board is to be deemed Award of Full Bench of the National Industrial Relations Commission (NIRC), but the same could not be questioned/challenged by way of appeal/review/revision or otherwise under the provisions of the NECOSA despite the fact that the NIRC Awards could be questioned before a larger Bench of the Commission. He further submitted that the orders of the Implementation Tribunal for Newspaper Employees (hereinafter referred to as “ITNE”) were also not appealable, therefore, the proceedings of the Tribunal suffered from that very defect. Reliance was place, inter alia, on Pakistan v. General Public (PLD 1989 SC 6). 36. Mr. Salman Akram Raja, learned ASC submitted that whenever rates were fixed, it was for the future. Had it been a judicial finding, an appeal would be required. The Board does did not decide CPs 987-989/2011 34 an existing dispute. It is clarified in the judgment of the Indian Supreme Court reported as AIR 1962 SC 12 that the Wage Board implements the policy of the law, the wages determination is done with prospective effect, which is in the nature of rule making [in this case, the subordinate agency is the Wage Board]. There are three kinds of decisions, to be considered and distinguished. First is resolution of dispute between two conflicting parties, which is purely a judicial act. Second is a decision by an administrative body that allows or disallows an entitlement claim against the State or a State Agency, example of which is the case of Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), where the bus owners complained that they were unfairly barred from plying buses on certain routes. They, therefore, sought enforcement of entitlement against the State. Third is a legislative function, where there is no existing right or dispute which is being determined. The Wage Board is given the power to determine wages. There is no existing dispute or right to be determined by it. The proceedings of the Board are neither judicial nor quasi-judicial, which is accepted around the world – whether it is price of essential commodities, or anything else. In such a case, rules are laid down for general applicability, may be for a particular industry, class, etc., which are to have prospective effect. They are akin to rules of conduct, which can be challenged in appropriate proceedings, either under Article 199 or Article 184(3) of the Constitution, if it is shown that the Board has acted in a perverse manner. That would be a different kind of challenge, which is available against a legislative activity and the right of appeal would come in where individual right is determined one way or the other. All such cases, including General Public, Arshad Mehmood and Mubeen-us-Salam v. Federation of CPs 987-989/2011 35 Pakistan (PLD 2006 SC 602) relate to the first two categories, and not the third category. 37. In the case of Pakistan v. General Public (PLD 1989 SC 6), right of appeal was provided in the cases where there was likelihood of conviction of a person in the service of Pakistan Army, Navy or Air Force, but the statutes which were examined, i.e. Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 were not declared unconstitutional for non-provision of right of appeal. However, following the dictum laid down in the said case, the said laws were amended and right of appeal was made available to the persons against whom an adverse order or conviction would be passed. As far as the second judgment passed by a seven-member Bench in Arshad Mehmood’s case is concerned, section 69-A of the Motor Vehicles Ordinance, 1965 was found to be violative of Article 18 of the Constitution, and while disposing of the case four months’ time was given to the Government of the Punjab for making necessary amendments in the law. As far as Mubeen-us-Salam’s case (supra) is concerned, again this Court did not declare the relevant law as unconstitutional or void because the right of appeal was not available to the persons who were deemed to be civil servants in terms of the Service Tribunals Act, 1974. However, observations were made that in such a situation, before approaching the Service Tribunal, they can avail right of appeal before the department/administrative authority. It is to be borne in mind that in the said case, no action was declared illegal for want of right of appeal, except that it was held that (a) the cases, which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened, and if any review petition, miscellaneous application or CPs 987-989/2011 36 contempt application, filed against the judgment is pending, the same shall be heard independently and shall not be affected by the ratio of that judgment; (b) the proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall abate, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the Services Tribunals Act, 1974; (c) the cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period; (d) the cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier; and (e) the Service Tribunal shall decide pending cases under section 2-A of the Service Tribunals Act, 1974 in view of the above observations. However, if any of the cases is covered by clause (c) ibid, a period of 90 days shall be allowed to an aggrieved party to approach the competent forum for the redressal of its grievance. 38. It is true that denial of right of appeal is violative of the due process of law in matters where judicial powers are being exercised by a functionary discharging judicial or quasi-judicial functions, if the same are being exercised by the executive or the administration as it has been highlighted hereinabove. And as per Injunctions of Islam, denial of right of appeal in adversarial proceedings, both civil and criminal, is considered against the due CPs 987-989/2011 37 process of law and norms of justice, but in exercise of legislative powers or legislative activities, no right of appeal can be extended before the forums, higher in status, within the legislative body which had passed the order or entered into any legislative activity. However, power of judicial review would be available to the superior Courts under Article 199 or Article 184(3) of the Constitution for the purpose of examining the constitutionality of the legislation or sub-legislation. This Court has exercised power of judicial review in a good number of cases, e.g., Dr. Mubashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) and Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879). Para 171 of the latter judgment is reproduced hereinbelow: - “171. It is clear from the above survey of the case law that it is a fundamental principle of our jurisprudence that Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive. This expansion of jurisdiction is for securing and safeguarding the rights of the people against the violations of the law by the executive and not for personal aggrandizement of the courts and Judges. It is to this end that the power of judicial review was being exercised by the judiciary before 3rd November, 2007. Indeed the power of judicial review was, and would continue to be, exercised with strict adherence to the principles governing such exercise of power, remaining within the sphere allotted to the judiciary by the Constitution.” Reference in this respect may also be made to the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), wherein this Court, while examining the question as to whether right of appeal can be granted to a person charged for an offence under the National CPs 987-989/2011 38 Accountability Ordinance, 1999, declared that in absence of any provision in the aforesaid Ordinance to release an accused on bail, the latter can approach the High Court for grant of bail under Article 199 of the Constitution. As far as challenging the validity of the Wage Award due to absence of right of appeal, if at all available to the petitioners, i.e. APNS, is concerned, in this behalf reference may beneficially be made to the case of Independent News Corporation and others v. Chairman 4th Wage Board and Implementation (1993 SCMR 1533). Similarly, the power of judicial review was also invoked by the petitioners to challenge the Sixth Wage Award before the Lahore High Court in the case of Pakistan Herald Publications v. Federation of Pakistan (1998 CLC 65). There are few other cases as well, in which the power of judicial review of the Superior Courts was invoked, such as the cases of Shamas Textile Mills Ltd. v. Province of Punjab (1999 SCMR 1477), Nabi Bux Khoso v. Pakistan Television Corporation (PLD 1982 Karachi 725), Tika Ramji v. State of U.P.[1956 SC 676 (S) AIR V. 43 C. 112 Oct.], Express Newspapers Ltd. v. Union of India (AIR 1958 SC 578), The P.T.I. v. Union of India (AIR 1974 SC 1044), U.C. Bank v. Their Workmen (AIR 1951 SC 230), Expess Newspapers v. Somayajulu (AIR 1964 SC 279), S.R. Corpn. v. Industrial Tribunal (AIR 1968 SC 529), Hochticf Gammon v. Industrial Tribunal (AIR 1964 SC 1746), B. Coleman & Co. v. P.P. Das Gupta (AIR 1970 SC 426), etc. 39. Mr. Salman Akram Raja, ASC, learned counsel for the respondents vehemently argued that the function of fixation of wages of the newspaper employees being performed by the Board is neither judicial/quasi-judicial nor executive in nature rather it is of a legislative character. To substantiate his plea, he relied upon the cases of Express Newspaper Ltd. v. Union of India (AIR 1958 SC 578), Shri CPs 987-989/2011 39 Sitaram Sugar Company v. Union of India (AIR 1990 SC 1277), Union of India v. Cynamide India Ltd. (AIR 1987 SC 1802), G.K. Krishna v. State of Tamil Nadu (AIR 1975 SC 583), S.I. Syndicate Ltd. v. Union of India (AIR 1976 SC 460), R.K. Gorg v. Union of India (1981) 4 SCC 675)], Pallavi Refractories v. Sigareni Collieeries Co. Ltd. [(2005) 2 SCC 277], Williamson v. Lee Optical, Inc. (348 U.S 483(1955)], Adkins Et. Al v. Children’s Hospital [261 U.S. 525 (1923)], Narottamdas Harjiwandas v. State of MP (AIR 1964 MP 45), Prentis v. Atlantic Coastline [211 U.S. 210 (1908)] and Australian Boot Trade Employees Federation v. Whybrow & Co. [10 C.L.R. 266 (1910)]. 40. In this connection, reference may be made to Cooley's Constitutional Limitations, 8th Edn., Vol. I, at p. 185, under the caption “the powers which the legislative department may exercise”, which brings out the distinction between a “legislative” and a “judicial act” in the following words: - “On general principles, therefore, those inquires, deliberations, orders, and decrees, which are peculiar to such a department, must in their nature be judicial acts. Nor can they be both judicial and legislative; because a marked difference exists between the employment of judicial and legislative tribunals. The former decide upon the legality of claims and conduct, and the latter make rules upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by one, and made by the other. To do the first, therefore, is to compare, the claims of parties with the law of the land before established - is in its nature judicial act. But to do the last - to pass new rules for the regulation of new controversies - is in its nature a legislative act; and if these rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law as "a rule of civil conduct", because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated. … It is the province of judicial power, also to decide private disputes between or concerning persons; but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the State. Nor does the passage of private statutes, when lawful, are enacted on petition, or by the consent of all concerned; or CPs 987-989/2011 40 else they forbear to interfere with past transactions and vested rights." 41. Stason and Cooper in their treatises on “Cases and other materials on Administrative Tribunals” point out at pages 150 that “one of the great difficulties of properly classifying a particular function of an administrative agency is that frequently - and, indeed; typically - a single function has three aspects. It is partly legislative, partly judicial and partly administrative. Consider, for example, the function of rate-making. It has sometimes been characterised as legislative, sometimes as judicial. In some aspects, actually, it involves merely executive or administrative powers. For example, where the Interstate Commerce Commission fixes a tariff of charges for any railroad, its function is viewed as legislative. But where the question for decision is whether a shipment of a mixture of coffee and chicory should be charged the rate established for coffee or the lower rate established for chicory, the question is more nearly judicial. On the other hand, where the problem is merely the calculation of the total freight charges due for a particular shipment, the determination can fairly be described as an administrative act.” Robson's Justice and Administrative Law, 3rd Edn., at p. 608 states “an example of a subordinate body of this type is a Wage Council, which is not an administrative tribunal but a subordinate legislative authority.” Barbare Wootton in “Social Foundations of Wage Policy: Modern Methods of Wage Determination” at p. 88 observes that “Both arbitration tribunals and courts of inquiry share – with one important difference - the tripartite structure of statutory wage councils; they are composed of equal numbers of representatives of employers and of workers under an independent Chairman, in some cases, together with additional independent members. The essential difference between CPs 987-989/2011 41 their structure and that of statutory wage authorities is that the representative members of the latter are chosen from within the industry concerned, whereas employers and workers on arbitration tribunals come from outside the industry whose disputes they have to resolve; if in any case technical knowledge of a particular industry is required, this is normally supplied by the help of assessors who take no part in the final Award. This difference between the constitution of wage boards and that of arbitration tribunals clearly implies a corresponding distinction between the legislative function of the former and the judicial function of the latter. The wage board drafts law for its own industry, whereas the arbitration court gives judgment on matters submitted by others. The choice of industrial arbitrators unconnected with the industries the merits of whose claims they must pledge, is evidently intended as a guarantee that they, like other judges, will be free from bias arising from personal interest.” Schwrtz in his book “Administrative Law”, says, “If a particular function is termed “legislative” or “rulemaking” rather than “judicial” or “adjudication”, it may have substantial effects upon the parties concerned. If the function is treated as legislative in nature, there is no right to notice and hearing, unless a statute expressly requires them. If a hearing is held in accordance with a statutory requirement, it normally need not be a formal one … …. The characterization of an administrative act as legislative instead of judicial is thus of great significance. … … … … The key factor in the Holmes analysis is time: a rule prescribes future patterns of conduct; a decision determines liabilities upon the basis of present or past facts.” 42. In Prentis v. Atlantic Coast Line Co. Ltd., [211 U.S. 210 (1908)] it is held that “a judicial inquiry investigates, declares, and CPs 987-989/2011 42 enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some parts of those who are subject to its power. The establishment of a rate is the making of a rule for the future, and therefore, is an act legislative not judicial in kind. That question depends not upon the character of the body, but upon the character of the proceedings. The nature of the final act determines the nature of the previous enquiry.” [emphasis supplied] 43. In 1918, in the case of Hammer v. Dagenhart, [247 U.S. 251 (1918)] the Supreme Court of United State of America held unconstitutional the federal child-labor law passed two years earlier. In 1923, in Adkins v. Children's Hospital [261 U.S. 525 (1923)] the Court voided a District of Columbia minimum wage law for women on the ground that such a law was ‘a naked, arbitrary exercise’ of legislative power in violation of the due process clause of the Fifth Amendment. The Supreme Court in A.L.A. Schechter Poultry Corp. v. United States [295 U.S. 495 (1935)] unanimously struck down the National Industrial Recovery Act, holding that it exceeded the federal government’s power under the Commerce Clause and that it was an unconstitutional delegation of legislative authority to the executive branch. One year later the Court in Morehead v. New York, [298 U.S. 587 (1936)] ruled that a New York minimum wage law was unconstitutional. Based on these decisions it appeared that the Court would not sanction a bill similar to the one that Hugo Black had proposed earlier on minimum wages and maximum hours. The Supreme Court in West Coast Hotel v. Parrish [300 U.S. 379 (1937)] CPs 987-989/2011 43 upheld a Washington state minimum wage law for women and minors similar to the New York statute it had overturned. Adkins’s case was specifically overruled as the court emphasized the need for minimum wage regulation. And finally, in Wolff Co. v. Industrial Court [262 U.S. 522] it was held that the mere declaration by the legislature that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation and invalidity of the wage-fixing provision of the compulsory arbitration statute of Kansas as applied to a meat packing establishment. The power of a legislature, under any circumstances, to fix prices or wages in the business of preparing and selling food was seriously doubted, but the court concluded that, even if the legislature could do so in a public emergency, no such emergency appeared, and, in any event, the power would not extend to giving compulsory continuity to the business by compulsory arbitration. The matter is one which is always open to judicial inquiry. [emphasis supplied] 44. At this juncture, it is necessary to examine the case of Adkins v. Children's Hospital [261 U.S. 525 (1923)] in some detail. There, the question presented for determination before the Court was the constitutionality of the Act of 19th September, 1918, providing for the fixing of minimum wages for women and children in the District of Columbia. The Act provided for a board of three members, to be constituted, as far as practicable, so as to be equally representative of employers, employees and the public. The Board was authorized to have public hearings, at which persons interested in the matter being investigated may appear and testify, to administer oaths, issue subpoenas requiring the attendance of witnesses and production of books, etc., and to make rules and regulations for carrying the Act into CPs 987-989/2011 44 effect. The Court held that it has been said that legislation of the kind now under review is required in the interest of social justice, for whose ends freedom of contract may lawfully be subjected to restraint. The liberty of the individual to do as he pleases, even in innocent matters, is not absolute. It must frequently yield to the common good, and the line beyond which the power of interference may not be pressed is neither definite nor unalterable, but may be made to move, within limits not well defined, with changing need and circumstance. Any attempt to fix a rigid boundary would be unwise, as well as futile. But, nevertheless, there are limits to the power, and when these have been passed, it becomes the plain duty of the courts in the proper exercise of their authority to so declare. To sustain the individual freedom of action contemplated by the Constitution is not to strike down the common good, but to exalt it, for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members. Finally, it was concluded that it follows from what has been said that the Act in question passes the limit prescribed by the Constitution, and, accordingly, the decrees of the court below were affirmed. 45. In Williamson v. Lee Optical, Inc. [348 U. S. 483 (1955)], it was held as under: - The day is gone when this Court used the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought. See Nebbia v. People of State of New York, 291 U. S. 502; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Olsen v. State of Nebraska ex rel. Western Reference & Bond Ass'n, 313 U. S. 236; Lincoln Union v. Northwestern Iron & Metal Co., 335 U. S. 525; Daniel v. Family Sec. Life Ins. Co., 336 U. S. 220; Day-Brite Lighting, Inc., v. State of Missouri, 342 U. S. 421. We emphasize again what Chief Justice Waite said in Munn v. State of Illinois, 94 U. S. 113, "For CPs 987-989/2011 45 protection against abuses by legislatures, the people must resort to the polls, not to the courts." 46. Reference may also be made to the case of Australian Boot Trade Employees Federation v Whybrow & Co [(1910) HCA 8; (1910) 10 CLR 266] from the Australian jurisdiction, where the High Court of Australia, which is the apex Court of that country, held as under: - “The function of a tribunal, of whatever kind, is to declare and administer the law, not to make it — dicere non dare leges. Nothing could be more unfortunate than that an idea should arise that this Court, or any other Court, Federal or State, has a legislative authority. The legislative and judicial powers of a sovereign State are exercised by different agencies, whose operations are in different planes, and cannot come in conflict with one another. The judicial agency must obey the behests of the legislative, and that may make provisions for enforcing the judgments of the judiciary, but does not, by doing so, alter their intrinsic character. The suggested conflict is therefore impossible. In support of this view we were invited to accept the argument that, although the Commonwealth Parliament has admittedly no power to interfere directly with the domestic industry or police power of a State, and cannot delegate a power which itself it does not possess, yet it may by appointing a Judge and calling him an arbitrator empower him to interfere. The statement of the argument is its own answer, and I waste no more words upon it. ………………………………… It is well to begin by clearing the ground of one or two matters. We have had before us the Statutes under which these Wages Boards have been appointed, and under which they have made their determinations. In New South Wales they are termed awards, but the substance of the thing done is the same under each State Statute. The Wages Boards are not tribunals of arbitration but subsidiary legislative bodies deriving their authority from the State legislatures. Their determinations are obligatory, not merely on parties or organizations at variance, but on all citizens within their range, whether the jurisdiction covers a whole State or a limited area merely. The rates of wages, when fixed by the Boards, are to all intents and purposes the law on the subject. They are as distinct from the judgment of a Court as they are from the award of an arbitrator. ……………………………. Nevertheless, although the term “arbitration” of itself does not necessarily indicate that the decision is a judgment in the ordinary sense, there are some awards which do partake of that nature. And to ascertain them and differentiate them from awards of other character some guiding principle is essential. There CPs 987-989/2011 46 is one clear and decisive principle which at once distinguishes between judicial and legislative action. ……………………………. If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties—in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with sanctions for non-conformity—then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorizes it. If, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act. There are some authorities, if authorities were needed, of high character which exemplify the propositions I have stated. As recently as 1908, the Supreme Court of the United States, in a case to which on a former occasion I referred, had to consider the distinction between a judicial and a legislative act. In Prentis v. Atlantic Coast Line Co. [(1908) 211 U.S., 210, at p. 226.], Holmes J. whose personal distinction as a lawyer no less than his official position entitles his opinions to the greatest respect, in delivering the decision of the Court, said:—"A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative not judicial in kind." ………………… It is upon such considerations that I agree with the view that the decision of a Wages Board, made under the authority of a law, is of legislative character. It is part of the law of the land, just as is an Act fixing rates of taxation, though the compulsive and enforcement provisions are found elsewhere. As expressed in Knoxville v. Knoxville Water Co.[(1909) 212 U.S. 1, at p. 8.], "the function of ratemaking is purely legislative in its character, and this is true, whether it is exercised directly by the legislature itself or by some subordinate or administrative body, to whom the power of fixing rates in detail has been delegated. The completed Act derives its authority from CPs 987-989/2011 47 the legislature and must be regarded as an exercise of the legislative power." The Wages Board determination, precisely like a State industrial award, has just as much authority as, and no more than, the State Act itself. [emphasis supplied] In Shri Sitaram Sugar Company v. Union of India (AIR 1990 SC 1277), the Indian Supreme Court held as under: - “45. Price fixation is in the nature of a legislative action even when it is based on objective criteria rounded on relevant material. No rule at natural justice is applicable to any such order. It is nevertheless imperative that the action of the authority should be inspired by reason. 52. The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it. 58. Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by Justice Cardozo in Mississippi Valley Barge Line Company v. United States of America, 292 US 282-290, 78 Led 1260, 1265: "The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the Commission by training and experience is qualified to form ..... It is not the province of a court to absorb this function to itself ..... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body”.” In Union of India v. Cynamide India Ltd. [(1987) 2 SCC 720], it was held as under:- “ ..... legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of Parliamentary legislation, the proposition is self-evident. In the case of subordinate legislation, it may happen that Parliament may itself provide for a notice and for a hearing .......... But where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity .......... It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative, quasi-judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and CPs 987-989/2011 48 present an appearance of an administrative or quasi- judicial activity". "A price fixation measure does not concern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character, not directed against a particular situation. It is intended to operate in the future. It is conceived in the interests of the general consumer public. The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligations of the producer to charge no more than the price fixed. Viewed from whatever angle, the angle of general application, the prospectiveness of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity". In the case of Union of India v. Cynamide India Ltd. (AIR 1987 SC 1802), it was held as under: - 7. The third observation we wish to make is, price fixation is more in the nature of a legislative activity than any other. It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative, quasi-judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must sometimes be drawn as different legal fights and consequences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.' It has also been said "Rule making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class" while, "an adjudication, on the other hand, applies to specific individuals or situations". But, this is only a broad distinction, not necessarily always true. Administration and CPs 987-989/2011 49 administrative adjudication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legislative and non-legislative acts. A price fixation measure does not concern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character, not directed against a particular situation. It is intended to operate in the future. It is conceived in the interests of the general consumer public. The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge no more than the price fixed. Viewed from whatever angle, the angle of general application the prospectivity of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity. Price-fixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the Government or its nominee and the price to be paid is directed by the legislature to be determined according to the statutory guidelines laid down by it. In such situations the determination of price may acquire a quasi-judicial character. Otherwise, price fixation is generally a legislative activity. We also wish to clear a misapprehension which appears to prevail in certain circles that price-fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price-fixation. We do not agree with the basic premise that price fixation primarily affects manufacturers and producers. Those who are most vitally affected are the consumer public. It is for their protection that price- fixation is resorted to and any increase in price affects them as seriously as any decrease does a manufacturer, if not more. 27. We are unable to agree with the submissions of the learned counsel for the respondents either with regard to the applicability of the principles of natural justice or with CPs 987-989/2011 50 regard to the nature and the scope of the enquiry and review contemplated by paragraphs 3 and 27 while making our preliminary observations, we pointed out that price fixation is essentially a legislative activity though in rare circumstances, as in the case of a compulsory sale to the Government or its nominee, it may assume the character 'of an administrative or quasi-judicial activity. Nothing in the scheme of the Drugs (Prices Control) Order induces us to hold that price fixation under the Drugs (Prices Control) Order is not a legislative activity, but a quasi-judicial activity which would attract the observance of the principles of natural justice. Nor is there anything in the scheme or the provisions of the Drugs (Prices Control) Order which otherwise contemplates the observance of any principle of natural justice or kindred rule, the non- observance of which would give rise to a cause of action to a suitor. What the order does contemplate however is 'such enquiry' by the Government 'as it thinks fit'. A provision for 'such enquiry' as it thinks fit' by a subordinate legislating body, we have explained earlier, is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in any body other than the subordinate legislating body. In the present case, the enquiry contemplated by paragraph 3 of Drugs (Prices Control) Order is to be made for the purposes of fixing the maximum price at which a bulk drug may be sold, with a view to regulating its equitable distribution and making it available at a fair price. The primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate consumer an object designed to fulfil the mandate of Art. 39(b) of the Constitution. It is primarily from the consumer public's point of view that the Government is expected to make its enquiry. The need of the consumer public is to be ascertained and making the drug available to them at a fair price is what it is all about. The enquiry is to be made from that angle and directed towards that end. So, information may be gathered from whatever source considered desirable by the Government. The enquiry, obviously is not to be confined to obtaining information from the manufacturers only and indeed must go beyond. However, the interests of the manufacturers are not to be ignored. In fixing the price of a bulk drug, the Government is expressly required by the Order to take into account the average cost of production of such bulk drug manufactured by 'an efficient manufacturer' and allow a reasonable return on 'net worth'. For this purpose too, the Government may gather information from any source including the manufacturers. Here again the enquiry by the Government need not be restricted to 'an efficient manufacturer' or some manufacturers; nor need it be extended to all manufacturers. What is necessary is that the average cost of production by 'an efficient manufacturer' must be ascertained and a reasonable return allowed on 'net worth'. Such enquiry as it thinks fit is an enquiry in which information is sought from whatever CPs 987-989/2011 51 source considered necessary by the enquiring body and is different from an enquiry in which an opportunity is required to be given to persons likely to be affected. The former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi-judicial decision. The enquiry contemplated by paragraph 3 of the Drug (Prices Control) Order is an enquiry of the former character. The legislative activity being a subordinate or delegated legislative activity, it must necessarily comply with the statutory conditions if any, no more and no less, and no implications of natural justice can be read into it unless it is a statutory condition. Notwithstanding that the price fixation is a legislative activity, the subordinate legislation had taken care here to provide for a review. The review provided by paragraph 27 of the order is akin to a post decisional hearing which is sometimes afforded after the making of some administrative orders, but not truly so.” In Saraswati Industrial Syndicate Ltd. v. Union of India (AIR 1975 SC 460), it was held as under: - 13. The petitioners did not challenge the price fixation on the ground that a quasi-judicial procedure had to be adopted before prices are fixed even if such price fixation affects, as it must each factory. Price fixation is more in the nature of a legislative measure even trough it may be based upon objective criteria found in a report or other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion-adopted must be reasonable. Reasonableness, for purposes of judging whether there was an "excess of power" or an "arbitrary" exercise of it, is really the demonstration of a reasonable nexus between the matters which are taken into account in exercising a power and the purposes of exercise of that power. This was made clear by this Court in the two cases cited on behalf of the appellants Shree Meenakshi Mills Ltd v. Unions of India [AIR 1974 SC 366]: The Panipat Cooperative Sugar Mills V. the Union of India [AIR 1973 SC 537]. In Prag Ice & Oil Mills v. Union of India [(1978) 3 SCC 459], it was held as under:- "We think that unless, by the terms of a 'particular statute, or order, price fixation is made a quasi-judicial function for specified purposes or cases, it is really legislative in character in the type of control order which is now before us because it satisfies the tests of legislation. A legislative measure does not concern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of CPs 987-989/2011 52 a particular kind or class. In the case before us, the Control Order applies to sales of mustard oil anywhere in India by any dealer. Its validity does not depend on the observance of any procedure to be complied with or particular types of evidence to be taken on any specified matters as conditions precedent to its validity. The test of validity is constituted by the nexus shown between the order passed and the purposes for which it can be passed, or in other words by reasonableness judged by possible or probable consequences.” In the case of Pallavi Refractories v. M/S. Singareni Collieries Co. Ltd. [(2005) 2 SCC 227], it was held as under: - 13. This Court in Union of India v. Cynamide India Ltd. [AIR 1987 SC 1802] has held that price fixation is generally a legislative activity. It may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of the goods is compelled to sell goods to the Government or its nominee and the price is to be determined according to the statutory guidelines laid down by the Legislature. In such situations, the determination of price may acquire a quasi judicial character but, otherwise, price fixation is generally a legislative activity. After observing thus, the Court held that price fixation is neither the function nor the forte of the Court. The Court is neither concerned with the policy nor with the rates. But in appropriate proceedings it may enquire into the question, whether relevant considerations have gone in and irrelevant considerations kept out while determining the price. In case the Legislature has laid down the pricing policy and prescribed the factors which should guide the determination of the price then the Court will, if necessary, enquire into the question whether policy and factors were present to the mind of the authorities specifying the price. The assembling of raw materials and mechanics of price fixation are the concern of the Executive and it should be left to the Executive to do so and the Courts would not revaluate the consideration even if the prices are demonstrably injurious to some manufacturers and producers. ……… 14. A Constitution Bench of this Court in M/s. Shri Sita Ram Sugar Co. Ltd. v. Union of India [AIR 1990 SC 1277] (in paras 57 & 58) has held that in judicial review the Court is not concerned with the matters of economic policy. The Court does not substitute its judgment for that of the Legislature or its agent as to the matters within the province of either. The Legislature while delegating the powers to its agent may empower the agent to make findings of fact which are conclusive provided, such CPs 987-989/2011 53 findings satisfy the test of reasonableness. In all such cases, the judicial enquiry is confined to the question whether the findings of facts are reasonably based on evidence and whether such findings are consistent with the laws of the land. The Court only examines whether the prices determined was with due regard to the provisions of the Statute and whether extraneous matters have been excluded while making such determination. It was further observed that price fixation is not within the province of the Courts. Judicial function in respect of such matters stands exhausted once it is found that the authority empowered to fix the price has reached the conclusion on rational basis.” In the case of Narottamdas Harijwandas v. State of Madhya Pradesh (AIR 1964 MP 45), it was held as under: - “In our opinion, it cannot be argued with any degree of force that the purpose and end of the Act is to investigate, declare and enforce liabilities under any law supposed to be already existing. It only prescribes a rule of conduct when it fixes minimum rates of wages in certain employments. In enacting the legislation, the Legislature has not attempted to exercise any judicial power. It has only discharged a function of legislative character. There is no analogy between the nature of the functions performed by wage boards constituted under the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and the functions discharged by the State Legislature in placing the Act on the statute book, and the observation of the Supreme Court in the case of 1959 SCR 12 : (AIR 1958 SC 578) (supra), that it is impossible to state that "the functions performed by the wage boards are necessarily of a legislative character'' is of no assistance to the petitioners.” A perusal of the above quoted passages makes it abundantly clear that the wage fixation is a legislative function, and not a judicial or quasi- judicial act or an administrative function. 47. In India, the working journalists were scattered all over the country. They agitated that some means should be found to enable them to have their wages, salaries, other allowances, retirement benefits, rules of leave and other conditions of service, enquired into CPs 987-989/2011 54 by some impartial agency or authority, which was empowered to fix just and reasonable terms and conditions of service for working journalists as a whole. The Government of Uttar Pradesh on 18th June, 1947 and the Government of Central Provinces & Berar on 27th March, 1948, appointed committees to enquire into the conditions of work of the employees of the newspaper industry. The matter remained pending when eventually the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 was passed. Under section 8 of the Act, the Central Government vide notification dated 2nd May, 1956 constituted a Wage Board for fixing rates of wages in respect of working journalists in accordance with the provisions of the said Act. The decision of the Wage Board was published in the Extraordinary Gazette on 11th May, 1957. The Commissioner of Labour, Madras issued circular dated 30th May, 1957, calling upon the managements of all the newspaper establishments in the State to send him the report of the gross revenue for three years, i.e., 1952, 1953 and 1954, within a period of one month from the date of the publication of the Board's decision. The newspaper owners challenged the vires of the said Act before the Indian Supreme Court by means of Constitution Petitions under Article 32 of the Constitution in the case of Express Newspaper Ltd. v. Union of India (AIR 1958 SC 578). One of the questions for consideration before the Court was as to whether the functions performed by the Board were administrative, judicial, quasi- judicial or legislative in character. The Court after detailed analysis of the nature and functioning of the Wage Boards established around the world held that:- “116.…… it is impossible to state that the functions performed by the wage boards are necessarily of a legislative character. It is no doubt true that their CPs 987-989/2011 55 determinations bind not only the employers and the employees in the present, but they also operate when accepted by the appropriate government or authorities and notified in accordance with law, to bind the future employers and employees in the industry. If that were the only consideration the dictum of Justice Holmes cited above would apply and the functions performed by these wage boards would be invested with a legislative character. This is however not all, and regard must be had to the provisions of the statutes constituting the wage boards. If on a scrutiny of the provisions in regard thereto one can come to the conclusion that they are appointed only with a view to determine the relations between the employers and the employees in the future in regard to the wages payable to the employees there would be justification for holding that they were performing legislative functions. If, however, on a consideration of all the relevant provisions of the statutes bringing the wage boards into existence, it appears that the powers and procedure exercised by them are assimilated to those of Industrial Tribunals or their adjudications are subject to judicial review at the hands of higher Tribunals exercising judicial or quasi-judicial functions, it cannot be predicated that these wage boards are exercising legislative functions. Whether they exercise these functions or not is thus to be determined by the relevant provisions of the statutes incorporating them and it would be impossible to lay down any universal rule which would help in the determination of this question. 117. Even if on the construction of the relevant provisions of the statute we come to the conclusion that the functions performed by a particular wage board are not of a legislative character, the question still remains whether the functions exercised by them are administrative in character or judicial or quasi-judicial in character, because only in the latter event would their decision be amenable to the writ jurisdiction or to the special leave jurisdiction above referred to. 118. There is no doubt that these wage boards are not exercising purely judicial functions. They are not courts in the strict sense of the term and the functions which they perform may at best be quasi-judicial in character. The fact that they are administrative agencies set up for the purpose of fixation of wages do not necessarily invest their CPs 987-989/2011 56 functions with an administrative character and in spite of their being administrative bodies they can nevertheless be exercising quasi-judicial functions if certain conditions are fulfilled. 123. There is considerable force in these contentions, but we do not fell called upon to express our final opinion on this question in view of the conclusion which we have hereafter reached in regard to the ultra vires character of the decision of the Wage Board itself. We are however bound to observe that whatever be the character of the functions performed by the wage boards whether they be legislative or quasi-judicial, if proper safeguards are adopted of the nature discussed earlier, e.g., provision for judicial review or the adopting of the procedure as in the case of the recommendations of the wage councils in the United Kingdom, or the reports of the advisory committees which come to be considered by the administrator under the Fair Labour Standards Act of 1938 in the United States of America, no objection could ever be urged against the determinations of the wage boards thus arrived at one the score of the principles of natural justice having been violated.” 48. In response, Mr. Muhammad Akram Sheikh, Sr. ASC submitted that it is true that the NECOSA does not give right of appeal to an individual against the Award given by the Board, but, in fact, it lays down a mechanism akin to arbitration proceedings where the Chairman of the Wage Board does not pass any unilateral order, rather there is equal representation of employees and employers on the Board. He further submitted that if it was an order of a judge or an individual, the legislature would have provided right of appeal. In the present case, there were 11 years of litigation before different forums, and though there was an allegation of bias against Justice Gandapur, ITNE, but no such allegation was ever made against Justice Raja Afrasiab Khan, Chairman of the Seventh Wage Board. 49. In view of the stand taken by the petitioners’ counsel himself that Wage Board is neither judicial nor quasi-judicial body as it CPs 987-989/2011 57 exercises executive/administrative function, we have gone through the relevant provisions, i.e. sections 9, 10 & 11 of the NECOSA, and the ratio decidendi of the judgments noted hereinabove. Keeping in view the nature of the task assigned to a Wage Board of fixation of wages is neither judicial/quasi-judicial nor executive/administrative function, but partakes of legislative activity and the Chairman being the delegate of the Federal Government, with the advice and consultation of the members of the newspaper establishments and newspaper employees, gives its decision fixing the wages of different categories of the newspaper employees including working and non-working journalists. As far as the process of performing a legislative activity is concerned, it is to be done following the guidelines provided in section 10 of the NECOSA. We tend to agree with Mr. Shaukat Aziz Siddiqui, learned ASC that if this Court comes to the conclusion that a right of appeal is necessary to honour the requirements of due process of law in terms of Article 10A of the Constitution, the question would be as to whom right of appeal will be available against the Award of Wage Board because the petitioners being the representatives of the newspaper establishments and the respondents being the representatives of the newspaper employees are themselves associated with the Chairman equally in the process of fixing the wages, therefore, a possibility cannot be ruled out that in such a situation whenever any demand of any of the members is not accepted, they would be agitating the matter against the Chairman and remaining members and so on and so forth and this process ultimately would never come to an end, thus, the object for which the law has been promulgated would be squarely defeated. To buttress the plea so taken by him, one can imagine whether the Parliamentarians CPs 987-989/2011 58 are ever heard of filing appeal against legislation done by them. It is to be noted that in the instant case as well during proceedings before the Wage Board the representatives of the newspaper establishments/owners boycotted twice as it has been highlighted hereinabove and they offered to end the boycott subject to fulfillment of their demands. It may not be out of context to note that the vires of the Award on the ground of its acceptability on factual side has not been challenged except before the High Court or before this Court raising technical objection that the Award is not sustainable. Incidentally, not a single affidavit was filed before the High Court on behalf of the petitioners to controvert the factual aspect of the Award relating to fixation of the wages, which have been allowed. Contrary to it, the respondents filed affidavits in support of their contention that the Award did not suffer from any factual defect. Therefore, for want of adequate material, the NECOSA cannot be declared ultra vires the Constitution, being contrary to Article 18 of the Constitution as well as Article 3 as the wages of the newspaper employees have been fixed following the object and purposes of the legislation. The contents of the Award suggest to hold that full opportunity was given to the stakeholders to put forward their respective viewpoint, enabling the Board to reach a correct conclusion. In this connection, the Chairman and Members of the Wage Board travelled to different cities in the country, recorded the evidence, inasmuch as evidence of the experts was also obtained and calculations made for the purpose of fixing rates keeping in view the ground realities. These facts also indicate that to lay down a formula for the purpose of fixing the rates of wages, the activities so undertaken by the Wage Board, when examined in the light of above facts and circumstances, strengthen the argument of Mr. CPs 987-989/2011 59 Salman Akram Raja, learned Counsel that all such bodies and functionaries who have been assigned the task, being a body exercising sub-legislative powers, get involved themselves in performing legislative activity and same is the ratio decidendi of the judgments, which have been referred to hereinabove. 50. As far as appeal is concerned, it is continuation of the original proceedings and it provides a mechanism for the scrutiny of the findings/determination already recorded by a subordinate forum whereas the wage determination, which is done with a view to regularize its payment to the newspaper employees, being a legislative activity is open to judicial review before the superior Courts if violation of any provision of the Constitution is made out. The learned counsel for the petitioners submitted that assuming that the determination of wages was a legislative activity having prospective effect, under the Seventh Award, the wages were fixed retrospectively, inasmuch as the same were ordered to be paid from 1st July, 2000. In reply, the learned counsel for the respondents submitted that the wages determined under the Award dated 25th October, 2001 have been ordered to be paid from the date of the constitution of the Board, and not from an earlier date, therefore, the same could not be said to have retrospective effect. We agree with the learned counsel for the respondents that the direction to pay the wages determined under the Award from the date of constitution of the Board does not make it a retrospective activity. The argument of the learned counsel for the petitioners, therefore, cannot be accepted. 51. The learned counsel for the petitioners himself submitted that the Wage Board is not performing a judicial or quasi-judicial function, and on the contrary executive powers of determining the CPs 987-989/2011 60 wages have been conferred upon the Board, which, according to him, undermines access to justice and does not satisfy the irreducible or minimum requirement of administration of justice, besides being violative of the fundamental principle of trichotomy of power and independence of the judiciary. In view of the admission of the learned counsel that the Board is performing a function, which is neither judicial nor quasi-judicial, the argument that it is violative of the principle of access to justice is not well founded. Reference in this behalf may be made to the cases of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) and Iftikhar Ahmed v. President, National Bank of Pakistan (PLD 1998 SC 53). In the first mentioned case, it has been held that the right of “access to justice to all” is a Fundamental Right, which cannot be exercised in absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals, which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirement of the Constitution. On the touchstone of the above, it cannot be argued that departure has taken place from the process of access to justice. As it has been held hereinabove that the Wage Board determines the wages of the newspapers employees like a Pay Commission, therefore, hardly it is possible to stress that process of access to justice while discharging legislative activities has been denied. There is no cavil with the proposition that when the individual rights are being determined/decided by a forum exercising judicial function, aggrieved person is entitled to right of appeal, but if powers are exercised other than judicial or administrative as a delegatee on behalf of the Federal CPs 987-989/2011 61 Government empowered to give Award as per supporting legislation, like framing of the rules, which is not carried out by the legislature but by the authority in the concerned statute. 52. Constitutionality of the ITNE was also questioned on behalf of the petitioners, contending that no judicial or quasi-judicial powers are available to the ITNE for recording evidence and effecting recovery of the wages, therefore, the authority so conferred upon the ITNE is against the concept of due process of law, inasmuch as the functions being performed by the ITNE do not specify the irreducible minimum requirement for safe administration of justice as well and is tantamount to setting up a forum, which is much beyond the status of parallel judicial system. Thus, sections 12A and 13 may be declared violative of Article 4 and the Fundamental Right enshrined in Article 9 of the Constitution. On the other hand, the learned counsel for the respondent contended that the ITNE so far has not awarded conviction nor any such order if passed has been challenged or brought before this Court, therefore, to the extent of powers of the ITNE under section 13(1)(a) in the instant proceedings need not to be examined. As far as the remaining powers of the Tribunal are concerned, the same are of administrative nature, meant for the purpose of implementation of the decision of the Board. 53. We tend to agree with the learned counsel that as presently no matter relating to awarding of punishment under section 55 of the IRO 1969 has been brought before us, therefore, examination of the said provisions will be undertaken in some other appropriate case. 54. As far as the powers conferred upon the Tribunal under section 13(4) of issuing direction which a Labour Court is empowered CPs 987-989/2011 62 to issue under section 51(1) of IRO 1969 for recovery of wages as arrears of land revenue of public demand, it is an admitted feature of the case that in this behalf the Tribunal is performing function of effecting recovery of the wages which has already been determined by the Board. Such powers, if exercised, cannot be considered contrary to the due process of law or against Article 9 of the Constitution because on the revenue side as well as in banking matters or the Cooperative Societies Act, such powers are available to the authorities mentioned therein as Collectors of Revenue, therefore, we are of the opinion that the Tribunal cannot be debarred from implementing the Award in absence whereof it would not be possible to implement the Award because the Chairman of the Board becomes functus officio after pronouncement of the Award, which the Board has to do in 180 days of its constitution, and its publication in the official gazette. If the Award is not implemented, the whole exercise undertaken in this behalf shall be a futile one because no remedy is available to implement the same. Therefore, under the special circumstances, and keeping in view the background on the basis of which the newspaper employees have been treated as a separate class from the other employees working in different industries would be left with no remedy. It is a cardinal principle of law that where there is a right, there is a remedy. 55. It is also contended by the learned counsel with vehemence that objection was raised on the procedure being followed during the proceedings of the Board as there was a perception of bias. He has relied upon certain documents, i.e. letter dated 24th April, 2000 addressed to the Director General (Internal Publicity), Ministry of Information (relevant excerpt reproduced hereinabove) letter dated CPs 987-989/2011 63 17th December, 2000 addressed to the Chairman of the Board on the manner of proceedings of the Board, letters dated 20th August, 2001 and 25th, October, 2001 addressed to the then Minister of Labour for repeal of the NECOSA, etc., letters dated 22nd December, 2001 and 16th May, 2002 addressed to the Secretary Information, and letter dated 15th August, 2002 addressed to the Secretary, Ministry of Labour, but in our considered opinion attempts have been made to persuade the Court at a belated stage that the Award should be set aside on the perception of bias. Firstly, this ground was never pleaded, and secondly, provision of interim relief, holding inquiry in absence of the petitioners, instead of reflecting upon the conduct of the Board goes against the petitioners because they were not cooperating with the Board, inasmuch as they had twice boycotted the proceedings. As held in Asif Ali Zardari v. The State (PLD 2001 SC 568), bias is said to be of three different kinds: - (a) A Judge may have a bias in the subject-matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest. A ‘legal interest’ means that the Judge is ‘in such a position that a bias must be assumed’. (b) Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated. (c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is - “Is there in the mind of the litigant a reasonable CPs 987-989/2011 64 apprehension that he would not get a fair trial?” The test is whether there is a ‘real likelihood of prejudice’, but it does not require certainty.’ ‘Real likelihood’ is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or ‘capricious persons’. Testing the case on the above touchstone, it does not fall in any of the above categories of bias. Further, he has relied on the Pinochet case (2) reported as R v Bow Street Metropolitan Stipendiary Magistrate [(1999) 1 All ER 577]. Briefly stated, the facts of the case were that Senator Pinochet brought the petition to set aside an order made by the House of Lords, allowing the appeal of the Commissioner of Police of the Metropolis and the Government of Spain from the decision of the Queen’s Bench, granting the petitioner judicial review by way of certiorari to quash the provisional warrant issued for the arrest of the petitioner to await his extradition to Spain. The grounds of the petition were that Lord Hoffmann’s links with Amnesty International, which had been granted leave to intervene in the appeal, gave the appearance of possible bias. It was held as under:- “The principle that a judge was automatically disqualified from hearing a matter in his own cause was not restricted to cases in which he had a pecuniary interest in the outcome, but also applied to cases where the judge’s decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. That did not mean that judges could not sit on cases concerning charities in whose work they were involved, and judges would normally be concerned to recuse themselves or disclose the position to the parties only where they had an active role as trustee or director of a charity which was closely allied to and acting with a party to the litigation. In the instant case, the facts were exceptional in that AI was a party to the appeal, it had CPs 987-989/2011 65 been joined in order to argue for a particular result and the Law Lord was a director of a charity closely allied to AI and sharing its objects. Accordingly, he was automatically disqualified from hearing the appeal. The petition would therefore be granted and the matter referred to another committee of the House for rehearing per curiam.” The other case relied by the learned counsel in the above connection was R v Gough [(1993) 2 All ER 724] wherein the appellant claimed that the learned judge should on his own motion have required the prosecution to proceed on an indictment containing eight substantive counts of robbery and not on the conspiracy count. That submission was rejected by the Court of Appeal. The other ground of appeal was that by reason of the presence on the jury of a lady who was appellant’s brother’s next door neighbour, there was a serious irregularity in the conduct of the trial and for that reason the conviction of the appellant should be quashed. That too was rejected. In the appeal to the House of Lords, it was held as under: - “Except where a person acting in a judicial capacity had a direct pecuniary interest in the outcome of the proceedings, when the Court should assume bias and automatically disqualify him from adjudication, the test to be applied in all cases of apparent bias, whether concerned with justices, members of other inferior tribunals, jurors or arbitrators, was whether, having regard to the relevant circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard or have unfairly regarded with favour or disfavour the case of a party to the issue under consideration by him …” 56. The facts and circumstances of the said cases are quite different and are not attracted in the present case. As far as the Chairman is concerned, it has already been held that the Board CPs 987-989/2011 66 performs a function, which is a legislative activity and not a judicial or quasi-judicial act, as such, in the performance of his functions as Chairman, he is not a Judge even though he be or may have been a Judge. It is well settled that mala fides cannot be attributed to legislature. Even otherwise, bias, or the perception of bias has to be established, but here it appears that there was no bias because the petitioners were not cooperating with the Board, which is evident from the letters filed by them. Another important thing in this behalf is that the notification of appointment of the Chairman was never challenged on the ground of bias or perception of bias, either when the matter came before this Court earlier in 2004, or before the High Court, therefore, at this stage, this argument is not available to the petitioners. Thus, from this angle too, no case for interference with the Award or the proceedings of the Board is made out. 57. Learned counsel next contended that legislature has completely abdicated its powers, as it has made excessive delegation of powers to the Wage Board without any guidelines. On the other hand, the learned counsel for the respondents stated that the petitioners have not shown with reference to any specific instances from the Award that the Board has acted in excess of the authority conferred upon it and not a word has been said about it. The Court will not enter into an academic exercise. Therefore, this argument fails because it has not been made with reference to any particular item in the Award. He has relied upon Muhammad Ismail & Co. v. Chief Cotton Inspector (PLD 1966 SC 388, Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854), Zaibtun Textile Mills v. Central Board of Revenue (PLD 1983 SC 358) and Abdur Rahim v. Federation of Pakistan (PLD 1988 SC 670). The ratio decidendi of the aforesaid cases CPs 987-989/2011 67 is that it is only the essential legislative power that is incapable of being constitutionally delegated. Within the framework laid down by the legislating authority, power can be delegated to a subordinate agency to carry into effect the purposes of the enactment by making detailed rules in conformity with the policy thus laid down. What is prohibited by the Legislature is the delegation of its function to make the law but not the authority exercised under and in pursuance of the law itself to another agency in regard to the provision of details when by the very nature these are incapable of being laid down by the legislature itself. The legislature can delegate authority to subordinate or outside authorities for carrying laws into effect and operation. Considering the above line of authorities, it is not possible to uphold the argument of the learned counsel for the petitioners. It is to be noted that under section 9 of the NECOSA the Chairman was appointed along with 10 members representing owners of the newspapers and the newspaper employees having equal representation to advise the Chairman for fixing the wages. The whole proceedings of the Board have been incorporated in the Award dated 25th October, 2001, a perusal whereof indicates that after collecting evidence and thoroughly conducting inquiry and as a result of intensive efforts to achieve the object of the legislation the Award was given. The petitioners had never pointed out during the proceedings or thereafter as to how the Chairman exceeded his authority to support the argument that the Federal government had abdicated its authority/jurisdiction which was conferred upon the Board in terms of section 10. In fact, the petitioners had not participated in proceedings of the Board as they disassociated themselves twice from the proceedings as is evident from the contents of the Award and at one CPs 987-989/2011 68 stage they intended to join proceedings subject to accepting some of their conditions. Above all, when they gave the names of owners of the newspapers to represent them, even at that stage they incorporated in the letter dated 24th April, 2000 that prior to being signed by the Chairman and publication in the official gazette, the Award must be circulated amongst the members, the members must be allowed to record their concurrence with or dissent from the Award and such concurrences and/or dissents must also be published along with the Award singed by the Chairman, knowing well that the objections/demands so raised by them were not in terms of the NECOSA or the Working Journalists (Wage Board) Rules, 1960. It is pertinent to mention here that no rules have been framed under the NECOSA, therefore, as per section 24 of the General Clauses Act, the rules framed under the Ordinance of 1960 would be holding the field. 58. Learned counsel also objected that as there was no industrial dispute, therefore, the Government, suo motu could not appoint the Wage Board for fixation of wages of the newspaper employees. The argument so raised by the learned counsel is not tenable as under section 9 (1) of the NECOSA, it is prerogative of the Federal Government to constitute whenever it so considers necessary by notification in the official gazette the Wage Board for fixing the wages of the newspaper employees. This very question engaged the attention of the Indian Supreme Court in the case of Express Newspapers (supra) wherein it was held that as the appointment of the Wage Board for the purpose of fixing the rates of wages could not be, and was not, challenged, as such the constitution of such a Wage Board is one of the appropriate methods for fixing the rates of wages of the newspaper employees. CPs 987-989/2011 69 59. In the instant case as well, vide notification dated 19th June, 2000 the Chairman was appointed, followed by another notification dated 8th July, 2000 in pursuance whereof the employer members and the employee members were appointed and no challenge was thrown to this notification, therefore, this argument is not available to the petitioners. Besides, in view of the plain language of section 9(1), there is hardly any need for the Government to wait till the time an industrial dispute is raised. In our opinion, the prior existence of an industrial dispute is absolutely unnecessary in view of various provisions of the NECOSA, which has been promulgated to regulate certain conditions of service of the newspaper employees as defined therein. As far as payment of the wages is concerned, it is one of the conditions of service of newspaper employees. The term “wage” has been defined in section 2(h) of the NECOSA, which means wages as defined in the Payment of Wages Act, 1936 and includes any gratuity or other payment declared as wages by the Board. The contention of the learned counsel in respect of directions contained in the Award relating to granting of grades, etc. to the newspapers has also no force because grading has been done in view of the ground realities based on evidence collected by the Board. 60. Undoubtedly, the Chairman has control/powers as envisaged by section 10 of the NECOSA as has been pointed out hereinabove. It is pertinent to mention that this Court, in the case of Herald Publications Ltd. (supra) interfered in the Wage Award to the extent it was found beyond the scope/jurisdiction of the Board, but the Wage Board Award was kept intact. No demonstration has been made before us to substantiate that the petitioners led any evidence or produced any material being the representatives of the newspaper CPs 987-989/2011 70 establishments to persuade the Board not to award different grades or rates of wages to the newspaper employees, hence no other discussion in this behalf is called for. 61. Learned counsel contended that all the newspapers (owners of the newspapers) do not have financial capacity to make the payment of wages to the newspaper employees as per the Award. This argument has been seriously controverted by the learned counsel for the respondents, particularly by Mr. Shaukat Aziz Siddiqui, ASC. According to him, the petitioners control 85% news publications in Pakistan, therefore, there is no match between them and the newspapers like Kohistan, Ta’amir, etc., or the newspapers being issued from the far-flung areas of D.I. Khan of Khyber Pakhtunkhwa or Mastung, Sibi, etc., of Balochistan. Be that as it may, this very contention had already been decided against the newspaper owners in the case of Herald Publications (supra) on the basis of the material brought before the Wage Board at that time. In this case as well, the employers/owners of the newspapers had pleaded before the Board that they had no capacity to pay the employees as per their demands. As per the expert opinion presented before the Board by Dr. A.R. Kamal, cost of living is 46.3 percent and per capita income is 51.8 percent. Similarly, another expert Dr. Irfan opined that cost of living is 47% while the per capita income is 52%. It is significant to note that despite non-producing material/data as was required to be filed by the newspaper establishments to assess their capacity to pay the wages fixed in the Award, at one stage, i.e. on 4th October, 2001 M/S Syed Fasih Iqbal and Mr. Arshad Zubari appeared on behalf of newspaper owners and urged that burden of inflation is to be shared by the owners and the newspaper employees in 60 : 40 ratio. According to CPs 987-989/2011 71 the owners, after deduction of the share of the workers @ 40%, the balance will come to 24%. On this formula, the owners concluded that they were ready to increase the wages of the workers to the extent of 24%. Another concession was offered by the owners that 7% weightage may also be shared in 60 : 40 ratio, which will come to 28% to 29%. It was further declared that if this formula was accepted they would have no objection if the decision of the Board was made operative w.e.f. 1st July, 2000. On the other hand, the representatives of the newspaper employees brought into the notice of the Board that the 4th Wage Award was given on the basis of overall 90% increase in the cost of living. The 5th Wage Award was announced on the basis of 71% increase. Similarly, the 6th Wage Award was founded on the ground that the cost of living was 70%. The workers produced reliable evidence before the Board that prices of various articles had increased from 100% to 150%. This evidence was not rebutted by the owners. As the parties were not agreed, therefore, on the basis of material produced by the respondents and the oral assertions made by the petitioners, the Board decided that 50% increase in the cost of living would be made the basis of the increase in the wages of the newspaper employees. 62. Since no material was produced as indicated hereinabove by the petitioners to show that financially they did not have the capacity to increase the wages, the Board though did not approve the rates of wages demanded by the employees, found out a middle way to fix the wages. 63. The contention raised by the learned counsel on behalf of the petitioners that the NECOSA is a fraud on the Constitution, as according to him, though the Board is an independent body having CPs 987-989/2011 72 equal representation of both the sides but the members are denied the power to participate in the decision making as the Award is to be given by a single person “Chairman”. 64. Again it is to be seen that at the time of constitution of the Board, no objection was raised nor any challenge was thrown in the Court to challenge the constitution of the Board while invoking power of judicial review of the superior Courts. Secondly, in view of the past experience prevailing since 1951 onward, on account of unrest in the newspaper industry and also to ensure that this industry functions smoothly and rights guaranteed under Article 19 of the Constitution were enforced/implemented, the representatives of the employers and the employees were engaged to provide advice in regard to the observation that no effective participation was made by the owners or their representatives as is evident from the facts and circumstances noted hereinabove. 65. Learned counsel for the petitioners also contended that the NECOSA is a redundant and superfluous law in a heavily occupied field by incorporating several laws without which it cannot operate, such as the Provident Funds Act, 1925, the Factories Act, 1934, the Payment of Wages Act, 1936, West Pakistan Employees’ Social Security Ordinance, 1965, the Industrial and Commercial Employment (Standing Orders), Ordinance 1968, the National Industrial Relations Ordinance, 1969, etc. To elaborate his argument, he referred to sections 2(h), 5(5), 17 & 19 of the NECOSA as in these sections procedure for redressal of the grievances of the newspaper employees in the statutes named hereinbefore has been made applicable. He further contended that due to application of these laws, several other laws are also attracted, which shall be applicable to the newspaper CPs 987-989/2011 73 employees, namely, Employees Cost of Living Relief Act, 1973, Companies Profits Workers Act, 1968, Workers Welfare Fund Ordinance, 1971, Minimum Wages Ordinance, 1969, etc. As far as the laws mentioned in the later part of the argument are concerned, they have not been made applicable expressly, therefore, to their extent argument is based on presumptive consideration. As far as the question of redundancy and superfluity of the NECOSA is concerned, it is without substance. The scheme of the NECOSA makes it abundantly clear that a comprehensive procedural-cum-substantive Code has been provided to the newspaper employees by the legislature in view of the nature of their duties which they have to perform necessarily other than the workers or workmen as defined in the Factories Act or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, therefore, by means of the NECOSA, their rights and obligations have been protected. This is not the only statute of its nature where Payment of Wages Act, etc., have been applied by following the process of adoption of laws, which is well settled approach in the modern jurisprudence. Reference in this behalf may be made to Re Wood’s Estate [(1866) 31 Ch. D. 607] wherein Lord Esher M.R. said, “If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the latter Act, you have no occasion to refer to the former Act at all. Similarly, a statute may adopt all or only a part of another statute by express reference or by re-enactment of the former in verbatim or in substantially the same language.” [Understanding Statutes – Cannons of Construction, Edition CPs 987-989/2011 74 2008 by S.M. Zafar]. Therefore, no redundancy or superfluity can be attributed to the NECOSA on this score. In this behalf, argument of the learned counsel for the respondents being worth consideration is also to be noted that the Legislature is not debarred from promulgating such laws as general or special laws, vis-à-vis general civil laws, special rights, procedures, etc., therefore, the NECOSA is not superfluous and it cannot be declared ultra vires the Constitution. 66. Learned counsel vehemently argued that as per section 12A, a decision of the Board published under section 11 shall be deemed to be award of the Full Bench of the NIRC constituted under section 22A of the Ordinance [section 2(b) of the NECOSA]. Under section 38C of the IRO 1969, the Award shall remain in force for a period of three years or until it is modified or varied by a later decision of the Wage Board. Therefore, according to him, treating the Wage Board Award as having come to an end after the expiry of three years from 25th October, 2001, the date of its publication in the Gazette of Pakistan. The argument advanced by the learned counsel has been seriously controverted by the learned counsel appearing for the respondents as according to him, it has no force because the deeming clause in a statute is to be read to the extent of its application and not beyond it as in the instant case the Award is to be deemed award of the Full Bench of the NIRC, but it is not said that its period of enforcement will also be the same. In the case of Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602), it has already been observed that the purpose of importing a deeming clause is to place an artificial construction upon a word/phrase that would not otherwise prevail and sometimes it is to make the construction certain. It was further held that a deeming clause is a fiction, which cannot be CPs 987-989/2011 75 extended beyond the language of the section by which it is created or by importing another fiction. Therefore, on the basis of such deeming clause, the period of enforcement of the Award cannot be fixed at three years. It is provided in section 11(2) that decision of the Board shall remain in force until it is modified or varied by a later decision of the Board. In the facts and circumstances of the case, the learned counsel emphasized that all the previous Awards were continued to remain in force for a period of five years, but in the instant case, a period of more than 10 years has passed, as such following the past practice, it may be held that the Award is no more applicable. The argument has no substance because no period of time has been fixed under section 11 of the NECOSA. 67. Thus, for the foregoing reasons, the Newspaper Employees (Conditions of Service) Act, 1973 [NECOSA] is intra vires the Constitution. Consequently, the Seventh Wage Board Award dated 25th October, 2001 shall hold the field until it is modified or varied by a later decision of the Board published in the manner provided in section 11(2) ibid. Accordingly, we are not inclined to interfere with the impugned judgments of the High Court of Sindh. All the three petitions are dismissed with costs. IFTIKHAR MUHAMMAD CHAUDHRY, CJ TARIQ PARVEZ, J. GHULAM RABBANI, J. Announced in open Court on 19th October, 2011 CHIEF JUSTICE APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED CIVIL PETITION NO.989/2015 (On appeal from the judgment dated 6.4.2015 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R.No.88-P/2008). Mst. Brikhna d/o Habib Khan …Petitioner Versus Faiz Ullah Khan s/o Habib Khan & others ..Respondents For the petitioner: Mr. Rehman Ullah, ASC Syed Rifaqat Hussain Shah, AOR For the respondent-1: Mr. Arshad Hussain Yousafzai, ASC alongwith respondent No.1 Date of hearing: 01.7.2020 JUDGMENT Mazhar Alam Khan Miankhel, J-. CMA No.10545/2019: During the course of writing the judgment, we have noted that instant CMA has not been decided so far, wherein, factum of demise of the petitioner was reported by the learned AOR with the request therein that her legal heirs be impleaded and arrayed as petitioners. To set the record straight we allow this CMA and direct the office to include the names of legal heirs in the array of the petitioner. CMA disposed of CP 989/15 2 accordingly. We have also noted that the actual name of the petitioner is “Mst. Brikhna” but in the civil petition and other relevant documents in this court filed by the Advocate-on-Record (AOR) wrongly reflect her name as “Mst. Brehna”. Such an insouciant conduct of AOR is deprecated. Such a slackness sometimes lead to a complex situation. So, one should be very careful specially in the matters concerning the records. Civil Petition No.989/2015: Mst. Brikhna, the deceased petitioner, had filed a suit for declaration against her brothers and other defendants (vendees of her brothers) wherein she had claimed her Sharai share in the legacy left by her father. The suit of the petitioner was decreed by Civil Judge-II/Illaqa Qazi Buner (Trial Court), vide his judgment and decree dated 27.4.2007. Appeal filed by some of the defendants was allowed and judgment and decree passed by the trial court ibid was set aside by Additional District Judge-I/Izafi Zilla Qazi, Buner (Appellate Court), vide his judgment and decree 6.12.2007. The petitioner being dissatisfied of such findings filed a civil revision before the Peshawar High Court, Mingora Bench (Dar-ul- Qaza), Swat but that was dismissed by the learned single Judge in chambers vide his judgment dated 6.4.2015. The petitioner still being dissatisfied has questioned the judgment of Peshawar High Court through instant petition for leave to appeal. 2. Learned counsel for the parties were heard and record of the case was perused. Perusal of the record reveals that in the controversy referred above, defendant No.1/respondent No.1 (brother of the petitioner) had filed his separate written statement wherein he took a stance that CP 989/15 3 petitioner Mst. Brikhna was not the daughter of his predecessor Habib Khan so was rightly excluded from his inheritance whereas defendant No.2/respondent No.8 herein (being brother of petitioner) submitted his cognovit and accepted the stance of the petitioner that she being the real daughter of Habib Khan and their real sister was entitled in the legacy of their common predecessor Habib Khan to the extent of her Sharai share which in the circumstances comes to 1/7 share. It is also on the record that the 3rd son of Habib Khan namely Amrood Khan, respondent No.9 herein, had already given her (petitioner) the due share lying with him (in his name and possession), she was entitled for. The learned single Judge of the Peshawar High Court had based his findings mainly on the ground of limitation and acquiescence by relying on the case of Grana v. Sahib Kamala Bibi (PLD 2014 SC 167) but to our view, case of Mst. Grana ibid is not applicable in the facts and circumstances of this case and there is no question of acquiescence. In the case of Mst. Grana ibid suit property had been sold hand to hand and petitioner lady therein remained silent for sixty (60) long years. Mst. Brikhna, the plaintiff/ petitioner, claiming her share in the legacy left by her father, was on the basis of operation of law and not on the basis of any mutation. It is well settled by now that mutation is not a document of title. The sole purpose of a mutation is to keep the record of rights updated and to maintain the fiscal records straight. When she being one of the legal heir of deceased Habib Khan then she becomes entitled to inherit the legacy of her father from the day her father died and as such becomes co-sharer/co-owner in the property and this entitlement of petitioner is based on operation of Mohammadan Law and the Law of Inheritance. We in the peculiar circumstances of the case can lay hands on the case of Mst.Gohar Khanum v. Jamila Jan (2014 SCMR 801). The learned Judge of the Peshawar High Court CP 989/15 4 though has based his findings on the basis of case of Mst. Grana ibid but the parties to the suit have not developed their case in line with the findings of the case of Mst. Grana ibid. So, we, in the circumstances, leave the question of limitation and acquiescence in the matter of Muslim inheritance open for any other appropriate case. Record of the case would further make it clear that amongst the three sons, it is the respondent No.1 Faiz Ullah alone who is avoiding to give the petitioner her due share. We have also noted that respondent No.1 has also failed to establish the stance taken by him in his written statement that their father died by leaving only the three sons i.e. defendants No. 1 to 3 and Mst. Brikhna was not the real daughter of their father. In support of his stance, he appeared alone as his own witness. He during the course of his cross examination, admitted that PW-5 Miraj Khan and PW-6 Fateh Khan were the elders of the locality. While going through their statements i.e. PW-5 and PW-6, it appears that both of them being elderly persons, have supported the stance of petitioner. We would also like to mention here that people in this region normally avoid to give the daughters/sisters i.e. women folk, their due shares in the inheritance of their predecessors which is totally against Sharia and the law of inheritance prevailing in the country. Preponderance of the evidence would also make it clear that the petitioner being one of the legal heir of Habib Khan is entitled to get her due Sharai share which in the circumstances comes to 1/7 share. Learned counsel for respondent No.1 was heard at length but he was unable to satisfy us regarding the stance of respondent No.1. Needless to mention that revenue records be corrected accordingly. 3. In this view of the matter, we convert this petition into appeal and allow the same with costs, set aside the impugned judgment CP 989/15 5 dated 6.4.2015 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat and that of the appellate court and restore the judgment & decree dated 27.4.2007 passed by Civil Judge-II/Illaqa Qazi Buner,. Judge Judge Islamabad, the 1st July, 2020 Sarfraz /-‘ ‘Not approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Sarmad Jalal Osmany Mr. Justice Qazi Faez Isa Criminal Appeal No. 248 of 2009 (Against the judgment dated 20.05.2009 passed by the Peshawar High Court, Abbottabad Bench in Criminal Revision No. 1 of 2008) Gulraiz …Appellants versus The State, etc. …Respondents For the appellant: Mr. Tariq Mehmood, Sr. ASC Mr. Ghulam Mustafa Khan Swati, ASC For the State: Mr. Muhammad Aslam Ghumman, ASC For the complainant: Malik Muhammad Kabir, ASC Date of hearing: 04.06.2015 JUDGMENT Asif Saeed Khan Khosa, J.: We have heard the learned counsel for the parties at some length and have gone through the relevant record of the case with their assistance. 2. The appellant had been sentenced to death by the learned trial court and his sentence of death had been confirmed by the High Court whereafter an appeal filed by the appellant was Criminal Appeal No. 248 of 2009 2 dismissed by this Court on 13.04.2005 and a review petition filed by the appellant was subsequently dismissed by this Court on 23.01.2007. The impugned judgment passed by the High Court shows that a mercy petition filed by the appellant has also been turned down by the President of Pakistan. After having exhausted all his judicial and executive remedies the appellant filed an application before the learned trial court seeking reduction of his sentence on the basis of a compromise with the widow of Abdul Jamil deceased but admittedly the said compromise was a partial compromise because the other heirs of the deceased had not waived or compounded the offence. The learned trial court dismissed the above mentioned application submitted by the appellant and later on a revision petition filed by the appellant before the High Court was also dismissed. Hence, the present appeal by leave of this Court granted on 04.06.2009. 3. It has already been declared by a Larger Bench of this Court in the case of Zahid Rehman v. The State (PLD 2015 SC 77) that a partial compromise between a convict and some of the heirs of the deceased cannot entail acquittal of the convict in a case of Ta’zir as by virtue of the provisions of subsection (2) of section 345, Cr.P.C. all the heirs of the deceased must enter into a compromise with a convict if such compromise is to have the effect contemplated by subsection (6) of section 345, Cr.P.C. The issue as to whether a partial compromise may provide a valid basis for reduction of a sentence of death to that of imprisonment for life came up for consideration before this Court in the case of Abdul Ghaffar v. The State (Criminal Appeal No. 589 of 2009 decided on 23.04.2015) and it had been held by this Court as follows: “8. Once it is established that the offence has been committed by the accused the appropriate sentence is awarded to him/her, which in respect of qatl-i-amd as ta’zir could be either death or imprisonment for life. The section requires that the “facts and circumstances of the case” be considered in determining the appropriate sentence. A compromise with one or more of the heirs of the victim would in our opinion be amongst the facts and circumstances of the case that require to be taken into account in determining the quantum of punishment, but that in itself would Criminal Appeal No. 248 of 2009 3 not be the conclusive factor as all the facts and circumstance of the case have to be considered. Merely because an heir has compromised with the convict would not automatically result in the imposition of the lesser punishment of imprisonment for life. 9. That having decided that a compromise with an heir of the victim may be a factor in determining the quantum of punishment we now proceed to consider whether in the facts and circumstances of each of these cases the sentences of death imposed by the trial court and which were upheld and confirmed by the High court should be reduced to imprisonment for life.” Keeping in view the law declared by this Court in the above mentioned cases we have attended to the facts and circumstances of the present criminal case and have observed that the appellant had acted in a cruel and brutal manner and his conduct was nothing short of being callous because he and his co-accused had murdered one person and had injured three others only when the deceased had prompted a Qari during the progress of Traveeh prayers in the holy month of Ramzan which prompting had been taken ill by the appellant. The place of occurrence was the courtyard of a mosque. In the absence of any background of ill-will or bitterness against the deceased and the injured victims the appellant had no justifiable reason to do what he did, meaning thereby that the appellant is a desperate person and it may be hazardous to let him loose on the society. All the facts and circumstances of the case which could arguably point towards mitigation of the appellant’s sentence had failed to find favour with this Court when his appeal and review petition had been dismissed and his sentence of death had been maintained. The only fresh factor in this regard is the stated compromise between the appellant and the widow of the deceased which widow has already remarried and she had statedly received a sum of Rs. 4,60,000/- from the appellant on her own behalf as well as on behalf of a minor daughter of the deceased for the purposes of entering into a compromise. It is not disputed before us that both the parents of the deceased have resolutely refused to affect any compromise with the appellant so far. In the above mentioned peculiar background we have not found the stated partial compromise to be furnishing a Criminal Appeal No. 248 of 2009 4 valid basis for reduction of the appellant’s sentence of death to imprisonment for life. This appeal is, therefore, dismissed. Judge Judge Judge Islamabad 04.06.2015 Approved for reporting. Arif

IN THE SUPREME COURTOF PAKISTAN (Review Jurisdiction) Present: Mr. Justice Mian Saqib Nisar Mr. Justice Mushir Alam C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 Against the order dated 31.12.2015 passed by this Court in CPs No. 2364 and 2365 of 2015. Mian Asghar Ali Petitioner(s) (in both cases) VERSUS Govt. of Punjab thr. Secretary (Colonies) BOR, Lahore & others (in CRP 100/2016) District Collector Sahiwal & others (in CRP 101/2016) Respondent(s) For the Petitioner(s): In person For Respondent(s): Mr. Mudassir Khalid Abbasi, Asstt. AG Ch. M. Rafiq, Legal Advisor, Distt. Govt. Sahiwal Abdul Rauf Sindhu, Legal Advisor TMA Sahiwal Rana M. Yousaf, Tehsildar, Sahiwal On Court’s Notice: Mr. M. Farooq Altaf, Solicitor Punjab Date of Hearing: 29.09.2016 ORDER Mushir Alam, J-. Instant Civil Review Petitions arise out of an order of this Court dated 31.12.2015, whereby Civil Petitions No.2364 & 2365 of 2015 filed by the review petitioner were dismissed and leave declined. 2. Facts, in nutshell, are that the review petitioner, who was neither in possession nor a tenant within the contemplation of Colonization of Government Land Act, 1912 in relaxation of ban from Chief Minister, managed to obtain piece of land through private treaty dated 29.9.1994. Municipal Committee, Sahiwal and notable approached the Member (C) BoR, for the recall of such order, when yielded no result prompted President of Anjuman-e-Tajraan, to challenge the same before the Lahore High Court(through Writ Petition No.4039 of 1995). Learned High Court, vide order dated 11.07.1995 suspended the operation of the impugned sale. The writ Petition was ultimately disposed off with direction to the Member (Colonies) Board of Revenue, C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 2 Punjab to decide the matter in accordance with law. Consequently, the Member (C) BoR, after hearing all the parties through order dated 4.7.1998 (page 78-82 CPLA No. 2364 of 2015) held that order for the grant of land was obtained by misrepresentation cancelled the impugned sale, in exercise of powers vested in him under Section 30(2) of the Colonization of Government Land Act, 1912. 3. Record shows that the Review petitioner engineered its review beyond limitation, through Member (C) BoR, without any notice to the parties, on 13.4.2000, which order was successfully challenged by Administrator Municipal Committee Sahiwal, Province of Punjab and others (through WP No. 6547, 6399 & 6670 of 2000), which order was set aside on merits as well as on limitation vide judgment dated 05.07.2004. 4. Review Petitioner challenged the said judgment through Civil Petitions No.2466 to 2468 of 2004, before this Court, wherein leave was declined vide judgment dated 16.12.2004; since reported as Mian Asghar Ali v Province of Punjab through District Collector and others (2006 SCMR 936), operative part whereof is reproduced here in below:- “Independent thereof any intervention with the impugned order would tantamount to encouraging perpetuation of patent illegal devices to protect the illegitimate gains reaped by the political vultures for unjust enrichment at the cost of public exchequer which has eroded the very moral fabric of the society.” 5. The petitioner, against the above leave declining order, filed Civil Review Petitions No.21 to 23 of 2005. However, after exchange of preliminaries, including proposal for the allotment of alternate land, the Review Petitioner through application dated 25.7.2009 chose to withdrew the same on the ground that his request for the allotment of alternate land is being examined by the Member (C) BoR, from, which forum he may get the requisite relief therefore, he wishes to withdraw the Review petition with a permission to revive the same in case his grievance is not redressed” consequently review petitions were dismissed as withdrawn vide order dated 28.7.2009, as detailed in paragraphs 5 to 7 of the Judgment under Review. 6. Thus the order dated 4.7.1998, of cancellation of sale of subject land by way of private treaty passed by the Member (C) BoR, C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 3 attained finality for all intent and practical purposes and laid to rest by this Court as noted in last preceding paragraph. 7. The record further reveals that the request of the Petitioner for the allotment of alternate land was turned down by the Member (Colonies) BoR through a speaking order dated 16.6.2010 (page No. 131-132 of CPLA No. 2354 of 2015). Since it was a fresh cause of action, therefore, the Petitioner did not sought revival of Review Petitions, which were dismissed by this Court, as withdrawn as noted in paragraph 5 above. 8. The Petitioner challenged the above order dated 16.6.2010 passed by Member (C) BoR, through Writ Petition (W.P No.1685 of 2011), which was allowed vide judgment dated 25.6.2014, whereby the Revenue Authority were directed to grant alternate land in favour of the petitioner measuring 02 Kanals 17 Marlas 01 Sarsahi. 9. The Judgment (in W.P No.1685 of 2011) was successfully challenged by the Respondents through ICAs No.283 and 357 of 2014. Learned Bench of the High Court, though sustained the objections of the Review Petitioner that ICAs were not maintainable. However examining the case on merits converted the same into review application set aside the judgment dated 25.06.2014 passed by the learned single Judge in exercise of Review jurisdiction. 10. The judgment of the learned Division Bench, in exercise of review jurisdiction dated 25.06.2015 was challenged by the Review Petitioner before this Court through Civil Petitions No.2364 & 2365 of 2015, which for the reasons noted therein were dismissed, vide judgment in Review dated 31.12.2015. 11. The Review Petitioner being dissatisfied with the judgment dated 31.12.2015 passed in CPLA No. 2364 of 2015 filed instant Civil Review Petitions and, this Court in consideration of the following assertion made by the Review Petitioner, vide order dated 18.8.2016 issued notice to the Respondents on two fold grounds :- “On merits the petitioner states that the cancellation of a sale deed has been made on the orders of the Chief Minister, Punjab who had no such authority C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 4 and, therefore, the principle of dictated exercise of jurisdiction/force command shall apply. However, when confronted that such cancellation has been made on the basis of the order passed by the learned High Court in Writ Petition No.4039/1995, it is submitted that such order was not valid in law because it had been passed simpliciter on the basis of the letter which was issued on the dictation of the Chief Minister. It is also submitted that once the sale deed has been executed in his favour by the government, it could not be cancelled except in accordance with law i.e. by resorting to the provisions of Section 39 of the Specific Relief Act, 1877 and the respondent had no unilateral authority to cancel the same. It is further submitted that the ICA could not be converted into a review and even otherwise the criteria for review of a judgment is altogether different from that of the exercise of appeal or revision and in the instant matter, no case on the touchstone of review was made out, yet the judgment of the single Judge in Chambers was reviewed by the Division Bench of the High Court. These according to the petitioner are some of the vital aspects of the matter which eluded the attention of this Court while passing the judgment under review. Issue notice to the respondents.” 12. As regard first contentions of the Petitioner, as noted above, Petitioner was called upon to show that the cancellation of a sale deed has been made on the orders of the Chief Minister, Punjab who had no such authority and, therefore, the principle of dictated exercise of jurisdiction/force command shall apply. Petitioner drew our attention to page 153, item number 5 whereby the worthy Chief Minister during his visit to Sahiwal on 21st March, 1998 made announcement for the cancellation of land to the Petitioner, which was under occupation of Municipal Committee. 13. We have examined the record with the assistance of Petitioner and learned ASC for the Respondents. As noted in the narrative above, in detail that the order for the cancellation of conveyance deed through private treaty (dated 29.10.1994), was passed by the Member (Colonies) BoR through detailed order dated 4.7.98 (page 78 CPLA NO.2364 of 2015) pursuant to various representation and essentially on the directions made in WP No. 4039 of 1995. Therefore, it cannot be said that the impugned sale was either cancelled on the direction of the Chief Minister or for that matter in dictated exercise of jurisdiction/force command, of the Chief Executive of the Province. It may be observed that it was the Review Petitioner, as observed by this Court, in earlier round culminated into judgment reported as Mian Asghar Ali (Supra) who “exerted political influences with provincial hierarchy got 8 marlas plus prime commercial land situated within the compound of Municipal Committee, Sahiwal from Member BOR, securing relaxation of ban from Chief Minister, C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 5 Punjab, precipitating in sale deed dated 29.10.1994, in violation of Municipal committee’s Policy keeping the later in darkness” against, which the Civil Review Petitions, were also dismissed as withdrawn and matter of cancellation of conveyance deed for all practical purposes attained finality and a fait accompli. No exception to the cancellation of sale deed obtained by the Review petitioner by misrepresentation and through fraudulent means, by the Member (C) BOR, under section 30(2) of Colonization of Government Land Act, 1912 could now be agitated in subsequent proceedings, founded entirely on different cause of action obliquely. 14. It may not be out of place to mention that the controversy raised by the Petitioner culminating into present Review Petition is not arising out of the order (dated 4.7.1998), of cancellation of sale deed by way of private treaty but, the order dated 16.06.2010 passed by the Member (Colonies) BoR, whereby his request for the allotment of alternate land was declined for valid reasons. 15. This brings us to second challenge posed by the Review Petitioner that the learned Division Bench in High Court had no jurisdiction to convert an ICA into a review application, which is to be heard and decided by the same Bench/Judge, of which order is subject to review, arguments seemingly persuasive received our anxious consideration, we have examined large number of case law relied upon by the Review Petitioner. There is no cavil to the proposition expounded by the (15 members) Full Bench of this Court in the case of Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan (PLD 2010 Supreme Court483), wherein at page 528; it was held that scope of review is much different and the review jurisdiction is substantially and materially different to the appellate jurisdiction, because it can only be utilized on specific grounds mentioned in Order XLII Rule 1 to 6 of Code of Civil Procedure, 1908, similar view was followed by a five member Bench of this Courtin a recent pronouncement in the case of Jamshoro Joint Venture Ltd. v. Khawaja Muhammad Asif (2014 SCMR 1858 @ 1874). The Petitioner in person has also relied upon Jalal Din and another v. Major Muhammad Akram Khan, Member Border Area Committee, Lahore and others (PLD 1963 (W.P) Lahore 596) and Lt. Col. Nawabzada Muhammad Amir Khan v. (1) The Controller of Estate Duty Government C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 6 of Pakistan, Karachi and (2) Pakistan, through the Secretary, Ministry of Finance, Government of Pakistan, Rawalpindi (PLD 1962 Supreme Court335) in support of above proposition. 16. Courts are sanctuaries of justice, exercises and derive jurisdiction and authority to adjudicate and determine rights and obligations of disputants in accordance with the Constitution and law. This is not the occasion, to dilate in detail the origin of Courts and various jurisdictions that may be exercised by different tier of Courts created and established under the Constitution and law. Article 175, of the Constitution of Pakistan, 1973 as expounded by this Court in the case of S.M.Waseem Ashraf v. Federation of Pakistan through Secretary M/o Housing and Works, Islamabad and others (2013 SCMR 338 @ 345), resonate the principle that no Court should exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction had been conferred upon it by the Constitution itself or under any law. Courts exercises original, appellate, revisional, review or constitutional jurisdiction as mandated under the Constitution and the law. Parameters are laid down in substantive and procedural law defining the scope and limitation within which such jurisdiction is to be exercised by the Courts. For the purposes of present controversy, suffice it to say that there is marked difference, between the Appellate Jurisdiction and Review Jurisdiction. Appellate Jurisdiction is always exercised by a higher court/forum/authority or a level above the court/forum/authority that adjudicated and decided the lis, whereas the review jurisdiction arms the very Court/forum/authority to correct its own mistake or error that crept in the order or decree and is apparent on the face of record. Right to seek Review is substantive right conferred by law that enables the Court (may be in original, appellate, revisional or constitutional jurisdiction), which decided the lis before it to, correct its own mistake, or error on grounds specified and in the manner circumscribed by Constitution, any special statute governing review and where applicable under section 114 read with Order XLVII Rule 1 to 6 of CPC. 17. In the case of Mohiuddin Molla v. (1) The Province of East Pakistan (2) Abdus Sobhan and (3) Ketab Ali (PLD 1962 Supreme Court119) it was held by a full Bench of this Court, that the Civil Procedure Code does not create new powers but regulates the exercise C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 7 of powers already possessed by the Courts. Even before the CPC, 1908 was enacted the Civil Courts possessed powers of the kind mentioned in CPC. The Civil Courts possessed these powers because they have jurisdiction to determine and protect the civil rights and for protection of these rights the exercise of such power is essential. Courts are sanctuaries of justice, and by nature of its existence is possessed of inherent authority to do ex debito justitiae, that is to say issue such directions, order or decree as may be necessary for doing complete justice, to make such order as may be necessary for the ends of justice or to prevent abuse of the process of law and to secure the ends of justice, which find manifestation in constitutional and other legislative instruments (see Article 187 subject to Article 175 (2) of the Constitution, 1973, Section 151 Code of Civil Procedure, 1908; and Section 561-A Cr.P.C). 18. Power to convert and or treat one kind of proceeding into another is derived from authority to do ex debito justitiae, which always existed and have always been exercised by the Court not only to advance the cause of justice but also to prevent the injustice. No fetters or bar could be placed on the High Court and or this Court to convert and treat one type of proceeding into another and proceed to decide the matter either itself provided it has jurisdiction over the lis that has fallen on its lap for adjudication in exercise of another jurisdiction vested in the very Court or may remit the lis to the court/forum/authority of competent jurisdiction for decision of the lis on its own merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. In the case of Jane Margrete William v. Abdul Hamid Mian (1994 SCMR 1555), CMA under section 151 CPC filed in the High Court, was treated as cross objection. In the case of Capital Development Authority v. Khuda Bakhsh and 5 others (1994 SCMR 771), where the High Court converted the CMA filed in a disposed off Writ Petition as a separate Writ Petition and decided the same accordingly, this Court held if the High Court was satisfied that circumstances of the case justified conversion of Miscellaneous Application filed by the Respondent in a disposed off case into proceedings under Article 199 of the Constitution of Pakistan, there is no legal bar to such conversion of proceedings. Even objection as to non issuance of notice before such conversion, was not considered fatal by this Court. Even time consumed pursuing remedy before a C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 8 wrong forum or jurisdiction in appropriate cases is condoned (see Shamsul Haq and others v. Mst. Ghoti and 8 others (1991 SCMR 1135). In a case cited as Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539), eligibility for consideration of promotion; was successfully challenged in writ jurisdiction of the High Court. On appeal, this Court came to a conclusion that such question falls within the competence of Service Tribunal, therefore, writ is not maintainable. Consequently impugned judgment passed by the High Court in exercise of writ jurisdiction was set aside and in paragraph 16 of the judgment supra this Court treated the Writ Petition as Service Appeal pending before the Service Tribunal with direction to decide the same after notice to the parties concerned in accordance with law. In similar circumstances in a judgment recently reported as Province of Sindh and another v. Muhammad Ilyas and others (2016 SCMR 189) dismissal from service order was challenged before the learned Sindh High Court through Constitution Petition. The Constitutional Petition was treated by the High Court as service appeal and sent to the Service Tribunal; which was decided by the Service Tribunal on merit and this Court declined leave in the matter. Similar course was followed by the learned Division Bench of Peshawar High Court in a case reported as Engineer Musharaf Shah v. Government of Khyber Pakhtunkhwa through Chief Secretary and 2 others (2015 PLC (C.S) 215). In the cases reported as The Thal Engineering Industries Lt. v. The Bank of Bahawalpur Ltd. and another (1979 SCMR 32), Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 Supreme Court139) and Capital Development Authority (Supra) similar course was followed. 19. As noted above, Appellate and Review Jurisdiction are two separate and distinct jurisdictions, regulated and governed with concomitant limitation prescribed by law. As noted above, authority to review decree or order is possessed by the very Judge/Court or forum/authority, which passed the decree or order and by no other Judge/Court forum/authority. Exception to the exercise of such review jurisdiction by a judge or Court other than the one that passed the decree or order (not being High Court) is provided under rule 2 of Order LXVII, whereby a judge, successor to the judge who passed decree or order subject to review, enjoys plenary powers to hear and decide review application which fall within the parameter prescribed by Rule 1 and set out in Rule 2 of Order XLVII CPC. In terms of rule 5 ibid, C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 9 where the Judge or Judges of High Court or any one of the Judges who passed the decree or made the order under review continues or continue to be attached to the High Court and is not precluded by absence or other cause for a period of six months next after the application for review is made, it is only such Judge or Judges or any of them shall hear and decide the Review Application. However where the eventuality of seeking review is not covered by Rule 5 of Order XLVII CPC, than another exception to general rule to hear and decide the Review Application by the same Judge is catered for in Rule 3, part ‘B’ to Chapter 3 of the Rules and Orders of the Lahore High Court, Lahore Volume-V, Relating To Proceedings In The High Court; (LHC Rules) as amended, which reads as follows:- “3. In cases not provided for by Order XLVII rule 5 of the Civil Procedure Code, an application for a review of a decree or order shall be heard: (a) if the decree or order , review of which is applied for, was passed by a Judge sitting alone, by a Bench of two or more Judges, or (b) if the said decree or order was passed by a Bench of two or more Judges, by a Bench consisting of at least as many Judges as the Bench review of whose decree or order is applied for” 20. Said Rule also came up for consideration in the case of Shabbir Ahmed and another v. Akhtar Alam and others (PLD 1994 Supreme Court598). In cited case, Controversy that was agitated before this Court was whether provision of Order XLVII Rule 5 CPC were applicable for review in constitutional petition under Article 199 of the constitution and applicability of Rule 5 of Chapter 3-B of Volume V of LHC Rules, this Court came to a conclusion that where a division bench passed the order and when occasion to hear review arose one of the two judges was available in terms of rule 5 of Order XLVII CPC was competent to hear and not by Rule 5 of LHC Rules (which inter-alia provide “The chief Justice shall nominate the Judges constituting a Division bench or full Bench). In Sindh High Court generally writ jurisdiction is exercised by Division Bench (barring few exceptions like in family or rent cases where single Judge entertains writ petitions). In Lahore High unless provided by law or by the rules or by special order of the Chief Justice all cases are heard and disposed off by a Judge sitting alone. 21. In the light of discussion made above it is to be seen whether instant case fall within the exceptions as postulated in the C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 10 provisions noted above or otherwise. Instant case, was originally decided in exercise of writ jurisdiction by a learned Single Judge of the Lahore High Court, who was no more available on the strength of the Lahore High Court, when the subject ICAs came up for consideration before the leaned Division Bench of the Lahore High Court and the learned Bench came to a conclusion that ICAs are not maintainable, considered it to be a fit case for Review. Had the learned single Judge been available on the strength of the Lahore High Court learned division bench after the conversion of ICAs into Review Application, could have remitted the Review application for the decision of the same learned Judge in accordance with rule 5 of Order XLVII CPC. However record shows that the same Judge was not available. The eventuality is not covered by Rule 5 of Order XLVII CPC therefore, in exercise of authority in terms of the Rule 3 of Part ‘B’ of Chapter 3 of the LHC Rules as reproduced above are attracted and, it was only a learned Bench of two or more Judges that was competent to hear and decide Review Application arising out of decree or order , review of which is applied for, was passed by a Judge sitting alone. In this view of the matter, learned Division Bench, being cognizant of the stated position of law, as noted above observed “However, the facts and the merits of the case have forced us to convert these ICAs into review applications, so that the matter may be adjudicated upon merits as the learned single (Judge) who originally passed the impugned order is no more on the strength of this Court” …….” and a Division Bench is competent to hear the same, resultantly by invoking all the provisions in this regard we convert these ICAs into review applications…” Therefore, no exception to assumption of jurisdiction by the learned Division Bench of the Lahore High Court converting ICAs against the order of the learned single Judge into Review Application could be taken. 22. Objection of the petitioner in person, that no notice was given to him before the conversion of ICAs into Review Application was given, is of no significance, particularly he had notice of ICAs and when no prejudice was caused or shown to have been caused to him on merits of the case. Objection of the similar nature, that no notice before conversion of one proceeding into another were also discarded by this Court in the case of Capital Development Authority (Supra). C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 11 23. This bring us to see whether grounds of Review within the Contemplation of sub-rule (1) of rule 1 and rule (2) of Order LXVII CPC read with section 114 CPC were available to the learned Bench that is to say a), on discovery of new and important matter or evidence, which after the exercise or due diligence, was not within the applicants knowledge or could not be produced by him at the time when the decree was passed or order was made b), or on account of some mistake or error apparent on the face of the record and thirdly c), for any other sufficient reason. 24. We have examined the ICAs in ground d) it was urged that report of the Member (C) CBR dated 9.3.2009 prepared and submitted in compliance with the order dated 12.1.2009 escaped the notice of learned single judge and ground e) that order dated 16.12.2004 dismissing CPLA Nos. 2466, 2467 & 2468 of 2004 and the order dated 28.07.2009 dismissing CRP as withdrawn were not taken into consideration by the learned single Judge were the grounds within the contemplation of Review Jurisdiction as envisioned by rule 1 of Order XLVII CPC. As the Judgment of the learned Single Judge, subject matter of Review, was based on erroneous assumption of fact that there was direction of this Court for allotment of alternate land, where as there was no such direction. This Court in earlier round in CRP merely vide order dated 12.01.2009 directed the Member (C) BOR, to summon the record of previous land and alternate land, afford the parties of an opportunity of hearing to the parties and decide the matter within one month.” The report dated 9.3.2009 was submitted by the Member (C) BOR, in said CRPs informing this Court, that there is no provision in the Act of 1912 nor there is any policy of the Government whereby alternate land could be given in like cases, consequently CRPs were withdrawn on 28.7.2009 we have noted that reason for exercising review jurisdiction is manifest from paragraph 9 of the order dated 25.6.2015 which reads as follows:- “The learned Single Judge while passing the impugned order in Chamber was under the misconception that the Hon’ble Supreme Court had given a verdict for the allotment of alternate land in favour of respondent No.1. There was neither such verdict nor any final order available by means of which the apex Court held so. Any interlocutory or ancillary order and even the passing remarks of a Court of law given during the pendency of lis cannot be termed as its final conclusion. There is no cavil with the proposition that all the interlocutory orders merged into the final order or judgment. Admittedly the review petitions filed by respondent No.1 were finally dismissed as withdrawn and if the argument of learned counsel for respondent No.1 is admitted that any interlocutory C.R.P. No.100 of 2016 in C.P. No.2364 of 2015 & C.R.P. No.101 of 2016 in C.P. No.2365 of 2015 12 order for allotment of alternate land was made, then the same has to be merged into the dismissal order dated 28.7.2009. The learned Single Judge in Chamber committed material error while allowing the writ petition filed by respondent No.1, which is floating on the surface or record and the impugned order is bound to be set aside.” (under lined to add emphasis) 25. In this view of the matter learned Division Bench under the given facts and circumstances was justified to convert the ICAs into review applications and decide the same in accordance with the parameters laid down for the exercise of review jurisdiction. No other ground was urged before us. Review Petitioner cannot be allowed to reopen the case of cancellation of land acquired by him through private treaty or to reargue the case afresh in the garb of instant Civil Review Petitions. No error of fact or law was pointed out floating on the face of record. In view of the foregoing discussion, no exception to the judgment under review dated 31.12.2015, passed in Civil Petitions No.2364 & 2365 of 2015 is called for. Accordingly, these review petitions are dismissed. Judge Judge ISLAMABAD, THE 29th September, 2016 Arshed Not Approved for Reporting

IN THE SUPREME COURT OF PAKISTAN ( Review Jurisdiction ) PRESENT: MR. JUSTICE NASIR-UL-MULK, HCJ. MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY CIVIL REVIEW PETITION NO.193 OF 2013 ETC C.R.P. No.193/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Ali Azhar Khan Baloch Vs. Province of Sindh etc C.R.P. No.194/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) S. M. Kaleem Makki Vs. Dr. Nasimul Ghani Sahito C.R.P. No.199/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Province of Sindh etc Vs. Farooq Azam Memon and others C.R.P. No.203/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) S. M. Kaleem Makki Vs. Farooq Azam Memon C.R.P. No.204/2013 IN S.M.R.P. NO.239/2013 IN CONST.P.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Syed Abid Ali Shah Vs. Farooq Azam Memon and others C.M.A. No.6628/2013 IN S.M.R.P.239/2013 IN CA.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Appeal No.12-K/2012) Shiraz Asghar Shaikh Vs. Dr. Nasimul Ghani Sahito and others C.R.P. No.392/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Imdad Ali Solangi and others Vs. Province of Sindh and others C.R.P. NO.388/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Ghulam Mustafa Zardari Vs. Province of Sindh and others CRP.No.193/2013 etc 2 C.R.P. No.393/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Mujeeb-ur-Rehman Shaikh Vs. Province of Sindh and others CMA. No.4568/2013 in CRP No.NIL/2013 in CA.98-K/2010 (On review against judgment 12.6.2013 passed by this Court in Crl. O.P.89/2011) Rafique Ahmed Abbasi Vs. Chief Secretary, Govt. of Sindh and others C.R.P. NO.387/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Imdad Memon and others Vs. Province of Sindh and others C.R.P. No.410/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Jasoo Ram Vs. Nasimul Ghani Sahito and others C.R.P. NO.391/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Nisar Ahmed Brohi Vs. Province of Sindh and others C.R.P. No.389/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Hameedullah Vs. Province of Sindh and others C.R.P. NO.394/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Muhammad Rafique Qureshi Vs. Province of Sindh and others C.R.P. NO.409/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Mukhtiar Ali and others Vs. Province of Sindh and others C.R.P. No.390/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Saifullah Phulphoto Vs. Province of Sindh and others C.R.P. No.396/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Dost Ali Balouch Vs. Province of Sindh and others CRP.No.193/2013 etc 3 C.R.P. No.397/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Manzoor Ahmed Sheikh and another Vs. Province of Sindh and others C.R.P. No.407/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Shahid Hussain Mahessar Vs. Province of Sindh thr. Chief Secy. and others C.R.P. No.398/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Muhammad Riaz and another Vs. Province of Sindh and others C.R.P. No.408/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Muhammad Rizwan Soomro Vs. Province of Sindh and others C.R.P. No.411/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Zameer Ahmed Vs. Province of Sindh and others C.R.P. No.399/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Imran Hussain Jafri Vs. Farooq Azam Memon and others C.R.P. No.400/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Syed Ahmed Sheikh & another Vs. Province of Sindh and others C.R.P.NO.401/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Gul Hassan Zardari Vs. Province of Sindh and others C.R.P. NO.402/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Shamsuddin Shaikh Vs. Province of Sindh and others C.R.P. No.403/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Nisamuddin Shaikh Vs. Province of Sindh and others CRP.No.193/2013 etc 4 C.R.P. No.125/2014 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Dr. Atta Muhammad Panhwar Vs. Province of Sindh and others CRL.R.P. No.70/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Yar Muhammad Bozdar Vs. Province of Sindh and others CRL.R.P. No.71/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Muhammad Jaffar Abbasi Vs. Province of Sindh and others CRL.R.P. No.72/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Syed Altaf Ali and others Vs. Chief Secretary Sindh and others CRL.R.P. No.73/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Nizamuddin and others Vs. Province of Sindh thr. Chief Secy. Sindh and others CRL.R.P. No.74/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Ghulam Nabi Babar Jamali and another Vs. Chief Secretary Sindh, etc CRL.R.P. No.75/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Ghulam Hussain Korai Vs. Province of Sindh etc CRL.R.P. No.76/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Hafiz Safdar Shaikh Vs. Javed Ahmed and others CRL.R.P.NO.77/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Talib Magsi Vs. Province of Sindh thr. Chief Secretary and others CRL.R.P. No.78/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Dur Muhammad Panhawar Vs. Province of Sindh, etc CRP.No.193/2013 etc 5 CRL.R.P. No.79/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Syed Shakir Hussain Shah Vs. Province of Sindh thr. its Chief Secy. and others CRL.R.P. No.80/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Mirza Shahbaz Mughal Vs. Province of Sindh and others CRL.R.P. No.81/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Tariq Mughal Vs. Chief Secy. Govt. of Sindh CRL.R.P. No.82/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) M. Hanif Solangi Vs. Chief Secy. Govt. of Sindh CRL.R.P. No.83/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Inayatullah Qureshi Vs. Province of Sindh and others CRL.R.P. No.84/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Khurram Waris Vs. Chief Secretary Sindh CRL.M.A. No.860/2013 IN CRL.R.P.NIL/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Mir Hussain Ahmed Lehri Vs. Javed Ahmed and others CRL.R.P. No.39/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Munir Ahmed Phulphoto Vs. Province of Sindh CRL.R.P. No.40/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Atta Muhammad Memon Vs. The Chief Secy. Govt. of Sindh C.R.P. No.412/2013 IN CMA.310-K/2012 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Qamaruddin Shaikh Vs. Secy. Local Govt. and others CRP.No.193/2013 etc 6 CRL.R.P. No.38/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Mrs.Asma Shahid Siddiqui Vs. Chief Secy. Province of Sindh CRL.R.P. No.41/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Ali Murad Abro Vs. The Chief Secretary, Govt. of Sindh CIVIL PETITION NO.968/2014 (On appeal against the judgment dated 13.5.2014 passed by the High Court of Sindh, Circuit Larkana in CP.D-538/2014) Saleem Ullah Vs. Province of Sindh, thr. Chief Secy. and others ATTENDANCE For the Petitioner(s)/Appellant(s) (CRP.199/2013) : Sarwar Khan Add. A.G Sindh Abdul Fateh Malik A.G. Sindh Rafique Mustafa Shaikh Add. Secretary Services(S&GAD) Ghulam Ali Bharmani Dy. Secretary Services(S&GAD) (CRP.203/2013) : Mr. Shabbir Ahmed Awan ASC (CRP.392/2013) : Syed Iftikhar Hussain Gillani Sr. ASC (Crl.RP.72/2013). : Syed Ali Zafar ASC (CRP.388, 391, 389, 390, 397/2013, & Crl.RP 73/2013 : Raja Muhammad Ibrahim Satti Sr. ASC Crl.RPs. 70 & 71/2013. CP.968/2014 : Mr. Tariq Mehmood Sr. ASC C.R.P. 194/2013. : Raja Muhammad Asghar Khan ASC C.R.P. 204/2013. : Shabbir Ahmed Awan ASC appeared and submitted written arguments on behalf of Mr. Ibadul Hasanin ASC C.R.P. 393/2013. C.R.Ps.407 & 408/2013 CRP.400, 411/2013 : Mr. Abdul Rahim Bhatti ASC C.M.A.4568/2013 in CRP Nil/13 in C.A. 98-K/2010. Crl.R.P.38/2014 Crl.R.P.75/2013 CRP.401/2013 Crl.R.P.40 & 41/2014 : In Person CRP.No.193/2013 etc 7 C.R.P. 387/2013. : Mr. Hamid Khan Sr.ASC C.R.P. 193/2013. CRP.396/2013 CRP.125/2014 : Dr. Farough Naseem, ASC C.R.P. 409/2013 For petitioner 1-3 Crl.O.P.121/2013 Crl.M.A.760/2013 in Crl.O.P.89/2011 : Mr. M.Aqil Awan, Sr. ASC C.R.P.409/2013 For petitioner 4-8 CRP.394/2013 : Baz Muhammad Kakar, ASC C.R.P.399/2013 Crl.R.P.76/2013 Crl.R.P.83/2013 Crl.M.A.860/2013 in Crl.R.P.Nil/2013 in Crlo.O.89/2011 : Mr. Shabbir Ahmed Awan, ASC C.R.P.410/2013 : Mr. Abdur Rehman Siddiqui, ASC CRP.398/2013 CRP.412/2013 : Mr. M. Shoaib Shaheen, ASC CRPs.402, 403/2013 : Mr. Khurram Mumtaz Hashmi, ASC Crl.R.P.74/2013, : Mr. Adnan Iqbal Ch. ASC Crl.R.P.77/2013 : Mr. Yawar Farooqui, ASC Crl.R.P.79/2013 : Rana Azam-ul-Hassan, ASC Crl.R.P.80/2013 : Mr. Abid S. Zuberi, ASC Crl.R.P.78/2013 Crl.R.P.84/2013 : Mr. Irfan Qadir, ASC Crl.R.Ps.81&82/2013 : Mr. M. Munir Paracha, ASC CMA.6628/2013 in SMRP.239/2013 : Mr. Anwar Mansoor Khan, Sr. ASC Crl.M.A.460/2013 in Crl.O.P.89/2011 : Nemo. Crl.O.P.103/2013 : Mian Abdul Rauf, ASC Crl.R.P.39/2014 : Mr. Z. K. Jatoi, ASC For respondent(s) For Govt. of Sindh. : Sarwar Khan Add. A.G Sindh Abdul Fateh Malik A.G. Sindh Rafique Mustafa Shaikh, Add. Secretary Services(S&GAD) Ghulam Ali Bharmani, Dy. Secretary Services(S&GAD) CRP.No.193/2013 etc 8 Date of hearings : 5th, 6th, 10th June, 2014, 15th to 17th & 21st to 24th October, 2014. JUDGMENT AMIR HANI MUSLIM, J.- CRP No. 199/2013 Province of Sindh etc vs. Farooq Azam Memon by Mr. Sarwar Khan, Addl. AG Sindh The Additional Advocate General Sindh has contended that Constitutional Petitions No.71/2011, 21, 23 and 24/2013, filed by the Petitioners under Article 184(3) of the Constitution, challenging the vires of the six impugned legislative instruments were not competent. According to him, the issues raised in these Petitions were not of public importance. He contended that individual grievances of 30 Civil Servants relatable to the terms and conditions of service fall outside the purview of Article 184(3) of the Constitution. He contended that in such cases this Court, time and again, has declined to entertain such Petitions. While relying upon the case of Ishtiaq Ahmed Sheikh and others v. M/s UBL and others (PLD 2006 SC 94), the learned Addl. Advocate General has contended that Article 184(3) has excluded adjudication of service matters. He next contended that the Petitioners could have approached the Sindh Service Tribunal for redressal of their grievances, which was equally competent to examine the vires of the legislative instruments. 2. He further contended that the Petitioners have failed to establish that their fundamental rights were violated by promulgation of the impugned legislative instruments, to give CRP.No.193/2013 etc 9 cause to them to invoke jurisdiction of this Court under Article 184(3). In support of his contentions, he has relied upon the judgments in the cases of All Pakistan Newspapers Society (APNS) etc v. Federation of Pakistan and others (PLD 2004 SC 600) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455). 3. He next contended that the judgment under review has made Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 redundant, as the powers exercised by the competent authority under the said rule have been done away with. He contended that the principles enunciated by the impugned judgment were applied retrospectively. According to the learned Addl. Advocate General, if the law is declared ultra vires of the Constitution, the effect of such declaration would operate prospectively. In support of this contention, he has relied upon the cases of Muhammad Younis and others v. Essa Jan and others (2009 SCMR 1169) and Mazhar Ali vs. Federation of Pakistan/President of Pakistan thr. the Secretary Establishment Division, and others (1992 SCMR 435). He further contended that the Officers/employees serving in different departments of the Sindh Government for years together, were ordered to be repatriated to their Parent Departments, after the termination of their lien by lapse of time. The learned Addl. AG contended that the impugned judgment has attributed mala fides to the legislature, which finding is against the settled principles of law. He has relied upon the judgment in the case of Fauji Foundation and another vs. Shamimur Rehman (PLD 1983 SC 457) and prayed that the review be allowed on the aforesaid grounds. CRP.No.193/2013 etc 10 CRP No. 388,389,390,391,397 of 2013 & Crl.R.P 73/2013 By Raja M. Ibrahim Satti, Sr. ASC (CRP.388/2013) Ghulam Mustafa Zardari v. Province of Sindh etc (CRP.389/2013) Hameedullah v. Province of Sindh and others (CRP.390/2013) Saifullah Phulpoto v. Province of Sindh etc (CRP.391/2013) Nisar Ahmed Brohi v. Province of Sindh and others (CRP.397/2013) Manzoor Ahmed Sheikh etc v. Province of Sindh and others (Crl.R.P.73/2013) Nizamuddin and others v. Province of Sindh thr. its Chief Secretary Sindh and others 4 Raja M. Ibrahim Satti, learned Counsel for Petitioner(s) has contended that this Court has examined the vires of legislative instruments while interpreting the Articles of the Constitution without issuing notices to the Attorney General for Pakistan in terms of Order XXVII-A Rule 1 CPC, therefore, the impugned judgment is not sustainable. In support of his contention he has relied upon the case of Federation of Pakistan thr. Secy, M/o of Law etc v. Aftab Ahmed Khan Sherpao (PLD 1992 SC 723). He next contended that the Petition was not maintainable under Article 184(3) of the Constitution as the Petitioners were seeking redressal of their individual grievances and were not seeking enforcement of their fundamental rights. 5. It was next contended by the learned Counsel that mala fides could not be attributed to the Provincial Legislature, which has passed the legislative instruments, in exercise of the powers guaranteed by the Constitution. According to the learned Counsel, the Provincial Legislature was competent to legislate law, which is their divine right, therefore, the legislative instruments were wrongly struck down. He in support of his contentions has relied upon the case of Imran ullah v. the Crown (PLD 1954 Federal Court 123). 6. He further contended that in compliance with the impugned judgment, the Sindh Chief Secretary has issued CRP.No.193/2013 etc 11 notification repatriating the Petitioners to their parent Departments, without affording them the right of audience. The learned Counsel further argued that the issue of ‘absorption’ of the Petitioners was a past and closed transaction; and by the impugned judgment this Honorable Court has erroneously undone absorption of the Petitioners by ordering their repatriation retrospectively. Crl.R.P. No. 72/2013 Syed Altaf Ali and others vs. Chief Secretary Sindh etc by Syed Ali Zafar, ASC 7. Syed Ali Zafar, Counsel for the Petitioners, has contended that this Honorable Court has wrongly entertained the issue of appointment of the Petitioners by nomination in excess of the prescribed quota in exercise of its original jurisdiction under Article 184(3) of the Constitution. According to the learned Counsel such an issue could only be adjudicated upon by this Court under Article 212(3) of the Constitution, which Article deals with the service matters. 8. He next contended that the Court ought to have decided the issue on merits and not on the basis of the list provided by the Sindh Government. The Counsel referred to Rule 5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964, which provides for promotion of various categories of Civil Servants by nomination. He submitted that if the appointments of the Petitioners by nomination are held to be illegal then all appointments made under Rule 5(4)(b) should be declared illegal and not just those nominated since 1994. He submitted that the aforesaid rule provides for preparation of lists B and C but no such CRP.No.193/2013 etc 12 lists were maintained by the Sindh Government for the nomination of the Petitioners as a consequence whereof they did not have the opportunity to challenge it. He submitted that a cut-off date should have been determined by the Sindh Government for examining the appointments made in excess of the quota. Lastly, the learned Counsel contended that departmental construction of a statute, though not binding, can be taken into consideration, especially when it was followed by the department consistently. In support of his contention he has relied upon the case of Muhammad Nadeem Arif and another v. Inspector-General of Police, Punjab, Lahore and others (2011 SCMR 408). Crl.RP No. 70/2013 Yar Muhammad Bozdar vs. Province of Sindh etc by Mr. Tariq Mahmood, Sr. ASC 9. Mr. Tariq Mehmood, learned Sr. ASC submitted that the Petitioner was a Superintendent in Board of Revenue, Government of Sindh. The recommendation for his appointment was made by the Member, Board of Revenue, Sindh in terms of Rule 5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964. A list was prepared in 2005 and the Petitioner was recommended for nomination, therefore, his case falls within the prescribed limit of the quota. It was further submitted by the learned Counsel that the Petitioner passed many departmental examinations which were not taken note of by this Court while passing the impugned judgment against the Petitioner. Crl. R.P. No. 71/2013 Muhammad Jaffar Abbasi v. Province of Sindh and others by Mr. Tariq Mahmood, Sr. ASC 10. Mr. Tariq Mehmood, the Counsel for Petitioner, submitted that the Petitioner was appointed as Deputy Secretary, CRP.No.193/2013 etc 13 Sindh Public Service Commission through competitive process. On 30.03.1995, the post was upgraded to BS-18. On 01.09.1999, the Petitioner was transferred to S & GAD and absorbed in the Provincial Secretariat Service. The notification of his absorption was cancelled. The Petitioner challenged the cancellation of the notification before the Sindh Service Tribunal. The Tribunal accepted his Appeal against which Sindh Government filed CPLA before this Honorable Court. The CPLA, however, was dismissed for non-prosecution and the application for restoration of the CPLA was also dismissed. Resultantly, the order of the Tribunal attained finality. However, the absorption of the Petitioner has again been cancelled, pursuant to the impugned judgment without taking note of the aforesaid facts. 11. He next contended that before absorption, the Petitioner was a Civil Servant working in the Sindh Public Service Commission, which is an attached department of the S & GAD Department, and therefore, such absorption could not have been withdrawn in terms of the findings of the impugned judgment. CRP No. 194/2013 S.M. Kaleem Makki vs. Dr. Nasimul Ghani Sahito by Raja M. Asghar Khan, ASC 12. The learned Counsel, Raja M. Asghar Khan submitted that in the year 1993, the Petitioner was appointed as Project Director in BS-19 in the Sindh Small Industries Corporation through advertisement. Subsequently, by notification dated 22.06.2000, he was declared surplus. On 30.09.2005, he was absorbed in Provincial Secretariat Service (PSS) under Rule 9A of the Sindh Civil Servants (Appointment, Promotion and Transfer) CRP.No.193/2013 etc 14 Rules, 1973. The learned Counsel contended that the absorption of the Petitioner in P.S.S. in the same scale was made after observing all the codal formalities; therefore, his appointment by absorption was valid. CRP No. 204/2013 Syed Abid Ali Shah (Retired) vs. Farooq Azam Memon etc by Mr. Abadul Hussnain, ASC 13. The learned Counsel submitted that in 1976 the Petitioner was appointed as Management Trainee in the Board of Management, Sindh for nationalized Ghee Industries. On 16.8.1997, he was appointed Managing Director at Maqbool Co. Ltd. when the Sindh Government requisitioned his services. On 24.10.1997, the Petitioner was sent on deputation for 3 years to the Ministry of Industries and Production. On 15.11.1997, he was appointed Cane Commissioner in BS-19. Then on 05.04.1998, he was transferred as DG, Bureau of Supply and Prices, Sindh. Subsequently, on 15.11.1998, he was repatriated to Ghee Corp. and on 14.01.1999, his services were placed at the disposal of Population Welfare Department (PWD). On 18.01.1999, he was appointed as Additional Secretary, PWD, and on 09.08.1999, he was absorbed in PWD in relaxation of rules. Then, on 30.09.1999, Ghee Corp. relieved him but on 18.12.1999, the Government issued a notification for repatriation of the Petitioner. However, on 21.12.1999, the Secretary of Sindh Government informed that the Petitioner has been absorbed, therefore, he cannot be repatriated. By notification, dated 18.1.2013, the Petitioner was absorbed in PSS. CRP.No.193/2013 etc 15 14. The learned Counsel contended that, in pursuance of the impugned judgment, he was de-notified on 02.07.2013 and repatriated to Ghee Corporation though he had been merged in Sindh Government in PSS cadre and Ghee Corporation had become defunct. The Appellant retired on attaining the age of superannuation, on 01.06.2014, one year after de-notification. CRP No. 393/2013 Mujeeb-ur-Rehman Shaikh vs. Province of Sindh by Mr. Abdul Rahim Bhatti, ASC 15. Mr. Abdul Rahim Bhatti, the learned ASC, contended that the Petitioner was initially appointed as Assistant Director in Agriculture Department in BS-17 in 1989 through Sindh Public Service Commission. Later, his services were requisitioned by the Environment Department, Government of Sindh for a period of two years in the public interest. A summary was moved for his transfer and, consequently, he was appointed in the Environment Department. On 13.10.2005, he was promoted as Deputy Director in BS-18 through Provincial Selection Board and was granted seniority. The Petitioner was not a party to the proceedings either in the High Court of Sindh or before this Court. He was repatriated to his parent department without considering that the Petitioner fulfilled all pre-requisites of his appointment in the Environment Department, as provided under Rule 9(1) of the Rules of 1974. The learned Counsel submitted that Petitioner was validly appointed by transfer under Rule 9(1), and not under Rule 9-A. 16. He further contended that the word ‘person’ used in Rule 9(1), clearly manifests the intention of the legislature that there is no bar to the appointment of the Petitioner by transfer CRP.No.193/2013 etc 16 under the A.P.T. Rules and in the other three Provinces and the Federation such transfers are ordered in routine. He next argued that the expression ‘person’ used in the Rule 9(1) does not mean Civil Servant only and includes a ‘Government Servant’, who may not be a Civil Servant. CRP No. 387/2013 in Const.P.71/2011 Imdad Memon and others vs. Province of Sindh and others by Mr. Hamid Khan, Sr. ASC 17. Mr. Hamid Khan, learned Counsel for the Petitioners, contended that none of the Petitioners was party to the proceedings; therefore, the Court could not have passed an order affecting their rights. He submitted that neither the High Court nor this Court (under Article 199 and Article 184(3) respectively) had the jurisdiction to examine the issue pertaining to the terms and conditions of service of a Civil Servant. The exercise of jurisdiction is barred under Article 212 of the Constitution. The issue of absorption is a matter relating to the terms and conditions of service, to be determined under the Civil Servants Act and the Rules framed thereunder. He submitted that a number of Petitions were filed by Civil Servants absorbed in the Secretariat Group in the High Court of Sindh, in ignorance of the fact that remedy was available to them before the Sindh Service Tribunal. Therefore, the Petitions were barred under Article 212 of the Constitution. The learned Counsel while relying upon the case reported in Superintending Engineer Highways Circle Multan vs. Muhammad Khurshid (2003 SCMR 1241), submitted that the matter of jurisdiction has not been dealt with in depth. He contended that Rule 9(1) and 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provide two modes of CRP.No.193/2013 etc 17 appointment by transfer and both these modes are recognized by law. 18. The learned Counsel submitted that Articles 240, 241 and 242 of the Constitution deal with the civil structure and Article 212 provides remedy to a Civil Servant. These Articles do not relate to fundamental rights. It has to be assessed in light of the aforementioned Articles whether the Supreme Court can adjudicate upon the issue relatable to the terms and conditions of service under Article 184(3). The learned Counsel contended that the Court has to draw a distinction between Article 184(3) and Article 212 while giving the findings. He contended that Article 240 empowers the Provincial Legislature to legislate laws relating to the terms and conditions of service of Civil Servants. 19. He next contended that in order to invoke the jurisdiction of this Court under Article 184(3), the expression ‘subject to the Constitution’ has to be given narrow meaning, as referred to in the Article 275. The learned Counsel submitted that Civil Servants do not have fundamental rights to invoke jurisdiction of this Court under Article 184(3) of the Constitution. According to the learned Counsel, benefit of Articles 9 and 25 of the Constitution cannot be extended to the Civil Servants. CRP No. 193/2013 Ali Azhar Khan Baloch v. Province of Sindh etc by Barrister Farough Naseem, ASC 20. The learned Counsel submitted that the Petitioner was employed as Deputy Manager at Pakistan Steel Mills (PSM), which works under the control of Ministry of Production. On 16.09.1992, upon the directive of the then Chief Minister, his services were CRP.No.193/2013 etc 18 placed at the disposal of the Government of Sindh. For two years, he performed duties at various departments in the Government of Sindh, e.g. on 6.03.1993, he was posted as Project Director, Lines Area, Redevelopment Project KDA in BS-18. Finally, on 25.07.1994, permission was granted for his absorption by the Establishment Division into the Government of Sindh. On 28.05.1994, the Petitioner was finally absorbed as Deputy Secretary in the Sindh Secretariat (PSS) and was placed at the bottom of the seniority list. His lien with the PSM was terminated in 1994. He earned promotions from time to time and finally he was promoted as Secretary (BS-21) in the Sindh Government, by Notification dated 28.9.2012. By notification dated 25.4.2013, issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan, he was appointed by transfer as Senior Joint Secretary (BS-21) in Secretariat Group and his services were placed at the disposal of the Wafaqi Mohtasib for his further posting. He is now posted as Director General of the Wafaqi Muhtasib. 21. The learned Counsel for the Petitioner contended that the cut off date for the application of the impugned decision was held as 1994, therefore, his case was not covered by the impugned judgment. The learned Counsel submitted that the cut off date of 1994 is not backed by any standard. The date given in the litigation in 1996 (in which the Petitioner’s case was decided) would be more suitable, which is 22.03.1995. The Counsel contended that the date of 1994 seems to be arbitrarily fixed. The learned Counsel cited the case Province of Punjab thr. Secretary C&W Department and others vs. Ibrar Younas Butt (2004 SCMR 67) in support of his submission. CRP.No.193/2013 etc 19 22. The learned Counsel then referred to Rule 5 of Framework of Rules and Procedure applicable to Secretariat, which provides that the appointment of Additional Secretary in the Federal Secretariat can be made from public servants or officials from public or private enterprises. The learned Counsel submitted that if there is such an option available in the Federation, why it should not be made available at the Provincial level. The Petitioner was an employee of PSM, which is a public enterprise. He further submitted that appointments cannot only be made through CSS examinations, citing the Police Service as an example. 23. Alternatively, the Counsel argued that the Petitioner is qualified to be adjusted under Rule 5 and he should either be allowed to go to the High Court and this Honorable Court may observe that the impugned judgment will not come in his way or this Court may give necessary directions to the Department. 24. The Counsel next contended that in pursuance of Services of Pakistan (Redressal of Under-Representation) Ordinance, 2012, on 01.12.2012, the Petitioner was appointed by transfer as Senior Joint Secretary in Secretariat Group in Federal Government on probation under section 6 of the Sindh Civil Servants Act, 1973. On 25.4.2013, the Petitioner was absorbed by the Federal Government and appointed at Wafaqi Muhtasib Secretariat. He submitted that the Federal Government realized that some Provinces were underrepresented, including Sindh and Balochistan. The Ordinance provided that officers could be taken from Provincial Civil Service and inducted under the Ordinance. Counsel submitted that the Petitioner’s appointment is valid as his CRP.No.193/2013 etc 20 services were placed in the Federal Government under the aforesaid Ordinance. 25. He next contended that the notification for the Petitioner’s absorption was issued prior to the impugned judgment i.e on 12.06.2013. He submitted that if the judgment has to be implemented retrospectively, the Petitioner should be repatriated in PSM and granted backdated seniority. CMA No. 4663/2013 in CRP No. 409/2013 Mukhtar Ali etc v. Province of Sindh etc by Mr. M. Aqil Awan, Sr.ASC 26. The learned Counsel, appearing for three Petitioners, Mukhtar Ali Pholijo, Muhammad Saleem Jokhio and Abdul Rashid, submitted that the persons against whom this judgment is being applied were not Civil Servants either before or after their absorption; they were just transferred from one cadre to another. 27. The Counsel submitted that Mukhtar Ali was appointed by Selection Board as a Medical Officer in BS-17 in Sindh Employee Social Security Institution (SESSI). By notification, dated 31.1.1996, he was absorbed in BS-17 in Sindh Council Service, Medical Branch. Before the impugned judgment was passed, the Petitioner was Administrator in District Municipal Corporation, Malir in Executive Cadre. 28. The second Petitioner, Muhammad Saleem, was an officer in City District Government Karachi in BS-18, Administrative cadre. The Counsel submitted that the Petitioner was employed in the same department but he was absorbed in another branch. The Counsel submitted that the services of the employees of KMC are regulated by the Sindh Local Government CRP.No.193/2013 etc 21 Ordinance 1979, whereas the services of the employees of the Councils are governed by the Sindh Councils Unified Grades Service Rules 1982. 29. The third Petitioner Abdul Rashid was appointed as Assistant Director, KMC in BS 16 on 21.03.1996. On 12.4.2003, he was promoted to BS-17 and on 19.04.2007, he was subsequently promoted to BS-18. He was employed as an officer in City District Council; the nomenclature kept changing according to the prevalent laws but, basically, he was an employee of the Municipal Corporation. On 12.2.2013, the Petitioner was absorbed in Sindh Councils Service and promoted to BS-19 on 12.2.2013. 30. The Counsel referred to Rule 12(5) of the Sindh Councils Unified Grade Service Rules, 1982, which provides for appointment by transfer. The learned Counsel contended that Mukhtar Ali’s appointment was not challenged but he had been repatriated to his parent office pursuant to the impugned judgment, which does not relate to non-Civil Servants per se. The impugned judgment was passed on 12.06.2013 and he was repatriated on 2.07.2013. The learned Counsel contended that since absorption has been declared illegal by the impugned judgment, the Petitioner, an officer of BS-19, has been repatriated to BS-17. 31. The learned Counsel submitted that the impugned judgment of this Court has curtailed a prevalent practice, which is permissible under the law. The learned Counsel contended that this Court needs to lay down the modalities of implementation and application of the impugned judgment. The modalities regarding deputation and absorption and the process of repatriation after CRP.No.193/2013 etc 22 illegal absorption should also be laid down. He contended that if an officer has been wrongly absorbed, a show cause notice should be issued, the grounds of repatriation should be mentioned and speaking order should be passed, which is justiciable. 32. The learned Counsel submitted that the impugned judgment does not apply to non-Civil Servants as they were not party to the original proceedings and no Counsel appeared on their behalf. He cited the cases of Fazal Ahmed Samito vs Province of Sindh (2010 PLC (CS) 215) and Zulfiqar Ali Domki vs Province of Sindh (2012 PLC (CS) 1176) and argued that KMC/Council employees are not Civil Servants. He further submitted that Rule 12 (5) of the Rules permits appointment by transfer. 33. The learned Counsel submitted that, firstly, the judgment should be prospective, particularly, when punitive consequences flow from its application. Secondly, he contended, that the judgment is against the principles of natural justice; the Petitioners were not party to the proceedings and they were not heard. Thirdly, the impugned judgment nullified all absorptions since 1994 even though all the absorptions were not challenged. Furthermore, past and closed transactions under the impugned legislations cannot be held to be unlawful. Fourthly, he contended that the law of deputation says that transfer should be made to a post in the same grade. Similarly, repatriation should also be made in the same grade to the parent department. Lastly, he submitted that the High Court should adjudicate on the matter whether a case is covered by the impugned judgment or otherwise. CRP.No.193/2013 etc 23 C.R.P. No. 407/2014 Shahid Hussain Mahessar vs. Province of Sindh etc by Mr. Abdul Rahim Bhatti, ASC 34. Mr. Abdul Rahim Bhatti, ASC, argued that on 27.7.1998, the Petitioner was initially appointed as Assistant Director (BS-17) in the I.S.I by the Federal Public Service Commission (FPSC), through competitive process. Subsequently, the F.P.S.C advertised posts of Deputy Director (BS-18) in the Intelligence Bureau. The Petitioner secured first position in the test and on 15.10.2005, he was appointed as Deputy Director in the I.B. In both organizations i.e. the I.S.I and the I.B, the Petitioner had undergone specialized training courses, which includes surveillance, interrogation and investigation. On 25.07.2009, initially his services were placed at the disposal of Government of Sindh on deputation basis for his posting in BS-18, as he belongs to Sindh Rural. Later on, through notification, dated 29.6.2012, (placed at page 234 of P.B), he was appointed as Superintendent of Police (BS-18) by way of appointment by transfer and he severed all connections from the I.B. 35. The learned Counsel stated that the Petitioner was not a party to the proceedings in which the impugned judgment has been passed. He further contended that as far as his qualification, specialized courses and length of service are concerned, they are in conformity with the Rules. He was not lacking any requirement. He then referred to Rule 3(2) of the Sindh Civil Servants A.P.T Rules. He contended that there is no bar against appointment as S.P and the Petitioner met all the requirements provided in Rule 3 (2) of the Rules. He referred to Serial No.9 of the Schedule to the Rules where the post of S.P is mentioned. CRP.No.193/2013 etc 24 36. The learned Counsel argued that the Petitioner joined the Special Branch of the Sindh Police and he fulfills all the conditions laid down for the Special Branch. He had undergone all the training courses in I.S.I and I.B. 37. He submitted that the provision of lateral entry is available in all the occupational groups and it is for the department to send him for training if the Petitioner lacks in some area. 38. He then referred to Rule 7(2) of the APT Rules and stated that the case of absorption of the Petitioner was duly examined by the appropriate Selection Board and was recommended by the two I.G.P’s and the Intelligence Bureau. Then the matter was referred to the S&GAD where it was further examined and a formal summary was moved to the Chief Minister who approved it and then notification of absorption of the Petitioner was issued in conformity with the Rules. 39. He submitted that there are cases in which officers from F.I.A were inducted in the Police and the Courts held their induction to be lawful. He submitted that if it was not permissible then there was no need to mention the post of the S.P at S.No.9 of the Schedule to the Rules. 40. The learned Counsel contended that the Petitioner was governed by the Sindh Civil Servants Act, 1973 and he was originally a Civil Servant in the I.B and the I.S.I and his services were placed at the disposal of the Sindh Government. 41. In support of his submissions he referred to the cases of 2004 SCMR 164 and 1993 SCMR 982 to state that even CRP.No.193/2013 etc 25 absorption of employees of autonomous bodies in the Government Department was held to be lawful. He then referred to the case of 2010 PLC (CS) 1415 and states that in this case the person who had not even received specialized police training, yet his appointment was held to be lawful. He then submitted that even if absorption or appointment by transfer is irregular, the department or the functionaries are held responsible and not the individuals. In support of his submissions he referred to the cases of 2013 SCMR 281, 1996 SCMR 413, 1996 SCMR 1350, 2006 SCMR 678 and 2002 SCMR 1034. He further contended that the impugned judgment would be prospective and not retrospective. In support of his contention he referred to the cases of 2009 SCMR 1169 and 2013 SCMR 34. He further contended that after the judgment, the Petitioner was repatriated to the I.B, which refused to take his services back under the pretext that his lien was terminated when he was appointed/absorbed in the Sindh Police. He submitted that the case of the Petitioner is that of hardship as he is not even drawing his salary from anywhere. C.R.P.No. 399 of 2013 Imran Hussain Jaffri v. Farooq Azam Memon and others by Mr. Shabbir Ahmed Awan, ASC 42. The learned Counsel, Mr. Shabbir Ahmed Awan, argued that on 12.7.2010, the Petitioner was appointed as System Analyst (BS-18) in the Criminal Prosecution Branch through the Sindh Public Service Commission. On 10.9.2011, he was declared surplus and absorbed in the Provincial Secretariat Group. 43. The learned Counsel referred to Rule 9 of the A.P.T Rules and argued that any person from any department can be appointed in PSS, who possesses the matching qualifications. The CRP.No.193/2013 etc 26 prescribed qualification for induction in PSS is merely graduation and the Petitioner has done M.Sc in I.T. He submitted that the Petitioner was validly absorbed in PSS under Rule 9 of the Rules. He contended that the Petitioner was not party to the main Petition in which the impugned judgment has been passed and the Petitioner has been condemned unheard. CRP No.410 OF 2013 Jasoo Ram vs. Nasim ul Ghani Sahto etc by Mr. Abdur Rehman Siddiqui, ASC 44. It is contended by Mr. Abdur Rehman Siddiqui, Counsel for the Petitioner that he will adopt the arguments of Mr. Abdul Rahim Bhatti, ASC on legal side. He contended that the Petitioner was posted as Deputy Director (BS-18) in Minority Affairs Department, Government of Sindh and was transfered and absorbed in BS-18 in ex-PCS cadre on 12.3.2013 and, subsequently, was posted as Deputy Secretary in Law Department on 3.4.2013. He contended that the Sindh Government in exercise of powers under Rule 9(1) of the APT Rules was competent to order absorption of the Petitioner. Pursuant to the judgment impugned in these proceedings, the Petitioner was de-notified and was ordered to be repatriated to his parent department. CRP No. 396 of 2013 Dost Ali Baloch vs. Province of Sindh etc by Dr. Farough Naseem, ASC 45. The learned Counsel, Barrister Farough Naseem submitted that the Petitioner was not party to the original proceedings. On 20.7.1986, he was inducted as Deputy Assistant Director in IB through the competitive examination in BS-17. On 27.12.1993, Special Branch of Sindh Police requisitioned the CRP.No.193/2013 etc 27 services of the Petitioner on deputation basis for a period of three years. By notification, dated 7.5.1994, the I.B relieved him of his duties to join the Special Branch of the Sindh Police as DSP. At times, the Sindh Police refused to repatriate the Petitioner to the I.B due to law and order situation in the Province. In the meanwhile, the Petitioner was promoted on 2.2.1997 in BS-18. In the intervening period, in 1993, the Petitioner passed the CSS examination, and was recommended to be appointed in the Office Management Group (OMG). The Petitioner made an Application to the Sindh Police to relieve him so that he could join the Civil Services Academy, but the Sindh Police refused to relieve him. The Petitioner was required to report to the Civil Services Academy by 15.12.1994, but, due to refusal of the Sindh Government, he could not take up his appointment in the OMG. According to the learned Counsel, the Petitioner kept on insisting for repatriation since 1995 but the Sindh Government has declined. The Petitioner has performed exceptionally well and, apart from performing his duties, he was organizing technical upgradation, etc. and his retention was required to maintain the continuity and consistency of the department. On 14.10.1998, a notification was issued with the approval of the competent authority, permanently absorbing the Petitioner as SP Political Special Branch, Sindh Police in relaxation of rules. 46. The learned Counsel referred to Rule 4 and Rule 10 of Sindh Civil Servants (APT) Rules, 1974 and Rule 4(3) of Sindh Public Service Commission Functions Rules, 1990 and contended that an officer can be appointed without competitive examination by the order of the Chief Minister. The learned Counsel submitted that all pubic powers are to be exercised fairly, justly and CRP.No.193/2013 etc 28 reasonably in furtherance of public interest. The Chief Minister cannot blindly do anything, but in exceptional cases like the present one, where the Government of Sindh was instrumental in preventing the Petitioner from joining the Civil Service the Petitioner who was highly qualified and was retained in Sindh Government to maintain law and order in Karachi, the competent authority was justified under Rule 4(3) to absorb the Petitioner in Sindh Government. 47. The learned Counsel stated that after rendering 20 years of service with the Sindh Police, the Sindh Government has repatriated the Petitioner when his lien had been terminated. He lost an opportunity to be part of the OMG due to non-relieving by the Sindh Government. He is an officer of BS-20, currently holding no post, and his lien in IB has also been terminated. Counsel then referred to the case of Muhammad Malik v. Province of Sindh (2011 PLC (CS) 1456) while submitting that the Petitioner cannot be compared to PSP because he is in a separate cadre, i.e. Sindh Police. The learned Counsel contended that the Petitioner is wrongly de-notified. CRP No. 398 of 2013 Muhammad Riaz etc vs. Province of Sindh etc by Mr. M. Shoaib Shaheen, ASC 48. Mr. M. Shoaib Shaheen, learned ASC submitted that the Petitioner was a regular employee of the Anti Narcotics Forces (ANF) since 1989 and was working as Assistant Director in BS-17 when on 13.5.2003, he was transferred and posted on deputation as DSP in the Sindh Police. The Petitioner was absorbed by notification, dated 26.02.2008, and promoted twice. There was a dispute regarding his seniority which was resolved by the Sindh CRP.No.193/2013 etc 29 Service Tribunal and the High Court of Sindh, approving the Petitioner’s backdated seniority and that matter attained finality. The learned Counsel in support of his contention has relied upon the case of Pir Bakhsh vs. The Chairman, Allotment Committee and others (PLD 1987 SC 145). The learned Counsel submitted that the Petitioner’s transfer from ANF to Police under Rules 3(2) and 9(1) of APT Rules, 1974, was justifiable. 49. The learned Counsel contended that the impugned judgment declares that absorption can only be made under Rule 9-A, however, absorption can also be made under Rule 9(1). The Counsel further stated that the Petitioner’s transfer has not been validated under the legislative instruments that have been struck down. He submitted that the impugned judgment does not clarify exactly which absorptions are illegal and that even legal appointees have been affected by the impugned judgment, and this Honorable Court must review this judgment. CRP No.387 of 2013 Imdad Memon and 2 others v. Province of Sindh etc by Mr. Hamid Khan, Sr. ASC 50. Mr. Hamid Khan, learned Sr.ASC, submitted that the Petitioners were validly appointed by transfer and absorbed. He submitted that Rules 9(1) provides for appointment by transfer, and by promotion. By the impugned judgment it has been held that an employee can only be absorbed under Rule 9-A but not under Rule 9(1). He submitted that Rule 9(1), has to be read with Rule 7(2) and (3) of the Rules. According to the learned Counsel the word ‘Person’ used in Rule 9(1) would include any person, and competent authority is conferred powers to appoint him by transfer which includes absorption in that post. The learned Counsel CRP.No.193/2013 etc 30 further submitted that lateral movement between the departments is permissible by the Rules of 1974. Crl.R.P.No.38 of 2014 Asma Shahid Siddiqui vs. Chief Secy. Govt. of Sindh In person 51. The Petitioner, appearing in person, argued that in the year 1996, she was appointed as Forest Ranger (BS-16) in the Forest Department on the recommendations of the Punjab Public Service Commission. She was married in 1996 and her husband was also a Forest Ranger in the Sindh Forest Department, therefore, she applied for inter-provincial transfer to the Forest Department, Government of Sindh, on the basis of Wedlock Policy. On 11.2.1997, she was absorbed in the Sindh Forest Department as Forest Officer (BS-16). She submitted that during the interregnum, she also qualified the Sindh Public Service Commission examination for appointment to the post of Assistant Registrar (BS-17) in the Co-operative Department, Government of Sindh, and she worked as such for some time, but due to future prospects she came back to the Forest Department. She contended that at the time of passing of the impugned judgment, she was working as Divisional Forest Officer, Hyderabad, when she was ordered to be repatriated to the Forest Department, Government of Punjab. She contended that her lien in the Government of the Punjab had been terminated, therefore, the Government of Punjab had refused to take her services back. She, therefore, requested that her notification of repatriation may be ordered to be withdrawn. CRP.No.193/2013 etc 31 C.R.P.No. 408 of 2013 in CA 12-K of 2012 Muhammad Rizwan Soomro vs. Province of Sindh etc by Mr. Abdul Rahim Bhatti, ASC 52. The learned Counsel argued that, on 11.7.2006, the Petitioner was appointed as Assistant Director (Investigation) in the NAB. On 2.4.2008, his services were requisitioned by the S&GAD, Sindh, for posting in Government of Sindh, on deputation basis; whereafter, on 10.5.2008, he was absorbed/inducted in the Sindh Police as DSP (BS-17). The learned Counsel submitted that Rule 9(1) of the Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 confers ample powers upon the competent authority to appoint a person by way of transfer and the procedure provided for appointment in these Rules was duly followed while making appointment of the Petitioner. He further contended that National Accountability Bureau is a subordinate office of the Ministry of Law and the Petitioner was a Civil Servant. C.R.P. No. 402 of 2013 (Shamsuddin Sheikh vs. Province of Sindh etc) C.R.P No. 403 of 2013 (Nizamuddin Sheikh vs. Province of Sindh etc) by Mr. Khurram Mumtaz Hashmi, ASC 53. Mr. Khurram Mumtaz Hashmi, learned ASC, for the Petitioners has contended that Petitioner in C.R.P.No.402 of 2013, the Petitioner was appointed as Sub-Engineer (BS-11) in Public Health Engineering Department, Government of Sindh, on 9.8.1984. On 29.9.1987, he was appointed as Assistant Engineer in Public Health Department and was again promoted as Executive Engineer (BS-18) on 6.10.1999. On 14.05.2005, the Government of Sindh S&GAD Department requisitioned the services of the Petitioner on deputation basis for an initial period of 2 years, for his posting in Works and Services Department. On 26.5.2007, the period of deputation was extended for another 2 years by the CRP.No.193/2013 etc 32 S&GAD Department, Government of Sindh. Consequently, on 8.10.2007, he was absorbed as executive Engineer (BS-18) in the Works and Service Department, Government of Sindh and his name was placed at the bottom of seniority list of Executive Engineers of the Department. The learned Counsel submitted that the Petitioner was transferred from one non-cadre to the other non-cadre post, therefore, his case is not covered by the judgment. 54. The learned Counsel submitted that the position of the Petitioner in C.R.P No.403 of 2013 was similar, as on 12.9.1994, he was appointed as Executive Engineer (BS-17) in Water and Sewerage Board, Karachi (KWSB). On 25.10.1994, the appointment of the Petitioner was regularized and on 27.10.2008, he was promoted as Executive Engineer (BS-18) in the KWSB. Consequently, on 18.8.2008 he was absorbed as Executive Engineer (BS-18) in the Works and Services Department, Government of Sindh. Lastly, he submitted that the impugned judgment is not a judgment in rem but is a judgment in personam. C.R.P No. 400 of 2013 in CP No. 71 of 2011 Saeed Ahmed Sheikh etc vs. Province of Sindh etc by Mr. Muhammad Ibrahim Bhatti, ASC 55. The learned Counsel contended that Petitioner No.1 was initially appointed as Section Officer in Provincial Secretariat Service (BS-17) on the recommendation of the Sindh Public Service Commission. On 26.11.2010, he was promoted as Deputy Secretary and on 14.3.2013, the notification of absorption of the Petitioner in ex-PCS in BS-18 in exercise of powers of section 24 of the Sindh Civil Servants Act, 1973 was issued. CRP.No.193/2013 etc 33 56. Petitioner No. 2 Gulshan Ahmad Sheikh was appointed vide notification, dated 29.10.1991 as Additional Private Secretary in Chief Minister Secretariat. In the intervening period, he was appointed as Protocol Officer and on 26.3.2008, the post was upgraded from BS-17 to BS-18. On 14.3.2013, he was absorbed in ex-PCS by CM, Sindh in exercise of power under section 24. 57. The learned Counsel contended that section 24 confers ample powers upon the competent Authority to absorb/induct an officer from one cadre to another cadre. Therefore, absorption of the Petitioner in ex-PCS was validly made. CRP. No. 411 of 2013 in CA.12-K of 2012 Zameer Ahmad Abbasi v. Province of Sindh etc by Mr. Abdul Rahim Bhatti, ASC 58. The learned Counsel contended that the Petitioner was initially appointed as Assistant Director (BS-17) in the National Accountability Bureau on the recommendations of the Federal Public Service Commission. He received specialized training from the National Police Academy Islamabad. The S&GAD Department Government of Sindh requisitioned the services of the Petitioner on deputation. Finally, on 29.2.2012, he was absorbed as DSP (BS-17) in Sindh Police by the S&GAD Department. The learned Counsel contended that the appointment of the Petitioner was made by transfer as per Rule 6(1) of the APT Rules. Therefore, his absorption in the Sindh Police was valid. He further contended that as per Recruitment Rules for the post of DSP, the post of DSP is a non-cadre post and the Petitioner was absorbed against the same. CRP.No.193/2013 etc 34 Crl.RP No.74 of 2013 Ghulam Nabi Babar Jamali etc v. Chief Secretary, Sindh by Mr. Adnan Iqbal Ch. ASC 59. Mr. Adnan Iqbal Ch, learned Counsel for the Petitioners submitted that the Petitioners were not party to the original proceedings. Petitioner No.1 is a Civil Diploma holder appointed initially on 01.06.1984 as Sub Engineer in BS-11 in the Irrigation Department. On 3.12.2003, he was promoted to BS-16 after a delay of 8 years; he had passed his examinations and was entitled to promotion in 1996. On 26.1.2004, he was promoted out of turn for ‘gallantry’ in performance of his duties to BS-17 as Assistant Engineer. 60. The learned Counsel submitted that on 22.8.1988, Petitioner No.2 was appointed as Sub Engineer in BS-11 in the Irrigation Department. On 22.8.1994, he was promoted from BS-11 to 16 and on 06.10.2003, he received out of turn promotion to BS-17. 61. The learned Counsel submitted that Section 9-A of the Sindh Civil Servants Act, 1973 and Rule 8B of the Sindh Civil Servants (APT) Rules, 1974 allow out of turn promotion and have not been struck down by the impugned judgment. Therefore, the portion of the impugned judgment that nullifies out of turn promotions needs to be revisited because the Rule that allows out of turn promotion is still on the statute book. 62. The learned Counsel submitted that Section 9-A is applicable to all and is not confined to the Police Personnel, so ‘promotion for gallantry act’ can be given to all Civil Servants. He submitted that the word gallantry has been used and defined in CRP.No.193/2013 etc 35 the Decorations Act, 1975. It states gallantry is a trait that could be exhibited by any Civil Servant regardless of opportunity presented to him in the field. If the opportunity of exhibiting gallantry only arises in the Police Department, it does not mean that other Civil Servants cannot display gallantry. He then referred to the use of the word gallantry in Article 259 of the Constitution. The learned Counsel submitted that the portion of the impugned judgment that confines Section 9A and Rule 8B to the Police Force should be removed. 63. He next contended that the phrase ‘beyond the call of duty’ used in section 9-A should be interpreted in a broader sense, so as to extend its benefit to all Civil Servants. He submitted that a Civil Servant can be granted out of turn promotion by applying this principle and the case of the Petitioner falls within Rule 8B. 64. He further submitted that Section 9-A was inserted in 2002, which prescribed mode for granting out of turn reward and award by Rules framed in 2005. Rule 8B was introduced in 2005, which provides for constitution of a committee to examine all out of turn promotions. Since the impugned legislations have been declared illegal by the judgment under review, the learned Counsel submitted that the decision of the High Court of Sindh is still in the field. The learned Counsel further contended that out of turn promotion was declared unlawful in Nadeem Arif v. IG Police, Punjab, Lahore (2010 PLC (CS) 924). However, before this judgment in 2010, out of turn promotions had been endorsed and approved in numerous judgments including Capt. (Retd.) Abdul Qayyum v. Muhammad Iqbal Khokhar (PLD 1992 SC 184), Punjab Seed Corporation v. Punjab Labor Appellate Tribunal (1996 SCMR CRP.No.193/2013 etc 36 1946), Government of Punjab v. Raja Muhammad Iqbal (1997 SCMR 1428), IG Police Lahore v. Qayyum Nawz Khan (1999 PLC (CS) 1381), Raja Shoukat Mehmood v. Azad Jammu and Kashmir Government (2003 PLC (CS) 424) and IG Police, Lahore v. Muhammad Iqbal (2007 SCMR 1864). The Petitioners were promoted out of turn in 2004; therefore Nadeem Arif’s case (supra) does not apply to them since change in enunciation of law is prospective and, therefore, their cases should be assessed under Rule 8B. Crl.RP No.75 of 2013 Ghulam Hussain Korai v. Province of Sindh In person 65. The Petitioner appeared in person and stated that he is aggrieved by the notification, dated 02.07.2013. He submitted that on 02.07.1995, he was appointed as Assistant Sub Inspector in Central District Karachi under ‘shaheed quota’, as a result of the martyrdom of his brother, Mohammad Bux Korai. On 07.12.2001, he was promoted as Sub Inspector by the competent authority. A Committee was constituted which recognized the Petitioner’s participation in numerous encounters and his injury in an encounter in 2004. As a result, on 03.04.2008, he was promoted as Police Inspector in recognition of recovery of a container worth Rs.10 crore. He was working as Inspector in (BS-16) in Sindh Police when on 19.11.2009, he was sent on deputation for 2 years as DSP (BS-16) District Prison Malir, which period was extended for another 2 years. On 15.3.2013, he was absorbed as DSP in BS-16 with effect from 19.11.2009. He was next appointed as Officiating Superintendent for 22 months at Sanghar Jail in BS-17 in OPS. His parent department called him back but I.G. Prisons CRP.No.193/2013 etc 37 refused to repatriate him. He was repatriated to his parent department when the impugned judgment was implemented. The Petitioner submits that he has been reverted to his substantive post of Inspector. He contended that he was appointed by transfer in Prison Department under Rule 9(1), which was a valid appointment. CRP No.76 of 2013 Hafiz Safdar Shekih v. Javed Ahmed etc by Mr. Shabbir Ahmed Awan, ASC 66. The learned Counsel, Mr. Shabbir Ahmed Awan, submitted that the Petitioner was not a party to the original proceedings. He is a Civil Engineer appointed as Assistant Engineer at Works and Services Department, Government of Sindh in March, 1993. On 16.03.1995, he qualified through Public Service Commission to be appointed as Assistant Executive Engineer (AEE) in BS-17. In January 2006, his services were requisitioned by the Anti-Corruption Establishment (ACE) as Technical Officer under the rules on deputation, and, on 10.03.2008, he was absorbed as AEE. He was promoted to BS-18 in the Anti-Corruption Department. The contention of the learned Counsel is that once the Petitioner was appointed by transfer in Anti-Corruption Establishment under Rule 9(1) he could not have been called back to his parent department. Crl.RP No. 77 of 2013 Talib Muksi v. Province of Sindh etc by Mr. Yawar Farooqui, ASC 67. The learned Counsel Mr. Yawar Farooqui submitted that in 1993, the Petitioner was appointed in BS-17 in Local Govt. Department, Balochistan as Assistant Director. He was promoted CRP.No.193/2013 etc 38 to BS-18. He contended that the Petitioner’s son was attacked and he spent two months with his son at Agha Khan Hospital Karachi, where he underwent treatment. The Petitioner applied to the CM, Sindh for transfer on humanitarian grounds, and his transfer was made under section 10 of Balochistan Civil Servants Act. On 03.09.2010, he was posted as Director Food, Sindh by the CM in exercise of his powers under section 24 of the Sindh Civil Servants Act, 1972. He was then appointed as EDO Finance, Sindh and on 14.03.2013, was absorbed in ex-PCS without going through any competitive process. The Petitioner was repatriated to the Balochistan Government in the wake of the impugned judgment; however, he has severed all connections with the Balochistan Government, therefore, he could not be repatriated. Crl.RP No. 79 of 2013 Syed Shakir Hussain v. Province of Sindh etc by Mr. Rana Azam-ul-Hassan, ASC 68. The learned Counsel Mr. Rana Azam ul Hassan submitted that Petitioner was not party to the proceedings. On 02.07.1995, he joined Jail Department as Assistant Superintendent Jail in BS-14 and on 15.11.2004, he was promoted to BS-16 as Deputy Superintendent with the approval of the relevant authority under section 9-A. The learned Counsel submitted that the Petitioner was promoted to BS-17 out of turn which promotion was reversed. The grievance of the Petitioner is that appointees of his batch, who were junior to him, have been promoted to BS-17 on regular basis and he has been relegated to BS-16 in the wake of the impugned judgment. He submitted that the Petitioner should also be considered for promotion to BS-17 CRP.No.193/2013 etc 39 and his seniority be fixed along with his other colleagues, who were appointed with him in the year 1995 in BS-14. Crl.RP No. 78 of 2013 Dur Muhmmad Panhwar v. Province of Sindh by Mr. Irfan Qadir, ASC 69. The learned Counsel Mr. Irfan Qadir submitted that the Petitioner, who is qualified as MA-LLB, was appointed as Senior Auditor in Pakistan Military Accounts, Ministry of Defence, Government of Pakistan in BS-11 on regular basis as a Civil Servant. He was then posted in the office of the Controller Naval Accounts Karachi and the post was subsequently upgraded to BS-14. On 07.11.2007, his services were requisitioned and placed at the disposal of Sindh Government, and he was sent on deputation for 5 years. In 2010, his post was again upgraded to BS-16. He was posted in Solicitors Department and was discharging similar duties as of his parent department. He was allowed to work as Superintendent in Solicitors Department in BS-16 till 06.11.2010. By order, dated 14.04.2012, the Petitioner was permanently absorbed. However, in pursuance of the impugned judgment, the Petitioner’s absorption was withdrawn and he was repatriated to his parent department. 70. The learned Counsel argued that there are specific Rules framed for this post in pursuance of Rule 3(2) of the APT Rules which state that 30% of posts shall be for appointments by transfer. Furthermore, the Petitioner was transferred under Rule 9(1), which is still intact. Therefore, his appointment was valid and lawful. The Petitioner’s appointment was not in violation of the rules or the judgment but his repatriation from the Sindh Government was without notice. The Petitioner was placed at the CRP.No.193/2013 etc 40 bottom of the seniority list, did not receive any benefit under the struck down provisions and he had not earned any out of turn promotion. 71. The learned Counsel further submitted that the Court should not dwell on academic issues. He next contended that this is not a public interest litigation and principles of justice have been violated in the judgment under review as thousands of officers have been condemned unheard. Therefore, the principle of audi alteram partem has been violated and the officers were denied their fundamental rights of hearing, fair trial under Article 10A of the Constitution. The Counsel argued that the judgment is discriminatory and violates Article 25, as some officers were heard while others who were not party were not heard. 72. The fact that all these Petitions have been jumbled together is an error apparent on the face of the record. The mess created by excessive use of suo motu powers should now be cleared and these decisions should be reviewed. The Counsel contended that the judgment is vague, unclear and contains gross errors pertaining to the Constitution and laws, as under Article 184 (3) of the Constitution, this Court cannot examine the questions relating to terms and conditions of service. The proceedings are void ab initio because the judges of the Honorable Court were under a wrong impression of the law that the Judgment of the High Court of Sindh was to apply in rem and not in personam. The Counsel referred to Articles 189 and 190 of the Constitution and submitted that the judgment was to apply in personam and it must apply prospectively, not retrospectively. When a principle of law is laid down, it applies prospectively. The Counsel referred to Pir Buksh’s CRP.No.193/2013 etc 41 case PLD 1987 SC 145, in which writ petitions were decided by the High Court against which the Government filed Appeals but in one case no Appeal was filed. Therefore, it was decided that since his case was not before the Court, no adverse order could be passed against him. Hence, his rights were taken away because he was not heard. Therefore, the judgment under review will apply purely in personam and not in rem. The Counsel further submitted that the Supreme Court in fact implemented the judgment of the High Court and this Court is not the forum for this. 73. The learned Counsel contended that there are major inconsistencies within the judgment. He submitted that in para. 116 of the judgment, it has been held that absorption is legal if an officer is transferred to a post that requires matching qualifications, expertise and experience. But para. 175 declares all absorptions illegal. Furthermore, the judgment prohibits transfer of Civil Servants to non-cadre posts, however, there is no law that prohibits transfer of a person against a post held by a Civil Servant especially when the qualifications match. No embargo has been placed on the legislature by the Constitution to include anybody within the ambit of Civil Servant; Article 240 of the Constitution provides to the contrary. The Counsel submitted that Rule 9(1) uses the term ‘person’, therefore it is not confined to any Civil Servant, government servant or public servant only. 74. The learned Counsel further submitted that the concept of absorption and lateral entry is not alien to the country’s jurisprudence. This is evident from Rule 8(1) of Civil Service of Pakistan (Composition and Cadre) Rules 1954, Rule 8 of Trade and Commerce where people can be appointed directly, Rule 7 of CRP.No.193/2013 etc 42 Customs, Rule 9 of Foreign Affairs, Rule 7 of Income tax, Rule 8 of Information, Rule 9(c) of OMG and Rule 7 of Police Group. Thousands of appointments will have to be repatriated in the Federal Government and Punjab Government if absorptions are declared illegal because law has to be applied equally. In para. 128, the impugned judgment held that a deputationist should be a Government Servant, and there is no emphasis that it should be Civil Servant specific. And, there is no law with such a requirement either. But it has been held to the contrary in para. 129 and the judgment in Lal Khan’s case (supra) being relied upon is non- existent. Crl.RP No. 81 of 2013 (Tariq Mughal v. Chief Secretary, Sindh) Crl.RP No. 82/2013 (M. Hanif Solangi v. Chief Secretary, Sindh) by Mr. Muhammad Munir Paracha, ASC 75. The learned Counsel Mr. Muhammad Munir Paracha, ASC submitted that on 23.09.1998, Petitioner no. 1, Tariq Mughal was appointed as Assistant Executive Engineer (BS-17) on ad hoc basis for 6 months in Port Bin Qasim Authority. His post was regularized on 10.04.1991 w.e.f 06.08.1990. On 16.05.1993, he was sent on deputation for 3 years as Assistant Executive Engineer, ZMC East and on 21.02.1994, he was absorbed in Sindh Council Unified Grade Service in BS-17. On 02.07.2013, he was reverted in implementation of the impugned judgment. The Counsel contended that the judgment is violative of the Order XXVII-A Rule 1 of CPC because no notice was issued to the Advocate General/Attorney General. This was essential as the Court was examining the vires of legislation. The Counsel relied upon the case of Federation of Pakistan v. Aftab Ahmad Sherpao (PLD 1992 SC 723) in support of his contention. He submitted that CRP.No.193/2013 etc 43 proceedings taken under Article 184 (3) are barred under Article 212 of the Constitution as the proceedings were relatable to the terms and conditions of the Civil Servants and Article 184 (3) is controlled by the Article 212 of the Constitution. 76. The Counsel submitted that legislative instruments can be held ultra vires only on the following 5 grounds; competence of the legislature to legislate such laws, inconsistency with fundamental rights, violation of any provision of the Constitution, inconsistency with injunctions of Quran and Sunnah (declared by the Federal Shariat Court and Shariat Appellate Bench of this Court) and Federal Money Bill. None of the aforesaid grounds existed to reach such a conclusion. 77. The learned Counsel submitted that appointment can be made through promotion or by direct transfer. He next contended that the definition of Civil Servant has been wrongly interpreted. Everyone working in the affairs of the Province is a Civil Servant, not just those who pass competitive examinations. The Court has the power to determine legislative intent, but it cannot declare a law as bad law unless it is invalid. If the Court interprets law in a way that it is against the intent of the legislature, the legislature can revalidate the law so that its true intent is followed. The Counsel submitted that if a judgment interprets law or a law is struck down due to incompetency of Legislature, it can have retrospective effect. However, if a law is invalid because it is inconsistent with fundamental rights, as is the case in the judgment under review, the judgment must be prospective. CRP.No.193/2013 etc 44 78. On 01.03.1990, Petitioner no. 2 Muhammad Hanif Solangi was appointed as Assistant Security Officer (BS-12). In 1994, the post was upgraded to BS-14. On 19.06.2004, he was promoted as Security Officer in BS-16 and on 25.10.2008, he was appointed as Deputy Director Coordination. This post was also upgraded on 19.05.2009. On 15.08.2012, he was assigned charge of Secretary, SITE. Subsequently, he was appointed Deputy Director Admin and Land Management in SITE Ltd Karachi by promotion. He was appointed by transfer and on 22.10.2012, he was absorbed as Deputy Secretary, in the PSS by transfer. CMA No.583 of 2013 in Crl.RP No. 83 of 2011 Inayatullah Qureshi v. Province of Sindh ETC by Mr. Shabbir Ahmed Awan, ASC 79. Mr. Shabbir Ahmed Awan, learned ASC contended that the judgment is not applicable to the Petitioner. On 10.05.1987, he was appointed as Research Officer (BS-17) in Government of Pakistan in Planning and Development Division. On 30.11.1989, his services were requisitioned by Government of Sindh, P&D Division as Planning Officer in Project Appraisal Section, P&D Division w.e.f 14.11.1989 on the recommendations of Sindh Public Service Commission by notification, dated 21.10.1992. The post was advertised and on the recommendations of Federal Public Service Commission, the Petitioner was appointed as Assistant Chief (BS-18) on 21.07.1997. He was then promoted and appointed as Deputy Chief in BS-19 w.e.f 15.12.2003 and on 18.08.2004, he was sent on deputation. On 12.4.2008, he was absorbed as Director, Planning and Development Department in Government of Sindh in BS-19, in accordance with section 10A(2) of Sindh Civil Servants Act, 1973. The learned Counsel contended CRP.No.193/2013 etc 45 that he was not a beneficiary of any of the Acts/Ordinances which had been declared ultra vires. Therefore, the judgment does not apply to the Petitioner. Furthermore, nobody had the experience or qualification to be appointed to this post so the Petitioner has not taken up any other Officer’s place. The Rules of Business of Sindh and the Federation are exactly the same. Therefore, the Petitioner was protected by the principle of locus poenitentiae. The Counsel submitted that his lien has now been terminated and he is not posted anywhere. CMA No.860 of 2013 Mir Hussain Ahmad Lehri v. Sindh by Mr. Shabbir Ahmed Awan, ASC 80. The learned Counsel, Mr. Shabbir Ahmed Awan, contended that on 28.03.1991, the Petitioner was appointed DSP through the Balochistan Public Service Commission in BS-17. His services were requisitioned by the Sindh Government on deputation and subsequently, on 27.10.2003, he was permanently absorbed in Sindh Police as DSP. On 14.01.2005, he was promoted on the recommendations of the Selection Board as Superintendent of Police (BS-18). In accordance with the Police Service of Pakistan (Composition, Cadre & Seniority) Rules, 1985, he was encadered as Superintendent of Police in Police Service of Pakistan. As a result of the judgment under review, the Petitioner has been repatriated to Balochistan Police as DSP. CRP No. 401 of 2013 Gul Hassan Zardari v. Province of Sindh etc In person 81. The Petitioner appeared in person and submitted that in 1990, he was appointed as Sub Inspector in the Intelligence CRP.No.193/2013 etc 46 Bureau. He was appointed as Sub Inspector in Sindh Police in 1994 through proper procedure with NOC. Subsequently, he was promoted as Inspector in the Sindh Police and posted at Nawabshah, Police Lines. In pursuance of the impugned judgment, he has been repatriated to the IB, which department has refused to take him back after 26 years as his lien was terminated and now he is nowhere. CMA No.6628 of 2013 in SMRP No.239 of 2013 Shiraz Asghar Sheikh v. Dr. Nasimul Ghani Sahto etc by Mr. Abdul Rahim Bhatti, ASC 82. The learned Counsel, Mr. Abdul Rahim Bhatti, contended that on 21.4.2007, the Petitioner was appointed to PEMRA on regular basis as Assistant General Manager (BS-17). He was working as Field Enforcement Officer at Sukkur. On 19.5.2008, his services were requisitioned and on 15.8.2008, NOC was issued by PEMRA to join Sindh Government. On 20.8.2008, Services and General Administration Department (S&GAD) placed his services at the disposal of Provincial Police Services. On 17.01.2009, he was sent for training to National Police Academy, Islamabad. The Counsel contended that the Petitioner was not given backdated seniority. He completed his training from Police Academy and was relieved on 15.7.2010. He was appointed as DSP (BS-17) in the Sindh Police. The learned Counsel submitted that the Petitioner was not party to the proceedings; he was condemned unheard and the principle of audi alteram partem was violated. 83. The learned Counsel contended that Rule 9(1) of the APT Rules is for regular appointees. The Petitioner’s appointment was made under Rule 3(2) and all requirements of the rules were CRP.No.193/2013 etc 47 satisfied. He submitted that the requirement of passing the exam of the Public Service Commission is for initial appointment and not for appointment by transfer. Furthermore, the Petitioner was required to conclude and complete the training before his appointment as DSP and he has competed the training. The Counsel further contended that the Petitioner’s lien with PEMRA has been terminated. Crl.RP No. 84 of 2013 Khurram Warris v. Chief Secretary Sindh by Mr. Irfan Qadir, ASC 84. The learned Counsel, Mr. Irfan Qadir, submitted that the Petitioner was granted out of turn promotion for gallantry beyond the call of duty by risking his life. He displayed extraordinary bravery. However, because of the impugned judgment, these promotions have also been declared illegal. The Counsel contended that there are inconsistencies between para. 146 and para. 148 of the impugned judgment. These matters of out of turn promotions were supposed to be scrutinized by a committee according to HC judgment but such committee was never constituted. Crl.O.P No.121 of 2013 (a/w CRP 193/2013) Muhammad Shamil Hingorjo vs. Muhammad Ejaz Chaudhry, Chief Secretary Sindh and others by Mr. M.M. Aqil Awan, ASC 85. The learned Counsel Mr. M.M. Aqil Awan submitted that five officers have filed this contempt application. Petitioners 1, 2 and 3 were never absorbed but they are still here in Appeal as a result of the department exercising its influence and relieving them of their duties. Services and General Administration Department CRP.No.193/2013 etc 48 has issued orders to repatriate the Petitioners but they are not being implemented. CMA No.353 of 2014 in Crl.R.P No. 39/2014 Munir Ahmed Phulpoto v. Province of Sindh by Mr. Z.K. Jatoi, ASC 86. The Counsel submitted that the Petitioner was not a party to these proceedings and he has only been granted one out of turn promotion for gallantry under section 9-A. On 13.03.1990, he was appointed ASI. In 1998, he was promoted as Inspector with his batchmates. His gallantry acts were recognized in a meeting on 20.01.2009, referred to on pg. 150 of the paper book, as a result of which he was promoted as DSP. C.R.P. No.125 of 2014 in Const. Petition No.71 of 2011 Dr. Atta Muhammad Panhwar v. Province of Sindh etc by Dr. Farough Naseem, ASC 87. The learned Counsel, Mr. Farough Naseem, filed documents on behalf of the Petitioner. The Petitioner had passed the CSS examination in 1990 and was allocated Information Group. While in service, a post was advertised on 14.09.2008 in Public Sector Organization in Alternative Energy Development Board (AEDB), Federal Government. The Petitioner made an application and he was offered an appointment, by notification, dated 17.12.2008, which he accepted. It was a fresh appointment and he was appointed as Secretary to the Board in BS-20. He had made no application but the Federal Government placed him his services at the disposal of the Sindh Government by order, dated 10.07.2010. His services were requisitioned because they required officers having technical knowledge in information sector. On 09.08.2010, he was appointed as Special Secretary at CM CRP.No.193/2013 etc 49 Secretariat. He was given a charge to be posted as DG, Malir Development Authority on 16.07.2011. Then, by notification, dated 19.08.2011, he was appointed DG, MDA in the Local Government under section 6 of Malir Development Authority Act, 1994. He was not absorbed but appointed afresh. Counsel submitted that the post was not advertised; the procedure of appointment is silent. (MDA is a statutory body that falls under the Local Government). 88. The Petitioner was absorbed in PCS cadre but now that appointment has been reversed as a result of the judgment under review. After the judgment was pronounced on 12.06.2013, in order, dated 02.07.2013, Dr. Atta’s parent department was listed as MDA/Federal Environmental Board so confusion was created. However, the last post to which he was appointed was DG MDA. Federal Environmental Board has terminated his lien. He should be appointed in MDA in non-cadre post and be allowed to remain in Local Government. 89. The learned Counsel submitted that an order was passed in the judgment under review that those on deputation should be reverted but those absorbed were reverted as well. The Counsel submitted that the Petitioner is not asking to be appointed as DG, but he should be appointed in MDA, because his lien with the Information Group has been terminated. 90. The Counsel submitted that the judgment under review held that absorption can only be made under Rule 9-A. Secondly, he submitted that the effect of the judgment is such that the power available to the CM, which must be exercised justly, equitably and reasonably, under Section 24 of the Act of 1973, has been taken away. The Counsel argued that the Honorable Court CRP.No.193/2013 etc 50 may lay down parameters of exercise of such powers. Appointments made under this section may then be subjected to judicial review, but this power cannot be taken away in its entirety. The power should be exercised in terms of the judgment given in Ehsanullah’s case (1993 PLC (CS) 937). The Counsel submitted that pronouncement on the power under section 24 should be revisited and the Court should also revisit the finding that absorption can only be made under Rule 9-A, keeping in mind Rule 4(3) of the Sindh Public Service Commission Function Rules. CRL.R.P.40 of 2014 Ata Muhammad Memon v. Chief Secretary, Sindh (In person) 91. The Petitioner appeared in person and submitted that on 04.08.1987, he was appointed in KDA as Assistant Engineer on temporary basis. He passed the exam and received training. On 27.04.1989, the Petitioner was sent on mutual transfer to Public Health Engineering and he was posted in Hyderabad. He submitted that he has been working for 25 years but he has not been promoted. He has been reverted as a result of the judgment. He joined KMC, as KDA has been dissolved but they reverted him as well. CRP No. 412 of 2013 Qamaruddin Sheikh v. Secretary Local Govt. Sindh etc by Mr. M. Shoaib Shaheen, ASC 92. The learned Counsel, Mr. Shoaib Shaheen, contended that on 13.09.1989, the Petitioner was initially appointed as Land Officer in BS-16 in Taluqa Municipal Corporation, Hyderabad. Subsequently, on 01.12.1991 he was promoted as Deputy Management Land Officer to BS-17. On 24.08.2002, he was CRP.No.193/2013 etc 51 promoted as Taluqa Officer Regulation (BS-18). Under Sindh Local Government Ordinance 2001, Hyderabad MC was abolished. Local Government Board was constituted under the Ordinance and the Petitioner was posted as TMO, Orangi Town on 08.12.2003 by the Board. He was absorbed in BS-18 in Sindh Council Unified Grade Service with the approval of the CM, Sindh under Rule 9(1). The Counsel contended that the Petitioner was not a Civil Servant either before absorption or afterwards, therefore the judgment does not apply to him. Employees of the Councils are not Civil Servants. The Acts and the Ordinances that have been struck down by the judgment under review were relatable to Civil Servants and cadre posts. The matter involving non-Civil Servants and non-cadre posts was not before the Honorable Court and the findings in the judgment will not apply to them. Crl.M.A No.374 of 2014 in Crl.RP No.72 of 2013 on behalf of Petitioner No. 6 Abu Bakr by Mr. M. Shoaib Shaheen, ASC (to Check) 93. The learned Counsel submitted that the Petitioner was held to be nominated in excess of the quota. The judgment under review provided that only officers up to Serial No.12 of the list were validly nominated. The Petitioner was at No. 13 on the list. He submitted that meanwhile, two officers placed above him on the list have been promoted. The learned Counsel submitted that the process of nomination has not been declared invalid and only the nominations in excess of the quota have been so declared, therefore, the Petitioner should have been nominated now when two persons above him have been nominated and promoted. CRP.No.193/2013 etc 52 Crl.R.P. No.41 of 2014 Ali Murad Abro vs. Chief Secretary, Sindh (In person) 94. On 28.07.1987, the Petitioner was appointed in KDA as Assistant Engineer (BS-17) on permanent basis. On 26.02.1995, He was transferred to C&W Department under mutual transfer with Muhammad Amir (Assistant Engineer at C&W) in BS-17. He is still serving in BS-17. The Petitioner was repatriated to the Local Government Department on 02.07.2013 and was placed at the bottom of seniority list. However, Muhammad Amir, who was mutually transferred with him, has not been repatriated. C.P. No.968 of 2014 Saleem Ullah v. Province of Sindh thr. Secy. Services, General Administration etc by Mr. Tariq Mehmood, Sr.ASC 95. The learned Counsel Tariq Mehmood contended that the Petitioner Saleem Ullah first went to the High Court in respect of his grievance. On 25.10.1994, he was appointed as Assistant Executive Engineer (AEE) in BS-17 in Karachi Water and Sewage Board (KWSB) as a result of due process. In the same year, Muhammad Harris was appointed in C&W Department and was posted at Larkana as AEE. Harris moved an application to be adjusted in Karachi, as he was not comfortable in Larkana. Therefore, on 10.01.1995, there was a mutual transfer of Harris and Saleem Ullah. They were both appointed in the same grade and the same post and they had the same qualification. Chief Secretary approved the transfer in relaxation of rules on 11.07.1995 as both Harris and Saleem Ullah were absorbed. The Petitioner passed the promotion exams but he is still serving in BS-17. Muhammad Harris was subsequently promoted to BS-18 in CRP.No.193/2013 etc 53 KWSB and now he is appointed somewhere else. The Counsel submitted that the Petitioner did not initiate the matter of transfer. He further submitted that he was not a Civil Servant but became one when he was absorbed. CRP No.760 of 2013 in Crl.O.P.89 of 2011 M. Zareen Khan v. Arshad Saleem Hotiana, Chief Secretary Sindh etc by Mr. M. Aqil Awan, Sr. ASC 96. The learned Counsel Mr. M.M. Aqil Awan contended that the Petitioner was absorbed from Education Department to Revenue Department. He wants to be sent back to Education Department. Petitioner is not asking for relief, he is just submitting that this is wrong. C.R.P No.394 of 2013 in C.P.71 of 2013 Muhammad Rafique Qureshi v. Province of Sindh by Mr. Baz Muhammad Kakar, ASC 97. The learned Counsel Mr. Baz Muhammad Kakar contended that the Petitioner was appointed as Revenue Officer. He was then appointed Deputy Commissioner and was granted out of turn promotion for eliminating encroachment in Port Qasim. His out of turn promotion was withdrawn as a result of the impugned judgment. NOTICE UNDER ORDER XXVII-A (1) OF CPC 98. Before adverting to the other issues raised by the learned Additional Advocate General Sindh and the Petitioners’ Counsel, we intend to first take up the contentions of M/s Syed Iftikhar Hussain Gillani, Muhammad Munir Piracha and Raja Muhammad Ibrahim Satti, Sr. ASCs that the Constitution Petitions No.21/2011, 21/2013, 23/2013 and 24/2013 filed by Dr. Nasim- ul-Ghani and others ought to have been dismissed for want of CRP.No.193/2013 etc 54 notices under Order XXVIIA (1) of the CPC to the Advocate General Sindh. We have noticed that the Constitution Petition No.71/2011 was fixed in Court on 4.11.2011 when this Court ordered notices, as required under Order XXVIIA (1), not only to the Advocate General Sindh, but also to the learned Attorney General for Pakistan. Even in the Constitution Petitions No.21, 23 and 24 of 2013, filed subsequently, notices were waived on behalf of the Advocate General Sindh. In response to the referred notices, the Advocate General Sindh did appear and assisted this Court throughout the proceedings. For the aforesaid reasons, the contention of the learned Counsel on the non-issuance of the notices to the Advocate General Sindh on the subject Constitution Petitions is without substance. MAINTAINABILITY OF THE CONSTITUTION PETITIONS BY WHICH THE IMPUGNED LEGISLATIVE INSTRUMENTS WERE CHALLENGED. 99. The learned Additional Advocate General Sindh as well as the other learned Counsel for the Petitioners have objected to the maintainability of the Constitution Petitions under Article 184(3) of the Constitution, inter alia, on the ground that in the aforesaid Petitions, the Petitioners have raised individual grievances in regard to their seniority and promotions, which under the service laws are not construed as ‘vested right’ of a Civil Servant. Their next argument was that, if at all, any right of the Petitioners is impaired, they could have approached the Sindh Service Tribunal for redressal of their grievances. Similar arguments were advanced by the learned Additional Advocate General and some of the other Counsels opposing the Constitution Petitions at the time of hearing which were attended to and in para CRP.No.193/2013 etc 55 114 of the impugned judgment, it was concluded that the Petitions under Article 184(3) of the Constitution were maintainable. 100. The Constitution gives protection to Civil Servants under Articles 240 and 242, which relate to formation of service structure. Pursuant to Article 240(b), the Sindh Provincial Assembly has enacted the Sindh Civil Servants Act 1973. This Court, in exercise of its Constitutional jurisdiction under Article 184(3) of the Constitution, can examine the vires of an enactment either on its own or on an application or petition filed by a party. The requirement of Article 184(3) of the Constitution is that if this Court considers that a question of a public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II is involved, it has the jurisdiction to pass appropriate orders not withstanding that there might be an alternate remedy. The word ‘consider’ used in the Sub-Article (3) of Article 184, relates to subjective assessment of this Court. The Supreme Court is the final authority upon the matters affecting judicial determination on the scope of Constitutional provisions. Once the Supreme Court arrives at the conclusion that a question of public importance having nexus with the fundamental rights guaranteed by the Constitution has been raised, the exercise of its jurisdiction under Article 184(3) cannot be objected to either by the Government or by any other party. 101. The perception that a Civil Servant can only seek redressal of his grievance from the Tribunal or from any other forum provided by the Civil Servants Act, is not correct. A Civil Servant, being a citizen of this country, equally enjoys the fundamental rights conferred by Chapter 1 of Part II of the CRP.No.193/2013 etc 56 Constitution. We, while examining the contentions made during the hearing of the Constitution Petitions, have dealt in detail with the issue as to whether any rights of the Civil Servants were offended by the impugned legislative instruments in the Constitution Petitions. We, after hearing the parties, concluded that the impugned legislative instruments were violative of Articles 240(b), 242(1B), 4, 8, 9 and 25 of the Constitution. We have also observed in the judgment under review that the issues raised in the Constitution Petitions were of public importance and had far reaching effects on service structure of the Province, therefore, the Petitions under Article 184(3) of the Constitution, were maintainable before this Court and hence the same were entertained. 102. The Petitioners in the Constitution Petitions had challenged the vires of the legislative instruments, raising the question of public importance relating to the rights of the Civil Servants in Sindh. Such issues did cover the parameters, which attract the jurisdiction of this Court under Article 184(3) of the Constitution and, therefore, following the dictum in the cases of Watan Party and others v. Federation of Pakistan (PLD 2012 SC 292) and Tariq Aziz-ud-Din and others (2010 SCMR 1301) it was held that the Petitions were maintainable. The issue of maintainability of the Petitions cannot be raised either by the Additional Advocate General or by the Petitioners’ Counsel once this Court, while passing the judgment under review, has held that the Petitions were maintainable. We for the aforesaid reasons, hold that the contentions of the learned Additional Advocate General and other Counsel on the issue of maintainability of the Petitions are without force. CRP.No.193/2013 etc 57 RULE 9(1) OF APT RULES. 103. In order to appreciate the contentions of the learned Additional Advocate General and the Petitioners’ Counsel as to whether the Chief Minister/Competent Authority is empowered under Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 to absorb the beneficiaries from different organizations to Provincial Service or Cadre or post, we need to examine the entire scheme of the Sindh Civil Servants Act, 1973 [hereinafter referred to as “the Act’]. The Sindh Civil Servant Act 1973 has been enacted pursuant to the provisions of Article 240 of the Constitution. 104. Section 2 (1)(b) defines the term ‘Civil Servant’ and excludes under sub-section (i) a person who is on deputation to the Province from the Federation or any other Province or Authority. Section 2(1)(d) defines the term ‘Initial Appointment’. The initial appointment as per the definition given under the Act means ‘Appointment made otherwise than by Promotion or Transfer’. According to Section 2(1)(g), the term ‘prescribed’ means ‘prescribed by rules’. Section 2(1)(i) defines ‘Selection Authority’, which includes the Sindh Public Service Commission, a Departmental Selection Board, a ‘Departmental Selection Committee’ or other ‘Authority or Body’ on the recommendations of, or in consultation with which, any appointment or promotion, as may be prescribed, is made. 105. Section 5 of the Act provides the mode of appointments to a Civil Service of the Province or a Civil Post in connection with the affairs of the Province to be made in the prescribed manner by the Government or by a person authorized CRP.No.193/2013 etc 58 by it on its behalf. Section 6(1) of the Act provides probation period for a Civil Servant, who is initially appointed to a service or post referred to in Section 5. Section 6(2) is an extension of initial appointment. Section 6(3) prescribes examinations, tests or courses for a Civil Servant, which he requires to qualify before the expiry of his probationary period. In case he fails to complete his required qualification during probation satisfactorily, he would be discharged in terms of Section (6)(3)(a) or under (b) of the Act, and, if he is appointed to such service or post by promotion or transfer, he would be reverted to the service or post from which he was promoted or transferred. 106. Section 7(1) of the Act speaks of confirmation of the Civil Servant on his satisfactory completion of the probation period. Section 7(2) of the Act relates to a Civil Servant promoted to a post on a regular basis. The Civil Servant falling under this category would also be eligible for confirmation on his rendering satisfactory service for the prescribed period. 107. Section 8 of the Act provides that for proper administration of a service, cadre or post, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared. Section 9 of the Act provides that a Civil Servant possessing such minimum qualification as may be prescribed, shall be eligible for higher post for the time being reserved under the Rules for Departmental Promotion. Section 10 speaks of posting and transfer of the Civil Servants within or outside the Province with the limitations contained therein. Section 24 of the Act authorizes the Government to deal with the case of a Civil Servant as it appears CRP.No.193/2013 etc 59 just and equitable, whereas Section 26 empowers the Government to frame Rules for regulating the service of a Civil Servant. 108. In exercise of powers conferred under Section 26 of the Act, the Sindh Government, besides other Rules, has also framed Rules called “The Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974” [hereinafter referred to as “the Rules”]. Rule 3(1) of the Rules provides for appointment to a Civil Service or a post by three modes (i) by initial Appointment, (ii) Appointment by promotion and (iii) Appointment by transfer. 109. Rule 3(2) provides the method of appointment, the qualifications and other conditions applicable to a post, laid down by the department concerned in consultation with Services and General Administration Department (S&GAD). Rule 4(1) provides the description of the Authority competent to make appointments to various posts. Rule 5(1) empowers the department or the Government to constitute Departmental Promotion Committees and or Departmental Selection Committees in consultation with S&GAD. Part-II of the Rules deals with the appointments by promotion and transfer whereas, Part III of the Rules deals with the initial appointments. 110. Rule 6(1) authorizes the Government to constitute a Provincial Selection Board, which would recommend appointments by promotion or transfer of the Civil Servants in BS-18 and above carrying special pay. Whereas, Rules 7(1),(2) & (3) deal with appointments by promotion and/or transfer of the Civil Servants without special pay on merits, on the recommendations of the appropriate Departmental Promotion Committee or the appropriate Selection Board constituted by the Government as the case may CRP.No.193/2013 etc 60 be. Rule 8 mandates that Departmental Promotion Committee or the Provincial Selection Board shall consider the qualifications, tenural limitations and requisite conditions laid down for promotion or transfer of a Civil Servant. Rule 9(1) of the Rules authorizes the government/competent Authority to make appointments by transfer of the Civil Servants on regular basis mentioned in the table given in the Rule, which comprises of 3 columns. Column 2 of the table deals with the officers who could be transferred, column 3 of the table mentions the Authority competent to order transfer and column 4 of the table mentions the Department notifying such transfer. 111. Keeping in mind the aforesaid scheme provided by the Act, we would like to examine the scope of Rule 9(1) of the Rules. In the first place, the definition given by Section 2(1)(d) of the Act clearly manifests that initial appointment is an appointment made otherwise than by promotion or transfer. This definition has to be read with Part-II of Rule 6(A) of the Rules, which relates to appointments by promotion or transfer. Section 5 of the Act, which deals with the initial appointment to a Service or a Civil Post, has to be read with Section 8(1) where it is provided that for proper administration of service or cadre, the appointing authority is required to prepare a seniority list with the categories given in the Section based on the recruitment Rules, which are framed in consultation with S & GAD under Section 26 of the Act. The relevant Rule in this respect is Rule 3. In other words, Section 8 of the Act compartmentalizes the different classes of Civil Servants by dividing them in three categories i.e. service, cadre or post as prescribed by recruitment Rules of their departments. This distinction of class has been specifically introduced by the CRP.No.193/2013 etc 61 legislature with the sole object that if a person is initially appointed in one service or cadre or post, his progression would remain in the same cadre, service or post. His vertical growth or progression shall remain within his class by compartmentalizing the Act which regulates his terms of service. What is more interesting is that Section 5 of the Act does not vest any discretion in the Government to relax the Rules for change of cadre. The language of Section 5 is very clear and mandates that the appointments to the Civil Service or post shall be made in the prescribed manner. 112. Appointment by promotion as used in Rule 6(A) is the consequence of initial appointment. Likewise, appointment by transfer is also the consequence of initial appointment. The appointment by promotion is made within the cadre or service or post and, therefore, it does not require any interpretation. The appointment by transfer can only be ordered if the Civil Servant is eligible and qualifies for his transfer under Rule 3(2) of the Rules of the department to which he is to be transferred, read with Rules 4, 7 and 8 of the Rules, which prescribe conditions laid down for such appointments by transfer to such posts. A Civil Servant who is to be appointed by transfer has to appear before the Departmental Promotion Committee or the Provincial Selection Board which will consider his eligibility, qualification and such other conditions applicable to the post as laid down in the recruitment rules of the department to which his transfer is to be ordered. 113. It is contended by some of the learned Counsel that the term ‘person’ used in Rule 9(1) of the Act would mean that the Government or the competent authority can order appointment by CRP.No.193/2013 etc 62 transfer of any person from anywhere within or outside the Act by appointing him to any post of equivalent basic scale. We are not persuaded by this argument of the learned Counsel for more than one reason. The word ‘person’ has not been defined either in the Act or in the Rules. It has to be interpreted with the other rules relatable to the appointment by promotion or by transfer. Rule 9(1) speaks of appointment by transfer to be made from amongst the persons holding appointments on regular basis mentioned in column 2 of the table given under the Rule. Therefore, the word ‘person’ as used in Rule 9(1) would relate to the officers, who are Civil Servants and mentioned in column 2 of the table given under Rule 9(1). The word ‘person’ could not be given an ordinary meaning beyond the scheme of the Act and Rules of 1974. 114. We, after looking at the scheme of the Act and the Rules framed thereunder, are clear in our minds that Rule 9(1) does not empower the Government or Selection Authority defined under the Act to appoint a Civil Servant or any other person by transfer to any other cadre, service or post without his eligibility, qualifications and the conditions laid down under Rules 3(2), 4, 6, and 8 of the Rules. Section 8 of the Act makes class of Civil Servants for proper administration and such class is not interchangeable at the whims of the Selection Authorities and/or the Government to extend favours to their blue eyed. There is no discretion given under Section 5 of the Act to appoint any person in Civil Service against a Civil Post in the manner other than prescribed by the Rules. Rule 9(1) does not confer permanent status on Civil Servant on his appointment by transfer nor it contemplates his absorption in the transferee Department as a consequence of his appointment. There is neither procedure nor CRP.No.193/2013 etc 63 mechanism provided under the Act or the Rules to treat appointment by transfer as absorption in the transferee department. Rule 9(1) cannot be used as a tool to allow horizontal movement of a civil servant from his original cadre to another cadre against scheme of the Act and the Rules of 1974. The term ‘transfer’ has to be interpreted in its common parlance and is subject to the limitations contained in Rules 3, 4, 6, 7 and 8 of the Rules 1974. Any appointment by transfer under Rule 9(1) has to be for a fixed term, and, on completion of such term, the Civil Servant has to join back his parent department. The word ‘appointment’ used in the Rule 6(A) cannot be equated with the word ‘initial appointment’ used in the Act which excludes appointment by transfer and promotion. Therefore, restricted meaning has to be given to the expression ‘appointment by transfer’. For the aforesaid reasons, we are clear in our minds that the concept of absorption of a Civil Servant and/or Government servant is foreign to the Act as well as Rule 9(1) of the Rules. Rule 9(1) does not permit transfer of non-Civil Servant to a non-cadre post or to a cadre post. We, in para 126 of the judgment under review, have not discussed the scope of Rule 9(1) as neither the Government nor any of the parties appearing before us had taken the plea that they were appointed by transfer and absorbed under Rule 9(1) of the Rules. However, we had recorded the following finding on Rule 9(1) which is reproduced : - “No Civil Servant of a non-cadre post can be transferred out of cadre to be absorbed to a cadre post which is meant for recruitment through competitive process. A Civil Servant can be transferred out of cadre to any other department of the Government subject to the restrictions contained under Rule 9(1) of the Rules of 1974.” CRP.No.193/2013 etc 64 115. Now, after we have scanned the entire scheme of the Act and the Rules framed thereunder, we are clear in our minds that the aforesaid finding was in accord with the Act which has been promulgated pursuant to Articles 240 and 242 of the Constitution. We further clarify that even a Civil Servant cannot be transferred to any other cadre, department, post or service unless he is eligible for such post, in terms of the Rules 3(2) and qualifies the test of Rules 4, 6, 7 and 8 of the 1974 Rules as discussed hereinabove. 116. The term ‘transfer’ used in Rule 9(1) has not been defined either in the Act or the Rules of 1974, therefore, we have to attach an ordinary dictionary meaning to it. The ordinary dictionary meaning of the term ‘transfer’ means ‘to move from one position to another.’ If this meaning is attached to the term ‘transfer’ used in Rule 9(1), it would lead to mean an ordinary posting of a Civil Servant from one position to another. Such transfer, however, cannot be construed to qualify the term ‘absorption’ as has been contended by the learned Counsel, which term is alien to the Act and the Rules. Therefore, the appointment by transfer under Rule 9(1), as has been interpreted by us, would be confined to the parameters laid down by the scheme of the Act and the Rules of 1974. SCOPE OF RULE 9-A OF THE APT RULES 117. We have heard the learned Counsel representing beneficiaries on the scope of Rule 9-A of the Rules. Under Rule 9-A, a person who has been rendered surplus on account of abolition of his post, in any Office or Department of the CRP.No.193/2013 etc 65 Government or autonomous body and/or on account of permanently taking over of the administration of such autonomous body wholly or partially by the Government, can be appointed by transfer to any post in a Department or Office in the Government subject to his eligibility and qualifications as laid down under Rule 3(2) for appointment to such Office. It is further provided under Rule 9-A of the Rules that such person shall be appointed to a post of equivalent or comparable basic scale and, in case such post is not available, then to a post of lower Basic Scale. Rule 9-A of the Rules provides further restriction to the seniority of such person to the post by reckoning his seniority at the bottom of the seniority list from the date of such appointment, with a further rider that his previous service, if not pensionable, shall not be counted towards pension and gratuity. We have dealt with the aforesaid issue in para 116 of the judgment under review and have set parameters of Rule 9-A of the Rules in para 126 of the judgment under review. 118. After hearing the arguments of the learned Counsel for the petitioners, we need to further clarify the scope of Rule 9-A of the Rules. Rule 9-A of the Rules has been introduced with the object to accommodate the persons who are rendered surplus by abolition of their posts or the organization in which they were working has been taken over by the Sindh Government. This Rule, as has been noticed, cannot be used as a tool to accommodate a person by abolishing his post with an object to appoint him by transfer to a cadre or service or post in deviation of Rule 3(2), which is a condition precedent for appointment to such post. In order to exercise powers under Rule 9-A of the Rules, there has to be some justification for abolition of the post against which such person was working. This justification should come from the CRP.No.193/2013 etc 66 Department and or organization which shall be in consultation with the S&GAD and approved by the Competent Authority. Rule 9-A of the Rules does not permit appointment by transfer of a non- Civil Servant to any other Department and/or organization controlled by the Government to a post which restricts the transfer under Rule 3(2) of the Rules. A person can only be appointed by transfer under Rule 9-A, if he has the eligibility, matching qualifications, expertise coupled with the conditions laid down under Rule 3(2) for appointment to such post. The Competent Authority under Rule 9-A of the Rules while ordering appointment by transfer cannot lose sight of the conditions prescribed under Rule 4, 6(A) and 7. Therefore, any appointment by transfer under Rule 9-A of the Rules in violation of the aforesaid conditions is a nullity, and the conclusion reached by us in para 126 of the judgment under review has to be read in addition to the findings recorded herein above. ABSORPTION 119. The learned Additional Advocate General, as well as the Counsel representing the Petitioners had argued that the Competent Authority had the powers under Rule 9(1) of the Rules to absorb any person from within and/or outside the Province through appointment by transfer. We have already dealt with the scope of Rule 9(1) of the Rules, which permits appointment by transfer subject to the conditions prescribed therein. It does not permit absorption from one cadre to another cadre. The Competent Authority in the cases of the Petitioners has ordered absorption by relaxing the rules, which is in deviation of the scheme of the Act framed pursuant to the dictates of Article 240, read with the qualifications incorporated in the Rules of 1974. We may observe CRP.No.193/2013 etc 67 that Section 5 of the Act does not give any discretion to the Selection Authority to bypass the restriction by relaxing the Rules. If such discretion is allowed to prevail, it would destroy the fabric of Civil Service, which is protected by the mandates of Articles 240 and 242 of the Constitution. It is also a misconception that Rule 9-A permits transfer of a non-Civil Servant to a Cadre, Service or Post meant for a Civil Servant, recruited in the Cadre or Service or Post after competitive process. Such an appointment by transfer in the nature of absorption would only be permissible, if the pre- conditions laid under Rule 9-A of the Rules are met. 120. At the time of hearing of Petitions No.71/2011 and others the learned Additional Advocate General, as well as the Petitioners appearing in these Petitions, attempted to justify absorption on the basis of legislative instruments, which were declared unconstitutional. In these review proceedings, the Petitioners have changed their stance claiming their absorption on the basis of Rule 9(1) of the Rules. We have separately dealt with the scope of Rule 9(1) of the Rules. Under Rule 9(1), appointment by transfer would only mean an ordinary transfer from one post to another post, subject to the restrictions contained in the Rules of 1974. Neither a person can be absorbed under these Rules nor a Civil Servant or non-Civil Servant or a deputationist could be allowed to travel horizontally outside his cadre to penetrate into a different cadre, service or post through an appointment by transfer. Rule 9(1) cannot override the provisions of Section 8 of the Act, which have been introduced by the Legislature for proper administration of Service law. For the aforesaid reasons, in addition to our findings recorded in the judgment under review, we CRP.No.193/2013 etc 68 are of the considered view that the Petitioners have failed to make out any justifiable ground to seek review of the judgment. ABSORPTION IN UNIFIED GROUP CRP.409/2013 Mr. Aqail Awan for the Petitioner 1-3 Crl.R.P.81/2013 & CRP.412/2013 121. It was contended by M/s Aqil Awan, Shoaib Shaheen, Muhammad Munir Peracha and Tariq Mehmood, learned ASCs, that the impugned judgment is only applicable to Civil Servants and does not cover non-civil servants. We, with respect, disagree with the contentions of the learned Counsel. The impugned judgment would be equally applicable to the Government Servants, employees of any statutory or non-statutory organization controlled by the Sindh Government, who were wrongly absorbed in different Cadres, Services, Posts of the Government Departments, Statutory Organizations against their service Rules. The contention of the learned Counsel was that the Petitioners were non-Civil Servants and were absorbed from different organizations to Sindh Councils Unified Grades Service under Rule 9(1) of the Rules of 1974, read with Rule 12(5) of the Unified Grades Service Rules 1982. We have already held that the power to appoint by transfer under Rule 9(1) would only extend to a Civil Servant. The Sindh Councils Unified Grades Service Rules 1982 regulate the terms and conditions of the employees appointed therein. Rule 3(1) provides composition of Service, whereas Sub- Rule (2) of Rule 3 spells out its Sub-Branches. Rule 3(4) places a restriction on the members for transfer from one Branch or Sub- Branch to another Branch or Sub-Branch within the service group. Rule 12 of the (Unified Group) Service Rules deals with the seniority of the members. Rule 12(5)(a) confers powers of transfer CRP.No.193/2013 etc 69 by Appointment on the competent authority. The Petitioners, who were not members of the Unified Services and were wrongly absorbed in the Service of Unified Group, in deviation of the Service Rules of 1982 cannot be allowed to continue in the Unified Services Group. The Chief Minister or the Board cannot induct any stranger in the service of Unified Group either by exercising powers under Rule 9(1) of the Rules of 1974 or by Rule 12(5) of the Rules of 1982. Any such induction is against the recognized norms of Service law and, therefore, the Petitioners were liable to be repatriated to their parent departments forthwith in terms of the judgment under review. ‘Absorption’ of the Petitioners under the garb of ‘Appointment by Transfer’ in the Unified Services Group has directly affected the rights of the employees in the service, guaranteed under Articles 4 and 9 of the Constitution. Such act on the part of the Chief Minister or the Board had circumvented the very framework of the Service Rules of 1982 by introducing a parallel system based on discrimination and favourtism, which the law does not recognize. OUT OF TURN PROMOTIONS. 122. The issue of out of turn promotions has been dealt with by us in detail in the judgment sought to be reviewed and we reached the conclusion that it was violative of Articles 240, 242, 4,8,9 and 25 of the Constitution. Mr. Adnan Iqbal Chaudhry, learned ASC has contended that Section 9-A of the Act has not been struck down by this Court, while declaring the out of turn promotions as un-constitutional. We are mindful of this fact as we have held that the Competent Authority can grant awards or rewards to the Police Officers, if they show act of gallantry beyond CRP.No.193/2013 etc 70 the call of duty. However, we had struck down the very concept of ‘out of turn promotion’ being violative of Constitution for the reasons incorporated in paras 158 to 164 of the judgment under review. 123. The contention of Mr. Adnan Iqbal Chaudhry, learned ASC was that the provisions of Section 9-A of the Act could not be interpreted to exclude other categories of Civil Servants except police force. According to him any Civil Servant other than the Police Officer, can also perform gallantry act beyond the call of duty. We are not persuaded by the arguments of the learned Counsel for the Petitioner as the terms ‘Gallantry’ and ‘Beyond the Call of Duty’ have to be interpreted by invoking the Rule of ‘ejusdem generis’. The expression ‘Gallantry’ used in Section 9-A of the Act has not been defined either in the Act or in the Rules, therefore, we have to give to term ‘Gallantry’ the ordinary dictionary meaning while interpreting it. The term ‘Gallantry’ means ‘Brave, Courageous, valiant, fearless, bold and daring’. All these adjectives directly relate to the nature of duty which a Civil Servant performs. These adjectives can only be attached to security personnel. Therefore, we can safely hold that the term ‘Gallantry’ as used in Section 9-A of the Act could only apply to Police Personnel and award and reward on their gallantry performance be conferred upon them and not to other species of Civil Servants. However, such award or reward should be given under a transparent process after objective assessment of their velour by a committee, in a just manner under the prescribed Rules. 124. Petitioners in Crl.R.P.No.74 of 2013, Engineers by profession, appearing in person have contended that they were CRP.No.193/2013 etc 71 given out of turn promotions in the year 2004, as they made efforts to provide water to the persons at the tail, and in discharge of their duties they were exposed to criminal prosecution. This is the normal duty of a Civil Servant of the Irrigation Department and it cannot be construed to be a Gallantry act beyond the call of duty. Besides, we have already held that grant of out of turn promotion is unconstitutional, therefore the Petitioners’ claim does not merit acceptance. CRL. R.P.84/2013 Khurram Waris vs. Chief Secretary Sindh etc 125. Mr. Irfan Qadir, learned ASC appearing on behalf of Khurram Waris (in Crl. Review Petition No.84/2013), has contended that the Petitioner was granted out of turn promotion for his gallantry act beyond the call of duty by risking his life and displaying extraordinary bravery. We are provided an extract from his service profile by the Sindh Government. According to the Service profile of the Petitioner, he is a Sub-Inspector in BS-14 and was granted out of turn promotion three times; (i) from Sub- Inspector to the rank of Inspector in BS-16, (ii) from Inspector to the rank of DSP in BS-17 and (iii) from DSP to the rank of SP in BS-18. This Court, after hearing the Sindh Government and other parties, had struck down the legislative instruments which gave protection to the out of turn promotions by the judgment under review, declaring it as unconstitutional. 126. The contention of the learned ASC that the judgment of the High Court of Sindh relating to the ‘out of turn promotion’ is still in field, therefore, he prayed for formulation of a Committee to scrutinize the cases of the Police Officers, who were given out of turn promotion, is without substance. We have already declared CRP.No.193/2013 etc 72 ‘out of turn promotion’ as unconstitutional, therefore, after recording such findings, the need of forming a Committee under Rule 8-B for scrutinizing the cases of Police Personnel is of no significance. However, they could be awarded or rewarded compensation for their exceptional acts of gallantry. 127. We do support that the morale of the Police personnel be boosted as intended in the legislative instruments, which were struck down by us and on their exceptional acts of gallantry, they should be given awards and rewards on merits; but even this has not been done by the Sindh Government. In recent past, a Senior Police Officer, who was known for his bravery, has lost his life in an attack by the terrorists and his family was not offered compensation publically. Likewise, another senior police officer, who is also known for his courage, in combating terrorism in Karachi, was attacked by the terrorists and had received serious injuries but survived. The Sindh Government has not so far publically announced a reward for him, which is pathetic. In fact in para 164 of the judgment under review, we had directed the Sindh Government to constitute a Committee under Rule 8-B, to evaluate the performance of the Police Officers upon whom the proposed awards or rewards have to be bestowed. We recommend that the Police Officers, who risk their lives in the given most unstable conditions of Karachi, should be given adequate protection and in case, where the Police Officers while fighting against terrorism have lost their lives, their families should be looked after by the Sindh Government. The Sindh Government should adopt the policies of the Armed forces, where in such like cases, the personnel and their families are taken care of under a prescribed procedure. CRP.No.193/2013 etc 73 128. For the aforesaid reasons, which we had already recorded in the judgment under review, we are not persuaded by the contentions of the learned ASC to change our earlier view. This Review Petition merits dismissal. WHETHER THE JUDGMENT UNDER REVIEW OUGHT TO HAVE BEEN MADE PROSPECTIVE 129. The Learned Additional Advocate General Sindh and almost all the Counsels representing the petitioners have contended that the Judgment under review ought to have been applied prospectively. The learned Counsels have jointly contended that the benefits accrued to the Petitioners by the legislative instruments, which were struck down by this Court, could not have been withdrawn as their rights were protected by the principles of locus poenitentiae. Mr. Irfan Qadir, learned ASC, has contended that the judgment is in personam and would not apply to his clients. Syed Iftikhar Hussain Gillani, learned Sr. ASC has contended that judgments always apply prospectively and not retrospectively. In this regard he has placed reliance on the case ‘Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as such’ (PLD 2013 SC 829). We have taken note of such contentions of the learned Counsels at the time of hearing of the original Petitions, and were not persuaded for reasons stated in paras 174 and 175 of the judgment under review. Now, it is a settled law of this Court that no right or obligation can accrue under an unconstitutional law. Once this Court has declared a legislative instrument as being unconstitutional, the effect of such declaration is that such legislative instrument becomes void ab initio, devoid of any force of CRP.No.193/2013 etc 74 law, neither can it impose any obligation, nor can it expose anyone to any liability. 130. In the case in hand, the benefits extended to the Petitioners through the impugned legislation, were not only violative of law but were also declared ultra vires of the Constitution. In such like circumstances, the benefits, if any, accrued to the Petitioners by the said legislative instruments shall stand withdrawn as if they were never extended to them. The judgment relied upon by Syed Iftikhar Hussain Gillani is distinguishable on facts. Under the said judgment, this Court had re-visited the earlier judgment of this Court titled as Accountant General Sindh and others vs. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) by which the retired Judges were granted pensionary benefits. In the said case, it was held that the pensionary benefits granted to retired Judges were violative of the scheme and as such the judgment was declared as per incurium, declaring further that no pensionary benefits could be granted to any retired Judge, unless he serves for five years in office. In the present proceedings, this Court has struck down the legislative instruments by which benefits were extended to a class of persons, in complete disregard of the service structure mandated by the provisions of Articles 240 and 242 of the Constitution. Through the legislative instruments, which were struck down by this Court, undue favours were extended to a few individuals, for political considerations against the mandate of the Act and the recruitment Rules framed thereunder. Such instruments were held to be violative of Articles 4, 8, 9, 14 and 25 of the Constitution. Through these legislative instruments, many of the Petitioners were absorbed and/or given out of turn promotions or back-dated CRP.No.193/2013 etc 75 seniority, depriving other meritorious Civil Servants of their seniority and smooth progression in career. A substantial number of unfit and unmeritorious Officers were thus absorbed/ promoted out of turn/given back-dated seniority in important cadres, services and posts by extending undue favors by the Authorities, skipping the competitive process. Such absorptions etc, which were not permissible under the Civil Servants Act, had practically obliterated the Constitutional and legal differentiations that existed amongst various cadres, posts and services. We have already observed in our judgment that the legislative instruments, which were struck down by this Court, had engendered a culture of patronage, bringing more politicization, inefficiency and corruption in the Civil Service. 131. In such like circumstances, by striking down the legislative instruments, the Court was obliged to provide a corresponding remedy to the aggrieved Civil Servants who had suffered because of the unconstitutional and illegal benefits accrued to the beneficiaries of the impugned legislations. As a result of the judgment under review, the rights of the meritorious Civil Servants as provided under the Constitution and law have been restored, ensuring, inter alia, their inter-se seniority and legitimate expectations of attaining upper ladder of their careers. 132. We hold that the cases relied upon by Syed Iftikhar Hussain Gillani, learned Sr. ASC, and the other learned Counsel are distinguishable on facts. In the present case if the contentions of the learned Counsel are acdepted then on the one hand the ill- gotten benefits would receive judicial approval against the provisions of the Constitution and Law and, on the other hand, the CRP.No.193/2013 etc 76 sufferers of the benefits accrued to the Petitioners would be left with no remedy or recompense. In other words, the progression and career of the meritorious Civil Servants would suffer irretrievably, whereas the beneficiaries of unconstitutional and illegal measures would thrive and progress their careers unimpeded if the judgment is made applicable prospectively. Whereas in the case ‘Regarding Pensionary Benefits of the Judges of Superior Courts (supra) relied upon by the learned ASC, no one will be burdened except the public exchequer. 133. This Court, in the case of Dr. Mobashir Hassan and others vs. Federation of Pakistan and others (PLD 2010 SC 265), while striking down the N.R.O, had directed to withdraw the benefits extended to the accused persons under the N.R.O and, consequently they were ordered to be retried. 134. The learned Counsel for some of the Petitioners have objected to the cut-off date of 1994 for the purposes of application of this judgment. We have clarified this fact in our judgment under review that this date was provided to us by the learned Additional Advocate General, on instructions of S&GAD. We confronted the learned Additional Advocate General to satisfy us as to the reasons for mentioning the year 1994. He contended that in the original Constitution Petition No.D-932/2009 of High Court of Sindh, Karachi, filed by Dr. Nasimul Ghani Sahito and others, the absorption of the Officers from 1994 onwards was challenged and therefore, he, on instructions of the S&GAD, intimated this Court that the legislative instruments, which were impugned in Constitution Petitions No.71/2011, 21, 23 & 24 of 2013 before this CRP.No.193/2013 etc 77 Court, extend protection to the Officers absorbed and/or granted out of turn promotions or back-dated seniority from 1994 onwards. We will not delve into this factual controversy of the cut-off date as we believe, we have enunciated the principles in the judgment under review strictly in the light of the Constitutional and statutory provisions, which are not time bound. MALA FIDE 135. The contentions of the learned Additional Advocate General Sindh and some of the Petitioners’ Counsel that the judgment under review has attributed mala fide to the Legislature is also without substance. No such finding has been recorded in the judgment under review. However, one of the Hon’ble Judges of the Bench, while concurring with the findings of the judgment under review, had added a note wherein it had been maintained that in the given circumstances of the case it was difficult to attribute bona fide to the legislature. It had been clearly observed in that note that mala fide cannot be attributed to the legislature. Therefore, the contentions of learned Additional Advocate General and Counsel are devoid of any force. SCOPE OF SECTION 24 OF THE ACT. 136. During hearing of the Review Petitions, we have noticed that the competent authority in a large number of cases, had passed orders of absorptions of the Civil Servants/Government Servants/Employees of Autonomous Bodies, semi-Autonomous Bodies and Corporations, and had granted them back-dated seniority besides the out of turn promotion, by using the expression ‘In Relaxation of Rules”. Ex-facie, these powers were exercised by the Competent Authority by resorting to Section 24 of CRP.No.193/2013 etc 78 the Act, which is an enabling provision and confers residuary powers upon the competent authority, to redress the grievance of an individual in a hardship case. 137. The Competent Authority under Section 24 of the Act can grant benefit to an individual if it considers it just and equitable, without offending and impairing the statutory rights of other Civil Servants/Employees. The exercise of powers under Section 24 of the Act by the Competent Authority in cases of the Petitioners travelled beyond the scheme of the Act, framed under the mandate of Articles 240 read with Article 242 of the Constitution. The Competent Authority can exercise powers under Section 24 of the Act, by relaxing rules, if there is a vacuum in law, but such powers cannot be exercised under the garb of the term “Relaxation of Rules” with the intent to bye-pass the mandate of law for extending favours to a person or an individual, offending and imparing the statutory rights of other Civil Servants. The Competent Authority, by an executive order, cannot frame Rules in exercise of powers under Section 24. The authority conferred under Section 24 of the Act is confined to hardship cases, without negating the vested rights of the other Civil Servants and/or causing prejudice to their interests. MECHANISM FOR UPGRADATION OF POSTS 138. During the hearing of the review petitions, we have noticed that the Sindh Government has upgraded certain posts of individuals without any mechanism of upgradation to benefit them. The expression ‘upgradation’ is distinct from the expression ‘promotion’ which has not been defined either in the Act or the Rules framed there-under, and is restricted to the post and not CRP.No.193/2013 etc 79 with the person occupying it. The upgradation cannot be made to benefit a particular individual in terms of promoting him to a higher post or 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 restructuring, reform or to meet the exigency of service in public interest. In the absence of these pre-conditions, upgradation is not permissible. We have noticed that some of the civil servants have been promoted to higher posts against the tenural limitations, without qualifying the requisite departmental examinations/trainings under the garb of upgradation. Such civil servants having not been promoted in accordance with law need to be reverted to their substantive ranks/posts which they were holding immediately before their upgradation and their seniority shall be determined along with their batchmates. The Sindh Government shall undertake this exercise and report compliance within 4 weeks through the Chief Secretary, Sindh. ABOLITION OF POSTS 139. During the hearing of the Review Petitions, we have noticed that the Sindh Government has abolished some posts in individual cases with the object to accommodate civil Servant or Government Servant to appoint him by transfer to a post, service or cadre contrary to the restrictions contained in Rule of 1974 against his eligibility. The term ‘abolition’ has not been defined in the Sindh Civil Servants Act, 1973. However, this expression has been used in Rule 9-A of the Rules of 1974. A department can only abolish a post with the concurrence of the S&GAD. Abolition of a post is permissible in case, if the department requires restructuring, reform or to meet exigency of service in public CRP.No.193/2013 etc 80 interest. The department can abolish a post for justiciable reason. Therefore, in future if a post has to be abolished within the Department and/or within the statutory body or organization controlled by the Sindh Government, the Department shall seek concurrence from the S&GAD coupled with the reasons justifying abolition. WHETHER A CIVIL SERVANT CAN APPROACH THE HIGH COURT OF SINDH IN A SUIT OR IN CONSTITUTION PETITION IN RELATION TO TERMS AND CONDITIONS OF HIS SERVICE 140. We have noticed that since more than a year, the High Court of Sindh has been entertaining Civil Suits of Civil Servants relating to their terms and conditions of service. This issue was taken note of by us in our orders dated 30.08.2012 (in Cr.Misc. Applns No. 42-K of 2012 and others) and 03.01.2014 (in Civil Petition No. 345-K of 2013), relevant portions of which are reproduced below : - “We have heard the learned ASC, learned AAG and Secretary Services and have also perused the record. It is an admitted fact that the Applicant is on deputation and issue of right of audience of a deputationist has been fully dealt with in the Judgment dated 10.1.2011 of this Court in Civil Petition No.802-K of 2011. The Applicant after the Judgment of this Court dated 10.1.2011 and order of this Court passed on 2.5.2012 did not relinquish the charge and challenged the notification of his repatriation before Sindh High Court, which notification was issued on 2.5.2012 pursuant to the directives of this Court and obtained status-quo order. The High Court, in exercise of its Constitutional jurisdiction, could not pass an order of status quo in respect of a notification (No.S.O.II (SGA&CD)1-169 dated 2.5.2012, which on the face of it shows that it was issued by the Government of Sindh in strict compliance of the order of the Supreme Court dated CRP.No.193/2013 etc 81 2.5.2012. However, a learned Division Bench of the High Court of Sindh in an unprecedented manner, in violation of Article 189 of the Constitution, not only entertained the petition of the applicant praying therein for such relief and passed such order, but repeated this illegality by passing similar orders in some other petitions. It seems that the respondents in these cases were also passively party to such illegality as they did not respond to such illegality by raising such objection, which was otherwise evident from the very language of the said notification. We expect that in future the High Court of Sindh would be vigilant while entertaining petitions of such nature. A copy of this order may be sent to the Registrar, High Court of Sindh for perusal of the Honourable Chief Justice of the High Court and its circulation amongst other Honourable Judges of the High Court of Sindh.” Civil Petition No.345-K of 2013 “The issue of intervention of Sindh High Court in service matters has also been noticed by this Court on 20.12.2013 in Civil Petition No.1927 of 2013 whereon a Misc. Application bearing No.7632/2013, following order was passed:- “3. Subject to all just exceptions, this CMA is allowed. 4. We have noted with concern that off late interference has been made by the High Courts in exercise of jurisdiction under Article 199 of the Constitution notwithstanding the Consti- tutional bar contained in Article 212 of the Constitution. In the referred circumstances, we are persuaded to direct the Registrar, High Court of Sindh, Karachi, to give a detail list of all those pending cases in which order of a departmental authority in a service matter has been challenged and stay has been granted. The report shall be submitted within two weeks of the receipt of this order.” 7. We have been provided with a list of the suits and Constitutional Petitions relating to service matters of the police officers pending in the Sindh High Court and in many of these cases, interim CRP.No.193/2013 etc 82 orders have been passed. We are further informed that pursuant to the judgment of this Court referred to hereinabove the Inspector General of Police, Sindh, has issued a Standing order to re-fix the seniority position of different police officers on their demotion in line with the findings of the judgment of this Court and in a suit bearing No.970 of 2013, the Sindh High Court has suspended the operation of said Standing Order, as a result of which the Sindh Government cannot fix seniority position of the police officers, which run in many thousands. 8. The learned Additional AG further informed us that pursuant to suspension of operation of the Standing Order, many police officers who were sent on training had to be withdrawn and some of them had filed different Constitution Petitions, which included Petitions No.4414 of 2013, 4447 of 2013, 4722 of 2013 and 4775 of 2013, impugning their withdrawal from police training and the learned Division Bench of Sindh High Court has directed them to become party in the suit in which interim orders were passed. 9. Prima facie, we fail to understand as to how could the Sindh High Court while exercising jurisdiction as a Civil Court under Civil Procedure Code or even under the Constitution can overlook the provisions of Article 212 of the Constitution, which bars their jurisdiction. Besides, pursuant to the judgment of this Court neither a party can approach the Sindh High Court directly nor the latter can entertain any proceedings either on the Original side or under Article 199 of the Constitutional jurisdiction on any of these issues decided by this Court. Moreover, seniority of a Civil Servant relates to the terms and conditions of a Civil Servant and the Service Tribunal has the jurisdiction to decide it. 10. We are also surprised to notice that inspite of the specific directions contained in the judgment of this Court, which judgment was ordered to be circulated amongst the learned Judges, the Suit No.102 of 2013 is still pending with interim order, which is violative of Article 189 of the Constitution. We are disturbed to notice that Sindh High Court has assumed the jurisdiction of Sindh Service Tribunal and is entertaining civil suits and Constitution CRP.No.193/2013 etc 83 petitions overlooking the bar contained under Article 212 of the Constitution. 11. In these circumstances, we feel it more appropriate that this petition and the list of cases submitted by Mr. Ali Sher Jakhrani, AIGP, Legal, through Mr. Muhammad Sarwar Khan, Additional AG, Sindh, be placed before the Honourable Chief Justice of Pakistan, for his kind perusal and passing appropriate orders, which may be taken up alongwith Petition No.1927 of 2013 in which a directive was issued by this Court to the Registrar of Sindh High Court to submit a list of pending cases relating to service matters, as reproduced hereinabove, so that the parameters under which High Court while exercising jurisdiction either under CPC or the Constitution, can be determined and issue be settled once for all and or in the alternative the issue can be taken up alongwith the Review Petition filed by the Sindh Government against the referred judgment of this Court, as the intervention of the nature by the High Court would defeat the effect of the judgment of this Court and the beneficiaries of the instruments which were declared ultra vires of the Constitution should be dealt with in terms of the judgment of this Court without loss of time. Prima facie, beneficiaries of the instruments which were declared ultra vires of the Constitution through the different proceedings initiated by them in the Sindh High Court in fact have attempted to defy the judgment of this Court and are liable to be proceeded against for committing willful contempt.” 141. Besides the aforesaid orders, even in the judgment under review, we have observed as under:- ‘’177. Before parting with the judgment, we are surprised if not shocked to see that the Sindh High Court has entertained a Civil Suit No.102 of 2013 filed by Mirza Shahbaz Mughal relating to out of turn promotion, which is one of the issues pending adjudication before this Court. In this respect the background is that a Criminal Misc.Application No.278/2013 was filed by Syed Mehmood Akhtar Naqvi, in which he has given brief story of Shahbaz Mughal, who was appointed ASI on 29.01.1996 and promoted as Sub-Inspector on 17.12.2001 and was confirmed as Sub-Inspector on 18.12.2003. He was promoted as Inspector on 26.04.2004 on adhoc basis with the condition that he will not claim seniority over his seniors and will retain his original position in the CRP.No.193/2013 etc 84 promotion list and his promotion will be regularized on his turn alongwith his batch mates vide order dated 18.02.2009. However, he was promoted out of turn on adhoc basis as DSP in his own pay and scale. An application was made to the Chief Minister by his mother and his seniority was fixed and regularized on 01.04.2011. On the intervention of this Court on 03.09.2012 out of turn promotion granted to him along with Hamid Ali Bhurgari and Abdul Jabbar Khan and their inter-se seniorities were revised and he was reverted to his original rank of Sub-Inspector. 178. …………………………………………………………. 179. …………………………………………………………. 180. …………………………………………………………. 181. In fact, order of the nature has disturbed us and in such like situation earlier this Court has passed orders when the Sindh High Court entertained Constitutional Petitions and suspended Notifications of the Sindh Government which were issued under the directives of this Court. AG office has also failed to discharge its duties by not bringing the real facts to the notice of the Sind High Court, which has resulted in suspension of the Notification. In any event the proceedings in Suit will be regulated by the findings in these proceedings.” 142. The High Court of Sindh, overlooking the aforesaid observations, has continuously entertained the Civil Suits and Constitutional Petitions in defiance of Article 189 of the Constitution. We did communicate to the High Court of Sindh through the Registrar that the High Court of Sindh does not have jurisdiction over the aforementioned issues and that a Civil Servant can only approach the Services Tribunal for redress of his grievances, but this direction has not been cared about by some of the learned Judges, overlooking the provisions of Articles 175, 189 and 212 of the Constitution. 143. Section 9 of Civil Procedure Code confers general jurisdiction upon Courts to try all suits of civil nature. In order to appreciate the scope of Section 9 of CPC, the same is reproduced herein under: “9. Courts to try all Civil Suits unless barred. – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil CRP.No.193/2013 etc 85 nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.” 144. Civil Courts are Courts of ultimate jurisdiction with regard to a civil right, duty or obligation, unless their jurisdiction is either expressly or impliedly barred. Section 9 of the Code only confers jurisdiction upon Courts and does not grant a substantive right of action. The right of action is to be established by reference to the substantive law. After the promulgation of the Constitution of 1973, the jurisdiction of civil courts has been restricted in respect of the matters of Civil Servants relating to their terms and conditions of service. Article 240 of the Constitution in Part XII Chapter-I deals with structure of Civil Services. Pursuant to Articles 240 and 242 of the Constitution, the Sindh Assembly promulgated Sindh Civil Servants Act, 1973, on 5th December 1973, to regulate the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan in connection with the affairs of the province of Sindh. The language of the preamble is reproduced hereunder:- “To regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan in connection with the affairs of the Province of Sindh. WHEREAS it is expedient to regulate by law, the appointment of persons, to, and the terms and conditions of service of persons in, the service of Pakistan in connection with the affairs of the Province of Sindh and provide for matters connected therewith or ancillary thereto:” 145. The Preamble to the Civil Servants Act, in fact, reflects the language of Article 240 of the Constitution. On the 5th December, 1973, the Sindh Assembly also promulgated the Sindh CRP.No.193/2013 etc 86 Service Tribunals Act, 1973 by which Service Tribunal was established to exercise jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants. The Preamble to the Sindh Service Tribunals Act is reproduced herein under:- “Whereas, it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, and for matters connected therewith or ancillary thereto:” 146. Section 3(2) of the Service Tribunal Act provides that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, including the disciplinary matters. In other words, the jurisdiction of all other Courts is barred by the provisions of the Sindh Service Tribunals Act, 1973, read with Article 212 of the Constitution. 147. Section 4 of the Service Tribunal Act provides Civil Servant with the right of filing an Appeal before the Tribunal, subject to the qualifications provided therein. 148. In this background, all the Civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a civil court under CPC cannot entertain a civil suit of a civil Servant relating to the terms and conditions of his service. The exercise of jurisdiction by the High Courts is conferred under Article 175(2) which reads as under:- “175(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.” 149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to CRP.No.193/2013 etc 87 terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals. 150. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining Civil Suits and constitution petitions filed by the civil servants, which are explicitly barred by Article 212. The expression ‘Terms and Conditions’ includes transfer, posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under Section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants. 151. We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil Servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 and the law. CRP.No.193/2013 etc 88 152. During the present proceedings, we were informed by the learned Additional Advocate General Sindh and other petitioners that the Civil Servants have filed suits and petitions before the High Court of Sindh on the subject, which was conclusively determined by this Court in its judgment under review. We called for the list of the Constitution Petitions as well as of the suits which were filed before the High Court of Sindh, and we are shocked to notice that numerous petitions and suits filed by the Civil Servants were pending and in some cases even restraining orders had been passed in the matters strictly falling outside the ambit of the suit or writ petition and the only and proper forum available in such cases was the Tribunal. 153. More alarmingly, we also observed that some of the suits and petitions were clearly in violation of the principles set by this Court in the judgment under review. The admission of these suits and petitions by the Learned Judges concerned obviously confront and defy Article 189, if not attract the provisions of Article 209 of the Constitution. 154. Hence, the suits and C.Ps which have been filed by the officers who were de-notified by the Sindh Government in compliance with the judgment under review, shall stand abated as the High Court of Sindh lacks the jurisdiction to hear such suits and CPs in view of the bar under Article 189. However, the Plaintiffs or Petitioners, whose suits or CPs stand abated by this judgment can approach this Court if he has not filed Review Petition earlier. 155. The second category of the Petitions relates to the Civil Servants, who have filed Petitions or Suits against orders of departmental authorities which have no nexus with the findings of CRP.No.193/2013 etc 89 the judgment under review. The list provided to us by the Registrar reflects that the Civil Servants have filed as many as 2, 278 Constitutional Petitions besides a substantial number of Suits in the High Court of Sindh in relation to their terms and conditions of service. 156. We direct the Hon’ble Chief Justice of the High Court of Sindh to constitute a Special Division Bench comprising Senior Judges of the Court to scrutinize the aforesaid Constitutional Petitions, in the light of the principles enunciated by this Court in these proceedings. In case, the learned Special Division Bench comes to the conclusion that the subject matter of the Constitution Petitions relates to the terms and conditions and or the disciplinary proceedings of the Civil Servants, they shall forthwith remit such Constitutional Petitions to the Sindh Service Tribunal or the Federal Service Tribunal, as the case may be. 157. Likewise, the Hon’ble Chief Justice of High Court of Sindh shall also constitute a Special Bench comprising the Senior Judge of the Court, who will examine the nature of Civil Suits filed by the Civil Servants and transfer them to the Sindh Service Tribunal or the Federal Service Tribunal, as the case may be, in case such suits pertain to the terms and conditions of their service including disciplinary proceedings, forthwith under intimation to this Court. The Federal Service Tribunal or the Sindh Service Tribunal, on receipt of the R&PS of the Constitution Petitions or Suits, shall treat them as Appeals deemed to have been filed before them on the date when presented before the High Court of Sindh and decide them in accordance with law. The question of CRP.No.193/2013 etc 90 limitation, if involved, will be considered by the respective Tribunals, in accordance with law, in the peculiar facts and circumstances of the cases. 158. In the same manner, the Civil Suits filed by the employees of statutory bodies or Government Servants relating to their terms and conditions of service inclusive of the disciplinary proceedings, who are serving in the organizations having statutory service Rules, shall be transferred to be heard by a Division Bench in Constitutional jurisdiction treating them as Constitutional Petitions for disposal in accordance with law. The Chief Justice of the High Court of Sindh shall constitute the Special Benches within a week from the date of communication of this judgment. The Special Benches, as directed above, shall take up the cases on day to day basis and complete the aforesaid exercise within two months from the date of constitution of the Benches. The Registrar, High Court of Sindh, shall submit periodic compliance report after every two weeks for our perusal in Chambers. 159. We, for the aforesaid reasons, dismiss all these review petitions along with the C.M.As (except the cases dealt with separately in Review Petitions and Civil Suits) in the light of our findings recorded hereinabove, which are in addition to the findings recorded in the judgment under review. 160. We direct the Chief Secretary, Sindh, to create surplus pool within the parent department, of the officers/officials who have been de-notified and create vacancies to accommodate them, within a period of two months from the date of communication of this judgment. The officers/officials who have been repatriated to their parent departments shall be entitled to salaries and other CRP.No.193/2013 etc 91 benefits from the date they were relieved to join their parent departments. Their seniority shall be maintained in their parent departments with their batch-mates, as if they were never relieved from their parent departments. Expiry of period of lien shall not come in the way of the officers to deprive them from joining the parent department. In case, if the parent department has been abolished, the competent authority, shall appoint them by transfer in terms of Rule 9-A, subject to the restrictions contained therein, in line with the findings recorded by us in these proceedings. We make it clear to the Sindh Government that if any other officer, who was covered by the judgment under review or by this judgment, is still working in Sindh Government in willful defiance of the judgments, he shall be repatriated and or transferred to his parent department, post or cadre forthwith. Pendency of proceedings filed by any such officers/officials who have been ordered to join their parent department or otherwise continuing in defiance of the judgment of this Court by obtaining any restraining order from any forum including the High Court of Sindh shall not come in the way of the Sindh Government in implementing this judgment. 161. The Sindh Government is directed to implement the judgment in letter and spirit. Non-compliance of any part of this judgment shall expose the Chief Secretary, Sindh, Secretary Services, Secretary Law, concerned Secretary of the department or any officer found instrumental in this behalf besides the beneficiary to contempt proceedings. Compliance report shall be submitted by the Chief Secretary, Sindh through the Registrar of this Court for our perusal in Chambers, within 15 days from the date of communication of this judgment. CRP.No.193/2013 etc 92 REPATRIATION OF OFFICERS TO FEDERAL GOVERNMENT 162. By the judgment under review, we had directed the Sindh Government to repatriate the officers beneficiaries of the legislation, which was struck down by the judgment under review. We are informed that many Departments of the Federal Government have declined to accept the officers repatriated by Sindh Government in compliance with the judgment under review. The Additional Advocate General, who appeared in the Review Petition has brought to our notice the grievances of the officers, which belong to the Federal Government or to the institution run under the patronage of Federal Government inter alia, on the ground that their period of lien with the parent Department has expired and or there was no vacancy to accommodate them. 163. This Court has already held in the judgment under review that initial order of their transfer from the parent departments to the Sindh Government was not backed by the mandate given by the civil servant law, which is promulgated pursuant to Articles 240 and 242 of the Constitution. Therefore, such orders by the parent Departments are without lawful authority. Consequently, the expiry of the period of the lien will have no bearing. 164. The list of the officers is reproduced herein below: CRP.No.193/2013 etc 93 CRP.No.193/2013 etc 94 CRP.No.193/2013 etc 95 CRP.No.193/2013 etc 96 CRP.No.193/2013 etc 97 CRP.No.193/2013 etc 98 CRP.No.193/2013 etc 99 CRP.No.193/2013 etc 100 CRP.No.193/2013 etc 101 CRP.No.193/2013 etc 102 CRP.No.193/2013 etc 103 CRP.No.193/2013 etc 104 CRP.No.193/2013 etc 105 CRP.No.193/2013 etc 106 CRP.No.193/2013 etc 107 CRP.No.193/2013 etc 108 165. We, in the peculiar circumstances of the matter, direct the aforesaid officers to report to the Secretary Establishment Division, Islamabad, within 15 days from the date of this judgment. The Secretary Establishment shall create a Devolution Cell in the respective parent Departments and, on availability of the vacancy in the parent Departments, they will be posted. In case, the Department of the Federal Government and or the Organization to which the officer belongs has been devolved, the Secretary Establishment shall post them in terms of Section 11-A of the Civil Servants Act to another Department in conformity with the scheme of the Civil Servants Act. All these officers shall be entitled to their salaries and other perks from the date they were relieved from Sindh Government. They will also be entitled to their inter-se seniority and promotion, subject to the Rules, with their batchmates as if they were never relieved from their parent Departments. 166. The Attorney General for Pakistan shall keep in touch with the Secretary Establishment and ensure that this part of the judgment is implemented in the above terms. The Attorney General shall report compliance within two months from the date of communication of the judgment. C.R.P.NO. 81 OF 2013 (Tariq Mughal vs. Chief Secretary Sindh) 167. One of the Petitioners, Tariq Mughal, had filed Crl. Review Petition No.81/2013, challenging the judgment under review. The Petition was heard on 21.10.2014 and judgment reserved, alongwith the other Review Petitions. On 12.11.2014 he made a Criminal Misc. Application No.nil/2014 for withdrawal of his Crl. Review Petition No.81/2013. Once his Crl. Review Petition was heard at length by us in Court, there was no occasion to seek withdrawal of the Petition without any justification. We, in the peculiar circumstances declined the request of the Petitioner Tariq Mughal for withdrawal of his Crl. Review Petition No.81/2013. 168. On receipt of the application for withdrawal of Civil Review Petition by Tariq Mughal, we had asked the Additional Advocate General Sindh to confirm as to whether Tariq Mughal was repatriated to his parent Department on issuance of the notification. In response, we received a brief note from S&GAD CRP.No.193/2013 etc 110 containing service profile of Tariq Mughal, which reflects that originally he was an Engineer (Mechanical) in BS-17 in Port Qasim and transferred on deputation to the Sindh Unified Grade Service for 3 years. During his period of deputation, on 1.10.2011, he was absorbed in the Sindh Unified Grade Service. On 02.07.2013, the Sindh Government issued notification in compliance with the judgment under review withdrawing his absorption. Instead of repatriating him to the Port Qasim Authority, the Secretary Local Government Department had placed his services in the surplus pool of Local Government and, subsequently, he was posted in Sindh Local Government Department. 169. When this Court enquired about the status of the Petitioner, the Local Government Department issued notification on 15.11.2014, repatriating him to his parent Department i.e. Port Qasim Authority. 170. After perusal of the brief note of the S&GAD, we are of the view that the Petitioner Tariq Mughal had wrongly continued in the Sindh Local Government Department in connivance with the high ups of the Sindh Government. It appears to be an alarming situation, where the Secretary, Sindh Local Government Department has willfully defied the judgment of this Court by placing the services of Tariq Mughal in the surplus pool of the Sindh Local Government Department. Tariq Mughal was required to report to his parent Department which he willfully avoided. 171. We, accordingly, direct the Sindh Government to ensure that Tariq Mughal stands relieved forthwith to join his parent Department. We restrain ourselves from initiating contempt proceedings against Tariq Mughal and the then Secretary Local CRP.No.193/2013 etc 111 Government, who were in league to defeat the findings of this Court which resulted in his repatriation. The Chief Secretary Sindh shall submit a compliance report within 15 days from the date of communication of the judgment. The application for withdrawal of the Criminal Review tainted with malice, is dismissed alongwith the Review Petition for the reasons already detailed in the judgment under review. The Chairman, Port Qasim Authority shall allow joining to Tariq Mughal, and expiry of lien period will not come in his way. The Petitioner, however, shall also be entitled to inter-se seniority with his batchmates as if he was never relieved from the Port Qasim Authority. Crl. Review Petition No.38/2014 (Mrs. Asma Shahid Siddiqui, in person) 172. The Petitioner, in person, submitted that she was serving in the Forest Department, Government of Punjab as Forest Ranger in BS-16 on regular basis. On 11.2.1997, her services were transferred to the Forest Department, Sindh Government, in the same grade while placing her seniority at the bottom. She was posted as Forest Officer in BS-16 in the Department with the consent of both the Provincial Governments and subsequently, she was absorbed in the Sindh Province in terms of the provisions of Sl. No.4 of the ESTACODE which deal with the wedlock policy. Her absorption in Sindh Forest Department was made in conformity with Section 24 of the Act read with Rule 9-A of the Rules of 1974. The Petitioner has stated that she had been serving as District Forest Officer in the Province of Sindh for the last 17 years and she was repatriated to the Province of Punjab in compliance with the judgment under review. CRP.No.193/2013 etc 112 173. In the peculiar circumstances of the case, we are of the considered view that her case is an exception to the findings recorded by us in the judgment under review as she was transferred and absorbed in terms of the provisions of ESTACODE on the basis of wedlock policy, in the same Basic Scale and Department in Sindh, in which she was serving in the Province of Punjab since 1997. Therefore, she was wrongly de-notified. We, accordingly, direct the Chief Secretary, Sindh to immediately withdraw the notification of her repatriation and restore her posting to her original position in the Province of Sindh as if she was never repatriated. She shall be given all the salaries and perks of the intervening period. The compliance report shall be submitted by the Chief Secretary, Government of Sindh, which shall be placed for our perusal in Chambers within two weeks from the judgment. 174. For the aforesaid reasons, the Criminal Review Petition No.38/2014, is allowed in the above terms. Crl.R.P.No.79/2013 (Syed Shakir Hussain vs. Province of Sindh etc) 175. The learned Counsel for the Petitioner contended that in pursuance of the judgment under review, out of turn promotion of the Petitioner was withdrawn. However, while withdrawing his out of turn promotion, the Competent Authority has fixed his seniority below his batchmates as most of them, who were junior to him, were promoted in the intervening period. This is not the spirit of the judgment under review. We, accordingly, direct the Chief Secretary, Government of Sindh to ensure that the seniority of the Petitioner is fixed with his batchmates, in the same order as CRP.No.193/2013 etc 113 if he was never given out of turn promotion, and if his batch mates were promoted in the intervening period, he shall also be promoted with them, maintaining his original inter-se seniority. The matter shall be resolved by the Chief Secretary or by the Competent Authority within two weeks of this judgment and the Petitioner shall be entitled to all his perks and salary benefits along with the difference, if any, from the date of his de-notification till fixation of his seniority. 176. The Criminal Review Petition No.79/2013, filed by the Petitioner is allowed in the above terms. The Chief Secretary shall submit compliance report within two weeks from the date of communication of this judgment, for our perusal in Chambers. CRP NO. 71 OF 2013 (Jaffar Abbasi Vs. Province of Sindh etc) 177. The Petitioner Jaffar Abbasi was de-notified and reverted back to his parent department by the Sindh Government in compliance with the judgment under review, as he was absorbed in the Provincial Secretariat Service from Public Service Commission Department. He filed the Review Petition, which was argued by his Counsel, Mr. Tariq Mehmood on 10.06.2014 and was reserved for judgment. 178. In September 2014, when the other Review Petitions were taken up for hearing, the Petitioner’s Counsel sought withdrawal of his Review Petition on the ground that he has filed a Constitution Petition before the High Court of Sindh and has obtained an interim order. This information was shocking for us. We declined the request of the learned ASC for withdrawal of the CRP.No.193/2013 etc 114 Review Petition and directed the Registrar High Court of Sindh to send us the R&Ps of the Constitution Petition filed by the Petitioner. 179. On perusal of the R&Ps, we had noticed that on 01.07.2013, the Petitioner filed a Constitution Petition No. D-2817 of 2013 before the High Court of Sindh, on the same subject which was pending in C.R.P.No.71/2013. On 3.7.2013 The Petition was fixed before a Division Bench No.V, headed by Mr. Justice Syed Hasan Azhar Rizvi, which Bench passed the following order : - “1. Granted 2. Granted with all just exceptions. 3&4. It is stated by the learned counsel that the petitioner is not a deputationist and is working in the department which has been assigned to him after passing the competitive examination. He states that under the garb of the judgment given by the Honourable Supreme Court of Pakistan, he is now being transferred from his department. He states that the respondents may be directed to follow and interpret the judgment of the Honourable Supreme Court dated 12.06.2013 in its letter and spirit which is not being complied with by them. Let notice be issued in this regard to the respondents as well as A.G. for 6.8.2013.” 180. The Order Sheet shows that the matter was fixed on 6.8.2013, when the Board was discharged. On 8.8.2014, the Office fixed the matter on 25.9.2014. However, on 11-09-2014, an application for urgent hearing was allowed by the Division Bench No.V and the matter was taken up in Court on the same day. The Division Bench comprising Justice Syed Hasan Azhar Rizvi and Justice Aziz-ur-Rehman, suspended the notification, issued by the Sindh Government in compliance with the judgment under review, while passing the following order without hearing the Advocate General, Sindh, who was on notice : - “ Urgent application granted. Learned Counsel for the Petitioner submits that a notification dated 1.09.1999 enclosed as CRP.No.193/2013 etc 115 Annexure “B” at page-33 with the memo of Petition was issued whereby the Competent Authority was approved the appointment of the Petitioner on the post of Deputy Secretary (Regulation) BPS-18 in the Sindh Public Service Commission and transferred him permanently from commission to S&GAD as Deputy Secretary (Budget). However, by another Notification dated 02.11.1999 the aforesaid Notification was withdrawn/cancelled, which is enclosed as Annexure “C” at page-35 with the memo of Petition. Petitioner filed departmental Appeal to the Competent Authority thereafter, challenged the said Notification before the Sindh Services Tribunal at Karachi in Appeal No.56/2000, which was allowed by order dated 21.06.2005 whereby the impugned Notification dated 02.11.1999 was set-aside and the Notification dated 01.09.1999 was restored, said judgment of learned Services Tribunal was challenged by one Imran Ali Soomro before the Hon’ble Supreme Court of Pakistan by filing Civil Appeal No.1229/2005, which was dismissed by orders enclosed as Annexures “G&H” with the memo of Petition as such the judgment of the Services Tribunal attained finality. Learned Counsel for the Petitioner further states that the Petitioner was appointed on the basis of the Notification dated 01.09.1999 and his appointment was upheld by the Judicial Orders upto the Apex Court. Respondents have wrongfully and illegally mentioned in the name of the Petitioner at Sr.No.20 in the Notification dated 02.07.2013. As per learned Counsel the case of the Petitioner does not fall within the purview/ambit of judgment passed in Criminal Original Petition No.89/2011 passed by the Hon’ble Supreme Court of Pakistan reported in 2014 PLC (CS) 82. Case of the Petitioner as per learned Counsel is neither of absorption nor out of turn promotion as such his case is outside the scope of the notification dated 02.07.2013. Issue notice to the Respondents and Advocate General Sindh for 13.10.2014. In the meantime, the operation of the impugned Notification to the extent of Petitioner viz. Muhammad Jaffer Abbasi mentioned at Sr.No.20 is hereby suspended, till next date of hearing.” 181. The High Court of Sindh was not competent to entertain the Constitution Petition of the Petitioner under Article 199 of the Constitution, as the Petitioner was seeking suspension of the notification issued by the Sindh Government in compliance with the judgment of this Court. The High Court of Sindh cannot sit in appeal against the findings recorded by this Court, in defiance of the mandate of Article 189 of the Constitution. Besides, the Petitioner has already filed a Review Petition in this Court for CRP.No.193/2013 etc 116 remedy of his grievance, which was heard on 10.06.2014 and the judgment was reserved. The jurisdiction of High Court of Sindh is otherwise ousted by the bar of Article 212 of the Constitution. 182. We have noticed that the High Court of Sindh, while overlooking the mandates of Articles 189 and 212 of the Constitution, has started entertaining Petitions under Article 199 of the Constitution filed by Civil Servants which has paralyzed the Service Tribunals. In order to comprehend the true picture, we have called for the R&P of the Constitution Petition No. 2817 of 2013 filed by the Petitioner. We had noticed that the Petitioner, after the judgment in Review Petition was reserved in June 2014, had filed the Petition before the High Court of Sindh and obtained interim order, with the sole object to defeat the judgment of this Court. His case of erroneous absorption in Provincial Secretariat Service is fully covered by the findings recorded by this Court in the judgment under review. The Petitioner, being an Officer of the Public Service Commission, was wrongly absorbed in the Provincial Secretariat Service, which is a distinct specie of service and has its independent recruitment Rules and Service Structure. The Petitioner was not eligible to be appointed by transfer under Rule 9(1) of the Rules of 1974 and was erroneously absorbed in the Provincial Secretariat Service, which service could only be joined after qualifying the required competitive examination. The Civil Servants Act and Rules framed thereunder do not permit such absorption. We, for the reasons already recorded by us in our impugned judgment, dismiss the Civil Review Petition, holding that the Petitioner was rightly de-notified by the Sindh Government in compliance with the judgment under review. Consequently the Constitution Petition No.D-2817 of 2013 stands abated. CRP.No.193/2013 etc 117 183. The Petitioner’s conduct of approaching High Court of Sindh, during the pendency of his Review Petition, prima facie, amounts to contempt of the authority of this Court. We, accordingly direct the Office to issue Show Cause notice to the Petitioner under Article 204 read with Section 17(1) of the Contempt of Court Ordinance 2003, calling upon him to submit his explanation as to why he should not be proceeded against for willfully defying and defeating the judgment of this Court dated 12.6.2013, by filing the Constitution Petition No.2817/2013, in the High Court of Sindh on the same subject and obtaining the restraining order, after availing the remedy of Review Petition. The Office shall make a separate file of the proposed Criminal proceedings by assigning number. Crl.R.P No.80 OF 2014 (Mirza Shahbaz Mughal vs. Province of Sindh etc) 184. Through these proceedings, the learned ASC Mr. Abid Zuberi has prayed that the proceedings in Suit No. 102/2013 filed by the Petitioner before the learned High Court of Sindh be allowed to continue. He has sought expungment of the remarks passed by this Court against the Petitioner in the judgment under review. 185. On 01.02.2013, the Petitioner had filed Civil Suit No. 102 of 2013 in the High Court of Sindh against the Sindh Government and its officials for “Declaration and Permanent Injunction” with the following prayers:- “PRAYER It is, therefore, prayed that this Hon’ble Court may be pleased to pass judgment and decree in favour of the Plaintiff as under: A. Declare that the Notification dated 13-1-2012 issued by Defendant No.1 withdrawing the CRP.No.193/2013 etc 118 name of the Plaintiff from the Notification dated 3-09-2012 is in accordance with law. B. Declare that the Impugned Letter dated 28-1-2012 issued by the Defendant No.2 is illegal, malafide, without jurisdiction, unwarranted in law and fact as well as in violation of principles of Natural Justice. C. Suspend the Impugned Letter dated 28-1-2012 issued by the Defendant No.2. D. Grant permanent Injunction prohibiting/ restraining the Defendants, their employees or any person acting under them or on their behalf from taking any coercive action against the Plaintiff in pursuant to Impugned Letter dated 28-1-2013. E. Grant permanent Injunction prohibiting / restraining the Defendants, their employees or any person acting under them or on their behalf from withdrawing Notification dated 13-1-2013. F. Grant any other relief deemed just and appropriate in the circumstances of the case. G. Grant costs of the suit. 186. Alongwith the Suit, an application under Order XXXIX Rules 1 and 2 CPC was also filed and on 04.02.2013, a State Counsel appeared on behalf of the Sindh Government and sought time. The learned High Court passed status-quo order, which continued. On 15.05.2013, the Petitioner made three Misc. Applications, one application for urgent fixation of the matter, second application for suspension of the Notification dated 07.05.2013, by which the Petitioner’s earlier Notification dated 14.03.2013 for appointment as DSP in Sindh Police was withdrawn, and third application was under Order XXXIX Rule 2(3) CPC, seeking initiation of contempt proceedings against the Defendant Additional Chief Secretary (Home Department) for willful disobedience of the ‘status-quo’ order of the Court. 187. The learned High Court on 16.05.2013, allowed the urgency application and, while issuing notices in the other two CRP.No.193/2013 etc 119 applications, suspended the Notification dated 07.05.2013 of the Additional Chief Secretary (Home Department). 188. The background of the notification of 07.05.2013 of the Sindh Government was that during the hearing of the arguments in C.P.No.71/2011 and other Petitions in Criminal Original Petition No. 89-K of 2011, two CMAs numbered as 245/2013 and 247/2013 were filed, complaining that the Sindh Government had appointed 10 D.S.Ps without observing requisite Codal formalities. On 06.05.2013, this Court enquired from the Additional Advocate General Sindh, representing the Sindh Government, to satisfy the Court as to how the Sindh Government could appoint D.S.Ps without recourse to the procedure prescribed under the service law. The Additional Advocate General sought time for instructions and on the following day, he made a statement that all the D.S.Ps appointed directly, including the Petitioner, have been de-notified by notification dated 07.05.2013. 189. The Petitioner challenged the notification dated 07.05.2013 in the said civil suit and obtained a restraining order, enlarging the scope of the suit. On the date when the notification dated 07.05.2013 was placed before us, we were not informed that a suit was filed by the Petitioner. However, a complaint was sent to this Court that inspite of the Notification dated 07.05.2013, the Petitioner is continuing as DSP on the basis of an order in the Suit No. 102 of 2013, and therefore, R&Ps of the said Suit was called. 190. After perusal of the R&Ps, we in paras 177 to 181 of the judgment under review had taken note of the conduct of the Petitioner who was willfully defeating the orders of this Court passed at times. We, therefore, directed the learned High Court of CRP.No.193/2013 etc 120 Sindh to dispose of the suit on the basis of the findings recorded by us in the judgment under Review. This has not been done by the learned High Court of Sindh, though the impugned judgment was circulated amongst the Judges of the Court through the Chief Justice. 191. It is contended by Mr. Abid S. Zubair, ASC that the Petitioner was lawfully appointed as DSP and the judgment under review does not cover the case of the Petitioner. He prayed that the suit filed by the Petitioner before the High Court of Sindh be allowed to continue and its maintainability be determined by the said Court. We inquired from the learned counsel to satisfy us as to how a Civil Servant can file a Suit relating to the terms and conditions of his service. We further asked to satisfy us as to how the Petitioner was granted back dated seniority and out of turn promotion. He could not offer any plausible explanation to the queries. We have perused the service profile of the Petitioner provided by the S&GAD. 192. We have noticed that the Petitioner was appointed as ASI on 29.01.1996 in Larkana (Range) under the Police Rules 1934, as a Probationer. He was confirmed as A.S.I. He was promoted to the rank of Sub Inspector on 17.12.2001 and was confirmed as such on 18.12.2003. He was extended undue favours and appointed by promotion as Inspector on 26.04.2004 on adhoc basis with the rider that he will not claim seniority over his seniors, and will retain his original seniority in the promotion list. The order of his promotion further qualifies that his promotion will be regularized on his turn along with his batch mates. CRP.No.193/2013 etc 121 193. A further favour was extended to the Petitioner on 18.02.2009, when the then CCPO Karachi recommended to post him as DSP on his own pay and scale which recommendation was accepted on 20.05.2009. The grounds recommending the Petitioner for out of turn promotion were illegal and untenable in law. We have gone through the Minutes of the Committee, recommending the appointment of the Petitioner on OPS as DSP, reproduced herein below: “The committee has examined the record as well as comments furnished by the then Capital City Police Officer, Karachi under his office letter No. CCPO/KHI/E.I/93359 dated 10.08.2010. The committee has also observed that the performance of Mirza Shahbaz Mughal while working as PSO to CCPO, Karachi on officiating basis, on law & order situation in Karachi, have full grasp over his duties, which facilitated to achieve disposal of pending & complicated cases even holidays, which can be termed outstanding for his exceptional performance. He not only performed superb in reorganization of office. He has excellent analytical skills with capacity to plan, organize and executive his plan, which help full to CCPO Karachi in public dealing for their problems and pursue for its redressal. Besides above, in the following filed assignments, his performance remained excellent and up to the mark: 1. As SHO, PS Gulistan-e-Johar on 26.04.2004, after exchange of firing he arrested 2 bandits and recovered looted booty dinar 475,000/- and illicit weapons from their possession (FIR No. 59/2004 u/s 353/324/34 PPC). 2. As SHO PS Gulistan-e-Johar on 29.06.2004, near Safoora Chowk arrested 2 suspicious alongwith motorcycle and recovered one pistol 30 bore loaded and looted booty Rs.3510/- (FIR No. 117/2004 u/s 353/324/34 PPC). 3. On 10.08.2004, during patrolling among bungalows of Block-8, arrested suspicious person and one pistol 30 bore loaded with 3 cartridges an twin edged dagger having blade more than 8. The officer was recommended for promotion to the next higher rank in recognition of his excellent performance in arrest of notorious street criminals, CRP.No.193/2013 etc 122 number of gun runners, during peddlers to traffickers alongwith recoveries and lodged FIRs, however, after due consideration he was promoted as DSP on officiating basis. He is working as DSP since last more than 21 months. In view of the above the committee has recommended that the request of Mrs. Zahida Sarwar for placing the name of Mirza Shahbaz Mughal in the seniority list of DSsP of Sindh Police, may be allowed and matter may be referred to competent authority for regularization of Mirza Shahbaz Mughal as DSP.” 194. The undue favours extended to the Petitioner-Sub Inspector, in an unprecedented manner on the aforesaid grounds, could hardly be construed valid to excel his rank to that of a DSP. It is the duty of a Police Officer to arrest culprits and bring them to book. These acts of the Petitioner, in no way, could be construed as gallantry act beyond the call of duty of a Police Officer. What was more surprising was that the Committee, on the aforesaid grounds, had recommended the Petitioner for his regularization in the rank of D.S.P. through the then I.G Police and the then Additional Chief Secretary, who endorsed these recommendations. The regularization of the Petitioner as DSP, was treated as a fresh appointment on regular basis in order to save his appointment as D.S.P against the law enunciated by this Court in an unprecedented manner, which we believe, has never happened before in Police Force. 195. The Petitioner was placed at Sl.No.283 in the seniority list of the Sub-Inspectors. It is claimed that his appointment as DSP was regularized in exercise of powers conferred under Section 24 of the Act read with Rule 19 of the Rules of 1974. The competent authority can neither appoint nor regularize the services of the Petitioner under section 24 of the Act, which is an enabling provision and does not confer authority on the competent CRP.No.193/2013 etc 123 Authority to pass such orders to the disadvantage of other Civil Servants. We would be dealing with the scope of Section 24 of the Act separately. Appointment of a Civil Servant is provided under Section 5, subject to the prescribed manner, which requires that any officer in BS-17 can only be appointed on the recommendation of the Public Service Commission, which, after advertising the post, takes examination of the candidates and declares their results on merit. The powers under Section 24 of the Act cannot circumvent the mandate for appointment of a Civil Servant as provided by the Articles 240 and 242 of the Constitution. Reference to Rule 19 of the Rules of 1974 is also alien to the case of the Petitioner. The powers under Rule 19 could only be exercised in the public interest, in exigencies and pending nomination of a candidate by the Commission with the qualification that such powers are subject to the procedure laid down by Part-III of the initial appointment under the Rules of 1974. 196. We have failed to understand as to how the Petitioner, through such unwarranted means, can continue in the Police Force as D.S.P. The Petitioner, at no point of time, was ever confirmed in the rank of Inspector, therefore he could not have been appointed on OPS as DSP nor could his services be regularized unless he was a confirmed Inspector or had served for five years in order to qualify to be considered for promotion to the post of DSP. Under the Civil Servants Act, seniority of the police officers is reckoned from the date of their regularization, as provided under section 8(4) of the Civil Servants Act. Since the Petitioner was never promoted on his turn as Inspector, nor was confirmed in the rank of Inspector and his batch mates are still serving as Sub Inspectors, therefore, he cannot be regularized as CRP.No.193/2013 etc 124 DSP nor his regularization can be treated as fresh appointment as DSP. 197. The procedure for appointment to the post of DSP has two modes (i) by promotion, where an Inspector confirmed in his substantive rank has served for five years and is otherwise senior amongst his batch mates, or (ii) by initial recruitment, as prescribed by the Rules. The Petitioner is not covered by this mode as he does not qualify the ternural limitation prescribed for promotion. By Act No. XI of 1989, the Sindh Assembly has created ‘Sindh Public Service Commission’ and under Section 10 of the said Act, the Sindh Government has framed the Rules calls “Sindh Public Service Commission (Functions) Rules 1990” [hereinafter referred to as “the Rules 1990”]. In terms of Rule 3(1)(i) it is provided that all civil posts connected with the affairs of the Province in Basic Pay Scale 16 to 22, except those specified in the schedule, shall be filled by the Sindh Public Service Commission through competitive process. Such posts are required to be advertised publically. In the case in hand, this mandatory mode, required under the rules, was not followed while notifying the Petitioner as a fresh appointee, who was already in police service in the rank of Sub-Inspector. The case of the Petitioner is fully covered by our judgment under review as he was given out of turn promotion and was given back dated seniority and his regularization or adjustment as DSP was not backed by any law which could confer power on the Competent Authority to treat him as a fresh appointee. The competent Authority shall forthwith post him as Sub-Inspector. CRP.No.193/2013 etc 125 198. We may observe that on 6.5.2013, two CMAs numbered as 245/2013 and 247/2013, containing list of other nine persons who were also appointed as D.S.P. without recourse to the provisions contained in the Rules, 1974, alongwith the Petitioner, were filed. The said Rules require that a post of BS-17 can only be filled through Public Service Commission after advertisement. The Sindh Government and or the Competent Authority cannot bypass this mandatory requirement and substitute a parallel mechanism to appoint a person in BS.16 to 22 against the language of these Rules, which are framed under the dictates of the Act as mandated under Article 240 of the Constitution. The Article 242 of the Constitution provides the mechanism for appointment of a Civil Servant through Public Service Commission. This Article is safety valve which ensures the transparent process of induction in the Civil Service. It provides appointment by Public Service Commission with the sole object that meritorious candidates join Civil Service. The Sindh Government through executive or legislative instruments can not withdraw any post from the purview of the Public Service Commission as has been done in the case of the DSPs, in negation to the command of Article 242 of the Constitution. For the aforesaid reasons, we hold that the Sindh Government shall make all the appointments in BS 16 to 22 through Public Service Commission. 199. We, for the aforesaid reasons, hold that the Petitioner was rightly reverted to the rank of Sub-Inspector in terms of the letter of Dr. Muhammad Amin Yousuf Zai DIG (Establishment). The Competent Authority shall fix the inter-se seniority of the Petitioner with his batchmates. The Petitioner shall restore all the CRP.No.193/2013 etc 126 benefits including salaries drawn by him as DSP to the Sindh Government from the date of the judgment under review. The concerned Department shall deduct and/or adjust the aforesaid benefits in installments from his future salary within a span of 03 years and report compliance. 200. The Petitioner shall be issued a Show Cause Notice under Section 17(1) of the Contempt of Court Ordinance 2003, read with Article 204 of the Constitution, calling upon him to furnish explanation as to why contempt proceedings should not be initiated against him for willful defiance of the orders dated 30.08.2012 and 07.05.2013, besides the impugned judgment. The office shall make a separate file of the proposed contempt proceedings by assigning it a separate number. This Review Petition is dismissed with costs. The suit of the Petitioner stands abated being barred not only under Article 212 of the Constitution, but also under Article 189. 201. We must record our displeasure over the officers, who were instrumental in extending undue favours to the Petitioner. We direct the competent Authority to initiate departmental proceedings against the then CCPO Karachi, the then Additional Chief Secretary Sindh and members of the Committee, who recommended the Petitioner for appointment as DSP, and report compliance within two weeks for our perusal in Chambers. C.P. No.968/2014 (Saleem Ullah vs. Province of Sindh etc) 202. The Petitioner’s Counsel, Mr. Tariq Mehmood, has contended that the Petitioner was appointed as Assistant Executive Engineer (AEE) in BS-17 in Karachi Water and Sewerage Board CRP.No.193/2013 etc 127 (KW&SB) whereas one Muhammad Harris was appointed as AEE in BS-17 in the Communication and Works (C&W) Department. The Petitioner and Muhammad Harris applied for mutual transfer. On 12.6.1995, their application for mutual transfer was allowed. Thereafter, on application of Muhammad Harris, he was absorbed in KW&SB, whereas the Petitioner was absorbed in C&W Department. The Petitioner was not a Civil Servant and therefore, he could not have been transferred and absorbed in C&W Department either under Section 24 of the Civil Servants Act or under Rule 9(1) of the Rules 1974. 203. It is settled law that a non-Civil Servant cannot be conferred the status of a Civil Servant, which the Petitioner has acquired by absorption in C&W Department. Therefore, the Petitioner was rightly de-notified. Consequent upon the detailed reasons given in the judgment under review, the absorption of the Petitioner in the C&W Department, was un-warranted. This Civil Petition, for the aforesaid reasons, merits dismissal. The Petitioner shall immediately join his parent Department i.e. KW&SB and Muhammad Harris shall be reverted back to his parent department i.e. C&W Department. The Petitioner as well as Muhammad Harris shall be entitled to their inter-se seniority with their batchmates from the date on which they were transferred from their parent Departments. Crl.R.P.40/2014 (Ata Muhammad Memon vs. Chief Secy. Govt. of Sindh) 204. The Petitioner, in person, contended that on 4.8.1987, he was appointed as Assistant Engineer in KDA on temporary basis. On 27.4.1989, he was transferred on mutual basis to Public CRP.No.193/2013 etc 128 Health Engineering and was posted in Hyderabad, where he was working till he was de-notified in compliance with the judgment under review. The Petitioner stated that after his de-notification he had joined KMC as the KDA, which was his parent department, had devolved. He submitted that he had not been allowed to join, inter alia, on the ground that the judgment under review does not cover his case. 205. We have laid down the principles which covers the case of the Petitioner. The absorption of the Petitioner in the Public Health Engineering, was un-warranted. Therefore, we direct the Chief Secretary Sindh, to create a surplus pool in KMC and the Petitioner shall be posted in the pool till he is posted against a vacancy in the Department. He would be entitled to his inter-se seniority with his batchmates with whom he was working in KDA at the relevant time before his absorption to the Public Health Engineering. The Petitioner shall be given salary from the date he was de-notified, within 15 days from the date of communication of this judgment. At the same time the Officer with whom he was mutually transferred, shall be reverted back to his parent Department with the same benefits as detailed above. The Chief Secretary Sindh shall submit compliance report for our perusal in Chambers. The Review Petition is disposed of in above terms. Crl.R.P.No.41/2014 (Ali Murad Abro vs. Chief Secy. Govt. of Sindh) 206. The Petitioner, in person, stated that he was appointed on 28.7.1987, as Assistant Engineer BS-17 in the KDA on permanent basis. On 26.2.1995, he was mutually transferred to C&W Department on a joint application, with Muhammad Ameer, who was also Assistant Engineer in BS-17 in the C&W CRP.No.193/2013 etc 129 Department. After the judgment under review, he was de-notified and sent back to the Local Government Department and since then he has not been given posting. He has stated that Muhammad Ameer, who was mutually transferred with him, has also not been repatriated to the C&W Department in compliance with the judgment. 207. The Chief Secretary Sindh is directed to ensure that the judgment of this Court is implemented in letter and spirit and the Petitioner and Muhammad Ameer are transferred forthwith to their respective parent Departments. They would be entitled to their salaries from the date of their de-notification as well as their inter-se seniority with their batchmates from the date of their mutual transfer. The Review Petition is disposed of in above terms. The Chief Secretary shall report compliance within 15 days from the date of communication of judgment. Crl. R.P. No.77 of 2013 (Talib Magsi vs. Province of Sindh etc) 208. The learned Counsel for the Petitioner contends that the Petitioner originally was an Officer in the Local Government Department, Balochsitan, and was promoted to BS-18. He claims that the Petitioner’s son was attacked and was moved to Agha Khan Hospital, Karachi, for medical treatment. He applied for his transfer to Sindh Government on humanitarian ground. It is claimed that under Section 10 of the Balochistan Civil Servants Act, he was transferred to Sindh Government and on 5.10.2010 he was appointed as Director Food on deputation. On 3.9.2010, the Chief Minister Sindh, in exercise of powers under Section 24 of the Act of 1973, on an application by the Petitioner, who was on CRP.No.193/2013 etc 130 deputation, absorbed him in the Sindh Government in Ex-PCS cadre. After the judgment under review, the Petitioner was de- notified by the Sindh Government and was ordered to be repatriated to Balochistan. 209. We have dealt with the issue of absorption of a Civil Servant. The Petitioner hails from Balochistan. The Chief Minister, Sindh cannot order absorption of any Civil Servant of a different Province who is on deputation to Sindh Government. Section 24 of the Act or Rule 9(1) of the Rules of 1974, cannot be resorted to for appointment by transfer of a Civil Servant who does not belong to the Sindh Government. The Petitioner could neither have been transferred permanently to the Sindh Government, nor could he be absorbed in Ex-PCS cadre for the reasons given in the impugned judgment. The Petitioner did not have the status of a Civil Servant while serving on deputation in Sindh Government nor could he continue on deputation for an indefinite period. His absorption in Ex-PCS cadre was contrary to the language of Section 5 of the Act, which does not authorize the Chief Minister to appoint the Petitioner by offending the Rules of 1974. 210. We, for the aforesaid reasons, do not find any merit in the Review Petition which is accordingly dismissed. Pendency of any proceedings of the Petitioner before any forum will not come in the way of Sindh Government in repatriating the Petitioner to the Province of Balochistan. Crl.RP. No.70/2013. (Yar Muhammad Bozdar.) Crl.R.P.No.72/2013. (Syed Altaf Ali and others) 211. The Petitioners claim to have been nominated by the Chief Minister as Assistant Commissioners under Rule 5(4)(b) of CRP.No.193/2013 etc 131 the West Pakistan Civil Service (Executive Branch) Rules, 1964. The grievance of the Petitioners is that on account of paras 102 to 111 of the judgment under review, their nominations were withdrawn and they were reverted back to their parent Departments. We have already dealt with this issue in the aforesaid paras. During the hearing of the Review Petition, we have noticed that no mechanism has been provided for nomination of the officers. It is the sole discretion of the Chief Minister to recruit/nominate an employee to the post of Assistant Commissioner in exercise of powers under Rule 5(4)(b) of the Rules of 1964. The discretion to exercise the powers needs to be structured by framing policy, which should encourage merit. On query from the learned Additional Advocate General, Sindh as to how the employees are chosen from different Departments for nomination as Assistant Commissioners; he, on instructions, informed the Bench that no policy has been framed and it is the sole discretion of the Chief Minster. These Rules are not meant to ignore transparency in nomination as such appointments are made by bypassing the regular procedure provided for appointment of a Civil Servant in BS-17. We have noticed that most of these appointments were made amongst the employees, who have been excluded from the purview of the Public Service Commission. Therefore, in absence of policy for nomination to the post of Assistant Commissioner, blue eyed of the high ups will get these jobs. We, therefore, direct the Sindh Government to frame a transparent policy for nomination of these officials, which could ensure that meritorious employees of the Departments mentioned in the Rules of 1964, could be nominated on merits, after proper scrutiny. CRP.No.193/2013 etc 132 212. The Petitioners were found in excess of the quota as per the list provided to us by the Sindh Government and, therefore, for the reasons already recorded by us in the judgment under review, they were not entitled to continue in their Offices. These Review Petitions having no merit are, accordingly, dismissed. C.M.A.No.4568 of 2013 in C.R.P.No.Nil of 2013. (Rafique Ahmed Abbasi vs. Chief Secy. Govt. of Sindh) 213. The Petitioner, through these proceedings, seek review of the judgment, inter alia, on the ground that he was lawfully granted out of turn promotion and after the judgment under review of this Court, he was reverted to the rank of Inspector though his batchmates had been extended favours and their seniority was fixed one step higher than the Petitioner. The issue of out of turn promotion, which has been declared unconstitutional, cannot be allowed to be reopened. However, the grievance of the Petitioner in regard to his seniority can be examined by the Sindh Service Tribunal. 214. Therefore, in order to meet the ends of justice, we remand this case to the Sindh Service Tribunal, which shall treat this Review Petition as Service Appeal and shall decide the same in accordance with law, in line with the principles laid down in this judgment and the judgment under review. The Petitioner shall be at liberty to amend the proposed Appeal appropriately, if so advised. The Tribunal shall, after issuance of notice to the Petitioner and his other batch-mates, determine their seniority in accordance with law. This Review Petition is disposed of in the above terms. CRP.No.193/2013 etc 133 SUIT NO. 1029 OF 2014 (Muhammad Ali Baloch vs. Province of Sindh etc) 215. During the hearing of the Criminal Review Petition filed by the Sindh Government as well as by the beneficiaries, we directed the Sindh Government to provide us the list of the beneficiaries who had obtained restraining orders against the notification issued by the Sindh Government in compliance with the judgment under review. 216. The Sindh Government provided us the list of the Civil Suits and the Constitution Petitions filed by the Petitioners and many other Civil Servants, challenging the notification of the Sindh Government dated 02.07.2013, issued in compliance with the judgment under review. 217. We were sent the list by the Sindh Government in which Suit No. 1029 of 2014, filed by Muhammad Ali Baloch was also mentioned. The Plaintiff Muhammad Ali Baloch had obtained restraining order by seeking suspension of the notification dated 2.7.2013 of the Sindh Government. We may observe that Muhammad Ali Baloch was repatriated to his original post of Assistant Director (Computer Branch) on declaration that he was wrongly absorbed in the regular Police Force. 218. This Notification dated 02.07.2013 was challenged by him by way of Departmental Appeal (Representation) in terms of Section 23 of the Sindh Civil Servants Act and, subsequently, in Appeal No. 144/2013, before the Sindh Service Tribunal. The Service Tribunal, after hearing the parties, held that the judgment under review was fully applicable to the case of Muhammad Ali Baloch and his absorption in the regular Police Force was found to CRP.No.193/2013 etc 134 be unwarranted. Against this judgment, a Civil Petition for leave to Appeal No. 74-K/2014 was filed by Muhammad Ali Baloch before this Court, which was fixed before a three member Bench at Karachi, and one of us (Justice Amir Hani Muslim) was heading the Bench. On 25.02.2014, the matter was fixed before the Bench at Karachi Registry. The Counsel of Muhammad Ali Baloch, Dr. Farough Naseem, after arguing the matter at some length, withdrew the Appeal on instructions of Muhammad Ali Baloch, who was present in Court. On withdrawal of the Appeal, the judgment of the Service Tribunal attained finality. 219. Since we were given the number of Suits/Petitions pending in which the High Court of Sindh has passed restraining orders, we noticed that Suit No.1029 of 2014 was filed by Muhammad Ali Baloach in the High Court of Sindh. This Suit was not mentioned in the list provided to us by the Registrar of the High Court of Sindh, therefore, on our direction the office inquired from the Registrar as to why the said Suit has not been mentioned in the list. We were informed that it was by mistake of the office of the High Court of Sindh and accordingly the R&P of the suit was called. After perusal of the record of the Suit, we noticed with shock that the Plaint was presented in the office of the High Court of Sindh on 23.6.2014 and permission for fixation of the case was granted by an Additional Judge (Justice Aamir Raza Naqvi) in an unprecedented manner on the same day. The matter was placed before Justice Saeeduddin Nasir with the following three office objections:- “1. Proper Court fee to be affixed. 2. List of legal heirs be filed. 3. Addresses for service be filed.” CRP.No.193/2013 etc 135 220. Justice Saeeduddin Nasir, on the same day, while suspending Notification dated 2.7.2013, issued by the Sindh Government in compliance with he judgment under review of this Court, passed the following order :- “1. Granted. 2. One week time is allowed to the plaintiff to affix the court fee on the plaint. 3. It is contended that the plaintiff was appointed as A.D (Computer) in Special Branch, Police Department in BPS-17, later on the said post was abolish vide order dated 11.12.2013 and the plaintiff was appointed as Deputy Superintendent of Police. Subsequently, vide notification dated 13.11.2007 he was appointed as S.P. The learned counsel for the plaintiff states that due to order passed by the Hon’ble Supreme Court in Original Criminal No.89 of 2011 the plaintiff was likely to be demoted from the post of S.P to D.S.P. which was being hold by the plaintiff prior to being out of turn promoted as S.P. but the defendant vide notification dated 2.7.2013 demoted the plaintiff as Assistant Director (Computer) which post has been abolished in 2003. It is further contended by the learned counsel for the plaintiff that the plaintiff had completed the field training command as Police Officer for more than ten years and qualifies to hold the post of D.S.P. In view of the submission made by the learned counsel for the plaintiff, let notice be issued to the defendant for a date to be fixed by the office after summer vacation. In the meanwhile the operation of the notification dated 2.7.2013 to the extent of the plaintiff is suspended.” 221. The suit filed by Muhammad Ali Baloch contained the same reliefs in substance, which were denied to him up to this Court. The prayers in the Suit are reproduced herein below:- a. To declare that the plaintiff is entitled to hold the post of “Deputy Superintendent of Police” and defendants are liable to revive his status; b. Permanent Injunction restraining Defendants from removing/banishing the plaintiff from his aforesaid post of “Deputy Superintendent of Police” and interim and final directions to deliver the post of Deputy Suptt. of Police in whatsoever manner; c. Cost of the proceedings throughout; CRP.No.193/2013 etc 136 d. Any other relief which this Honourable Court deem proper may also be granted. 222. In the plaint, it was pleaded that the Service Tribunal had passed judgment on 30.12.2013 dismissing his Appeal. However, since the post of Assistant Director (Computer) had been abolished, he filed C.P.No.D-388 of 2014 and C.P.No.D-2660 of 2014 in the High Court of Sindh, which are pending adjudication. He pleaded that since no orders were passed in the Petitions due to pendency of a large number of cases in the High Court of Sindh, he made representation to the Chief Minister but to no avail. Consequently, he had filed suit, inter alia, on the ground that his absorption in Police Force is similar in nature to the case of Ataullah Chandio, who was from Law Department and was allowed to be absorbed in Police Force. 223. Muhammad Ali Baloach, after exhausting all his legal remedies up to this Court, has started a fresh round of litigation on the pretext that the post of Assistant Director (Computer) was abolished, therefore, he was not given posting. In the first place, abolition of the post of Assistant Director (Computer) does not render him surplus owing to the fact that an IT Wing exists in the Police Department, and he could have been posted in the said Wing by creating a post of Assistant Director (Computer), or in any other department of the Sindh Government, in terms of Rule 9-A of the Rules of 1974. He, however, could not seek relief as prayed either in the Suit or in the Constitution Petitions pending in the High Court of Sindh. The findings recorded by the Service Tribunal against Muhammad Ali Baloch, have attained finality on his withdrawal of the Civil Petition from this Court. The Service Tribunal in its detailed judgment has held that Muhammad Ali CRP.No.193/2013 etc 137 Baloch was wrongly appointed by transfer under Rule 9(1) as DSP in regular Police in defiance of the restrictions contained under the Recruitment Rules, which do not permit his horizontal movement to penetrate in Provincial Police Service as DSP which is a distinct cadre. Muhammad Ali Baloch was appointed as Assistant Director in (Computer Wing), which cannot be construed to be an appointment in regular Police Force. We have already interpreted the scope of Rule 9(1) of the Rules of 1974. Muhammad Ali Baloch was not eligible to be appointed by transfer as DSP for want of required qualification, experience, expertise as contained under Rule 9(1) read with Rule 3(2), 7 and 8 of the Rules of 1974. He was rightly repatriated to the Computer Wing in Police Department. 224. In the Suit, Muhammad Ali Baloch has concealed the fact that he approached this Court challenging the judgment of the Sindh Service Tribunal and on 25.02.2014, his Counsel, after arguing the Petition at some length, had withdrawn the Civil Petition in his presence. 225. Once a Civil Servant has exhausted all the legal remedies, he cannot initiate a second round of litigation by filing Constitution Petition or Suit on the same subject. The learned High Court, in the first place, should not have entertained the Suit or Petition in view of the bar contained under Article 212 of the Constitution, as Muhammad Ali Baloch is a Civil Servant and the issues raised before the High Court, fall within the domain of the Sindh Service Tribunal, which had already recorded the findings against him. It is established law that a Civil Servant cannot raise any issue which pertains to terms and conditions of his service, particularly, when such issue has finally been decided by this CRP.No.193/2013 etc 138 Court. The learned Judge (in Chambers) Mr. Saeeduddin Nasir, has not applied his mind while entertaining the Suit on 23.6.2014, and had suspended the notification issued by the Sindh Government, which was issued in compliance with the judgment of this Court, maintained by the Sindh Service Tribunal, and his Civil Petition against the judgment of the Tribunal had attained finality on its withdrawal. The learned Judge (in Chambers) has not even examined the contents of the plaint which refer to the judgment of the Sindh Service Tribunal and in a very casual manner has passed the order suspending the notification. 226. We are at a loss to understand as to how the learned Judge (in Chambers) could sit in Appeal against the findings of this Court in the face of the language of Article 189 of the Constitution which mandates that, “Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.” If such practice is allowed to continue, it will render the hierarchy of this Court ineffective as mandated by the Constitution. 227. For the aforesaid reasons, we hold that Muhammad Ali Baloch has willfully committed contempt of this Court by re- agitating the issues through the Constitution Petitions No. D-388 of 2014 and D-2660 of 2014, and the Suit, which attained finality after the judgment of this Court and the Sindh Service Tribunal, as noticed hereinabove, with the ulterior motive to defeat the findings of this Court. His case is fully covered by the judgment of this Court in the case of Abdul Majid and another vs. Qazi Abbas CRP.No.193/2013 etc 139 Hussain Shah (1995 SCMR 429), in which, in the similar circumstances, contempt proceedings were initiated by this Court. 228. We therefore, direct the Office to issue Show Cause Notice to Muhammad Ali Baloch under Section 17(1) of the Contempt of Court Ordinance 2003 read with Article 204 of the Constitution calling upon him to explain as to why he should not be proceeded against for committing contempt of this Court. The proceedings filed by Muhammad Ali Baloch before the High Court of Sindh in Suit No. 1029/2014 and in Constitution Petitions No. D-388 of 2014 and D-2660 of 2014 stand abated. Sindh Government shall appoint him in any Department, within 15 days from the date of communication of this Judgment, as Assistant Director (Computer), which was his substantive post before his absorption in Sindh Police force as DSP and report compliance. He, however, will be entitled to inter-se seniority amongst his batchmates before his absorption. Suit No.519 of 2014 (Ali Ahmed Lund) 229. In order to find out the latest status of different Suits and Constitutional Petitions filed by the Civil Servants before the High Court of Sindh after the orders dated 30.8.2012, 3.1.2014 and the judgment under review, we asked the Registrar of the High Court of Sindh to provide us list of Suits and Constitutional Petitions filed before the High Court of Sindh. While going through the list, we called for the R&Ps of Suit No.519 of 2014 and Suit No.1052 of 2014 and the connected High Court Appeals to examine as to whether the aforesaid orders of this Court are taken note of by the High Court of Sindh while entertaining the Civil Suits. CRP.No.193/2013 etc 140 230. We noticed that Suit No.519 of 2014 was filed by Ali Ahmed Lund who, in collateral proceedings, was ordered to be repatriated to his parent department in the Federal Government, when he was serving on deputation as D.C.O in the Sindh Government. We called the R&P of the suit, and upon perusal we noticed that he sought in the Suit alteration in his date of birth with the following prayer:- “a) Declare that as per Matriculation Certificate, NADRA record, and in the Service Record, the correct date of birth of plaintiff is 2.4.1956, and he is deemed to stand retired on 1.4.2016 and not on 1.4.2014 as per the erroneous Seniority List dated 25.9.2009. b) Declare that the Seniority List dated 25.9.2009 of officers working in BS-20 under Respondent No.2 is null and void to the extent of the date of birth of the plaintiff which is wrongly mentioned as 2.4.1954 instead of 2.4.1956 as mentioned in Service Record. c) Direct the defendants to rectify the seniority list dated 25.9.2009 and mentioned the correct date of birth of the plaintiff which is 2.4.1956 and duly corroborated by his Matriculation Certificate and CNIC issued by the NADRA and by service record. d) To restrain the defendants of any person acting through or under them from taking any coercive action against the plaintiff viz his retirement from service and service record which shows the correct age of the plaintiff as 2.4.1956 or by prematurely issuing Notification of Retirement and or acting upon the same prejudicially to the plaintiff on the basis of erroneous date of birth which is only reflected in seniority list. e) Damages against the defendants at Rs.110 Million jointly and severely. f) For any other/additional relief(s) that this Hon’ble Court may deem fit and proper in the facts and circumstances of this case; g) Cost of the suit.” 231. The suit was filed by him on 1.4.2014, pleading therein that he was born on 2.4.1956 and his date of birth was incorrectly recorded in the service record as 2.4.1954. In the CRP.No.193/2013 etc 141 pleadings, he admitted that he acquired knowledge of his incorrect date of birth in the year 2009 when seniority list was floated. He made representations at times for correction in his date of birth till 26.11.2013 and since no response was received, therefore, he filed the Civil Suit. 232. On perusal of the record, we further observed that on 27.3.2014, Ali Ahmed Lund has filed a Constitutional Petition No.D-1566 of 2014 on the same subject with the following prayer:- a) To declare that as per Matriculation Certificate and NADRA record, the correct date of birth of the Petitioner is 2.4.1956 which has erroneously been entered/mentioned in his service record by the Respondent No.3 as 2.4.1954 which is liable to be rectified/cured with immediate effect. b) To direct the Respondents to rectify the date of birth of the Petitioner in their record as 2.4.1956 instead of 2.4.1954 and till the virtual correction, it may be read and understood as 2.4.1956. c) To permanently restrain the Respondent No.3. or anyone else working on his behalf to issue any notification of the retirement of the Petitioner according to erroneous date of birth of the Petitioner i.e 2.4.1954 mentioned/entered in their record. d) To direct the Respondents to act in accordance with law and not to misuse/abuse of his official powers conferred upon them under the law. e) Any other relief (s) warranted by the facts and circumstances of the case.” 233. Apparently, on his failure to get the interim relief in the Writ Petition in which notice was ordered by the learned Division Bench, he opted to file the aforesaid Civil Suit, concealing the fact that he had filed a Constitutional Petition prior to filing of the suit on the same subject. CRP.No.193/2013 etc 142 234. On 10.4.2014, he was granted interim order of status- quo by the learned Judge in Chambers (Justice Nadeem Akhter) in the following terms:- “Learned Counsel for the plaintiff has filed a statement along with some documents, which are taken on record. The documents filed today show that the plaintiff is still working as the Secretary to Government of Sindh/Chairman Sindh Cooperative Housing Authority. It is urged that there is a serious apprehension that in case ad interim orders on this application are not passed, the plaintiff may either be removed from his service or any other coercive action may be taken against him by the defendant. The bailiff’s report dated 9.4.2014 shows that the defendants have been duly served. Till the next date of hearing, the defendants are directed to maintain status quo. To come up on 25.4.2014.” 235. On 29.5.2014, the learned Judge in Chambers (Justice Mohammad Shafi Siddiqui) while dismissing the suit passed the following order:- “Mr. Ghulam Akbar Jatoi Advocate undertakes to file power (of Attorney) on behalf of plaintiff. Adjournment application has been filed by the previous Counsel for the plaintiff who is stated to be unwell. The application is taken on record. Office is directed to assign CMA number to this application. However, the application is dismissed on account of the fact that plaintiff has engaged another Counsel. The plaintiff is also present in person who confirms that he has engaged Mr. Ghulam Akbar Jatoi. Learned Counsel for the plaintiff argued that this suit has been filed to rectify the error in the date of birth of the plaintiff as 2.4.1956 instead of 2.4.1954. It is contended by Mr. Jatoi that alongwith the plaint they have filed certificate of Matric, Board of Intermediate, NIC as annexures and has also shown smart card recently issued. He also states that even in the old and new passports the date of birth is mentioned as 2.4.1956. He submits that it is the right of the plaintiff to get the date of birth corrected in all official records including the service record. Learned State Counsel has assisted this Court and submits that the Annual Confidential Report is being issued since he became civil servant and joined the service and he has been mentioning his date of birth as 2.4.1954 and as such this delay in rectification of the service record is uncalled for and it only smelts malafide. Learned State Counsel further submits that in terms of Rule 12A of the Civil Servants CRP.No.193/2013 etc 143 (Appointment, Promotion and Transfer) Rules, 1973 the date of birth once recorded at the time of joining government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible. Learned Counsel for the intervener also relied upon recent pronouncement of Hon’ble Supreme Court and submitted that suit is not maintainable. Heard the learned Counsels and perused the record. Admittedly the certificates as well as the identity card which are annexed with the plaint show the date of birth of the plaintiff as 2.4.1956, however, the question before the Court is not the rectification of date of birth but in fact the question is as to whether such rectification can be made in the service record of the plaintiff. The plaintiff apparently passed CSS in 1983 and became civil servant in 1984 and he has been, since then, maintaining his date of birth as 2.4.1954. Previously before the amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 it was the privilege of the employee to rectify the date of birth in the record including the service record whereas after insertion of Rule 12A which was inserted by SRO 521(1)/2000 dated 31st July 2000 it is not permissible for the applicant/employee to get his date of birth rectified. This question came before the Hon’ble Supreme Court in the case of Ahmed Khan Dehpal vs. Government of Balochistan (2013 SCMR 759) wherein it is observed that after so many years the idea to have the date of birth altered appeared to be an afterthought of the civil servant. In this case also it is almost after 30 years of service when it revealed to plaintiff that his actual date of birth is 2.4.1956. It was observed by the Hon’ble Supreme Court that the question was as to how the civil servant, who joined the service in 1982, could not know about his actual date of birth despite the passage of more than two decades, especially when at various stages during his studies as well as service he filled many examination forms, pro formas as well as service book. In the judgment of the Hon’ble Supreme Court the case of the employee/civil servant was that even in the documents of Matric and Intermediate certificates date of birth was wrongly mentioned whereas in the instant case learned Counsel for the plaintiff pleaded that though the date is rightly mentioned, however in the service record it is wrongly mentioned as 2.4.1954 instead of 2.4.1956. In view of the amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules 1973 such right of correction in the date of birth was taken away absolutely and it was clarified that once the date of birth in the record at the time of joining is mentioned the same shall be final and no alteration is permissible. Such insertion of 12A is logical as at the twilight of the career it could only be termed as malafide. The instant suit filed by the plaintiff is not CRP.No.193/2013 etc 144 simplicitor a correction of the date of birth in fact it is correction in date of birth in the service record. Had it been simple suit for declaration that his date of birth is to be rectified, Rule 12A of 1973 would not have been applied but in instant case, service record was sought to be corrected and in terms of Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 such is barred. The strength and power of Rule 12A is statutory. The issue of maintainability of the suit was framed earlier and parties were also put on notice. Even on the last date the plaintiff was present alongwith his Counsel and also today he is present alongwith his newly engaged Counsel and I appreciate that he and his Counsel tried to assist the Court. As far as the maintainability of the suit is concerned, the point involved has already been decided in the case referred above and in view of the judgment of the Hon’ble Supreme Court the suit is not maintainable. The suit is therefore, dismissed along all pending applications. The plaintiff seems to have reached the age of superannuation on 1.4.2014 and hence any salary, perks, privileges or any other benefits availed subsequent to the age of superannuation shall be returned forthwith.” 236. On 3.6.2014, Ali Ahmed Lund, filed High Court Appeal No.157 of 2014, challenging the order of the learned Single Judge, who dismissed his Suit. On 11.9.2014, the High Court Appeal was fixed for Katcha Pashi before learned Division Bench-V, comprising Justice Hassan Azhar Rizvi and Justice Aziz-ur-Rehman, which was allowed in the following terms:- “Today parawise comments have been filed on behalf of Respondent No.2 which are taken on record. Learned counsel for Appellant states that impugned order was passed on 29.5.2014 when inter-alia the injunction application was fixed for hearing. Per learned Counsel, no proper opportunity was given to the counsel for the Appellant to argue his case. In view of the pro and contra pleas raised before the learned trial court requires evidence, thereore, after setting aside order dated 29.5.2014, we remand the case to the learned trial court to decide the controversy involved afresh. The notification however, issued by the Respondent regarding the appointment of officer in place of the Appellant shall not be effected or otherwise be prejudiced in any manner. Appeal stands disposed of a/w the pending application. Petition No.d-2386/2014 tagged with this case is hereby de-tagged and the same be heard on 23.1.2014” CRP.No.193/2013 etc 145 237. On 21.11.2014, after remand another Injunction Application was filed by the Plaintiff Ali Ahmed Lund, who stood retired on 1.4.2014, pursuant to the notification issued by his parent Department i.e. Ministry of Trade and Commerce, which was allowed, by the learned Judge (Mr. Justice Saeeduddin Nasir) in Chambers, in the following terms:- “In view of above observations the operation of order dated 9.4.2014 is suspended till the next date of hearing. The defendant No.4 may allow joining the plaintiff as well as posting order in accordance with joining order dated 12.9.2014. This order shall not have any adverse affect on the appointment of any officer in place of the appellant.” 238. We have noticed that the Counsel representing the State did bring to the notice of the learned Judge in Chambers of the High Court the case of Ahmed Khan Dehpal vs. Government of Balochistan (2013 SCMR 759), which was not taken note of. We can safely assume that neither the learned Judge in Chambers nor the Appellate Bench have carefully read the provisions of Section 4 (1) of the Federal Service Tribunal Act 1973 which confers exclusive jurisdiction upon the Federal Service Tribunal to adjudicate upon the matters relating to the terms and conditions of service of a Civil Servant inclusive of the disciplinary proceedings. Article 212 of the Constitution places fetters on the jurisdiction of a Civil Court and a High Court to entertain matters relating to terms and conditions of service of a Civil Servant. We have already dealt with the scope of Article 212 of the Constitution separately. The mode of correction in the date of birth of a Civil Servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is part of terms and conditions of service of a Civil Servant and cannot be resorted to CRP.No.193/2013 etc 146 through the Civil Suit. It has also been well established by now that a Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit and in this respect principles laid down in the case of Dr Muhammad Aslam Baloach vs Government of Balochistan (2014 SCMR 1723) are fully attracted. 239. Ali Ahmed Lund was a Civil Servant from the Federal Government, serving in Trade and Commerce Group since 1984 and was on deputation with the Sindh Government when he filed the Constitutional Petition and the Suit before High Court of Sindh. He was required to approach the Federal Service Tribunal for redressal of his grievance. The learned Judge in Chambers and the Appellate Bench misdirected themselves while holding that issue of alteration in date of birth requires factual enquiry and, therefore, Suit was competent. By Section 3(3) of the Sindh Service Tribunals Act, the Tribunal has been conferred exclusive powers of a Civil Court while holding enquiry. This aspect of the matter lost sight by the two forums while passing the orders in Suit and in the High Court Appeal coupled with the bar of jurisdiction under Article 212. The learned Judge in Chambers overlooked the fact while directing the Sindh Government to allow joining and give posting order to Ali Ahmed Lund who was on deputation. A deputationist cannot seek his posting in a borrowing department once he was relieved of his duties for any reason. The High Court of Sindh was not competent to entertain Suit of the nature for correction of the date of birth, which form part of terms and conditions of service in view of the bar contained in Article 212 of the Constitution. CRP.No.193/2013 etc 147 240. We for the aforesaid reasons, are of the considered view that Ali Ahmed Lund, who remained on deputation in Sindh for more than 15 years according to the brief note provided to us by S&GAD, could not competently file a Civil Suit or Constitutional Petition which he had withdrawn on 27.10.2014, seeking alteration in his date of birth that too at the verge of his retirement. Thus for the aforesaid reasons, the Civil Suit No.519 of 2014 stands abated. However, it will be open for the Plaintiff to approach this Court through a Review Petition, if he feels aggrieved of this judgment. Suit No.1052 of 2014 (Mir Aijaz Hussain Talpur) 241. Mir Aijaz Hussain Talpur, an officer of the District Management Group, who was serving on deputation in the Province of Sindh, filed Suit in the High Court of Sindh. He was posted as Secretary, Co-operation and on his transfer, he filed the aforesaid Civil Suit on 10.6.2014, with the following prayer:- a) To declare that the notification No.SO- I(SGA&CD)-3/65/93 dated 23.11.2013 issued by the defendant No.1 on a closed weekly holiday i.e Saturday the 23rd November, 2013 thereby removing/transferring the plaintiff from the post of Secretary Co-operation, being in gross violation of rule 35 of the Sindh Government Rules of Business, Esta Code, Civil Servants Act, 1973 the Rules made thereunder and Articles 5, 9, 189 & 190 of the Constitution of Pakistan is ab-initio, illegal unlawful and void and as such is liable to be struck down. b) To grant mandatory injunction, suspend the operation of the impugned order No.SO(SGA&CD)-8/2/2005 Karachi dated the 2nd January 2014 being ab-initio as well as to suspend all the orders, transfers postings and whatever and direct the defendant No.1 to reinstate the plaintiff forthwith on his original posting i.e Secretary Co-operation. c) To grant mandatory injunction, suspend the operation of the order dated 3.6.2014, vide No.SGA&CD-8/2014 government of Sindh Services, Karachi and declare the same ab- CRP.No.193/2013 etc 148 initio null and void and direct the defendant No.11 and 5 to transfer and post the plaintiff as Secretary Co-operation, Government of Sindh. d) To grant permanent injunction restraining the defendants, their subordinates officers successors, authorities or any other officer claiming on their behalf from taking any coercive action against the plaintiff including but no limited to taking any coercive actions, departmental action transferring or initiating any criminal case FIR or placing the Plaintiff as OSD or to do anything which is detrimental to the reputation dignity as well as career of the Petitioner. e) To hold and declare that neither any suspension order dated 10.1.2014 against the plaintiff is in force nor his suspension notification 13.5.2014 was notified by Sindh Government timely as such the plaintiff is not lying under suspension and he is entitled to hold the post of Secretary Cooperation Department wherefrom he was illegally removed and suspension notification dated 13.5.2014 does not carry any legal value being null and void. f) To grant such other better relief which this Honorable Court may deem fit and proper under the circumstances of the case. g) To grant cost of the suit and cost. h) Any other relief which honorable Court may deem fit to grant.” 242. On 21.11.2014, the learned Judge in the Chambers (Justice Saeeduddin Nasir) granted ad interim relief to the Plaintiff, relevant para of the order is reproduced below:- “2. In view of the submissions made by the learned counsel for the plaintiff, the defendants are restrained from taking any departmental action including transferring or initiating any criminal case against defendant or placing the plaintiff as OSD or to do anything which is detrimental to the reputation and dignity of the plaintiff. 3&4. The operation of the Notifications No.SO-1 (SGA&CD)-3/65/93 dated 23.11.2013, impugned order No.3/1-0/2013 D-1, Islamabad dated 10.01.2014 Order No.SO-1(SGA&CD)-8/2/2005 dated 13.5.2014 is suspended till next date of hearing.” CRP.No.193/2013 etc 149 243. One Shahzar Shamoon, Defendant No.3 in the Suit, a civil servant from Sindh, challenged the above order in High Court Appeal No.288 of 2014, which was fixed on 24.11.2014, before a learned Division Bench of the High Court of Sindh, comprising Justice Hassan Azhar Rizvi and Justice Aziz-ur-Rehman. After hearing, the learned Bench passed the following order, partially suspending the order dated 21.11.2014 passed in Suit No.1052 of 2014 of Mir Aijaz Talpur:- “1. Urgent application is allowed. 2. Deferred for the time being. 3. Exemption is allowed subject to all just exceptions. 4&5. Learned counsel for the appellant has drawn our attention to the order dated 10.1.2014 passed in C.P.No.D-4971/2013 whereby petition was dismissed wherein Notification No.SOI(S&GAD)-3/65/93 dated 23.11.2013 has been challenged, certified copy of the order is enclosed as Annexure ‘C/1’ at page 99 of the file. Learned Counsel for the appellant contends that respondent No.1 filed another petition bearing C.P.No.D-2386/2014 and almost with the same prayer the respondent No.1 filed Suit No.1052/2014. The said suit was fixed in Court on 3.4.2014 and the Court has directed the counsel for respondent No.1 to satisfy the Court on the maintainability of that suit, however, the respondent No.1 by suppressing material facts and by misleading the trail Court has succeeded to obtain impugned order dated 21.11.2014. Learned Counsel for the appellant has drawn our attention to an order dated 11.9.2014 passed in HCA No.157 of 2014 operative part of the said order is read as under:- “The notification however, issued by the respondent regarding the appointment of officer in place of the appellant shall not be effected or otherwise be prejudiced in any manner. Appeal stands disposed of a/w the pending application.” The learned counsel for the appellant has also drawn our attention to the order passed on the same day by the same learned Judge in Suit No.519/2014, wherein it was observed that “this order shall not have any adverse affect on the appointment of any officer in place of the appellant.” Issue notice to the respondents, learned Advocate General, Sindh and learned DAG for 9.12.2014. Till the next date of hearing, operation of the impugned order dated 21.11.2014 passed in Suit No.1052/2014 enclosed as Annexure ‘A’ shall remain suspended.” CRP.No.193/2013 etc 150 244. On 24.11.2014, the matter was placed before Justice Mohammad Shafi Siddiqui, who passed the following order:- “This is an urgent application filed along with application under Order VII Rule 11 CPC. Learned Advocate General contends that in pursuance of the order passed by the Hon’ble Supreme Court the suit is not maintainable. Notice to the plaintiff for a date to be fixed in the first week of December, 2014. Mr. Faisal Siddiqui files Vakalatnama on behalf of defendant No.3 which is taken on record.” 245. On 1.12.2014, all the applications in the Suit were fixed before Justice Mohammad Shafi Siddiqui, and the following order was passed:- “1. Granted. 2. Mr. Farooqui waives notice of the application, copy whereof has been supplied to him. Counter- affidavit/rejoinder, if any, be filed and exchanged before next date. Since on account of sad demise of Justice (R) Saleem Akhtar the Court work is suspended, the matter is adjourned to 4.12.2014 when learned counsel for the parties are directed to assist the Court regarding maintainability of the suit as prima facie it appears that the relief that is being sought in this suit has already been held to be not maintainable in terms of order passed by learned Division Bench in C.P.No.D-4971 of 2013, operative part of which is available at page 235 of the file. Even otherwise the plaintiff has challenged the transfer and posting, which are within the ambit of terms and conditions of service, and as such there are serious questions regarding maintainability of the suit.” 246. We, after perusal of the aforesaid record in suits and H.C.A, are of the considered view that the issue raised by the parties relates to their terms and conditions of service and cannot be entertained by a High Court either in its Constitutional jurisdiction or in its Original Civil jurisdiction or in High Court Appeal, being barred under Article 212 of the Constitution. We, for the reasons already recorded by us separately on the scope of Article 212 of the Constitution, are of the considered view that the CRP.No.193/2013 etc 151 Suit No.1052/2014, filed by Mir Aijaz Hussain Talpur and the High Court Appeal No.288/2014, filed by Shahzar Shamoon, stand abated for want of jurisdiction of the High Court. However, it would be open for the aggrieved party to approach the concerned Service Tribunal or this Court in Review, if so advised. 247. Before parting with this judgment, we have noticed that a civil servant cannot approach the Service Tribunal unless he exhausts the remedy of departmental appeal/representation under Section 23 of the Sindh Civil Servants Act, 1973. Section 4 (i) (a) of the Sindh Service Tribunals Act, 1973, provides that a Civil Servant can approach the Tribunal, subject to his exhausting remedy under Section 23 of the Sindh Civil Servants Act, after lapse of 90 days from the date on which such appeal/application was so preferred. In other words, a Civil Servant aggrieved by an order of the department has to file a representation or Appeal within 30 days of passing of such order and if the said authority does not decided his appeal/representation within 90 days, he can prefer an appeal before the Tribunal, after lapse of time as contained under Section 4(a) of the Sindh Service Tribunals Act. These provisions of Section 23 of the Sindh Civil Servants Act and Section 4 of the Sindh Service Tribunals Act require to be re- examined after insertion of Article 10A in the Constitution, as it restricts a Civil Servant from seeking expeditious remedy from the Tribunal which is constituted under the command of the Constitution. 248. We have also examined the service laws of other Provinces and the Federation and find that they have similar provisions in their service laws, as contained in Sindh Service CRP.No.193/2013 etc 152 laws. The provisions of Section 23 of the Sindh Civil Servants Act and the Section 4 of the Sindh Service Tribunals Act, restrict a Civil Servant to get efficacious and expeditious remedy against the order of the department till the expiry of almost 120 days. After the promulgation of Article 10-A, we find it imperative to re-examine the existing law which apparently bars the filing of appeal in the Service Tribunal before the passage of mandatory 90 days, but practically for 120 days. The law also needs to be looked afresh, because writ jurisdiction in the matters relating to terms and conditions of service against the executive by the aggrieved Civil Servant is barred under Article 212 of the Constitution. 249. Moreover, this Court has also time and again emphasized upon reinforcement of good governance and strict observance of rules by the public functionaries. In the case of Syed Mehmood Akhter Naqvi vs. Federation of Pakistan (PLD 2013 SC 195), this Court has clearly reiterated the settled principles of good governance by stating that the public functionaries are not obliged to follow illegal orders of higher authorities. The principle has since been reiterated in order to enforce good governance and adherence to rule of law in public service. 250. However, a situation could and does arise, in which a civil servant may face wrath and vendetta of his superiors, if he refuses to carry out the illegal orders. In such a situation, he has the only right or option to make a representation etc to the concerned authority to seek redress of the wrong committed against him, but in many such cases his representation may be ignored or outright rejected by the authorities under the political influence or for ulterior motives. In that case, an aggrieved Civil CRP.No.193/2013 etc 153 Servant is left with no option but to wait for mandatory 120 days, enabling him to file an appeal etc before the Tribunal. However, in the intervening period, an aggrieved Civil Servant faces un- compensable hardship and damage to his career, name and reputation. 251. As a result of existing disadvantages, cumbersome and prolonged processes of seeking remedies and relief from the administration or Service Tribunal, the honest, efficient and law- abiding Civil Servants are frequently left with a helpless situation of facing victimization at the hands of the administration and political executive, which tremendously affect their morale, motivation, character and even their prospects touching the pinnacle of career by the dint of honesty, efficiency and diligence. 252. In view of the aforesaid problems faced by the Civil Servants due to lengthy process of filing appeal in the Tribunal and availing of relief, it is imperative to provide an efficacious and expeditious alternate remedy to the Civil Servants by way of allowing them to approach the Service Tribunal, Federal or Provincial, without waiting for a period of 90 days, as contained under Section 4 (i)(a) of the Service Tribunals Act, by preferring an Appeal against the orders. Therefore, we are of the view that following issues are required to be answered at the touchstone of Article 10-A of the Constitution:- 1. Whether Section 4(i)(a) of the Service Tribunals Act, restricting a Civil Servant from filing appeal to the Tribunal after lapse of 90 days is violative of the spirit and command of Article 10-A of the Constitution. 2. Whether time frame provided by Section 4 of the Service Tribunals Act, debarring an aggrieved Civil Servant to approach the Service Tribunal amounts to denial of the relief to him in terms of Articles 4, 9 and 25 of the Constitution. CRP.No.193/2013 etc 154 253. We, therefore, for the aforesaid reasons, feel it necessary to take up these issues in suo motu jurisdiction under Article 184 (3) of the Constitution, in separate proceedings as the issues, inter alia, are of public importance and have far reaching effects on the service structure of the Civil Servants in the Federation and the Provinces. 254. This judgment shall also be sent to the Chief Justices of all the High Courts through Registrars for their information, perusal and circulation amongst all the Hon’ble Judges. This judgment shall also be sent to the Chief Secretaries of all the Provinces as well as the Secretary, Establishment Division, Government of Pakistan, Islamabad, with the direction that they shall streamline the civil service structure in light of the principles laid down in this judgment. In addition, the office shall also send copies of this judgment to the Chairmen of the Federal Service Tribunal, Islamabad and the Sindh Service Tribunal, Karachi, through their Registrars, for information and compliance. Approved for reporting Sohail/Saeed/** Announced in open Court on 05.01. 2015 at Karachi.

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE IJAZ UL AHSAN C.R.P. NO.125/2017 IN CMA NO.363/2017 IN S.M.C. NO.18/2016 (Review against judgment dated 13.3.2017, passed by this Court, in SMC No.18/2016, etc.) Rashid Ali Channa and others … Petitioner(s) Versus Muhammad Junaid Farooqi and others … Respondent (s) AND C.R.P. NO.130/2017 IN CMA NO.142/2017 IN S.M.C. NO.18/2016 (Review against judgment dated 13.3.2017, passed by this Court, in SMC No.18/2016, etc.) (Asif Ali and others) AND C.R.P. NO.137/2017 IN S.M.C. NO.18/2016 (Review against judgment dated 13.3.2017, passed by this Court, in SMC No.18/2016, etc.) (Fahad s/o Barkat Ali Soomro) AND C.R.P. NO.138/2017 IN S.M.C. NO.18/2016 (Review against judgment dated 13.3.2017, passed by this Court, in SMC No.18/2016, etc.) Ashiq Ali and others … Petitioner(s) Versus Province of Sindh and others … Respondent (s) For the Petitioner (s) : Raja Muhammad Ibrahim Satti, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In CRP No.125/2017) CRPs No.125/2017, etc. 2 Ms. Asma Jahangir, Sr. ASC Ch. Akhtar Ali, AOR (In CRP No.130/2017) Sh. Ahsan-ud-din, ASC Ch. Akhtar Ali, AOR (In CRP No.137/2017) Syed Ali Zafar, ASC Mr. Tariq Aziz, AOR (In CRP No.138/2017) Respondent (s) : N.R. (In all cases) Date of Hearing : 02.05.2017 ORDER SH. AZMAT SAEEED, J.- For the reasons to be recorded later on, these Civil Review Petitions are dismissed. Judge Judge Bench-IV Islamabad, the Judge 2nd May, 2017 ‘NOT APPROVED FOR REPORTING’ Safdar/*

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ MR. JUSTICE JAVED IQBAL MR. JUSTICE MIAN SHAKIRULLAH JAN MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE NASIR-UL-MULK MR. JUSTICE RAJA FAYYAZ AHMED MR. JUSTICE MUHAMMAD SAIR ALI MR. JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE TARIQ PARVEZ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE ASIF SAEED KHAN KHOSA Mr. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE GHULAM RABBANI CIVIL REVIEW PETITION NO. 129/2010 IN CONST. P. NO. 76/2007 & CIVIL REVIEW PETITION NO. 199/2010 IN CMA No. 2922/2010 IN C.R.P. NO. 129/2010 IN CONST. P. No. 76/2007 The Federation of Pakistan through Secy. M/o Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mubashir Hassan, etc C.M.A.100 & 101/2010 in C.R.P.Nil/2010 in Const.P.76/2007 Malik Muhammad Qayyum v. The Federation of Pakistan, etc C.M.A.246 & 247/2010 in C.R.P.Nil/2010 in Const.P.76/2007 Abdul Baseer Qureshi v. Mubashir Hussain, etc C.M.A.248 & 249/2010 in C.R.P.Nil/2009 in Const.P.76/2007 Naveed Ahsan v. Dr. Mubashir Hassan, etc C.M. Appeal 14/2010 in C.M.A.Nil/2010 in Const.P.76/2007 Malik Muhammad Qayyum v. Federation of Pakistan C.M. Appeal 77/2010 in C.M.A.Nil/2010 in Const.P.76/2007 Dr. Danishwar Malik v. The Federation of Pakistan & others CRP 129/2010 etc. 2 For the petitioner: Mr. Kamal Azfar, Sr. ASC (CRP 129/2010) Raja Abdul Ghafoor, AOR For the petitioner: Raja Abdul Ghafoor, AOR (CRP 199/2010) For the applicant/appellant: Mr. Wasim Sajjad, Sr. ASC (CMA 100 & 101 Mr. Arshad Ali Chaudhry, AOR & CM Appeal 14/2010) For the applicant/appellant: Mr. Abdul Baseer Qureshi, ASC (CMA 246, 247, 248 & 249/2010) Ch. Akhtar Ali, AOR (absent) For the applicant/appellant: Dr. Khalid Ranjha, Sr. ASC (CM Appeal 77/2010) Mr. Faiz-ur-Rehman, AOR (absent) On Court notice: Maulvi Anwarul Haq Attorney General for Pakistan For the respondent No. 1: Mr. Mehr Khan Malkik, AOR (CRP 129/2010) Date of hearing: 11.04.2011 … ORDER IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – CIVIL REVIEW PETITION NO. 199 OF 2010: The learned AOR for the petitioner does not press this review petition. Dismissed. CIVIL REVIEW PETITION NO. 129 OF 2010: 2. Mr. Kamal Azfar, Sr. ASC read out a written statement (not filed in Court) and stated that though it was always a privilege to appear and assist the apex Court, but in the instant case, the Federation of Pakistan had taken away brief from him, and instructed Dr. Khalid Ranjha to appear and argue the case. It was pointed out to him that in his letter dated 30th October, 2010, after having tendered resignation from the post of Advisor to the Prime Minister against which he was appointed a day or so before the hearing of the petition fixed on 13th October, 2010, he had stated that he was available to argue the case. The contents of the letter are reproduced below: - CRP 129/2010 etc. 3 “This has reference to your letter dated 29 October 2010 Ref: C.R.P. No. 129 of 2010 SCJ. I have subsequently resigned on 19th October 2010 by letter addressed to the President of Pakistan and also informed the Pakistan Bar Council by the letter dated 27 October 2010. Copies of my resignation to the president of Pakistan and the letter to the Pakistan Bar Council are attached. I hope this clarifies the position that acceptance of resignation is not necessary in this case.” As has been observed in the case of Hafiz Hamdullah V/s Saifullah Khan, Karachi PLD 2007 Supreme Court 52 at page 67: “The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in presenti. I hope this clarifies the position that acceptance of resignation is not necessary in this case.” 3. In the above background, we have pointed out to Mr. Kamal Azfar, learned Sr. ASC that in the light of the order dated 5th April, 2011 passed by one of us (Iftikhar Muhammad Chaudhry, CJ) in Chambers, his presence would be appreciated as being the lead counsel he has to appear in the Court. Therefore, no one else on his behalf can be allowed to argue the case at this stage, as in terms of Order XXVI rule 6 of the Supreme Court Rules, 1980, no unavoidable circumstances exist for exercising such power. Even otherwise, as is apparent from the cases reported as Muhammad Younas v. State (PLD 2005 SC 93), Mukhtar Ahmad v. State (PLD 2003 SC 126), Feroze Din v. Sardar Muhammad (2002 SCMR 1993), H. Malik Amanullah v. Khyber Khan (2008 SCMR 1723) as well as the recent order dated 1st April, 2011 passed in Civil Review Petition No. 46 of 2011 in Constitution Petition No. 10 of 2011 etc., this Court has always discouraged substitution of counsel except in unavoidable circumstances, therefore, permission to substitute counsel at this CRP 129/2010 etc. 4 stage, that too subject to law, cannot be granted. On this, he prayed for a short adjournment to seek instructions. Accordingly, we re- assembled at 11.30 a.m. He stated that some more time be given to him so that he may contact the competent authority. In the interest of justice, we adjourn this case for 12.04.2011. IFTIKHAR MUHAMMAD CHAUDHRY, CJ. JAVED IQBAL, J. MIAN SHAKIRULLAH JAN, J. TASSADUQ HUSSAIN JILLANI, J. NASIR-UL-MULK, J. RAJA FAYYAZ AHMED, J. MUHAMMAD SAIR ALI, J. MAHMOOD AKHTAR SHAHID SIDDIQUI, J. JAWWAD S. KHAWAJA, J. ANWAR ZAHEER JAMALI, J. KHILJI ARIF HUSSAIN, J. TARIQ PARVEZ, J. MIAN SAQIB NISAR, J. ASIF SAEED KHAN KHOSA, J. SARMAD JALAL OSMANY, J. AMIR HANI MUSLIM, J. GHULAM RABBANI, J. Islamabad, April 11, 2011 APPROVED FOR REPORTING

SUPREME COURT OF PAKISTAN (Review Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, CJ Mr. Justice Gulzar Ahmed Mr. Justice Tariq Parvez Civil Review Petition No.142 of 2015 [For review of Judgment dated 08.01.2015 passed by this Court, in Constitution Petition No.104 of 2011 etc] IN Constitution Petition No.104 of 2011 Engineers Study Forum (Registered) & another Petitioner(s) VERSUS The Federation of Pakistan, etc Respondent(s) For the Petitioner(s) : Mr. A.K. Dogar, Sr. ASC Mian Ghulam Hussain, AOR (Absent) For the Respondent(s) : N.R. Date of Hearing : 18.07.2016 JUDGMENT GULZAR AHMED, J.—By this Civil Review Petition, the petitioners namely Engineers Study Forum (Regd) and another have sought review of the judgment dated 08.01.2015 passed in C.P.No.32/1996, 45/1998, 37/2000, 44/2002, 39/2005, 104/2011, Civil Petition No.887/2008 and Crl. Org. Petition No.91/2006. This Review petition has been filed only by the petitioners of C.P.No.104/2011. 2. On 18.7.2016 this Review Petition had come up for hearing before the Court. Learned Sr. ASC for the review petitioners was heard and that after having heard the learned Sr. ASC for review petitioners at sufficient length, the Court passed the order of reserving the judgment and asked the learned Sr. ASC for petitioners to file written submissions, which the learned Sr. ASC for the review petitioners has filed. He has also filed a CMA No.5135/2016 praying for grant of adequate opportunity of hearing. 3. We have considered the submissions of Mr. A.K.Dogar, learned Sr. ASC for the review petitioners. CRP No.142 Of 2015.Docx P a g e | - 2 - 4. We would first take up CMA No.5135 of 2016 of review petitioners in which their counsel purports to seek opportunity of adequate hearing as he has asserted in the application that his 90% arguments remained unheard by the Court and has referred to the case of Imranullah v. The Crown [PLD 1954 FC 123]. The case cited is altogether distinguishable from the features of present case as it related to the hearing of Criminal Appeal before the High Court and it was complained by the counsel for appellant that he was not given opportunity of hearing by the High Court. Their lordships in the Federal Court gave hearing to the counsel for the appellant and ultimately dismissed the appeal and maintained the judgment of High Court. The present case before us is under review jurisdiction of this Court and looking at the limited scope of review jurisdiction the Court has given to the review petitioners adequate opportunity of hearing and though the Court has reserved the judgment but has also allowed the petitioners’ counsel to give written submissions which opportunity of filing of written submissions has been availed and thus there is hardly any justification or cause left for the review petitioners to claim grant of adequate hearing through their counsel. The Court is not bound to give indefinite hearing to the counsel appearing for a party before it nor the counsel can claim privilege of hearing him by the Court to his heartfelt satisfaction. It is the function of Court to regulate hearing of the matters fixed before it and at the same time to ensure that it has given adequate time to the counsel for hearing in a given case. What is the adequate time for hearing of a given case, it is not for the counsel appearing for a party before the Court to decide rather it is more a function of the Court. There is no concept in the Court of law of allowing a counsel for a party to hear infinitum or to his heartfelt satisfaction nor any rule in this regard was cited before us. It is true that while hearing a case before it, the Court has to keep into consideration well enshrined and celebrated principle of Audi Alteram Partem (no man should be condemned unheard) and the Court was well informed of this principle while hearing a matter before it. The counsel for the review petitioners has been given adequate time and opportunity of hearing and his written submissions (which the Court has allowed him to file) have also been taken on record and considered by the Court. The CMA No.5135 of 2016 is, therefore, dismissed. CRP No.142 Of 2015.Docx P a g e | - 3 - 5. In respect of the main review petition, learned Sr. ASC for the review petitioners has contended that the constitution petition filed by the petitioners was for the enforcement of fundamental rights as enshrined in Articles 9 and 157 of the Constitution of Islamic Republic of Pakistan, 1973. In the written submissions, the learned Sr. ASC has urged the grounds of error on the face of record, giving effect to the decisions of CCI dated 16.09.1991 and 09.05.1998, the judgment of Lahore High Court reported in PLD 2013 Lahore 659, exercise of jurisdiction by the Court under Article 184(3) of the Constitution, involvement of political question and misreading of judgment by this Court in the case of Dossani Traders (Pvt.) Limited, the learned Sr. ASC has also relied upon some case law. 6. We have given our due consideration to the arguments and submissions of the learned Sr. ASC for the review petitioners. We may note that this Court has power to review its own judgment under Article 188 of the Constitution and such power is to be exercised under Order XXVI of the Supreme Court Rules, 1980 which adopts the provision of Order XLVII Rule 1 CPC providing for the grounds of review. The grounds available for review are of errors in the judgment/order which would justify the review and which are self- evident found floating on the surface of record and has material bearing on the final result of the case. The review jurisdiction does not allow re-hearing of a decided cases more so when the Court has given conscious and deliberate decision on the point of law as well as of fact while disposing of the constitution petition before it. Similarly, the grounds not urged or raised at the time of hearing of constitution petition cannot be allowed to be raised in the review proceeding. We have noted that the arguments advanced by the learned Sr. ASC for the review petitioners and the written submissions filed by him do not figure-in as a ground provided for review of the judgment in that the Court has already considered and examined them while passing the judgment under review by giving elaborate and conscious judgment and it is also worth-noting here that the Court at the time of handing over the judgment under review was fully conscious of its implications and had in mind all the issues which are raised by the learned Sr. ASC for the review petitioners. Reference in this regard is made to the cases of Mian Rafiq Saigol and another v. Bank of Credit & Commerce International (Overseas) Ltd. and another [PLD 1997 Supreme Court CRP No.142 Of 2015.Docx P a g e | - 4 - 865], Majid Mahmood v. Muhammad Shafi [2008 SCMR 554] and Mst. Ghulam Fatima through L.Rs. and others v. Farzand and others [2008 SCMR 1590]. The Review Petition accordingly is not maintainable, which is dismissed. Chief Justice Bench-I Islamabad APPROVED FOR REPORTING Judge *Hashmi* Judge Announced in open Court on 24.08.2016 Judge

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) Present: Mr. Justice Umar Ata Bandial Mr. Justice Qazi Faez Isa CIVIL REVIEW PETITION NO.147 OF 2016 (For review of the judgment of this Court dated 01.12.2015 in CP.247/2011) Basharat Ali Khan … … Petitioner. versus Muhammad Akbar … … Respondent. For the petitioner : Sh. Zamir Hussain, ASC. S. Rifaqat Hussain Shah, AOR (Absent) For the respondent : Agha Muhammad Ali Khan, ASC. Ch. Akhtar Ali, AOR. Date of hearing : 03.10.2016. O R D E R UMAR ATA BANDIAL, J. – The petitioner seeks review of the judgment of this Court dated 01.12.2015 (“Judgment”) whereby Civil Appeal No.247 of 2011 filed by the respondent was allowed and his suit for pre-emption was decreed. 2. Review of our Judgment is pressed on the ground that an important aspect of the controversy escaped our consideration while writing the same. Our Judgment reversed the judgment of the learned High Court dated 11.01.2011 passed in revisional jurisdiction whereby the pre-emption suit filed by the respondent had been dismissed. The learned counsel for the petitioner has referred to the principles of review summarized in Abdul Ghaffar-Abdul Rehman vs. Asghar Ali (PLD 1998 SC 363) for elucidating the ground of review urged by him, namely: our omission to consider an important C.R.P.147 of 2016. 2 matter in controversy. It is contended that the respondent/pre-emptor did not in terms of Section 12(3) of the Punjab Pre-emption Act, 1991 (“Act, 1991”) plead in his plaint the issuance of notice of Talb-i-Ishhad “by registered post acknowledgment due.” Nor did the respondent bring any evidence on record regarding the service of the registered notice of Talb-i-Ishhad by the production of the acknowledgment due card or through the statement of the postman who may have delivered such notice. This was necessary on account of the contest raised by the petitioner/vendee in his written statement that Talbs were not performed by the respondent/pre-emptor in accordance with the provisions of the Act, 1991. The law laid down by this Court in the case of Muhammad Bashir vs. Abbas Ali Shah ( 2007 SCMR 1105) and Allah Ditta vs. Muhammad Anar (2013 SCMR 866) affirm that requirement of service of notice of Talb-i-Ishhad through registered post acknowledgment due is mandatory. Failure by a pre- emptor to satisfy the said condition is fatal to the maintainability of his pre-emption suit. The omission by the respondent/pre-emptor to plead and prove service of notice of Talb-i-Ishhad upon the petitioner/vendee in the prescribed mode defeated his suit. Conversely, our Judgment under review had decreed that suit. 3. By a candid admission made during his arguments, the learned counsel for the petitioner accepted that the above objection is not formulated in precise terms in the petitioner/vendee’s pleadings, namely, his written statement or his civil revision petition filed before the learned High Court. Although Issue No.4: “whether the plaintiff has completed talabs under the provisions of law? OPP” was framed yet learned counsel for the petitioner concedes that the point about the absence of “acknowledgment due” post was never urged or otherwise C.R.P.147 of 2016. 3 argued before any Court including this Court during hearing of the respondent’s appeal by us. However, since the condition for a plaintiff/pre-emptor to prove service of notice of Talb-i-Ishhad goes to the root of the claim because the mode of service of Talb-i-Ishhad has been specifically prescribed by the Act, 1991 therefore, it is contended that this matter ought to have been examined, determined and established by the Court in its Judgment before dealing with the case on its merits. He submits that the Court has, accordingly, erred in fulfilling its duty to establish the maintainability of the respondent’s suit. 4. Section 13(3) of the Act, 1991 provides as follows: “13. Demand of pre-emption. – (1) … (2) … (3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption. Provides that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. This Court in its reported judgment in Muhammad Bashir’s case (2007 SCMR 1105) has observed: “11. The requirement of, “sending a notice in writing” is followed by a rider i.e. “under registered cover acknowledgment due”. This signifies that the intention of law is not merely a formal notice on the part of the pre- emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere “sending of notice” is enough would make the expression “acknowledgment due” redundant. The service of the addressee, as prescribed in law therefore, is imperative. …” C.R.P.147 of 2016. 4 The view expressed in the above referred precedent case has been followed consistently by this Court. More recently in Allah Ditta’s case (2013 SCMR 866), the Court has further explained that the plaintiff in a pre-emption suit bears the affirmative onus to prove Talb-i-Ishhad in a case where the respondent/vendee contests the same. 5. Learned counsel for the respondent/pre-emptor relied upon the case of Raees Khan vs. Naseeb Khatoon (2006 SCMR 1836) to claim that the petitioner/vendee had waived his objection of non-service of notice of Talb-i-Ishhad by not agitating the same before the learned High Court and also this Court. Therefore, the said objection cannot now be raised by the petitioner/vendee before us at the stage of review. 6. We have carefully considered the respective submissions made by the learned counsel. There are two aspects of the point under discussion; firstly, whether the “acknowledgment due” part of the notice of Talb-i-Ishhad under registered cover constitutes an imperative element of the prescribed mode of service affecting the maintainability of a pre-emption suit; and if so, whether a vendee can waive service of notice of Talb-e-Ishhad upon him by such a prescribed mode. Section 13(3) of the Act, 1991 specifies unequivocally that Talb-i-Ishhad shall be made by (i)written notice (ii)attested by two truthful witnesses (iii)under registered cover (iv)acknowledgment due. The only situation in which the Act, 1991 does not require the sending of notice by registered cover acknowledgment due is when the post office facility is not available to a pre-emptor [S.13(3) proviso of the Act, 1991]. Secondly, according to case law, the prescribed condition of service of notice by registered cover acknowledgement due may be relaxed C.R.P.147 of 2016. 5 where the defendant/vendee admits that he has received notice of Talb-i-Ishhad. In all other cases, service of notice of Talb-i-Ishhad upon a vendee must be established by the proof of each of the afore-noted four prescribed elements of the notice of such Talb. These prescribed elements of the service of a Talb-i-Ishhad notice are specific statutory requirements for the proof of service of notice of such Talb which demand has been construed to be a mandatory obligation of a preemptor-plaintiff. This means that if any of the afore-mentioned four elements of the prescribed mode of service of Talb-i-Ishhad is not proven by a plaintiff, he dishonours his mandatory obligation and consequently, his pre-emption suit must fail. That deals with the first aspect of the matter noted above. 7. In the present case, the issuance of notice of Talb-i-Ishhad is controverted by the petitioner/vendee which dispute forms the subject matter of Issue No.4 framed for resolution by the learned Trial Court. It is important to recall that the respondent pre-emptor has failed to even aver in his plaint that such notice under registered cover was sent along with an acknowledgment due request. Therefore, unless permitted by the learned Trial Court, he could not have produced any evidence on the point of notice under registered cover being posted with acknowledgment due. Indeed, the acknowledgment due card was not produced on record by the respondent/preemptor nor was the postman, who may have delivered the notice, called to the witness box. Consequently, according to the pleadings and also the evidence on record, the respondent/pre-emptor has not discharged his burden to prove the service of notice of Talb-i-Ishhad as required under Section 13(3) of the Act, 1991. The respondent/pre-emptor thereby failed to satisfy his C.R.P.147 of 2016. 6 mandatory obligation under the law. Such default is fatal for his pre- emption suit. 8. Turning to the next question, it is to be seen whether the omission by the petitioner/vendee to specify before the competent Courts the exact nature of the respondent/preemptor’s default to comply the requirements of Section 13(3) of the Act, 1991 estops the former from claiming a right to be served with a notice of Talb-i-Ishhad in accordance with the requirements of the said provision. In other words, has the petitioner/vendee by his failure to object the default committed by the respondent/preemptor in the service of notice of Talb-i-Ishhad waived his right to claim its service in accordance with Section 13(3) of the Act, 1991. In this context, a significant principle of law having some relevance was noticed during the Court proceedings. In the case of E.A.Evans vs. Muhammad Ashraf (PLD 1964 SC 536), this Court laid down the principle that a law requiring service of notice by a party has mandatory effect if such legal requirement aims at protecting a large class of persons as a matter of public policy. On the other hand, where the requirement of law is meant to protect an individual or a private interest, then such requirement may be waived by its intended recipient. In the facts of the precedent case, the notice in issue was held to be mandatory and not capable of being waived. On the other hand, in the case of Zehra Begum vs. Pakistan Burmah Shell Ltd. (PLD 1984 SC 38), it was held that by entering into an agreement for a period of 30 years, the landlord had bartered away his right to seek ejectment of his tenant on the ground of his personal need notwithstanding the fact that such a ground for ejectment had C.R.P.147 of 2016. 7 been granted by the law. This view is based on the premise that the statutory right of seeking ejectment of a tenant on the ground of personal need of a landlord grants the lessor/landlord a private or personal right. The statutory provision does not purport as a matter of public policy to safeguard landlords as a class of persons. 9. In the instant case, the requirement of Talbs as prescribed in the Act, 1991 enforces the substantive principles of Islamic Law on the subject of pre-emption. Specified features of the Talbs envisaged by the Act, 1991, as noticed above, have been held in the precedents referred above to be mandatory because of their statutory intent and as requirements of Islamic Law codified by the Act, 1991. The mode and measures for service of notice of Talbi-i- Ishhad prescribed in Section 13(3) of the Act 1991 extend protection to vendees of immovable property against claims of pre-emption assailing the purchases made by such vendees. To our minds, the various steps prescribed in Section 13(3) in the Act, 1991 for the performance of Talbs implement the public policy of the law to exclude delay and vexatious claims for the benefit of defendant/ vendees as a class in pre-emption suits. In this sense, the statutorily prescribed mode of service cannot be waived by a party. Consequently, the failure by the petitioner/vendee to highlight an obvious deficiency in the performance of Talb-i-Ishhad by the respondent pre-emptor does not debar the former from pointing out the same at any stage of the proceedings to the Court. This is because the said defect strikes the maintainability of the respondent’s pre- emption suit. C.R.P.147 of 2016. 8 10. In the circumstances discussed above, we find that the suit filed by the respondent/pre-emptor was deficient for lacking both the assertion and the proof of facts establishing a mandatory condition for the maintainability of his suit, namely, service of written notice of Talb-i-Ishhad under registered cover “acknowledgment due.” The said deficiency is apparent by the absence of affirmative and supporting material on record. Had the said omission been noticed and considered by the Courts adjudicating the matter, it is patent that the ultimate result of the proceedings would have been different. Notwithstanding the default by the petitioner/ vendee to highlight or articulate such objection before any forum, the Courts’ record contained material that demonstrated the said defect. A deficiency that was obvious from the pleadings, issue No.4 as framed, the evidence led by the plaintiff-pre-emptor and the terms of the applicable law, was over-looked by the Courts thereby arriving at an anomalous result in the proceedings. We consider that the failure by the respondent/pre-emptor to prove the service of Talb-i-Ishhad in the prescribed mode has defeated the maintainability of his pre-emption suit. A material aspect of the controversy had thus escaped our notice in our Judgment. An omission whereby the Court has over-looked important material that would alter the decision in the case constitutes a fit ground for the grant of review under Article 188 of the Constitution of Islamic Republic of Pakistan. Reliance is placed on Muhammad Zubair vs. Muhammad Zia (2004 SCMR 1077), Suba vs. Fatima Bibi (1996 SCMR 158) and Fida Hussain vs. The Secretary, Kashmir Affairs (PLD 1995 SC 701). C.R.P.147 of 2016. 9 For the foregoing discussion of the facts and the law, we allow this review petition and dismiss the appeal filed by the respondent/pre-emptor. No order as to costs. Judge Judge Islamabad, 03.10.2016. Irshad Hussain /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Original/Review Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Khilji Arif Hussain C.R. P No. 167/2012 in Suo Motu Case No.5 of 2012 (Against the order dated 14.6.2012 passed by his Court in SMC No. 5 of 2012) AND CMA NO.3344/2012 in CRP 167/2012. (Holding of thorough inquiry in giving protocol to a litigant party In a case in Supreme Court) Dr. Arsalan Iftikhar. Petitioner VERSUS Malik Riaz Hussain etc. Respondents For the Petitioner : Sardar M. Ishaq Khan, Sr. ASC with petitioner. For respondent No.1: Mr. Zahid Hussain Bokhari, ASC Raja Abdul Ghafoor, AOR For respondent No.4 : Mr. Shafi Muhammad Chandio, DAG. For respondents 2-3 : N.R. For the NAB (on Court notice): Mr. K. K. Agha, P.G. NAB. On Court notice: Mr. Khushdil Khan Malik, J.S. M/o Interior. (In CMA 3344/2012) Faisal Bashir Memon, SP Rural Malik Tahir, DSP Rural. Date of hearing: 31.07.2012 O R D E R Jawwad S. Khawaja, J. Sardar M. Ishaq learned counsel for Dr. Arsalan has argued this case at some length although he has not concluded his submissions as yet. However, during the course of the hearing, the names of some members of the Joint Investigation Team came up and in this behalf it was noted that in ground ‘e’ of the review petition, mention was made, inter alios, of one member of the Joint Investigation Team namely, Faisal Bashir Memon who is stated to have been recently promoted as SP (Rural) Islamabad. It is averred in the review petition that the said Faisal Bashir Memon is “a crony of Malik Riaz Hussain and was seen sticking close to the later on his first visit to Supreme Court of Pakistan in the Suo Moto case hearing although he (Faisal Bashir Memon) had not been assigned any such duty on the said date”. 2. The office had, more than one month ago, initiated a note on the administrative side relating to a breach of the security procedures at the Supreme Court on 12.6.2012 when the respondent Malik Riaz Hussain had first appeared in Court in SMC 5/12. A CRP 167/2012 etc. 2 report in the matter had been sought from the Secretary Ministry of Interior on 28.6.2012 after the Hon’ble Judge dealing with security issues had examined the matter. Since the Secretary (Interior) had failed to submit his report and also in view of the relevance to the case in hand, the Office was directed to fix the matter in Court. This Office note was numbered as CMA No.3344/2012 and is listed today. Faisal Bashir Memon and Malik Tahir who are present in Court stated that they were not served with the requisite notices. Khushdil Khan Malik, Joint Secretary, Ministry of Interior is present while the Secretary is not. The Office noting has mentioned, inter alia, video images of the breach of security noted above. We have seen in Court the footage of the entry of Malik Riaz Hussain in the Supreme Court premises and have also observed from the said footage that Faisal Bashir Memon was indeed “sticking close” to Malik Riaz Hussain and was also seen making a few protective/sheltering gestures while walking closely with and escorting the respondent Malik Riaz Hussain. In this view of the matter and even if, for the time being, we do not take into account the other submissions made on behalf of the petitioner alleging serious bias and partiality in the inquiry, it would, in our opinion, be prudent to stay the investigation until day after tomorrow i.e. 2.8.2012 so that Faisal Bashir Memon can explain his position. 3. At this point Mr. K. K. Agha, learned Prosecutor General NAB stated that he had objection to this interlocutory order. He also stated that he would be making submissions to ensure that there was transparency in the inquiry. He further contended that one day more would not make any difference if the inquiry continues. We agree with his submission that one day or even two will not make any difference but would like to state that having seen the CCTV footage a serious question, prima facie, has arisen going to the root of the inquiry. In this view of the matter, it would be appropriate and heavens will not fall if the inquiry is stayed for two days until 2.8.2012. We may reiterate that after seeing the CCTV footage of Faisal Bashir Memon in such close proximity to the respondent Malik Riaz and that he remained posted as SP of Behria Town P.S. , it would be unsafe to allow the JIT of which Faisal Bashir Memon is a member, to continue its inquiry. Faisal Bashir Memon may give an explanation or justification for what we and CRP 167/2012 etc. 3 Faisal Bashir himself present in Court, has seen displayed on the screen through multimedia. 4. The zealous insistence of NAB to continue with the inquiry is prima facie, not consistent with the desire to make sure that the inquiry is not tainted with bias, dishonesty or mala fide. We have found this unseemly haste in the face of the CCTV footage, to be quite uncomprehensible, particularly in the case of NAB. NAB claims to be an even-handed and unbiased investigating agency. We, therefore, would have thought it would be in keeping with its avowed impartiality if NAB would itself have decided to keep the inquiry pending after seeing the footage showing a member of the JIT (Faisal Memon) acting almost as a personal security employee of Malik Riaz, receiving Malik Riaz at the entrance to the lobby of the Supreme Court building and then escorting him. Regrettably, NAB, instead of seeking time to look into the matter itself appeared to be in haste which we found to be inappropriate in view of this footage which we have seen. The Prosecutor General, NAB also was unduly keen on carrying on with the inquiry although we have not found any justification, and none was proffered by the Prosecutor General, as to why it is imperative the inquiry should not be stopped for two days till 2.8.2012 while we make sure that it is not tainted with bias. 5. At this juncture, Mr. Zahid Hussain Bokhari learned counsel for Malik Riaz rose from his seat and made objections to the passing of the above interlocutory order. He firstly wanted to know as to how the learned counsel for the petitioner was aware of the existence of the video footage. Secondly, he questioned as to how this footage was present in the Court room and arrangements had been made for its viewing in Court. Thirdly, he said that there was no certificate of veracity of this footage and, therefore, it must be excluded from consideration even for the limited purpose now being examined by us. Lastly, he submitted (without giving any reason) that the stay of the inquiry would prima facie, prejudice the inquiry and the case of his client. 6. These objections are easily addressed because learned counsel for the respondent is not aware of the relevant facts which have been adverted to above. He is also unaware that the CCTV footage was viewed, not at the request of the learned counsel for the petitioner but on the basis of the internal probe overseen by an Hon’ble Judge of this CRP 167/2012 etc. 4 Court into the breach of security procedures. An application (CMA No.3350/2012) was filed on behalf of the petitioner seeking information/footage but this application has neither been heard nor has any order been passed thereon. Nevertheless, both learned counsel for the respondent Malik Riaz Hussain and the Prosecutor General, NAB were interested in knowing how the petitioner was aware of the existence of CCTV footage or that Faisal Bashir Memon was seen sticking close to the respondent Malik Riaz Hussain, if indeed the petitioner did not have access to the video footage. 7. Learned counsel for Dr. Arsalan submitted that he himself, the petitioner and numerous other persons in the main entrance lobby of the Supreme Court had, with their own eyes, seen Faisal Bashir Memon receiving Malik Riaz Hussain and extending full protocol to him. Secondly, he stated that he was a counsel in the contempt case relating to the storming of the Supreme Court by a rowdy crowd in 1997. In that case also, CCTV footage was produced in Court and it is within his own knowledge that as part of the security arrangements CCTV footage is made and kept by the Court. The allegation made in ground ‘e’ of the review petition, according to him, is based on direct eye witness evidence and the footage was only sought to confirm beyond doubt, the veracity of what had been seen by so many persons including lawyers, litigants etc. 8. More than one month back on 28.6.2012, a letter was addressed to the Secretary, Ministry of Interior asking him to “hold a thorough inquiry and submit a report within 7 days” as to how and why the security arrangement of the Court was breached. This was done on the basis of the orders issued by the Hon’ble Judge who has oversight of security at the Supreme Court premises. Although the aforesaid letter was addressed to the Secretary, Ministry of Interior more than one month ago, the Secretary has not submitted his report as directed. It was in these circumstances that a reminder was issued to the Secretary (Interior) on 25.7.2012. It is in the course of these official proceedings that CCTV footage was also mentioned. The application filed on behalf of the petitioner (CMA No.3350/2012) has only made a request for summoning documents etc. including video footage for just and judicious decision in the matter. As noted above, the said application has neither been heard nor has any order been passed on it. CRP 167/2012 etc. 5 9. The third objection relating to a certificate of verification of the footage is a matter which the learned counsel for Malik Riaz Hussain is free to urge but for the present, it is important for us to ensure that there is fairness and transparency in the inquiry including the constitution of the Joint Investigation Team. Learned counsel for the respondent, therefore, made a request that instead of postponing the matter to 2.8.2012, he may be given more than two days because he had to examine the law including the Qanun-e-Shahadat Order. We, however, are of the view that an adjournment of two days will be sufficient for legal research by learned counsel for Malik Riaz. Furthermore the reports of the Secretary Interior, Faisal Bashir Memon and Malik Tahir should be obtained and, after consideration of these reports, appropriate orders be passed on 2.8.2012. The Office shall also submit its report in the matter. We are also of the view that the truth of the case should be uncovered and this should be done promptly in a fair, honest, impartial and transparent manner. Once, we have the three reports respectively from the Secretary Interior, Faisal Bashir Memon, Malik Tahir and the report of the Office, we shall pass such further orders as may be necessary. 10. If on the next date of hearing, learned counsel for the respondent still feels the need to make additional legal research, he may make a request for more time in that behalf and the same will be considered. We note that although the learned Prosecutor General had undertaken to file documents pertaining to the inquiry alongwith NAB’s concise statement but this has not been done. Let the needful be done. 11. To come up on 2.8.2012 for further orders. Until that date, the inquiry shall remain stayed. Judge Judge Islamabad 31.7.2012 A.Rehman. Not approved for reporting.

IN THE SUPREME COURT OF PAKISTAN ( Review Jurisdiction ) PRESENT: MR. JUSTICE NASIR-UL-MULK, HCJ. MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY CIVIL REVIEW PETITION NO.193 OF 2013 ETC C.R.P. No.193/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Ali Azhar Khan Baloch Vs. Province of Sindh etc C.R.P. No.194/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) S. M. Kaleem Makki Vs. Dr. Nasimul Ghani Sahito C.R.P. No.199/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Province of Sindh etc Vs. Farooq Azam Memon and others C.R.P. No.203/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) S. M. Kaleem Makki Vs. Farooq Azam Memon C.R.P. No.204/2013 IN S.M.R.P. NO.239/2013 IN CONST.P.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Syed Abid Ali Shah Vs. Farooq Azam Memon and others C.M.A. No.6628/2013 IN S.M.R.P.239/2013 IN CA.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Appeal No.12-K/2012) Shiraz Asghar Shaikh Vs. Dr. Nasimul Ghani Sahito and others C.R.P. No.392/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Imdad Ali Solangi and others Vs. Province of Sindh and others C.R.P. NO.388/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Ghulam Mustafa Zardari Vs. Province of Sindh and others CRP.No.193/2013 etc 2 C.R.P. No.393/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Mujeeb-ur-Rehman Shaikh Vs. Province of Sindh and others CMA. No.4568/2013 in CRP No.NIL/2013 in CA.98-K/2010 (On review against judgment 12.6.2013 passed by this Court in Crl. O.P.89/2011) Rafique Ahmed Abbasi Vs. Chief Secretary, Govt. of Sindh and others C.R.P. NO.387/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Imdad Memon and others Vs. Province of Sindh and others C.R.P. No.410/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Jasoo Ram Vs. Nasimul Ghani Sahito and others C.R.P. NO.391/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Nisar Ahmed Brohi Vs. Province of Sindh and others C.R.P. No.389/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Hameedullah Vs. Province of Sindh and others C.R.P. NO.394/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Muhammad Rafique Qureshi Vs. Province of Sindh and others C.R.P. NO.409/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Mukhtiar Ali and others Vs. Province of Sindh and others C.R.P. No.390/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Saifullah Phulphoto Vs. Province of Sindh and others C.R.P. No.396/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Dost Ali Balouch Vs. Province of Sindh and others CRP.No.193/2013 etc 3 C.R.P. No.397/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Manzoor Ahmed Sheikh and another Vs. Province of Sindh and others C.R.P. No.407/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Shahid Hussain Mahessar Vs. Province of Sindh thr. Chief Secy. and others C.R.P. No.398/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Muhammad Riaz and another Vs. Province of Sindh and others C.R.P. No.408/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Muhammad Rizwan Soomro Vs. Province of Sindh and others C.R.P. No.411/2013 IN CIVIL APPEAL NO.12-K/2012 (On review against judgment 12.6.2013 passed by this Court in Civil Appeal No.12-K/2012) Zameer Ahmed Vs. Province of Sindh and others C.R.P. No.399/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Imran Hussain Jafri Vs. Farooq Azam Memon and others C.R.P. No.400/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Syed Ahmed Sheikh & another Vs. Province of Sindh and others C.R.P.NO.401/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Gul Hassan Zardari Vs. Province of Sindh and others C.R.P. NO.402/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Shamsuddin Shaikh Vs. Province of Sindh and others C.R.P. No.403/2013 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Nisamuddin Shaikh Vs. Province of Sindh and others CRP.No.193/2013 etc 4 C.R.P. No.125/2014 IN CONST. PETITION NO.71/2011 (On review against judgment 12.6.2013 passed by this Court in Const. Petition No.71/2011) Dr. Atta Muhammad Panhwar Vs. Province of Sindh and others CRL.R.P. No.70/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Yar Muhammad Bozdar Vs. Province of Sindh and others CRL.R.P. No.71/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Muhammad Jaffar Abbasi Vs. Province of Sindh and others CRL.R.P. No.72/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Syed Altaf Ali and others Vs. Chief Secretary Sindh and others CRL.R.P. No.73/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Nizamuddin and others Vs. Province of Sindh thr. Chief Secy. Sindh and others CRL.R.P. No.74/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Ghulam Nabi Babar Jamali and another Vs. Chief Secretary Sindh, etc CRL.R.P. No.75/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Ghulam Hussain Korai Vs. Province of Sindh etc CRL.R.P. No.76/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Hafiz Safdar Shaikh Vs. Javed Ahmed and others CRL.R.P.NO.77/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Talib Magsi Vs. Province of Sindh thr. Chief Secretary and others CRL.R.P. No.78/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Dur Muhammad Panhawar Vs. Province of Sindh, etc CRP.No.193/2013 etc 5 CRL.R.P. No.79/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Syed Shakir Hussain Shah Vs. Province of Sindh thr. its Chief Secy. and others CRL.R.P. No.80/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Mirza Shahbaz Mughal Vs. Province of Sindh and others CRL.R.P. No.81/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Tariq Mughal Vs. Chief Secy. Govt. of Sindh CRL.R.P. No.82/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) M. Hanif Solangi Vs. Chief Secy. Govt. of Sindh CRL.R.P. No.83/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Inayatullah Qureshi Vs. Province of Sindh and others CRL.R.P. No.84/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Khurram Waris Vs. Chief Secretary Sindh CRL.M.A. No.860/2013 IN CRL.R.P.NIL/2013 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Mir Hussain Ahmed Lehri Vs. Javed Ahmed and others CRL.R.P. No.39/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Munir Ahmed Phulphoto Vs. Province of Sindh CRL.R.P. No.40/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Atta Muhammad Memon Vs. The Chief Secy. Govt. of Sindh C.R.P. No.412/2013 IN CMA.310-K/2012 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Qamaruddin Shaikh Vs. Secy. Local Govt. and others CRP.No.193/2013 etc 6 CRL.R.P. No.38/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Mrs.Asma Shahid Siddiqui Vs. Chief Secy. Province of Sindh CRL.R.P. No.41/2014 IN CRL.O.P.89/2011 (On review against judgment 12.6.2013 passed by this Court in Crl.O.P.89/2011) Ali Murad Abro Vs. The Chief Secretary, Govt. of Sindh CIVIL PETITION NO.968/2014 (On appeal against the judgment dated 13.5.2014 passed by the High Court of Sindh, Circuit Larkana in CP.D-538/2014) Saleem Ullah Vs. Province of Sindh, thr. Chief Secy. and others ATTENDANCE For the Petitioner(s)/Appellant(s) (CRP.199/2013) : Sarwar Khan Add. A.G Sindh Abdul Fateh Malik A.G. Sindh Rafique Mustafa Shaikh Add. Secretary Services(S&GAD) Ghulam Ali Bharmani Dy. Secretary Services(S&GAD) (CRP.203/2013) : Mr. Shabbir Ahmed Awan ASC (CRP.392/2013) : Syed Iftikhar Hussain Gillani Sr. ASC (Crl.RP.72/2013). : Syed Ali Zafar ASC (CRP.388, 391, 389, 390, 397/2013, & Crl.RP 73/2013 : Raja Muhammad Ibrahim Satti Sr. ASC Crl.RPs. 70 & 71/2013. CP.968/2014 : Mr. Tariq Mehmood Sr. ASC C.R.P. 194/2013. : Raja Muhammad Asghar Khan ASC C.R.P. 204/2013. : Shabbir Ahmed Awan ASC appeared and submitted written arguments on behalf of Mr. Ibadul Hasanin ASC C.R.P. 393/2013. C.R.Ps.407 & 408/2013 CRP.400, 411/2013 : Mr. Abdul Rahim Bhatti ASC C.M.A.4568/2013 in CRP Nil/13 in C.A. 98-K/2010. Crl.R.P.38/2014 Crl.R.P.75/2013 CRP.401/2013 Crl.R.P.40 & 41/2014 : In Person CRP.No.193/2013 etc 7 C.R.P. 387/2013. : Mr. Hamid Khan Sr.ASC C.R.P. 193/2013. CRP.396/2013 CRP.125/2014 : Dr. Farough Naseem, ASC C.R.P. 409/2013 For petitioner 1-3 Crl.O.P.121/2013 Crl.M.A.760/2013 in Crl.O.P.89/2011 : Mr. M.Aqil Awan, Sr. ASC C.R.P.409/2013 For petitioner 4-8 CRP.394/2013 : Baz Muhammad Kakar, ASC C.R.P.399/2013 Crl.R.P.76/2013 Crl.R.P.83/2013 Crl.M.A.860/2013 in Crl.R.P.Nil/2013 in Crlo.O.89/2011 : Mr. Shabbir Ahmed Awan, ASC C.R.P.410/2013 : Mr. Abdur Rehman Siddiqui, ASC CRP.398/2013 CRP.412/2013 : Mr. M. Shoaib Shaheen, ASC CRPs.402, 403/2013 : Mr. Khurram Mumtaz Hashmi, ASC Crl.R.P.74/2013, : Mr. Adnan Iqbal Ch. ASC Crl.R.P.77/2013 : Mr. Yawar Farooqui, ASC Crl.R.P.79/2013 : Rana Azam-ul-Hassan, ASC Crl.R.P.80/2013 : Mr. Abid S. Zuberi, ASC Crl.R.P.78/2013 Crl.R.P.84/2013 : Mr. Irfan Qadir, ASC Crl.R.Ps.81&82/2013 : Mr. M. Munir Paracha, ASC CMA.6628/2013 in SMRP.239/2013 : Mr. Anwar Mansoor Khan, Sr. ASC Crl.M.A.460/2013 in Crl.O.P.89/2011 : Nemo. Crl.O.P.103/2013 : Mian Abdul Rauf, ASC Crl.R.P.39/2014 : Mr. Z. K. Jatoi, ASC For respondent(s) For Govt. of Sindh. : Sarwar Khan Add. A.G Sindh Abdul Fateh Malik A.G. Sindh Rafique Mustafa Shaikh, Add. Secretary Services(S&GAD) Ghulam Ali Bharmani, Dy. Secretary Services(S&GAD) CRP.No.193/2013 etc 8 Date of hearings : 5th, 6th, 10th June, 2014, 15th to 17th & 21st to 24th October, 2014. JUDGMENT AMIR HANI MUSLIM, J.- CRP No. 199/2013 Province of Sindh etc vs. Farooq Azam Memon by Mr. Sarwar Khan, Addl. AG Sindh The Additional Advocate General Sindh has contended that Constitutional Petitions No.71/2011, 21, 23 and 24/2013, filed by the Petitioners under Article 184(3) of the Constitution, challenging the vires of the six impugned legislative instruments were not competent. According to him, the issues raised in these Petitions were not of public importance. He contended that individual grievances of 30 Civil Servants relatable to the terms and conditions of service fall outside the purview of Article 184(3) of the Constitution. He contended that in such cases this Court, time and again, has declined to entertain such Petitions. While relying upon the case of Ishtiaq Ahmed Sheikh and others v. M/s UBL and others (PLD 2006 SC 94), the learned Addl. Advocate General has contended that Article 184(3) has excluded adjudication of service matters. He next contended that the Petitioners could have approached the Sindh Service Tribunal for redressal of their grievances, which was equally competent to examine the vires of the legislative instruments. 2. He further contended that the Petitioners have failed to establish that their fundamental rights were violated by promulgation of the impugned legislative instruments, to give CRP.No.193/2013 etc 9 cause to them to invoke jurisdiction of this Court under Article 184(3). In support of his contentions, he has relied upon the judgments in the cases of All Pakistan Newspapers Society (APNS) etc v. Federation of Pakistan and others (PLD 2004 SC 600) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455). 3. He next contended that the judgment under review has made Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 redundant, as the powers exercised by the competent authority under the said rule have been done away with. He contended that the principles enunciated by the impugned judgment were applied retrospectively. According to the learned Addl. Advocate General, if the law is declared ultra vires of the Constitution, the effect of such declaration would operate prospectively. In support of this contention, he has relied upon the cases of Muhammad Younis and others v. Essa Jan and others (2009 SCMR 1169) and Mazhar Ali vs. Federation of Pakistan/President of Pakistan thr. the Secretary Establishment Division, and others (1992 SCMR 435). He further contended that the Officers/employees serving in different departments of the Sindh Government for years together, were ordered to be repatriated to their Parent Departments, after the termination of their lien by lapse of time. The learned Addl. AG contended that the impugned judgment has attributed mala fides to the legislature, which finding is against the settled principles of law. He has relied upon the judgment in the case of Fauji Foundation and another vs. Shamimur Rehman (PLD 1983 SC 457) and prayed that the review be allowed on the aforesaid grounds. CRP.No.193/2013 etc 10 CRP No. 388,389,390,391,397 of 2013 & Crl.R.P 73/2013 By Raja M. Ibrahim Satti, Sr. ASC (CRP.388/2013) Ghulam Mustafa Zardari v. Province of Sindh etc (CRP.389/2013) Hameedullah v. Province of Sindh and others (CRP.390/2013) Saifullah Phulpoto v. Province of Sindh etc (CRP.391/2013) Nisar Ahmed Brohi v. Province of Sindh and others (CRP.397/2013) Manzoor Ahmed Sheikh etc v. Province of Sindh and others (Crl.R.P.73/2013) Nizamuddin and others v. Province of Sindh thr. its Chief Secretary Sindh and others 4 Raja M. Ibrahim Satti, learned Counsel for Petitioner(s) has contended that this Court has examined the vires of legislative instruments while interpreting the Articles of the Constitution without issuing notices to the Attorney General for Pakistan in terms of Order XXVII-A Rule 1 CPC, therefore, the impugned judgment is not sustainable. In support of his contention he has relied upon the case of Federation of Pakistan thr. Secy, M/o of Law etc v. Aftab Ahmed Khan Sherpao (PLD 1992 SC 723). He next contended that the Petition was not maintainable under Article 184(3) of the Constitution as the Petitioners were seeking redressal of their individual grievances and were not seeking enforcement of their fundamental rights. 5. It was next contended by the learned Counsel that mala fides could not be attributed to the Provincial Legislature, which has passed the legislative instruments, in exercise of the powers guaranteed by the Constitution. According to the learned Counsel, the Provincial Legislature was competent to legislate law, which is their divine right, therefore, the legislative instruments were wrongly struck down. He in support of his contentions has relied upon the case of Imran ullah v. the Crown (PLD 1954 Federal Court 123). 6. He further contended that in compliance with the impugned judgment, the Sindh Chief Secretary has issued CRP.No.193/2013 etc 11 notification repatriating the Petitioners to their parent Departments, without affording them the right of audience. The learned Counsel further argued that the issue of „absorption‟ of the Petitioners was a past and closed transaction; and by the impugned judgment this Honorable Court has erroneously undone absorption of the Petitioners by ordering their repatriation retrospectively. Crl.R.P. No. 72/2013 Syed Altaf Ali and others vs. Chief Secretary Sindh etc by Syed Ali Zafar, ASC 7. Syed Ali Zafar, Counsel for the Petitioners, has contended that this Honorable Court has wrongly entertained the issue of appointment of the Petitioners by nomination in excess of the prescribed quota in exercise of its original jurisdiction under Article 184(3) of the Constitution. According to the learned Counsel such an issue could only be adjudicated upon by this Court under Article 212(3) of the Constitution, which Article deals with the service matters. 8. He next contended that the Court ought to have decided the issue on merits and not on the basis of the list provided by the Sindh Government. The Counsel referred to Rule 5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964, which provides for promotion of various categories of Civil Servants by nomination. He submitted that if the appointments of the Petitioners by nomination are held to be illegal then all appointments made under Rule 5(4)(b) should be declared illegal and not just those nominated since 1994. He submitted that the aforesaid rule provides for preparation of lists B and C but no such CRP.No.193/2013 etc 12 lists were maintained by the Sindh Government for the nomination of the Petitioners as a consequence whereof they did not have the opportunity to challenge it. He submitted that a cut-off date should have been determined by the Sindh Government for examining the appointments made in excess of the quota. Lastly, the learned Counsel contended that departmental construction of a statute, though not binding, can be taken into consideration, especially when it was followed by the department consistently. In support of his contention he has relied upon the case of Muhammad Nadeem Arif and another v. Inspector-General of Police, Punjab, Lahore and others (2011 SCMR 408). Crl.RP No. 70/2013 Yar Muhammad Bozdar vs. Province of Sindh etc by Mr. Tariq Mahmood, Sr. ASC 9. Mr. Tariq Mehmood, learned Sr. ASC submitted that the Petitioner was a Superintendent in Board of Revenue, Government of Sindh. The recommendation for his appointment was made by the Member, Board of Revenue, Sindh in terms of Rule 5(4)(b) of the West Pakistan (Executive Branch) Rules, 1964. A list was prepared in 2005 and the Petitioner was recommended for nomination, therefore, his case falls within the prescribed limit of the quota. It was further submitted by the learned Counsel that the Petitioner passed many departmental examinations which were not taken note of by this Court while passing the impugned judgment against the Petitioner. Crl. R.P. No. 71/2013 Muhammad Jaffar Abbasi v. Province of Sindh and others by Mr. Tariq Mahmood, Sr. ASC 10. Mr. Tariq Mehmood, the Counsel for Petitioner, submitted that the Petitioner was appointed as Deputy Secretary, CRP.No.193/2013 etc 13 Sindh Public Service Commission through competitive process. On 30.03.1995, the post was upgraded to BS-18. On 01.09.1999, the Petitioner was transferred to S & GAD and absorbed in the Provincial Secretariat Service. The notification of his absorption was cancelled. The Petitioner challenged the cancellation of the notification before the Sindh Service Tribunal. The Tribunal accepted his Appeal against which Sindh Government filed CPLA before this Honorable Court. The CPLA, however, was dismissed for non-prosecution and the application for restoration of the CPLA was also dismissed. Resultantly, the order of the Tribunal attained finality. However, the absorption of the Petitioner has again been cancelled, pursuant to the impugned judgment without taking note of the aforesaid facts. 11. He next contended that before absorption, the Petitioner was a Civil Servant working in the Sindh Public Service Commission, which is an attached department of the S & GAD Department, and therefore, such absorption could not have been withdrawn in terms of the findings of the impugned judgment. CRP No. 194/2013 S.M. Kaleem Makki vs. Dr. Nasimul Ghani Sahito by Raja M. Asghar Khan, ASC 12. The learned Counsel, Raja M. Asghar Khan submitted that in the year 1993, the Petitioner was appointed as Project Director in BS-19 in the Sindh Small Industries Corporation through advertisement. Subsequently, by notification dated 22.06.2000, he was declared surplus. On 30.09.2005, he was absorbed in Provincial Secretariat Service (PSS) under Rule 9A of the Sindh Civil Servants (Appointment, Promotion and Transfer) CRP.No.193/2013 etc 14 Rules, 1973. The learned Counsel contended that the absorption of the Petitioner in P.S.S. in the same scale was made after observing all the codal formalities; therefore, his appointment by absorption was valid. CRP No. 204/2013 Syed Abid Ali Shah (Retired) vs. Farooq Azam Memon etc by Mr. Abadul Hussnain, ASC 13. The learned Counsel submitted that in 1976 the Petitioner was appointed as Management Trainee in the Board of Management, Sindh for nationalized Ghee Industries. On 16.8.1997, he was appointed Managing Director at Maqbool Co. Ltd. when the Sindh Government requisitioned his services. On 24.10.1997, the Petitioner was sent on deputation for 3 years to the Ministry of Industries and Production. On 15.11.1997, he was appointed Cane Commissioner in BS-19. Then on 05.04.1998, he was transferred as DG, Bureau of Supply and Prices, Sindh. Subsequently, on 15.11.1998, he was repatriated to Ghee Corp. and on 14.01.1999, his services were placed at the disposal of Population Welfare Department (PWD). On 18.01.1999, he was appointed as Additional Secretary, PWD, and on 09.08.1999, he was absorbed in PWD in relaxation of rules. Then, on 30.09.1999, Ghee Corp. relieved him but on 18.12.1999, the Government issued a notification for repatriation of the Petitioner. However, on 21.12.1999, the Secretary of Sindh Government informed that the Petitioner has been absorbed, therefore, he cannot be repatriated. By notification, dated 18.1.2013, the Petitioner was absorbed in PSS. CRP.No.193/2013 etc 15 14. The learned Counsel contended that, in pursuance of the impugned judgment, he was de-notified on 02.07.2013 and repatriated to Ghee Corporation though he had been merged in Sindh Government in PSS cadre and Ghee Corporation had become defunct. The Appellant retired on attaining the age of superannuation, on 01.06.2014, one year after de-notification. CRP No. 393/2013 Mujeeb-ur-Rehman Shaikh vs. Province of Sindh by Mr. Abdul Rahim Bhatti, ASC 15. Mr. Abdul Rahim Bhatti, the learned ASC, contended that the Petitioner was initially appointed as Assistant Director in Agriculture Department in BS-17 in 1989 through Sindh Public Service Commission. Later, his services were requisitioned by the Environment Department, Government of Sindh for a period of two years in the public interest. A summary was moved for his transfer and, consequently, he was appointed in the Environment Department. On 13.10.2005, he was promoted as Deputy Director in BS-18 through Provincial Selection Board and was granted seniority. The Petitioner was not a party to the proceedings either in the High Court of Sindh or before this Court. He was repatriated to his parent department without considering that the Petitioner fulfilled all pre-requisites of his appointment in the Environment Department, as provided under Rule 9(1) of the Rules of 1974. The learned Counsel submitted that Petitioner was validly appointed by transfer under Rule 9(1), and not under Rule 9-A. 16. He further contended that the word „person‟ used in Rule 9(1), clearly manifests the intention of the legislature that there is no bar to the appointment of the Petitioner by transfer CRP.No.193/2013 etc 16 under the A.P.T. Rules and in the other three Provinces and the Federation such transfers are ordered in routine. He next argued that the expression „person‟ used in the Rule 9(1) does not mean Civil Servant only and includes a „Government Servant‟, who may not be a Civil Servant. CRP No. 387/2013 in Const.P.71/2011 Imdad Memon and others vs. Province of Sindh and others by Mr. Hamid Khan, Sr. ASC 17. Mr. Hamid Khan, learned Counsel for the Petitioners, contended that none of the Petitioners was party to the proceedings; therefore, the Court could not have passed an order affecting their rights. He submitted that neither the High Court nor this Court (under Article 199 and Article 184(3) respectively) had the jurisdiction to examine the issue pertaining to the terms and conditions of service of a Civil Servant. The exercise of jurisdiction is barred under Article 212 of the Constitution. The issue of absorption is a matter relating to the terms and conditions of service, to be determined under the Civil Servants Act and the Rules framed thereunder. He submitted that a number of Petitions were filed by Civil Servants absorbed in the Secretariat Group in the High Court of Sindh, in ignorance of the fact that remedy was available to them before the Sindh Service Tribunal. Therefore, the Petitions were barred under Article 212 of the Constitution. The learned Counsel while relying upon the case reported in Superintending Engineer Highways Circle Multan vs. Muhammad Khurshid (2003 SCMR 1241), submitted that the matter of jurisdiction has not been dealt with in depth. He contended that Rule 9(1) and 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provide two modes of CRP.No.193/2013 etc 17 appointment by transfer and both these modes are recognized by law. 18. The learned Counsel submitted that Articles 240, 241 and 242 of the Constitution deal with the civil structure and Article 212 provides remedy to a Civil Servant. These Articles do not relate to fundamental rights. It has to be assessed in light of the aforementioned Articles whether the Supreme Court can adjudicate upon the issue relatable to the terms and conditions of service under Article 184(3). The learned Counsel contended that the Court has to draw a distinction between Article 184(3) and Article 212 while giving the findings. He contended that Article 240 empowers the Provincial Legislature to legislate laws relating to the terms and conditions of service of Civil Servants. 19. He next contended that in order to invoke the jurisdiction of this Court under Article 184(3), the expression „subject to the Constitution‟ has to be given narrow meaning, as referred to in the Article 275. The learned Counsel submitted that Civil Servants do not have fundamental rights to invoke jurisdiction of this Court under Article 184(3) of the Constitution. According to the learned Counsel, benefit of Articles 9 and 25 of the Constitution cannot be extended to the Civil Servants. CRP No. 193/2013 Ali Azhar Khan Baloch v. Province of Sindh etc by Barrister Farough Naseem, ASC 20. The learned Counsel submitted that the Petitioner was employed as Deputy Manager at Pakistan Steel Mills (PSM), which works under the control of Ministry of Production. On 16.09.1992, upon the directive of the then Chief Minister, his services were CRP.No.193/2013 etc 18 placed at the disposal of the Government of Sindh. For two years, he performed duties at various departments in the Government of Sindh, e.g. on 6.03.1993, he was posted as Project Director, Lines Area, Redevelopment Project KDA in BS-18. Finally, on 25.07.1994, permission was granted for his absorption by the Establishment Division into the Government of Sindh. On 28.05.1994, the Petitioner was finally absorbed as Deputy Secretary in the Sindh Secretariat (PSS) and was placed at the bottom of the seniority list. His lien with the PSM was terminated in 1994. He earned promotions from time to time and finally he was promoted as Secretary (BS-21) in the Sindh Government, by Notification dated 28.9.2012. By notification dated 25.4.2013, issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan, he was appointed by transfer as Senior Joint Secretary (BS-21) in Secretariat Group and his services were placed at the disposal of the Wafaqi Mohtasib for his further posting. He is now posted as Director General of the Wafaqi Muhtasib. 21. The learned Counsel for the Petitioner contended that the cut off date for the application of the impugned decision was held as 1994, therefore, his case was not covered by the impugned judgment. The learned Counsel submitted that the cut off date of 1994 is not backed by any standard. The date given in the litigation in 1996 (in which the Petitioner‟s case was decided) would be more suitable, which is 22.03.1995. The Counsel contended that the date of 1994 seems to be arbitrarily fixed. The learned Counsel cited the case Province of Punjab thr. Secretary C&W Department and others vs. Ibrar Younas Butt (2004 SCMR 67) in support of his submission. CRP.No.193/2013 etc 19 22. The learned Counsel then referred to Rule 5 of Framework of Rules and Procedure applicable to Secretariat, which provides that the appointment of Additional Secretary in the Federal Secretariat can be made from public servants or officials from public or private enterprises. The learned Counsel submitted that if there is such an option available in the Federation, why it should not be made available at the Provincial level. The Petitioner was an employee of PSM, which is a public enterprise. He further submitted that appointments cannot only be made through CSS examinations, citing the Police Service as an example. 23. Alternatively, the Counsel argued that the Petitioner is qualified to be adjusted under Rule 5 and he should either be allowed to go to the High Court and this Honorable Court may observe that the impugned judgment will not come in his way or this Court may give necessary directions to the Department. 24. The Counsel next contended that in pursuance of Services of Pakistan (Redressal of Under-Representation) Ordinance, 2012, on 01.12.2012, the Petitioner was appointed by transfer as Senior Joint Secretary in Secretariat Group in Federal Government on probation under section 6 of the Sindh Civil Servants Act, 1973. On 25.4.2013, the Petitioner was absorbed by the Federal Government and appointed at Wafaqi Muhtasib Secretariat. He submitted that the Federal Government realized that some Provinces were underrepresented, including Sindh and Balochistan. The Ordinance provided that officers could be taken from Provincial Civil Service and inducted under the Ordinance. Counsel submitted that the Petitioner‟s appointment is valid as his CRP.No.193/2013 etc 20 services were placed in the Federal Government under the aforesaid Ordinance. 25. He next contended that the notification for the Petitioner‟s absorption was issued prior to the impugned judgment i.e on 12.06.2013. He submitted that if the judgment has to be implemented retrospectively, the Petitioner should be repatriated in PSM and granted backdated seniority. CMA No. 4663/2013 in CRP No. 409/2013 Mukhtar Ali etc v. Province of Sindh etc by Mr. M. Aqil Awan, Sr.ASC 26. The learned Counsel, appearing for three Petitioners, Mukhtar Ali Pholijo, Muhammad Saleem Jokhio and Abdul Rashid, submitted that the persons against whom this judgment is being applied were not Civil Servants either before or after their absorption; they were just transferred from one cadre to another. 27. The Counsel submitted that Mukhtar Ali was appointed by Selection Board as a Medical Officer in BS-17 in Sindh Employee Social Security Institution (SESSI). By notification, dated 31.1.1996, he was absorbed in BS-17 in Sindh Council Service, Medical Branch. Before the impugned judgment was passed, the Petitioner was Administrator in District Municipal Corporation, Malir in Executive Cadre. 28. The second Petitioner, Muhammad Saleem, was an officer in City District Government Karachi in BS-18, Administrative cadre. The Counsel submitted that the Petitioner was employed in the same department but he was absorbed in another branch. The Counsel submitted that the services of the employees of KMC are regulated by the Sindh Local Government CRP.No.193/2013 etc 21 Ordinance 1979, whereas the services of the employees of the Councils are governed by the Sindh Councils Unified Grades Service Rules 1982. 29. The third Petitioner Abdul Rashid was appointed as Assistant Director, KMC in BS 16 on 21.03.1996. On 12.4.2003, he was promoted to BS-17 and on 19.04.2007, he was subsequently promoted to BS-18. He was employed as an officer in City District Council; the nomenclature kept changing according to the prevalent laws but, basically, he was an employee of the Municipal Corporation. On 12.2.2013, the Petitioner was absorbed in Sindh Councils Service and promoted to BS-19 on 12.2.2013. 30. The Counsel referred to Rule 12(5) of the Sindh Councils Unified Grade Service Rules, 1982, which provides for appointment by transfer. The learned Counsel contended that Mukhtar Ali‟s appointment was not challenged but he had been repatriated to his parent office pursuant to the impugned judgment, which does not relate to non-Civil Servants per se. The impugned judgment was passed on 12.06.2013 and he was repatriated on 2.07.2013. The learned Counsel contended that since absorption has been declared illegal by the impugned judgment, the Petitioner, an officer of BS-19, has been repatriated to BS-17. 31. The learned Counsel submitted that the impugned judgment of this Court has curtailed a prevalent practice, which is permissible under the law. The learned Counsel contended that this Court needs to lay down the modalities of implementation and application of the impugned judgment. The modalities regarding deputation and absorption and the process of repatriation after CRP.No.193/2013 etc 22 illegal absorption should also be laid down. He contended that if an officer has been wrongly absorbed, a show cause notice should be issued, the grounds of repatriation should be mentioned and speaking order should be passed, which is justiciable. 32. The learned Counsel submitted that the impugned judgment does not apply to non-Civil Servants as they were not party to the original proceedings and no Counsel appeared on their behalf. He cited the cases of Fazal Ahmed Samito vs Province of Sindh (2010 PLC (CS) 215) and Zulfiqar Ali Domki vs Province of Sindh (2012 PLC (CS) 1176) and argued that KMC/Council employees are not Civil Servants. He further submitted that Rule 12 (5) of the Rules permits appointment by transfer. 33. The learned Counsel submitted that, firstly, the judgment should be prospective, particularly, when punitive consequences flow from its application. Secondly, he contended, that the judgment is against the principles of natural justice; the Petitioners were not party to the proceedings and they were not heard. Thirdly, the impugned judgment nullified all absorptions since 1994 even though all the absorptions were not challenged. Furthermore, past and closed transactions under the impugned legislations cannot be held to be unlawful. Fourthly, he contended that the law of deputation says that transfer should be made to a post in the same grade. Similarly, repatriation should also be made in the same grade to the parent department. Lastly, he submitted that the High Court should adjudicate on the matter whether a case is covered by the impugned judgment or otherwise. CRP.No.193/2013 etc 23 C.R.P. No. 407/2014 Shahid Hussain Mahessar vs. Province of Sindh etc by Mr. Abdul Rahim Bhatti, ASC 34. Mr. Abdul Rahim Bhatti, ASC, argued that on 27.7.1998, the Petitioner was initially appointed as Assistant Director (BS-17) in the I.S.I by the Federal Public Service Commission (FPSC), through competitive process. Subsequently, the F.P.S.C advertised posts of Deputy Director (BS-18) in the Intelligence Bureau. The Petitioner secured first position in the test and on 15.10.2005, he was appointed as Deputy Director in the I.B. In both organizations i.e. the I.S.I and the I.B, the Petitioner had undergone specialized training courses, which includes surveillance, interrogation and investigation. On 25.07.2009, initially his services were placed at the disposal of Government of Sindh on deputation basis for his posting in BS-18, as he belongs to Sindh Rural. Later on, through notification, dated 29.6.2012, (placed at page 234 of P.B), he was appointed as Superintendent of Police (BS-18) by way of appointment by transfer and he severed all connections from the I.B. 35. The learned Counsel stated that the Petitioner was not a party to the proceedings in which the impugned judgment has been passed. He further contended that as far as his qualification, specialized courses and length of service are concerned, they are in conformity with the Rules. He was not lacking any requirement. He then referred to Rule 3(2) of the Sindh Civil Servants A.P.T Rules. He contended that there is no bar against appointment as S.P and the Petitioner met all the requirements provided in Rule 3 (2) of the Rules. He referred to Serial No.9 of the Schedule to the Rules where the post of S.P is mentioned. CRP.No.193/2013 etc 24 36. The learned Counsel argued that the Petitioner joined the Special Branch of the Sindh Police and he fulfills all the conditions laid down for the Special Branch. He had undergone all the training courses in I.S.I and I.B. 37. He submitted that the provision of lateral entry is available in all the occupational groups and it is for the department to send him for training if the Petitioner lacks in some area. 38. He then referred to Rule 7(2) of the APT Rules and stated that the case of absorption of the Petitioner was duly examined by the appropriate Selection Board and was recommended by the two I.G.P‟s and the Intelligence Bureau. Then the matter was referred to the S&GAD where it was further examined and a formal summary was moved to the Chief Minister who approved it and then notification of absorption of the Petitioner was issued in conformity with the Rules. 39. He submitted that there are cases in which officers from F.I.A were inducted in the Police and the Courts held their induction to be lawful. He submitted that if it was not permissible then there was no need to mention the post of the S.P at S.No.9 of the Schedule to the Rules. 40. The learned Counsel contended that the Petitioner was governed by the Sindh Civil Servants Act, 1973 and he was originally a Civil Servant in the I.B and the I.S.I and his services were placed at the disposal of the Sindh Government. 41. In support of his submissions he referred to the cases of 2004 SCMR 164 and 1993 SCMR 982 to state that even CRP.No.193/2013 etc 25 absorption of employees of autonomous bodies in the Government Department was held to be lawful. He then referred to the case of 2010 PLC (CS) 1415 and states that in this case the person who had not even received specialized police training, yet his appointment was held to be lawful. He then submitted that even if absorption or appointment by transfer is irregular, the department or the functionaries are held responsible and not the individuals. In support of his submissions he referred to the cases of 2013 SCMR 281, 1996 SCMR 413, 1996 SCMR 1350, 2006 SCMR 678 and 2002 SCMR 1034. He further contended that the impugned judgment would be prospective and not retrospective. In support of his contention he referred to the cases of 2009 SCMR 1169 and 2013 SCMR 34. He further contended that after the judgment, the Petitioner was repatriated to the I.B, which refused to take his services back under the pretext that his lien was terminated when he was appointed/absorbed in the Sindh Police. He submitted that the case of the Petitioner is that of hardship as he is not even drawing his salary from anywhere. C.R.P.No. 399 of 2013 Imran Hussain Jaffri v. Farooq Azam Memon and others by Mr. Shabbir Ahmed Awan, ASC 42. The learned Counsel, Mr. Shabbir Ahmed Awan, argued that on 12.7.2010, the Petitioner was appointed as System Analyst (BS-18) in the Criminal Prosecution Branch through the Sindh Public Service Commission. On 10.9.2011, he was declared surplus and absorbed in the Provincial Secretariat Group. 43. The learned Counsel referred to Rule 9 of the A.P.T Rules and argued that any person from any department can be appointed in PSS, who possesses the matching qualifications. The CRP.No.193/2013 etc 26 prescribed qualification for induction in PSS is merely graduation and the Petitioner has done M.Sc in I.T. He submitted that the Petitioner was validly absorbed in PSS under Rule 9 of the Rules. He contended that the Petitioner was not party to the main Petition in which the impugned judgment has been passed and the Petitioner has been condemned unheard. CRP No.410 OF 2013 Jasoo Ram vs. Nasim ul Ghani Sahto etc by Mr. Abdur Rehman Siddiqui, ASC 44. It is contended by Mr. Abdur Rehman Siddiqui, Counsel for the Petitioner that he will adopt the arguments of Mr. Abdul Rahim Bhatti, ASC on legal side. He contended that the Petitioner was posted as Deputy Director (BS-18) in Minority Affairs Department, Government of Sindh and was transfered and absorbed in BS-18 in ex-PCS cadre on 12.3.2013 and, subsequently, was posted as Deputy Secretary in Law Department on 3.4.2013. He contended that the Sindh Government in exercise of powers under Rule 9(1) of the APT Rules was competent to order absorption of the Petitioner. Pursuant to the judgment impugned in these proceedings, the Petitioner was de-notified and was ordered to be repatriated to his parent department. CRP No. 396 of 2013 Dost Ali Baloch vs. Province of Sindh etc by Dr. Farough Naseem, ASC 45. The learned Counsel, Barrister Farough Naseem submitted that the Petitioner was not party to the original proceedings. On 20.7.1986, he was inducted as Deputy Assistant Director in IB through the competitive examination in BS-17. On 27.12.1993, Special Branch of Sindh Police requisitioned the CRP.No.193/2013 etc 27 services of the Petitioner on deputation basis for a period of three years. By notification, dated 7.5.1994, the I.B relieved him of his duties to join the Special Branch of the Sindh Police as DSP. At times, the Sindh Police refused to repatriate the Petitioner to the I.B due to law and order situation in the Province. In the meanwhile, the Petitioner was promoted on 2.2.1997 in BS-18. In the intervening period, in 1993, the Petitioner passed the CSS examination, and was recommended to be appointed in the Office Management Group (OMG). The Petitioner made an Application to the Sindh Police to relieve him so that he could join the Civil Services Academy, but the Sindh Police refused to relieve him. The Petitioner was required to report to the Civil Services Academy by 15.12.1994, but, due to refusal of the Sindh Government, he could not take up his appointment in the OMG. According to the learned Counsel, the Petitioner kept on insisting for repatriation since 1995 but the Sindh Government has declined. The Petitioner has performed exceptionally well and, apart from performing his duties, he was organizing technical upgradation, etc. and his retention was required to maintain the continuity and consistency of the department. On 14.10.1998, a notification was issued with the approval of the competent authority, permanently absorbing the Petitioner as SP Political Special Branch, Sindh Police in relaxation of rules. 46. The learned Counsel referred to Rule 4 and Rule 10 of Sindh Civil Servants (APT) Rules, 1974 and Rule 4(3) of Sindh Public Service Commission Functions Rules, 1990 and contended that an officer can be appointed without competitive examination by the order of the Chief Minister. The learned Counsel submitted that all pubic powers are to be exercised fairly, justly and CRP.No.193/2013 etc 28 reasonably in furtherance of public interest. The Chief Minister cannot blindly do anything, but in exceptional cases like the present one, where the Government of Sindh was instrumental in preventing the Petitioner from joining the Civil Service the Petitioner who was highly qualified and was retained in Sindh Government to maintain law and order in Karachi, the competent authority was justified under Rule 4(3) to absorb the Petitioner in Sindh Government. 47. The learned Counsel stated that after rendering 20 years of service with the Sindh Police, the Sindh Government has repatriated the Petitioner when his lien had been terminated. He lost an opportunity to be part of the OMG due to non-relieving by the Sindh Government. He is an officer of BS-20, currently holding no post, and his lien in IB has also been terminated. Counsel then referred to the case of Muhammad Malik v. Province of Sindh (2011 PLC (CS) 1456) while submitting that the Petitioner cannot be compared to PSP because he is in a separate cadre, i.e. Sindh Police. The learned Counsel contended that the Petitioner is wrongly de-notified. CRP No. 398 of 2013 Muhammad Riaz etc vs. Province of Sindh etc by Mr. M. Shoaib Shaheen, ASC 48. Mr. M. Shoaib Shaheen, learned ASC submitted that the Petitioner was a regular employee of the Anti Narcotics Forces (ANF) since 1989 and was working as Assistant Director in BS-17 when on 13.5.2003, he was transferred and posted on deputation as DSP in the Sindh Police. The Petitioner was absorbed by notification, dated 26.02.2008, and promoted twice. There was a dispute regarding his seniority which was resolved by the Sindh CRP.No.193/2013 etc 29 Service Tribunal and the High Court of Sindh, approving the Petitioner‟s backdated seniority and that matter attained finality. The learned Counsel in support of his contention has relied upon the case of Pir Bakhsh vs. The Chairman, Allotment Committee and others (PLD 1987 SC 145). The learned Counsel submitted that the Petitioner‟s transfer from ANF to Police under Rules 3(2) and 9(1) of APT Rules, 1974, was justifiable. 49. The learned Counsel contended that the impugned judgment declares that absorption can only be made under Rule 9-A, however, absorption can also be made under Rule 9(1). The Counsel further stated that the Petitioner‟s transfer has not been validated under the legislative instruments that have been struck down. He submitted that the impugned judgment does not clarify exactly which absorptions are illegal and that even legal appointees have been affected by the impugned judgment, and this Honorable Court must review this judgment. CRP No.387 of 2013 Imdad Memon and 2 others v. Province of Sindh etc by Mr. Hamid Khan, Sr. ASC 50. Mr. Hamid Khan, learned Sr.ASC, submitted that the Petitioners were validly appointed by transfer and absorbed. He submitted that Rules 9(1) provides for appointment by transfer, and by promotion. By the impugned judgment it has been held that an employee can only be absorbed under Rule 9-A but not under Rule 9(1). He submitted that Rule 9(1), has to be read with Rule 7(2) and (3) of the Rules. According to the learned Counsel the word „Person‟ used in Rule 9(1) would include any person, and competent authority is conferred powers to appoint him by transfer which includes absorption in that post. The learned Counsel CRP.No.193/2013 etc 30 further submitted that lateral movement between the departments is permissible by the Rules of 1974. Crl.R.P.No.38 of 2014 Asma Shahid Siddiqui vs. Chief Secy. Govt. of Sindh In person 51. The Petitioner, appearing in person, argued that in the year 1996, she was appointed as Forest Ranger (BS-16) in the Forest Department on the recommendations of the Punjab Public Service Commission. She was married in 1996 and her husband was also a Forest Ranger in the Sindh Forest Department, therefore, she applied for inter-provincial transfer to the Forest Department, Government of Sindh, on the basis of Wedlock Policy. On 11.2.1997, she was absorbed in the Sindh Forest Department as Forest Officer (BS-16). She submitted that during the interregnum, she also qualified the Sindh Public Service Commission examination for appointment to the post of Assistant Registrar (BS-17) in the Co-operative Department, Government of Sindh, and she worked as such for some time, but due to future prospects she came back to the Forest Department. She contended that at the time of passing of the impugned judgment, she was working as Divisional Forest Officer, Hyderabad, when she was ordered to be repatriated to the Forest Department, Government of Punjab. She contended that her lien in the Government of the Punjab had been terminated, therefore, the Government of Punjab had refused to take her services back. She, therefore, requested that her notification of repatriation may be ordered to be withdrawn. CRP.No.193/2013 etc 31 C.R.P.No. 408 of 2013 in CA 12-K of 2012 Muhammad Rizwan Soomro vs. Province of Sindh etc by Mr. Abdul Rahim Bhatti, ASC 52. The learned Counsel argued that, on 11.7.2006, the Petitioner was appointed as Assistant Director (Investigation) in the NAB. On 2.4.2008, his services were requisitioned by the S&GAD, Sindh, for posting in Government of Sindh, on deputation basis; whereafter, on 10.5.2008, he was absorbed/inducted in the Sindh Police as DSP (BS-17). The learned Counsel submitted that Rule 9(1) of the Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974 confers ample powers upon the competent authority to appoint a person by way of transfer and the procedure provided for appointment in these Rules was duly followed while making appointment of the Petitioner. He further contended that National Accountability Bureau is a subordinate office of the Ministry of Law and the Petitioner was a Civil Servant. C.R.P. No. 402 of 2013 (Shamsuddin Sheikh vs. Province of Sindh etc) C.R.P No. 403 of 2013 (Nizamuddin Sheikh vs. Province of Sindh etc) by Mr. Khurram Mumtaz Hashmi, ASC 53. Mr. Khurram Mumtaz Hashmi, learned ASC, for the Petitioners has contended that Petitioner in C.R.P.No.402 of 2013, the Petitioner was appointed as Sub-Engineer (BS-11) in Public Health Engineering Department, Government of Sindh, on 9.8.1984. On 29.9.1987, he was appointed as Assistant Engineer in Public Health Department and was again promoted as Executive Engineer (BS-18) on 6.10.1999. On 14.05.2005, the Government of Sindh S&GAD Department requisitioned the services of the Petitioner on deputation basis for an initial period of 2 years, for his posting in Works and Services Department. On 26.5.2007, the period of deputation was extended for another 2 years by the CRP.No.193/2013 etc 32 S&GAD Department, Government of Sindh. Consequently, on 8.10.2007, he was absorbed as executive Engineer (BS-18) in the Works and Service Department, Government of Sindh and his name was placed at the bottom of seniority list of Executive Engineers of the Department. The learned Counsel submitted that the Petitioner was transferred from one non-cadre to the other non-cadre post, therefore, his case is not covered by the judgment. 54. The learned Counsel submitted that the position of the Petitioner in C.R.P No.403 of 2013 was similar, as on 12.9.1994, he was appointed as Executive Engineer (BS-17) in Water and Sewerage Board, Karachi (KWSB). On 25.10.1994, the appointment of the Petitioner was regularized and on 27.10.2008, he was promoted as Executive Engineer (BS-18) in the KWSB. Consequently, on 18.8.2008 he was absorbed as Executive Engineer (BS-18) in the Works and Services Department, Government of Sindh. Lastly, he submitted that the impugned judgment is not a judgment in rem but is a judgment in personam. C.R.P No. 400 of 2013 in CP No. 71 of 2011 Saeed Ahmed Sheikh etc vs. Province of Sindh etc by Mr. Muhammad Ibrahim Bhatti, ASC 55. The learned Counsel contended that Petitioner No.1 was initially appointed as Section Officer in Provincial Secretariat Service (BS-17) on the recommendation of the Sindh Public Service Commission. On 26.11.2010, he was promoted as Deputy Secretary and on 14.3.2013, the notification of absorption of the Petitioner in ex-PCS in BS-18 in exercise of powers of section 24 of the Sindh Civil Servants Act, 1973 was issued. CRP.No.193/2013 etc 33 56. Petitioner No. 2 Gulshan Ahmad Sheikh was appointed vide notification, dated 29.10.1991 as Additional Private Secretary in Chief Minister Secretariat. In the intervening period, he was appointed as Protocol Officer and on 26.3.2008, the post was upgraded from BS-17 to BS-18. On 14.3.2013, he was absorbed in ex-PCS by CM, Sindh in exercise of power under section 24. 57. The learned Counsel contended that section 24 confers ample powers upon the competent Authority to absorb/induct an officer from one cadre to another cadre. Therefore, absorption of the Petitioner in ex-PCS was validly made. CRP. No. 411 of 2013 in CA.12-K of 2012 Zameer Ahmad Abbasi v. Province of Sindh etc by Mr. Abdul Rahim Bhatti, ASC 58. The learned Counsel contended that the Petitioner was initially appointed as Assistant Director (BS-17) in the National Accountability Bureau on the recommendations of the Federal Public Service Commission. He received specialized training from the National Police Academy Islamabad. The S&GAD Department Government of Sindh requisitioned the services of the Petitioner on deputation. Finally, on 29.2.2012, he was absorbed as DSP (BS-17) in Sindh Police by the S&GAD Department. The learned Counsel contended that the appointment of the Petitioner was made by transfer as per Rule 6(1) of the APT Rules. Therefore, his absorption in the Sindh Police was valid. He further contended that as per Recruitment Rules for the post of DSP, the post of DSP is a non-cadre post and the Petitioner was absorbed against the same. CRP.No.193/2013 etc 34 Crl.RP No.74 of 2013 Ghulam Nabi Babar Jamali etc v. Chief Secretary, Sindh by Mr. Adnan Iqbal Ch. ASC 59. Mr. Adnan Iqbal Ch, learned Counsel for the Petitioners submitted that the Petitioners were not party to the original proceedings. Petitioner No.1 is a Civil Diploma holder appointed initially on 01.06.1984 as Sub Engineer in BS-11 in the Irrigation Department. On 3.12.2003, he was promoted to BS-16 after a delay of 8 years; he had passed his examinations and was entitled to promotion in 1996. On 26.1.2004, he was promoted out of turn for „gallantry‟ in performance of his duties to BS-17 as Assistant Engineer. 60. The learned Counsel submitted that on 22.8.1988, Petitioner No.2 was appointed as Sub Engineer in BS-11 in the Irrigation Department. On 22.8.1994, he was promoted from BS-11 to 16 and on 06.10.2003, he received out of turn promotion to BS-17. 61. The learned Counsel submitted that Section 9-A of the Sindh Civil Servants Act, 1973 and Rule 8B of the Sindh Civil Servants (APT) Rules, 1974 allow out of turn promotion and have not been struck down by the impugned judgment. Therefore, the portion of the impugned judgment that nullifies out of turn promotions needs to be revisited because the Rule that allows out of turn promotion is still on the statute book. 62. The learned Counsel submitted that Section 9-A is applicable to all and is not confined to the Police Personnel, so „promotion for gallantry act‟ can be given to all Civil Servants. He submitted that the word gallantry has been used and defined in CRP.No.193/2013 etc 35 the Decorations Act, 1975. It states gallantry is a trait that could be exhibited by any Civil Servant regardless of opportunity presented to him in the field. If the opportunity of exhibiting gallantry only arises in the Police Department, it does not mean that other Civil Servants cannot display gallantry. He then referred to the use of the word gallantry in Article 259 of the Constitution. The learned Counsel submitted that the portion of the impugned judgment that confines Section 9A and Rule 8B to the Police Force should be removed. 63. He next contended that the phrase „beyond the call of duty‟ used in section 9-A should be interpreted in a broader sense, so as to extend its benefit to all Civil Servants. He submitted that a Civil Servant can be granted out of turn promotion by applying this principle and the case of the Petitioner falls within Rule 8B. 64. He further submitted that Section 9-A was inserted in 2002, which prescribed mode for granting out of turn reward and award by Rules framed in 2005. Rule 8B was introduced in 2005, which provides for constitution of a committee to examine all out of turn promotions. Since the impugned legislations have been declared illegal by the judgment under review, the learned Counsel submitted that the decision of the High Court of Sindh is still in the field. The learned Counsel further contended that out of turn promotion was declared unlawful in Nadeem Arif v. IG Police, Punjab, Lahore (2010 PLC (CS) 924). However, before this judgment in 2010, out of turn promotions had been endorsed and approved in numerous judgments including Capt. (Retd.) Abdul Qayyum v. Muhammad Iqbal Khokhar (PLD 1992 SC 184), Punjab Seed Corporation v. Punjab Labor Appellate Tribunal (1996 SCMR CRP.No.193/2013 etc 36 1946), Government of Punjab v. Raja Muhammad Iqbal (1997 SCMR 1428), IG Police Lahore v. Qayyum Nawz Khan (1999 PLC (CS) 1381), Raja Shoukat Mehmood v. Azad Jammu and Kashmir Government (2003 PLC (CS) 424) and IG Police, Lahore v. Muhammad Iqbal (2007 SCMR 1864). The Petitioners were promoted out of turn in 2004; therefore Nadeem Arif‟s case (supra) does not apply to them since change in enunciation of law is prospective and, therefore, their cases should be assessed under Rule 8B. Crl.RP No.75 of 2013 Ghulam Hussain Korai v. Province of Sindh In person 65. The Petitioner appeared in person and stated that he is aggrieved by the notification, dated 02.07.2013. He submitted that on 02.07.1995, he was appointed as Assistant Sub Inspector in Central District Karachi under „shaheed quota‟, as a result of the martyrdom of his brother, Mohammad Bux Korai. On 07.12.2001, he was promoted as Sub Inspector by the competent authority. A Committee was constituted which recognized the Petitioner‟s participation in numerous encounters and his injury in an encounter in 2004. As a result, on 03.04.2008, he was promoted as Police Inspector in recognition of recovery of a container worth Rs.10 crore. He was working as Inspector in (BS-16) in Sindh Police when on 19.11.2009, he was sent on deputation for 2 years as DSP (BS-16) District Prison Malir, which period was extended for another 2 years. On 15.3.2013, he was absorbed as DSP in BS-16 with effect from 19.11.2009. He was next appointed as Officiating Superintendent for 22 months at Sanghar Jail in BS-17 in OPS. His parent department called him back but I.G. Prisons CRP.No.193/2013 etc 37 refused to repatriate him. He was repatriated to his parent department when the impugned judgment was implemented. The Petitioner submits that he has been reverted to his substantive post of Inspector. He contended that he was appointed by transfer in Prison Department under Rule 9(1), which was a valid appointment. CRP No.76 of 2013 Hafiz Safdar Shekih v. Javed Ahmed etc by Mr. Shabbir Ahmed Awan, ASC 66. The learned Counsel, Mr. Shabbir Ahmed Awan, submitted that the Petitioner was not a party to the original proceedings. He is a Civil Engineer appointed as Assistant Engineer at Works and Services Department, Government of Sindh in March, 1993. On 16.03.1995, he qualified through Public Service Commission to be appointed as Assistant Executive Engineer (AEE) in BS-17. In January 2006, his services were requisitioned by the Anti-Corruption Establishment (ACE) as Technical Officer under the rules on deputation, and, on 10.03.2008, he was absorbed as AEE. He was promoted to BS-18 in the Anti-Corruption Department. The contention of the learned Counsel is that once the Petitioner was appointed by transfer in Anti-Corruption Establishment under Rule 9(1) he could not have been called back to his parent department. Crl.RP No. 77 of 2013 Talib Muksi v. Province of Sindh etc by Mr. Yawar Farooqui, ASC 67. The learned Counsel Mr. Yawar Farooqui submitted that in 1993, the Petitioner was appointed in BS-17 in Local Govt. Department, Balochistan as Assistant Director. He was promoted CRP.No.193/2013 etc 38 to BS-18. He contended that the Petitioner‟s son was attacked and he spent two months with his son at Agha Khan Hospital Karachi, where he underwent treatment. The Petitioner applied to the CM, Sindh for transfer on humanitarian grounds, and his transfer was made under section 10 of Balochistan Civil Servants Act. On 03.09.2010, he was posted as Director Food, Sindh by the CM in exercise of his powers under section 24 of the Sindh Civil Servants Act, 1972. He was then appointed as EDO Finance, Sindh and on 14.03.2013, was absorbed in ex-PCS without going through any competitive process. The Petitioner was repatriated to the Balochistan Government in the wake of the impugned judgment; however, he has severed all connections with the Balochistan Government, therefore, he could not be repatriated. Crl.RP No. 79 of 2013 Syed Shakir Hussain v. Province of Sindh etc by Mr. Rana Azam-ul-Hassan, ASC 68. The learned Counsel Mr. Rana Azam ul Hassan submitted that Petitioner was not party to the proceedings. On 02.07.1995, he joined Jail Department as Assistant Superintendent Jail in BS-14 and on 15.11.2004, he was promoted to BS-16 as Deputy Superintendent with the approval of the relevant authority under section 9-A. The learned Counsel submitted that the Petitioner was promoted to BS-17 out of turn which promotion was reversed. The grievance of the Petitioner is that appointees of his batch, who were junior to him, have been promoted to BS-17 on regular basis and he has been relegated to BS-16 in the wake of the impugned judgment. He submitted that the Petitioner should also be considered for promotion to BS-17 CRP.No.193/2013 etc 39 and his seniority be fixed along with his other colleagues, who were appointed with him in the year 1995 in BS-14. Crl.RP No. 78 of 2013 Dur Muhmmad Panhwar v. Province of Sindh by Mr. Irfan Qadir, ASC 69. The learned Counsel Mr. Irfan Qadir submitted that the Petitioner, who is qualified as MA-LLB, was appointed as Senior Auditor in Pakistan Military Accounts, Ministry of Defence, Government of Pakistan in BS-11 on regular basis as a Civil Servant. He was then posted in the office of the Controller Naval Accounts Karachi and the post was subsequently upgraded to BS-14. On 07.11.2007, his services were requisitioned and placed at the disposal of Sindh Government, and he was sent on deputation for 5 years. In 2010, his post was again upgraded to BS-16. He was posted in Solicitors Department and was discharging similar duties as of his parent department. He was allowed to work as Superintendent in Solicitors Department in BS-16 till 06.11.2010. By order, dated 14.04.2012, the Petitioner was permanently absorbed. However, in pursuance of the impugned judgment, the Petitioner‟s absorption was withdrawn and he was repatriated to his parent department. 70. The learned Counsel argued that there are specific Rules framed for this post in pursuance of Rule 3(2) of the APT Rules which state that 30% of posts shall be for appointments by transfer. Furthermore, the Petitioner was transferred under Rule 9(1), which is still intact. Therefore, his appointment was valid and lawful. The Petitioner‟s appointment was not in violation of the rules or the judgment but his repatriation from the Sindh Government was without notice. The Petitioner was placed at the CRP.No.193/2013 etc 40 bottom of the seniority list, did not receive any benefit under the struck down provisions and he had not earned any out of turn promotion. 71. The learned Counsel further submitted that the Court should not dwell on academic issues. He next contended that this is not a public interest litigation and principles of justice have been violated in the judgment under review as thousands of officers have been condemned unheard. Therefore, the principle of audi alteram partem has been violated and the officers were denied their fundamental rights of hearing, fair trial under Article 10A of the Constitution. The Counsel argued that the judgment is discriminatory and violates Article 25, as some officers were heard while others who were not party were not heard. 72. The fact that all these Petitions have been jumbled together is an error apparent on the face of the record. The mess created by excessive use of suo motu powers should now be cleared and these decisions should be reviewed. The Counsel contended that the judgment is vague, unclear and contains gross errors pertaining to the Constitution and laws, as under Article 184 (3) of the Constitution, this Court cannot examine the questions relating to terms and conditions of service. The proceedings are void ab initio because the judges of the Honorable Court were under a wrong impression of the law that the Judgment of the High Court of Sindh was to apply in rem and not in personam. The Counsel referred to Articles 189 and 190 of the Constitution and submitted that the judgment was to apply in personam and it must apply prospectively, not retrospectively. When a principle of law is laid down, it applies prospectively. The Counsel referred to Pir Buksh‟s CRP.No.193/2013 etc 41 case PLD 1987 SC 145, in which writ petitions were decided by the High Court against which the Government filed Appeals but in one case no Appeal was filed. Therefore, it was decided that since his case was not before the Court, no adverse order could be passed against him. Hence, his rights were taken away because he was not heard. Therefore, the judgment under review will apply purely in personam and not in rem. The Counsel further submitted that the Supreme Court in fact implemented the judgment of the High Court and this Court is not the forum for this. 73. The learned Counsel contended that there are major inconsistencies within the judgment. He submitted that in para. 116 of the judgment, it has been held that absorption is legal if an officer is transferred to a post that requires matching qualifications, expertise and experience. But para. 175 declares all absorptions illegal. Furthermore, the judgment prohibits transfer of Civil Servants to non-cadre posts, however, there is no law that prohibits transfer of a person against a post held by a Civil Servant especially when the qualifications match. No embargo has been placed on the legislature by the Constitution to include anybody within the ambit of Civil Servant; Article 240 of the Constitution provides to the contrary. The Counsel submitted that Rule 9(1) uses the term „person‟, therefore it is not confined to any Civil Servant, government servant or public servant only. 74. The learned Counsel further submitted that the concept of absorption and lateral entry is not alien to the country‟s jurisprudence. This is evident from Rule 8(1) of Civil Service of Pakistan (Composition and Cadre) Rules 1954, Rule 8 of Trade and Commerce where people can be appointed directly, Rule 7 of CRP.No.193/2013 etc 42 Customs, Rule 9 of Foreign Affairs, Rule 7 of Income tax, Rule 8 of Information, Rule 9(c) of OMG and Rule 7 of Police Group. Thousands of appointments will have to be repatriated in the Federal Government and Punjab Government if absorptions are declared illegal because law has to be applied equally. In para. 128, the impugned judgment held that a deputationist should be a Government Servant, and there is no emphasis that it should be Civil Servant specific. And, there is no law with such a requirement either. But it has been held to the contrary in para. 129 and the judgment in Lal Khan‟s case (supra) being relied upon is non- existent. Crl.RP No. 81 of 2013 (Tariq Mughal v. Chief Secretary, Sindh) Crl.RP No. 82/2013 (M. Hanif Solangi v. Chief Secretary, Sindh) by Mr. Muhammad Munir Paracha, ASC 75. The learned Counsel Mr. Muhammad Munir Paracha, ASC submitted that on 23.09.1998, Petitioner no. 1, Tariq Mughal was appointed as Assistant Executive Engineer (BS-17) on ad hoc basis for 6 months in Port Bin Qasim Authority. His post was regularized on 10.04.1991 w.e.f 06.08.1990. On 16.05.1993, he was sent on deputation for 3 years as Assistant Executive Engineer, ZMC East and on 21.02.1994, he was absorbed in Sindh Council Unified Grade Service in BS-17. On 02.07.2013, he was reverted in implementation of the impugned judgment. The Counsel contended that the judgment is violative of the Order XXVII-A Rule 1 of CPC because no notice was issued to the Advocate General/Attorney General. This was essential as the Court was examining the vires of legislation. The Counsel relied upon the case of Federation of Pakistan v. Aftab Ahmad Sherpao (PLD 1992 SC 723) in support of his contention. He submitted that CRP.No.193/2013 etc 43 proceedings taken under Article 184 (3) are barred under Article 212 of the Constitution as the proceedings were relatable to the terms and conditions of the Civil Servants and Article 184 (3) is controlled by the Article 212 of the Constitution. 76. The Counsel submitted that legislative instruments can be held ultra vires only on the following 5 grounds; competence of the legislature to legislate such laws, inconsistency with fundamental rights, violation of any provision of the Constitution, inconsistency with injunctions of Quran and Sunnah (declared by the Federal Shariat Court and Shariat Appellate Bench of this Court) and Federal Money Bill. None of the aforesaid grounds existed to reach such a conclusion. 77. The learned Counsel submitted that appointment can be made through promotion or by direct transfer. He next contended that the definition of Civil Servant has been wrongly interpreted. Everyone working in the affairs of the Province is a Civil Servant, not just those who pass competitive examinations. The Court has the power to determine legislative intent, but it cannot declare a law as bad law unless it is invalid. If the Court interprets law in a way that it is against the intent of the legislature, the legislature can revalidate the law so that its true intent is followed. The Counsel submitted that if a judgment interprets law or a law is struck down due to incompetency of Legislature, it can have retrospective effect. However, if a law is invalid because it is inconsistent with fundamental rights, as is the case in the judgment under review, the judgment must be prospective. CRP.No.193/2013 etc 44 78. On 01.03.1990, Petitioner no. 2 Muhammad Hanif Solangi was appointed as Assistant Security Officer (BS-12). In 1994, the post was upgraded to BS-14. On 19.06.2004, he was promoted as Security Officer in BS-16 and on 25.10.2008, he was appointed as Deputy Director Coordination. This post was also upgraded on 19.05.2009. On 15.08.2012, he was assigned charge of Secretary, SITE. Subsequently, he was appointed Deputy Director Admin and Land Management in SITE Ltd Karachi by promotion. He was appointed by transfer and on 22.10.2012, he was absorbed as Deputy Secretary, in the PSS by transfer. CMA No.583 of 2013 in Crl.RP No. 83 of 2011 Inayatullah Qureshi v. Province of Sindh ETC by Mr. Shabbir Ahmed Awan, ASC 79. Mr. Shabbir Ahmed Awan, learned ASC contended that the judgment is not applicable to the Petitioner. On 10.05.1987, he was appointed as Research Officer (BS-17) in Government of Pakistan in Planning and Development Division. On 30.11.1989, his services were requisitioned by Government of Sindh, P&D Division as Planning Officer in Project Appraisal Section, P&D Division w.e.f 14.11.1989 on the recommendations of Sindh Public Service Commission by notification, dated 21.10.1992. The post was advertised and on the recommendations of Federal Public Service Commission, the Petitioner was appointed as Assistant Chief (BS-18) on 21.07.1997. He was then promoted and appointed as Deputy Chief in BS-19 w.e.f 15.12.2003 and on 18.08.2004, he was sent on deputation. On 12.4.2008, he was absorbed as Director, Planning and Development Department in Government of Sindh in BS-19, in accordance with section 10A(2) of Sindh Civil Servants Act, 1973. The learned Counsel contended CRP.No.193/2013 etc 45 that he was not a beneficiary of any of the Acts/Ordinances which had been declared ultra vires. Therefore, the judgment does not apply to the Petitioner. Furthermore, nobody had the experience or qualification to be appointed to this post so the Petitioner has not taken up any other Officer‟s place. The Rules of Business of Sindh and the Federation are exactly the same. Therefore, the Petitioner was protected by the principle of locus poenitentiae. The Counsel submitted that his lien has now been terminated and he is not posted anywhere. CMA No.860 of 2013 Mir Hussain Ahmad Lehri v. Sindh by Mr. Shabbir Ahmed Awan, ASC 80. The learned Counsel, Mr. Shabbir Ahmed Awan, contended that on 28.03.1991, the Petitioner was appointed DSP through the Balochistan Public Service Commission in BS-17. His services were requisitioned by the Sindh Government on deputation and subsequently, on 27.10.2003, he was permanently absorbed in Sindh Police as DSP. On 14.01.2005, he was promoted on the recommendations of the Selection Board as Superintendent of Police (BS-18). In accordance with the Police Service of Pakistan (Composition, Cadre & Seniority) Rules, 1985, he was encadered as Superintendent of Police in Police Service of Pakistan. As a result of the judgment under review, the Petitioner has been repatriated to Balochistan Police as DSP. CRP No. 401 of 2013 Gul Hassan Zardari v. Province of Sindh etc In person 81. The Petitioner appeared in person and submitted that in 1990, he was appointed as Sub Inspector in the Intelligence CRP.No.193/2013 etc 46 Bureau. He was appointed as Sub Inspector in Sindh Police in 1994 through proper procedure with NOC. Subsequently, he was promoted as Inspector in the Sindh Police and posted at Nawabshah, Police Lines. In pursuance of the impugned judgment, he has been repatriated to the IB, which department has refused to take him back after 26 years as his lien was terminated and now he is nowhere. CMA No.6628 of 2013 in SMRP No.239 of 2013 Shiraz Asghar Sheikh v. Dr. Nasimul Ghani Sahto etc by Mr. Abdul Rahim Bhatti, ASC 82. The learned Counsel, Mr. Abdul Rahim Bhatti, contended that on 21.4.2007, the Petitioner was appointed to PEMRA on regular basis as Assistant General Manager (BS-17). He was working as Field Enforcement Officer at Sukkur. On 19.5.2008, his services were requisitioned and on 15.8.2008, NOC was issued by PEMRA to join Sindh Government. On 20.8.2008, Services and General Administration Department (S&GAD) placed his services at the disposal of Provincial Police Services. On 17.01.2009, he was sent for training to National Police Academy, Islamabad. The Counsel contended that the Petitioner was not given backdated seniority. He completed his training from Police Academy and was relieved on 15.7.2010. He was appointed as DSP (BS-17) in the Sindh Police. The learned Counsel submitted that the Petitioner was not party to the proceedings; he was condemned unheard and the principle of audi alteram partem was violated. 83. The learned Counsel contended that Rule 9(1) of the APT Rules is for regular appointees. The Petitioner‟s appointment was made under Rule 3(2) and all requirements of the rules were CRP.No.193/2013 etc 47 satisfied. He submitted that the requirement of passing the exam of the Public Service Commission is for initial appointment and not for appointment by transfer. Furthermore, the Petitioner was required to conclude and complete the training before his appointment as DSP and he has competed the training. The Counsel further contended that the Petitioner‟s lien with PEMRA has been terminated. Crl.RP No. 84 of 2013 Khurram Warris v. Chief Secretary Sindh by Mr. Irfan Qadir, ASC 84. The learned Counsel, Mr. Irfan Qadir, submitted that the Petitioner was granted out of turn promotion for gallantry beyond the call of duty by risking his life. He displayed extraordinary bravery. However, because of the impugned judgment, these promotions have also been declared illegal. The Counsel contended that there are inconsistencies between para. 146 and para. 148 of the impugned judgment. These matters of out of turn promotions were supposed to be scrutinized by a committee according to HC judgment but such committee was never constituted. Crl.O.P No.121 of 2013 (a/w CRP 193/2013) Muhammad Shamil Hingorjo vs. Muhammad Ejaz Chaudhry, Chief Secretary Sindh and others by Mr. M.M. Aqil Awan, ASC 85. The learned Counsel Mr. M.M. Aqil Awan submitted that five officers have filed this contempt application. Petitioners 1, 2 and 3 were never absorbed but they are still here in Appeal as a result of the department exercising its influence and relieving them of their duties. Services and General Administration Department CRP.No.193/2013 etc 48 has issued orders to repatriate the Petitioners but they are not being implemented. CMA No.353 of 2014 in Crl.R.P No. 39/2014 Munir Ahmed Phulpoto v. Province of Sindh by Mr. Z.K. Jatoi, ASC 86. The Counsel submitted that the Petitioner was not a party to these proceedings and he has only been granted one out of turn promotion for gallantry under section 9-A. On 13.03.1990, he was appointed ASI. In 1998, he was promoted as Inspector with his batchmates. His gallantry acts were recognized in a meeting on 20.01.2009, referred to on pg. 150 of the paper book, as a result of which he was promoted as DSP. C.R.P. No.125 of 2014 in Const. Petition No.71 of 2011 Dr. Atta Muhammad Panhwar v. Province of Sindh etc by Dr. Farough Naseem, ASC 87. The learned Counsel, Mr. Farough Naseem, filed documents on behalf of the Petitioner. The Petitioner had passed the CSS examination in 1990 and was allocated Information Group. While in service, a post was advertised on 14.09.2008 in Public Sector Organization in Alternative Energy Development Board (AEDB), Federal Government. The Petitioner made an application and he was offered an appointment, by notification, dated 17.12.2008, which he accepted. It was a fresh appointment and he was appointed as Secretary to the Board in BS-20. He had made no application but the Federal Government placed him his services at the disposal of the Sindh Government by order, dated 10.07.2010. His services were requisitioned because they required officers having technical knowledge in information sector. On 09.08.2010, he was appointed as Special Secretary at CM CRP.No.193/2013 etc 49 Secretariat. He was given a charge to be posted as DG, Malir Development Authority on 16.07.2011. Then, by notification, dated 19.08.2011, he was appointed DG, MDA in the Local Government under section 6 of Malir Development Authority Act, 1994. He was not absorbed but appointed afresh. Counsel submitted that the post was not advertised; the procedure of appointment is silent. (MDA is a statutory body that falls under the Local Government). 88. The Petitioner was absorbed in PCS cadre but now that appointment has been reversed as a result of the judgment under review. After the judgment was pronounced on 12.06.2013, in order, dated 02.07.2013, Dr. Atta‟s parent department was listed as MDA/Federal Environmental Board so confusion was created. However, the last post to which he was appointed was DG MDA. Federal Environmental Board has terminated his lien. He should be appointed in MDA in non-cadre post and be allowed to remain in Local Government. 89. The learned Counsel submitted that an order was passed in the judgment under review that those on deputation should be reverted but those absorbed were reverted as well. The Counsel submitted that the Petitioner is not asking to be appointed as DG, but he should be appointed in MDA, because his lien with the Information Group has been terminated. 90. The Counsel submitted that the judgment under review held that absorption can only be made under Rule 9-A. Secondly, he submitted that the effect of the judgment is such that the power available to the CM, which must be exercised justly, equitably and reasonably, under Section 24 of the Act of 1973, has been taken away. The Counsel argued that the Honorable Court CRP.No.193/2013 etc 50 may lay down parameters of exercise of such powers. Appointments made under this section may then be subjected to judicial review, but this power cannot be taken away in its entirety. The power should be exercised in terms of the judgment given in Ehsanullah‟s case (1993 PLC (CS) 937). The Counsel submitted that pronouncement on the power under section 24 should be revisited and the Court should also revisit the finding that absorption can only be made under Rule 9-A, keeping in mind Rule 4(3) of the Sindh Public Service Commission Function Rules. CRL.R.P.40 of 2014 Ata Muhammad Memon v. Chief Secretary, Sindh (In person) 91. The Petitioner appeared in person and submitted that on 04.08.1987, he was appointed in KDA as Assistant Engineer on temporary basis. He passed the exam and received training. On 27.04.1989, the Petitioner was sent on mutual transfer to Public Health Engineering and he was posted in Hyderabad. He submitted that he has been working for 25 years but he has not been promoted. He has been reverted as a result of the judgment. He joined KMC, as KDA has been dissolved but they reverted him as well. CRP No. 412 of 2013 Qamaruddin Sheikh v. Secretary Local Govt. Sindh etc by Mr. M. Shoaib Shaheen, ASC 92. The learned Counsel, Mr. Shoaib Shaheen, contended that on 13.09.1989, the Petitioner was initially appointed as Land Officer in BS-16 in Taluqa Municipal Corporation, Hyderabad. Subsequently, on 01.12.1991 he was promoted as Deputy Management Land Officer to BS-17. On 24.08.2002, he was CRP.No.193/2013 etc 51 promoted as Taluqa Officer Regulation (BS-18). Under Sindh Local Government Ordinance 2001, Hyderabad MC was abolished. Local Government Board was constituted under the Ordinance and the Petitioner was posted as TMO, Orangi Town on 08.12.2003 by the Board. He was absorbed in BS-18 in Sindh Council Unified Grade Service with the approval of the CM, Sindh under Rule 9(1). The Counsel contended that the Petitioner was not a Civil Servant either before absorption or afterwards, therefore the judgment does not apply to him. Employees of the Councils are not Civil Servants. The Acts and the Ordinances that have been struck down by the judgment under review were relatable to Civil Servants and cadre posts. The matter involving non-Civil Servants and non-cadre posts was not before the Honorable Court and the findings in the judgment will not apply to them. Crl.M.A No.374 of 2014 in Crl.RP No.72 of 2013 on behalf of Petitioner No. 6 Abu Bakr by Mr. M. Shoaib Shaheen, ASC (to Check) 93. The learned Counsel submitted that the Petitioner was held to be nominated in excess of the quota. The judgment under review provided that only officers up to Serial No.12 of the list were validly nominated. The Petitioner was at No. 13 on the list. He submitted that meanwhile, two officers placed above him on the list have been promoted. The learned Counsel submitted that the process of nomination has not been declared invalid and only the nominations in excess of the quota have been so declared, therefore, the Petitioner should have been nominated now when two persons above him have been nominated and promoted. CRP.No.193/2013 etc 52 Crl.R.P. No.41 of 2014 Ali Murad Abro vs. Chief Secretary, Sindh (In person) 94. On 28.07.1987, the Petitioner was appointed in KDA as Assistant Engineer (BS-17) on permanent basis. On 26.02.1995, He was transferred to C&W Department under mutual transfer with Muhammad Amir (Assistant Engineer at C&W) in BS-17. He is still serving in BS-17. The Petitioner was repatriated to the Local Government Department on 02.07.2013 and was placed at the bottom of seniority list. However, Muhammad Amir, who was mutually transferred with him, has not been repatriated. C.P. No.968 of 2014 Saleem Ullah v. Province of Sindh thr. Secy. Services, General Administration etc by Mr. Tariq Mehmood, Sr.ASC 95. The learned Counsel Tariq Mehmood contended that the Petitioner Saleem Ullah first went to the High Court in respect of his grievance. On 25.10.1994, he was appointed as Assistant Executive Engineer (AEE) in BS-17 in Karachi Water and Sewage Board (KWSB) as a result of due process. In the same year, Muhammad Harris was appointed in C&W Department and was posted at Larkana as AEE. Harris moved an application to be adjusted in Karachi, as he was not comfortable in Larkana. Therefore, on 10.01.1995, there was a mutual transfer of Harris and Saleem Ullah. They were both appointed in the same grade and the same post and they had the same qualification. Chief Secretary approved the transfer in relaxation of rules on 11.07.1995 as both Harris and Saleem Ullah were absorbed. The Petitioner passed the promotion exams but he is still serving in BS-17. Muhammad Harris was subsequently promoted to BS-18 in CRP.No.193/2013 etc 53 KWSB and now he is appointed somewhere else. The Counsel submitted that the Petitioner did not initiate the matter of transfer. He further submitted that he was not a Civil Servant but became one when he was absorbed. CRP No.760 of 2013 in Crl.O.P.89 of 2011 M. Zareen Khan v. Arshad Saleem Hotiana, Chief Secretary Sindh etc by Mr. M. Aqil Awan, Sr. ASC 96. The learned Counsel Mr. M.M. Aqil Awan contended that the Petitioner was absorbed from Education Department to Revenue Department. He wants to be sent back to Education Department. Petitioner is not asking for relief, he is just submitting that this is wrong. C.R.P No.394 of 2013 in C.P.71 of 2013 Muhammad Rafique Qureshi v. Province of Sindh by Mr. Baz Muhammad Kakar, ASC 97. The learned Counsel Mr. Baz Muhammad Kakar contended that the Petitioner was appointed as Revenue Officer. He was then appointed Deputy Commissioner and was granted out of turn promotion for eliminating encroachment in Port Qasim. His out of turn promotion was withdrawn as a result of the impugned judgment. NOTICE UNDER ORDER XXVII-A (1) OF CPC 98. Before adverting to the other issues raised by the learned Additional Advocate General Sindh and the Petitioners‟ Counsel, we intend to first take up the contentions of M/s Syed Iftikhar Hussain Gillani, Muhammad Munir Piracha and Raja Muhammad Ibrahim Satti, Sr. ASCs that the Constitution Petitions No.21/2011, 21/2013, 23/2013 and 24/2013 filed by Dr. Nasim- ul-Ghani and others ought to have been dismissed for want of CRP.No.193/2013 etc 54 notices under Order XXVIIA (1) of the CPC to the Advocate General Sindh. We have noticed that the Constitution Petition No.71/2011 was fixed in Court on 4.11.2011 when this Court ordered notices, as required under Order XXVIIA (1), not only to the Advocate General Sindh, but also to the learned Attorney General for Pakistan. Even in the Constitution Petitions No.21, 23 and 24 of 2013, filed subsequently, notices were waived on behalf of the Advocate General Sindh. In response to the referred notices, the Advocate General Sindh did appear and assisted this Court throughout the proceedings. For the aforesaid reasons, the contention of the learned Counsel on the non-issuance of the notices to the Advocate General Sindh on the subject Constitution Petitions is without substance. MAINTAINABILITY OF THE CONSTITUTION PETITIONS BY WHICH THE IMPUGNED LEGISLATIVE INSTRUMENTS WERE CHALLENGED. 99. The learned Additional Advocate General Sindh as well as the other learned Counsel for the Petitioners have objected to the maintainability of the Constitution Petitions under Article 184(3) of the Constitution, inter alia, on the ground that in the aforesaid Petitions, the Petitioners have raised individual grievances in regard to their seniority and promotions, which under the service laws are not construed as „vested right‟ of a Civil Servant. Their next argument was that, if at all, any right of the Petitioners is impaired, they could have approached the Sindh Service Tribunal for redressal of their grievances. Similar arguments were advanced by the learned Additional Advocate General and some of the other Counsels opposing the Constitution Petitions at the time of hearing which were attended to and in para CRP.No.193/2013 etc 55 114 of the impugned judgment, it was concluded that the Petitions under Article 184(3) of the Constitution were maintainable. 100. The Constitution gives protection to Civil Servants under Articles 240 and 242, which relate to formation of service structure. Pursuant to Article 240(b), the Sindh Provincial Assembly has enacted the Sindh Civil Servants Act 1973. This Court, in exercise of its Constitutional jurisdiction under Article 184(3) of the Constitution, can examine the vires of an enactment either on its own or on an application or petition filed by a party. The requirement of Article 184(3) of the Constitution is that if this Court considers that a question of a public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II is involved, it has the jurisdiction to pass appropriate orders not withstanding that there might be an alternate remedy. The word „consider‟ used in the Sub-Article (3) of Article 184, relates to subjective assessment of this Court. The Supreme Court is the final authority upon the matters affecting judicial determination on the scope of Constitutional provisions. Once the Supreme Court arrives at the conclusion that a question of public importance having nexus with the fundamental rights guaranteed by the Constitution has been raised, the exercise of its jurisdiction under Article 184(3) cannot be objected to either by the Government or by any other party. 101. The perception that a Civil Servant can only seek redressal of his grievance from the Tribunal or from any other forum provided by the Civil Servants Act, is not correct. A Civil Servant, being a citizen of this country, equally enjoys the fundamental rights conferred by Chapter 1 of Part II of the CRP.No.193/2013 etc 56 Constitution. We, while examining the contentions made during the hearing of the Constitution Petitions, have dealt in detail with the issue as to whether any rights of the Civil Servants were offended by the impugned legislative instruments in the Constitution Petitions. We, after hearing the parties, concluded that the impugned legislative instruments were violative of Articles 240(b), 242(1B), 4, 8, 9 and 25 of the Constitution. We have also observed in the judgment under review that the issues raised in the Constitution Petitions were of public importance and had far reaching effects on service structure of the Province, therefore, the Petitions under Article 184(3) of the Constitution, were maintainable before this Court and hence the same were entertained. 102. The Petitioners in the Constitution Petitions had challenged the vires of the legislative instruments, raising the question of public importance relating to the rights of the Civil Servants in Sindh. Such issues did cover the parameters, which attract the jurisdiction of this Court under Article 184(3) of the Constitution and, therefore, following the dictum in the cases of Watan Party and others v. Federation of Pakistan (PLD 2012 SC 292) and Tariq Aziz-ud-Din and others (2010 SCMR 1301) it was held that the Petitions were maintainable. The issue of maintainability of the Petitions cannot be raised either by the Additional Advocate General or by the Petitioners‟ Counsel once this Court, while passing the judgment under review, has held that the Petitions were maintainable. We for the aforesaid reasons, hold that the contentions of the learned Additional Advocate General and other Counsel on the issue of maintainability of the Petitions are without force. CRP.No.193/2013 etc 57 RULE 9(1) OF APT RULES. 103. In order to appreciate the contentions of the learned Additional Advocate General and the Petitioners‟ Counsel as to whether the Chief Minister/Competent Authority is empowered under Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 to absorb the beneficiaries from different organizations to Provincial Service or Cadre or post, we need to examine the entire scheme of the Sindh Civil Servants Act, 1973 [hereinafter referred to as “the Act‟]. The Sindh Civil Servant Act 1973 has been enacted pursuant to the provisions of Article 240 of the Constitution. 104. Section 2 (1)(b) defines the term „Civil Servant‟ and excludes under sub-section (i) a person who is on deputation to the Province from the Federation or any other Province or Authority. Section 2(1)(d) defines the term „Initial Appointment‟. The initial appointment as per the definition given under the Act means „Appointment made otherwise than by Promotion or Transfer‟. According to Section 2(1)(g), the term „prescribed‟ means „prescribed by rules‟. Section 2(1)(i) defines „Selection Authority‟, which includes the Sindh Public Service Commission, a Departmental Selection Board, a „Departmental Selection Committee‟ or other „Authority or Body‟ on the recommendations of, or in consultation with which, any appointment or promotion, as may be prescribed, is made. 105. Section 5 of the Act provides the mode of appointments to a Civil Service of the Province or a Civil Post in connection with the affairs of the Province to be made in the prescribed manner by the Government or by a person authorized CRP.No.193/2013 etc 58 by it on its behalf. Section 6(1) of the Act provides probation period for a Civil Servant, who is initially appointed to a service or post referred to in Section 5. Section 6(2) is an extension of initial appointment. Section 6(3) prescribes examinations, tests or courses for a Civil Servant, which he requires to qualify before the expiry of his probationary period. In case he fails to complete his required qualification during probation satisfactorily, he would be discharged in terms of Section (6)(3)(a) or under (b) of the Act, and, if he is appointed to such service or post by promotion or transfer, he would be reverted to the service or post from which he was promoted or transferred. 106. Section 7(1) of the Act speaks of confirmation of the Civil Servant on his satisfactory completion of the probation period. Section 7(2) of the Act relates to a Civil Servant promoted to a post on a regular basis. The Civil Servant falling under this category would also be eligible for confirmation on his rendering satisfactory service for the prescribed period. 107. Section 8 of the Act provides that for proper administration of a service, cadre or post, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared. Section 9 of the Act provides that a Civil Servant possessing such minimum qualification as may be prescribed, shall be eligible for higher post for the time being reserved under the Rules for Departmental Promotion. Section 10 speaks of posting and transfer of the Civil Servants within or outside the Province with the limitations contained therein. Section 24 of the Act authorizes the Government to deal with the case of a Civil Servant as it appears CRP.No.193/2013 etc 59 just and equitable, whereas Section 26 empowers the Government to frame Rules for regulating the service of a Civil Servant. 108. In exercise of powers conferred under Section 26 of the Act, the Sindh Government, besides other Rules, has also framed Rules called “The Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974” [hereinafter referred to as “the Rules”]. Rule 3(1) of the Rules provides for appointment to a Civil Service or a post by three modes (i) by initial Appointment, (ii) Appointment by promotion and (iii) Appointment by transfer. 109. Rule 3(2) provides the method of appointment, the qualifications and other conditions applicable to a post, laid down by the department concerned in consultation with Services and General Administration Department (S&GAD). Rule 4(1) provides the description of the Authority competent to make appointments to various posts. Rule 5(1) empowers the department or the Government to constitute Departmental Promotion Committees and or Departmental Selection Committees in consultation with S&GAD. Part-II of the Rules deals with the appointments by promotion and transfer whereas, Part III of the Rules deals with the initial appointments. 110. Rule 6(1) authorizes the Government to constitute a Provincial Selection Board, which would recommend appointments by promotion or transfer of the Civil Servants in BS-18 and above carrying special pay. Whereas, Rules 7(1),(2) & (3) deal with appointments by promotion and/or transfer of the Civil Servants without special pay on merits, on the recommendations of the appropriate Departmental Promotion Committee or the appropriate Selection Board constituted by the Government as the case may CRP.No.193/2013 etc 60 be. Rule 8 mandates that Departmental Promotion Committee or the Provincial Selection Board shall consider the qualifications, tenural limitations and requisite conditions laid down for promotion or transfer of a Civil Servant. Rule 9(1) of the Rules authorizes the government/competent Authority to make appointments by transfer of the Civil Servants on regular basis mentioned in the table given in the Rule, which comprises of 3 columns. Column 2 of the table deals with the officers who could be transferred, column 3 of the table mentions the Authority competent to order transfer and column 4 of the table mentions the Department notifying such transfer. 111. Keeping in mind the aforesaid scheme provided by the Act, we would like to examine the scope of Rule 9(1) of the Rules. In the first place, the definition given by Section 2(1)(d) of the Act clearly manifests that initial appointment is an appointment made otherwise than by promotion or transfer. This definition has to be read with Part-II of Rule 6(A) of the Rules, which relates to appointments by promotion or transfer. Section 5 of the Act, which deals with the initial appointment to a Service or a Civil Post, has to be read with Section 8(1) where it is provided that for proper administration of service or cadre, the appointing authority is required to prepare a seniority list with the categories given in the Section based on the recruitment Rules, which are framed in consultation with S & GAD under Section 26 of the Act. The relevant Rule in this respect is Rule 3. In other words, Section 8 of the Act compartmentalizes the different classes of Civil Servants by dividing them in three categories i.e. service, cadre or post as prescribed by recruitment Rules of their departments. This distinction of class has been specifically introduced by the CRP.No.193/2013 etc 61 legislature with the sole object that if a person is initially appointed in one service or cadre or post, his progression would remain in the same cadre, service or post. His vertical growth or progression shall remain within his class by compartmentalizing the Act which regulates his terms of service. What is more interesting is that Section 5 of the Act does not vest any discretion in the Government to relax the Rules for change of cadre. The language of Section 5 is very clear and mandates that the appointments to the Civil Service or post shall be made in the prescribed manner. 112. Appointment by promotion as used in Rule 6(A) is the consequence of initial appointment. Likewise, appointment by transfer is also the consequence of initial appointment. The appointment by promotion is made within the cadre or service or post and, therefore, it does not require any interpretation. The appointment by transfer can only be ordered if the Civil Servant is eligible and qualifies for his transfer under Rule 3(2) of the Rules of the department to which he is to be transferred, read with Rules 4, 7 and 8 of the Rules, which prescribe conditions laid down for such appointments by transfer to such posts. A Civil Servant who is to be appointed by transfer has to appear before the Departmental Promotion Committee or the Provincial Selection Board which will consider his eligibility, qualification and such other conditions applicable to the post as laid down in the recruitment rules of the department to which his transfer is to be ordered. 113. It is contended by some of the learned Counsel that the term „person‟ used in Rule 9(1) of the Act would mean that the Government or the competent authority can order appointment by CRP.No.193/2013 etc 62 transfer of any person from anywhere within or outside the Act by appointing him to any post of equivalent basic scale. We are not persuaded by this argument of the learned Counsel for more than one reason. The word „person‟ has not been defined either in the Act or in the Rules. It has to be interpreted with the other rules relatable to the appointment by promotion or by transfer. Rule 9(1) speaks of appointment by transfer to be made from amongst the persons holding appointments on regular basis mentioned in column 2 of the table given under the Rule. Therefore, the word „person‟ as used in Rule 9(1) would relate to the officers, who are Civil Servants and mentioned in column 2 of the table given under Rule 9(1). The word „person‟ could not be given an ordinary meaning beyond the scheme of the Act and Rules of 1974. 114. We, after looking at the scheme of the Act and the Rules framed thereunder, are clear in our minds that Rule 9(1) does not empower the Government or Selection Authority defined under the Act to appoint a Civil Servant or any other person by transfer to any other cadre, service or post without his eligibility, qualifications and the conditions laid down under Rules 3(2), 4, 6, and 8 of the Rules. Section 8 of the Act makes class of Civil Servants for proper administration and such class is not interchangeable at the whims of the Selection Authorities and/or the Government to extend favours to their blue eyed. There is no discretion given under Section 5 of the Act to appoint any person in Civil Service against a Civil Post in the manner other than prescribed by the Rules. Rule 9(1) does not confer permanent status on Civil Servant on his appointment by transfer nor it contemplates his absorption in the transferee Department as a consequence of his appointment. There is neither procedure nor CRP.No.193/2013 etc 63 mechanism provided under the Act or the Rules to treat appointment by transfer as absorption in the transferee department. Rule 9(1) cannot be used as a tool to allow horizontal movement of a civil servant from his original cadre to another cadre against scheme of the Act and the Rules of 1974. The term „transfer‟ has to be interpreted in its common parlance and is subject to the limitations contained in Rules 3, 4, 6, 7 and 8 of the Rules 1974. Any appointment by transfer under Rule 9(1) has to be for a fixed term, and, on completion of such term, the Civil Servant has to join back his parent department. The word „appointment‟ used in the Rule 6(A) cannot be equated with the word „initial appointment‟ used in the Act which excludes appointment by transfer and promotion. Therefore, restricted meaning has to be given to the expression „appointment by transfer‟. For the aforesaid reasons, we are clear in our minds that the concept of absorption of a Civil Servant and/or Government servant is foreign to the Act as well as Rule 9(1) of the Rules. Rule 9(1) does not permit transfer of non-Civil Servant to a non-cadre post or to a cadre post. We, in para 126 of the judgment under review, have not discussed the scope of Rule 9(1) as neither the Government nor any of the parties appearing before us had taken the plea that they were appointed by transfer and absorbed under Rule 9(1) of the Rules. However, we had recorded the following finding on Rule 9(1) which is reproduced : - “No Civil Servant of a non-cadre post can be transferred out of cadre to be absorbed to a cadre post which is meant for recruitment through competitive process. A Civil Servant can be transferred out of cadre to any other department of the Government subject to the restrictions contained under Rule 9(1) of the Rules of 1974.” CRP.No.193/2013 etc 64 115. Now, after we have scanned the entire scheme of the Act and the Rules framed thereunder, we are clear in our minds that the aforesaid finding was in accord with the Act which has been promulgated pursuant to Articles 240 and 242 of the Constitution. We further clarify that even a Civil Servant cannot be transferred to any other cadre, department, post or service unless he is eligible for such post, in terms of the Rules 3(2) and qualifies the test of Rules 4, 6, 7 and 8 of the 1974 Rules as discussed hereinabove. 116. The term „transfer‟ used in Rule 9(1) has not been defined either in the Act or the Rules of 1974, therefore, we have to attach an ordinary dictionary meaning to it. The ordinary dictionary meaning of the term „transfer‟ means „to move from one position to another.‟ If this meaning is attached to the term „transfer‟ used in Rule 9(1), it would lead to mean an ordinary posting of a Civil Servant from one position to another. Such transfer, however, cannot be construed to qualify the term „absorption‟ as has been contended by the learned Counsel, which term is alien to the Act and the Rules. Therefore, the appointment by transfer under Rule 9(1), as has been interpreted by us, would be confined to the parameters laid down by the scheme of the Act and the Rules of 1974. SCOPE OF RULE 9-A OF THE APT RULES 117. We have heard the learned Counsel representing beneficiaries on the scope of Rule 9-A of the Rules. Under Rule 9-A, a person who has been rendered surplus on account of abolition of his post, in any Office or Department of the CRP.No.193/2013 etc 65 Government or autonomous body and/or on account of permanently taking over of the administration of such autonomous body wholly or partially by the Government, can be appointed by transfer to any post in a Department or Office in the Government subject to his eligibility and qualifications as laid down under Rule 3(2) for appointment to such Office. It is further provided under Rule 9-A of the Rules that such person shall be appointed to a post of equivalent or comparable basic scale and, in case such post is not available, then to a post of lower Basic Scale. Rule 9-A of the Rules provides further restriction to the seniority of such person to the post by reckoning his seniority at the bottom of the seniority list from the date of such appointment, with a further rider that his previous service, if not pensionable, shall not be counted towards pension and gratuity. We have dealt with the aforesaid issue in para 116 of the judgment under review and have set parameters of Rule 9-A of the Rules in para 126 of the judgment under review. 118. After hearing the arguments of the learned Counsel for the petitioners, we need to further clarify the scope of Rule 9-A of the Rules. Rule 9-A of the Rules has been introduced with the object to accommodate the persons who are rendered surplus by abolition of their posts or the organization in which they were working has been taken over by the Sindh Government. This Rule, as has been noticed, cannot be used as a tool to accommodate a person by abolishing his post with an object to appoint him by transfer to a cadre or service or post in deviation of Rule 3(2), which is a condition precedent for appointment to such post. In order to exercise powers under Rule 9-A of the Rules, there has to be some justification for abolition of the post against which such person was working. This justification should come from the CRP.No.193/2013 etc 66 Department and or organization which shall be in consultation with the S&GAD and approved by the Competent Authority. Rule 9-A of the Rules does not permit appointment by transfer of a non- Civil Servant to any other Department and/or organization controlled by the Government to a post which restricts the transfer under Rule 3(2) of the Rules. A person can only be appointed by transfer under Rule 9-A, if he has the eligibility, matching qualifications, expertise coupled with the conditions laid down under Rule 3(2) for appointment to such post. The Competent Authority under Rule 9-A of the Rules while ordering appointment by transfer cannot lose sight of the conditions prescribed under Rule 4, 6(A) and 7. Therefore, any appointment by transfer under Rule 9-A of the Rules in violation of the aforesaid conditions is a nullity, and the conclusion reached by us in para 126 of the judgment under review has to be read in addition to the findings recorded herein above. ABSORPTION 119. The learned Additional Advocate General, as well as the Counsel representing the Petitioners had argued that the Competent Authority had the powers under Rule 9(1) of the Rules to absorb any person from within and/or outside the Province through appointment by transfer. We have already dealt with the scope of Rule 9(1) of the Rules, which permits appointment by transfer subject to the conditions prescribed therein. It does not permit absorption from one cadre to another cadre. The Competent Authority in the cases of the Petitioners has ordered absorption by relaxing the rules, which is in deviation of the scheme of the Act framed pursuant to the dictates of Article 240, read with the qualifications incorporated in the Rules of 1974. We may observe CRP.No.193/2013 etc 67 that Section 5 of the Act does not give any discretion to the Selection Authority to bypass the restriction by relaxing the Rules. If such discretion is allowed to prevail, it would destroy the fabric of Civil Service, which is protected by the mandates of Articles 240 and 242 of the Constitution. It is also a misconception that Rule 9-A permits transfer of a non-Civil Servant to a Cadre, Service or Post meant for a Civil Servant, recruited in the Cadre or Service or Post after competitive process. Such an appointment by transfer in the nature of absorption would only be permissible, if the pre- conditions laid under Rule 9-A of the Rules are met. 120. At the time of hearing of Petitions No.71/2011 and others the learned Additional Advocate General, as well as the Petitioners appearing in these Petitions, attempted to justify absorption on the basis of legislative instruments, which were declared unconstitutional. In these review proceedings, the Petitioners have changed their stance claiming their absorption on the basis of Rule 9(1) of the Rules. We have separately dealt with the scope of Rule 9(1) of the Rules. Under Rule 9(1), appointment by transfer would only mean an ordinary transfer from one post to another post, subject to the restrictions contained in the Rules of 1974. Neither a person can be absorbed under these Rules nor a Civil Servant or non-Civil Servant or a deputationist could be allowed to travel horizontally outside his cadre to penetrate into a different cadre, service or post through an appointment by transfer. Rule 9(1) cannot override the provisions of Section 8 of the Act, which have been introduced by the Legislature for proper administration of Service law. For the aforesaid reasons, in addition to our findings recorded in the judgment under review, we CRP.No.193/2013 etc 68 are of the considered view that the Petitioners have failed to make out any justifiable ground to seek review of the judgment. ABSORPTION IN UNIFIED GROUP CRP.409/2013 Mr. Aqail Awan for the Petitioner 1-3 Crl.R.P.81/2013 & CRP.412/2013 121. It was contended by M/s Aqil Awan, Shoaib Shaheen, Muhammad Munir Peracha and Tariq Mehmood, learned ASCs, that the impugned judgment is only applicable to Civil Servants and does not cover non-civil servants. We, with respect, disagree with the contentions of the learned Counsel. The impugned judgment would be equally applicable to the Government Servants, employees of any statutory or non-statutory organization controlled by the Sindh Government, who were wrongly absorbed in different Cadres, Services, Posts of the Government Departments, Statutory Organizations against their service Rules. The contention of the learned Counsel was that the Petitioners were non-Civil Servants and were absorbed from different organizations to Sindh Councils Unified Grades Service under Rule 9(1) of the Rules of 1974, read with Rule 12(5) of the Unified Grades Service Rules 1982. We have already held that the power to appoint by transfer under Rule 9(1) would only extend to a Civil Servant. The Sindh Councils Unified Grades Service Rules 1982 regulate the terms and conditions of the employees appointed therein. Rule 3(1) provides composition of Service, whereas Sub- Rule (2) of Rule 3 spells out its Sub-Branches. Rule 3(4) places a restriction on the members for transfer from one Branch or Sub- Branch to another Branch or Sub-Branch within the service group. Rule 12 of the (Unified Group) Service Rules deals with the seniority of the members. Rule 12(5)(a) confers powers of transfer CRP.No.193/2013 etc 69 by Appointment on the competent authority. The Petitioners, who were not members of the Unified Services and were wrongly absorbed in the Service of Unified Group, in deviation of the Service Rules of 1982 cannot be allowed to continue in the Unified Services Group. The Chief Minister or the Board cannot induct any stranger in the service of Unified Group either by exercising powers under Rule 9(1) of the Rules of 1974 or by Rule 12(5) of the Rules of 1982. Any such induction is against the recognized norms of Service law and, therefore, the Petitioners were liable to be repatriated to their parent departments forthwith in terms of the judgment under review. „Absorption‟ of the Petitioners under the garb of „Appointment by Transfer‟ in the Unified Services Group has directly affected the rights of the employees in the service, guaranteed under Articles 4 and 9 of the Constitution. Such act on the part of the Chief Minister or the Board had circumvented the very framework of the Service Rules of 1982 by introducing a parallel system based on discrimination and favourtism, which the law does not recognize. OUT OF TURN PROMOTIONS. 122. The issue of out of turn promotions has been dealt with by us in detail in the judgment sought to be reviewed and we reached the conclusion that it was violative of Articles 240, 242, 4,8,9 and 25 of the Constitution. Mr. Adnan Iqbal Chaudhry, learned ASC has contended that Section 9-A of the Act has not been struck down by this Court, while declaring the out of turn promotions as un-constitutional. We are mindful of this fact as we have held that the Competent Authority can grant awards or rewards to the Police Officers, if they show act of gallantry beyond CRP.No.193/2013 etc 70 the call of duty. However, we had struck down the very concept of „out of turn promotion‟ being violative of Constitution for the reasons incorporated in paras 158 to 164 of the judgment under review. 123. The contention of Mr. Adnan Iqbal Chaudhry, learned ASC was that the provisions of Section 9-A of the Act could not be interpreted to exclude other categories of Civil Servants except police force. According to him any Civil Servant other than the Police Officer, can also perform gallantry act beyond the call of duty. We are not persuaded by the arguments of the learned Counsel for the Petitioner as the terms „Gallantry‟ and „Beyond the Call of Duty‟ have to be interpreted by invoking the Rule of „ejusdem generis‟. The expression „Gallantry‟ used in Section 9-A of the Act has not been defined either in the Act or in the Rules, therefore, we have to give to term „Gallantry‟ the ordinary dictionary meaning while interpreting it. The term „Gallantry‟ means „Brave, Courageous, valiant, fearless, bold and daring‟. All these adjectives directly relate to the nature of duty which a Civil Servant performs. These adjectives can only be attached to security personnel. Therefore, we can safely hold that the term „Gallantry‟ as used in Section 9-A of the Act could only apply to Police Personnel and award and reward on their gallantry performance be conferred upon them and not to other species of Civil Servants. However, such award or reward should be given under a transparent process after objective assessment of their velour by a committee, in a just manner under the prescribed Rules. 124. Petitioners in Crl.R.P.No.74 of 2013, Engineers by profession, appearing in person have contended that they were CRP.No.193/2013 etc 71 given out of turn promotions in the year 2004, as they made efforts to provide water to the persons at the tail, and in discharge of their duties they were exposed to criminal prosecution. This is the normal duty of a Civil Servant of the Irrigation Department and it cannot be construed to be a Gallantry act beyond the call of duty. Besides, we have already held that grant of out of turn promotion is unconstitutional, therefore the Petitioners‟ claim does not merit acceptance. CRL. R.P.84/2013 Khurram Waris vs. Chief Secretary Sindh etc 125. Mr. Irfan Qadir, learned ASC appearing on behalf of Khurram Waris (in Crl. Review Petition No.84/2013), has contended that the Petitioner was granted out of turn promotion for his gallantry act beyond the call of duty by risking his life and displaying extraordinary bravery. We are provided an extract from his service profile by the Sindh Government. According to the Service profile of the Petitioner, he is a Sub-Inspector in BS-14 and was granted out of turn promotion three times; (i) from Sub- Inspector to the rank of Inspector in BS-16, (ii) from Inspector to the rank of DSP in BS-17 and (iii) from DSP to the rank of SP in BS-18. This Court, after hearing the Sindh Government and other parties, had struck down the legislative instruments which gave protection to the out of turn promotions by the judgment under review, declaring it as unconstitutional. 126. The contention of the learned ASC that the judgment of the High Court of Sindh relating to the „out of turn promotion‟ is still in field, therefore, he prayed for formulation of a Committee to scrutinize the cases of the Police Officers, who were given out of turn promotion, is without substance. We have already declared CRP.No.193/2013 etc 72 „out of turn promotion‟ as unconstitutional, therefore, after recording such findings, the need of forming a Committee under Rule 8-B for scrutinizing the cases of Police Personnel is of no significance. However, they could be awarded or rewarded compensation for their exceptional acts of gallantry. 127. We do support that the morale of the Police personnel be boosted as intended in the legislative instruments, which were struck down by us and on their exceptional acts of gallantry, they should be given awards and rewards on merits; but even this has not been done by the Sindh Government. In recent past, a Senior Police Officer, who was known for his bravery, has lost his life in an attack by the terrorists and his family was not offered compensation publically. Likewise, another senior police officer, who is also known for his courage, in combating terrorism in Karachi, was attacked by the terrorists and had received serious injuries but survived. The Sindh Government has not so far publically announced a reward for him, which is pathetic. In fact in para 164 of the judgment under review, we had directed the Sindh Government to constitute a Committee under Rule 8-B, to evaluate the performance of the Police Officers upon whom the proposed awards or rewards have to be bestowed. We recommend that the Police Officers, who risk their lives in the given most unstable conditions of Karachi, should be given adequate protection and in case, where the Police Officers while fighting against terrorism have lost their lives, their families should be looked after by the Sindh Government. The Sindh Government should adopt the policies of the Armed forces, where in such like cases, the personnel and their families are taken care of under a prescribed procedure. CRP.No.193/2013 etc 73 128. For the aforesaid reasons, which we had already recorded in the judgment under review, we are not persuaded by the contentions of the learned ASC to change our earlier view. This Review Petition merits dismissal. WHETHER THE JUDGMENT UNDER REVIEW OUGHT TO HAVE BEEN MADE PROSPECTIVE 129. The Learned Additional Advocate General Sindh and almost all the Counsels representing the petitioners have contended that the Judgment under review ought to have been applied prospectively. The learned Counsels have jointly contended that the benefits accrued to the Petitioners by the legislative instruments, which were struck down by this Court, could not have been withdrawn as their rights were protected by the principles of locus poenitentiae. Mr. Irfan Qadir, learned ASC, has contended that the judgment is in personam and would not apply to his clients. Syed Iftikhar Hussain Gillani, learned Sr. ASC has contended that judgments always apply prospectively and not retrospectively. In this regard he has placed reliance on the case „Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as such’ (PLD 2013 SC 829). We have taken note of such contentions of the learned Counsels at the time of hearing of the original Petitions, and were not persuaded for reasons stated in paras 174 and 175 of the judgment under review. Now, it is a settled law of this Court that no right or obligation can accrue under an unconstitutional law. Once this Court has declared a legislative instrument as being unconstitutional, the effect of such declaration is that such legislative instrument becomes void ab initio, devoid of any force of CRP.No.193/2013 etc 74 law, neither can it impose any obligation, nor can it expose anyone to any liability. 130. In the case in hand, the benefits extended to the Petitioners through the impugned legislation, were not only violative of law but were also declared ultra vires of the Constitution. In such like circumstances, the benefits, if any, accrued to the Petitioners by the said legislative instruments shall stand withdrawn as if they were never extended to them. The judgment relied upon by Syed Iftikhar Hussain Gillani is distinguishable on facts. Under the said judgment, this Court had re-visited the earlier judgment of this Court titled as Accountant General Sindh and others vs. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) by which the retired Judges were granted pensionary benefits. In the said case, it was held that the pensionary benefits granted to retired Judges were violative of the scheme and as such the judgment was declared as per incurium, declaring further that no pensionary benefits could be granted to any retired Judge, unless he serves for five years in office. In the present proceedings, this Court has struck down the legislative instruments by which benefits were extended to a class of persons, in complete disregard of the service structure mandated by the provisions of Articles 240 and 242 of the Constitution. Through the legislative instruments, which were struck down by this Court, undue favours were extended to a few individuals, for political considerations against the mandate of the Act and the recruitment Rules framed thereunder. Such instruments were held to be violative of Articles 4, 8, 9, 14 and 25 of the Constitution. Through these legislative instruments, many of the Petitioners were absorbed and/or given out of turn promotions or back-dated CRP.No.193/2013 etc 75 seniority, depriving other meritorious Civil Servants of their seniority and smooth progression in career. A substantial number of unfit and unmeritorious Officers were thus absorbed/ promoted out of turn/given back-dated seniority in important cadres, services and posts by extending undue favors by the Authorities, skipping the competitive process. Such absorptions etc, which were not permissible under the Civil Servants Act, had practically obliterated the Constitutional and legal differentiations that existed amongst various cadres, posts and services. We have already observed in our judgment that the legislative instruments, which were struck down by this Court, had engendered a culture of patronage, bringing more politicization, inefficiency and corruption in the Civil Service. 131. In such like circumstances, by striking down the legislative instruments, the Court was obliged to provide a corresponding remedy to the aggrieved Civil Servants who had suffered because of the unconstitutional and illegal benefits accrued to the beneficiaries of the impugned legislations. As a result of the judgment under review, the rights of the meritorious Civil Servants as provided under the Constitution and law have been restored, ensuring, inter alia, their inter-se seniority and legitimate expectations of attaining upper ladder of their careers. 132. We hold that the cases relied upon by Syed Iftikhar Hussain Gillani, learned Sr. ASC, and the other learned Counsel are distinguishable on facts. In the present case if the contentions of the learned Counsel are acdepted then on the one hand the ill- gotten benefits would receive judicial approval against the provisions of the Constitution and Law and, on the other hand, the CRP.No.193/2013 etc 76 sufferers of the benefits accrued to the Petitioners would be left with no remedy or recompense. In other words, the progression and career of the meritorious Civil Servants would suffer irretrievably, whereas the beneficiaries of unconstitutional and illegal measures would thrive and progress their careers unimpeded if the judgment is made applicable prospectively. Whereas in the case „Regarding Pensionary Benefits of the Judges of Superior Courts (supra) relied upon by the learned ASC, no one will be burdened except the public exchequer. 133. This Court, in the case of Dr. Mobashir Hassan and others vs. Federation of Pakistan and others (PLD 2010 SC 265), while striking down the N.R.O, had directed to withdraw the benefits extended to the accused persons under the N.R.O and, consequently they were ordered to be retried. 134. The learned Counsel for some of the Petitioners have objected to the cut-off date of 1994 for the purposes of application of this judgment. We have clarified this fact in our judgment under review that this date was provided to us by the learned Additional Advocate General, on instructions of S&GAD. We confronted the learned Additional Advocate General to satisfy us as to the reasons for mentioning the year 1994. He contended that in the original Constitution Petition No.D-932/2009 of High Court of Sindh, Karachi, filed by Dr. Nasimul Ghani Sahito and others, the absorption of the Officers from 1994 onwards was challenged and therefore, he, on instructions of the S&GAD, intimated this Court that the legislative instruments, which were impugned in Constitution Petitions No.71/2011, 21, 23 & 24 of 2013 before this CRP.No.193/2013 etc 77 Court, extend protection to the Officers absorbed and/or granted out of turn promotions or back-dated seniority from 1994 onwards. We will not delve into this factual controversy of the cut-off date as we believe, we have enunciated the principles in the judgment under review strictly in the light of the Constitutional and statutory provisions, which are not time bound. MALA FIDE 135. The contentions of the learned Additional Advocate General Sindh and some of the Petitioners‟ Counsel that the judgment under review has attributed mala fide to the Legislature is also without substance. No such finding has been recorded in the judgment under review. However, one of the Hon‟ble Judges of the Bench, while concurring with the findings of the judgment under review, had added a note wherein it had been maintained that in the given circumstances of the case it was difficult to attribute bona fide to the legislature. It had been clearly observed in that note that mala fide cannot be attributed to the legislature. Therefore, the contentions of learned Additional Advocate General and Counsel are devoid of any force. SCOPE OF SECTION 24 OF THE ACT. 136. During hearing of the Review Petitions, we have noticed that the competent authority in a large number of cases, had passed orders of absorptions of the Civil Servants/Government Servants/Employees of Autonomous Bodies, semi-Autonomous Bodies and Corporations, and had granted them back-dated seniority besides the out of turn promotion, by using the expression „In Relaxation of Rules”. Ex-facie, these powers were exercised by the Competent Authority by resorting to Section 24 of CRP.No.193/2013 etc 78 the Act, which is an enabling provision and confers residuary powers upon the competent authority, to redress the grievance of an individual in a hardship case. 137. The Competent Authority under Section 24 of the Act can grant benefit to an individual if it considers it just and equitable, without offending and impairing the statutory rights of other Civil Servants/Employees. The exercise of powers under Section 24 of the Act by the Competent Authority in cases of the Petitioners travelled beyond the scheme of the Act, framed under the mandate of Articles 240 read with Article 242 of the Constitution. The Competent Authority can exercise powers under Section 24 of the Act, by relaxing rules, if there is a vacuum in law, but such powers cannot be exercised under the garb of the term “Relaxation of Rules” with the intent to bye-pass the mandate of law for extending favours to a person or an individual, offending and imparing the statutory rights of other Civil Servants. The Competent Authority, by an executive order, cannot frame Rules in exercise of powers under Section 24. The authority conferred under Section 24 of the Act is confined to hardship cases, without negating the vested rights of the other Civil Servants and/or causing prejudice to their interests. MECHANISM FOR UPGRADATION OF POSTS 138. During the hearing of the review petitions, we have noticed that the Sindh Government has upgraded certain posts of individuals without any mechanism of upgradation to benefit them. The expression „upgradation‟ is distinct from the expression „promotion‟ which has not been defined either in the Act or the Rules framed there-under, and is restricted to the post and not CRP.No.193/2013 etc 79 with the person occupying it. The upgradation cannot be made to benefit a particular individual in terms of promoting him to a higher post or 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 restructuring, reform or to meet the exigency of service in public interest. In the absence of these pre-conditions, upgradation is not permissible. We have noticed that some of the civil servants have been promoted to higher posts against the tenural limitations, without qualifying the requisite departmental examinations/trainings under the garb of upgradation. Such civil servants having not been promoted in accordance with law need to be reverted to their substantive ranks/posts which they were holding immediately before their upgradation and their seniority shall be determined along with their batchmates. The Sindh Government shall undertake this exercise and report compliance within 4 weeks through the Chief Secretary, Sindh. ABOLITION OF POSTS 139. During the hearing of the Review Petitions, we have noticed that the Sindh Government has abolished some posts in individual cases with the object to accommodate civil Servant or Government Servant to appoint him by transfer to a post, service or cadre contrary to the restrictions contained in Rule of 1974 against his eligibility. The term „abolition‟ has not been defined in the Sindh Civil Servants Act, 1973. However, this expression has been used in Rule 9-A of the Rules of 1974. A department can only abolish a post with the concurrence of the S&GAD. Abolition of a post is permissible in case, if the department requires restructuring, reform or to meet exigency of service in public CRP.No.193/2013 etc 80 interest. The department can abolish a post for justiciable reason. Therefore, in future if a post has to be abolished within the Department and/or within the statutory body or organization controlled by the Sindh Government, the Department shall seek concurrence from the S&GAD coupled with the reasons justifying abolition. WHETHER A CIVIL SERVANT CAN APPROACH THE HIGH COURT OF SINDH IN A SUIT OR IN CONSTITUTION PETITION IN RELATION TO TERMS AND CONDITIONS OF HIS SERVICE 140. We have noticed that since more than a year, the High Court of Sindh has been entertaining Civil Suits of Civil Servants relating to their terms and conditions of service. This issue was taken note of by us in our orders dated 30.08.2012 (in Cr.Misc. Applns No. 42-K of 2012 and others) and 03.01.2014 (in Civil Petition No. 345-K of 2013), relevant portions of which are reproduced below : - “We have heard the learned ASC, learned AAG and Secretary Services and have also perused the record. It is an admitted fact that the Applicant is on deputation and issue of right of audience of a deputationist has been fully dealt with in the Judgment dated 10.1.2011 of this Court in Civil Petition No.802-K of 2011. The Applicant after the Judgment of this Court dated 10.1.2011 and order of this Court passed on 2.5.2012 did not relinquish the charge and challenged the notification of his repatriation before Sindh High Court, which notification was issued on 2.5.2012 pursuant to the directives of this Court and obtained status-quo order. The High Court, in exercise of its Constitutional jurisdiction, could not pass an order of status quo in respect of a notification (No.S.O.II (SGA&CD)1-169 dated 2.5.2012, which on the face of it shows that it was issued by the Government of Sindh in strict compliance of the order of the Supreme Court dated CRP.No.193/2013 etc 81 2.5.2012. However, a learned Division Bench of the High Court of Sindh in an unprecedented manner, in violation of Article 189 of the Constitution, not only entertained the petition of the applicant praying therein for such relief and passed such order, but repeated this illegality by passing similar orders in some other petitions. It seems that the respondents in these cases were also passively party to such illegality as they did not respond to such illegality by raising such objection, which was otherwise evident from the very language of the said notification. We expect that in future the High Court of Sindh would be vigilant while entertaining petitions of such nature. A copy of this order may be sent to the Registrar, High Court of Sindh for perusal of the Honourable Chief Justice of the High Court and its circulation amongst other Honourable Judges of the High Court of Sindh.” Civil Petition No.345-K of 2013 “The issue of intervention of Sindh High Court in service matters has also been noticed by this Court on 20.12.2013 in Civil Petition No.1927 of 2013 whereon a Misc. Application bearing No.7632/2013, following order was passed:- “3. Subject to all just exceptions, this CMA is allowed. 4. We have noted with concern that off late interference has been made by the High Courts in exercise of jurisdiction under Article 199 of the Constitution notwithstanding the Consti- tutional bar contained in Article 212 of the Constitution. In the referred circumstances, we are persuaded to direct the Registrar, High Court of Sindh, Karachi, to give a detail list of all those pending cases in which order of a departmental authority in a service matter has been challenged and stay has been granted. The report shall be submitted within two weeks of the receipt of this order.” 7. We have been provided with a list of the suits and Constitutional Petitions relating to service matters of the police officers pending in the Sindh High Court and in many of these cases, interim CRP.No.193/2013 etc 82 orders have been passed. We are further informed that pursuant to the judgment of this Court referred to hereinabove the Inspector General of Police, Sindh, has issued a Standing order to re-fix the seniority position of different police officers on their demotion in line with the findings of the judgment of this Court and in a suit bearing No.970 of 2013, the Sindh High Court has suspended the operation of said Standing Order, as a result of which the Sindh Government cannot fix seniority position of the police officers, which run in many thousands. 8. The learned Additional AG further informed us that pursuant to suspension of operation of the Standing Order, many police officers who were sent on training had to be withdrawn and some of them had filed different Constitution Petitions, which included Petitions No.4414 of 2013, 4447 of 2013, 4722 of 2013 and 4775 of 2013, impugning their withdrawal from police training and the learned Division Bench of Sindh High Court has directed them to become party in the suit in which interim orders were passed. 9. Prima facie, we fail to understand as to how could the Sindh High Court while exercising jurisdiction as a Civil Court under Civil Procedure Code or even under the Constitution can overlook the provisions of Article 212 of the Constitution, which bars their jurisdiction. Besides, pursuant to the judgment of this Court neither a party can approach the Sindh High Court directly nor the latter can entertain any proceedings either on the Original side or under Article 199 of the Constitutional jurisdiction on any of these issues decided by this Court. Moreover, seniority of a Civil Servant relates to the terms and conditions of a Civil Servant and the Service Tribunal has the jurisdiction to decide it. 10. We are also surprised to notice that inspite of the specific directions contained in the judgment of this Court, which judgment was ordered to be circulated amongst the learned Judges, the Suit No.102 of 2013 is still pending with interim order, which is violative of Article 189 of the Constitution. We are disturbed to notice that Sindh High Court has assumed the jurisdiction of Sindh Service Tribunal and is entertaining civil suits and Constitution CRP.No.193/2013 etc 83 petitions overlooking the bar contained under Article 212 of the Constitution. 11. In these circumstances, we feel it more appropriate that this petition and the list of cases submitted by Mr. Ali Sher Jakhrani, AIGP, Legal, through Mr. Muhammad Sarwar Khan, Additional AG, Sindh, be placed before the Honourable Chief Justice of Pakistan, for his kind perusal and passing appropriate orders, which may be taken up alongwith Petition No.1927 of 2013 in which a directive was issued by this Court to the Registrar of Sindh High Court to submit a list of pending cases relating to service matters, as reproduced hereinabove, so that the parameters under which High Court while exercising jurisdiction either under CPC or the Constitution, can be determined and issue be settled once for all and or in the alternative the issue can be taken up alongwith the Review Petition filed by the Sindh Government against the referred judgment of this Court, as the intervention of the nature by the High Court would defeat the effect of the judgment of this Court and the beneficiaries of the instruments which were declared ultra vires of the Constitution should be dealt with in terms of the judgment of this Court without loss of time. Prima facie, beneficiaries of the instruments which were declared ultra vires of the Constitution through the different proceedings initiated by them in the Sindh High Court in fact have attempted to defy the judgment of this Court and are liable to be proceeded against for committing willful contempt.” 141. Besides the aforesaid orders, even in the judgment under review, we have observed as under:- „‟177. Before parting with the judgment, we are surprised if not shocked to see that the Sindh High Court has entertained a Civil Suit No.102 of 2013 filed by Mirza Shahbaz Mughal relating to out of turn promotion, which is one of the issues pending adjudication before this Court. In this respect the background is that a Criminal Misc.Application No.278/2013 was filed by Syed Mehmood Akhtar Naqvi, in which he has given brief story of Shahbaz Mughal, who was appointed ASI on 29.01.1996 and promoted as Sub-Inspector on 17.12.2001 and was confirmed as Sub-Inspector on 18.12.2003. He was promoted as Inspector on 26.04.2004 on adhoc basis with the condition that he will not claim seniority over his seniors and will retain his original position in the CRP.No.193/2013 etc 84 promotion list and his promotion will be regularized on his turn alongwith his batch mates vide order dated 18.02.2009. However, he was promoted out of turn on adhoc basis as DSP in his own pay and scale. An application was made to the Chief Minister by his mother and his seniority was fixed and regularized on 01.04.2011. On the intervention of this Court on 03.09.2012 out of turn promotion granted to him along with Hamid Ali Bhurgari and Abdul Jabbar Khan and their inter-se seniorities were revised and he was reverted to his original rank of Sub-Inspector. 178. …………………………………………………………. 179. …………………………………………………………. 180. …………………………………………………………. 181. In fact, order of the nature has disturbed us and in such like situation earlier this Court has passed orders when the Sindh High Court entertained Constitutional Petitions and suspended Notifications of the Sindh Government which were issued under the directives of this Court. AG office has also failed to discharge its duties by not bringing the real facts to the notice of the Sind High Court, which has resulted in suspension of the Notification. In any event the proceedings in Suit will be regulated by the findings in these proceedings.” 142. The High Court of Sindh, overlooking the aforesaid observations, has continuously entertained the Civil Suits and Constitutional Petitions in defiance of Article 189 of the Constitution. We did communicate to the High Court of Sindh through the Registrar that the High Court of Sindh does not have jurisdiction over the aforementioned issues and that a Civil Servant can only approach the Services Tribunal for redress of his grievances, but this direction has not been cared about by some of the learned Judges, overlooking the provisions of Articles 175, 189 and 212 of the Constitution. 143. Section 9 of Civil Procedure Code confers general jurisdiction upon Courts to try all suits of civil nature. In order to appreciate the scope of Section 9 of CPC, the same is reproduced herein under: “9. Courts to try all Civil Suits unless barred. – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil CRP.No.193/2013 etc 85 nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.” 144. Civil Courts are Courts of ultimate jurisdiction with regard to a civil right, duty or obligation, unless their jurisdiction is either expressly or impliedly barred. Section 9 of the Code only confers jurisdiction upon Courts and does not grant a substantive right of action. The right of action is to be established by reference to the substantive law. After the promulgation of the Constitution of 1973, the jurisdiction of civil courts has been restricted in respect of the matters of Civil Servants relating to their terms and conditions of service. Article 240 of the Constitution in Part XII Chapter-I deals with structure of Civil Services. Pursuant to Articles 240 and 242 of the Constitution, the Sindh Assembly promulgated Sindh Civil Servants Act, 1973, on 5th December 1973, to regulate the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan in connection with the affairs of the province of Sindh. The language of the preamble is reproduced hereunder:- “To regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan in connection with the affairs of the Province of Sindh. WHEREAS it is expedient to regulate by law, the appointment of persons, to, and the terms and conditions of service of persons in, the service of Pakistan in connection with the affairs of the Province of Sindh and provide for matters connected therewith or ancillary thereto:” 145. The Preamble to the Civil Servants Act, in fact, reflects the language of Article 240 of the Constitution. On the 5th December, 1973, the Sindh Assembly also promulgated the Sindh CRP.No.193/2013 etc 86 Service Tribunals Act, 1973 by which Service Tribunal was established to exercise jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants. The Preamble to the Sindh Service Tribunals Act is reproduced herein under:- “Whereas, it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, and for matters connected therewith or ancillary thereto:” 146. Section 3(2) of the Service Tribunal Act provides that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, including the disciplinary matters. In other words, the jurisdiction of all other Courts is barred by the provisions of the Sindh Service Tribunals Act, 1973, read with Article 212 of the Constitution. 147. Section 4 of the Service Tribunal Act provides Civil Servant with the right of filing an Appeal before the Tribunal, subject to the qualifications provided therein. 148. In this background, all the Civil Courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a civil court under CPC cannot entertain a civil suit of a civil Servant relating to the terms and conditions of his service. The exercise of jurisdiction by the High Courts is conferred under Article 175(2) which reads as under:- “175(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.” 149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to CRP.No.193/2013 etc 87 terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals. 150. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining Civil Suits and constitution petitions filed by the civil servants, which are explicitly barred by Article 212. The expression „Terms and Conditions‟ includes transfer, posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under Section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants. 151. We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil Servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 and the law. CRP.No.193/2013 etc 88 152. During the present proceedings, we were informed by the learned Additional Advocate General Sindh and other petitioners that the Civil Servants have filed suits and petitions before the High Court of Sindh on the subject, which was conclusively determined by this Court in its judgment under review. We called for the list of the Constitution Petitions as well as of the suits which were filed before the High Court of Sindh, and we are shocked to notice that numerous petitions and suits filed by the Civil Servants were pending and in some cases even restraining orders had been passed in the matters strictly falling outside the ambit of the suit or writ petition and the only and proper forum available in such cases was the Tribunal. 153. More alarmingly, we also observed that some of the suits and petitions were clearly in violation of the principles set by this Court in the judgment under review. The admission of these suits and petitions by the Learned Judges concerned obviously confront and defy Article 189, if not attract the provisions of Article 209 of the Constitution. 154. Hence, the suits and C.Ps which have been filed by the officers who were de-notified by the Sindh Government in compliance with the judgment under review, shall stand abated as the High Court of Sindh lacks the jurisdiction to hear such suits and CPs in view of the bar under Article 189. However, the Plaintiffs or Petitioners, whose suits or CPs stand abated by this judgment can approach this Court if he has not filed Review Petition earlier. 155. The second category of the Petitions relates to the Civil Servants, who have filed Petitions or Suits against orders of departmental authorities which have no nexus with the findings of CRP.No.193/2013 etc 89 the judgment under review. The list provided to us by the Registrar reflects that the Civil Servants have filed as many as 2, 278 Constitutional Petitions besides a substantial number of Suits in the High Court of Sindh in relation to their terms and conditions of service. 156. We direct the Hon‟ble Chief Justice of the High Court of Sindh to constitute a Special Division Bench comprising Senior Judges of the Court to scrutinize the aforesaid Constitutional Petitions, in the light of the principles enunciated by this Court in these proceedings. In case, the learned Special Division Bench comes to the conclusion that the subject matter of the Constitution Petitions relates to the terms and conditions and or the disciplinary proceedings of the Civil Servants, they shall forthwith remit such Constitutional Petitions to the Sindh Service Tribunal or the Federal Service Tribunal, as the case may be. 157. Likewise, the Hon‟ble Chief Justice of High Court of Sindh shall also constitute a Special Bench comprising the Senior Judge of the Court, who will examine the nature of Civil Suits filed by the Civil Servants and transfer them to the Sindh Service Tribunal or the Federal Service Tribunal, as the case may be, in case such suits pertain to the terms and conditions of their service including disciplinary proceedings, forthwith under intimation to this Court. The Federal Service Tribunal or the Sindh Service Tribunal, on receipt of the R&PS of the Constitution Petitions or Suits, shall treat them as Appeals deemed to have been filed before them on the date when presented before the High Court of Sindh and decide them in accordance with law. The question of CRP.No.193/2013 etc 90 limitation, if involved, will be considered by the respective Tribunals, in accordance with law, in the peculiar facts and circumstances of the cases. 158. In the same manner, the Civil Suits filed by the employees of statutory bodies or Government Servants relating to their terms and conditions of service inclusive of the disciplinary proceedings, who are serving in the organizations having statutory service Rules, shall be transferred to be heard by a Division Bench in Constitutional jurisdiction treating them as Constitutional Petitions for disposal in accordance with law. The Chief Justice of the High Court of Sindh shall constitute the Special Benches within a week from the date of communication of this judgment. The Special Benches, as directed above, shall take up the cases on day to day basis and complete the aforesaid exercise within two months from the date of constitution of the Benches. The Registrar, High Court of Sindh, shall submit periodic compliance report after every two weeks for our perusal in Chambers. 159. We, for the aforesaid reasons, dismiss all these review petitions along with the C.M.As (except the cases dealt with separately in Review Petitions and Civil Suits) in the light of our findings recorded hereinabove, which are in addition to the findings recorded in the judgment under review. 160. We direct the Chief Secretary, Sindh, to create surplus pool within the parent department, of the officers/officials who have been de-notified and create vacancies to accommodate them, within a period of two months from the date of communication of this judgment. The officers/officials who have been repatriated to their parent departments shall be entitled to salaries and other CRP.No.193/2013 etc 91 benefits from the date they were relieved to join their parent departments. Their seniority shall be maintained in their parent departments with their batch-mates, as if they were never relieved from their parent departments. Expiry of period of lien shall not come in the way of the officers to deprive them from joining the parent department. In case, if the parent department has been abolished, the competent authority, shall appoint them by transfer in terms of Rule 9-A, subject to the restrictions contained therein, in line with the findings recorded by us in these proceedings. We make it clear to the Sindh Government that if any other officer, who was covered by the judgment under review or by this judgment, is still working in Sindh Government in willful defiance of the judgments, he shall be repatriated and or transferred to his parent department, post or cadre forthwith. Pendency of proceedings filed by any such officers/officials who have been ordered to join their parent department or otherwise continuing in defiance of the judgment of this Court by obtaining any restraining order from any forum including the High Court of Sindh shall not come in the way of the Sindh Government in implementing this judgment. 161. The Sindh Government is directed to implement the judgment in letter and spirit. Non-compliance of any part of this judgment shall expose the Chief Secretary, Sindh, Secretary Services, Secretary Law, concerned Secretary of the department or any officer found instrumental in this behalf besides the beneficiary to contempt proceedings. Compliance report shall be submitted by the Chief Secretary, Sindh through the Registrar of this Court for our perusal in Chambers, within 15 days from the date of communication of this judgment. CRP.No.193/2013 etc 92 REPATRIATION OF OFFICERS TO FEDERAL GOVERNMENT 162. By the judgment under review, we had directed the Sindh Government to repatriate the officers beneficiaries of the legislation, which was struck down by the judgment under review. We are informed that many Departments of the Federal Government have declined to accept the officers repatriated by Sindh Government in compliance with the judgment under review. The Additional Advocate General, who appeared in the Review Petition has brought to our notice the grievances of the officers, which belong to the Federal Government or to the institution run under the patronage of Federal Government inter alia, on the ground that their period of lien with the parent Department has expired and or there was no vacancy to accommodate them. 163. This Court has already held in the judgment under review that initial order of their transfer from the parent departments to the Sindh Government was not backed by the mandate given by the civil servant law, which is promulgated pursuant to Articles 240 and 242 of the Constitution. Therefore, such orders by the parent Departments are without lawful authority. Consequently, the expiry of the period of the lien will have no bearing. 164. The list of the officers is reproduced herein below: CRP.No.193/2013 etc 93 CRP.No.193/2013 etc 94 CRP.No.193/2013 etc 95 CRP.No.193/2013 etc 96 CRP.No.193/2013 etc 97 CRP.No.193/2013 etc 98 CRP.No.193/2013 etc 99 CRP.No.193/2013 etc 100 CRP.No.193/2013 etc 101 CRP.No.193/2013 etc 102 CRP.No.193/2013 etc 103 CRP.No.193/2013 etc 104 CRP.No.193/2013 etc 105 CRP.No.193/2013 etc 106 CRP.No.193/2013 etc 107 CRP.No.193/2013 etc 108 165. We, in the peculiar circumstances of the matter, direct the aforesaid officers to report to the Secretary Establishment Division, Islamabad, within 15 days from the date of this judgment. The Secretary Establishment shall create a Devolution Cell in the respective parent Departments and, on availability of the vacancy in the parent Departments, they will be posted. In case, the Department of the Federal Government and or the Organization to which the officer belongs has been devolved, the Secretary Establishment shall post them in terms of Section 11-A of the Civil Servants Act to another Department in conformity with the scheme of the Civil Servants Act. All these officers shall be entitled to their salaries and other perks from the date they were relieved from Sindh Government. They will also be entitled to their inter-se seniority and promotion, subject to the Rules, with their batchmates as if they were never relieved from their parent Departments. 166. The Attorney General for Pakistan shall keep in touch with the Secretary Establishment and ensure that this part of the judgment is implemented in the above terms. The Attorney General shall report compliance within two months from the date of communication of the judgment. C.R.P.NO. 81 OF 2013 (Tariq Mughal vs. Chief Secretary Sindh) 167. One of the Petitioners, Tariq Mughal, had filed Crl. Review Petition No.81/2013, challenging the judgment under review. The Petition was heard on 21.10.2014 and judgment reserved, alongwith the other Review Petitions. On 12.11.2014 he made a Criminal Misc. Application No.nil/2014 for withdrawal of his Crl. Review Petition No.81/2013. Once his Crl. Review Petition was heard at length by us in Court, there was no occasion to seek withdrawal of the Petition without any justification. We, in the peculiar circumstances declined the request of the Petitioner Tariq Mughal for withdrawal of his Crl. Review Petition No.81/2013. 168. On receipt of the application for withdrawal of Civil Review Petition by Tariq Mughal, we had asked the Additional Advocate General Sindh to confirm as to whether Tariq Mughal was repatriated to his parent Department on issuance of the notification. In response, we received a brief note from S&GAD CRP.No.193/2013 etc 110 containing service profile of Tariq Mughal, which reflects that originally he was an Engineer (Mechanical) in BS-17 in Port Qasim and transferred on deputation to the Sindh Unified Grade Service for 3 years. During his period of deputation, on 1.10.2011, he was absorbed in the Sindh Unified Grade Service. On 02.07.2013, the Sindh Government issued notification in compliance with the judgment under review withdrawing his absorption. Instead of repatriating him to the Port Qasim Authority, the Secretary Local Government Department had placed his services in the surplus pool of Local Government and, subsequently, he was posted in Sindh Local Government Department. 169. When this Court enquired about the status of the Petitioner, the Local Government Department issued notification on 15.11.2014, repatriating him to his parent Department i.e. Port Qasim Authority. 170. After perusal of the brief note of the S&GAD, we are of the view that the Petitioner Tariq Mughal had wrongly continued in the Sindh Local Government Department in connivance with the high ups of the Sindh Government. It appears to be an alarming situation, where the Secretary, Sindh Local Government Department has willfully defied the judgment of this Court by placing the services of Tariq Mughal in the surplus pool of the Sindh Local Government Department. Tariq Mughal was required to report to his parent Department which he willfully avoided. 171. We, accordingly, direct the Sindh Government to ensure that Tariq Mughal stands relieved forthwith to join his parent Department. We restrain ourselves from initiating contempt proceedings against Tariq Mughal and the then Secretary Local CRP.No.193/2013 etc 111 Government, who were in league to defeat the findings of this Court which resulted in his repatriation. The Chief Secretary Sindh shall submit a compliance report within 15 days from the date of communication of the judgment. The application for withdrawal of the Criminal Review tainted with malice, is dismissed alongwith the Review Petition for the reasons already detailed in the judgment under review. The Chairman, Port Qasim Authority shall allow joining to Tariq Mughal, and expiry of lien period will not come in his way. The Petitioner, however, shall also be entitled to inter-se seniority with his batchmates as if he was never relieved from the Port Qasim Authority. Crl. Review Petition No.38/2014 (Mrs. Asma Shahid Siddiqui, in person) 172. The Petitioner, in person, submitted that she was serving in the Forest Department, Government of Punjab as Forest Ranger in BS-16 on regular basis. On 11.2.1997, her services were transferred to the Forest Department, Sindh Government, in the same grade while placing her seniority at the bottom. She was posted as Forest Officer in BS-16 in the Department with the consent of both the Provincial Governments and subsequently, she was absorbed in the Sindh Province in terms of the provisions of Sl. No.4 of the ESTACODE which deal with the wedlock policy. Her absorption in Sindh Forest Department was made in conformity with Section 24 of the Act read with Rule 9-A of the Rules of 1974. The Petitioner has stated that she had been serving as District Forest Officer in the Province of Sindh for the last 17 years and she was repatriated to the Province of Punjab in compliance with the judgment under review. CRP.No.193/2013 etc 112 173. In the peculiar circumstances of the case, we are of the considered view that her case is an exception to the findings recorded by us in the judgment under review as she was transferred and absorbed in terms of the provisions of ESTACODE on the basis of wedlock policy, in the same Basic Scale and Department in Sindh, in which she was serving in the Province of Punjab since 1997. Therefore, she was wrongly de-notified. We, accordingly, direct the Chief Secretary, Sindh to immediately withdraw the notification of her repatriation and restore her posting to her original position in the Province of Sindh as if she was never repatriated. She shall be given all the salaries and perks of the intervening period. The compliance report shall be submitted by the Chief Secretary, Government of Sindh, which shall be placed for our perusal in Chambers within two weeks from the judgment. 174. For the aforesaid reasons, the Criminal Review Petition No.38/2014, is allowed in the above terms. Crl.R.P.No.79/2013 (Syed Shakir Hussain vs. Province of Sindh etc) 175. The learned Counsel for the Petitioner contended that in pursuance of the judgment under review, out of turn promotion of the Petitioner was withdrawn. However, while withdrawing his out of turn promotion, the Competent Authority has fixed his seniority below his batchmates as most of them, who were junior to him, were promoted in the intervening period. This is not the spirit of the judgment under review. We, accordingly, direct the Chief Secretary, Government of Sindh to ensure that the seniority of the Petitioner is fixed with his batchmates, in the same order as CRP.No.193/2013 etc 113 if he was never given out of turn promotion, and if his batch mates were promoted in the intervening period, he shall also be promoted with them, maintaining his original inter-se seniority. The matter shall be resolved by the Chief Secretary or by the Competent Authority within two weeks of this judgment and the Petitioner shall be entitled to all his perks and salary benefits along with the difference, if any, from the date of his de-notification till fixation of his seniority. 176. The Criminal Review Petition No.79/2013, filed by the Petitioner is allowed in the above terms. The Chief Secretary shall submit compliance report within two weeks from the date of communication of this judgment, for our perusal in Chambers. CRP NO. 71 OF 2013 (Jaffar Abbasi Vs. Province of Sindh etc) 177. The Petitioner Jaffar Abbasi was de-notified and reverted back to his parent department by the Sindh Government in compliance with the judgment under review, as he was absorbed in the Provincial Secretariat Service from Public Service Commission Department. He filed the Review Petition, which was argued by his Counsel, Mr. Tariq Mehmood on 10.06.2014 and was reserved for judgment. 178. In September 2014, when the other Review Petitions were taken up for hearing, the Petitioner‟s Counsel sought withdrawal of his Review Petition on the ground that he has filed a Constitution Petition before the High Court of Sindh and has obtained an interim order. This information was shocking for us. We declined the request of the learned ASC for withdrawal of the CRP.No.193/2013 etc 114 Review Petition and directed the Registrar High Court of Sindh to send us the R&Ps of the Constitution Petition filed by the Petitioner. 179. On perusal of the R&Ps, we had noticed that on 01.07.2013, the Petitioner filed a Constitution Petition No. D-2817 of 2013 before the High Court of Sindh, on the same subject which was pending in C.R.P.No.71/2013. On 3.7.2013 The Petition was fixed before a Division Bench No.V, headed by Mr. Justice Syed Hasan Azhar Rizvi, which Bench passed the following order : - “1. Granted 2. Granted with all just exceptions. 3&4. It is stated by the learned counsel that the petitioner is not a deputationist and is working in the department which has been assigned to him after passing the competitive examination. He states that under the garb of the judgment given by the Honourable Supreme Court of Pakistan, he is now being transferred from his department. He states that the respondents may be directed to follow and interpret the judgment of the Honourable Supreme Court dated 12.06.2013 in its letter and spirit which is not being complied with by them. Let notice be issued in this regard to the respondents as well as A.G. for 6.8.2013.” 180. The Order Sheet shows that the matter was fixed on 6.8.2013, when the Board was discharged. On 8.8.2014, the Office fixed the matter on 25.9.2014. However, on 11-09-2014, an application for urgent hearing was allowed by the Division Bench No.V and the matter was taken up in Court on the same day. The Division Bench comprising Justice Syed Hasan Azhar Rizvi and Justice Aziz-ur-Rehman, suspended the notification, issued by the Sindh Government in compliance with the judgment under review, while passing the following order without hearing the Advocate General, Sindh, who was on notice : - “ Urgent application granted. Learned Counsel for the Petitioner submits that a notification dated 1.09.1999 enclosed as CRP.No.193/2013 etc 115 Annexure “B” at page-33 with the memo of Petition was issued whereby the Competent Authority was approved the appointment of the Petitioner on the post of Deputy Secretary (Regulation) BPS-18 in the Sindh Public Service Commission and transferred him permanently from commission to S&GAD as Deputy Secretary (Budget). However, by another Notification dated 02.11.1999 the aforesaid Notification was withdrawn/cancelled, which is enclosed as Annexure “C” at page-35 with the memo of Petition. Petitioner filed departmental Appeal to the Competent Authority thereafter, challenged the said Notification before the Sindh Services Tribunal at Karachi in Appeal No.56/2000, which was allowed by order dated 21.06.2005 whereby the impugned Notification dated 02.11.1999 was set-aside and the Notification dated 01.09.1999 was restored, said judgment of learned Services Tribunal was challenged by one Imran Ali Soomro before the Hon‟ble Supreme Court of Pakistan by filing Civil Appeal No.1229/2005, which was dismissed by orders enclosed as Annexures “G&H” with the memo of Petition as such the judgment of the Services Tribunal attained finality. Learned Counsel for the Petitioner further states that the Petitioner was appointed on the basis of the Notification dated 01.09.1999 and his appointment was upheld by the Judicial Orders upto the Apex Court. Respondents have wrongfully and illegally mentioned in the name of the Petitioner at Sr.No.20 in the Notification dated 02.07.2013. As per learned Counsel the case of the Petitioner does not fall within the purview/ambit of judgment passed in Criminal Original Petition No.89/2011 passed by the Hon‟ble Supreme Court of Pakistan reported in 2014 PLC (CS) 82. Case of the Petitioner as per learned Counsel is neither of absorption nor out of turn promotion as such his case is outside the scope of the notification dated 02.07.2013. Issue notice to the Respondents and Advocate General Sindh for 13.10.2014. In the meantime, the operation of the impugned Notification to the extent of Petitioner viz. Muhammad Jaffer Abbasi mentioned at Sr.No.20 is hereby suspended, till next date of hearing.” 181. The High Court of Sindh was not competent to entertain the Constitution Petition of the Petitioner under Article 199 of the Constitution, as the Petitioner was seeking suspension of the notification issued by the Sindh Government in compliance with the judgment of this Court. The High Court of Sindh cannot sit in appeal against the findings recorded by this Court, in defiance of the mandate of Article 189 of the Constitution. Besides, the Petitioner has already filed a Review Petition in this Court for CRP.No.193/2013 etc 116 remedy of his grievance, which was heard on 10.06.2014 and the judgment was reserved. The jurisdiction of High Court of Sindh is otherwise ousted by the bar of Article 212 of the Constitution. 182. We have noticed that the High Court of Sindh, while overlooking the mandates of Articles 189 and 212 of the Constitution, has started entertaining Petitions under Article 199 of the Constitution filed by Civil Servants which has paralyzed the Service Tribunals. In order to comprehend the true picture, we have called for the R&P of the Constitution Petition No. 2817 of 2013 filed by the Petitioner. We had noticed that the Petitioner, after the judgment in Review Petition was reserved in June 2014, had filed the Petition before the High Court of Sindh and obtained interim order, with the sole object to defeat the judgment of this Court. His case of erroneous absorption in Provincial Secretariat Service is fully covered by the findings recorded by this Court in the judgment under review. The Petitioner, being an Officer of the Public Service Commission, was wrongly absorbed in the Provincial Secretariat Service, which is a distinct specie of service and has its independent recruitment Rules and Service Structure. The Petitioner was not eligible to be appointed by transfer under Rule 9(1) of the Rules of 1974 and was erroneously absorbed in the Provincial Secretariat Service, which service could only be joined after qualifying the required competitive examination. The Civil Servants Act and Rules framed thereunder do not permit such absorption. We, for the reasons already recorded by us in our impugned judgment, dismiss the Civil Review Petition, holding that the Petitioner was rightly de-notified by the Sindh Government in compliance with the judgment under review. Consequently the Constitution Petition No.D-2817 of 2013 stands abated. CRP.No.193/2013 etc 117 183. The Petitioner‟s conduct of approaching High Court of Sindh, during the pendency of his Review Petition, prima facie, amounts to contempt of the authority of this Court. We, accordingly direct the Office to issue Show Cause notice to the Petitioner under Article 204 read with Section 17(1) of the Contempt of Court Ordinance 2003, calling upon him to submit his explanation as to why he should not be proceeded against for willfully defying and defeating the judgment of this Court dated 12.6.2013, by filing the Constitution Petition No.2817/2013, in the High Court of Sindh on the same subject and obtaining the restraining order, after availing the remedy of Review Petition. The Office shall make a separate file of the proposed Criminal proceedings by assigning number. Crl.R.P No.80 OF 2014 (Mirza Shahbaz Mughal vs. Province of Sindh etc) 184. Through these proceedings, the learned ASC Mr. Abid Zuberi has prayed that the proceedings in Suit No. 102/2013 filed by the Petitioner before the learned High Court of Sindh be allowed to continue. He has sought expungment of the remarks passed by this Court against the Petitioner in the judgment under review. 185. On 01.02.2013, the Petitioner had filed Civil Suit No. 102 of 2013 in the High Court of Sindh against the Sindh Government and its officials for “Declaration and Permanent Injunction” with the following prayers:- “PRAYER It is, therefore, prayed that this Hon‟ble Court may be pleased to pass judgment and decree in favour of the Plaintiff as under: A. Declare that the Notification dated 13-1-2012 issued by Defendant No.1 withdrawing the CRP.No.193/2013 etc 118 name of the Plaintiff from the Notification dated 3-09-2012 is in accordance with law. B. Declare that the Impugned Letter dated 28-1-2012 issued by the Defendant No.2 is illegal, malafide, without jurisdiction, unwarranted in law and fact as well as in violation of principles of Natural Justice. C. Suspend the Impugned Letter dated 28-1-2012 issued by the Defendant No.2. D. Grant permanent Injunction prohibiting/ restraining the Defendants, their employees or any person acting under them or on their behalf from taking any coercive action against the Plaintiff in pursuant to Impugned Letter dated 28-1-2013. E. Grant permanent Injunction prohibiting / restraining the Defendants, their employees or any person acting under them or on their behalf from withdrawing Notification dated 13-1-2013. F. Grant any other relief deemed just and appropriate in the circumstances of the case. G. Grant costs of the suit. 186. Alongwith the Suit, an application under Order XXXIX Rules 1 and 2 CPC was also filed and on 04.02.2013, a State Counsel appeared on behalf of the Sindh Government and sought time. The learned High Court passed status-quo order, which continued. On 15.05.2013, the Petitioner made three Misc. Applications, one application for urgent fixation of the matter, second application for suspension of the Notification dated 07.05.2013, by which the Petitioner‟s earlier Notification dated 14.03.2013 for appointment as DSP in Sindh Police was withdrawn, and third application was under Order XXXIX Rule 2(3) CPC, seeking initiation of contempt proceedings against the Defendant Additional Chief Secretary (Home Department) for willful disobedience of the „status-quo‟ order of the Court. 187. The learned High Court on 16.05.2013, allowed the urgency application and, while issuing notices in the other two CRP.No.193/2013 etc 119 applications, suspended the Notification dated 07.05.2013 of the Additional Chief Secretary (Home Department). 188. The background of the notification of 07.05.2013 of the Sindh Government was that during the hearing of the arguments in C.P.No.71/2011 and other Petitions in Criminal Original Petition No. 89-K of 2011, two CMAs numbered as 245/2013 and 247/2013 were filed, complaining that the Sindh Government had appointed 10 D.S.Ps without observing requisite Codal formalities. On 06.05.2013, this Court enquired from the Additional Advocate General Sindh, representing the Sindh Government, to satisfy the Court as to how the Sindh Government could appoint D.S.Ps without recourse to the procedure prescribed under the service law. The Additional Advocate General sought time for instructions and on the following day, he made a statement that all the D.S.Ps appointed directly, including the Petitioner, have been de-notified by notification dated 07.05.2013. 189. The Petitioner challenged the notification dated 07.05.2013 in the said civil suit and obtained a restraining order, enlarging the scope of the suit. On the date when the notification dated 07.05.2013 was placed before us, we were not informed that a suit was filed by the Petitioner. However, a complaint was sent to this Court that inspite of the Notification dated 07.05.2013, the Petitioner is continuing as DSP on the basis of an order in the Suit No. 102 of 2013, and therefore, R&Ps of the said Suit was called. 190. After perusal of the R&Ps, we in paras 177 to 181 of the judgment under review had taken note of the conduct of the Petitioner who was willfully defeating the orders of this Court passed at times. We, therefore, directed the learned High Court of CRP.No.193/2013 etc 120 Sindh to dispose of the suit on the basis of the findings recorded by us in the judgment under Review. This has not been done by the learned High Court of Sindh, though the impugned judgment was circulated amongst the Judges of the Court through the Chief Justice. 191. It is contended by Mr. Abid S. Zubair, ASC that the Petitioner was lawfully appointed as DSP and the judgment under review does not cover the case of the Petitioner. He prayed that the suit filed by the Petitioner before the High Court of Sindh be allowed to continue and its maintainability be determined by the said Court. We inquired from the learned counsel to satisfy us as to how a Civil Servant can file a Suit relating to the terms and conditions of his service. We further asked to satisfy us as to how the Petitioner was granted back dated seniority and out of turn promotion. He could not offer any plausible explanation to the queries. We have perused the service profile of the Petitioner provided by the S&GAD. 192. We have noticed that the Petitioner was appointed as ASI on 29.01.1996 in Larkana (Range) under the Police Order 2000, as a Probationer. He was confirmed as A.S.I. He was promoted to the rank of Sub Inspector on 17.12.2001 and was confirmed as such on 18.12.2003. He was extended undue favours and appointed by promotion as Inspector on 26.04.2004 on adhoc basis with the rider that he will not claim seniority over his seniors, and will retain his original seniority in the promotion list. The order of his promotion further qualifies that his promotion will be regularized on his turn along with his batch mates. CRP.No.193/2013 etc 121 193. A further favour was extended to the Petitioner on 18.02.2009, when the then CCPO Karachi recommended to post him as DSP on his own pay and scale which recommendation was accepted on 20.05.2009. The grounds recommending the Petitioner for out of turn promotion were illegal and untenable in law. We have gone through the Minutes of the Committee, recommending the appointment of the Petitioner on OPS as DSP, reproduced herein below: “The committee has examined the record as well as comments furnished by the then Capital City Police Officer, Karachi under his office letter No. CCPO/KHI/E.I/93359 dated 10.08.2010. The committee has also observed that the performance of Mirza Shahbaz Mughal while working as PSO to CCPO, Karachi on officiating basis, on law & order situation in Karachi, have full grasp over his duties, which facilitated to achieve disposal of pending & complicated cases even holidays, which can be termed outstanding for his exceptional performance. He not only performed superb in reorganization of office. He has excellent analytical skills with capacity to plan, organize and executive his plan, which help full to CCPO Karachi in public dealing for their problems and pursue for its redressal. Besides above, in the following filed assignments, his performance remained excellent and up to the mark: 1. As SHO, PS Gulistan-e-Johar on 26.04.2004, after exchange of firing he arrested 2 bandits and recovered looted booty dinar 475,000/- and illicit weapons from their possession (FIR No. 59/2004 u/s 353/324/34 PPC). 2. As SHO PS Gulistan-e-Johar on 29.06.2004, near Safoora Chowk arrested 2 suspicious alongwith motorcycle and recovered one pistol 30 bore loaded and looted booty Rs.3510/- (FIR No. 117/2004 u/s 353/324/34 PPC). 3. On 10.08.2004, during patrolling among bungalows of Block-8, arrested suspicious person and one pistol 30 bore loaded with 3 cartridges an twin edged dagger having blade more than 8. The officer was recommended for promotion to the next higher rank in recognition of his excellent performance in arrest of notorious street criminals, CRP.No.193/2013 etc 122 number of gun runners, during peddlers to traffickers alongwith recoveries and lodged FIRs, however, after due consideration he was promoted as DSP on officiating basis. He is working as DSP since last more than 21 months. In view of the above the committee has recommended that the request of Mrs. Zahida Sarwar for placing the name of Mirza Shahbaz Mughal in the seniority list of DSsP of Sindh Police, may be allowed and matter may be referred to competent authority for regularization of Mirza Shahbaz Mughal as DSP.” 194. The undue favours extended to the Petitioner-Sub Inspector, in an unprecedented manner on the aforesaid grounds, could hardly be construed valid to excel his rank to that of a DSP. It is the duty of a Police Officer to arrest culprits and bring them to book. These acts of the Petitioner, in no way, could be construed as gallantry act beyond the call of duty of a Police Officer. What was more surprising was that the Committee, on the aforesaid grounds, had recommended the Petitioner for his regularization in the rank of D.S.P. through the then I.G Police and the then Additional Chief Secretary, who endorsed these recommendations. The regularization of the Petitioner as DSP, was treated as a fresh appointment on regular basis in order to save his appointment as D.S.P against the law enunciated by this Court in an unprecedented manner, which we believe, has never happened before in Police Force. 195. The Petitioner was placed at Sl.No.283 in the seniority list of the Sub-Inspectors. It is claimed that his appointment as DSP was regularized in exercise of powers conferred under Section 24 of the Act read with Rule 19 of the Rules of 1974. The competent authority can neither appoint nor regularize the services of the Petitioner under section 24 of the Act, which is an enabling provision and does not confer authority on the competent CRP.No.193/2013 etc 123 Authority to pass such orders to the disadvantage of other Civil Servants. We would be dealing with the scope of Section 24 of the Act separately. Appointment of a Civil Servant is provided under Section 5, subject to the prescribed manner, which requires that any officer in BS-17 can only be appointed on the recommendation of the Public Service Commission, which, after advertising the post, takes examination of the candidates and declares their results on merit. The powers under Section 24 of the Act cannot circumvent the mandate for appointment of a Civil Servant as provided by the Articles 240 and 242 of the Constitution. Reference to Rule 19 of the Rules of 1974 is also alien to the case of the Petitioner. The powers under Rule 19 could only be exercised in the public interest, in exigencies and pending nomination of a candidate by the Commission with the qualification that such powers are subject to the procedure laid down by Part-III of the initial appointment under the Rules of 1974. 196. We have failed to understand as to how the Petitioner, through such unwarranted means, can continue in the Police Force as D.S.P. The Petitioner, at no point of time, was ever confirmed in the rank of Inspector, therefore he could not have been appointed on OPS as DSP nor could his services be regularized unless he was a confirmed Inspector or had served for five years in order to qualify to be considered for promotion to the post of DSP. Under the Civil Servants Act, seniority of the police officers is reckoned from the date of their regularization, as provided under section 8(4) of the Civil Servants Act. Since the Petitioner was never promoted on his turn as Inspector, nor was confirmed in the rank of Inspector and his batch mates are still serving as Sub Inspectors, therefore, he cannot be regularized as CRP.No.193/2013 etc 124 DSP nor his regularization can be treated as fresh appointment as DSP. 197. The procedure for appointment to the post of DSP has two modes (i) by promotion, where an Inspector confirmed in his substantive rank has served for five years and is otherwise senior amongst his batch mates, or (ii) by initial recruitment, as prescribed by the Rules. The Petitioner is not covered by this mode as he does not qualify the ternural limitation prescribed for promotion. By Act No. XI of 1989, the Sindh Assembly has created „Sindh Public Service Commission‟ and under Section 10 of the said Act, the Sindh Government has framed the Rules calls “Sindh Public Service Commission (Functions) Rules 1990” [hereinafter referred to as “the Rules 1990”]. In terms of Rule 3(1)(i) it is provided that all civil posts connected with the affairs of the Province in Basic Pay Scale 16 to 22, except those specified in the schedule, shall be filled by the Sindh Public Service Commission through competitive process. Such posts are required to be advertised publically. In the case in hand, this mandatory mode, required under the rules, was not followed while notifying the Petitioner as a fresh appointee, who was already in police service in the rank of Sub-Inspector. The case of the Petitioner is fully covered by our judgment under review as he was given out of turn promotion and was given back dated seniority and his regularization or adjustment as DSP was not backed by any law which could confer power on the Competent Authority to treat him as a fresh appointee. The competent Authority shall forthwith post him as Sub-Inspector. CRP.No.193/2013 etc 125 198. We may observe that on 6.5.2013, two CMAs numbered as 245/2013 and 247/2013, containing list of other nine persons who were also appointed as D.S.P. without recourse to the provisions contained in the Rules, 1974, alongwith the Petitioner, were filed. The said Rules require that a post of BS-17 can only be filled through Public Service Commission after advertisement. The Sindh Government and or the Competent Authority cannot bypass this mandatory requirement and substitute a parallel mechanism to appoint a person in BS.16 to 22 against the language of these Rules, which are framed under the dictates of the Act as mandated under Article 240 of the Constitution. The Article 242 of the Constitution provides the mechanism for appointment of a Civil Servant through Public Service Commission. This Article is safety valve which ensures the transparent process of induction in the Civil Service. It provides appointment by Public Service Commission with the sole object that meritorious candidates join Civil Service. The Sindh Government through executive or legislative instruments can not withdrawn any post from the purview of the Public Service Commission as has been done in the case of the DSPs, in negation to the command of Article 242 of the Constitution. For the aforesaid reasons, we hold that the Sindh Government shall make all the appointments in BS 16 to 22 through Public Service Commission. 199. We, for the aforesaid reasons, hold that the Petitioner was rightly reverted to the rank of Sub-Inspector in terms of the letter of Dr. Muhammad Amin Yousuf Zai DIG (Establishment). The Competent Authority shall fix the inter-se seniority of the Petitioner with his batchmates. The Petitioner shall restore all the CRP.No.193/2013 etc 126 benefits including salaries drawn by him as DSP to the Sindh Government from the date of the judgment under review. The concerned Department shall deduct and/or adjust the aforesaid benefits in installments from his future salary within a span of 03 years and report compliance. 200. The Petitioner shall be issued a Show Cause Notice under Section 17(1) of the Contempt of Court Ordinance 2003, read with Article 204 of the Constitution, calling upon him to furnish explanation as to why contempt proceedings should not be initiated against him for willful defiance of the orders dated 30.08.2012 and 07.05.2013, besides the impugned judgment. The office shall make a separate file of the proposed contempt proceedings by assigning it a separate number. This Review Petition is dismissed with costs. The suit of the Petitioner stands abated being barred not only under Article 212 of the Constitution, but also under Article 189. 201. We must record our displeasure over the officers, who were instrumental in extending undue favours to the Petitioner. We direct the competent Authority to initiate departmental proceedings against the then CCPO Karachi, the then Additional Chief Secretary Sindh and members of the Committee, who recommended the Petitioner for appointment as DSP, and report compliance within two weeks for our perusal in Chambers. C.P. No.968/2014 (Saleem Ullah vs. Province of Sindh etc) 202. The Petitioner‟s Counsel, Mr. Tariq Mehmood, has contended that the Petitioner was appointed as Assistant Executive Engineer (AEE) in BS-17 in Karachi Water and Sewerage Board CRP.No.193/2013 etc 127 (KW&SB) whereas one Muhammad Harris was appointed as AEE in BS-17 in the Communication and Works (C&W) Department. The Petitioner and Muhammad Harris applied for mutual transfer. On 12.6.1995, their application for mutual transfer was allowed. Thereafter, on application of Muhammad Harris, he was absorbed in KW&SB, whereas the Petitioner was absorbed in C&W Department. The Petitioner was not a Civil Servant and therefore, he could not have been transferred and absorbed in C&W Department either under Section 24 of the Civil Servants Act or under Rule 9(1) of the Rules 1974. 203. It is settled law that a non-Civil Servant cannot be conferred the status of a Civil Servant, which the Petitioner has acquired by absorption in C&W Department. Therefore, the Petitioner was rightly de-notified. Consequent upon the detailed reasons given in the judgment under review, the absorption of the Petitioner in the C&W Department, was un-warranted. This Civil Petition, for the aforesaid reasons, merits dismissal. The Petitioner shall immediately join his parent Department i.e. KW&SB and Muhammad Harris shall be reverted back to his parent department i.e. C&W Department. The Petitioner as well as Muhammad Harris shall be entitled to their inter-se seniority with their batchmates from the date on which they were transferred from their parent Departments. Crl.R.P.40/2014 (Ata Muhammad Memon vs. Chief Secy. Govt. of Sindh) 204. The Petitioner, in person, contended that on 4.8.1987, he was appointed as Assistant Engineer in KDA on temporary basis. On 27.4.1989, he was transferred on mutual basis to Public CRP.No.193/2013 etc 128 Health Engineering and was posted in Hyderabad, where he was working till he was de-notified in compliance with the judgment under review. The Petitioner stated that after his de-notification he had joined KMC as the KDA, which was his parent department, had devolved. He submitted that he had not been allowed to join, inter alia, on the ground that the judgment under review does not cover his case. 205. We have laid down the principles which covers the case of the Petitioner. The absorption of the Petitioner in the Public Health Engineering, was un-warranted. Therefore, we direct the Chief Secretary Sindh, to create a surplus pool in KMC and the Petitioner shall be posted in the pool till he is posted against a vacancy in the Department. He would be entitled to his inter-se seniority with his batchmates with whom he was working in KDA at the relevant time before his absorption to the Public Health Engineering. The Petitioner shall be given salary from the date he was de-notified, within 15 days from the date of communication of this judgment. At the same time the Officer with whom he was mutually transferred, shall be reverted back to his parent Department with the same benefits as detailed above. The Chief Secretary Sindh shall submit compliance report for our perusal in Chambers. The Review Petition is disposed of in above terms. Crl.R.P.No.41/2014 (Ali Murad Abro vs. Chief Secy. Govt. of Sindh) 206. The Petitioner, in person, stated that he was appointed on 28.7.1987, as Assistant Engineer BS-17 in the KDA on permanent basis. On 26.2.1995, he was mutually transferred to C&W Department on a joint application, with Muhammad Ameer, who was also Assistant Engineer in BS-17 in the C&W CRP.No.193/2013 etc 129 Department. After the judgment under review, he was de-notified and sent back to the Local Government Department and since then he has not been given posting. He has stated that Muhammad Ameer, who was mutually transferred with him, has also not been repatriated to the C&W Department in compliance with the judgment. 207. The Chief Secretary Sindh is directed to ensure that the judgment of this Court is implemented in letter and spirit and the Petitioner and Muhammad Ameer are transferred forthwith to their respective parent Departments. They would be entitled to their salaries from the date of their de-notification as well as their inter-se seniority with their batchmates from the date of their mutual transfer. The Review Petition is disposed of in above terms. The Chief Secretary shall report compliance within 15 days from the date of communication of judgment. Crl. R.P. No.77 of 2013 (Talib Magsi vs. Province of Sindh etc) 208. The learned Counsel for the Petitioner contends that the Petitioner originally was an Officer in the Local Government Department, Balochsitan, and was promoted to BS-18. He claims that the Petitioner‟s son was attacked and was moved to Agha Khan Hospital, Karachi, for medical treatment. He applied for his transfer to Sindh Government on humanitarian ground. It is claimed that under Section 10 of the Balochistan Civil Servants Act, he was transferred to Sindh Government and on 5.10.2010 he was appointed as Director Food on deputation. On 3.9.2010, the Chief Minister Sindh, in exercise of powers under Section 24 of the Act of 1973, on an application by the Petitioner, who was on CRP.No.193/2013 etc 130 deputation, absorbed him in the Sindh Government in Ex-PCS cadre. After the judgment under review, the Petitioner was de- notified by the Sindh Government and was ordered to be repatriated to Balochistan. 209. We have dealt with the issue of absorption of a Civil Servant. The Petitioner hails from Balochistan. The Chief Minister, Sindh cannot order absorption of any Civil Servant of a different Province who is on deputation to Sindh Government. Section 24 of the Act or Rule 9(1) of the Rules of 1974, cannot be resorted to for appointment by transfer of a Civil Servant who does not belong to the Sindh Government. The Petitioner could neither have been transferred permanently to the Sindh Government, nor could he be absorbed in Ex-PCS cadre for the reasons given in the impugned judgment. The Petitioner did not have the status of a Civil Servant while serving on deputation in Sindh Government nor could he continue on deputation for an indefinite period. His absorption in Ex-PCS cadre was contrary to the language of Section 5 of the Act, which does not authorize the Chief Minister to appoint the Petitioner by offending the Rules of 1974. 210. We, for the aforesaid reasons, do not find any merit in the Review Petition which is accordingly dismissed. Pendency of any proceedings of the Petitioner before any forum will not come in the way of Sindh Government in repatriating the Petitioner to the Province of Balochistan. Crl.RP. No.70/2013. (Yar Muhammad Bozdar.) Crl.R.P.No.72/2013. (Syed Altaf Ali and others) 211. The Petitioners claim to have been nominated by the Chief Minister as Assistant Commissioners under Rule 5(4)(b) of CRP.No.193/2013 etc 131 the West Pakistan Civil Service (Executive Branch) Rules, 1964. The grievance of the Petitioners is that on account of paras 102 to 111 of the judgment under review, their nominations were withdrawn and they were reverted back to their parent Departments. We have already dealt with this issue in the aforesaid paras. During the hearing of the Review Petition, we have noticed that no mechanism has been provided for nomination of the officers. It is the sole discretion of the Chief Minister to recruit/nominate an employee to the post of Assistant Commissioner in exercise of powers under Rule 5(4)(b) of the Rules of 1964. The discretion to exercise the powers needs to be structured by framing policy, which should encourage merit. On query from the learned Additional Advocate General, Sindh as to how the employees are chosen from different Departments for nomination as Assistant Commissioners; he, on instructions, informed the Bench that no policy has been framed and it is the sole discretion of the Chief Minster. These Rules are not meant to ignore transparency in nomination as such appointments are made by bypassing the regular procedure provided for appointment of a Civil Servant in BS-17. We have noticed that most of these appointments were made amongst the employees, who have been excluded from the purview of the Public Service Commission. Therefore, in absence of policy for nomination to the post of Assistant Commissioner, blue eyed of the high ups will get these jobs. We, therefore, direct the Sindh Government to frame a transparent policy for nomination of these officials, which could ensure that meritorious employees of the Departments mentioned in the Rules of 1964, could be nominated on merits, after proper scrutiny. CRP.No.193/2013 etc 132 212. The Petitioners were found in excess of the quota as per the list provided to us by the Sindh Government and, therefore, for the reasons already recorded by us in the judgment under review, they were not entitled to continue in their Offices. These Review Petitions having no merit are, accordingly, dismissed. C.M.A.No.4568 of 2013 in C.R.P.No.Nil of 2013. (Rafique Ahmed Abbasi vs. Chief Secy. Govt. of Sindh) 213. The Petitioner, through these proceedings, seek review of the judgment, inter alia, on the ground that he was lawfully granted out of turn promotion and after the judgment under review of this Court, he was reverted to the rank of Inspector though his batchmates had been extended favours and their seniority was fixed one step higher than the Petitioner. The issue of out of turn promotion, which has been declared unconstitutional, cannot be allowed to be reopened. However, the grievance of the Petitioner in regard to his seniority can be examined by the Sindh Service Tribunal. 214. Therefore, in order to meet the ends of justice, we remand this case to the Sindh Service Tribunal, which shall treat this Review Petition as Service Appeal and shall decide the same in accordance with law, in line with the principles laid down in this judgment and the judgment under review. The Petitioner shall be at liberty to amend the proposed Appeal appropriately, if so advised. The Tribunal shall, after issuance of notice to the Petitioner and his other batch-mates, determine their seniority in accordance with law. This Review Petition is disposed of in the above terms. CRP.No.193/2013 etc 133 SUIT NO. 1029 OF 2014 (Muhammad Ali Baloch vs. Province of Sindh etc) 215. During the hearing of the Criminal Review Petition filed by the Sindh Government as well as by the beneficiaries, we directed the Sindh Government to provide us the list of the beneficiaries who had obtained restraining orders against the notification issued by the Sindh Government in compliance with the judgment under review. 216. The Sindh Government provided us the list of the Civil Suits and the Constitution Petitions filed by the Petitioners and many other Civil Servants, challenging the notification of the Sindh Government dated 02.07.2013, issued in compliance with the judgment under review. 217. We were sent the list by the Sindh Government in which Suit No. 1029 of 2014, filed by Muhammad Ali Baloch was also mentioned. The Plaintiff Muhammad Ali Baloch had obtained restraining order by seeking suspension of the notification dated 2.7.2013 of the Sindh Government. We may observe that Muhammad Ali Baloch was repatriated to his original post of Assistant Director (Computer Branch) on declaration that he was wrongly absorbed in the regular Police Force. 218. This Notification dated 02.07.2013 was challenged by him by way of Departmental Appeal (Representation) in terms of Section 23 of the Sindh Civil Servants Act and, subsequently, in Appeal No. 144/2013, before the Sindh Service Tribunal. The Service Tribunal, after hearing the parties, held that the judgment under review was fully applicable to the case of Muhammad Ali Baloch and his absorption in the regular Police Force was found to CRP.No.193/2013 etc 134 be unwarranted. Against this judgment, a Civil Petition for leave to Appeal No. 74-K/2014 was filed by Muhammad Ali Baloch before this Court, which was fixed before a three member Bench at Karachi, and one of us (Justice Amir Hani Muslim) was heading the Bench. On 25.02.2014, the matter was fixed before the Bench at Karachi Registry. The Counsel of Muhammad Ali Baloch, Dr. Farough Naseem, after arguing the matter at some length, withdrew the Appeal on instructions of Muhammad Ali Baloch, who was present in Court. On withdrawal of the Appeal, the judgment of the Service Tribunal attained finality. 219. Since we were given the number of Suits/Petitions pending in which the High Court of Sindh has passed restraining orders, we noticed that Suit No.1029 of 2014 was filed by Muhammad Ali Baloach in the High Court of Sindh. This Suit was not mentioned in the list provided to us by the Registrar of the High Court of Sindh, therefore, on our direction the office inquired from the Registrar as to why the said Suit has not been mentioned in the list. We were informed that it was by mistake of the office of the High Court of Sindh and accordingly the R&P of the suit was called. After perusal of the record of the Suit, we noticed with shock that the Plaint was presented in the office of the High Court of Sindh on 23.6.2014 and permission for fixation of the case was granted by an Additional Judge (Justice Aamir Raza Naqvi) in an unprecedented manner on the same day. The matter was placed before Justice Saeeduddin Nasir with the following three office objections:- “1. Proper Court fee to be affixed. 2. List of legal heirs be filed. 3. Addresses for service be filed.” CRP.No.193/2013 etc 135 220. Justice Saeeduddin Nasir, on the same day, while suspending Notification dated 2.7.2013, issued by the Sindh Government in compliance with he judgment under review of this Court, passed the following order :- “1. Granted. 2. One week time is allowed to the plaintiff to affix the court fee on the plaint. 3. It is contended that the plaintiff was appointed as A.D (Computer) in Special Branch, Police Department in BPS-17, later on the said post was abolish vide order dated 11.12.2013 and the plaintiff was appointed as Deputy Superintendent of Police. Subsequently, vide notification dated 13.11.2007 he was appointed as S.P. The learned counsel for the plaintiff states that due to order passed by the Hon‟ble Supreme Court in Original Criminal No.89 of 2011 the plaintiff was likely to be demoted from the post of S.P to D.S.P. which was being hold by the plaintiff prior to being out of turn promoted as S.P. but the defendant vide notification dated 2.7.2013 demoted the plaintiff as Assistant Director (Computer) which post has been abolished in 2003. It is further contended by the learned counsel for the plaintiff that the plaintiff had completed the field training command as Police Officer for more than ten years and qualifies to hold the post of D.S.P. In view of the submission made by the learned counsel for the plaintiff, let notice be issued to the defendant for a date to be fixed by the office after summer vacation. In the meanwhile the operation of the notification dated 2.7.2013 to the extent of the plaintiff is suspended.” 221. The suit filed by Muhammad Ali Baloch contained the same reliefs in substance, which were denied to him up to this Court. The prayers in the Suit are reproduced herein below:- a. To declare that the plaintiff is entitled to hold the post of “Deputy Superintendent of Police” and defendants are liable to revive his status; b. Permanent Injunction restraining Defendants from removing/banishing the plaintiff from his aforesaid post of “Deputy Superintendent of Police” and interim and final directions to deliver the post of Deputy Suptt. of Police in whatsoever manner; c. Cost of the proceedings throughout; CRP.No.193/2013 etc 136 d. Any other relief which this Honourable Court deem proper may also be granted. 222. In the plaint, it was pleaded that the Service Tribunal had passed judgment on 30.12.2013 dismissing his Appeal. However, since the post of Assistant Director (Computer) had been abolished, he filed C.P.No.D-388 of 2014 and C.P.No.D-2660 of 2014 in the High Court of Sindh, which are pending adjudication. He pleaded that since no orders were passed in the Petitions due to pendency of a large number of cases in the High Court of Sindh, he made representation to the Chief Minister but to no avail. Consequently, he had filed suit, inter alia, on the ground that his absorption in Police Force is similar in nature to the case of Ataullah Chandio, who was from Law Department and was allowed to be absorbed in Police Force. 223. Muhammad Ali Baloach, after exhausting all his legal remedies up to this Court, has started a fresh round of litigation on the pretext that the post of Assistant Director (Computer) was abolished, therefore, he was not given posting. In the first place, abolition of the post of Assistant Director (Computer) does not render him surplus owing to the fact that an IT Wing exists in the Police Department, and he could have been posted in the said Wing by creating a post of Assistant Director (Computer), or in any other department of the Sindh Government, in terms of Rule 9-A of the Rules of 1974. He, however, could not seek relief as prayed either in the Suit or in the Constitution Petitions pending in the High Court of Sindh. The findings recorded by the Service Tribunal against Muhammad Ali Baloch, have attained finality on his withdrawal of the Civil Petition from this Court. The Service Tribunal in its detailed judgment has held that Muhammad Ali CRP.No.193/2013 etc 137 Baloch was wrongly appointed by transfer under Rule 9(1) as DSP in regular Police in defiance of the restrictions contained under the Recruitment Rules, which do not permit his horizontal movement to penetrate in Provincial Police Service as DSP which is a distinct cadre. Muhammad Ali Baloch was appointed as Assistant Director in (Computer Wing), which cannot be construed to be an appointment in regular Police Force. We have already interpreted the scope of Rule 9(1) of the Rules of 1974. Muhammad Ali Baloch was not eligible to be appointed by transfer as DSP for want of required qualification, experience, expertise as contained under Rule 9(1) read with Rule 3(2), 7 and 8 of the Rules of 1974. He was rightly repatriated to the Computer Wing in Police Department. 224. In the Suit, Muhammad Ali Baloch has concealed the fact that he approached this Court challenging the judgment of the Sindh Service Tribunal and on 25.02.2014, his Counsel, after arguing the Petition at some length, had withdrawn the Civil Petition in his presence. 225. Once a Civil Servant has exhausted all the legal remedies, he cannot initiate a second round of litigation by filing Constitution Petition or Suit on the same subject. The learned High Court, in the first place, should not have entertained the Suit or Petition in view of the bar contained under Article 212 of the Constitution, as Muhammad Ali Baloch is a Civil Servant and the issues raised before the High Court, fall within the domain of the Sindh Service Tribunal, which had already recorded the findings against him. It is established law that a Civil Servant cannot raise any issue which pertains to terms and conditions of his service, particularly, when such issue has finally been decided by this CRP.No.193/2013 etc 138 Court. The learned Judge (in Chambers) Mr. Saeeduddin Nasir, has not applied his mind while entertaining the Suit on 23.6.2014, and had suspended the notification issued by the Sindh Government, which was issued in compliance with the judgment of this Court, maintained by the Sindh Service Tribunal, and his Civil Petition against the judgment of the Tribunal had attained finality on its withdrawal. The learned Judge (in Chambers) has not even examined the contents of the plaint which refer to the judgment of the Sindh Service Tribunal and in a very casual manner has passed the order suspending the notification. 226. We are at a loss to understand as to how the learned Judge (in Chambers) could sit in Appeal against the findings of this Court in the face of the language of Article 189 of the Constitution which mandates that, “Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.” If such practice is allowed to continue, it will render the hierarchy of this Court ineffective as mandated by the Constitution. 227. For the aforesaid reasons, we hold that Muhammad Ali Baloch has willfully committed contempt of this Court by re- agitating the issues through the Constitution Petitions No. D-388 of 2014 and D-2660 of 2014, and the Suit, which attained finality after the judgment of this Court and the Sindh Service Tribunal, as noticed hereinabove, with the ulterior motive to defeat the findings of this Court. His case is fully covered by the judgment of this Court in the case of Abdul Majid and another vs. Qazi Abbas CRP.No.193/2013 etc 139 Hussain Shah (1995 SCMR 429), in which, in the similar circumstances, contempt proceedings were initiated by this Court. 228. We therefore, direct the Office to issue Show Cause Notice to Muhammad Ali Baloch under Section 17(1) of the Contempt of Court Ordinance 2003 read with Article 204 of the Constitution calling upon him to explain as to why he should not be proceeded against for committing contempt of this Court. The proceedings filed by Muhammad Ali Baloch before the High Court of Sindh in Suit No. 1029/2014 and in Constitution Petitions No. D-388 of 2014 and D-2660 of 2014 stand abated. Sindh Government shall appoint him in any Department, within 15 days from the date of communication of this Judgment, as Assistant Director (Computer), which was his substantive post before his absorption in Sindh Police force as DSP and report compliance. He, however, will be entitled to inter-se seniority amongst his batchmates before his absorption. Suit No.519 of 2014 (Ali Ahmed Lund) 229. In order to find out the latest status of different Suits and Constitutional Petitions filed by the Civil Servants before the High Court of Sindh after the orders dated 30.8.2012, 3.1.2014 and the judgment under review, we asked the Registrar of the High Court of Sindh to provide us list of Suits and Constitutional Petitions filed before the High Court of Sindh. While going through the list, we called for the R&Ps of Suit No.519 of 2014 and Suit No.1052 of 2014 and the connected High Court Appeals to examine as to whether the aforesaid orders of this Court are taken note of by the High Court of Sindh while entertaining the Civil Suits. CRP.No.193/2013 etc 140 230. We noticed that Suit No.519 of 2014 was filed by Ali Ahmed Lund who, in collateral proceedings, was ordered to be repatriated to his parent department in the Federal Government, when he was serving on deputation as D.C.O in the Sindh Government. We called the R&P of the suit, and upon perusal we noticed that he sought in the Suit alteration in his date of birth with the following prayer:- “a) Declare that as per Matriculation Certificate, NADRA record, and in the Service Record, the correct date of birth of plaintiff is 2.4.1956, and he is deemed to stand retired on 1.4.2016 and not on 1.4.2014 as per the erroneous Seniority List dated 25.9.2009. b) Declare that the Seniority List dated 25.9.2009 of officers working in BS-20 under Respondent No.2 is null and void to the extent of the date of birth of the plaintiff which is wrongly mentioned as 2.4.1954 instead of 2.4.1956 as mentioned in Service Record. c) Direct the defendants to rectify the seniority list dated 25.9.2009 and mentioned the correct date of birth of the plaintiff which is 2.4.1956 and duly corroborated by his Matriculation Certificate and CNIC issued by the NADRA and by service record. d) To restrain the defendants of any person acting through or under them from taking any coercive action against the plaintiff viz his retirement from service and service record which shows the correct age of the plaintiff as 2.4.1956 or by prematurely issuing Notification of Retirement and or acting upon the same prejudicially to the plaintiff on the basis of erroneous date of birth which is only reflected in seniority list. e) Damages against the defendants at Rs.110 Million jointly and severely. f) For any other/additional relief(s) that this Hon‟ble Court may deem fit and proper in the facts and circumstances of this case; g) Cost of the suit.” 231. The suit was filed by him on 1.4.2014, pleading therein that he was born on 2.4.1956 and his date of birth was incorrectly recorded in the service record as 2.4.1954. In the CRP.No.193/2013 etc 141 pleadings, he admitted that he acquired knowledge of his incorrect date of birth in the year 2009 when seniority list was floated. He made representations at times for correction in his date of birth till 26.11.2013 and since no response was received, therefore, he filed the Civil Suit. 232. On perusal of the record, we further observed that on 27.3.2014, Ali Ahmed Lund has filed a Constitutional Petition No.D-1566 of 2014 on the same subject with the following prayer:- a) To declare that as per Matriculation Certificate and NADRA record, the correct date of birth of the Petitioner is 2.4.1956 which has erroneously been entered/mentioned in his service record by the Respondent No.3 as 2.4.1954 which is liable to be rectified/cured with immediate effect. b) To direct the Respondents to rectify the date of birth of the Petitioner in their record as 2.4.1956 instead of 2.4.1954 and till the virtual correction, it may be read and understood as 2.4.1956. c) To permanently restrain the Respondent No.3. or anyone else working on his behalf to issue any notification of the retirement of the Petitioner according to erroneous date of birth of the Petitioner i.e 2.4.1954 mentioned/entered in their record. d) To direct the Respondents to act in accordance with law and not to misuse/abuse of his official powers conferred upon them under the law. e) Any other relief (s) warranted by the facts and circumstances of the case.” 233. Apparently, on his failure to get the interim relief in the Writ Petition in which notice was ordered by the learned Division Bench, he opted to file the aforesaid Civil Suit, concealing the fact that he had filed a Constitutional Petition prior to filing of the suit on the same subject. CRP.No.193/2013 etc 142 234. On 10.4.2014, he was granted interim order of status- quo by the learned Judge in Chambers (Justice Nadeem Akhter) in the following terms:- “Learned Counsel for the plaintiff has filed a statement along with some documents, which are taken on record. The documents filed today show that the plaintiff is still working as the Secretary to Government of Sindh/Chairman Sindh Cooperative Housing Authority. It is urged that there is a serious apprehension that in case ad interim orders on this application are not passed, the plaintiff may either be removed from his service or any other coercive action may be taken against him by the defendant. The bailiff‟s report dated 9.4.2014 shows that the defendants have been duly served. Till the next date of hearing, the defendants are directed to maintain status quo. To come up on 25.4.2014.” 235. On 29.5.2014, the learned Judge in Chambers (Justice Mohammad Shafi Siddiqui) while dismissing the suit passed the following order:- “Mr. Ghulam Akbar Jatoi Advocate undertakes to file power (of Attorney) on behalf of plaintiff. Adjournment application has been filed by the previous Counsel for the plaintiff who is stated to be unwell. The application is taken on record. Office is directed to assign CMA number to this application. However, the application is dismissed on account of the fact that plaintiff has engaged another Counsel. The plaintiff is also present in person who confirms that he has engaged Mr. Ghulam Akbar Jatoi. Learned Counsel for the plaintiff argued that this suit has been filed to rectify the error in the date of birth of the plaintiff as 2.4.1956 instead of 2.4.1954. It is contended by Mr. Jatoi that alongwith the plaint they have filed certificate of Matric, Board of Intermediate, NIC as annexures and has also shown smart card recently issued. He also states that even in the old and new passports the date of birth is mentioned as 2.4.1956. He submits that it is the right of the plaintiff to get the date of birth corrected in all official records including the service record. Learned State Counsel has assisted this Court and submits that the Annual Confidential Report is being issued since he became civil servant and joined the service and he has been mentioning his date of birth as 2.4.1954 and as such this delay in rectification of the service record is uncalled for and it only smelts malafide. Learned State Counsel further submits that in terms of Rule 12A of the Civil Servants CRP.No.193/2013 etc 143 (Appointment, Promotion and Transfer) Rules, 1973 the date of birth once recorded at the time of joining government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible. Learned Counsel for the intervener also relied upon recent pronouncement of Hon‟ble Supreme Court and submitted that suit is not maintainable. Heard the learned Counsels and perused the record. Admittedly the certificates as well as the identity card which are annexed with the plaint show the date of birth of the plaintiff as 2.4.1956, however, the question before the Court is not the rectification of date of birth but in fact the question is as to whether such rectification can be made in the service record of the plaintiff. The plaintiff apparently passed CSS in 1983 and became civil servant in 1984 and he has been, since then, maintaining his date of birth as 2.4.1954. Previously before the amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 it was the privilege of the employee to rectify the date of birth in the record including the service record whereas after insertion of Rule 12A which was inserted by SRO 521(1)/2000 dated 31st July 2000 it is not permissible for the applicant/employee to get his date of birth rectified. This question came before the Hon‟ble Supreme Court in the case of Ahmed Khan Dehpal vs. Government of Balochistan (2013 SCMR 759) wherein it is observed that after so many years the idea to have the date of birth altered appeared to be an afterthought of the civil servant. In this case also it is almost after 30 years of service when it revealed to plaintiff that his actual date of birth is 2.4.1956. It was observed by the Hon‟ble Supreme Court that the question was as to how the civil servant, who joined the service in 1982, could not know about his actual date of birth despite the passage of more than two decades, especially when at various stages during his studies as well as service he filled many examination forms, pro formas as well as service book. In the judgment of the Hon‟ble Supreme Court the case of the employee/civil servant was that even in the documents of Matric and Intermediate certificates date of birth was wrongly mentioned whereas in the instant case learned Counsel for the plaintiff pleaded that though the date is rightly mentioned, however in the service record it is wrongly mentioned as 2.4.1954 instead of 2.4.1956. In view of the amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules 1973 such right of correction in the date of birth was taken away absolutely and it was clarified that once the date of birth in the record at the time of joining is mentioned the same shall be final and no alteration is permissible. Such insertion of 12A is logical as at the twilight of the career it could only be termed as malafide. The instant suit filed by the plaintiff is not CRP.No.193/2013 etc 144 simplicitor a correction of the date of birth in fact it is correction in date of birth in the service record. Had it been simple suit for declaration that his date of birth is to be rectified, Rule 12A of 1973 would not have been applied but in instant case, service record was sought to be corrected and in terms of Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 such is barred. The strength and power of Rule 12A is statutory. The issue of maintainability of the suit was framed earlier and parties were also put on notice. Even on the last date the plaintiff was present alongwith his Counsel and also today he is present alongwith his newly engaged Counsel and I appreciate that he and his Counsel tried to assist the Court. As far as the maintainability of the suit is concerned, the point involved has already been decided in the case referred above and in view of the judgment of the Hon‟ble Supreme Court the suit is not maintainable. The suit is therefore, dismissed along all pending applications. The plaintiff seems to have reached the age of superannuation on 1.4.2014 and hence any salary, perks, privileges or any other benefits availed subsequent to the age of superannuation shall be returned forthwith.” 236. On 3.6.2014, Ali Ahmed Lund, filed High Court Appeal No.157 of 2014, challenging the order of the learned Single Judge, who dismissed his Suit. On 11.9.2014, the High Court Appeal was fixed for Katcha Pashi before learned Division Bench-V, comprising Justice Hassan Azhar Rizvi and Justice Aziz-ur-Rehman, which was allowed in the following terms:- “Today parawise comments have been filed on behalf of Respondent No.2 which are taken on record. Learned counsel for Appellant states that impugned order was passed on 29.5.2014 when inter-alia the injunction application was fixed for hearing. Per learned Counsel, no proper opportunity was given to the counsel for the Appellant to argue his case. In view of the pro and contra pleas raised before the learned trial court requires evidence, thereore, after setting aside order dated 29.5.2014, we remand the case to the learned trial court to decide the controversy involved afresh. The notification however, issued by the Respondent regarding the appointment of officer in place of the Appellant shall not be effected or otherwise be prejudiced in any manner. Appeal stands disposed of a/w the pending application. Petition No.d-2386/2014 tagged with this case is hereby de-tagged and the same be heard on 23.1.2014” CRP.No.193/2013 etc 145 237. On 21.11.2014, after remand another Injunction Application was filed by the Plaintiff Ali Ahmed Lund, who stood retired on 1.4.2014, pursuant to the notification issued by his parent Department i.e. Ministry of Trade and Commerce, which was allowed, by the learned Judge (Mr. Justice Saeeduddin Nasir) in Chambers, in the following terms:- “In view of above observations the operation of order dated 9.4.2014 is suspended till the next date of hearing. The defendant No.4 may allow joining the plaintiff as well as posting order in accordance with joining order dated 12.9.2014. This order shall not have any adverse affect on the appointment of any officer in place of the appellant.” 238. We have noticed that the Counsel representing the State did bring to the notice of the learned Judge in Chambers of the High Court the case of Ahmed Khan Dehpal vs. Government of Balochistan (2013 SCMR 759), which was not taken note of. We can safely assume that neither the learned Judge in Chambers nor the Appellate Bench have carefully read the provisions of Section 4 (1) of the Federal Service Tribunal Act 1973 which confers exclusive jurisdiction upon the Federal Service Tribunal to adjudicate upon the matters relating to the terms and conditions of service of a Civil Servant inclusive of the disciplinary proceedings. Article 212 of the Constitution places fetters on the jurisdiction of a Civil Court and a High Court to entertain matters relating to terms and conditions of service of a Civil Servant. We have already dealt with the scope of Article 212 of the Constitution separately. The mode of correction in the date of birth of a Civil Servant is provided under Rule 12A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which is part of terms and conditions of service of a Civil Servant and cannot be resorted to CRP.No.193/2013 etc 146 through the Civil Suit. It has also been well established by now that a Civil Servant cannot seek alteration in his date of birth at the verge of his retirement or otherwise in a suit and in this respect principles laid down in the case of Dr Muhammad Aslam Baloach vs Government of Balochistan (2014 SCMR 1723) are fully attracted. 239. Ali Ahmed Lund was a Civil Servant from the Federal Government, serving in Trade and Commerce Group since 1984 and was on deputation with the Sindh Government when he filed the Constitutional Petition and the Suit before High Court of Sindh. He was required to approach the Federal Service Tribunal for redressal of his grievance. The learned Judge in Chambers and the Appellate Bench misdirected themselves while holding that issue of alteration in date of birth requires factual enquiry and, therefore, Suit was competent. By Section 3(3) of the Sindh Service Tribunals Act, the Tribunal has been conferred exclusive powers of a Civil Court while holding enquiry. This aspect of the matter lost sight by the two forums while passing the orders in Suit and in the High Court Appeal coupled with the bar of jurisdiction under Article 212. The learned Judge in Chambers overlooked the fact while directing the Sindh Government to allow joining and give posting order to Ali Ahmed Lund who was on deputation. A deputationist cannot seek his posting in a borrowing department once he was relieved of his duties for any reason. The High Court of Sindh was not competent to entertain Suit of the nature for correction of the date of birth, which form part of terms and conditions of service in view of the bar contained in Article 212 of the Constitution. CRP.No.193/2013 etc 147 240. We for the aforesaid reasons, are of the considered view that Ali Ahmed Lund, who remained on deputation in Sindh for more than 15 years according to the brief note provided to us by S&GAD, could not competently file a Civil Suit or Constitutional Petition which he had withdrawn on 27.10.2014, seeking alteration in his date of birth that too at the verge of his retirement. Thus for the aforesaid reasons, the Civil Suit No.519 of 2014 stands abated. However, it will be open for the Plaintiff to approach this Court through a Review Petition, if he feels aggrieved of this judgment. Suit No.1052 of 2014 (Mir Aijaz Hussain Talpur) 241. Mir Aijaz Hussain Talpur, an officer of the District Management Group, who was serving on deputation in the Province of Sindh, filed Suit in the High Court of Sindh. He was posted as Secretary, Co-operation and on his transfer, he filed the aforesaid Civil Suit on 10.6.2014, with the following prayer:- a) To declare that the notification No.SO- I(SGA&CD)-3/65/93 dated 23.11.2013 issued by the defendant No.1 on a closed weekly holiday i.e Saturday the 23rd November, 2013 thereby removing/transferring the plaintiff from the post of Secretary Co-operation, being in gross violation of rule 35 of the Sindh Government Rules of Business, Esta Code, Civil Servants Act, 1973 the Rules made thereunder and Articles 5, 9, 189 & 190 of the Constitution of Pakistan is ab-initio, illegal unlawful and void and as such is liable to be struck down. b) To grant mandatory injunction, suspend the operation of the impugned order No.SO(SGA&CD)-8/2/2005 Karachi dated the 2nd January 2014 being ab-initio as well as to suspend all the orders, transfers postings and whatever and direct the defendant No.1 to reinstate the plaintiff forthwith on his original posting i.e Secretary Co-operation. c) To grant mandatory injunction, suspend the operation of the order dated 3.6.2014, vide No.SGA&CD-8/2014 government of Sindh Services, Karachi and declare the same ab- CRP.No.193/2013 etc 148 initio null and void and direct the defendant No.11 and 5 to transfer and post the plaintiff as Secretary Co-operation, Government of Sindh. d) To grant permanent injunction restraining the defendants, their subordinates officers successors, authorities or any other officer claiming on their behalf from taking any coercive action against the plaintiff including but no limited to taking any coercive actions, departmental action transferring or initiating any criminal case FIR or placing the Plaintiff as OSD or to do anything which is detrimental to the reputation dignity as well as career of the Petitioner. e) To hold and declare that neither any suspension order dated 10.1.2014 against the plaintiff is in force nor his suspension notification 13.5.2014 was notified by Sindh Government timely as such the plaintiff is not lying under suspension and he is entitled to hold the post of Secretary Cooperation Department wherefrom he was illegally removed and suspension notification dated 13.5.2014 does not carry any legal value being null and void. f) To grant such other better relief which this Honorable Court may deem fit and proper under the circumstances of the case. g) To grant cost of the suit and cost. h) Any other relief which honorable Court may deem fit to grant.” 242. On 21.11.2014, the learned Judge in the Chambers (Justice Saeeduddin Nasir) granted ad interim relief to the Plaintiff, relevant para of the order is reproduced below:- “2. In view of the submissions made by the learned counsel for the plaintiff, the defendants are restrained from taking any departmental action including transferring or initiating any criminal case against defendant or placing the plaintiff as OSD or to do anything which is detrimental to the reputation and dignity of the plaintiff. 3&4. The operation of the Notifications No.SO-1 (SGA&CD)-3/65/93 dated 23.11.2013, impugned order No.3/1-0/2013 D-1, Islamabad dated 10.01.2014 Order No.SO-1(SGA&CD)-8/2/2005 dated 13.5.2014 is suspended till next date of hearing.” CRP.No.193/2013 etc 149 243. One Shahzar Shamoon, Defendant No.3 in the Suit, a civil servant from Sindh, challenged the above order in High Court Appeal No.288 of 2014, which was fixed on 24.11.2014, before a learned Division Bench of the High Court of Sindh, comprising Justice Hassan Azhar Rizvi and Justice Aziz-ur-Rehman. After hearing, the learned Bench passed the following order, partially suspending the order dated 21.11.2014 passed in Suit No.1052 of 2014 of Mir Aijaz Talpur:- “1. Urgent application is allowed. 2. Deferred for the time being. 3. Exemption is allowed subject to all just exceptions. 4&5. Learned counsel for the appellant has drawn our attention to the order dated 10.1.2014 passed in C.P.No.D-4971/2013 whereby petition was dismissed wherein Notification No.SOI(S&GAD)-3/65/93 dated 23.11.2013 has been challenged, certified copy of the order is enclosed as Annexure „C/1‟ at page 99 of the file. Learned Counsel for the appellant contends that respondent No.1 filed another petition bearing C.P.No.D-2386/2014 and almost with the same prayer the respondent No.1 filed Suit No.1052/2014. The said suit was fixed in Court on 3.4.2014 and the Court has directed the counsel for respondent No.1 to satisfy the Court on the maintainability of that suit, however, the respondent No.1 by suppressing material facts and by misleading the trail Court has succeeded to obtain impugned order dated 21.11.2014. Learned Counsel for the appellant has drawn our attention to an order dated 11.9.2014 passed in HCA No.157 of 2014 operative part of the said order is read as under:- “The notification however, issued by the respondent regarding the appointment of officer in place of the appellant shall not be effected or otherwise be prejudiced in any manner. Appeal stands disposed of a/w the pending application.” The learned counsel for the appellant has also drawn our attention to the order passed on the same day by the same learned Judge in Suit No.519/2014, wherein it was observed that “this order shall not have any adverse affect on the appointment of any officer in place of the appellant.” Issue notice to the respondents, learned Advocate General, Sindh and learned DAG for 9.12.2014. Till the next date of hearing, operation of the impugned order dated 21.11.2014 passed in Suit No.1052/2014 enclosed as Annexure „A‟ shall remain suspended.” CRP.No.193/2013 etc 150 244. On 24.11.2014, the matter was placed before Justice Mohammad Shafi Siddiqui, who passed the following order:- “This is an urgent application filed along with application under Order VII Rule 11 CPC. Learned Advocate General contends that in pursuance of the order passed by the Hon‟ble Supreme Court the suit is not maintainable. Notice to the plaintiff for a date to be fixed in the first week of December, 2014. Mr. Faisal Siddiqui files Vakalatnama on behalf of defendant No.3 which is taken on record.” 245. On 1.12.2014, all the applications in the Suit were fixed before Justice Mohammad Shafi Siddiqui, and the following order was passed:- “1. Granted. 2. Mr. Farooqui waives notice of the application, copy whereof has been supplied to him. Counter- affidavit/rejoinder, if any, be filed and exchanged before next date. Since on account of sad demise of Justice (R) Saleem Akhtar the Court work is suspended, the matter is adjourned to 4.12.2014 when learned counsel for the parties are directed to assist the Court regarding maintainability of the suit as prima facie it appears that the relief that is being sought in this suit has already been held to be not maintainable in terms of order passed by learned Division Bench in C.P.No.D-4971 of 2013, operative part of which is available at page 235 of the file. Even otherwise the plaintiff has challenged the transfer and posting, which are within the ambit of terms and conditions of service, and as such there are serious questions regarding maintainability of the suit.” 246. We, after perusal of the aforesaid record in suits and H.C.A, are of the considered view that the issue raised by the parties relates to their terms and conditions of service and cannot be entertained by a High Court either in its Constitutional jurisdiction or in its Original Civil jurisdiction or in High Court Appeal, being barred under Article 212 of the Constitution. We, for the reasons already recorded by us separately on the scope of Article 212 of the Constitution, are of the considered view that the CRP.No.193/2013 etc 151 Suit No.1052/2014, filed by Mir Aijaz Hussain Talpur and the High Court Appeal No.288/2014, filed by Shahzar Shamoon, stand abated for want of jurisdiction of the High Court. However, it would be open for the aggrieved party to approach the concerned Service Tribunal or this Court in Review, if so advised. 247. Before parting with this judgment, we have noticed that a civil servant cannot approach the Service Tribunal unless he exhausts the remedy of departmental appeal/representation under Section 22 of the Sindh Civil Servants Act, 1973. Section 4 (i) (a) of the Sindh Service Tribunals Act, 1973, provides that a Civil Servant can approach the Tribunal, subject to his exhausting remedy under Section 22 of the Sindh Civil Servants Act, after lapse of 90 days from the date on which such appeal/application was so preferred. In other words, a Civil Servant aggrieved by an order of the department has to file a representation or Appeal within 30 days of passing of such order and if the said authority does not decided his appeal/representation within 90 days, he can prefer an appeal before the Tribunal, after lapse of time as contained under Section 4(a) of the Sindh Service Tribunals Act. These provisions of Section 22 of the Sindh Civil Servants Act and Section 4 of the Sindh Service Tribunals Act require to be re- examined after insertion of Article 10A in the Constitution, as it restricts a Civil Servant from seeking expeditious remedy from the Tribunal which is constituted under the command of the Constitution. 248. We have also examined the service laws of other Provinces and the Federation and find that they have similar provisions in their service laws, as contained in Sindh Service CRP.No.193/2013 etc 152 laws. The provisions of Section 22 of the Sindh Civil Servants Act and the Section 4 of the Sindh Service Tribunals Act, restrict a Civil Servant to get efficacious and expeditious remedy against the order of the department till the expiry of almost 120 days. After the promulgation of Article 10-A, we find it imperative to re-examine the existing law which apparently bars the filing of appeal in the Service Tribunal before the passage of mandatory 90 days, but practically for 120 days. The law also needs to be looked afresh, because writ jurisdiction in the matters relating to terms and conditions of service against the executive by the aggrieved Civil Servant is barred under Article 212 of the Constitution. 249. Moreover, this Court has also time and again emphasized upon reinforcement of good governance and strict observance of rules by the public functionaries. In the case of Syed Mehmood Akhter Naqvi vs. Federation of Pakistan (PLD 2013 SC 195), this Court has clearly reiterated the settled principles of good governance by stating that the public functionaries are not obliged to follow illegal orders of higher authorities. The principle has since been reiterated in order to enforce good governance and adherence to rule of law in public service. 250. However, a situation could and does arise, in which a civil servant may face wrath and vendetta of his superiors, if he refuses to carry out the illegal orders. In such a situation, he has the only right or option to make a representation etc to the concerned authority to seek redress of the wrong committed against him, but in many such cases his representation may be ignored or outright rejected by the authorities under the political influence or for ulterior motives. In that case, an aggrieved Civil CRP.No.193/2013 etc 153 Servant is left with no option but to wait for mandatory 120 days, enabling him to file an appeal etc before the Tribunal. However, in the intervening period, an aggrieved Civil Servant faces un- compensable hardship and damage to his career, name and reputation. 251. As a result of existing disadvantages, cumbersome and prolonged processes of seeking remedies and relief from the administration or Service Tribunal, the honest, efficient and law- abiding Civil Servants are frequently left with a helpless situation of facing victimization at the hands of the administration and political executive, which tremendously affect their morale, motivation, character and even their prospects touching the pinnacle of career by the dint of honesty, efficiency and diligence. 252. In view of the aforesaid problems faced by the Civil Servants due to lengthy process of filing appeal in the Tribunal and availing of relief, it is imperative to provide an efficacious and expeditious alternate remedy to the Civil Servants by way of allowing them to approach the Service Tribunal, Federal or Provincial, without waiting for a period of 90 days, as contained under Section 4 (i)(a) of the Service Tribunals Act, by preferring an Appeal against the orders. Therefore, we are of the view that following issues are required to be answered at the touchstone of Article 10-A of the Constitution:- 1. Whether Section 4(i)(a) of the Service Tribunals Act, restricting a Civil Servant from filing appeal to the Tribunal after lapse of 90 days is violative of the spirit and command of Article 10-A of the Constitution. 2. Whether time frame provided by Section 4 of the Service Tribunals Act, debarring an aggrieved Civil Servant to approach the Service Tribunal amounts to denial of the relief to him in terms of Articles 4, 9 and 25 of the Constitution. CRP.No.193/2013 etc 154 253. We, therefore, for the aforesaid reasons, feel it necessary to take up these issues in suo motu jurisdiction under Article 184 (3) of the Constitution, in separate proceedings as the issues, inter alia, are of public importance and have far reaching effects on the service structure of the Civil Servants in the Federation and the Provinces. 254. This judgment shall also be sent to the Chief Justices of all the High Courts through Registrars for their information, perusal and circulation amongst all the Hon‟ble Judges. This judgment shall also be sent to the Chief Secretaries of all the Provinces as well as the Secretary, Establishment Division, Government of Pakistan, Islamabad, with the direction that they shall streamline the civil service structure in light of the principles laid down in this judgment. In addition, the office shall also send copies of this judgment to the Chairmen of the Federal Service Tribunal, Islamabad and the Sindh Service Tribunal, Karachi, through their Registrars, for information and compliance. Approved for reporting Sohail/Saeed/** Announced in open Court on 05.01. 2015 at Karachi.

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM C.R.P. NO. 1/2014 IN CONSTITUTION PETITION NO. 20/2013 AND C.M.A. NO. 247/2014 AND C.M.A. NO. 2641/2014 IN C.R.P. NO. NIL OF 2014 IN CONSTITUTION PETITION NO. 20/2013 (Action regarding distribution of development funds by ex-Prime Minister Raja Pervez Ashraf) Review on behalf of SNGPL through MD (In CRP 1/2014) Review on behalf of Federation of Pakistan (In CMA 247/2014 in CRP No. Nil of 2014) In Attendance: Mr. Salman Akram Raja, Attorney General Mr. Haq Nawaz, Addl. Secretary Finance Mr. Waqar Rana, Consultant Mr. Dil Nawaz Cheema, Consultant Mr. Faisal, ASC in CRP No. 1/2014 Date of Hearing: 14.05.2014 ORDER C.M.A. NO. 2641/2014 This is an application on behalf of learned Attorney General for Pakistan who wishes to substitute himself with Mr. Shah Khawar, the then Additional Attorney General, who has been elevated. Subject to all just exceptions, this application is allowed. Let the review petition be numbered. CIVIL REVIEW PETITION NO. _______ OF 2014 2. Learned Attorney General for Pakistan submits that the Constitutional intent reflected in Article 84(a) of the Constitution is that in respect of any financial year if an amount authorized to be expended for a particular service for the said year is insufficient, or a need has arisen for expenditure upon some new service, which was not included in the Annual Budget for that year CRP 1/2014 etc 2 or (b) any money has been spent on any service during a financial year in excess of the amount granted for the said service for that year, the Federal Government shall have power to authorize expenditure from the Federal Consolidated Fund, whether the expenditure is charged by the Constitution upon that Fund or not, and shall cause to be laid before the National Assembly Supplementary Budget Statement or, as the case may be, an Excess Budget Statement, setting out the amount of that expenditure, and the provisions of Articles 80 to 83 shall apply to those statements as they apply to the Annual Budget Statement. However, this Court in para 39 of the order under challenge has made an observation which is not only violative of Article 84 of the Constitution but also not in consonance with para 31 & 39 of the order under challenge. Mr. Haq Nawaz, Additional Secretary, Finance, submits that the Prime Minister has surrendered his discretionary powers to allocate funds. 3. Having heard learned Attorney General for Pakistan, we find that the Constitutional intent reflected in Article 84 of the Constitution is explicit in authorizing the Federal Government to use the expenditure from the funds indicated therein and that power is available to the Federal Government both for a service which has already been authorized in the Annual Budget or any new service (Article 84(a) and there is no clog which is indicated in the last line of para 39 to which the learned Attorney General has taken exception, which reads as follows:- “In fact, rule 197 indicates that in the case of supplementary grants, the assent of the National Assembly is to be obtained before these funds are made available.” CRP 1/2014 etc 3 4. Prima facie, the submissions made by learned Attorney General require consideration because in terms of Article 84(a)&(b) of the Constitution, the Constitutional intent ex-facie appears to be that for the exigencies / services mentioned therein, the Federal Government may expend the amount and thereafter the same be laid before the National Assembly in the supplementary budget or the excess budget statement. 5. Let notice be issued to Secretary Finance and the Auditor General for Pakistan for 2.6.2014. In the meanwhile, no discretionary grant shall be granted either by the Prime Minister or the Minister. No funds shall be expended on any scheme at the behest of any MNA or MPA. However, the Federal Government may proceed to grant expenditure in terms of Article 84 of the Constitution, if it is a scheme of national or public interest. Notice shall also issue to all the applicants in the CMAs noted in the judgment under challenge. CIVIL REVIEW PETITION NO. 1/2014 5. Re-list. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 14th of May, 2014 Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Dost Muhammad Khan Criminal Petition No.210 of 2015 Muhammad Haroon ur Rasheed … Petitioner(s) Versus The State and another … Respondent(s) For the petitioner(s): Syed Rafaqat Hussain Shah, AOR For the State: Mian Arshad Jan, Addl. AG, KP Mr. Jehangir, AD(Social Welfare), KPK Mr. Mujahid Khan, AD (Industries) Complainant: In person. On Court’s notice: For the Federation: Mr. Sajid Ilyas Bhatti, DAG with Mr. Hamid Ali Khan, National Coordinator, NACTA For Govt. of Balochistan: Mr. Muhammad Ayaz Khan Swati, Addl. AG For Govt. of Punjab: Mr. Razzaq A. Mirza, Addl. AG Mr. Muhammad Yasrab Hanjra, DG (Social Welfare) Mr. Tariq Ismail, Law Officer (Social Welfare) Mr. Muhammad Aslam Maitla, DO (Social Welfare) Khawaja Nadeem Iftikhar, ALO (Industries) For Govt. of Sindh: Mr. Shehryar Qazi, Addl. AG Raja Abdul Ghafoor, AOR Dr. Saeed Qureshi, Focal Person to Chief Secretary. For the L&JCP: Mr. Muhammad Sarwar Khan, Secretary Date of hearing: 22.07.2015 ORDER Muhammad Haroon ur Rasheed, the petitioner herein seeks bail in case FIR No.39 dated 28.01.2015 registered under Section 489-F PPC at P.S. SMA, Tank. We were not inclined to grant bail in view of the circumstances which have come to light in this case. Therefore, learned counsel for the petitioner requests that the record of the case presently with the Additional Advocate General may be ordered to be sent back to the trial Court so that the trial can be proceeded with. The learned Law Officer for KP shall retain a copy of the record and transmit the original back to the trial Court which may proceed in the matter and decide the case expeditiously. Crl. P. 210 of 2015 2 2. The learned DAG has submitted a report (Crl.M.A. 743/2015). The Secretary LJCP has pointed out that statistical information had been sought from the five governments so that baseline data could be established. However, according to him, the requisite information has not been furnished by the governments concerned. Some reports have been filed in Court today. Upon a cursory examination of the same, there appears to be some lack of urgency. For instance, the Joint Investigation Directorate (JID) has still not been established or made functional. The National Coordinator is present and states that the funding required is two billion approximately. On 18.03.2015 a summary was sent to the Prime Minister for approval but the same was returned in April, 2015 with some observations. On 6.5.2015 a revised summary was sent by NACTA to Prime Minister but the same also was returned with comments. For the third time on 9.7.2015 a second revised summary has been sent which is awaiting decision by the government. The National Coordinator has also stated that the existing budgetary allocation of rupees one hundred million is grossly insufficient even for meeting the salaries and operating costs of NACTA. According to him, the organization is under-staffed and cannot perform the function of coordination without the requisite funding. 3. The report submitted by the learned DAG also shows that immediately after the announcement of National Action Plan on 24.12.2014 a sub committee was constituted in terms of Item No.6 of the National Action Plan for the purpose of choking the financing for terrorists and terrorist organizations. It is in this context that relevant statistical data has not as yet been furnished by any of the governments to the Secretary LJCP. As a consequence, the on-ground monitoring of NGos/INGOs is not evident. The governments shall, therefore, expedite their efforts to gather the relevant data and furnish the same to the Secretary LJCP who shall collate the data and submit a report before the next date of hearing. 4. The learned Law Officer for government of Balochistan has candidly conceded that there is no information or data currently available with the government in connection with the sources of funding and the expenditure by NGOs/INGOs, operating within Balochistan. The same is the position with the government of KP. The learned Law Officer, KP has, however, pointed out that in connection with an NGO namely Baran it has been found that funds was received in its account in MCB, Kohat Road, Peshawar. From MCB, Peshawar the funding was traced to Standard Chartered Bank, Peshawar. Thereafter, the money trail went Crl. P. 210 of 2015 3 dead. This is just one out of ten thousand NGOs operating in KP. The learned Law Officer states that a report has been prepared pursuant to the previous order but the same has not as yet been filed. Let the same be filed before the next date of hearing. 5. The government of Punjab, however, appears to have made some progress in gathering the relevant data. A report (Crl.M.A. 745/15) has been filed in Court. Let a copy of the same be supplied by the Additional AG to the Secretary LJCP today. 6. The learned Law Officer of the Sindh government states that the state of affairs and information/data gathering in respect of NGOs/INGOs in the Province of Sindh is not satisfactory. Currently he has submitted a report. Let a copy of the same be supplied by the Addl. AG to the Secretary LJCP who may go through the same and submit a report before the next date of hearing. 7. Re-list on 28.07.2015. Judge Judge Islamabad, The 22nd July, 2015 M. Azhar Malik/*

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL C.R.P.NO.218 OF 2013 IN C.P.NO.1033 OF 2013 (On review of this Court’s order dated 09.07.2013 passed in C.P.No.1033/2013) Allah Dino Khan Bhayo …Petitioner(s) VERSUS Election Commission of Pakistan etc. …Respondent(s) For the petitioner(s): Mr. Wasim Sajjad, Sr. ASC For Federation of Pakistan: Ch. Aamir Rehman, Additional Attorney General For ECP: Mr. M. Arshad, D.G. Law For respondent No.5: Raja M. Ibrahim Satti, Sr. ASC Date of hearing: 04.02.2020 … ORDER UMAR ATA BANDIAL, J.- The question in issue is whether a finding dated 03.12.2007 given by the Returning Officer against the petitioner in summary proceedings held for scrutiny of nomination papers during general elections is final and binding for the purpose of permanently disqualifying the petitioner from contesting any general election under Article 62(1)(f) of the Constitution. The said finding concludes that the equivalence certificate issued by Shah Abdul Latif University, Khairpur about the petitioner’s claimed sanad was fake thereby disqualifying the petitioner from contesting the election from PS-12 Shikarpur-II in 2008. As a result, the petitioner stepped out of the elections and did C.R.P.No.218 of 2013 in C.P.No.1033 of 2013 -: 2 :- not challenge the finding by the Returning Officer. In 2007 Article 62(1)(f) of the Constitution read as follows: “62. A person shall not be qualified to be elected or chosen as a member of Majlis-e- Shoora (Parliament) unless – …………………………………………………………… (f) he is sagacious, righteous and non- profligate and honest and ameen” However, the 18th Amendment to the Constitution amended Article 62(1)(f) in the year 2010 to incorporate a condition that only a declaration, inter alia, of dishonesty given by a court of law could disqualify a candidate from contesting elections to the Parliament or a Provincial Assembly. The amended Constitutional provision reads as under: “62. (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e- Shoora (Parliament) unless – …………………………………………………………… (f) he is sagacious, righteous and non- profligate, honest and ameen, there being no declaration to the contrary by a court of law” 2. The petitioner got elected as a member of the Sindh Provincial Assembly in the year 2013. However, on a complaint filed against him, the Election Commission of Pakistan (“ECP”) in exercise of its powers under Section 103-AA of the Representation of People Act, 1976 (“ROPA”) declared vide order dated 11.06.2013 that the petitioner was disqualified, inter alia, under Article 62(1)(f) of the Constitution to contest in the general election of 2013. The decision was based on the aforementioned finding recorded against the C.R.P.No.218 of 2013 in C.P.No.1033 of 2013 -: 3 :- petitioner by the Returning Officer on 03.12.2007 which had ousted him from the corresponding general election held in 2008. The petitioner’s challenge to the said finding was ultimately rejected by this Court which upheld the order of the ECP vide judgment dated 09.07.2013 reported as Allah Dino Khan Bhayo Vs. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655). 3. In this review against our judgment dated 09.07.2013, the question for our consideration is whether the finding by the Returning Officer given during scrutiny of nomination papers qualifies as a declaration given by a court of law within the terms of Article 62(1)(f) of the Constitution. This is important because by the year 2013 a few judgments by the Supreme Court including Malik Iqbal Ahmad Langrial Vs. Jamshed Alam (PLD 2013 SC 179) and Abdul Ghafoor Lehri Vs. Returning Officer, PB-29 (2013 SCMR 1271) had interpreted and held the unamended terms of Article 62(1)(f) to permanently disqualify a non-compliant candidate. 4. Both sides have relied upon the judgment delivered by a larger bench of this Court reported as Sami Ullah Baloch and others Vs. Abdul Karim Noursherwani and others (PLD 2018 SC 405) to advance their rival pleas with respect to the review of our judgment dated 09.07.2013. Learned counsel for the petitioner has referred the said authority to assert that the petitioner’s disqualification under Article 62(1)(f) of the Constitution cannot be permanent unless his disability under the said Article is declared by a court of law. Conversely, the respondents claim that our above mentioned judgment in the Sami Ullah Baloch case has approved our judgment dated 09.07.2013 that is now under review before us. The C.R.P.No.218 of 2013 in C.P.No.1033 of 2013 -: 4 :- endorsement by the larger Bench has fortified the view expressed in the judgment under review. In Sami Ullah Baloch’s case this Court affirmed the rule that Article 62(1)(f) of the Constitution creates a permanent bar against contesting the general election. However, the impact of the change made by the 18th Amendment in Article 62(1)(f) of the Constitution and its legal effect was noted in paragraph 23 of the said judgment. This is reproduced as below: “23. …In the present context, the conditions and qualifications in Article 62(1)(f) of the Constitution were retained in toto; and made objectively and transparently enforceable by the prescription of a judicial declaration for precipitating the loss of the electoral qualification specified in the said clause. Where a declaration made by a Court of law against a candidate for election warrants a conclusion of his misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. to be derived from such a verdict, then it stands to reason that the consequential incapacity imposed upon the candidate for election should last for as long as the declaration is in force.” (emphasis added) The foregoing view with respect to a judicial declaration is elaborated in paragraph 35 of the judgment which holds that: “35. It is clear from the findings recorded in the afore-noted four judgments by this Court that the absence of a time limit for the ineligibility of a candidate for election in Article 62(1)(f) of the Constitution is the basis for holding his incapacity to be incurable by efflux of time. The reasons recorded in our judgment reinforce that conclusion. It may also be noted C.R.P.No.218 of 2013 in C.P.No.1033 of 2013 -: 5 :- that the Constitution envisages other situations in which a permanent bar to the eligibility of a candidate for election is enforced so long as the judgment that records or justifies the disability of the candidate remains in existence and occupies the field. This view is supported by Articles 63 (1)(a) and 63(1)(b) of the Constitution that provide disqualifications on account of judicial declaration regarding the mental unfitness or the undischarged insolvency of a candidate for election. These disabilities also continue so long as the adverse judgment is in the field. Finally, it may be noted that the prescription by the 18th Constitutional Amendment of an adverse judicial declaration to precipitate the ineligibility of a candidate for election has provided a lawful, transparent and fair mechanism to a candidate under challenge both for contesting and for avoiding the onset of an embargo on his eligibility to contest elections. The restriction imposed by Article 62(1)(f) of the Constitution for the eligibility of a candidate for election to Parliament serves the public need and public interest for honest, upright, truthful, trustworthy and prudent elected representatives. The judicial mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself.” (emphasis added) 5. The upshot of the said judgment is that a disqualification under Article 62(1)(f) of the Constitution can only be imposed by or under a declaration made by a court of law. By such prescription Article 62(1)(f) creates a lawful, transparent and fair mechanism for an election candidate to contest an allegation that he is disqualified under one or more of the grounds listed in the said Constitutional provision. Accordingly, in the case reported as Sardar Yar C.R.P.No.218 of 2013 in C.P.No.1033 of 2013 -: 6 :- Muhammad Rind Vs. Election Tribunal Balochistan, Quetta and others (PLD 2020 SC 137) this Court held that a judicial declaration disqualifying a candidate under Article 62(1)(f) of the Constitution must necessarily be based on oral or documentary evidence. In the case reported as Imran Ahmad Khan Niazi Vs. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265), the learned Judge speaking for the majority elaborated that even an Election Tribunal can only disqualify a candidate when its declaration is issued on the basis of evidence before it. Such a requirement is implicit in Article 10A of the Constitution which makes both due process and fair trial a fundamental right in lawful judicial proceedings. Thus the determination of a dispute relating to a right or liability, the recording of evidence including the right of cross-examination, a hearing of the arguments of the parties and a reasoned judgment are essential attributes of a court of law (ref: Tariq Transport Co., Lahore Vs. Sargodha Bhera Bus Service (PLD 1958 SC (Pak) 437) and Mollah Ejahar Ali vs Government of East Pakistan (PLD 1970 SC 173). 6. It is evident that the summary finding given by the Returning Officer against the review petitioner in the year 2007 did not comply with the requirement laid out in Article 62(1)(f) of the Constitution as amended in the year 2010, namely a declaration by a court of law. This is because a Returning Officer does not record evidence in his proceedings which are summary in nature. His finding, unless set aside, is therefore valid only for the corresponding election. In these circumstances, the doctrine of res judicata would also be inapplicable to the finding of the Returning Officer because although the said finding remained unchallenged, the same was given without the recording of evidence including the right of cross- examination. His finding thus lacked the attributes of a declaration C.R.P.No.218 of 2013 in C.P.No.1033 of 2013 -: 7 :- given by a court of law. (ref: Roshan Ali Buriro Vs. Syed Murad Ali Shah (2019 SCMR 1939). Both these conditions: one that evidence is recorded before a court of law and two, that a finding given by such court is based on the evidence on record, are essential for a finding with binding effect to be governed by res judicata (ref: Section 11 of the Code of Civil Procedure, 1908 and Muhammad Saleem Ullah Vs. Additional District Judge, Gujranwala (PLD 2005 SC 511). 7. According to settled law, the amended provision of Article 62(1)(f) is effective prospectively from the date of its enforcement. This provision governs all disqualification claims that arise after its promulgation in the year 2010. In the present case, disqualification of the petitioner was sought in the general election held in 2013 when a declaration by a court of law was necessary to attract the Constitutional disqualification. On the other hand, the finding given by the Returning Officer in the present case was rendered in 2007 prior to the amendment in Article 62(1)(f) of the Constitution. Such a finding was not a verdict given after a trial by a court of law; namely, for the purposes of this case, an Election Tribunal or a Court of plenary jurisdiction. Since the forum of the Returning Officer lacks the attributes of a court of law therefore the electoral disqualification imposed on the review petitioner under Article 62(1)(f) of the Constitution ceased to be effective after the 18th Amendment. The said impact of the 18th Amendment went unnoticed in our judgment under review dated 09.07.2013 thereby constituting an error apparent on the fact of the record. 8. Having said that, a finding of dishonesty remains an ignoble impediment against the election of the petitioner. Therefore, it must be overcome by the petitioner if at any stage in the future he wishes to contest elections. An allegation of dishonesty based on the certificate of Shah Abdul Latif University, Khairpur rather than the C.R.P.No.218 of 2013 in C.P.No.1033 of 2013 -: 8 :- finding of the Returning Officer dated 03.12.2007, may still be invoked against the petitioner. This would involve the allegation that the petitioner committed forgery in the year 2007 by falsely claiming his educational qualification to be equivalent to a graduation degree. As this allegation remains unchallenged and unrebutted by the petitioner till date, any aggrieved party can in future object before the competent forum that dishonesty of the petitioner is apparent from the University’s finding to the effect that he relied on a fake equivalence certificate for his sanad issued by a madrassa. 9. In view of the foregoing, this review petition is allowed and the observation that the petitioner is disqualified under Article 62(1)(f) of the Constitution in the circumstances of the case is recalled. JUDGE JUDGE JUDGE Islamabad, the 4th of February, 2020 Approved for reporting Waqas Naseer/Meher LC

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ. MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE SH. AZMAT SAEED. CIVIL REVIEW PETITION NO. 229 OF 2006 IN CIVIL APPEAL NO. 802 OF 2006. (On review against the judgment dt. 25.09.2006 passed by this Court in Civil Appeals No. 613, 614, 782, 802 and 825 of 2006). Rana Muhammad Naveed and another. …Petitioners Versus Federation of Pakistan thr. Secy. M/o Defence. …Respondent For the petitioners: Mr. Hashmat A. Habib, ASC. Mr. M. S. Khattak, AOR. For M/o Defence: Mr. Mujeeb-ur-Rehman, ASC. Col. Tahir. Maj. Shahjehan, JAG Branch. Date of hearing: 28.02.2013. (Judgment Reserved). J U D G M E N T EJAZ AFZAL KHAN, J.-- This civil review petition has arisen out of the judgment dated 25.09.2006 of this Court, whereby Civil Appeal Nos. 782 and 825 were dismissed. 2. Brief facts of the case relevant for the purpose of this case are described in para 3 of the judgment under review which read as under :- “3. Civil Appeals No. 782, 802 and 825 of 2006. – Appellants Zubair Ahmed @ Tauseef, Rashid Qureshi @ Tipu @ Ibrahim, Ghulam Sarwar Bhatti @ Salahuddin, Ikhlas Ahmed @ Rusi, Naik Arshad Memood (Ex-Number 7351783), Rana Muhammad Naveed, and Ameer Sohail @ Sajjad were found involved in the commission of offence falling within the mischief of Section 31(d) read with Section 59 of the Pakistan Army Act [herein after referred to as “PA Act”], for seducing and attempting to seduce persons in the Military Force of Pakistan from their CRP. 229/06 in CA.802/06. 2 allegiance to the Government of Pakistan, as such, they were arrested and tried by the Field General Court Martial. They were adjudged guilty for the offences for which they were charged with, as such sentences of imprisonment for life were awarded to them. Which were confirmed by the confirming authority. In the appeals filed by them, the Appellate Court while dismissing their appeals enhanced their sentences from life imprisonment to death. Ultimately, they approached the High Court by filing Writ Petitions, but the same have been dismissed by means of impugned judgments being not entertainable under Article 199 (3) of the Constitution of Islamic Republic of Pakistan [herein after referred to as ‘the Constitution’]”. 3. Learned counsel appearing on behalf of the petitioners contended that he may not have any cause against the conviction and sentence awarded by the Field General Court Martial but he would certainly have one against the Court of appeals exercising powers under Section 133-B of The Pakistan Army Act, 1952. Such Court, the learned counsel added, has the power to accept or reject the appeal in whole or in part; substitute a valid finding or sentence for an invalid finding or sentence; annul the proceedings of the Court Martial on the ground that they are illegal or unjust; remit the whole or any part of sentence or reduce or enhance the same when there is an appeal before it in terms of Section 133-B. But it has no power, argued the learned counsel, to enhance a sentence when there is no appeal before it in terms of the section mentioned above. He next contended that such Court, even if there is an appeal before it, cannot enhance a sentence, without giving the convict an opportunity to show cause as to why his sentence should not be enhanced. Any enhancement made without giving such opportunity to the convict, argued the learned counsel, would amount to condemnation without hearing which is violative of the principle of natural justice enshrined in the maxim audi alteram partem and the provisions of the Constitution of CRP. 229/06 in CA.802/06. 3 Islamic Republic of Pakistan ensuring due process of law, and that the judgment omitting to take notice of this essential aspect of Criminal Jurisprudence, is liable to be reviewed. 4. Learned counsel appearing on behalf of the respondent contended that when it has been observed by this Court in para 27 of the judgment under review that the Court of appeal has power to enhance sentence, enhancement of sentence being covered by the words used in Section 133-B (2)(f) of the Act cannot be termed as an act without jurisdiction or coram non judice. When we asked the learned counsel for the respondent as to what is the time for filing an appeal before the Court of appeal, he by reading out the words from Section 133-B (1) submitted 40 days from the date of announcement of finding or sentence or promulgation thereof which ever is earlier. When we asked as to what is the date of announcement of finding, he without a moment’s hesitation mentioned 21st July, 2005. When we asked what is the date of filing appeal before the Court of appeals, the learned counsel after seeing the relevant record submitted that Ameer Sohail filed an appeal on 2nd September, 2005 while Rana Muhammad Naveed filed an appeal in the form of a letter on 26.11.2005. When asked whether these appeals could be said to have been filed within time as prescribed in Section 133-B of the Act, the reply of the learned counsel was in no, in case the time is reckoned from the date of announcement of finding or sentence. He, however, added, that in case it is reckoned from the date of confirmation of finding or sentence, the appeal of Ameer Sohail was within time. He, however, conceded hat the appeal filed by Rana Muhammad Naveed was not within time, whether it is CRP. 229/06 in CA.802/06. 4 reckoned from the date of announcement of finding or sentence or confirmation thereof. When asked what nexus confirmation has with the time prescribed for filing an appeal when it according to the section mentioned above would run either from announcement of finding, sentence or promulgation thereof whichever is earlier, he could not give any satisfactory reply except asking us to read Rules 54 to 58 of The Pakistan Army Act Rules, 1954. We carefully and even critically read the rules mentioned above but did not find anything therein which could either substantiate the stance of the learned counsel or suggest any other mode of reckoning time. The mode spelt out by the section for reckoning time gets added strength when it is read together with Sections 124 and 131 of the Act. When we asked, whether an opportunity to the convicts to show cause as to why their sentence should not be enhanced was ever given even if it is assumed that they filed appeals in terms of Section 133-B of the Act, the reply of the learned counsel was again in no. 5. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties. 6. Before we proceed to discuss the arguments addressed by the learned counsel for the parties, we would like to refer to Section 133-B which reads as under :- “[133-B. – Court of Appeals for other cases.-- (1) Any person to whom a court martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within forty days from the date of announcement of finding or sentence or promulgation thereof, whichever is CRP. 229/06 in CA.802/06. 5 earlier, prefer an appeal against the finding or sentence to a Court of appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court Martial or field General Court Martial or District Court Martial or Summary Court Martial convened or confirmed or counter signed by an officer of the rank of Brigadier or below as the case may be, and one or more officers, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals: Provided that where the sentence is awarded by the court martial under an Islamic law, the officer or officers so designated shall be Muslims: Provided further that every Court of Appeal’s may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff. 2) A Court of appeals shall have power to – a) accept or reject the appeal in whole or in part; or b) substitute a valid finding or sentence for an invalid finding or sentence; or c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witness; or d) annul the proceedings of the court martial on the ground that they are illegal or unjust; or CRP. 229/06 in CA.802/06. 6 e) order retrial of the accused by a fresh court; or f) remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishments mentioned in this Act. 3) The decision of Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.]” 7. A look at the provision reproduced above would reveal that the Court of appeal has the power to reduce or enhance the punishment but this could only be done when there is an appeal before it in terms of the section reproduced above. An appeal against conviction and sentence could be filed before the Court of appeal within 40 days from the date of announcement of finding, sentence or promulgation thereof. The period of limitation would run from any of them which ever is earlier. Announcement of finding and award of sentence according to the averments made in the concise statement submitted by the learned counsel for respondent is 21st July, 2005. This date was also confirmed by the learned counsel in his statement made at the bar after seeing the relevant record. Dates of filing appeals, according to the aforesaid statements in the case of Ameer Sohail is 2nd September, 2005 while in the case of Rana Muhammad Naveed is 26.11.2005. These appeals, quite obviously, were barred by time. There were thus no appeals before the Court of Appeal in terms of Section 133-B of the Act. Enhancement of sentence could not have been made in a vacuum. Such enhancement is essentially against the principle of CRP. 229/06 in CA.802/06. 7 natural justice enshrined in the maxim audi alteram partem and Articles 4 and 9 of the Constitution. 8. Assuming for the sake of arguments, that there were appeals before the Court of Appeal, yet sentence of imprisonment could not have been converted into that of death without giving an opportunity to the petitioners to show cause why their sentence should not be enhanced. Admittedly no opportunity was given to the petitioners to show cause, why their sentence should not be enhanced. In any case, they were to be informed whether they were being heard against conviction or enhancement of sentence. The sentence thus enhanced would be without jurisdiction and coram non judice. Therefore, it cannot be sustained under any cannons of law and propriety. 9. Yes, Article 199(3) of the Constitution prohibits the High Court from making an order in relation to a person who is a member of Armed Forces of Pakistan or who is for the time being subject to any law relating to any of those forces or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law but not when acts, actions or proceedings which suffer from defect of jurisdiction and are thus coram non judice. The cases of “Federation of Pakistan and another. Vs. Malik Ghulam Mustafa Khar” (PLD 1989 S.C. 26), “Secretary, Ministry of Religious Affairs and Minorities and two others. Vs. Syed Abdul Majid” (1993 SCMR 1171) and “Ghulam Abbas Niazi. Vs. Federation of Pakistan and others” (PLD 2009 S.C. 866) may well be referred to in this behalf. Once we are convinced that the order enhancing sentence is without jurisdiction and coram non judice, it cannot be allowed to hold the field notwithstanding it CRP. 229/06 in CA.802/06. 8 surfaced during the course of hearing a review petition. The error being patent on the face of the judgment requires correction for the ends of justice. 10. For the reasons discussed above, this Civil Review Petition is allowed and the sentence thus enhanced is declared without jurisdiction and coram non judice. Chief Justice Judge Judge Announced in open Court at Islamabad on _________________. Judge

IN THE SUPREME COURT OF PAKISTAN (Review/Original Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL REVIEW PETITION NOS.242, 243 AND 245 OF 2012 IN CONST. PETITION NO.5/2012 AND C.M.A. NO.3446 OF 2012 IN C.R.P.NIL/2012 IN CONST. PETITION NO.5/2012 AND CIVIL REVIEW PETITION NO.311 OF 2012 IN C.M.A. 4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A. 5113 OF 2012 IN C.R.P.NIL/2012 IN CONST. PETITION NO.5/2012 AND CIVIL REVIEW PETITION NO.317 OF 2012 IN C.M.A.2492/2012 AND C.M.A.4089 OF 2012 IN CONST. PETITION NO.5/2012 AND C.M.A.3053 OF 2012 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.4135 OF 2012 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.4353 OF 2012 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND CRIMINAL ORIGINAL PETITION NO.54 OF 2013 IN CONST. PETITION NO. 5/2012 AND CRIMINAL ORIGINAL PETITION NO.55 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.65 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.87 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.354 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.1217 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.1218 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.2097 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 2 :- AND C.M.A.2592 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.2146 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.66 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.67 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.68 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.85 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.86 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.2155 OF 2014 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND C.M.A.2108 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND CIVIL REVIEW PETITION NO.38 OF 2013 IN C.M.A.4089/2012 IN CONST. PETITION NO.5/2012 AND CRIMINAL ORIGINAL PETITION NO.71 OF 2012 IN CONST. PETITION NO.5/ 2012 AND CRIMINAL ORIGINAL PETITION NO.82 OF 2012 IN CONST. PETITION NO. 5/2012 AND CRIMINAL ORIGINAL PETITION NO.90 OF 2012 IN CONST. PETITION NO.5/2012 Against order dated 20.09.2012 followed by detailed judgment dated 17.10.2012 of this Court passed in Constitution Petition No.05 of 2012. C.R.P.242 of 2012 Dr. Ahmed Ali Shah and others Vs. Syed Mehmood Akhtar Naqvi and others C.R.P.243 of 2012 Farah Naz Isfahani Vs. Syed Mehmood Akhtar Naqvi and others C.R.P.245 of 2012 and C.M.A.3446 of 2012 Amana Buttar Vs. Syed Mehmood Akhtar Naqvi and others C.R.P.311 of 2012 Begum Shehnaz Sheikh Vs. Syed Mehmood Akhtar Naqvi and others C.M.A.5113 of 2012 Dr. Muhammad Ashraf Chohan Vs. Syed Mehmood Akhtar Naqvi and others C.R.P.317 of 2012 Muhammad Jamil Malik Vs. Syed Mehmood Akhtar Naqvi and others C.M.A.4089 of 2012 Reply of Mr. Umar Cheema, Special Investigative Correspondent, Daily The Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 3 :- News, Islamabad C.M.As.3053, 4135 and 4353 of 2012, 65, 87, 1217, 1218, 66, 67, 68, 85, 86 of 2013 and 2155 of 2014 Syed Mehmood Akhtar Naqvi Crl.O.Ps.54 and 55 of 2013 Syed Mehmood Akhtar Naqvi Vs. Senator Rehman Malik and another C.M.A.354 of 2013 Syed Mehmood Akhtar Naqvi Vs. Federal Government through Secretary Law and others C.M.As.2097 and 2592 of 2013 Syed Mehmood Akhtar Naqvi Vs. Federation of Pakistan and others C.M.A.2146 of 2013 Application for impleadment as Party by Pir Tariq Ahmed, Advocate. C.M.A.2108 of 2013 Application on behalf of Syed Tayyab Hussain & others C.R.P.38 of 2013 Ghulam Mujtaba Rai Vs. Syed Mehmood Akhtar Naqvi and others Crl.O.P.71 of 2012 Syed Mehmood Akhtar Naqvi Vs. Asif Ali Zardari and others Crl.O.P.82 of 2014 Syed Mehmood Akhtar Naqvi Vs. A.R. Rehman & others Crl.O.P.90 of 2012 Syed Mehmood Akhtar Naqvi Vs. Nayyar Hussain Bukhari, Chairman Senate and another For the Petitioners: Mian Abdul Rauf, ASC. (in C.R.P.242/2012) Mr. Wasim Sajjad, Sr. ASC/ Ch. Akhtar Ali, AOR. (in C.R.P.243/2012) Nemo. (in C.R.P.245/2012 and C.M.A. 3446/2012 in C.R.P.Nil/2012) Mr. M. Munir Paracha, ASC a/w Begum Shahnaz Sh., Petitioner. (in C.R.P.311/2012) Nemo. (in C.M.A.5113/2012) Mr. Mehr Khan Malik, AOR (in C.R.P.317/2012) Mr. M. Munir Paracha, ASC. (in C.R.P.38/2013) In Person (in C.M.A.3053, 4135, 4353/2012, Crl.O.P.54, 55, 71, 82, 90/2012 and C.M.A.65, 87, 354, 1217, 1218, 2097, 2592, 66, 67, 68, 85 and 86/2013 and C.M.A.2155/2014.) Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 4 :- Respondents on Notice: Mr. Shoaib Shaheen, ASC (For Dr. Aresh Kumar) Mr. Makhdoom Ali Khan, Sr. ASC (For Murad Ali Shah) Mr. Salman Akram Raja, ASC (For Arif Aziz Sheikh C.M.A.1944/2013 and for Dr. Asim Hussain C.M.A.3581/2013) Sardar M. Aslam, ASC (For Dr. Tahir Jawad & Jamil Malik) Mr. Mehmood A. Sheikh, AOR. (in C.M.A.2108/2013) Syed Asghar Hussain Sabzwari, Sr. ASC. (in Crl.O.P.90/2012) In Person. (in C.M.A.2618/2013) Syed Rafaqat Hussain Shah, AOR. Mr. Sohail Mehmood, DAG. Malik Mujtaba Ahmed, Addl, Director (Law) ECP. Mr. Mehmood Akhtar Naqvi, in-person (in C.R.Ps.) Date of Hearing: 02.05.2018 ORDER IJAZ UL AHSAN, J-. The petitioners in these review petitions seek review of an order of this Court dated 20.09.2012 followed by detailed judgment dated 17.10.2012. Through this order they were declared to be disqualified from being Members of the Parliament (Majlis-e-Shoora)/Provincial Assemblies in view of the fact that they had acquired citizenship of foreign States and had failed to disclose the said fact in their nomination papers and other documents filed with the competent authorities. This Court also held that they had made false declarations before the Election Commission of Pakistan while filing their nomination papers and as such appeared to be guilty of corrupt practices in terms of Section 78 of Representation of Peoples Act, 1976 (RoPA). The Election Commission was accordingly directed to institute legal proceedings against them under Section 82 of the RoPA Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 5 :- read with Sections 193, 196, 197, 198 & 199, PPC in accordance with law. The order directed the Parliamentarians/Members of the Provincial Assemblies who had been disqualified and some of whom are before us in these review petitions to refund all monetary benefits drawn by them for the period during which they occupied the public offices and had drawn their emoluments, etc from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation alongwith other perks. These were required to be calculated in terms of money by the Secretaries of the Senate of Pakistan, National Assembly and the Provincial Assemblies accordingly. 2. The learned counsel appearing on behalf of the review petitioners have unequivocally and in unison contended that they do not challenge petitioners’ disqualification. However, they seek fair and compassionate treatment in the specific facts and circumstances of these petitions and pray that the order under review to the extent of initiation of criminal proceedings and refund of salaries, emoluments and other monetary benefits may be recalled. 3. The learned ASCs have argued that there was no evidence establishing mens rea against the petitioners. Mens rea is not established merely on the ground that they had filed declarations with their nomination papers in the year 2008 to the effect that they were qualified to contest elections and were not disqualified. It has been stated that such declarations were signed by the petitioners in a bona fide Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 6 :- belief that they were qualified and had made faithful disclosures of all facts as per the questions asked in the printed nomination papers. It is maintained that the nomination papers at the relevant time had no column seeking disclosure of the fact as to whether the candidate was a foreign citizen/dual national. It is further argued that in order to support a finding of guilt relating to the offence of corrupt practice in terms of Section 78 of the RoPA and other offences under the Pakistan Penal Code, the element of guilty intent was a sine qua non. It was totally missing in the cases of the review petitioners. It is submitted that at the time of submission of nomination papers the petitioners genuinely believed that they were qualified to contest elections as Members of the Parliament (Majlis-e-Shoora)/Provincial Assemblies. 4. The learned ASCs for the petitioners have further argued that by reason of order dated 20.09.2012 which is sought to be reviewed, the petitioners have been subjected to multiple penalties including disqualification from membership of the Parliament (Majlis-e-Shoora)/Provincial Assemblies, refund/return of salaries and other monetary benefits despite the fact that they had participated in the legislative business of the Parliament/Provincial Assemblies and had earned their salaries and other benefits. In addition, the petitioners have been burdened with liability and culpability under Section 78 of the RoPA read with Sections 193, 196, 197, 198 & 199, PPC. It is further argued that the declarations made by this Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 7 :- Court in positive terms would gravely prejudice the due process rights of the petitioners as enshrined in Article 10A of the Constitution of the Islamic Republic of Pakistan, 1973 and it would not leave any scope for the trial Court to record any different finding. In the presence of such declarations, conviction would be a fait accompli and the petitioners would not get a just, fair and unbiased trial. 5. It has finally been argued by learned ASCs for the petitioners that the salaries/perquisites and TA/DA were not ill gotten gains. These were earned bona fide for the duration of the time during which the petitioners held their respective offices. The learned counsel have relied upon a judgment of this Court rendered in the case Regarding Pensionary Benefits of the Judges of Superior Courts (PLD 2013 Supreme Court 829) and sought the benefit of the majority view which according to them adopts a humane and compassionate approach towards the situation. It is also argued that the sums received by the petitioners have already been spent/expended to meet personal expenses of the petitioners and their families. As such, the petitioners would be unduly burdened and face hardship in returning substantial sums of money which were received by them during a period spread over many years and many years ago and have since been spent. 6. There is no serious contest on the part of the Respondents who appear to be in agreement with the ratio of Judges Pension case and the assertion that the penalties Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 8 :- awarded to the petitioners may be rather harsh considering the facts and circumstances of the present cases. 7. We have heard the learned counsel for the parties and gone through the record with their assistance. It appears that the petitioners who are mostly Pakistani nationals/citizens by birth had acquired citizenship of other countries with a few exceptions where they were born in foreign countries to Pakistani parents and had therefore automatically and without any positive steps on their part acquired nationality of their respective places of birth. It further appears that despite such dual citizenship/ foreign nationality, the petitioners filed nomination papers for elections to the Parliament (Majlis-e-Shoora)/Provincial Assemblies in the year 2008. They filed nomination papers which included a declaration under Oath to the effect that to the best of their knowledge they were not disqualified from contesting elections for the Parliament (Majlis-e- Shoora)/Provincial Assemblies. Such declarations had invariably been signed by the petitioners. It is however equally clear that there was no specific provision/column in the nomination papers that required the petitioners to disclose their foreign nationality/dual citizenship or to state details of the same. 8. It also appears from the record that there was no apparent mens rea or intent on the part of the petitioners to defraud or deceive the authorities at the time of filing of nomination papers. As such, prima facie there is inadequate Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 9 :- material on the record to merit a finding of guilt regarding corrupt practices in terms of Section 78 of the RoPA or other offences under Pakistan Penal Code as has been held in the order sought to be reviewed. It has been argued and we have no reason to disbelieve that at the time of submission of nomination papers, the review petitioners genuinely thought that they were qualified to contest elections to the Parliament (Majlis-e-Shoora)/Provincial Assemblies and did not suffer from any legal or constitutional disqualification. 9. We also notice that through the order sought to be reviewed, the petitioners have been subjected to multiple penalties including disqualification from membership of the Parliament (Majlis-e-Shoora) / Provincial Assemblies, refund /return of salaries and perquisites, etc despite the fact that they after their election took part in the legislative business during the legislative process. It could not therefore be lightly stated that they had unjustly been enriched or got ill gotten gains or received financial benefits by exercising fraud or deception. It may further be noted that the petitioners have also been burdened with the liability and culpability without following due process provided by the RoPA. Further, the declaration made by this Court in positive terms would not leave much scope for the trial Court to inquire into the petitioners’ guilt or otherwise and decide the cases independently. It appears that the decision of this Court may become the basis for action against the petitioners which would undoubtedly prejudice their Constitutional rights. Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 10 :- 10. We have also gone through the declarations required to be submitted with Form-I i.e. nomination paper under the RoPA. We are persuaded to hold that there was no column in the said Form requiring disclosure of foreign nationality/dual citizenship and there was no conscious effort, mens rea or guilty intent on the part of the petitioners to conceal or withhold such information, defraud and deceive the competent authorities and receive and retain ill gotten gains. There is also merit in the argument made by the learned counsel that after their election the petitioners participated in the legislative business, performed the services that they were required to perform and it would neither be just nor fair to hold that they had received and retained ill gotten gains. It is also clear that no sooner did the petitioners hear about the initiation of proceedings and the legal position as enunciated by this Court most of them tendered their resignations and approached this Court with such information. 11. We have also given careful consideration to the ratio of the majority view taken by this Court in the Judges Pension case ibid and find that despite the fact that such judgment is arguably distinguishable, there are certain common and redeeming features that may be taken notice of in these proceedings. In the said judgment, a more humane and compassionate approach was adopted in so far as it was held that the Honourable Judges whose appointments had been held to be void had received salaries and perquisites, etc Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 11 :- under the bona fide belief that they had validly been appointed. They had performed services and must have spent the amounts received by them by way of salaries and perquisites, to meet their expenses and those of their immediate families. Therefore, directing them to refund all such amounts would not only be unfair and unjust but also cause considerable hardship in certain cases. By the same token, we find that the petitioners have been visited with the penalty of disqualification which by itself is a serious punishment. However, in the facts and circumstances of the present cases we have not found mens rea, guilty intent or intention to defraud, deceive or withhold the information which was required to be disclosed knowing that if disclosed such information would debar them from contesting elections for the Parliament (Majlis-e-Shoora)/Provincial Assemblies. The direction issued for criminal prosecution for corrupt practices under the provisions of RoPA and Pakistan Penal Code and return of salaries and perquisites received by the petitioners many years ago has appeared to us to be rather harsh in the peculiar and specific facts and circumstances of these cases. 12. None of the learned counsel for the petitioners has raised or pressed any other ground. The question of interpretation of Article 63(1)(c) of the Constitution has not seriously been raised or argued. Further, they have not challenged or contested petitioners’ disqualification. We, therefore, would not like to discuss or examine the said Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 12 :- question and would defer it to be examined in an appropriate case and proceedings in future. 13. In view of the foregoing, the order of this Court dated 20.09.2012 followed by detailed judgment released on 17.10.2012 sought to be reviewed is modified only to the following extent:- i) All findings recorded in the order dated 20.09.2012 relating to disqualification of the petitioners from being Members of the Parliament (Majlis-e- Shoora)/Provincial Assemblies in terms of Article 63(1)(c) of the Constitution shall remain intact, unchanged, unmodified and in full force. ii) The finding that the petitioners appeared to be guilty of corrupt practices in terms of Section 78 of the RoPA and the direction to the Election Commission to institute proceedings against them under Section 82 of the RoPA read with Sections 193, 196, 197, 198 & 199, PPC are hereby recalled. Any proceedings at whatever stage and any convictions whether or not implemented shall immediately and forthwith stand quashed, recalled and rendered null and void for all intents and purposes as if the same had never been initiated/passed/implemented. iii) The direction of this Court to the extent of refund of monetary benefits drawn by the petitioners for the periods during which they occupied public offices and had drawn their emoluments from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation alongwith other perks to be calculated in terms of money by the Secretaries of the Senate of Pakistan, National Assembly and the Provincial Assemblies stand modified to the extent that each petitioner notwithstanding the amount actually received by him/her in the aforesaid manner shall deposit a token sum of Rs.500,000/- within a period of 30 days from the date of this order with the Secretaries of the Senate of Pakistan, National Civil Review Petitions No.242, 243 & 245 of 2012, etc -: 13 :- Assembly and the Provincial Assemblies as the case may be. iv) A compliance report in this regard shall be sent to the Registrar of this Court for our perusal in Chambers. v) Except and to the extent and in the manner modified hereinabove the order of this Court dated 20.09.2012 shall remain intact and in full force for all intents and purposes. 14. As a consequence, the titled Civil Review Petitions are disposed of and the Criminal Original Petitions are dismissed. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD, THE 2nd of May, 2018 ZR/* NOT APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (REVIEW 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 REVIEW PETITION NOS.247 to 249 OF 2011 IN CIVIL APPEALS NO.239 to 241 OF 2011 (Review of the judgment of this Court dated 07.10.2011 passed in CAs Nos.239 to 241 of 2011) AND CIVIL PETITION NO.423 OF 2011 (On appeal from the judgment of Islamabad High Court, Islamabad Dated 15.03.2011 passed in W.P. No.4853 of 2010) AND CRL.MISC.A. NOS.871 to 873 OF 2014 IN CRL.MISC.A. NO.533 OF 2012 (Impleadment applications) P.T.C.L. etc and others (in all cases) …Petitioners VERSUS Masood Ahmed Bhatti etc and others (CRP 247/11) Syed Muhammad Dilavez, etc (CRP 248/11) Nasir Uddin Ghori (CRP 249/11) Muhammad Ashraf & others (CP 423/11) …Respondents For the Petitioners: (CRP.247 to 249/2011 & CP 423/11): Mr. Khalid Anwar, Sr. ASC Mr. Shahid Anwar Bajwa, ASC. Ms. Zahida Awan, EVP (Legal Affairs), PTCL Syed Irfan Ali Shah, GM (Legal) Mr. Affan Ehsan, Manager (Legal) Mr. Rasheed Zafar, Manager (Legal) Mr. Javaid Mukhtar, Sr. Manager (L) For the Applicants: (Crl.MAs 871 to 873 & CMA 723-725/16): Mr. G. M. Chaudhry, ASC For the Federation: Mr. Waqar Ahmed Rana, Addl. AGP. CRPs-247 to 249 of 2011, etc. 2 For Respondent-1 (CRP.247/11): Mr.Abdul Rahim Bhatti, ASC (CRP.248/11): Mr. Salman Akram Raja, ASC Respondent-1 (CRP.249/11): In-person. Respondents 1&6: (CP.423/11): Mr. Abdur Rehman Siddiqui, ASC Date of Hearing: 19.02.2016. O R D E R Ejaz Afzal Khan, J.- These civil review petitions have arisen out of the judgment dated 11.8.2011 of this Court whereby Civil Appeals Nos.239, 240 and 241 of 2011 were allowed while Civil Petition No.423 of 2011 has arisen out of the judgment dated 15.3.2011 of the Islamabad High Court, whereby the learned single Judge dismissed Writ Petition No.4853 of 2010 filed by the petitioners. 2. Mr. Khalid Anwar, learned Sr. ASC appearing on behalf of the petitioners contended that where a three-Member Bench of this Court in the case of Pakistan Telecommunication Company Ltd. through Chairman Vs. Iqbal Nasir and others (PLD 2011 SC 132) held that the employees of PTCL being governed by the principle of master and servant, cannot invoke the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, another Bench with an equal number of Judges could not deviate therefrom without referring the matter to a larger Bench. The impugned judgment, the learned ASC maintained, is liable to be reviewed on this score alone. The learned ASC next contended that where Pakistan Telecommunication Company Ltd. (PTCL) is not under the control of Federal Government, it cannot be construed as a person in terms of Article 199(5) of the Constitution, even if it is assumed for a while that terms and conditions of the employees on their transfer to the Corporation in the first instance under Sub Section CRPs-247 to 249 of 2011, etc. 3 2 of Section 9 of the Pakistan Telecommunication Corporation Act, 1991 (hereinafter referred to as ‘the Act of 1991’) and then to the Company under Sections 35(2) and 36(2) of the Pakistan Telecommunication (Re-Organization) Act, 1996 (hereinafter referred to as ‘the Act of 1996’) are protected and guaranteed. The impugned judgment, the learned Sr. ASC maintained, is also liable to be reviewed when it is an outright departure from the dicta of this Court rendered in the cases of Principal Cadet College, Kohat Vs. Muhammad Shoaib Qureshi (PLD 1984 SC 170), Pakistan Red Crescent Society Vs. Syed Nazir Gillani (PLD 2005 SC 806), Pakistan International Airlines Corporation and others Vs. Tanveer-ur-Rehman and others (PLD 2010 SC 676), Executive Council Allama Iqbal Open University, Islamabad through Chairman and another Vs. Muhammad Tufail Hashmi (2010 SCMR 1484) and Pakistan Telecommunication Company Ltd. through Chairman Vs. Iqbal Nasir and others (PLD 2011 SC 132). 3. Mr. Abdul Rahim Bhatti, learned ASC appearing on behalf of the respondent (in CRP-247/2011) contended that where the terms and conditions of service of the employees on their transfer to the Corporation in the first instance under sub-Section 2 of Section 9 of the Act of 1991 and then to the Company under Sections 35 (2), 36(1) and (2) of the Act of 1996 are protected, they could not be changed to their disadvantage. The terms and conditions, the learned ASC maintained as defined in Section 3 of the Civil Servants Act, 1973 mean “the terms and conditions provided by the Civil Servants Act and the rules”. Such terms and conditions, the learned ASC added, being statutory can be enforced through a petition under Article 199 of the Constitution of the Islamic Republic of CRPs-247 to 249 of 2011, etc. 4 Pakistan. The learned ASC to support his contention placed reliance on the cases of Oil and Gas Development Company and others Vs. Nazar Hussain and others (2010 SCMR 1060), Syed Tahir Abbas Shah Vs. OGDCL through M.D. Head Office, Islamabad and another (2011 SCMR 1912), Muhammad Tariq Badar and another Vs. National Bank of Pakistan and others (2013 SCMR 314), and Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others Vs. Muhammad Arif and others (2015 SCMR 1472). 4. Mr. Salman Akram Raja, learned ASC appearing on behalf of the respondent (in CRP-248/2011)contended that where the terms and conditions of service of the respondents on their transfer to the Corporation in the first instance and then to the Company were protected by virtue of Section 9(2) of the Act of 1991 and Sections 35(2) and 36 (1) and (2) of the Act of 1996, they could well be enforced in terms of the judgments rendered in the cases of Pakistan Telecommunication Corporation and another Vs. Riaz Ahmed and 6 others (PLD 1996 SC 222) and Divisional Engineer Phones, Phones Division, Sukkur and another Vs. Muhammad Shahid and others (1999 SCMR 1526). The learned ASC in the alternative argued that in case it is assumed that the employees of PTCL are not civil servants, the terms and conditions of their service being protected by the Acts mentioned above could still be enforced under Article 199 of the Constitution in view of the judgment rendered in the case of Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others Vs. Muhammad Arif and others (2015 SCMR 1472). 5. We have gone through the entire record carefully and considered the submissions of learned ASCs for the parties. CRPs-247 to 249 of 2011, etc. 5 6. Before we appreciate arguments addressed at the bar, it would be rather necessary to refer to Section 9 of the Act of 1991 and Sections 35 and 36 of the Act of 1996 which read as under:- “9. Transfer of departmental employees to the Corporation. -- (1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of services, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee. (2) The terms and conditions of service of any such person as is referred to in sub-section (1) shall not be varied by the Corporation to his disadvantages. (3) Notwithstanding anything contained in any law for time being in force, no person who stands transferred to the Corporation by virtue of sub-section (1) shall be entitled to any compensation because of such transfer.” “35. Vesting of the rights, property and liabilities of the Corporation.--- (1) The Federal Government may, by orders, direct that all or any property, rights and liabilities to which the Corporation was entitled or subject to immediately before such orders, and identified therein, shall, on such terms and conditions as the Federal Government may determine, vest in – a) the Company; b) the National Telecommunications; c) the Authority; d) the Trust; or e) the Board through Federal Government, and become the property, rights and liabilities of the respective entity. (2) An order issued under sub-section (1) shall specify the employees of the Corporation who shall, as from the effective date of the order, be transferred to CRPs-247 to 249 of 2011, etc. 6 and become employees of the entity referred to in the order : Provided that such order shall not vary the terms and conditions of service of such employees to their disadvantage. (3) An order issued under sub-section (1) in favour of the Company shall provide for -- a) the continuation by the Company of the operations and undertaking of the Corporation on the same basis as were carried on immediately prior to the date of the order save in respect of the operations and undertakings to be carried on by the National Telecommunication Corporation pursuant to section 41; and b) the dissolution of Corporation as from the effective date of the order. (4) In consideration of the vesting in the company of the property of the Corporation, the Company shall issue such securities in the name of the President of the Islamic Republic of Pakistan as the Federal Government may direct. (5) Unless an order so directs the property vested under sub-section (1) shall be free from any charge, burden, hypothecation or encumbrances to which it may be subject at the effective date of the order. (6) If any property of the Corporation vests in the Company subject to any charge, burden hypothecation or encumbrances the same shall be deemed to be on the assets of the company and the provisions of section 121 of the Companies Ordinance, 1984 (XLVII of 1984), shall apply to such charges, burden, hypothecation or encumbrances as if it had been created on the assets of the Company on the effective date for the Company. (7) If any property of the Corporation vests in the National Telecommunication Corporation, the Authority or the Trust subject to any charge, burden, hyphenation or encumbrance, the same shall be the first charge by way of hypothecation in favour of the creditor. CRPs-247 to 249 of 2011, etc. 7 (8) In this section, “property” includes assets, rights and entitlements of every description and nature wherever situated and “liabilities” includes duties, obligations, loans encumbrance, claims and charges of every description and nature (actual or contingent), whether or not they are capable, under any law of Pakistan or of any other State or under any agreement or otherwise, or being vested, transferred or assigned by the Corporation. (9) No stamp duty shall be payable under any law for the time being in force on or in relation to the transfer or vesting of property of the Corporation under any order issued under sub-section (1). 36. Terms and Conditions of service of employees.-- (1) No person transferred to the Company pursuant to sub-section (2) of section 35, hereinafter referred to as “Transferred Employee”, shall be entitled to any compensation as a consequence of transfer to the Company : Provided that the Federal Government shall guarantee the existing terms and conditions of service and rights, including Pensionary benefits of the Transferred Employees. (2) Subject to sub-section (3), the terms and conditions of service of any Transferred Employee shall not be altered adversely be he Company except in accordance with the laws of Pakistan or with the consent of the transferred Employees and the award of appropriate compensation. (3) At any time within one year from the effective date of order vesting property of the Corporation in the Company, the Federal Government may, with the prior written agreement of a Transferred Employee, require him to be transferred to or revert him back and be employed by the Authority, National Telecommunication Corporation, Trust or the Federal Government on the same terms and conditions to which he was entitled immediately before such transfer. CRPs-247 to 249 of 2011, etc. 8 (4) Subject to proviso to sub-section (1) of section 45 on transfer of a Transferred Employee under sub- section (3), the Federal Government shall assume responsibility for his Pensionary benefits without recourse to be Pension Fund referred to in that section. (5) Under the order vesting property of, the Corporation in the Company, the Federal Government shall require the Company to assume the responsibility of Pensionary benefits of the telecommunication employees and the Company shall not alter such Pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation.” A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under Section 9 of the Act of 1991 and then of the Company under Section 35 of the Act of 1996. Their terms and conditions of service were fully protected under Section 9(2) of the Act of 1991 and 35(2) of the Act of 1996. None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the Company, they did not remain Civil Servants any more. But the terms and conditions of their service provided by Sections 3 to 22 of the Civil Servants Act and protected by Section 9(2) of the Act of 1991 and Sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court. Though in the cases of Pakistan Telecommunication CRPs-247 to 249 of 2011, etc. 9 Corporation and another Vs. Riaz Ahmed and 6 others and Divisional Engineer Phones, Phones Division, Sukkur and another Vs. Muhammad Shahid and others (supra) it was held that the departmental employees on their transfer to the Corporation and then to the Company would continue to be the Civil Servants, but this interpretation does not appear to be correct as they on their transfer became employees of the Corporation under Section 9 of the Act of 1991 and then of the Company under Section 35 of the Act of 1996. Retention of their status as civil servants is thus not supported by the words used in the aforesaid provisions. 7. The argument of Mr. Khalid Anwar, learned Sr. ASC for the petitioners that where a three-Member Bench of this Court in the case of Pakistan Telecommunication Company Ltd. Vs. Iqbal Nasir and others (supra) held that the employees of PTCL being governed by the principle of master and servant could not invoke jurisdiction of the High Court under Article 199 of the Constitution, another Bench with equal number of Judges could not deviate therefrom, is based on misconception when the employees in the aforesaid case, were not those whose terms and conditions of service on their transfer to the Corporation and the Company were protected and guaranteed under Section 9 of the Act of 1991 and Sections 35(2) and 36(1) and (2) of the Act of 1996, but those who were employed on contract or on work-charge basis. We, therefore, do not feel inclined to agree therewith. The relevant paragraph of the judgment stating the difference between the two merits a look, which reads as under:- “26. The argument of the learned counsel that the respondents were the employees of the PTCL from the date of appointment, regular after 183 days of service and entitled to same wages as were being paid to CRPs-247 to 249 of 2011, etc. 10 regular employees of the PTCL is untenable. It may be observed that as provided in clause (g) of Order 1 of the Schedule to the W.P. (Standing Orders) Ordinance, 1968, a contract worker is a workman who works on contract basis for a specific period of remuneration to be calculated on piece rate basis, while clause (b) of Order 1 of the Schedule to the W.P. (Standing Orders) Ordinance, 1968,' provides that a `permanent' workman is a workman who has been engaged on work of permanent basis likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment, and includes a badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months. In this view of the matter, an aggrieved person falling within the definition of workman would be well within his rights to seek remedy at the appropriate forum as provided in Order 12 of the Schedule referred to above. However, as held in PIAC v. Sindh Labour Court No.5 (PLD 1980 SC 323), the respondents had been employed, not on permanent basis, but on contract and would be governed by the provisions of the contract of service. The nature of employment of the respondents can be easily understood from a perusal of a contract of service entered by Muhammad Idrees Khan, respondent No. 1 in C.A. No. 474 of 2010 with the Telecom Foundation, which, inter alia, provides as under: - "TELECOM FOUNDATION SHORT TERM CONTRACT Mr. Muhammad Idrees Khan s/o Haji Chamnay Khan is hereby contracted in Telecom Foundation as Cable Guard with effect from ______ at the rate of Rs.153/- per day (Rs.4600/- per month). He is directed to report to A.E. O.F.C. (PTCL) Peshawar for further deployment as and CRPs-247 to 249 of 2011, etc. 11 where required by them on the following terms and conditions: - 1. PERIOD OF CONTRACT Service shall be on contract for a period of Eighty Nine (89) days. 9. TERMINATION OF CONTRACT This contract shall be liable to termination any time without notice even on account of _______ political activities, trade unions and due to misconduct and unsatisfactory service. Manager (M&T) Telecom Foundation I, Muhammad Idrees Khan s/o Chamnay Khan resident of Village Bab-e-Jadeed P.O. TaruJabba Tehsil & District Nowshera, have carefully read the above instructions and agree to the terms and conditions for the employment as Cable Guard on contract basis." All the employees having entered into contracts of service on the same or similar terms and conditions have no vested right to seek regularization of their employment, which is discretionary with the master. The master is well within his rights to retain or dispense with the services of an employee on the basis of satisfactory or otherwise performance. The contract employees have no right to invoke writ jurisdiction, particularly in the instant case where their services have been terminated on completion of period of contract. Since they fall within the definition of workman, they would be entitled to one month's notice or salary in lieu thereof, as permissible to them under the rule of master and servant.” 8. The argument that where Pakistan Telecommunication Corporation Limited was not under the control of the Federal Government it cannot be construed as a person in terms of Article 199(5) of the Constitution is also misconceived as this question has been set at rest by this Court in the same by holding as under:- CRPs-247 to 249 of 2011, etc. 12 22. The question whether the PTCL was a `person' performing functions in connection with the affairs of the Federation within the contemplation of Article 199(5) of the Constitution was first dilated upon by this Court at great length in Muhammad Zahid's case in which the plethora of case law was gone into and it was held that the employees of the erstwhile T&T Department transferred to the Corporation [PTC] under the relevant provisions of the Act of 1991 and later/on succeeded by the PTCL, discharging their functions and duties in the International Gateway Exchange as Operators were inducted permanently or regularized subsequently under the rules necessarily related to one of the affairs of the Federation within the purview of provisions of Article 199 of the Constitution; hence similar duties and functions in the International Gateway Exchange being discharged by the private respondents as Operators could not be distinguished to say that the same did not relate to the affairs of the Federation though conferred upon the Corporation [PTC], and finally upon the PTCL. It was further held that the Telecommunication undisputedly was the subject which pertained to one of the important affairs of the Federation dischargeable now through the PTCL; hence such entity involved in the same exercise of the sovereign powers, essentially fell within the connotations of the word `person' as defined in clause (5) of the Article 199 of the Constitution; accordingly, the grievance of the private respondents was amenable to the writ jurisdiction of the High Court. However, it was observed that the status of the private respondents, be that of a `worker' or a `civil servant' or a `contract employee' had no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them. 23. It may also be added here that as rightly held by a learned Division Bench of the High Court of Sindh in the judgment impugned in C.A. No. 883 of 2010 that the Federal Government had first sold 12% shares through public subscription and then it sold 26% [all of B CRPs-247 to 249 of 2011, etc. 13 class shares] to the EIP and the remaining 62% shares of PTCL were still owned by the Federal Government and as long as the Government owned majority shares in said entity either in its own name, or whether wholly or partially in the name of any other organization or entity controlled by the Government, PTCL was and should continue to be amenable to the jurisdiction of the High Court under Article 199 of the Constitution. In this view of the matter, the argument that the PTCL was not a person within the meaning of Article 199(5) of the Constitution is not tenable. 24. However, this Court, in the case of Principal Cadet Collage Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition. Recently, this Court in Tanweer- ur-Rehman's case (supra), while dealing with the issue of invoking of jurisdiction of the High Court under Article 199 of the Constitution by the employees of the PIAC, held that although the appellant-Corporation was performing functions in connection with the affairs of the Federation, but since the services of the respondent-employees were governed by the contracts executed by them with the employer, and not by the statutory rules framed under section 30 of the Pakistan International Airlines Corporation Act, 1956 with the prior approval of the Federal Government, therefore, they would be governed by the principle of `Master and Servant'. On the question whether in CRPs-247 to 249 of 2011, etc. 14 absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc.., it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of `Master and Servant' would be applicable and such employees would be entitled to seek remedy permissible before the Court of competent jurisdiction. Similarly, in M. Tufail Hashmi (supra), after discussing the aforesaid two judgments in detail, it was held that the employees of those organizations, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their grievances, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of `Master and Servant'. 9. The same view was held in the case of Pakistan Telecommunication Company Limited through General Manager and another Vs. Muhammad Zahid and 29 others (2010 SCMR 253) which attained finality as review thereagainst was also dismissed. We, therefore, hold that the view taken in the impugned judgment is not a departure much less outright from CRPs-247 to 249 of 2011, etc. 15 the dicta of this Court laid down in the cases of Principal Cadet College, Kohat Vs. Muhammad Shoaib Qureshi, Pakistan Red Crescent Society Vs. Syed Nazir Gillani, Executive Council Allama Iqbal Open University, Islamabad through Chairman and another Vs. Muhammad Tufail Hashmi and Pakistan Telecommunication Company Ltd. through Chairman Vs. Iqbal Nasir and others, Pakistan International Airlines Corporation and others Vs. Tanveer-ur-Rehman and others, Oil and Gas Development Company and others Vs. Nazar Hussain and others, Syed Tahir Abbas Shah Vs. OGDCL through M.D. Head Office, Islamabad and another, Muhammad Tariq Badar and another Vs. National Bank of Pakistan and others, and Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others Vs. Muhammad Arif and others, Pakistan Telecommunication Corporation and another Vs. Riaz Ahmed and 6 others, and Divisional Engineer Phones, Phones Division, Sukkur and another Vs. Muhammad Shahid and others (supra). 10. Having thus considered, we do not think a case for review of the judgment of this Court dated 7.10.2011 is made out. These review petitions as well as Civil Petition No. 423 of 2011 being without merits are dismissed. These are the detailed reasons for our short order dated 19.02.2016. Chief Justice Judge Judge Judge Judge ISLAMABAD. 19th February, 2016. M. Azhar Malik/* Not approved for reporting CRPs-247 to 249 of 2011, etc. 16 CRPs-247 to 249 of 2011, etc. 17 (Short order) We have heard arguments of the learned ASCs. For the reasons to be recorded separately, Civil Review Petition Nos. 247 to 249 of 2011 are dismissed; leave is refused and Civil Petition No.423 of 2011 is dismissed. Criminal Miscellaneous Application Nos. 871 to 873 of 2014 & Civil Miscellaneous Application Nos. 723 to 725 of 2015 have become infructuous and dismissed accordingly.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Iqbal Hameedur Rahman Criminal Petition No.247/2015 (Against the order dated 9.04.2015 passed by the Lahore High Court, Lahore in Crl.Misc. No.3522-B/15) Muhammad Sadiq and others Petitioners Versus The State and another Respondents For the Petitioner: Ch. Muhammad Maqsood Ahmad, ASC a/w petitioners in person For the State: Ch. M. Waheed Khan, Addl.P.G. Pb. Mr. M. Aslam, S.I. P.S. Kamoke For the Complainant: Justice (R) Khurshid Anwar Bhinder, ASC Date of Hearing: 5.05.2015 ORDER Ijaz Ahmed Chaudhry, J.- Through the instant petition the petitioners seek setting aside of the order dated 9.04.2015 through which Crl.Misc. No.3522-B/15, filed by the petitioners for grant of bail before arrest in case FIR No.440 dated 7.07.2014 registered under Section 365 PPC, has been dismissed. 2. Facts of this case are that according to the complainant-Abrar Hussain an incident has taken place on 7.07.2014 within the jurisdiction of Police Station, Kamonki, District Gujranawala and allegedly brother of the complainant namely Iftikhar Ahmad was abducted by the petitioners and other accused in a black car. 3. The petitioners moved an application for bail before arrest before the learned Addl. Sessions Judge on 8.07.2014 which was dismissed on merits on 24.09.2014. Feeling aggrieved the petitioners approached the learned High Court through Crl.Misc. No.14011-B/14 but vide order dated 11.11.2014, the same was withdrawn. Then another application was moved by the petitioners on 14.01.2015 before the learned Addl. Sessions Judge which was Crl.P.247/15 2 dismissed on 31.01.2015. Thus, the petitioners moved their third application on 21.02.2015 before the learned Addl. Sessions Judge which was also dismissed on 10.03.2015. Against the said order the petitioners filed Crl.Misc. No.3522-B/15 before the learned High Court which was dismissed through the impugned order dated 9.04.2015. 4. Learned counsel for the petitioners contends that first bail application of the petitioners was dismissed on merits. However, after dismissal of the said application, fresh grounds were available to the petitioners as Section 365 PPC was deleted by the investigating officer. Learned counsel further contends that this Court being the Apex Court can see facts and circumstances of the case and grant bail to the petitioners at this stage as well; that there are contradictions in the statement of the complainant in the FIR and statement of the abductee under Section 164 Cr.P.C.; that a private compliant has also been filed after 7/8 months and the benefit of all these contradictions goes to the accused and it is a fit case for confirmation of bail before arrest. Learned counsel further contends that the second application of the petitioners was dismissed on 31.01.2015 against which Crl.Misc. No.1474-B/15 was moved in the High Court and the High Court while disposing of the same granted protective bail to the petitioners after which they had moved third application before the Addl. Sessions Judge. 5. Learned counsel for the complainant as well as learned Addl. Prosecutor General, Punjab have opposed the bail of the petitioners on the ground that the petitioners have been nominated in the FIR with specific role; that so far none of the petitioners have been arrested and the challan has been submitted; that the petitioners are on pre-arrest bail and no report under Section 173 Cr.P.C. was submitted on 31.01.2015. 6. We have heard learned counsel for the parties and have carefully perused the record. Crl.P.247/15 3 7. Considerations for pre-arrest bail are totally different from that of post-arrest bail. Pre-arrest bail is an extraordinary relief, whereas the post- arrest bail is an ordinary relief. While seeking pre-arrest bail it is duty of accused to establish and prove mala fide on the part of the Investigating Agency or the complainant. Bail before arrest is meant to protect innocent citizens who have been involved in heinous offences with mala fide and ulterior motive. Admittedly the petitioners’ first bail application was dismissed on merit. It is also an admitted fact that against the order of dismissal of the said application, the petitioners moved Crl.Misc. No.14011- B/14 before the learned High Court which was withdrawn vide order 11.11.2014. Thus, the remedy available to the petitioners was finalized up to the High Court and the only forum available to the petitioners was to approach this Court. Bail before arrest cannot be granted unless person seeking it satisfy conditions specified under Section 497(2) of the Cr.P.C. and establishes existence of reasonable grounds leading to believe that he is not guilty of offence alleged against him and there are in fact sufficient grounds warranting further inquiry. If one fails to prove any mala fide or ulterior motive in the first pre-arrest bail petition before the learned Additional Sessions Judge or before the learned High Court then the only remedy available to him is of challenging the said order before this Court or before the learned High Court in case the bail before arrest is declined by the learned Sessions Court. Filing of pre-arrest bail petitions again and again amounts to misuse of law and it also increases the backlog of the Courts and this growing trend should have to be stopped by the learned Courts below. When the second application was withdrawn by the learned counsel for the petitioners, the petitioners could not avail the said remedy even after the deletion of Section 365 PPC by the investigating officer as it had attained finality but the petitioners adopted the policy of hide and seek by moving a Crl.P.247/15 4 number of applications. In this respect the learned Addl. Sessions Judge has passed a well reasoned order. It has been pointed out that at the time of dismissal of second application, learned counsel for the petitioners requested the Court to grant protective bail to the petitioners in order to enable them to approach the concerned Court and the High Court without taking into consideration that the bail application, moved by the petitioners, has already been dismissed granted protective bail to the petitioners. We are constrained to hold that the learned Judge-in-Chambers while granting protective bail to the petitioners has not applied the correct law as their application could not be entertained. 7. For what has been discussed above, without touching the merits of the case, the conduct of the petitioners is sufficient to dismiss this petition. Resultantly, this petition is dismissed and leave to appeal is refused. Judge Judge ISLAMABAD 5th May, 2015 APPROVED FOR REPORTING (Nasir Khan)

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE DOST MUHAMMAD KHAN Criminal Petitions No.268-270/2015 (On appeal from the judgment/order dated 13.04.2015 passed by the Lahore High Court, Rawalpindi Bench in Crl.Misc. No.288-B/15, 289- B/15 & 285-B/15) Ch. Muhammad Ashfaq …Petitioner in all cases Versus The State & others ..Respondents in all cases For the petitioner: Malik Jawad Khalid, ASC (in all cases) For respondents No.3,5,6,9: Raja Zaheer ud Babar, ASC (in Crl.P.268/15) For the State: Mr. Nayyab Gardezi, Standing Counsel Mr. Tariq Bilal, ASC Other respondents: N.R. Date of hearing: 01.7.2015 JUDGMENT Dost Muhammad Khan, J.— Ch. Muhammad Ashfaq is seeking leave to appeal through Criminal Petitions No.268, 269 and 270 of 2015 against the order/judgment of the learned Judge in Chamber of the Lahore High Court, Rawalpindi Bench dated 13.04.2015, wherein grant of bail was refused to the petitioner in all the three cases, registered vide FIRs No.104/2014, 107/2014 and Crl.P.268-270/15 2 105/2014. This single judgment shall decide all the three petitions because questions of law in the same are almost identical. The arguments of the learned ASCs for the petitioner and the complainants as well as for the State heard and record perused. 2. The epitome of all the three crimes is that, the petitioner along with other co-accused duly nominated in all the three FIRs had established, “Cyber Online Job Enterprises in Office No.59/62, 3rd Floor, Computer Market, Bank Road, Saddar Rawalpindi”. They were offering online jobs to the desiring candidates, albeit they were having no channel of employment in this regard nor having any means whatsoever to provide jobs to the desiring candidates. It was a well contrived strategy how to exploit the public at large and to deprive them of their hard earned money. 3. It is alleged that during the entire process, the petitioner along with his accomplices through deceptive tactics and illegal means in these and many other cases have deprived many desiring candidates of a sum of rupees more than five millions, however, they neither provided the job nor returned the amount, they had received from the candidates thus, complaints were made with the FIA of the Circle and after open inquiry followed by investigation, almost more than 15 cases were registered against them while, learned ASC representing the FIA disclosed that in all more than 50 complaints were lodged with the FIA, which are under inquiry and investigation. 4. Learned ASC for the petitioner came out with twofold plea; firstly, that the petitioner is not a partner in the company duly registered with the Registrar of the companies, nor his name is Crl.P.268-270/15 3 appearing in the certificate issued to the company by SECP permitting them to run the business, besides he has been granted bail in 13 cases for the similar role he has been attributed and; secondly, the offences under Cyber Crimes Laws are not constituted, while the rest of the offences do not fall within the prohibitory limb of section 497 Cr.P.C. hence, the Court discretion is not taken away in granting bail except in special and peculiar circumstances of a particular case. 5. The learned ASCs for the FIA and the complainants strongly opposed grant of bail to the petitioner and also relied on certain case laws, particularly the case of Muhammad Rafique Vs. State (1997 SCMR 412) and further urged that distinction has been drawn by this Court between the two categories of offences, the one where an individual is defrauded and the other where the society at large is the victim, in the latter case bail has been refused, notwithstanding that the offence, for which the accused was charged in that case, was not falling within the prohibitory part of section 497 Cr.P.C. 6. It is not denied that the accused petitioner was arrested from the same premises where these dubious, tricky and shadowy transactions were being carried out through mutual collaboration of all the accused and because he has been directly nominated in the written complaints made by the victims/complainants. 7. Unfortunately, there is a growing tendency on the part of swindlers, deceiving the poor public through entrapping tricks of this nature. In this way, such scams are becoming the order of the day, therefore, same need to be curbed with iron hand and no mercy or Crl.P.268-270/15 4 leniency should be shown to persons involved in such organized crimes. 8. To get the concession of bail in offences not punishable with imprisonment for ten years, life or death, is not the right of the accused but it is certainly discretionary with the Courts of law, keeping in view the facts and circumstances of a particular case. 9. In ordinary course and in crimes of ordinary nature, such discretion is to be exercised in favour of the accused however, when ingenious contrived and designed methodology is pressed into service for defrauding a bulk of poor peoples through fraudulent means, would take out the case of such accused person from the ordinary principle, where the discretion in granting bail by the court shall ordinary not to be exercised in a routine manner taking the matter leniently otherwise, the entire society would be corrupted through such acts of detestable nature. 10. At the moment, as stated at the bar, more than 50 complaints of similar nature have been lodged against the petitioner, which are still under inquiry/investigation thus, on the available record, the petitioner appears to be a member of a gang of swindlers involved in deceptive tactics, depriving poor and needy people of their hard earned money, who attached high hopes, reposing confidence in the petitioner and his accomplices that they would provide lucrative and good earning job in return. The device and well designed strategy attributed to the petitioner and his accomplices, if is allowed to go unchecked, the same is likely to corrupt the whole society and would encourage the others to indulge in the same and similar practice. Crl.P.268-270/15 5 In the above background, the discretion vested in the learned High Court and the Trial Court in refusing to grant bail has been exercised according to the well settled principle on the subject, to which no exception could be taken. 11. Even otherwise, under the provision of Article 185(3) of the Constitution unless and until a particular matter involving important point of law, relating to the public at large is made out, the extraordinary remedy under the said provision cannot be extended in a routine manner in each and every case because the qualifying phrase has made interference by this Court conditional on the fulfillment of the above essential requirement of the constitutional provision. From the facts and circumstances, we do not see any important point of law involved in this case of public importance besides the fact that charge- sheets in all the cases have been submitted before the Trial Court and trial is in progress and on this account too, keeping in view the principle laid down in the case of Muhammad Ismail v. Muhammad Rafique (PLD 1989 SC 585) at such stage, deep appreciation of evidence or grant of bail on merits is not permissible practice. 12. Accordingly, finding no legal merits in all these three petitions, the same are dismissed and leave to appeal is refused to the petitioner. However, in the interest of justice and also keeping in view the cardinal principle that an accused person shall have a right to speedy trial, we would direct the Trial Court to expedite the trial and decide the case at the earliest as far as possible, provided that the petitioner or any person acting on his behalf is not found instrumental in delaying the disposal of the cases. Crl.P.268-270/15 6 The above observations are tentative in nature and in no manner shall influence the mind of the Trial Court, which shall decide the cases on the basis of evidence, to be recorded at the trial. These are the reasons for our short order of even date, which is to the following effect:- “We have heard the arguments in all the three connected petitions. For the reasons to follow separately leave is refused and these petitions are dismissed.” Judge Judge Islamabad, the 1st July, 2015 Nisar /-‘ ‘Approved For Reporting’

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SYED MANSOOR ALI SHAH MR. JUSTICE QAZI MUHAMMAD AMIN AHMED MR. JUSTICE AMIN-UD-DIN KHAN CIVIL REVIEW PETITIONs Nos. 292 TO 302 of 2021 & CIVIL REVIEW PETITIONs Nos. 351 TO 432 of 2021 & CIVIL REVIEW PETITIONs Nos. 442 TO 456 of 2021 (For review of the judgment dated 17.08.2021 passed in CA No.491 of 2012, etc. ) A/W CMA Nos. 11812 TO 11814 OF 2021 & CMA Nos. 11837, 11862 TO 11864 OF 2021 & CMA Nos. 11902-11903, 11982-11983 OF 2021 & CMA Nos. 11987 OF 2021 & CMA Nos. 11679, 12017, 12019, 12020, 12024 OF 2021 & CMA Nos. 12025, 12028, 12029, 12031-12033 OF 2021 & CMA Nos. 12035, 12075, 11993, 12103-12104 OF 2021 & CMA Nos. 12161-12162, 12172-12173, 12403 OF 2021 & CMA Nos. 12372-12373 OF 2021 A/W CIVIL MISC. APPEAL NO.168, 158 & 175 OF 2021 Hadayat Ullah etc. …Petitioner(s) Versus Federation of Pakistan etc. …Respondent(s) In attendance: Kh. Muhammad Arif, ASC (in CRP 292,388/21) Mr. Muhammad Yousaf Khan, (in CRP 293/21) Mr. Muhammad Tariq Asad, ASC (in CRP 294,CMA12033/21) Mr. Khalid Javed Khan, Attorney General for Pakistan Mr. Ayaz Shoukat, DAG a/w Ms. Maryam Rasheed & Mr. Usman Paracha, Advocates. (in CRP 295/21) Muhammad Nawaz Abbasi (in person) (in CRP 296,446/21) Mr. S.A. Mehmood Khan Sadozai, ASC (in CRP 297-300,416/21) Mr. Muhammad Ilyas Siddiqui, ASC (in CRP 301/21) Mr. Hazrat Said (in CRP 302/21) S. Iftikhar Hussain Gillani, Sr. ASC (in CRP 351,392/21) Ms. Shireen Imran, ASC (in CRP 252,393,394,448,CMA12104/21) Mr. M. Safdar Shaheen Pirzada, ASC (in CRP 253,372,375/21) Mr. Nisar A. Mujahid, ASC (in CRP 354/21) Raja Abdul Ghafoor, AOR/ASC (in CRP 355,374,CMA11982,12029/21) Ch. Afrasiab Khan, ASC (in CRP 356/21) Mian Raza Rabbani, Sr. ASC CRP 292 OF 2021 ETC. 2 Mr. Saalim Salam Ansari, ASC Assisted by Mr. Zeeshan Abdullan (in CRP 357,CMApl.175, CMA12172,12173/21) Mr. Shah Khawar, ASC Mr. Hassan Rashid Qamar, ASC (in CRP 355,378-381, 442, 455,456,CMA12028,12162/21) Mr. Zubair Hussain, ASC (in CRP 359,CMA11983/21) Syed M. Iqbal Hashmi, ASC (in CRP 360-363/21) Mr. Mazullah Khan (in-person) (in CRP 364/21) Mr. Zulfikar Khalid Maluka, ASC (in CRP 365,428/21) Mr. Ghulam Sajjad Gopang, ASC (in CRP 366/21) Mr. Omer Farouk Adam, ASC (in CRP 367/21) Mr. Tariq Mehmood Mughal, ASC (in CRP 368/21) Syed Rifaqat Hussain Shah, AOR/ASC (in CRP 369,385,420,CMApl.168, CMA 12032,12035/21/21) Mr. Muhammad Sharif Janjua, AOR/ASC (in CRP 370,386,399,400,423/21) Mr. Saleem Ullah Ranazai, ASC (in CRP 371/21) Mr. Kamran Murtaza, Sr. ASC (in CRP 373,377/21) Mr. Waseem Sajjad, Sr. ASC (in CRP 376,383/21) Dr. Saeed Ahmed (in person) (in CRP 382/21) Mr. Aftab Alam Yasir, ASC (in CRP 384,CMA12020/21) Mr. Abdul Razzaq Shar, ASC (in CRP 387,454,CMA12024/21) Mr. Jam Khursheed Ahmed, ASC (in CRP 389/21) Mr. Muhammad Sajid Khan, ASC (in CRP 390,CMA12031,12161/21) Mr. Hamid Khan, Sr. ASC Mr. M. Waqar Rana, ASC (in CRP 391/21) Mr. Liauqat Ali Karim, ASC (in CRP 395/21) Mr. Abid A. Zuberi, ASC (in CRP 396/21) Mr. Azhar Navid Shah, ASC (in CRP 397/21) Malik Faiz Rasool Rajwana, ASC (in CRP 398/21) Mr. Muhammad Umair Baloch, ASC Mr. Shoaib Shaheen, ASC (in CRP 401-415,418,419,CMA12372/21) Mr. Muhammad Haseeb Jamali, ASC (in CRP 417/21) Mr. Malik Mansoor Hussain, ASC (in CRP 421/21) Ch. Aitzaz Ahsan, ASC Mr. Gohar Ali Khan, ASC (in CRP 422/21) CRP 292 OF 2021 ETC. 3 Mr. Shakirullah (in-person) (in CRP 424/21) Mr. Muhammad Nawaz Rai, ASC (in CRP 425/21) Mr. Muddasar Khalid Abbasi, ASC (in CRP 426/21) Mrs. Kausar Iqbal Bhatti, ASC (in CRP 427/21) Khalid Javed (in-person) (in CRP 429/21) Mr. Abdul Latif Afridi, Sr. ASC (in CRP 430-431/21) S. Asghar Hussain Sabzwari, Sr. ASC S. Qamar Hussain Shah Sabzwari, ASC S. Nayyar Hussain Bukhari, ASC (in CRP 432/21) Sh. Mehmood Ahmed, AOR (in CMA 11812/21) Mr. Sikandar Javed, ASC (in CMA 11813,11993/21) Ms. Attiya Khanam (in-person) (in CMA 11814/21) Fazal e Rabbi (in-person) (in CMA 11837/21) Malik Muhammad Riaz, (in-person) (in CMA 11862/21) Mr. Arshad Ali Makhdoom, ASC (in CMA 11863/21) Muhammad Ibrahim (in-person) (in CMA 11864/21) Mr. Faisal Siddiqui, ASC (in CMA 11902/21) Mr. Anees M. Shahzad, AOR/ASC (in CMA 11903/21) Mr. Mir Aurangzeb, AOR/ASC (in CMA 11987/21) Mr. Jawaid Masood Tahir Bhatti, ASC (in CMA 11679,CM.Apl.158/21) Mr. Mir Shahzad Khan Talpur (in-person) (in CMA 12017/21) Malik Muhammad Munsif Awan, ASC (in CMA 12019/21) Muhammad Afzal Khan (in CMA 12025/21) Tassawar Abbas Tanvir (in-person) (in CRP 443/21) Dr. Umar Farooq Siddiqui (in-person) (in CRP 444/21) Sardar M. Latif Khosa, Sr. ASC Sardar M. Shahbaz Khosa, ASC (in CRP 445,447/21) Mr. Pervez Rauf, ASC (in CRP 449,452/21) Mr. Mir Afzal Malik, ASC (in CRP 450/21) Malik Saleem Iqbal Awan, ASC (in CRP 453/21) Raja Farakh Arif Bhatti, ASC (in CMA 12075/21) Mr. Ria M. Nawaz Kharal, ASC (in CMA 12103/21) Ch. M. Younas, ASC (in CMA 12403/21) Mr. Shahid Anwar Bajwa, ASC (in CMA 12373/21) Mr. Niazullah Niazi, AG ICT SSGPL : Barrister Umer Aslam State Life : Syed Waqar Naqvi, ASC CRP 292 OF 2021 ETC. 4 OPF : Mr. Aftab Alam Yasir, ASC SNGPL : Mr. Asad Jan, ASC Date of Hearings : 01,06-09,13-17th December, 2021 O R D E R For reasons to be recorded later, these review petitions are dismissed. The impugned legislation, namely, the Sacked Employees (Re-instatement) Act, 2010 (“Act”) is held to be violative of, inter alia, Articles 25, 18, 9 and 4 of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”) and therefore void under the provisions of Article 8 of the Constitution. 2. However, in exercise of the Court’s jurisdiction under Article 184(3) of the Constitution read with Article 187, we have taken into consideration the services rendered by the re-instated employees of the “employers” [as defined in Section 2(d) of the Act] and hereby order that: i. Employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) did not require any aptitude or scholastic or skill test, for appointment thereon, shall be restored from the date of the judgment under review to the posts they were holding on the same terms and conditions of service applicable on the date of their termination pursuant to the judgment under review. ii. Such other employees who were holding posts that on the date of their initial termination of service (from 01.11.1996 to 12.10.1999) required the passing of any aptitude or scholastic or skill test, for appointment thereon shall from the date of the judgment under review be restored to their said posts on the same terms and conditions of service applicable on the date of their initial termination. CRP 292 OF 2021 ETC. 5 iii. Any improvement in the terms and conditions of service of all the restored employees shall be granted strictly in accordance with the laws and rules applicable to their service or employment and in the absence thereof by regulations laid down for this purpose by their respective employers. iv. The relief granted in sub-paragraphs (i) and (ii) above shall not be granted to employees whose initial termination of service (from 01.11.1996 to 12.10.1999) was on grounds of absence from duty, misconduct, corruption, misappropriation of money/stock or unfitness on medical grounds if such termination was not set aside finally by a Court of law. Sd/- Judge Sd/- Judge I have attached my dissenting short order. Sd/- Judge Sd/- Judge Islamabad Announced in Court On 17.12.2021. Sd/- J(1). Sd/- Judge APPROVED FOR REPORTING. CRP 292 OF 2021 ETC. 6 Syed Mansoor Ali Shah, J. Parliamentary sovereignty or legislative supremacy is the cornerstone of a strong democracy. We must, therefore, recognize the central role of the legislature. Undermining the legislature undermines democracy. Both the legislature and the judicature must play their role in a spirit of profound respect for the other and within the limits set out in the Constitution. Rule of law is not merely public order, it is social justice based on public order. The law exists to ensure proper social life by balancing the needs of the society and the individual. The courts must protect this rich concept of rule of law. Under Article 8 of the Constitution, any law enacted by the legislature is void only to the extent it takes away or abridges fundamental rights of the people. 2. For the reasons to be recorded later and subject to ancillary and incidental declarations and orders (if any) to be made in the detailed judgment, I allow these review petitions in the following terms: i. The judgment under review is recalled; ii. The following Sections and part of Sections of the Sacked Employees Reinstatement Act 2010 are declared ultra vires the Constitution: a) Sections 4(a) and 10 to the extent of reinstatement and regularization on “one scale higher”, which give an undue advantage to the reinstated employees to the detriment of the rights of the already working regular employees and thus violate their fundamental rights. The provisions of the said Sections, except the words “one scale higher”, shall however remain operative with effect from the date of enactment of the Act, and be read to mean the reinstatement and regularization in the same or restructured, as the case may be, scale, grade, cadre, group, post or designation. b) Sections 2(f)(vi), 11, 12 and 13, which deal with and provide for reinstatement and regularization of such sacked employees who had been dismissed, removed or terminated from service on account of absence from duty, misconduct, mis-appropriation of Government money or stock, or unfitness on medical grounds, and the determination of their guilt or medical unfitness attained finality by being unchallenged or unsuccessfully challenged. Such employees fall CRP 292 OF 2021 ETC. 7 outside the class of sacked employees who suffered “political victimization,” envisaged by the Act for a beneficial treatment, and they by themselves do not constitute a distinct class having an intelligible differentia, which bears a reasonable relation to the object and purpose of the Act. iii. All the employees terminated from service on the basis of the judgment under review, stand restored in the service with effect from the date they were so terminated, and shall be paid the pay of the intervening period treating the said period as an extraordinary leave with pay; and iv. The cases decided by the judgment under review, which now stands recalled, shall be deemed pending and decided on their own merits by the regular Bench(es) of this Court in accordance with the provisions of the Sacked Employees Reinstatement Act 2010, subject to the declaration made at No. ii above. Sd/- Judge CRP 292 OF 2021 ETC. 8 ORDER OF THE BENCH For reasons to be recorded later, by a majority of four to one (Justice Syed Mansoor Ali Shah dissenting), these review petitions are dismissed. Sd/- Judge Sd/- Judge Sd/- Judge Sd/- Judge Islamabad Announced in Court On 17.12.2021. Sd/- Judge APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Maqbool Baqar Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Sajjad Ali Shah Mr. Justice Syed Mansoor Ali Shah Mr. Justice Munib Akhtar Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan CIVIL REVIEW PETITION NO.296 of 2020 & CIVIL REVIEW PETITION NO.297 of 2020 & CIVIL REVIEW PETITION NO.298 of 2020 & CIVIL REVIEW PETITION NO.299 of 2020 & CIVIL REVIEW PETITION NO.300 of 2020 & CIVIL REVIEW PETITION NO.301 of 2020 & C.M.A NO.4533 OF 2020 IN CRP NO. NIL OF 2020 & CIVIL REVIEW PETITION NO.308 of 2020 & CIVIL REVIEW PETITION NO.309 of 2020 & CIVIL REVIEW PETITION NO.509 of 2020 & C.M.A NO.3457 OF 2021 IN C.R.P.296 OF 2020 & CR. ORIGINAL PETITION NO.10 OF 2021 & CR. ORIGINAL PETITION NO.11 OF 2021. Justice Qazi Faez Isa … Petitioner(s) (in CRP No.296/2020) Sindh High Court Bar Association … Petitioner(s) (in CRP No.297/2020) Mrs. Sarina Isa … Petitioner(s) (in CRP No.298/2020) Supreme Court Bar Association … Petitioner(s) (in CRP No.299/2020) Muhammad Asif Reki President Quetta Bar Association … Petitioner(s) (in CRP No.300/2020) CRP.296 of 2020, etc. 2 Shahnawaz Ismail, VC Punjab Bar Council … Petitioner(s) (in CRP No.301/2020) Balochistan Bar Council … Petitioner(s) (in CRP No.308/2020) Pakistan Federal Union of Journalists … Petitioner(s) (in CRP No.309/2020) Abid Hassan Minto … Applicant(s) (in CMA No.4533/2020 in CRP No.Nil of 2020) Pakistan Bar Council thr. VC … Applicant(s) (in CRP.509 of 2020) Mrs. Sarina Isa … Petitioner(s) (in Cr.O.P.10/2020) Mrs. Sarina Isa … Petitioner(s) (in Cr.O.P.11/2020) VERSUS The President of Pakistan and others …Respondent(s) (in CRP.296-301& 308-309 & CRP.509 of 2020) The Supreme Judicial Council thr. its Secretary and others … Respondent(s) (in CMA No.4533 of 2020) Ch. Fawad Hussain … Respondent(s) (in Cr.O.P.10/2020) Sami Ibrahim & another … Respondent(s) (in Cr.O.P.11/2020) For the petitioner(s) : Mr. Justice Qazi Faez Isa (in-person) Assisted by Barrister Kabir Hashmi. (in CRP.296/2020 & CMA No.3457 of 2021) Mrs. Sarina Faez Isa (in-person) (in CRP.298/2020 & Cr.O.P.10-11 of 2021) Mr. Hamid Khan, Sr. ASC. Syed Rifaqat Hussain Shah, AOR. (in CRP.299, 300, 301 & 308/2020) Mr. Rasheed A. Rizvi, Sr. ASC. (through Video Link from Karachi). (in CRP.297 & 309/2020) Nemo. (in CMA.4533 of 2020) Syed Rifaqat Hussain Shah, AOR. (in CRP.509/2020) For Federation of Pak. : Ch. Aamir Rehman, Addl. AGP. For President, PM & AGP. : Mr. Sohail Mahmood, Addl. AGP. Date of hearing : 26.04.2021. * * * * * * CRP.296 of 2020, etc. 3 O R D E R For reasons to be recorded later, these review petitions are dismissed. I do not agree with the dismissal and append my note accordingly. Sd/- JUDGE Sd/- JUDGE I agree with my bother Justice Maqbool Baqar. Sd/- JUDGE I agree with my brother HJ Maqbool Baqar. Sd/- JUDGE Sd/- JUDGE I agree with my brother Maqbool Baqar, J. Sd/- JUDGE Sd/- JUDGE I don’t. My reasons are appended. Sd/- JUDGE Sd/- JUDGE I agree with my brother Justice Maqbool Baqar. Islamabad, 26.04.2021 Irshad Hussain/* Sd/- JUDGE NOT APPROVED FOR REPORTING. CRP.296 of 2020, etc. 4 ORDER OF THE BENCH By majority of six to four (Justice Umar Ata Bandial, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed dissenting), these review petitions, except as mentioned below, are allowed. 2. Civil Review Petition No.296 of 2020 titled Justice Qazi Faez Isa vs. The President of Pakistan & others) is allowed by five and dismissed by five Hon’ble members of the Bench. Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Sd/- JUDGE Islamabad, 26.04.2021 Irshad Hussain/* Sd/- JUDGE NOT APPROVED FOR REPORTING. CRP.296 of 2020, etc. 5 SHORT ORDER For the reasons to be recorded later, captioned Review Petitions are allowed and the directions contained in paras 4 to 11 of the impugned short order dated 19.06.2020 passed in Const. Petition No.17/2019 and other connected matters, alongwith supporting detailed reasons given in the majority judgment of the same date, are recalled and set-aside. All the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in the short order dated 19.6.2020 and the detailed reasons thereof, are declared to be illegal and without any legal effect. Resultantly, any such proceedings, actions, orders or reports cannot be considered or acted upon and pursued any further by any forum or authority including the Supreme Judicial Council. Sd/- (Maqbool Baqar, J.) Sd/- (Manzoor Ahmed Malik, J.) Sd/- (Mazhar Alam Khan Miankhel, J.) Sd/- (Syed Mansoor Ali Shah, J.) Sd/- (Amin-ud-Din Khan, J.) Islamabad, 26th April, 2021. CRP.296 of 2020, etc. 6 Yahya Afridi, J. For the reasons to be recorded later, all review petitions except C.R.P. No. 296 of 2020, are allowed and the directions contained in paragraphs No. 4 to 11 of the order dated 19.06.2020 and detail judgment dated 23.10.2020 passed in Constitution Petition No. 17 of 2019 and other connected petitions are recalled. Consequently, all the subsequent proceedings, actions, orders and reports made in pursuance to the said directions are declared to be of no legal effect and/or consequences. Sd/- Judge

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ UL AHSAN CIVIL REVIEW PETITION NO. 297 OF 2017 IN CONST. PETITION NO. 29 OF 2016 (Against the judgment dated 28.07.2017 passed by this Court in Constitution Petitions No. 29 & 30 of 2016 and 03 of 2017). Mian Muhammad Nawaz Sharif. …Petitioner(s) Versus Imran Ahmed Khan Niazi. …Respondent(s) AND CIVIL REVIEW PETITION NO. 298 OF 2017 IN CONST. PETITION NO. 30 OF 2016 Mian Muhammad Nawaz Sharif. …Petitioner(s) Versus Sheikh Rasheed Ahmed and others. …Respondent(s) AND CIVIL REVIEW PETITION NO. 299 OF 2017 IN CONST. PETITION NO. 03 OF 2017 Mian Muhammad Nawaz Sharif. …Petitioner(s) Versus Siraj ul Haq and others. …Respondent(s) AND CIVIL REVIEW PETITION NO. 303 OF 2017 IN CONST. PETITION NO. 29 OF 2016 Senator Muhammad Ishaq Dar. …Petitioner(s) Versus Imran Ahmed Khan Niazi and others. …Respondent(s) AND CIVIL REVIEW PETITION NO. 308 OF 2017 IN CONST. PETITION NO. 29 OF 2016 Maryam Nawaz Sharif and others. …Petitioner(s) Versus Imran Ahmed Khan Niazi and others. …Respondent(s) AND CIVIL REVIEW PETITION NO. 309 OF 2017 IN CONST. PETITION NO. 29 OF 2016 Maryam Nawaz Sharif and others. …Petitioner(s) Versus Imran Ahmed Khan Niazi and others. …Respondent(s) AND CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 2 CIVIL REVIEW PETITION NO. 310 OF 2017 IN CONST. PETITION NO. 29 OF 2016 Mian Muhammad Nawaz Sharif. …Petitioner(s) Versus Imran Ahmed Khan Niazi and others. …Respondent(s) AND CIVIL REVIEW PETITION NO. 311 OF 2017 IN CONST. PETITION NO. 30 OF 2016 Mian Muhammad Nawaz Sharif. …Petitioner(s) Versus Sheikh Rasheed Ahmed and others. …Respondent(s) AND CIVIL REVIEW PETITION NO. 312 OF 2017 IN CONST. PETITION NO. 03 OF 2017 Mian Muhammad Nawaz Sharif. …Petitioner(s) Versus Siraj ul Haq and others. …Respondent(s) AND CMA. NO. 6114 OF 2017 IN CONSTITUTION PETITION NO. 30 OF 2016. Sheikh Rasheed Ahmed. …Applicant(s) Versus Federation of Pakistan and others. …Respondent(s) ………………………………………… For the petitioner(s): Khawaja Harris Ahmed, Sr. ASC. Syed Rifaqat Hussain Shah, AOR. (in CRPs. 297-299 & 310-312/2017) Mr. Shahid Hamid, Sr. ASC. Dr. Tariq Hassan, ASC. Syed Rifaqat Hussain Shah, AOR. (in CRP.303/17). Mr. Salman Akram Raja, ASC. Syed Rifaqat Hussain Shah, AOR. (in CRPs.308-309/2017). For the respondent(s): N.R. On Court’s call : Mr. Waqas Qadeer Dar, P. G. Accountability. For the applicant : In person (in CMA.6114/2017). Date of Hearing: 12th to 15th September, 2017. -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 3 J U D G M E N T EJAZ AFZAL KHAN, J.- These review petitions have arisen out of the judgment dated 28.07.2017 of this Court whereby Constitution Petitions No. 29, 30 of 2016 and 03 of 2017 have been disposed of in the terms as under:- “FINAL ORDER OF THE COURT The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:- a) Reference against Mian Muhammad Nawaz Sharif, (respondents No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments; b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment; c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan; d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan; e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income; f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered; g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 4 h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person(s) to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person in accordance with law. 2. It is hereby declared that having failed to disclose his un- withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament). 3. The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan; 4. The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process. 5. The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court in the above mentioned matters. 6. This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan. 7. We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Mr. Makhdoom Ali Khan, Sr. ASC., Mr. Shahid Hamid, Sr. ASC, Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney- General for Pakistan, Mr. Waqas Qadeer Dar, Prosecutor-General, NAB and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams. 8. These petitions are thus disposed of in the terms mentioned above.” 2. Learned Sr. ASC appearing on behalf of the petitioner in CRPs. No. 297 to 299 and 310 to 312 of 2017 contended that the five-member bench was not properly constituted after the submission of the report of the JIT as two of its members (Mr. Justice Asif Saeed Khan Khosa and Mr. Justice Gulzar Ahmed) having given their final verdicts on 20.04.2017 became functus officio. CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 5 Their judgments, the learned Sr. ASC added, could not be treated as part of the majority judgments written by Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan, therefore, it would be the latter that would prevail and hold the field and that it is in view of this anomaly that two sets of review petitions, one before the five-member bench and the other before the three-member bench have been filed. The learned Sr. ASC next contended that unwithdrawn salary could never constitute an asset even if entitlement of the petitioner thereto stemmed from a written agreement, the more so, when he on account of an understanding between him and his son opted not to receive it. The learned Sr. ASC next contended that salary as defined in Section 12(2) of the Income Ordinance, 2001 means an amount received by an employee from any employment, therefore, it cannot be extended to cover unwithdrawn salary. The learned Sr. ASC further contended that even if it is assumed, that the unwithdrawn salary constitutes an asset, omission to disclose it, involving violation of Sections 12 and 13 of the Representation of the People Act, calls for the rejection of the nomination papers or at worst removal of the petitioner from the public office he held, therefore, his disqualification in terms of Sections 99(1)(f) of ROPA and 62(1)(f) of the Constitution of the Islamic Republic of Pakistan is unwarranted. Such disqualification, the learned Sr. ASC maintained, is all the more unwarranted when the petitioner has not been given a fair chance to vindicate his position. Much greater care, the learned ASC maintained, has to be exercised in upholding the order disqualifying the petitioner in terms of Sections 99(1)(f) of ROPA and 62(1)(f) when no appeal lies against it. The learned Sr. ASC went on to argue that where an omission to disclose assets in the circumstances of the case appears to be unintentional, it would be rather presumptive to impute dishonest intention to him. To support his contention, the learned Sr. ASC placed reliance on the cases of Muhammad Saeed and 4 others. Vs. Election Petitions Tribunal, West Pakistan, (2) Mehr CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 6 Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 S.C. (Pak.) 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), Muhammad Siddique Baloch. Vs. Jehangir Khan Tareen and others (PLD 2016 SC 97), Rai Hassan Nawaz. Vs. Haji Muhammad Ayub and others (PLD 2017 SC 70) and Sheikh Muhammad Akram. Vs. Abdul Ghafoor and 19 others (2016 SCMR 733). The learned Sr. ASC next contended that the directions given by this Court to the NAB to file References against respondents in Constitution Petition No. 29 of 2016 are on the face of the record per incuriam as they amount to assuming the functions of the Chairman NAB and the Judge Accountability Court which is not only against the law but also repugnant to the provisions of the Constitution. Assumption or exercise of such powers, the learned Sr. ASC maintained, is also repugnant to the principle of tricotomy of powers which is an unchangeable feature of the Constitution. Another direction to the NAB, the learned Sr. ASC contended, to file References on the basis of the material collected and referred to by the JIT and such other material as may be available with the FIA and NAB or the one which may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions is an encroachment on the authority of the NAB and violation of Article 175(2) of the Constitution. Learned ASC went on to argue that the direction to the NAB to file supplementary reference if and when any other asset, which is not reasonably accounted for, is discovered has also been issued without jurisdiction as no provision of the Constitution including Article 187 empowers this Court to issue a direction of this nature. This direction, the learned Sr. ASC added, implies unambiguous approval of the material collected by the JIT whose probative worth is yet to be established. He next contended that the direction to the Trial Court to decide the References within six months from the date of filing them CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 7 also tends to prejudice the fair trial of the petitioners. Power to superintend the proceedings of the Accountability Court, the learned Sr. ASC maintained, has not been conferred on the Supreme Court, therefore, nomination of one of the Judges of this Court to superintend them is also violative of Article 175(2)(3) of the Constitution. The petitioner, the learned Sr. ASC contended, could not be disqualified in terms of Section 99(1)(f) of ROPA and Article 62(1)(f) of the Constitution for non disclosure of his unwithdrawn income from Capital FZE in his nomination papers for the 2013 General Elections when it was not specifically averred in any of the Constitution Petitions. The learned Sr. ASC next contended that where the material collected by the JIT is not worthy of reliance and the report submitted by it is full of infirmities, commendation of JIT and its report reflected in the concluding part of the judgment under review would tend to prejudice the case of the petitioner, therefore, it needs to be qualified. The learned Sr. ASC lastly contended that the word ‘judgments’ used in sub-para (a) and (b) of paragraph 1 of the Order of the Court dated 28th July, 2017 requires clarification whether it refers to the minority or the majority judgments lest it misleads the National Accountability Bureau or the Accountability Court. 3. Learned Sr. ASC appearing on behalf of petitioner in CRP. No. 303 of 2017 contended that where rise in the assets of the petitioner has been explained by the relevant documents including the returns filed by him, issuance of the direction to the NAB to file a Reference against him does not appear to be well founded. He next contended that where nothing significant appeared against the petitioner during the proceedings of the Constitution Petitions, the JIT could not have collected any material against him nor could this Court direct the NAB to file a Reference against him on the basis of the material so collected, therefore, the direction to file the Reference merits a second thought. CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 8 4. Learned ASC appearing on behalf of the petitioner in CRPs. No. 308 and 309 of 2017 contended that when no material has come on the record to show any nexus between respondent No. 10 in C. P. No. 29 of 2016 and the Avenfield Apartments, the direction to the NAB to file a Reference against him is not sustainable. The learned ASC next contended that observations in the judgment under review commending the JIT and its report, also need to be diluted lest they are accepted by the NAB and the Accountability Court as being unquestionable. 5. We have carefully gone through the record and considered the submissions of the learned Sr. ASCs and ASC for the parties. 6. The first argument of the learned Sr. ASC for the petitioner in CRPs. No. 297 to 299 and 310 to 312 of 2017 is that the five-member bench was not properly constituted after the submission of the report of the JIT as two of its members (Mr. Justice Asif Saeed Khan Khosa and Mr. Justice Gulzar Ahmed) having given their final verdicts on 20.04.2017 became functus officio and that their judgments could not be treated as a part of the majority judgments written by Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan, therefore, it would be the latter that would prevail and hold the field and that it is in view of this anomaly that two sets of review petitions one before the five-member bench and the other before the three- member bench have been filed. It was mainly because of this argument that these petitions, in the first instance, were listed before a three-member bench but on the request of the learned Sr. ASC for the petitioner they were listed before a five-member bench. But when during the hearing before the five- member Bench it was pointed out that the three-member bench judgment has to prevail and hold the field, if maintained and that the objection being academic would not have much effect, the learned Sr. ASCs and ASC for the CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 9 petitioners opted not to press the review petitions filed before the three- member bench which were disposed of accordingly. 7. Next comes the question whether unwithdrawn salaries could constitute an asset when entitlement of the petitioner thereto stemmed from a written agreement. We while dealing with this aspect held as under :- “13. The next question emerging for the consideration of this Court is whether respondent No. 1 as a Chairman of the Board of Capital FZE is entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure in terms of Section 12(2) of the Representation of the People Act, 1976 and whether his failure to disclose them would entail his disqualification? The word asset has not been defined in the Representation of the People Act, 1976, (“ROPA”), therefore, its ordinary meaning has to be considered for the purposes of this case. The word asset as defined in Black’s Law Dictionary means and contemplates “an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill”. The definition of the word receivable as used in the above mentioned definition as given in the Black’s Law Dictionary is also relevant which means and contemplates “any collectible whether or not it is currently due. That which is due and owing a person or company. In book keeping, the name of an account which reflects a debt due. Accounts receivable as a claim against a debtor usually arising from sales or services rendered”. The word ‘receivable’ also has similar ring and connotation according to Business Dictionary which reads as under:- “Accounting term for amount due from a customer, employee, supplier (as a rebate or refund) or any other party. Receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm”. The definitions reproduced above leave no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 in his nomination papers in terms of Section 12(2) of the ROPA. When we confronted, the learned Sr. ASC for respondent No. 1, whether the said respondent has ever acquired work permit (Iqama) in Dubai, remained Chairman of the Board of Capital FZE and was entitled to salary as such, his reply was in the affirmative with the only addition that respondent No. 1 never withdrew any salary. This admission was reiterated in more categorical terms in the written arguments filed by the learned Sr. ASC for respondent No. 1 in the words as under:- “So far as the designation of Respondent No. 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No. 1 was in exile, and had nothing to do with the running of the Company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an “asset” for the respondent No. 1.” CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 10 It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un- withdrawn salary from being receivable, hence an asset. When the un- withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.” We held in the paragraph reproduced above that the unwithdrawn salary of the petitioner is an asset. Petitioner’s entitlement to salary stems from a written employment contract. Salary in this case, it may be noted, is not salary of the future which was yet to accrue. It was salary of the past six and a half years which had already accrued and accumulated. There is nothing in oral or written form, from July 2006 to January 2013 as could stop the accrual and accumulation of salary or prevent it from becoming an asset. There is also nothing in oral or written form in between July 2006 to January 2013 as could stop the withdrawal of the salary thus accrued and accumulated. Therefore, the argument that the salary even if agreed upon under the employment contract, would not be an asset if not withdrawn is not correct. 8. Now let us examine what stance the petitioner has taken with regard to the salary in the written arguments and the memorandum of the review petition. His stance is that “when respondent No. 8 in CP. No. 29 of 2016 showed his decision to wind up the company in January 2013 the petitioner categorically stated that he did not intend to nor would claim any salary from the company”. The words reproduced above would unmistakably show that the salary thus accrued and accumulated till January 2013 was all along the asset of the petitioner; that the power to withdraw or waive it lay exclusively with the petitioner and that he instead of withdrawing it waived it in favour of the company. Granted, it ceased to be an asset of the petitioner from January 2013 but it remained an asset till then and the more so on 30th CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 11 June, 2012 which is the crucial date in terms of Section 12(2)(f) of ROPA. Where the salary has already accrued and accumulated from July 2006 to January 2013 and there is absolutely nothing in oral or written form in between the said dates as could stop its withdrawal, it was an asset out and out. It was thus required to be disclosed in the nomination papers of the petitioner for the 2013 General Election. The expression ‘asset’ as defined in Black’s Law Dictionary has rightly been relied upon when it has not been defined in the ROPA and the Constitution. The expression salary as defined by Section 12(2) of the Income Tax Ordinance, 2001 would be just irrelevant for the purposes of this case when the salary having already accrued and accumulated could be withdrawn at any stage without any hindrance before January, 2013. Even if we ignore the definition of the expression “asset” as given in Black’s Law Dictionary for a while, the very admission of the petitioner that he waived the salary so accrued and accumulated in January, 2013 in favour of the company speaks for itself. Had there been no admission we would not have stepped in as we did not step in when the document issued by Mossack Fonseca showing respondent No. 6 in C. P. No. 29 of 2016 as the beneficial owner of the Avenfield apartments, was disputed by her. We also did not step in when many other documents disclosing several other assets purportedly owned by the children of the petitioner were disputed as is evident from paragraph 16 of the judgment dated 20.04.2017 which reads as under:- “16. The second question in the seriatim is whether respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired any assets or pecuniary resources disproportionate to his known means of income? The learned ASCs for the petitioners in their efforts to persuade us to answer this question in affirmative referred to a number of documents showing the establishment of Gulf Steel Mill at Dubai, its sale, establishment of Azizia Steel Mill at Jeddah, its sale and incorporation of Nescol Limited and Neilson Enterprises Limited in British Virgin Islands. Under the veil of the aforesaid companies, respondent No. 1 has been alleged to have acquired flats No. 16, 16-A, 17 and 17-A at Avenfield House Park Lane London. The personal information form dated 14.10.2011 purportedly issued by Minerva Trust and Corporate Services Limited shows respondent No. 6 as the beneficial owner of the flats. This document has been purportedly signed by the said respondent, but she disputed its genuineness and even her signatures CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 12 thereon. Another document showing respondent No. 6 as the beneficial owner of the flats is the alleged correspondence between Mr. Errol George, Director FIA, British Virgin Islands and Money Laundering Reporting Officer of Mossack Fonseca & Co. (B.V.I.) Limited. A photocopy of an extract from the clients register of Director, Minerva Trust and Corporate Services Limited, according to the learned ASC for the petitioner, is yet another document proving respondent No. 6 as the beneficial owner of the flats. In any case, the questions how did Gulf Steel Mill come into being; what led to its sale; where did go its sale proceeds; how did they reach Jeddah, Qatar and the U.K.; whether respondents No. 6, 7 and 8 in view of their tender ages had the means in the early nineties to purchase the flats; whether sudden appearance of letters of Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; how bearer shares crystallized into the flats; how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and where did its Working Capital Fund come from and where did the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from clamor for answers to be found by the investigation agency and then by the Accountability Court established under the National Accountability Bureau Ordinance.” It is also evident from paragraph 9 of the judgment dated 28.07.2017 which reads as under:- “9. A careful examination of the material so far collected reveals that a prima facie triable case under Section 9, 10 and 15 of the Ordinance is made out against respondents No. 1, 6, 7 and 8 vis-à-vis the following assets:- “(i) Flagship Investments Limited. (ii) Hartstone Properties Limited; (iii) Que Holdings Limited; (iv) Quint Eaton Place 2 Limited; (v) Quint Saloane Limited (formerly Quint Eaton Place Limited). (vi) Quaint Limited; (vii) Flagship Securities Limited; (viii) Quint Gloucester Place Limited; (ix) Quint Paddington Limited (formerly Rivates Estates Limited); (x) Flagship Developments Limited; (xi) Alanna Services Limited (BVI); (xii) Lankin SA (BVI); (xiii) Chadron Inc; (xiv) Ansbacher Inc; (xv) Coomber Inc; and (xvi) Capital FZE (Dubai).” But we could not have shut our eyes when an asset of the petitioner arising out of IQAMA (work permit) having surfaced during the investigation of the case and admitted by him to be his in no uncertain terms, was not found to have been disclosed in his nomination papers in terms of Section 12(2)(f) of ROPA. Nor could have we let him get away with it simply because he happened to be the Prime Minister of the country. Much higher level of integrity is expected of CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 13 the holder of the highest elected office of the country. But to our dismay and disappointment the petitioner has not been fair and forthright in answering any of the queries made during the course of hearing. He never came forth with the whole truth. He tried to fool the people inside and outside the Parliament. He even tried to fool the Court without realizing that “you can fool all the people for some of the time, some of the people all the time but you cannot fool all the people all the time”. Refuge in evasive, equivocal and non committal reply does not help always. If fortune has throned, crowned and sceptered him to rule the country, his conduct should be above board and impeccable. Whatever he does or says must be res ipsa loquitur. (Thing speaks for itself). Resignation rather than prevarication in ambiguous terms is more honourable exit if and when anything secretly carried under the sanctimonious gown of leadership drops and gets sighted. Since the Prime Minister of the country is thought to be the ethos personified of the nation he represents at national and international level, denying an asset established or defending a trust deed written in 2006 in a font becoming commercial in 2007 is below his dignity and decorum of the office he holds. An Urdu verse may perhaps explain the feeling of a follower about the leader which reads:- ﺎﭩُﻟ ںﻮﯿﮐ ہﻠﻓﺎﻗ ہﮐ ﺎﺘﺑ ہﯾ ﺮﮐ تﺎﺑ ہﻧ ﯽﮐ ﺮھدُا ﺮھدا ﮯﮨ لاﻮﺳ ﺎﮐ یﺮﺒﮨر یﺮﯿﺗ ﮟﯿﮩﻧ ہﻠﮔ ﮯﺳ ںﻮﻧﺰﮨار ﮯﮭﺠﻣ 9. The argument that even if it is assumed that unwithdrawn salary constitutes an asset, omission to disclose it involving a violation of Sections 12 and 13 of the Representation of Peoples Act calls for the rejection of nomination papers or at its worst, removal of the petitioner from the public office and not his disqualification in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution is devoid of force when the petitioner deliberately concealed his assets and willfully and dishonestly made a false CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 14 declaration on solemn affirmation in his nomination papers. It is not something to be looked at with a casual eye and outlook. It is not only a legal duty but a qualifying test for the candidates who in the later days preside over the destiny of the people. This duty has to be performed without a taint of misrepresentation. This test has to be qualified without resorting to unfair means. Any concession at this stage or any leniency to the candidates or the person elected would be a prelude to a catastrophe in politics, which has already had enough of it. Since it is already touching the extreme, extreme measures have to be taken. The culture of passing the candidates by granting grace marks has not delivered the goods. It has rather corrupted the people and corrupted the system. This aspect of the case has been beautifully highlighted in the case of Rai Hassan Nawaz. Vs. Haji Muhammad Ayub and others (PLD 2017 SC 170) by holding as under:- “7. An honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers furnishes a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator. His statement of assets and liabilities alongwith other financial disclosures contemplated by Section 12(2) of the ROPA provide the Election Commission of Pakistan and the general public with a picture of both his wealth and income. Such disclosures are crucial for demonstrating the legitimacy and bonafides of the accrual and the accumulation of economic resources by such a candidate. In other words, the said disclosures show the returns received from his economic activities and can indicate if these activities may be tainted with illegality, corruption or misuse of office and authority. This important aspect of the financial disclosures by a contesting candidate has been noticed by this Court in Muhammad Yousaf Kaselia v. Peer Ghulam (PLD 2016 SC 689)”. 10. The argument that the petitioner could not be disqualified under Article 62(1)(f) of the Constitution without recording evidence, in a proceeding under Article 184(3) of the Constitution also runs counter to the settled law of the land as this Court in the case of Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (2012 PLD SC 1089) while exercising jurisdiction under Article 184(3) of the Constitution proceeded to disqualify the person elected, who despite being disqualified in terms of Article 63(1)(c) of the Constitution CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 15 made a false declaration on solemn affirmation in his nomination papers to the contrary. The relevant paragraphs read as under :- “we have no option but to hold that at the time of submitting their nomination papers they were disqualified and ineligible to file the same and apparently have made false statements while submitting their nomination papers’ ‘From the facts noted herein-above, what appears is that respondent was holding citizenship of a foreign state, made statement on oath that he is qualified under Article 62(1)(c) of the Constitution and not disqualified under Article 63(1) of the Constitution apparently made a false statement.’ ‘All members of the parliament/provincial assemblies noted above had made false declaration before the ECP while filing their nomination papers and as such appear to be guilty of corrupt practices in terms of Section 78 of ROPA, 1976, therefore, the ECP is directed to institute legal proceedings against them under section 82 of the Act read with Sections 193, 196, 197, 198 and 199 PPC in accordance with law.’ ‘As regards the case of Senator A. Rehman Malik, it may be noted that at the time of filing of nomination papers for election to the senate in the year 2008, he had made a false declaration to the effect that he was not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the parliament/provincial assembly, therefore, reference will be required to be made to the chairman senate under Article 63(2) in view of the provisions of section 99(1)(f) of the Act of 1976, which lays down that a person shall not be qualified from being elected or chosen as a member of an Assembly unless he is sagacious, righteous and non-profligate and honest and ameen. Mr. A. Rehman Malik, in view of the false declaration filed by him at the time of contesting the election to the senate held in the year 2008, wherein he was elected, cannot be considered sagacious, righteous honest and ameen within the contemplation of Section 99(1)(f).’ In the case of Sadiq Ali Memon. Vs. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246) this Court without recording any evidence, disqualified the candidate who filed a declaration to the effect that he fulfills qualification specified in Article 62 of the Constitution and is not subject to any disqualification specified in Article 63 of the Constitution by holding as under:- “In the present case, admittedly the petitioner has while filing nomination papers for contesting By-Elections of PS-84, Thatta-1, in 2010, filed a declaration to the effect that he fulfills qualifications specified in Article 62 of the Constitution and is not subject to any disqualification specified in Article 63 of the Constitution. This declaration was made by the petitioner despite the fact that he was holding dual nationality i.e. of Pakistan and of Canada and in terms of Article 63(1)(c) of the constitution on acquiring the citizenship of a CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 16 foreign state, he was disqualified from being elected or chosen as a member of majlis e shoora or the provincial assembly’ ‘Keeping in view the above state of law, it becomes apparent that while petitioner has filed a declaration, which on its face was a false and untrue declaration which will bring in to application the provisions of Article 62(1)(f) of the Constitution that he is not a sagacious, righteous, non-profligate and honest and ameen.” In the case of Mian Najeeb ud din Owasi. Vs. Amir Yar Waran (PLD 2013 SC 482), this Court disqualified a candidate who made a false declaration in the nomination papers in the column meant for academic qualification, by holding as under:- “yet if a candidate has made a declaration in the column meant for academic qualification and declared himself to be a graduate, but subsequently, it is found that he was not a graduate then he would be equally liable to face the consequences of Articles 62 & 63 of the Constitution or the other relevant provisions of the PPC. It is further to be observed that once there is a disqualification, it is always a disqualification; therefore while making a declaration in the nomination papers, a candidate must provide, a crystal clear statement about his credentials and antecedents. There is no scope of making or proving information, which is not correct, because he is one of the persons whom the electorate of a constituency, which may be having a strength of 50 thousand, are going to elect their representative. Therefore, whatever he possesses in terms of academic qualification, bank credits and taxes etc. he shall have to declare each and every thing required for the qualification to contest the election. ‘ ‘Once a person has filed a declaration under his signatures declaring that he fulfills the conditions of Articles 62 & 63 of the constitution and he undertakes that the statement is incorrect the ECP shall de-notify him for such representation, retrospectively.’ 11. The argument that the omission to disclose assets could possibly be unintentional in the circumstances of the case would have been tenable had the petitioner been a novice or a new entrant in business and politics. But where he has been neck deep in business and politics ever since early 80s’ it is unbelievable that he did not understand the simple principle of accounting that his accrued and accumulated salary of six and a half years was his asset and liability of the company he was an employee of. Even otherwise, this argument cannot be given much weight when it has not been pleaded by the petitioner that the omission to mention the asset was accidental, inadvertent or CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 17 unintentional. The argument that such disqualification is all the more unwarranted when the petitioner has not been given a fair chance to vindicate his position does not appear to be correct when we not only gave him a fair chance to vindicate his position before this Court, heard him at length for almost two days but also accepted whatever he stated about work permit, his employment contract with Capital FZE Jabal Ali, his position as the Chairman of the Board and his entitlement to salary which according to him was not withdrawn. The mere fact that we did not agree with the petitioner when he stated that his unwithdrawn salary is not an asset would not amount to denial of a fair chance to vindicate his position. The argument that much greater care has to be exercised in upholding the order disqualifying the petitioner in terms of Section 99(1)(f) of ROPA and Article 62(1)(f) of the Constitution when no appeal lies against it is more of an apprehension as we being conscious of our duties have dealt with this case with much greater care and circumspection in the judgment under review and while hearing and deciding this petition for review. The judgments rendered in the cases of Muhammad Saeed and 4 others. Vs. Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others, Khan Muhammad Yusuf Khan Khattak. Vs. S. M. Ayub and 2 others , Syed Saeed Hassan. Vs. Pyar Ali and 7 others, Muhammad Siddique Baloch. Vs. Jehangir Khan Tareen and others, Rai Hassan Nawaz. Vs. Haji Muhammad Ayub and others and Sheikh Muhammad Akram. Vs. Abdul Ghafoor and 19 others (supra) cited at the bar by the learned Sr. ASC for the petitioner being distinguishable on facts and law are not applicable to the case at hand. 12. The argument that the directions given by this Court to NAB to file References against respondents are per incurium on the face of the record as they amount to assuming the functions of the Chairman NAB and the judge of the Accountability Court which is not only against the law but also repugnant CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 18 to the provisions of the Constitution ensuring trichotomy of powers is not correct when both of them have been left on their own to proceed in accordance with law. What necessitated the issuance of these directions to the NAB has already been dealt with in paragraph 19 of the judgment dated 20th April, 2017 authored by one of us (Ejaz Afzal Khan, J) which deserves a look and reads as under:- “19. Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer. But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law. Any deviation from the recognized course would be a recipe for chaos. Having seen a deviation of such type, tomorrow, an Accountability Court could exercise jurisdiction under Article 184(3) of the Constitution and a trigger happy investigation officer while investigating the case could do away with the life of an accused if convinced that the latter is guilty of a heinous crime and that his trial in the Court of competent jurisdiction might result in delay or denial of justice. Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice. Any departure from such course, however well-intentioned it may be, would be a precursor of doom and disaster for the society. It as such would not be a solution to the problem nor would it be a step forward. It would indeed be a giant stride nay a long leap backward. The solution lies not in bypassing but in activating the institutions by having recourse to Article 190 of the Constitution. Political excitement, political adventure or even popular sentiments real or contrived may drive any or many to an aberrant course but we have to go by the law and the book. Let us stay and act within the parameters of the Constitution and the law as they stand, till the time they are changed or altered through an amendment therein.” 13. The argument that another direction to the NAB to file References on the basis of the material collected and referred to by the JIT and such other material which may be available to the FIA and NAB or the one which may come before it pursuant to the Mutual Legal Assistance Requests sent by the JIT to different jurisdictions is an encroachment on the authority of the NAB and violation of Article 175 (2) of the Constitution, could have been given some weight had there been no institutional capture, seizure and subjugation of all the important institutions of the State including NAB, SECP, CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 19 FBR, State Bank of Pakistan, National Bank of Pakistan and Intelligence Bureau through the cronies and collaborators of the person at the peak as has been evidenced during the course of hearing. We thus with our eyes open and minds awake would not let everything go into the hands of the cronies and collaborators for being taken to a dead end. Once things have been streamlined, they have to be taken to their logical conclusion. The argument that the direction to the NAB to file supplementary references if and when any other asset, which is not reasonably accounted for, is discovered has also been issued without jurisdiction as no provision of the Constitution including Article 187 empowers this Court to issue a direction of this nature is also devoid of force as this Court under Article 184(3) of the Constitution has the power to issue a direction if and when a person performing functions in connection with the affairs of the federation does not do what he is required by law to do. Supplementary References have to be filed if and when anything receivable in evidence pursuant to MLA requests sent by JIT to various jurisdictions are received. Else the leads revealed by Volume X and the outcome of the MLAs requests in respect of huge sums which have prima facie been dealt with by and on behalf of the petitioner, his sons and daughter through Montmarte Holdings S.A., L.Z. Nominees B.V.I., Fidex Registrar B.V.I., Berryvale Limited B.V.I. & E.M.S.I. (S.A.) in Luxemburg, Shamrock Consulting Corporation and Ansbacher A.G. acting through Hans Rodulf Wegmuller and Urs Specker in Switzerland would be thrown over board. 14. The argument that this direction implies unambiguous approval of the material collected by the JIT whose probative worth is yet to be established is also misconceived as none of our observations projects any such impression. The trial court in any case would be at liberty to appraise evidence including the material collected by the JIT according to the principles of the law of evidence without being influenced by any of our observations. Even CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 20 otherwise, all the observations made in the judgment, being tentative, would not bind nor would restrain the trial court from drawing its own conclusions from the evidence recorded before it in accordance with the principles and provisions of the law of evidence. The argument that the direction to the trial court for deciding the References within 6 months from the date of filing them also tends to prejudice the fair trial of the petitioner is also misconceived as the purpose behind such direction is not to prejudice the trial but to ensure expeditious conclusion of the case which more often than not has been extended even in the past by this Court, if the trial was delayed by any hardship or anything imponderable. The argument that the power to superintend the proceedings of the Accountability Court has not been conferred on the Supreme Court, therefore nomination of one of the judges of this Court to superintend them would be violative of Article 175(2) and (3) of the Constitution is also misconceived as this practice has been in vogue since long and the purpose behind it is to guard against intrusion of casualness in the proceedings before the trial court. Such practice, by no stretch of imagination, implies that the monitoring Judge would in any way influence or interfere with decision-making process of the Trial Court. It being completely innocuous to either of the parties would not tend to harm any. Its continuance, therefore, need not be objected to. The argument that the petitioner could not be disqualified in terms of section 99(1)(f) of ROPA and Article 62(1)(f) of the Constitution for non-disclosure of his unwithdrawn income from Capital FZE in his nomination papers for the 2013 General Elections when it was not specifically averred in any of the Constitution Petitions would not entail much when the proceedings before this Court under Article 184(3) of the Constitution being inquisitorial in nature cannot debar the Court from taking cognizance of a matter which is too obvious to be lost sight of. It was in view of this essential fact of the case that one of us (Ijaz ul Ahsan, J.) adverted to it in CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 21 paragraphs 87, 89 and 90(iii) of the judgment rendered on the 20th April 2017 in the words as under: “87. It is also an admitted position that Respondent No.8 set up a company under the name and style of Flagship Investments Limited which received substantial sums of money in the year 2001 when the said Respondent had no source of income. Over the course of the next few years, a number of other companies were set up/taken over by Respondent No.8 allegedly for the purpose of his real estate business. The sources from which the said companies/businesses were funded are also shrouded in mystery. There is yet another company under the name and style of Capital FZE, Dubai presumably registered under the laws of UAE. Funds also appear to have been routed through the said company from time to time by / and on behalf of Respondent No.7. The real ownership and business of the said company is unclear from the record which needs to be explained. No effort has been made on the part of the Respondents to answer the questions on the afore-noted matters. 89. Regrettably, most material questions have remained unanswered or answered insufficiently by Respondent No.1 and his children. I am also constrained to hold that I am not satisfied with the explanation offered by Respondent No.1 (Mian Muhammad Nawaz Sharif, the Prime Minister of Pakistan) and his children regarding the mode and manner in which the said properties came in their possession and what were the sources of funds utilized for acquisition of the same. Further, the source(s) of funding for Azizia Steel Mills and Hill Metals Establishment in Saudi Arabia, Flagship Investments Limited and a number of other companies set up/taken over by Respondent No.8 also need to be established. In addition the affairs of Capital FZE, Dubai which also appears to be owned by Respondent No.7 need an inquiry. The aforesaid investigation and inquiry under normal circumstances should have been conducted by NAB. However, it has become quite obvious to us during these proceedings, that Chairman NAB is too partial and partisan to be solely entrusted with such an important and sensitive investigation involving the Prime Minister of Pakistan and his family. Further owing to the nature and scope of investigation a broader pool of investigative expertise is required which may not be available with NAB. 90. In the afore-noted circumstances, I would order as follows:- (iii) Evidence shall also be collected by the JIT regarding source(s) of funding of Capital FZE, Dubai; its business activities and role in transfer of funds to different entities owned or controlled by Respondents No.7 & 8”. 15. It thus cannot be said that the petitioner was taken by surprise in an inquisitorial proceeding when the facts entailing his disqualification as mentioned above have not been disputed. The argument that where material collected by the JIT is not worthy of reliance and the report submitted by it is full of infirmities commendation of JIT and its report reflected in the concluding CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 22 parts of the judgments under review would tend to prejudice the case of the petitioner, therefore, it needs to be qualified is again based on misunderstanding when the commendation or any other observation being tentative would not restrict the trial court to discard it if and when any infirmity therein became palpable on the record. 16. The argument of the learned Sr. ASC for the petitioner in CRP No. 313 of 2017 that where the rise in assets of the petitioner has been explained by the relevant documents including the returns filed by him, issuance of a direction to the NAB authorities to file a Reference against him does not appear to be well-founded need not be commented upon at this stage as it would tend to prejudice the case of the petitioner before the Accountability Court. The argument that where nothing significant turned against the petitioner, the JIT could not have collected any material against him nor could this Court direct the NAB to file a Reference does not appear to be correct when the entire case is considered in its totality. 17. The argument of the learned ASC in the CRP No. 308 and 309 of 2017 that when no material has come on the record to show any nexus between respondent No. 10 in C.P. No. 29 of 2016 and the Avenfield apartments, the direction to the NAB authorities to file a Reference against him is not sustainable is not correct when he is the spouse of respondent No. 6 in the Civil Petition No. 29 of 2016 who prima facie happens to be the beneficial owner of the Avenfield apartments. The argument that the observations in the judgments commending the JIT and its reports also need to be diluted lest they are accepted by the NAB and the Accountability Court as being unquestionable has already been attended to above. 18. The long and short of what has been said above is that no error much less patent on the face of the judgment under review has been pointed out as could call for any change or modification therein except the observations CRP. NOS. 297 TO 299, 303, 308 TO 312 OF 2017. 23 mentioned above. These are the detailed reasons of our short order dated 15.09.2017 dismissing the review petitions. I agree and have added a very brief note of my own. (ASIF SAEED KHAN KHOSA) JUDGE (EJAZ AFZAL KHAN) JUDGE (GULZAR AHMED) JUDGE (SH. AZMAT SAEED) JUDGE (IJAZ UL AHSAN) JUDGE Asif Saeed Khan Khosa, J.- No ground has been taken in these review petitions nor any argument has been advanced at the bar questioning anything observed or concluded by me in my separate opinion recorded in the main case. The other Hon’ble members of the Bench have not felt persuaded to review their opinions already recorded. These review petitions are, therefore, dismissed. (JUDGE) ISLAMABAD. 15.09.2017. M. Azhar Malik ‘Approved for Reporting’

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE NASIR-UL-MULK, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 (To review this Court’s judgment dated 31.10.2013 passed in Suo Moto Case No. 11/2011) Anjum Aqeel Khan (In CRP 309/2013) Iftikhar Ahmed Khan (In CRP 310/2013) Laeeq Ahmed Khan (In CRP 311/2013) Khuda Bakhsh (In CRP 312/2013) Muhammad Rafiq Haider (In CRP 320/2013) Sikandar Hayat Shaheen (In CRP 321/2013) Syed Abid Abbas (In CRP 323/2013) Muhammad Arsahd Saeed (In CRP 324/2013) I.M. Mohsin (In CRP 325/2013) Abdul Qadir Haye (In CRP 326/2013) Wajahat Latif (In CRP 327/2013) Sultan Azam Temuri (In CRP 348/2013) Abdul Hannan (In CRP 349/2013) Tahir Awais (In CRP 354/2013) Ch. Tahir Sattar (In CRP 355/2013) Zakir Ali (In CRP 356/2013) Miss Sadia Afzal Rana and another (In CRP 361/2013) Sardar Amir Mumtaz (In CRP 362/2013) Brig (R) Zahid Waheed Butt (In CRP 364/2013) Agha Baqir Ali and another (In CRP 365/2013) Agha Sibtain Raza (In CRP 366/2013) Amjad Bashir and others (In CRP 373/2013) Muhammad Afzal Khan (In CRP 377/2013) Israr Ahmed (In CRP 378/2013) Saad Ullah Khan (In CRP 357/2013) Amjad Ayub Khan (In CRP 358/2013) Naib Khan (In CRP 359/2013) Khan Javed Iqbal (In CRP 360/2013) Ch. Talib Hussain Warriach (In CRP 363/2013) Muhammad Anwar Javed Cheema etc (In CRP 367/2013) Muhammad Hassan Qureshi (In CRP 368/2013) Tauqeer Anwar Durrani and others (In CRP 369/2013) Muhammad Fayyaz (In CRP 370/2013) Alam Zaib Khan and others (In CRP 371/2013) C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 2 Samina Asmat (In CRP 372/2013) Dewan Muhammad Ziaur Rehman Farooqi (In CRP 374/2013) Mian Najam Sohail and others (In CRP 375/2013) Mrs. Yasmeen Nasser Mian (In CRP 376/2013) Ghulam Sughra (In CRP 31/2014) Jawad Bashir (In CRP 32/2014) Muhammad Hassan (In CRP 33/2014) Khawaja Abdul Haq Tahir (In CRP 49/2014) Muhammad Umer Khayam (In CRP 50/2014) Mohsin Shahzad (In CRP 51/2014) Asad ur Rehman (In CRP 52/2014) Mrs. Shahida Nasreen (In CRP 53/2014) Mst. Sooban Bi (In CRP 54/2014) Muhammad Zaman Shahid (In CMA 1059/2014) Imran Hussain (In CMA 1063/2014) Arif Hussain (In CMA 2334/2014) Naseer Ali (In CMA 2338/2014) Mrs. Farhat Razzaque (In CMA 2343/2014) Mrs. Nayyar Rafat (In CMA 2347/2014) Mrs. Surriya Nawaz (In CMA 2351/2014) Fasihur Rehman (In CMA 2353/2014) Mrs. Erum Fayyaz (In CMA 1429/2015) … Petitioners/Applicants VERSUS National Police Foundation through its M.D. etc (In all cases) … Respondents For the Petitioners: Mr. Makhdoom Ali Khan, Sr. ASC (In CRP 309/2013) Mr. Hamid Khan, Sr. ASC (In CRPs 310 to 312 & 349/2013) Mr. Zahid Nawaz Cheema, ASC Syed Ali Zafar, ASC (In CRPs 320, 321, 323, 324 to 327, 348 & 378/13) Dr. Rana Muhammad Shamim, ASC (In CRP 361/2013) Malik Waheed Anjum, ASC (In CRP 362/2013) Malik Jawwad Khalid, ASC (In CRPs 355 & 373/2013 & CMA No. 1059/2014) Mian Abdul Rauf, ASC (In CRPs 356 to 360/2013 & CRPs 51 & 52/2014) Mr. Muhammad Aslam Ghumman, ASC (In CRP 363/2013) Raja Inam Ameen Minhas, ASC (In CRP 364/2013) C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 3 Malik Ghulam Mustafa Kandwal, ASC (In CRPs 367 to 370, 375/2013 & CMA 1063/2014) Syed Rifaqat Hussain Shah, AOR (In CRPs 371-372/2013) In person (In CRPs 376-377/2013) Mr. Shamshadullah Cheema, ASC (In CRP 33/2014) Sardar Muhammad Ghazi, ASC (In CRP 49/2014 & CMA 2353/2014) Sardar Muhammad Ashfaq Abbasi, ASC (In CRP 50/2014) Mr. Hashmat Ali Habib, ASC (In CMAs 2334, 2338, 2343, 2347, 2351/2014) Mr. Afnan Karim Kundi, ASC (In CRPs 365-366/2013) Ch. Naseer Ahmed Tahir, ASC (In CRP 354/2013) Mr. Muhammad Munir Paracha, ASC (In CRP 374/2013) Mr. Rehan ud Din Galra, ASC (In CRPs 53-54/2014) Mr. Farhat Nawaz Lodhi, ASC (In CRPs 31 & 32/2014) Mr. Muhammad Ilyas Siddiqui, ASC (In CMA 1429/2014) For the Respondents: Syed Zahid Hussain Bukhari, ASC Syed Asghar Hussain Sabzwari, ASC Dr. Aslam Khaki, ASC Raja Abdul Ghafoor, AOR Dates of Hearing: 21/26/27/29.05.2014 & 06.04.2015 JUDGMENT IJAZ AHMED CHAUDHRY, J.- Through these review petitions, the petitioners seek review of this Court’s judgment dated 31.10.2013 passed in SMC No. 11/2011 whereby the said SMC was disposed of with the following directions: - C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 4 “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 dependents are declared to be illegally allotted and are 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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 5 his property, moveable or immoveable and that of his dependents. 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 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 report regarding receipts and payments by the Foundation from the date of its creation till date. 8. 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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 6 may serve the deterrence of like minded people. It is further directed that the progress report shall be submitted by the Chairman NAB through the Registrar of this Court for the action taken by him within 90 days.” 2. Mr. Makhdoom Ali Khan, learned counsel for the petitioner Anjum Aqeel Khan in CRP No. 309/2013 seeks review of the impugned judgment by contending that there are errors apparent on the face of record in the judgment under review which need to be corrected; that this Court in exercise of suo moto jurisdiction cannot side step and bypass the safeguards which are available to a party under the law in civil proceedings; that this Court during the pendency of the criminal proceedings could not make observations and record findings without recording of evidence as this would seriously prejudice the right of the petitioner in the criminal proceedings; that by means of the judgment under review, right to fair trial as envisaged under Article 10-A of the Constitution has been denied to the petitioner; that the petitioner cannot be declared as corrupt without recording of evidence as required under Qanoon-e- Shahadat Order, 1984; that in the presence of conflicting reports by the various authorities and without conducting a land audit, the petitioner cannot be directed to provide 126 kanals of land; that the cost of the land was actually fixed by the head of the Police Foundation, which was accepted by the petitioner, rather he paid the extra amount; that the petitioner was not afforded an opportunity to confront and cross-examine the author of the report i.e. former M.D. National Police C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 7 Foundation; that this Court cannot record finding of fact in exercise of suo moto jurisdiction; that this Court has not taken into consideration the fact that criminal proceedings against the petitioner had already been undertaken by the Federal Investigation Agency (FIA) in which he was declared innocent and in this view of the matter, the Reference could not have been sent to NAB against the petitioner; that exorbitant liability has been imposed on the petitioner, which is against the facts and circumstances of the present case. 3. Mr. Hamid Khan, learned counsel for the petitioners / ex-officials of National Police Foundation / Board of Directors in CRP Nos. 310 to 312 & 349 of 2013 has contended that the officials had acted in good faith and the alleged irregularities and illegalities cannot be attributed to the petitioners; that the petitioners cannot be held guilty by solely relying upon the report of Mr. Zafar Ahmed Qureshi, former M.D. of the National Police Foundation; that the definition of ‘charitable purpose’ as appeared in Section 2 of the Charitable Endowments Act, 1890 is non-exhaustive; that the news reporter Mr. Rauf Kalasra, on whose report the suo moto action was taken, was not legally bound to appear or to file his affidavit as provided in the Supreme Court Rules; that even he was not cross-examined by the petitioners and in such circumstances his statement could not have been relied upon by this Court. He further added that due process of law has not been adopted and right to fair trial as provided under Article 10-A of the Constitution has also not C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 8 been given to the petitioners; that the petitioners while discharging their duties have exercised their powers in the best interest of the Foundation for making the housing scheme successful; that the Constitution of the National Police Foundation does not restrict its Board of Directors from allotting more than one plot to any person; that there is no legal restriction or bar against allotment of plots by the Committee of Administration as a reward for good service by its employees who fell within the definition of beneficiaries or allotment of plots to the relatives of the employees of the NPF; that under Section 18 of the NAB Ordinance, 1999, only the Chairman of NAB or the person duly authorized by him is empowered to take a decision regarding initiation of proceedings against anyone; that petitioners in the earlier investigation conducted by the FIA had been declared innocent by the Special Judge Central and holding them guilty amounts to violation of Article 13 of the Constitution which inter alia provides that a person could not be prosecuted or punished for the same offence twice and that the judgment under review is liable to be reviewed on the points mentioned above. 4. Learned counsel for the petitioners / allottees of the plots Syed Ali Zafar in CRP Nos. 320, 321, 323 to 327, 348 & 378 of 2013 has submitted that the petitioners had purchased the plots from National Police Foundation about 25 years ago when the area was totally undeveloped and barren and in fact the Foundation was not in possession of any land; that in spite C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 9 of such conditions the petitioners paid the market price for the plots in the hope that one day they will be able to live in a peaceful environment; that to determine whether the petitioners had purchased the plots below market price, as a first step an inquiry should have been conducted as to what was the market price of the land in question in the year 1989 or at the time when the same was purchased, which admittedly has not been done and in the absence of such an inquiry this Court could not have decided that the petitioners had obtained plots at cheaper rates; that the judgment under review is based on conjectures and assumptions and not on any direct or indirect evidence and the same is violative of Article 10A of the Constitution and the law laid down by this Court regarding due process of law. Regarding the issue whether the public or other family members of a police officer could purchase the plots, learned counsel contended that there is no such law in which an individual is stopped from owning property and the Court in coming to the conclusion that the family members of a police officer were not entitled to purchase the plots, had acted unlawfully. According to him, the only question was as to whether the market value was paid or not. Learned counsel further added that none of the ingredients which are sine qua non for the exercise of jurisdiction by this Court under Article 184(3) of the Constitution are present; that the schemes in which petitioners have purchased the plots at market price were not for the welfare of the serving or retired persons in the Police Force but C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 10 those were projects launched by NPF for the purposes of sale to the public and generation of income therefrom and that it was the income from this project that was to be used for the welfare of the serving and retired persons and that there was no restriction whatsoever in the terms and conditions that a family member of a police officer cannot apply for purchasing the plot in her own name. 5. Learned counsel for the petitioners in CRP Nos. 361, 362, 364 to 366, 373 of 2013 & 53 & 54 of 2014 and CMA No. 1059/2014 & petitioner in person in C.R.P. No. 377/2013 and learned counsel for the applicants in CMA Nos. 2334, 2338, 2343, 2347 & 2351 of 2014 have made almost similar prayers. According to them they were bona fide purchasers for consideration and their allotment has been cancelled without notice; that the petitioners/applicants were neither heard nor were made party; that the petitioners have unblemished service record and they have never misused or have ever transgressed their authority; that the allotment of plots in their favour was through a transparent and lawful manner and was in accordance with the relevant rules which were in vogue that time and that after a considerable long period in a suo moto jurisdiction, the legality of the allotment cannot be disputed. 6. The case of the petitioners in other review petitions i.e. CRP Nos. 354 to 360, 363, 367 to 372, 374 to 376 of 2013, 31 to 33, 49 & 50 to 52 of 2014 and applicants in CMA Nos. 1063 & 2353/2014 who are subsequent purchasers is that they C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 11 are bona fide purchasers for consideration after having undergone a thorough process of due verification and have paid market value without getting involved in any act of omission or commission for undue enrichment or malicious gain; that they have been condemned unheard; that they have acted in good faith; that in the absence of there being any ill-gotten gain, the petitioners/applicants have vested right that their proprietary rights in the properties with constructions thereon, if any, should be protected; that the judgment under review is silent about the fixation of the fair market prices presently prevailing; that if at all the amount is to be paid, then that must be paid by the original allottees who are established to have gained unlawfully or are the beneficiaries of undue enrichment. In view of the above, they have prayed for setting aside of the judgment under review. 7. Learned counsel for the National Police Foundation, on the other hand, has inter alia contended that the Housing Schemes were established on commercial basis; that it was not mentioned anywhere in the application form that other family members cannot apply; that the schemes were launched to generate funds as the Foundation was facing acute shortage of funds. 8. We have heard learned counsel for the petitioners / applicants as also learned counsel for the NPF and have deeply considered the submissions made by them. C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 12 9. It is on record that National Police Foundation has been established in the year 1975 under Charitable Endowment Act, 1890. The main purpose for its establishment was to provide relief to the poor police officials of throughout the country in the shape of medical, education, one time grant, artificial limbs, scholarships, dowry, vocational training centres etc. Word ‘charitable purpose’ has been defined in Section 2 of the Act which 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. As such the benefit could be given only to poor who are entitled to have share from charity. No one has argued that the NPF was not a charitable institution. We have noticed that the Committee of Administration of the NPF 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 police officials of all over the country. The NPF has deviated from the basic purpose of charitable for which it was established. So far as the question as to whether the NPF was authorized to launch private housing schemes for the general public is concerned, it has been discussed at length in the main judgment that the Foundation could do so only for the help of beneficiaries but not for private persons or officers / officials of other departments under the garb of beneficiaries. Establishment and launching of private housing schemes for the C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 13 general public is against the very object and aim of the Foundation. We have noted that only the influential persons have gotten the benefit of the schemes launched by the Foundation and the needy poor police officials have been deprived of their right. The argument that the schemes were launched only to generate funds is a belated argument just to save the skin. Such valuable plots have been squandered only to favour the higher police officers and other persons as also to their family members who were not at all entitled to the allotment of plots. Even the balloting was not done. If generation of funds was the main purpose, then the plots should have to be sold in open market so as to get maximum price. It was for these reasons that we have observed in the main judgment that “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.” We had also taken note of the fact that no criterion for allotment of plots was made and had observed in para 38 of the impugned judgment as under:- “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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 14 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.” It is correct that plots could be allotted to the officials/employees by the Committee of Administration but in all the process impartiality should be the most important factor, which as discussed above, was unfortunately found lacking in the instant process, which led to initiation of suo moto proceedings. In the main judgment, a list has been provided according to which more than one plot has been allotted to several police & government officials as also to other civilians. Some of the families were allotted five plots and some were allotted more than ten plots. In one case, an NPF employee was allotted 8 plots by the Foundation. There is a long list of police officials and even others who got two or more than two plots. Not only this, several plots have been allotted to family members of police officials. Some of the plots were even given at the rate of Rs.100/-. If for the sake of arguments we admit that the schemes were launched only to generate funds, then why several plots were allotted on a cheaper price of Rs.100/-. This clearly establishes that there was some mala fide on the part of the Foundation. For ready reference the list is reproduced as under:- Srl. No. Name & Designation Plot No. & Size Sche me Date of Allotment Cost of Land by NPF 1. Mr. Abdul Qadir Haye, 379(50x90) E-11 6.4.2003 1130000.00 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 15 I.G. 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 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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 16 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, Inspector 546(50x90) E-11 4.7.1998 1130100.00 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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 17 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 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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 18 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, ® Director FIA 185(12x20) O-9 22.2.2010 1491000.00 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 163-G O-9 1.3.2003 450100.00 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 19 Ibn-e-Ali Rizvi (50x90) 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. Khuda Dad Khan 2150 (50x90) O-9 16.9.2002 450100.00 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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 20 102. 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.) Ex-MD NPF 606 (50x90) E-11 21.3.2000 1130100.00 112. 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 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 21 121. 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 777877.00 133. 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 (Mem bersh ip) 04.07.1998 565100.00 143. Miss Nasira Naureen 644 E-11 21.02.2003 2871300.00 C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 22 d/o Khuda Bukhsh (50 & 90) (purc hase d) 144. Mr. Khuda Bakhsh, Ex-DDH/NPF 211 (35 X 65) E-11 Mem bersh ip) 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 10. The above list clearly proves that the Management of the NPF have allotted plots to the police officials not only over and above their entitlement but certain civilians of their choice as well as military officials have been allotted plots, who even do not fall within the definition of the beneficiaries as discussed earlier. Even the possibility cannot be ruled out that the officials sitting at the helm of affairs in the NPF have not provided the complete list and have concealed many of other identical cases. So far as the argument of learned counsel that none of the ingredients for the exercise of suo moto jurisdiction by this Court are present in these proceedings is concerned, we have C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 23 found that it is a classic case of public importance where loot- sale of plots was going on in the name of generation of funds depriving the deserving poor police officials and the same squarely fell within the ambit of Article 184(3) of the Constitution. This Court has full powers to take suo moto action in such like cases of public importance. 11. So far as the case of Anjum Aqeel Khan is concerned, during the pendency of the proceedings at the time of hearing of S.M.C. No. 11/2011, the matter was inquired into by Mr. Zafar Ahmed Qureshi, Ex-M.D. of NPF. In the said inquiry not only Anjum Aqeel Khan was associated but the concerned officials of the NPF were also associated. Anjum Aqeel Khan not only admitted lapses on his part but also entered into agreements with the Foundation so as to make the loss good. These agreements are on record and are reproduced in the main judgment. If he had not done any wrong or he was not involved, then why he admitted his lapses and entered into agreements with the Foundation. Even learned counsel for Anjum Aqeel Khan at the time of hearing of main case, in his CMA bearing No. 3742/2013 while summing up his arguments had also stated that Anjum Aqeel Khan is ready and willing to abide by the terms of the settlement agreement signed by him with the NPF. Due to this reason, we had directed Chairman NAB to initiate proceedings against the delinquent persons as also against Anjum Aqeel Khan. One of the arguments raised by learned counsel was that Mr. Rauf Kalasra (journalist) on whose C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 24 report the suo moto action was taken was not legally entitled to appear or to file his affidavit. However, this argument is misconceived. He had appeared at the asking of the Court in order to do complete justice and the impugned judgment was not passed only on his statement. It was the matter of great public importance, which compelled this Court to pass the impugned judgment. So far as the argument raised that under Section 18 of the National Accountability Bureau Ordinance, 1999, only the Chairman NAB or the person duly authorized by him is empowered to take a decision regarding initiation of proceedings against anyone is concerned, it is stated that this Court under Article 184(3) of the Constitution has very vast powers and if this Court considers that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by the Constitution is involved, it has jurisdiction to pass appropriate orders. In Muhammad Yasin Vs. Federation of Pakistan through Secretary Establishment Division (2012 PLD 132) petitioner filed a direct petition before this Court assailing appointment of respondent as Chairman OGRA. This Court declared the appointment of respondent as void ab initio and directed the NAB to proceed in the matter of serious allegations enumerated in the Constitution petition including those enumerated in the judgment and the conduct of State functionaries who were engaged in the process of selection of respondent as Chairman OGRA. This Court in several other cases like Rental power case, Hajj scam and C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 25 Punjab Bank case had sent the matters to NAB. In Ashfaque Ahmed Vs. National Accountability Bureau through Chairman (2014 PLD 109, Quetta) petitioner was civil servant who was found involved in embezzlement and the Service Tribunal had referred the matter to NAB for initiation of proceedings. The petitioner challenged the said order before the Balochistan High Court with the contention that cognizance of any offence could only be taken on a reference made by the Chairman NAB and as such proceedings initiated on the directions of Service Tribunal were coram non judice. The learned High Court has held that anybody or any authority could inform the NAB that a person was involved in an offence and such information could be termed as complaint and that NAB authorities could initiate proceedings against a person on its own accord, only on coming to know about an offence from any source, including a reference received from government or upon receipt of a complaint. Such information could also be gathered from a judgment or order of Tribunal or Court, forming basis to initiate proceedings by the Chairman NAB on its own accord. One of the points raised by learned counsel was that the impugned judgment amounts to violation of Article 13 of the Constitution as vide the judgment the Board of Directors / employees have been held guilty. The apprehension of learned counsel is misconceived. We have not declared any person as guilty but have only referred the matter to NAB to investigate the matter fairly, justly and in accordance with law. If someone is not guilty, he should not have any fear in C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 26 his mind and in the facts and circumstances of this case no question of violation of Article 13 of the Constitution arises. However, it is made clear that all the observations made in these proceedings are tentative in nature and NAB or any other investigating agency will proceed against the delinquent persons strictly on merit without being influenced by any observations made in these proceedings. 12. We have noticed that at the time of hearing of main case, the case of the persons who have been allotted more than one plot was that they were dependents of the police officers. However, in these proceedings they have taken a different stance that there was no mention in the application form that the family member of a police officer could not purchase the plots and that they have purchased the plots in their own capacity. However, the NPF has admitted that they were beneficiaries. As we have discussed above, the main purpose for the establishment of NPF was to provide relief to the poor and deserving police officials of all over the country and not to only higher and influential persons as also to their families. The purpose could be justly and fairly met if only one plot was allotted to only deserving police officials, but unfortunately the same has not been done. All what has been done in the name of generation of funds and charity is nothing but a severe and gross illegality. 13. There are three categories of persons in this case. First, where the persons were allotted only one plot. C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 27 There are further two sub categories in the first category. In first type police officers / officials or employees of the Foundation have been allotted only one plot each and in second type, civilians, bureaucrats, army personnels etc have been allotted only one plot each. Second, where the persons were allotted more than one plot either in their names or in the names of their family members. Third, where the persons have purchased plots from the original allottees (subsequent allottees). 14. So far as the second category is concerned, for what has been discussed above, more than one plot allotted to any person and his family members shall stand cancelled. However, if they want to retain the plots, they can pay the market price of the plots, which shall be determined by the Commission, detail of which is given in the last paragraph of this judgment. 15. So far as first sub-category in the first category i.e. police officers and employees of Foundation who have been allotted only one plot is concerned, we are persuaded to hold that they can keep the plots. Though we have found several illegalities in the process of allotment of plots but in the interest of justice, we are not going to cancel their allotment. There is some justification for allotment of plots to them. 16. So far as second sub-category in the first category i.e. civilians, bureaucrats, army personnels etc is concerned, they were not at all entitled for the allotment of plots. Hence their allotment is cancelled. However, if they want to retain the C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 28 plots, they can pay the market price thereof, which shall be determined by the Commission. The other person(s) who had been allotted only one plot and subsequently they have transferred it in the name of their family members also fall in this category. 17. However, so far as the subsequent purchasers / bona fide purchasers are concerned, it would be harsh if their plots are cancelled. Many of them have built houses. After a passage of more than 10 years, depriving them of the plots and the houses constructed thereon will be a grave miscarriage of justice. They have acted in good faith and they are lawful owners in possession of the plots and the market value of the property at present has reached a stage mainly on account of the development and construction by them. They have purchased the plots from the original allottees after having undergone a thorough process of due verification and paid the market price prevailing at that time. If the original allottees had not turned up or had not fulfilled their obligations, the bona fide purchasers cannot be attributed any mala fide. If at all, any amount is to be paid, that should be paid by the original allottees, who are established to have gained unlawfully or who are the beneficiaries of undue enrichment. 18. Learned counsel for the petitioners in the review petitions as also CMAs filed by Anjum Aqeel Khan and the persons who were allotted more than one plot either in their name or their family members have tried to reargue the case, C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 29 which cannot be allowed in review jurisdiction. Same is the case with the petitioners / applicants who were allotted only one plot but without any entitlement i.e. civilians, bureaucrats, army personnels etc. As such the review petitions as also CMAs filed by Anjum Aqeel Khan and the persons who were allotted more than one plot as also the petitioners / applicants who were allotted only one plot but without any entitlement i.e. civilians, bureaucrats, army personnels etc are dismissed. However, we have observed that there is strong case of bona fide purchasers/subsequent allottees. Consequently, the review petitions as also CMAs filed by the bona fide purchasers/subsequent allottees as also the persons who were allotted only one plot i.e. police officers/officials and employees of Foundation are disposed of. It is directed that a Commission headed by Mr. Justice Moulvi Anwar-ul-Haq, former Judge of the Lahore High Court, be constituted, which shall determine the cases of subsequent purchasers / bona fide purchasers from the original allottees as to how can the market price of the plots be determined and recovery can be made from the original allottee of the difference between the allotment price and the market price of the land. The Commission shall submit its report, for our perusal in Chambers, within a period of two months after the date of formation. The Commission shall also consider the cases of persons who fall in the second sub-category of first category who have been allotted only one plot as to whether they had paid the C.R.P. NOs. 309 TO 312, 320, 321, 323 TO 327, 348, 349, 354 TO 356, 361, 362, 364 TO 366, 373, 377, 378, 357 To 360, 363, 367 TO 372, 374 TO 376 OF 2013 AND 31 TO 33, 49 TO 54 OF 2014 AND C.M.A. NOs. 1059, 1063, 2334, 2338, 2343, 2347, 2351, 2353 OF 2014 IN C.R.P. NOs. NIL OF 2014 IN S.M.C. NO. 11 OF 2011 AND C.M.A. NO. 1429 OF 2015 IN C.R.P. NO. NIL OF 2015 IN S.M.C. NO. 11 OF 2011 30 market price or not and if not what will be the market price and what will be the mode of recovery. The Commission is further directed to consider the cases of persons who fall in the second category, detail of which has been given in para 14 above, as to what is the market price and how it can be recovered. The fee and other allowances of the Commission shall be determined by the NPF after discussing with the Hon’ble former Judge. The National Police Foundation is directed to provide full assistance/facilities to the Commission either in the shape of provision of office and staff or conveyance facility or in any other form and all the relevant record shall be made available to the Commission. The Commission will settle/propose the terms and steps as to how the judgment of this Court can be complied with. CHIEF JUSTICE JUDGE JUDGE Islamabad, Announced on ________________ Approved For Reporting Khurram`

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Civil Review Petitions No.310, 311 AND 217 OF 2018 ALONGWITH CMA No.7552/2020. (Against the judgment dated 28.3.2018 passed by this Court in CAs No.970 AND 971 of 2013 – CMA for permission to argue the case) Shaheen Airport Services Petitioners (In 310-311/18) MCB Bank Ltd. Petitioner (In 217/18) Versus National Industrial Relations Commission thr. its Chairman, etc. Respondents (In 310-311/18) Tariq Zameer Siddiqui, etc. Respondents (In 217/18) For the Petitioner (s) : Mr. Khalid Anwar, Sr. ASC (via video link) Mr. Rashid Anwar, ASC (In 310-311/18) For the Petitioner (s) Mr. Shahid Anwar Bajwa, ASC (In 217/18) For the Respondent(s) : Mr. Sohail Mahmood, Addl. AGP Mr. Ayyaz Shaukat, DAG Mr. Ibrar Saleem, Dy. Reg. NIRC For Govt. of Punjab Ch. Faisal Farid, Addl. AG Punjab Rab Nawaz Zahid Director IRI Fazal Hussain, Director Labour Date of Hearing : 07.12.2020 Judgment Sajjad Ali Shah, J. (CMA 7552/2020) In view of the fact that Mr. Khalid Anwar, Sr. ASC for the review petitioner was provided an opportunity to address the Court through video-link from his Office, therefore, this application seeking permission to argue the case through an alternate counsel has become infructuous and is disposed of accordingly. CRPs No. 310 & 311 of 2018: The petitioner-Shaheen Airport Service seeks review of para 22 of our judgment dated 28.3.2018 which reads as follows:- “22. There is yet another question involved in the matter, namely, the appellant-Shaheen Airport Services is a charitable organization or not. It is the case of the appellant that charitable organizations are excluded from the operation of both the federal and provincial law, therefore, regardless of the question whether the appellant is a trans- CRPs 310 & 311 of 2018 2 provincial establishment for purposes of the federal law or whether it comes within the ambit of the provincial law, the appellant falls outside the purview of both the IRA, 2012 and the SIRA, 2013, resultantly, no trade union can be registered within the appellant. In this regard it is to be noted that the learned High Court has considered this question in detail and has held that the federal law was applicable to Shaheen Airport Services as the same was operative in more than one province and that Shaheen Airport Services did not qualify as a charitable organization in view of the activities that were entailed in the operation of its business. We are in agreement with the findings of the learned High Court.” 2. Mr. Khalid Anwar learned Sr. ASC for the review-petitioner contends that the applicability of the Industrial Relations Act, 2012 (‘IRA 2012’) and the Sindh Industrial Relations Act, 2013 (‘SIRA 2013’) to the petitioner was assumed on the ground that the High Court has considered this question in detail and, therefore, in the judgment under review it was maintained that the Federal law was applicable to the petitioner Shaheen Airport Services as the petitioner was operative in more than one province and that it did not qualify as charitable organization in view of the activities that were entailed in the operation of its business. Per counsel such findings were per incuriam as IRA 2012 as well as SIRA 2013 expressly exclude its application to all business, trade, manufacture, calling, service, including fishing, mining, agriculture, extraction, exploration, processing, print and electronic media, employment or occupation of producing goods or services for sale. In order to support his contention, counsel has referred to the provisions of Section 2(xvii) of the IRA 2012 and 2(xvi) of SIRA 2013. It was next contended that the findings of the High Court in para 15 of its judgment that charity or no charity, it is the activity of the establishment that determines whether it falls within the ambit of industry or not and the answer to this question posed lies in the definition of word industry as given in Section 2(xiv) of the Industrial Relations Ordinance, 1969, are CRPs 310 & 311 of 2018 3 erroneous and are based on the assumption that after the repeal of IRO 2008 through sunset clause on 30.4.2010 and before the promulgation of SIRA 2013, the Industrial Relations Ordinance 1969 stood revive. Again such findings are per incuriam and against the law laid down by this Court in the case of Air League of PIAC Employees through President vs. Federation of Pakistan M/O Labour and Manpower Division Islamabad and others (2011 SCMR 1254) wherein it was clearly held that IRA 2012 would be applicable retrospectively with effect from 1.5.2010 when the IRO 2008 ceased to exist. It was, therefore, contended that dislodging the status of review petitioner as charitable institution by examining its activities was not permissible as envisaged in Sections 2(xvii) of IRA 2012 and 2(xvi) of SIRA 2013 and, therefore, the findings of the High Court to that extent were per incuriam and consequently the adoption of this Court of such findings in para 22 calls for review. 3. On the other hand, it was contended that the very status of the review petitioner as a charitable institution was questioned and there are concurrent findings which assert that the petitioner is not a charitable institution. It was contended that if the character of the review petitioner as charitable institution is assumed, then there is no denial that the applicability of industrial relations laws would be barred as provided in IRA 2012 and SIRA 2013 as pleaded. 4. It is evident from the record that the claim of the review petitioner as being a charitable institution through out was declined and therefore, was held to be amenable to relevant labour laws and ultimately the review petitioner filed the referred petition inter alia, seeking a declaration regarding its status as a charitable institution and the High Court after hearing the parties, again refused to give such declaration by holding: “… though Shaheen Foundation may be, and it appears is a charitable institution but that cannot be said about the CRPs 310 & 311 of 2018 4 petitioner’s establishment i.e. SAPS. SAPS only exists for making profit. The fact that it yields its profit to Shaheen Foundation which in turn uses it for charitable purposes could not make SAPS a charitable organization. Doing so would tantamount to making, in the words of Justice Krishna Iyer “Good Samaritans” into “clever industrialists”. And ultimately this Court in para 22 upheld such finding that the review petitioner is not a charitable institution. Once such finding has come to record, the review petitioner cannot claim the benefit of Section 2(xvii) of IRA 2012 or of 2(xvi) of SIRA 2013 in order to claim immunity. These review petitions consequently fail and are, therefore, dismissed. CRP No. 217 of 2018: Due to paucity of time, hearing of this review petition is adjourned. Judge Judge Islamabad, the 7th December, 2020 A. Rehman Judge Not Approved for Reporting.

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Ejaz Afzal Khan Mr. Justice Maqbool Baqar CRPs Nos.315-316 of 2013 in CMAs-6158-6159/13 in SMC-20 of 2007 AND Crl.O.P. No.115 of 2014. National Highway Authority thr. its Chairman …Petitioners in both petitions Israr Ahmed & others …Petitioners in Crl.O.P.115/14 Versus Roedad Khan … Respondent in both petitions Maroof Afzal, Chairman, and others … Respondents in Crl.O.P.115/14 For the petitioner(s): Malik Shakil-ur-Rehman, ASC (In CRP 315-16/13) Syed Nayab Hassan Gardezi, ASC (in Crl.O.P.115/14) For the respondents-1,4&5: Mr. Munir Paracha, Sr. ASC Hafiz S. A. Rehman, Sr. ASC Hafiz Hifzur Rehman, ASC/Legal Advisor Syed Mustafain Kazmi, Member (Environment) Dr. Sheikh Suleman, DG, (Environment) Rana Tahir Hassan, Director (Environment) Other respondents: N.R. Date of hearing: 18.03.2015 ORDER Jawwad S. Khawaja, J.- Crl. O. P. 115/2015: When this case was called, a letter dated 17.3.2015 was placed before us through Crl. M.A. No.245 of 2015 which had been issued by Bashir Ahmed (Director Industries and Labour) ICT. The contents of the letter are reproduced below because of their relevance:- “In pursuance of the Supreme Court of Pakistan’s orders dated 16th March, 2015, in CRPs No. 315, 316 of 2013 in CMAs-6158-6159/13 in SMC-20 of 2007 AND Crl.O.P.No. 115 of 2014, Mining Lease of M/s FECTO Cement Limited issued vide letter No.DDI&MD/ICT/LL-5/Vol-1/2467, dated 21-12-2011 is hereby cancelled with immediate effect. You are directed to stop all activities and remove all installation forthwith” 2. Upon the cursory examination of the letter, it is evident to us that the name of this Court has been used in an unjustified manner because we had unambiguously mentioned in our order of 16.3.2015 that we would ensure compliance of our order of 25.10.2013, the relevant part thereof, for ease of reference, is reproduced: “5. Thus, Chairman CDA, Chairman NHA and any other executing agency are hereby restrained not to undertake any exercise towards the construction of Tunnel in the Margallah Hills enroute to the Province of KPK, nor CDA shall grant licence of crushing stones from the Margallah Hills. The Chairman CDA is further directed to constitute a team which shall put up a report that no activity of constructing of Tunnel or crushing of stones or encroachment or any other activity in the National Park is going on. If there is any such activity, the same shall be stopped at once. Copy of the compliance report shall be submitted before this Court through Registrar for our perusal in Chambers and passing further orders if need be”. 3. We may note that the Director (Industries and Labour) was directed telephonically to appear and explain the contents of his letter. However, because it was already much after Court hours and he was unable to reach the Court before we rose for the day, the matter is being adjourned for hearing tomorrow i.e. 19.3.2015. Judge Judge Judge ISLAMABAD 18.03.2015 M. Azhar Malik/*

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ MR. JUSTICE NASIR-UL-MULK MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE KHILJI ARIF HUSSAIN MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY MR. JUSTICE GULZAR AHMED MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE MUSHIR ALAM CIVIL REVIEW PETITION NOs. 328 & 329 OF 2013 IN CONSTITUTION PETITION NOs. 8 & 9 OF 2009 General (R) Parvez Musharraf (In both cases) … Petitioner VERSUS 1. Nadeem Ahmed (Advocate) and another (In CRP 328/2013) 2. Sindh High Court Bar Association through its Secretary and others (In CRP 329/2013) … Respondents For the Petitioner: Syed Sharif ud Din Pirzada, Sr. ASC assisted by Ch. Faisal Hussain, Advocate Raja Muhammad Ibrahim Satti, Sr. ASC assisted by Shazia Yasin, Advocate & Mr. osman Ibrahim, Advocate Dr. Khalid Ranjha, Sr. ASC Mr. Ahmed Raza Kasuri, Sr. ASC Barrister Muhammad Ali Saif, ASC Syed Zafar Abbas Naqvi, AOR For the Respondent (1): Mr. Rasheed A. Rizwi, ASC/Caveator Mr. Asim Iqbal, Secretary Sindh High Court Bar Association (In CRP 329/2013) Date of Hearing: 28, 29 & 30.01.2014 SHORT ORDER For reasons to be recorded later in the detailed judgment, we find the review petitions filed by petitioner General CIVIL REVIEW PETITION NOs. 328 & 329 OF 2013 IN CONSTITUTION PETITION NOs. 8 & 9 OF 2009 2 (R) Parvez Musharraf to be barred by time and the precedent case law cited in this behalf to be distinguishable. Even otherwise, we have considered the submissions made on merits. The grounds urged by the petitioner’s learned counsel neither fall within the purview of review jurisdiction nor tenable on merit to warrant interference in the judgment under challenge. Both the petitions filed by him are accordingly dismissed. Islamabad, the 30th of January, 2014 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MAQBOOL BAQAR CIVIL REVIEW PETITION NO.383/2005 IN CIVIL APPEAL NO.670/2002 (Against the judgment dated 27.6.2005 of this Court passed in Civil Appeal No.670/2002) Zakaria Ghani and 4 others …Petitioner(s) VERSUS Muhammad Ikhlaq Memon and 8 others …Respondent(s) For the Petitioner(s): Mr. Muhammad Akram Sheikh, Sr. ASC For Respondent No.1: Mr. Khalid Anwar, Sr. ASC Date of Hearing: 03.11.2015 … JUDGMENT MIAN SAQIB NISAR, J.- This Review Petition seeks to impugn the judgment of this Court dated 27.6.2005 in terms whereof Civil Appeal No.670 of 2002 filed by the Respondent No.1, Muhammad Ikhlaq Memon, against the judgment of a Division Bench of the High Court of Sindh was allowed. The essential facts of the case, as set out in the judgment under appeal, are that United Bank Limited obtained a decree from the Banking Tribunal constituted under the Banking Tribunals Ordinance, 1984. Thereafter, the Bank filed execution proceedings for recovery of the decretal amount of Rs.103,789,753.00. A learned single judge of the High Court of Sindh, acting as a judge of the Banking Court, passed an order 8.10.1988 directing the sale of three properties belonging to the Petitioners by the Nazir of the Court. It is material to note, for purposes of deciding the present Review Petition, that the C.R.P.No.383/2005 -: 2 :- original court order clearly stated that the sale was to be effected by means of sealed bids (i.e. not a public auction) after issuing advertisements in different newspapers. These were widely circulated newspapers, namely, Jang, Dawn and Millat. 2. A sale proclamation was issued for the first time on 15.5.1999. Despite the fact that the papers enjoyed a wide circulation no offer was forthcoming and this is a matter which we will revert to in a later part of this judgment. The process was repeated on 24.7.2000 and once again no offers came forth. A third endeavour was made by sale proclamation issued on 24.10.2000 but yet again the Nazir did not receive any offer. The Nazir was directed to make a fourth attempt and accordingly a sale proclamation was issued on 26.1.2001. By now about 1½ years had elapsed since the issuance of the first proclamation. It was this sale proclamation which bore fruit and the Respondent No.1 came forward with offers for all three of the properties in the sum of Rs.1,19,78,600, Rs.55,53,900, and Rs.57,47,700 respectively. He attached pay orders of Rs.11,97,860, Rs.2,55,390 and Rs.5,74,770, alongwith his offer. The matter was put up before the learned single judge and the Respondent No.1 was requested to enhance the offer which he duly did. Thus the original total of the three offers which came to Rs.2,32,80,280 was enhanced to Rs.2,41,00,000. He was directed by the Court to deposit the price within one month. It is pertinent and relevant for purposes of present case to note that on 15.3.2001 (i.e. within the stipulated period of 30 days) he submitted an application bearing CMA No.619 of 2001 to the Banking Court seeking a direction from the Court that he should be given vacant possession of the properties. To establish his bona fides he attached therewith photocopies of C.R.P.No.383/2005 -: 3 :- three pay orders for the balance amount of the sale consideration. Thus it is clear that he had made the financial arrangements for paying the money within 30 days. The Banking Court by an order dated 26.2.2001 directed the Respondent No.1 to take steps in terms of Order 21, Rule 85 CPC. It may be noted that this was for the first time an order was passed in terms of the CPC. The original order, which required sealed tenders instead of a public auction, was obviously not passed under the CPC but in terms of the powers conferred on the Banking Court under the Banking law to adopt any procedure deemed appropriate by it for purposes of execution of the decree. Though Order 21, Rule 85 CPC contemplates a time frame of 15 days commencing from the relevant date as mentioned in the said provision of law, in this particular case the order was passed obviously conferring additional time on the Respondent No.1 and, in fact, he deposited the balance amount three days later on 30.3.2001. The Banking Court had directed that the case should be heard on the next date namely 31.3.2001. The Banking Court by means of an order dated 9.4.2001 noted that the Respondent No.1 had deposited the balance amount of the sale and directed the Nazir to take steps for confirmation of the sale. Thus the bid was accepted by the court. 3. At this point of time it is necessary to examine the conduct of the Petitioner. Although the Petitioner had been served he did not raise any objection whatsoever, despite entering appearance, to the original order passed for the sale of the property through sealed tenders and not by way of public auction under the CPC. He also did not raise any objections whatsoever in relation to the framing of the four sale proclamations. Specifically, he did not raise any objection, either at that stage or at any later stage, in the ensuing C.R.P.No.383/2005 -: 4 :- litigation all the way upto this court to the text of sale proclamation. He, however, preferred special HCA No.94 of 2001 against the said order dated 26.2.2001. It is important to note that he had a clear cut legal right to challenge the order passed in relation to the sale of properties by means of two alternative methods. One was to file an application under Order 21, Rule 89 and the other was to file an application under Order 21, Rule 90. 4. There is a great deal of difference between these two provisions of law. Under Order 21, Rule 89 a judgment debtor is not obligated to show any legal infirmity in the order of sale. He has an unqualified right to have the sale set aside provided he complies with the conditions laid down therein, namely, that he should deposit the full decretal amount in court plus 5% to be paid to the auction purchaser. The time period for making such an application is 30 days. Admittedly he failed to do so and accordingly, it follows, by necessary implication of law that a vested right accrued in favour of the auction purchaser. The second provision, namely, Order 21, Rule 90 CPC proceeds on a different basis. In order to succeed it is mandatory for the judgment debtor to satisfy the court, on the merits, that the sale should be set aside on the ground of a material irregularity, or fraud, in publishing or conducting it. Yet another condition is prescribed by means of the proviso thereto which stipulates that no sale shall be set aside on the ground of irregularity or fraud unless, upon the facts proved before the Court, it is established that the judgment debtor has sustained substantial injury by reason of such irregularity or fraud. Yet another condition is prescribed by the second proviso which states that no application shall be entertained in terms of this provision of law unless and until the judgment debtor deposits an amount equal to 20% of the sum realized at the C.R.P.No.383/2005 -: 5 :- sale or furnish such security as the court may direct. These are stringent conditions which make the policy of the law crystal clear. A mere allegation is not sufficient. It has to be established that not merely an irregularity but a material irregularity has taken place, or, in the alternative, that fraud has been perpetrated in the process of carrying out the sale. Then is super added the requirement that even if these conditions are complied with the judgment debtor must satisfy the court that he has sustained a substantial injury by reason thereof. Finally, in order to discourage frivolous applications intended to delay the execution of the decree it is mandatory on the judgment debtor to deposit 20% of the sale amount or furnish such security as the court may direct. It is also material to note that once again a time frame of 30 days has been specified under article 166 of the Limitation Act in this behalf. Failing compliance with the provisions of Order 21, Rule 90 once again the inevitable consequence is that the judgment debtor is precluded from making any such allegation in order to challenge the validity of the sale at a subsequent stage. The above is further clarified by the provisions of Order 21, Rule 92 CPC which lays down explicitly the consequences of a failure to make an application under Order 21, Rule 89 or Order 21, Rule 90. The said provision states that where no such application has been made under the above mentioned rules, or where such application has been made and disallowed, it becomes mandatory on the court to make an order confirming the sale and thereupon the sale becomes absolute. These provisions leave no doubt for any ambiguity in the matter. The plaintiff has not merely a legal right flowing from the contract between the parties but a statutory right crystallized in the form of a decree passed by a court of competent jurisdiction. The law has laid down the only methods available in C.R.P.No.383/2005 -: 6 :- order to challenge such a crystallized right vesting in a plaintiff. If a judgment debtor chooses not to take advantage of the opportunities afforded to him by the law the matter comes to an end (In a later part of this judgment we will consider the case law which discusses whether an application under section 151 CPC seeking to circumvent the failure to apply under Order 21, Rule 89 or Rule 90 CPC is maintainable or not). 5. By means of the Review Petition a number of arguments were advanced on behalf of the Petitioner. It was stated that the approximate value of the three properties was Rs.13,95,00,000. It was claimed in the Review Petition that this value was supported by means of a sworn affidavit. The contention raised was that the properties were sold for a sum of only Rs.2,41,00,000 which was completely out of proportion and out of line with the actual value. Now it is indeed true that there is a very great difference between an estimated price of Rs.13,95,00,000 and the amount which was actually recovered. However, when we examine the statement under Order 21, Rule 66 CPC filed before the Banking Court we find that the total figure includes the price of two other properties other than the three which are in dispute. Admittedly these properties do not form the subject matter of the present proceedings. Accordingly, if we confine ourselves to the three properties which are in question we find that the total value as estimated in terms of the statement under Order 21, Rule 66 CPC amounts to Rs.29.5 million. This is not very far different from the actual figure at which the properties were sold which was Rs.24.1 million. Accordingly the first submission made by the learned counsel cannot be accepted. C.R.P.No.383/2005 -: 7 :- 6. Another major submission made on behalf of the Petitioner was that the first order passed by the Banking Court directed that the sale should be made pursuant to Order 21, Rule 66 CPC. It was contended that the CPC requires sales to be by public auction and accordingly it was not open to the learned court to subsequently invite tenders by means of sealed bid. It was submitted that this was a fundamental illegality which went to the root of the case. In support of this contention our attention was drawn to the first order dated 8.10.1998 and paragraph 3 of the said order was read out before us. A perusal of the above paragraph would show however that it does not support the contention advanced by the Petitioner. It is indeed true that the request made was for the sale of the properties and a further reference was made to the statement filed under Order 21, Rule 66 CPC by the counsel appearing in the case. However, the actual order passed by the court which follows in the very next statement makes no reference at all to Order 21, Rule 66. On the contrary, it categorically states that the sale is to be effected by the Nazir of the Court by inviting sealed bids through advertisement in the daily newspapers. There can be no doubt about the fact that the Banking Court was entitled in terms of the then banking law applicable, and indeed, in terms of the present banking laws as well, to follow any procedure deemed appropriate by it. Thus no objection can be taken to the order of sale. It was clearly not passed under the CPC. This finding is also sufficient to dispose of the accompanying submission which was to the effect that once an order has been passed stipulating that the sale is to be made under the CPC it is not open to the court to switch over to any alternative procedure. Although the correctness of this assertion is even otherwise doubtful in view of the case law including several judgments by this court, to C.R.P.No.383/2005 -: 8 :- which reference is made in a subsequent part herein, the contention is ill founded on the factual plane. 7. A further criticism which has been advanced on behalf of the Petitioner against the judgment in appeal of this Court is relatable to the observation that it was a “negotiated sale”. It is contended that this observation is not justified. However, we find from the record that the total amount of the sealed bids amounted to Rs.2,32,00,000. This was subsequently as a result of the proceedings which took place in open court, enhanced to Rs.2,41,00,000. Thus this criticism also falls to the ground. Exception has also been taken to the observation made in paragraph 12 of the judgment of this Court in which it was stated “it was for the first time through order dated 27.3.2001 that the Banking Court by making a reference to Order 21, Rule 85 had decided to follow the procedure as laid down by CPC”. However, as has been clarified in the above the factual position is the exact opposite since right at the inception the Banking Court had passed an order for the sale of the properties through sealed bids which by no stretch of the imagination can be called an order passed under the CPC. This argument therefore accordingly equally fails. 8. We now turn to the next argument advanced on behalf of the Petitioner which was that the payment was made belatedly. Now we have already taken note of the fact that the learned judge had right at the inception decided not to follow the time frame laid down in the CPC. Accordingly, he had fixed the time of one month within his own discretion. This he was entitled to do. Within that period of one month, as pointed out earlier, the Respondent applied by means of CMA No.619 of 2001 for an order that when the property would be transferred to him he should obtain vacant possession. With that application C.R.P.No.383/2005 -: 9 :- he attached photocopies of pay orders issued by the bank for the balance amount of the sale consideration. It is therefore clear that he had made arrangements for making payment well within the period of 30 days. On this the banking court on 27.3.2001 directed the Appellant to take further steps in terms of Order 21, Rule 85 CPC which contemplates a period of 15 days from the inception. The Respondent deposited the amount within 3 days on 30th of March, 2001 and this amount was accepted by the banking court which, by means of the order dated 9.4.2001, directed the Nazir to take steps for confirmation of the sale. All these steps were well within the discretion of the Banking Court and no criticism can be attached in relation thereto. This argument therefore can also not succeed. 9. A major grievance which was made by the learned counsel of the Petitioner was that the Respondent No.1 withdrew the money deposited in Court by him within 60 days and hence it was unfair to allow him the benefit of the sale in his favour. We have noticed that no such ground has been raised either in the Review Petition or in the certificate filed by the learned counsel in support thereof. However, we have nevertheless examined it carefully. The facts are set out in the order passed by the Court on 31.5.2001. By a perusal of this order we find that the hearing of the case was being delayed at the request of the counsel for the Petitioner. It was by reason thereof that the learned counsel appearing for the Respondent contended, as is evident from the order, that the existing state of affairs was operating to his prejudice inasmuch as although he had deposited the entire sale consideration the matter was being held up indefinitely. He further stated that he did not believe in interest on Islamic grounds and hence the suggestion that the money deposited be kept in a C.R.P.No.383/2005 -: 10 :- profit bearing account was not acceptable to him. His proposal therefore was that, without prejudice to his claim, he should be allowed to withdraw 90% of the amount deposited by him which, in case he succeeded, would be re- deposited by him. The order records the fact that the counsel for the Petitioner gave his consent to this proposal. The Court thereafter, after recording the consent, observed that in the circumstances the Respondent would be entitled to withdraw the amount of 90% without prejudice to his legal rights and in case he succeeded he would redeposit the same in court. In the event of his failure to deposit the said amount the 10% would be forfeited. This was a consent order and we do not see how, in the presence of this order, it is now open to the Petitioner to raise an objection thereto. The balance amount of 90% was of course re-deposited in Court once the appeal had been allowed in favour of the Respondent and no further objection in this regard has been raised. It should be added, however, that when the present Review Petition was filed a stay order was granted so in consequence, although the appeal was decided in favour of the Respondent as far back as 7.6.2005, for the ensuing period of 10 years the Respondent has been denied the possession of the property which he had acquired through payment of the full amount in court. The Petitioner has thus enjoyed the benefit of the property for an additional 10 years while the Respondent has been out of pocket. In these circumstances the grievance of the Petitioner that the Respondent only deposited the money for a period of 60 days and is claiming title on the basis thereof is not justified and cannot be accepted. 10. It was also contended that a higher offer had been made by a company known as Star Cotton Corporation Ltd and this offer was disregarded without C.R.P.No.383/2005 -: 11 :- any justification. This question is discussed in paragraph 17 of the judgment of this court which refers to a so called higher bid of Rs.28 million by Star Cotton Corporation (Pvt.) Ltd. Karachi and it has been noted that there is nothing on the record to show that it was actually made to the Court at the relevant time. It also does not find any mention in the court’s order dated 9.4.2001. This finding is supported by the documentary evidence on the record. An undated offer by Star Cotton Corporation is available on the record and that too is addressed to the Nazir of the Sindh High Court. There is nothing whatsoever on the record which indicates that it was brought to the notice of the court. Certainly there is no question of our conducting an independent enquiry into the matter in review proceedings. It was the duty of the Petitioner to have brought on record any evidence which indicated that the offer was placed before the court on or before the date on which the operative orders were passed. This plea therefore cannot be entertained. In this connection, it may also be noted that again this is a point which is not raised either in the review petition or the certificate in support thereof. It appears, on the face of it, to be an after thought. 11. Although the above is sufficient to dispose off the case, in view of the fact, that important questions of law have been raised in relation to the mode of execution of banking decree we have considered, the case law in relation to this subject in some depth and we now turn to an examination of the same. 12. A convenient point to start with is the landmark judgment of this court in the case of Hudaybia Textile Mills Limited vs. Allied Bank of Pakistan Ltd. (PLD 1987 SC 512) which has been relied upon by both sides. The facts of the case, in brief, are that the Bank obtained a decree against the judgment debtor C.R.P.No.383/2005 -: 12 :- pursuant to which an order was passed for the auction of the attached property. It is important to note that no objection was taken by the judgment debtor to the proposed terms and conditions of the auction proclamation. After the auction had been carried out, but prior to the confirmation thereof, an application was filed by the judgment debtor under section 151 CPC for holding it in abeyance on the ground of negotiations being carried on between the judgment debtor and the Bank. It appears that thereafter a settlement was arrived at between them. The question however arose about the rights of the Auction Purchaser which, as pointed out above, had yet to be confirmed. The executing court passed an order to the effect that since the judgment debtor had paid up the agreed amount to the decree holder the auction was to be set aside and the property would be restored to him. Insofar as the Auction Purchaser was concerned it was ordered that he was entitled to 5% of the amount in terms of Order 21 Rule 89 CPC which should be paid to him. It should however be noted that no application had been filed under Order 21 Rule 89 CPC and indeed, by that time, it was already barred by limitation. Thus the judgment debtor’s request was made under section 151 CPC and the important question was whether this request could be allowed under law. 13. To continue with the narration of events thereafter the Auction Purchaser filed an application under Order 21 Rule 89/92 stating that the auction should be confirmed in the above facts and circumstances. On that application the executing court passed an order stating that an objection petition had been filed in time under section 151 C.P.C, and since the negotiations were proceeding which ultimately succeeded the fact that there was a violation of the provisions of Order 21 Rule 89 inasmuch as neither the sum of 5% had been deposited C.R.P.No.383/2005 -: 13 :- and nor had the decretal amount been paid, this was not essential. Accordingly the application of the Auction Purchaser was dismissed with the observation that he would be entitled to 5%. Against this an appeal was filed before a division bench of the Lahore High Court which accepted the contention of the Auction Purchaser. The relevant passage of the division bench order is reproduced below: “An objection to the sale of immovable property in execution of decree could be taken either under rule 89 or rule 90 of Order 21 C.P.C. It is conceded that Hudaybia Mills before filing application dated 18th September, 1985 (C.M. No. 103-B/1985) did not deposit in Court firstly, for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and secondly, for payment to the decree-holder the amount of which the sale was ordered. Rule 89 of Order 21 C.P.C. makes it a condition precedent that the above said two deposits be made in the Court before applying for setting aside of the sale. The sale could not be permitted to be challenged through an application under section 151 C.P.C. It was held in Nanhelal and another V. Umrao Singh (AIR 1931 P.C. 33) that when once a sale had been effected, a third party’s interest intervene and there is nothing to suggest that the provisions of Order 21, Rule 2 or 89 are to be disregarded. It was further held that after a sale is duly held, the Court cannot refuse to confirm sale on the ground that the decree-holder and judgment debtor say that the decree has been satisfied.” 14. Insofar as of the objection of the judgment debtor which was filed under section 151 CPC is concerned the finding is reproduced below:- “As such, Hudaybia Mills, one of the judgment-debtors whose property was sold by the Court auctioneer having failed to make requisite deposit under rule 89 of Order 21, C.P.C., the Court was left with no choice except to confirm the sale. It was argued by the learned counsel that application dated 18th September, 1985, was filed under section 151 C.P.C. and as such, no deposit was required C.R.P.No.383/2005 -: 14 :- to be made by the judgment-debtor. In alternate, the learned counsel contended that the said application could be treated as an application under Order 21 rule 90 C.P.C. This argument is without any force and cannot be given any credit. The inherent powers under the Code of Civil Procedure can be exercised only where no specific provision of law is available. In the instant case, as held above the sale of attached property in execution of decree could be challenged either under rule 89 or under rule 90 of Order 21, C.P.C. The argument that the said application be treated as an application under Order 21 rule 90, C.P.C. cannot be accepted because the judgment debtor, in the said application did not allege any material irregularity or fraud in publishing or conduction of sale by the Court auctioneer. Secondly, the allegation of material irregularity and fraud by the Court auctioneer before us seems to be an afterthought, and thirdly, no finding on material irregularity or fraud could be recorded without recording evidence. As no such objection was taken before the executing Court, these questions were not adverted to and as such, cannot be permitted to be canvassed by the judgment-debtor, for the first time, before us.” 15. The judgment debtor took the matter in appeal to this court. In relation to the finding by the executing court that it was not mandatory to deposit 5% under Order 21 Rule 89 the finding of this court is as under:- “Having regard to these principles we may now advert to the facts of present case. The sole ground that prevailed with the learned Single Judge to set aside the sale and refuse confirmation was the fact that the decree had been adjusted or satisfied to the satisfaction of the decree holder. There was no objection raised, nor is any such objection being pressed before us, that there was any fraud or irregularity in the conduct of the auction, or the price offered by the auction purchaser was inadequate. There is no doubt that the executing Court had a discretion to choose the mode of execution as it deemed fit but it cannot be denied that the Court by its order dated 3rd July, 1985, clearly and unequivocally directed that the attached property be put to sale through public auction. The perusal of the various orders passed by the executing Court also C.R.P.No.383/2005 -: 15 :- clearly show that the Court had adopted the procedure provided in Order XXI C.P.C. for the sale through public auction of the property attached. Even the terms and conditions of the auction were expressly determined in accordance with Order XXI rule 66, C.P.C. Further in his order dated 5th June, 1986 whereby the learned Single Judge finally refused to confirm the sale, it is conceded that the judgment debtor had to deposit the 5% of the purchase money and the decretal amount which are the requirements of the Order XXI rule 89, C.P.C. The difficulty was overcome by taking the view that such deposits were not the essence of the proceedings. This view is not based on any recognized principle of law.” (Emphasis supplied) 16. This Court further observed that the principles applicable in such cases were laid down by the Privy Council in the case of Nanhelal and another Vs. Umrao Singh (AIR 1931 Privy Council 33) in which it was held as under: “In the first place, Order XXI, rule 2, which provides for certification of an adjustment come to out of Court, clearly contemplates a stage in the execution proceedings when the matter lies only between the judgment-debtor and the decree-holder, and when no other interests have come into being. When once a sale has been effected, a third party’s interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-debtor can get rid of a sale, which has been duly carried out, are those embodied in rule 89 viz by depositing in Court the amount for the recovery of which the property was sold, together with 5 per cent of the purchase money which goes to the purchaser as statutory compensation, and this remedy can only be pursued within 30 days of the sale; see Article 166, Sch., Lim. Act, 1908. That this is so is, in their Lordships opinion, clear under the wording of rule 92, which provides that in such a case (i.e. where the sale has been duly carried out), if no application is made under rule 99; “The Court shall make an order confirming the sale and thereupon the sale shall become absolute.” C.R.P.No.383/2005 -: 16 :- 17. This court thereafter considered what should be the general approach in such matters. In this connection reliance was placed on the following extract from American jurisprudence (2nd Edition) Volume 47, Article 178 at page 440 in which the general principles governing the discretion to grant or refuse confirmation of a judicial sale are discussed as below:- “But apart from the above another vital principle is involved. In American Jurisprudence (2nd Edition) Volume 47, Article 178 at page 440, the general principles governing the discretion to grant or refuse confirmation of a judicial sale are discussed. It has been observed:- “Although in some jurisdictions a more restrictive rule is followed in cases where it is urged that confirmation should be refused on the sole ground that an advance or upset bid has been received, the confirmation of, or refusal to confirm, judicial sales, as a general rule, rests largely within the discretion of the trial Court, and such determinations ordinarily will not be reviewed except for manifest abuse of such discretion. The discretion to be exercised is not arbitrary, however, but should be one which is sound and equitable in view of all the circumstances. The Court must act in the interest of fairness and prudence, and with a just regard to the rights of all concerned, and the stability of judicial sales. Thus, if the sale was fairly conducted and the property sold for a reasonable and fair value under the circumstances, the Court is ordinarily required in the exercise of its judicial discretion to confirm the sale.” 18. The Court then proceeded to lay down the following principles of law:- “The above passage from the American Jurisprudence clearly points out the dominant principle of law in such cases, namely, the stability of judicial sales. In this context the argument that since the Court was vested with the wide discretion to choose any mode of execution of the decree, it can likewise refuse confirmation of sale on any ground it chooses is without substance. Judicial discretion vested by statutory provisions cannot be construed in such a manner as it will arm the Court with arbitrary powers and would inevitably destroy the public confidence in the stability of C.R.P.No.383/2005 -: 17 :- the judicial sales as pointed out by the American Jurisprudence. Therefore, on facts as well as on principle the learned Single Judge went wrong in refusing confirmation on the ground that after the sale the decree had been satisfied. Even otherwise once the Court had made up its mind to execute the decree by attachment and sale by public auction, as long as the order so directing was in the field, the discretion vesting in it under section 8(3) of the Ordinance stood exhausted and a particular course of proceedings was brought into motion which had to culminate in a result contemplated by legal principles, and this course could not be diverted on the assumption that the executing Court had discretion to choose any mode of execution. In the premises the question of confirmation was to be regulated either by the C.P.C. or equitable principles under the provisions thereof and general principles as pointed out above. From any angle the refusal of confirmation by the learned Single Judge is unsustainable and the auction purchaser was entitled, in the circumstances of the case to the confirmation of the auction sale. It was urged that the discretion was properly exercised because the purchaser himself was present when the negotiations between the decree-holder and the judgment debtor were taking place in Court and had applied at one stage for withdrawal of deposit. This argument is without substance because purchaser has not been shown to be a consenting party to the arrangement between the decree-holder and the judgment debtor. He had no doubt at one stage applied for withdrawal of the amount deposited by him on the ground that there was some clog on the title of the judgment debtor in the property subjected to Court sale but before any orders were passed on this application it was withdrawn stating that the same was made under wrong advice and the Court dismissed the application. It is well recognized that a proceeding withdrawn with the permission of the Court is wiped off from the record as non-existent.” (Emphasis supplied) 19. In the circumstances the appeal was dismissed. This is an extremely important judgment which was and is binding on all subsequent benches of equal or fewer numbers of judges and still rules the field. It is unfortunate that its existence has sometimes been in advertently lost sight of. C.R.P.No.383/2005 -: 18 :- 20. The next important case is that of Asma Zafarul Hassan Vs. United Bank and another (PLJ 1981 SC 242.) which is an even earlier case. In this case also an objection was raised to the execution by sale of the judgment debtor’s property. The following paras of the judgment are material and are reproduced below. “7. In regard to the objection that there was violation of rule 65 Order XXI, C.P.C, the Court held though the mode of sale by public auction was prescribed yet in a fit case the Court could, in the exercise of its inherent jurisdiction, accept a private offer after due notice to the parties if it was reasonable in the absence of any “prohibitive legislation”. The High Court also dealt with the other objections relating to the manner and mode of the publication of the proclamation and rejected them on the short ground that the petitioner had failed to prove that the prescribed method had resulted in a loss to the petitioner; and further, that as he had failed to object to the mode of the publication of the proclamation he was debarred from raising it now.” The plea of the inadequacy of the sale price was also rejected on the premise that as the petitioner or her counsel had failed to object at the time the offer was accepted, it was not open now to make a grievance of it. 11. The learned counsel vehemently urged that the property could not be sold otherwise than by auction. For this proposition, he placed reliance on rule 65, Order XXI, C.P.C. and rule 351 of the Chief Court Rules (Original Side). These provisions do prescribe the mode of disposal by public auction but neither of them expressly or by necessary implication prohibit any other mode of disposal. Therefore, if the Court had deviated from this mode of disposal to serve the ends of justice, no exception can be taken to it. In Narising Das V. Mangal Dnbey [(1883) 5 All, 163] Mahmood, J. observed:- “Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but, on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.” C.R.P.No.383/2005 -: 19 :- Furthermore, insofar as the objections to the procedure adopted for the sale is concerned, in terms of which a private offer was accepted by the High Court, reliance was placed on the still earlier judgment of this court in Ghulam Abbas Vs. Zohra Bibi (PLD 1972 SC 337) in which it was held: “No doubt, this gives the judgment-debtor a valuable right, but there is no evidence at all to show that the judgment-debtor, in the present case, ever tendered any amount to the officer conducting the sale, or paid any amount into the Court which ordered the sale, or asked for the postponement of the sale for this purpose. This complaint of the violation of his right could have been lodged, if it was genuine, at the time of the auction but this was not done even when the appellant on the first postponement of the sale waived the issuance of a fresh proclamation. He must have been aware of its contents then. Before a violation of a right can be alleged it must be shown that the right was asserted and denied. To assert this right, at least, the amount which the judgment-debtor considered to be the correct amount should have been tendered to the officer conducting the sale. This was never done, nor is there any evidence on the record to show that the judgment-debtor was ever in a position to procure this amount. No violation of the right has, therefore, taken place, about which any legitimate complaint can be made at this stage. This is clearly an afterthought. The appellant is also not in a position to show that he has in any way been prejudiced by this mistake or that the mistake alleged prevented any prospective bidder from participating in the bidding. Indeed, it would appear that the view of the Courts has consistently been that the non-compliance with the provisions of the Code of Civil Procedure, with regard to the proclamation of sale, its publication and the conduct of the sale in execution, are only material irregularities but not illegalities which render the sale in disregard of those provisions a nullity. A sale cannot be set aside unless “direct evidence of substantial injury resulting from the irregularity has been given” as was observed in the case of Tassaduk Rasul Khan v. Ahmad Hussain (1) and the onus of C.R.P.No.383/2005 -: 20 :- proving this prejudice is on the party complaining thereof.” (Emphasis supplied) The judgment debtor’s objections were accordingly dismissed. 21. On the question as to whether it is open to an executing court to switch over from one mode of execution under the banking law to another under the CPC is possible or not, this court held in the case of Mumtaz-ud-din Feroze vs. Sheikh Iftikhar Adil and others (PLD 2009 SC 207) as under in para 15 and 16 of the judgment, the relevant part of which is reproduced below. “15. As to the contention that the Banking Court in execution of the decree once adhering to the procedure prescribed by Civil Procedure Code could not have switched over to any other mode, it may be pointed out here that since by virtue of section 18(2) of the Banking Companies (Recoveries of Loans, Advances, Credits and Finances). Act (XV of 1997) (hereinafter referred to as the Act XV of 1997), the Banking Court is at liberty to recover the amount covered by a decree, on the application of the decree holder, in accordance with the provisions of the Code of Civil Procedure, 1908 or any other law or in such other manner as it may deem fit, therefore consideration and approval of offer made by the petitioner, by the Court, in our view, was neither illegal nor unjustified particularly when all efforts made previously, including those made by the decree-holder and even by the judgment- debtors, had failed to procure a better offer than Rs. 85,000,000, hence approval of the offer made by the petitioner, which was more than eight crore over and above the highest offer received was just and proper.” It was further observed in paragraph 16 as follows: “16. In the wake of above, it follows that non-compliance with the provisions of C.P.C. with regard to the proclamation of sale, its publication and the conduct of sale in execution, are only material (sic) irregularities and cannot be termed or regarded as illegalities thereby rendering the sale nullity. Objection after completion of sale shall not, therefore, ordinarily be allowed C.R.P.No.383/2005 -: 21 :- except on very limited grounds like fraud, etc. otherwise no auction sale will ever be completed. In this view, we, in addition to the cases cited above, are fortified by the judgments in the cases reported as (i) Mian Muhammad Abdul Khaliq v. M. Abdul Jabbar Khan and others PLD 1953 Lah. 147 and (ii) Nanhelal and another v. Umrao Sindh AIR 1931 PC 33. Further, a distinction has to be drawn between the decree-holder who came into purchase under his own decree and a bona fide purchaser who came in and got the sale in execution of a decree to which he was not a party. In case where third party is a bona fide auction purchaser, his interest in sale of auction has to be protected.” (Emphasis supplied) 22. A striking case from the Indian jurisdiction is the judgment of the Indian Supreme Court in the case of Janak Raj Vs. Gurdial Singh (AIR 1967 SC 608). The facts of this case highlight the legal principle involved. Before the auction sale had been confirmed the decree in terms of which the sale was ordered was set aside in appeal on the merits. Therefore, it was contended, that there was nothing left to execute. The question therefore arose that since the sale had not been confirmed at that point of time, whether the auction purchaser was still entitled to the property. The following finding was delivered on this point: “There is no provision in the Code of Civil Procedure of 1908 either under O. XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirmation of sale. (5) There does not seem to be any valid reason for making a distinction between the two cases. It is certainly hard on the C.R.P.No.383/2005 -: 22 :- defendant-judgment-debtor to have to lose his property on the basis of a sale held in execution of a decree which is not ultimately upheld. Once, however, it is held that he cannot complain after confirmation of sale, there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation. The code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execution of a decree. It also lays down how and in what manner such sales may be set aside. Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rs. 89 to 91 of O. XXI, or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the Legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in O. XXI or in Part II of the Code of Civil Procedure of 1908 which contains Ss. 36 to 74 (inclusive).” 23. We now turn to the final aspect of the case. It has earlier been noticed that no grievance was made at any stage of the proceedings about the fact that no reserve price was mentioned in the auction notices. This objection was also not raised either before the trial court, the first appellate court or before this court in appeal. Neither does it find any mention in the review petition or in the certificate appended thereto. The interesting question therefore arises as to whether it is at all open to us to examine this question. The settled law is of course that the scope of a review petition is very narrow and limited and it hardly seems appropriate to consider a legal objection which has not been taken at any stage of the proceedings on an initiative of this Court on its own. This is especially true since the point has not even been argued in court and we have not had the benefit of submissions by the counsel for the Respondent either. Nevertheless, since we are aware of certain judgments on the question C.R.P.No.383/2005 -: 23 :- of reserve price we think it would be not inappropriate to make certain observations in relation thereto for purposes of clarification of the law. There are two recent judgments on this point delivered by this court. 24. The case of Lanvin Traders, Karachi Vs. Presiding Officer, Banking Court No. 2, Karachi (2013 SCMR 1419) stresses importance of fixing the reserve price. We may note straightaway that there are certain important distinguishing features in this case. In the present case the question of non- mention of the reserve price has not been raised at all at any stage of the proceedings including the arguments before us in the present review petition. However, this question was specifically raised and argued in the Lanvin Traders case. Secondly, note should also be taken that in the Lanvin Traders case the objection was not merely in relation to the non-mention of the reserve price but, as stated in paragraph 10, “getting down to the brass tacks of the case, it will be seen that it was not a single lapse which flashed by without causing harm to any. It was rather a series of ploys which appears to have been employed to harm one and benefit another.” Thirdly, it should also be noted that in paragraph 11 it was specifically recognized that “agreed that the expression “reserve price” does not find mention in the relevant rule but the words used and the rule pointedly hint thereto.” Furthermore, it was held “we therefore are constrained to hold that the whole proceedings from inception to the end have not been held in accordance with law and thus cannot be blessed with any sanctity”. (It should incidentally be noted in passing that this is a majority judgment with a dissenting judgment also and a review petition has been admitted for hearing against it which is pending before this court). Since this case is distinguishable it is not necessary to dwell further on it. Insofar as the subsequent case of C.R.P.No.383/2005 -: 24 :- National Bank of Pakistan vs. Saf Textile Mills Ltd. (PLD 2014 SC 283) is concerned it simply places reliance thereon and primarily dealt with the question of the constitutionality of non-judicial sales of property. 25. We are now in a position to revert to the observation made by us earlier as to the circumstances in the present case in which for a period of one and half years repeated attempts were made to obtain offers by means of public auction for the sale of the properties in question without any success. The sale proclamations, as noted earlier, were published in widely circulated newspapers. The first three elicited no response whatsoever and the last one led to only one offer being made. The question arises as to what could be the possible reason for this unhappy state of affairs. Unfortunately the reason is all too clear. There is a general impression in the market, which is not without foundation, that to purchase a property in a court auction is to purchase not property but litigation. In the normal course purchasers are interested in concluding a transaction as soon as possible and thereafter to take over possession of the property and use it for whatever purposes they have in mind. The unfortunate facts in this case reveal that although the process started as far back as the year 2000 and 15 years have elapsed in the meanwhile a definitive resolution of the case has been delayed up till now. This delay provides vindication of the wide spread belief that prudent buyers should refrain from participating in court auctions of property. This leads to two deeply unfortunate consequences. On the one hand the decree holders suffer since the collateral which is being attempted to be sold is eventually sold at a price which may well be far below the market value in a private sale and thus the full decretal amount cannot be recovered. It is not merely they, but even the C.R.P.No.383/2005 -: 25 :- judgment debtors, who suffer. Obviously it is in their interest to obtain the highest possible price for their property. If, however, the above market perception continues to prevail they also will be deprived of a fair value since very few people will be interested in purchasing their property. This therefore, is a case not merely of one party’s legal rights suffering but of both parties suffering. If the valuable lessons contained in the judgment of this Court in the Hudaybia case had been observed and followed by banking courts such a state of affairs could perhaps have been averted. The sanctity of judicial sales needs to be reaffirmed authoritatively and definitively in the public interest as well as in the interest of decree holders and judgment debtors. This can only be done if judicial sales are only set aside if it is clearly established that there has been fraud. A mere irregularity, even if material, should not suffice unless it can be shown that material loss has been caused. It is also important to note that where the irregularity consists of errors by the court, or by court officials such as the Nazir, no party should be made to suffer by reason thereof. The maxim of law that no one should suffer because of an error by a court is well known and has been reiterated again and again. Thus if, for example, the judgment debtor was of the view that the insertion of reserve price would help him in getting a good offer for it he could and should have raised this objection before the executing court at the initial stage. He did not do this either in relation to the first sale proclamation, or the second one, or the third one, or the fourth one. A legal right which inheres in a party should be asserted and ex post facto objections should not be entertained thereafter, especially when the law provides a machinery for raising objections as set out in Order 21, Rule 89 and Rule 90. In fact if the judgment debtor had asked for setting a reserve price at C.R.P.No.383/2005 -: 26 :- the initial stage there is no reason to doubt the fact that the court could easily have ordered that. The Bank had given its own valuation but the judgment debtor did not trouble to do so. 26. At this point we can conveniently examine the concept of reserve price. What exactly does it means. This is a well known concept and we can, by way of example, refer to the following definition contained in Business Dictionary.com. “Reserve price; lowest fixed price at which an item is offered at an auction sale and (1) at which it will be sold if no higher price is bid, or (2) below which the seller is not obligated to accept the winning bid.” The reserve price is often, although not invariably, fixed in sales of property by the owners thereof. Its relevance and importance depends on the circumstances in which the sale is being held. For example, in cases of Government owned property which is being privatized a reserve price is often fixed but is deliberately not disclosed to the public at all. The fixation of the reserve price is intended to be an internal guide to the Government in taking a decision as to whether or not to carry out a sale of the property at the highest price bid. The reason it is not disclosed to the bidders is that this may actually cause a loss to the Government. This would be because bidders would assume that if the Government, on the basis of its internal evaluation of the property, had come to a conclusion as to the actual value of the property, they would be reluctant to offer amounts substantially higher. This then is the reason why fixation of a disclosed reserve price could cause a loss to the owner of the property. We now turn to Court auctions. In the case of property which is being privatized it is C.R.P.No.383/2005 -: 27 :- within the sole discretion of the owner, namely the Government, to decide whether it wishes to sell or not to sell and at what price. However in the case of Court auctions the judgment debtor has no such right. Indeed if it were left to him he would say that no sale should be carried out, or, he would indicate an exorbitantly high price, so as to ensure that no bid would be received and the property would remain in his possession indefinitely. In auction sales it is the Court which therefore has to decide. The court in taking the decision essentially strikes a balance in terms of which it is fair to both the decree holder and the judgment debtor. It however always bears in mind the fact that, after a decree has been passed, the decree holder has a crystallized legal right to get the property sold if the judgment debtor persists in not paying the decretal amount. A judgment debtor cannot plead that prices are abnormally low at present and if the sale is delayed for some months or years a higher price could be obtained. The court will simply ensure a fair and even playing field and then proceed to sell or dispose of property at the highest price someone is prepared to pay at the prevalent time and in those circumstances. A judgment debtor cannot object to the same because when he fails to discharge his obligation to pay the decretal amount he must suffer the consequences. Insofar as potential bidders are concerned it is obvious that the Nazir’s valuation of the property is not likely to be decisive one way or the other. All bidders would unquestionably carry out their independent valuation of the property before making an investment. Thus the reserve price in the normal course has no special significance. However the position would be different in cases of manifest fraud. If, for example, an auctioneer is acting in collusion with someone and proceeds to dispose of the property at a nominal price without C.R.P.No.383/2005 -: 28 :- making the requisite publicity then most certainly the court would intervene to prevent such a fraud taking place. It is for this very reason that if a judgment debtor is apprehensive of foul play he should make a specific request in advance, or as soon as practicable thereafter, to have a reserve price fixed. The Nazir always issues a notice before issuing a sale proclamation so the judgment debtor has an opportunity to object. It is primarily in his interest to decide whether fixation of a reserve price is in his interest or not. He may for example feel that it is not advisable since lower bids may come as a result thereof. He has to take a decision, one way or the other. 27. It should be remembered that the reserve price is never set by means of a judicial determination since that would be clearly impracticable inasmuch as the court can only decide matters on the basis of evidence. The important point to bear in mind is that once the plaintiff’s rights have crystallized in a court decree the burden has to be on the judgment debtor since his duty is clearly to comply with the terms of the decree. If he feels that he is being harmed by some ministerial order, which is not in accordance with law, it is his clear duty to assert the same before the court rather than waiting to raise it at the stage of appeal, or further appeal, or in review, or not at all (as in the present case) and expect the court to do it for him. If he wishes to avail a legal right he must assert it. He cannot be allowed to do nothing and then after the passage of many years in which third party interests have been created to rely on a technical objection to delay the course of justice. In this connection it would be pertinent to note that in the judgment under appeal this court has rightly relied on the following passage from an earlier judgment: C.R.P.No.383/2005 -: 29 :- “The maxim “actus curiae neminem gravabit” comes into play, with a view to obviate hardships and which may otherwise be the result of the errors of the Court itself. Thus where a non- compliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in conformity with the law, the party complying therewith is not to be penalized. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviation of the law in some particulars, the party acting in accordance with such directions is not held to be blameworthy.” 28. The facts of the present case provide an excellent illustration for the applicability of the above principles. The judgment debtor had four opportunities to raise an objection about the non-mentioning of the reserve price at the time of issuance of the sale proclamations. He then failed to raise this objection before the trial court, the division bench of the High Court, and before this court either in appeal or in the review. Now it is clear that there is no conceivable way by which the auction purchaser can be blamed for the act of the court in not mentioning the reserve price. He was not even a party to the court proceedings at the time the auction proclamations were prepared and issued. We are unable to see how it would further the ends of justice if we were to now non-suit the auction purchaser for the error of the court and the negligence of the judgment debtor. 29. In the above circumstances, we are unable to conclude that the judgment debtor is entitled to any relief in the present case and the review must therefore fail. However we have noted that in the past case the judgment-debtor has perhaps been rather severely treated by the Bank. Although this is not the fault C.R.P.No.383/2005 -: 30 :- of the auction purchaser, taking into account the broader equities of the case from a humanitarian perspective, we feel that the ends of justice would be met if instead of the original price, in addition to the amount already deposited in court by the Auction Purchaser an additional amount of Rs.1,25,00,000/- (one crore and twenty five lacs) is also deposited by him. Such deposit should be made within 30 days with the office of the Nazir of Sindh High Court which amount can thereafter be withdrawn by the Judgment Debtor. This review petition is disposed off accordingly. JUDGE JUDGE JUDGE Announced in open Court on ____________ at ____________ Approved For Reporting Waqas Naseer/* C.R.P.No.383/2005 -: 31 :- SH. AZMAT SAEED, J.- This Civil Review Petition is filed against the judgment dated 27.5.2005 announced on 27.6.2005 of this Court, whereby Civil Appeal No.670 of 2002 filed by Respondent No.1, Muhammad Ikhlaq Memon against the judgment dated 07.3.2002 passed by a learned Division Bench of the High Court of Sindh was set aside and the Orders dated 26.02.2001, 27.03.2001 and 09.04.2001 passed by the learned Single Judge were held to be valid. 2. The brief facts necessary for adjudication of the lis at hand are that Respondent No.3 had apparently obtained a Finance Facility from Respondent No.2 United Bank Limited (UBL), which was secured by mortgaging of various properties of the predecessor-in-interest of the present Petitioners. Respondent No.2 (UBL) filed a suit for recovery of the said amount, which was decreed by the Banking Tribunal vide Judgment and Decree dated 31.8.1994. Thereafter, Respondent No.2 (UBL) initiated execution proceedings for recovery of the decretal amount of Rs.103,789,753.00 against the judgment debtors. The properties in dispute, which are situated at Karachi were directed to be put to auction through Nazir of the Court by inviting the sealed tenders, vide Order dated 08.10.1998 passed by a learned Single Judge of the High Court of Sindh. The sale proclamation was published in C.R.P.No.383/2005 -: 32 :- the local daily newspapers. After three unsuccessful attempts, a fourth proclamation was published and in response thereto, Respondent No.1 submitted a bid to the Nazir of the Court for a total amount of Rs.2,32,80,280/-. Subsequently, the matter was presented in Court, wherein Respondent No.1 enhanced his bid to Rs.2,41,00,000/-, which was accepted by the Court vide Order dated 26.02.2001 and Respondent No.1 was directed to deposit the balance amount within one month. Apparently, the balance consideration was deposited. The Petitioners challenged the said Order dated 26.02.2001 before the learned Division Bench of the High Court of Sindh through Special HCA No.94 of 2001, which was allowed vide Order dated 07.3.2002. Aggrieved, Respondent No.1 invoked the jurisdiction of this Court through Civil Appeal No.670 of 2002, which was allowed vide judgment under review dated 27.5.2005 announced on 27.6.2005, as a consequence whereof, the judgment dated 07.3.2002 passed by a learned Division Bench of the High Court of Sindh was set aside and the Order confirming the sale in favour of Respondent No.1 was held to be valid and was affirmed. 3. We have heard the learned counsel for the parties and with their assistance examined the available record. C.R.P.No.383/2005 -: 33 :- 4. It is contended by the learned counsel for the review Petitioners that the learned Executing Court initiated the proceedings for execution of the judgment and decree in terms of Order XXI of the Code of Civil Procedure, 1908 and, therefore was required by law to continue with such procedure till the culmination of the execution proceedings, however, the learned Executing Court made serious departures from the procedure as laid down in Order XXI of the CPC to the prejudice of the judgment-debtor. In the above context, the learned counsel urged that no public auction was held, only sealed bids were invited, the time for deposit of balance consideration allowed to Respondent No.1 was more than the 15 days contemplated under Order XXI, Rule 85 CPC. It was further contended that even otherwise, the terms and conditions, as originally approved by the Court, were allowed to be violated and a period of one month was given to deposit the balance consideration and the amount in question, as per the record, was not even deposited within such period. The learned counsel next contended that the judgment under review is based on an assumption that the time for deposit of the balance consideration had in fact been extended, which assumption is contrary to the record. It is further contended that the judgment in question is based on another assumption that the balance C.R.P.No.383/2005 -: 34 :- consideration stood deposited with the Nazir of the Court, while in fact the said amount was withdrawn by Respondent No.1 after a few weeks of its deposit. It is added that a higher price had been offered by a third party, which was ignored by way of the judgment under review without ascertaining conclusively as to when such higher offer was made. The learned counsel also contended that even if the learned Executing Court could depart from the time honoured and settled procedure, as laid down in Order XXI CPC, it could not effect the court sale without fixation of a reserve price and the failure in this behalf vitiated the entire proceedings, which had been rightly set aside by the learned Division Bench of the High Court of Sindh, and this aspect of the matter has been completely ignored by way of the judgment under review. In support of his contentions, the learned counsel for the Petitioners has relied upon the judgment, reported as Muhammad Attique v. Jami Limited and others (2015 SCMR 148). 5. The learned counsel for Respondent No.1 has vehemently controverted the contentions raised on behalf of the Petitioners. At the very outset, it is contended that the scope of review is limited to an obvious error evident on the face of the record and the jurisdiction in this behalf does not extend to rehearing the entire matter or to adjudicate upon the contentions C.R.P.No.383/2005 -: 35 :- not raised at the time of the hearing of the judgment sought to be reviewed. The learned counsel further contended that Section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, whereunder the execution proceedings were conducted, authorizes the Banking Court either to adopt a process as contemplated by the Code of Civil Procedure or adopt any other mode or method for execution of the decree. In the instant case, from the very outset, the learned Executing Court had not adopted the procedure as laid down in the Code of Civil Procedure by inviting sealed tenders. Furthermore, even if, the procedure as laid down in the Code of Civil Procedure was initially adopted, a subsequent departure there-from by the Banking Court is permissible under the law. It is added that Respondent No.1 strictly adhered to the requirements as laid down by the learned Executing Court and upon acceptance of his offer and confirmation of sale in his favour, a vested right had accrued to Respondent No.1, which could not be prejudiced. With regard to withdrawal of the balance consideration, it was contended that upon an application filed by Respondent No.1, such withdrawal was permitted by the learned High Court and not only without prejudice to the rights of Respondent No.1 but also with the C.R.P.No.383/2005 -: 36 :- consent of the learned counsel for the decree-holder (UBL) and the present review Petitioners, as is evident from the Order dated 31.5.2001, therefore, such withdrawal cannot be construed to be detrimental to the rights of Respondent No.1. It was further contended that neither any Objection Petition was ever filed by the Petitioners contesting the sale or offering to buy the property at a price higher than that offered by Respondent No.1 alongwith 5% thereof nor any attempt was made to satisfy the decree prior to the confirmation of the sale. In support of his contentions, the learned counsel for Respondent No.1 has relied upon the judgments, reported as Hudaybia Textile Mills Ltd and others v. Allied Bank of Pakistan Ltd and others (PLD 1987 SC 512), Mst. Asma Zafarul Hassan v. M/s United bank Ltd and another (PLJ 1981 SC 242) and Noor Muhammad and others v. Allah Ditta and others (PLD 2009 SC 198). 6. At the very outset, it may perhaps be appropriate to examine and ascertain the amplitude and the limitations for the exercise of the powers of the review vested in this Court. In the judgment reported as Lt. Col Nawabzada Muhammad Amir Khan etc. v. The Controller of Estate Duty, Government of Pakistan, Karachi etc. (PLD 1962 SC 335), learned A. R. Cornelius, CJ, as he then was observed as follows:- C.R.P.No.383/2005 -: 37 :- “….There must be a substantial or material effect to be produced upon the result of the case if, in the interests of "complete justice" the Supreme Court undertakes to exercise its extraordinary power of review of one of its own considered judgments. If there be found material irregularity, and yet there be no substantial injury consequent thereon, the exercise of the power of review to alter the judgment would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice….” In the above said reported judgment, Kaikaus, J, as he then was has also observed as under:- “….It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie. It is a remedy to be used only in exceptional circumstances.” This Court in the judgment reported as Abdul Ghaffar- Abdul Rehman v. Asghar Ali (PLD 1998 SC 363), after examining the case law on the subject, observed as follows:- "17. From the above case-law, the following principles of law are deducible: ….(iv) that simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie; (v) that simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some C.R.P.No.383/2005 -: 38 :- important aspect of the matter, a review petition would lie; (vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie; (vii) that the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility…..” The aforesaid view was reiterated by this Court in the judgment reported as Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others (1999 SCMR 2189). In the case reported as Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Shabbir and others (PLD 2003 SC 724), it was observed as under:- “Accordingly it is held that due to non- consideration of the documents referred to hereinabove, a case for the review of the judgment to the extent of petitioners' case has been made out. We are fortified in this behalf by the judgment in the case of Suba through Legal Heirs v. Fatima Bibi through Legal Heirs (1996 SCMR 158), wherein it has been held that "review petition would also be competent if something which is obvious in the judgment had been overlooked and that if it would have been C.R.P.No.383/2005 -: 39 :- considered by the Court, the final result of the case would have been otherwise"…..” In the judgment reported as Syed Wajihul Hassan Zaidi v. Government of the Punjab and others (PLD 2004 SC 801), it was held as under:- “17….We are of the considered view that even if the view taken by this Court in the decision of the appeal be erroneous, it does not warrant revisiting by this Bench in the exercise of review jurisdiction, which can only be exercised when an error or mistake is manifestly shown to float on the face of record, which is patent and if allowed to remain intact would perpetuate illegality and gross injustice. Basic object behind the conferment of power of judicial review on superior Courts essentially is to foster justice and eliminate chances of perpetuating illegality…. 18…Likewise, factum that a material irregularity was committed by the Court would not be adequate enough to warrant a review of the judgment unless the material irregularity be of a nature so as to convert the process of acting in aid of justice to a process of gross injustice. In such eventuality, a review petition would be competent … Furthermore, principle of law is well recognized that this Court would not exercise the power of review as a routine matter to rehear a case already decided but the same can be pressed into service where a glaring omission on the face of record or patent error has crept in the judgment by judicial fallibility.” In the case reported as Muhammad Siddiqul Farooq v. The State (2010 SC MR 198), it was held as under:- “12…The observations in the case of Suba through Legal Heirs v. Fatima Bibi through Legal Heirs 1996 SCMR 158 were repeated that review petition would be competent if "something which is obvious in the judgment had been overlooked and that if it would have been considered by the court the final result of the case would have been otherwise". The present case directly attracts the above settled principles of law on the exercise of review jurisdiction. While passing the judgment under review this Court appears to have overlooked the all important evidence of P.W.6, P.W.8 and P.W.9 and also the absence C.R.P.No.383/2005 -: 40 :- of prosecution evidence on the culpability of the petitioner in terms of offences of section 9(a)(iii) and (vi) of the National Accountability Bureau Ordinance, 1999. 5. Since the scope of review power and jurisdiction has not been free of complexity, it has received attention of the Court time and again primarily for the reason that the indulgence by way of review is granted mainly owing to the natural desire to prevent irremediable injustice by a Court of last resort by some inadvertence or accident. Muhammad Amir Khan's case PLD 1962 SC 335 lays down the principles for the exercise of review power and jurisdiction wherein all the Honourable Judges seized of the matter contributed and rendered their separate opinions. Cornelius, C.J. observed at page 340 as follows:- -- "There must be a substantial or material effect to be produced upon the result of the case if, in the interests of "complete justice" the Supreme Court undertakes to exercise its extraordinary power of review of one of its own considered judgments…The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice … B.Z. Kaikaus, J. expressed his opinion at page 354 as follows:--- "While I would prefer not to accept those limitations as if they placed any technical obstruction in the exercise of the review jurisdiction of this Court I would accept that they embody the principles on which this Court would act in the exercise of such jurisdiction. It is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie. It is a remedy to be used only in exceptional/circumstances." … However, if the Court has overlooked some material question of fact or of law which would have a bearing on the decision or there is otherwise some apparent mistake or error on the face of the record, then of course the power of review can be exercised. As far as error apparent on the face of the record is concerned, it should be so manifest, so clear as could not be permitted by any Court to remain on record. Such error may be an error of fact or of law but must be self- evident and floating on surface. The orders based on erroneous assumption of material facts, or without adverting to a provision of law, or a departure from undisputed construction of law and Constitution, may, however, amount to error apparent on face of record. It must have also a material bearing on the fate of the case. These propositions were enunciated by this Court in the judgment reported as PLD 1979 SC 741, 1975 SCMR 115 and PLD 1984 SC 67….. 9. It is said and rightly so that to err is human. C.R.P.No.383/2005 -: 41 :- Possibilities of mistakes and errors creeping in the decision making may not be very often but cannot out rightly be ruled out on occasions, especially the courts becoming over conscious of heavy backlog of cases and long lists of daily causes fixed before them. Skipping over or escaping the notice of the court some material and important aspects is also not unusual. Once, therefore, such a mistake/error comes to the notice of the court resulting in injustice it should not be hesitant or reluctant to make necessary correction to undo the injustice caused thereby. The entire theme of the above referred ideas expounded by the learned jurists is the avoidance of injustice. If in a case it is caused by any act or omission of the court inadvertently, accidentally or otherwise there should be no hesitation to rectify and make necessary correction by undoing the same.” 7. A perusal of the aforesaid reveals that it is now well settled that the power of review stems from the possibility of judicial fallibility and is exercised in exceptional circumstances in the aid of justice to avoid gross injustice and in view of the necessity to avoid perpetuating such illegality, which cannot be allowed to remain on the record. A review is not synonymous with an appeal and does not include rehearing of the matter in issue nor will be warranted merely because the conclusion drawn is wrong or erroneous but is limited to eventualities where something obvious has been overlooked or where there is a glaring omission or patent mistake of fact or law, which is self-evident, manifest and floating on the surface, materially affecting the outcome of the adjudicatory process. Where such material mistake or error has resulted in injustice or an illegality, the Court should not hesitate C.R.P.No.383/2005 -: 42 :- or be reluctant to make necessary corrections to undo the injury caused thereby. 8. A perusal of the record reveals that the matter came up for hearing before the learned Executing Court on 08.10.1998, when it was observed that the UBL had filed a statement in terms of Order XXI, Rule 66 CPC. The properties, initially to be put to auction, were identified and the Nazir of the Court was directed to sell the same by inviting sealed tenders after publication of advertisement in the daily newspapers. A sale notice was prepared by the Nazir of the Court and, after approval of the Court, published in the daily newspapers. In terms of the sale notice, sealed bids were invited and bidders were directed to submit Pay Orders/Demand Drafts of 10% of the price so offered. The other terms and conditions of the sale were also specified. The condition 3 read as follows: “3. The balance amount shall be deposited immediately on confirmation by the Hon’ble Court.” 9. Three publications went in vain. In pursuance to the fourth advertisement issued on the same terms and conditions, a sealed bid was received from Respondent No.1, who was the only bidder. It is not disputed that the said offer was accompanied by a Pay Order/Demand Draft of 10% of the amount offered. C.R.P.No.383/2005 -: 43 :- Thereafter, the matter came up for hearing on 26.2.2001 when the sealed bid of Respondent No.1 was considered. Respondent No.1 enhanced the amount originally offered, whereafter, the Court in unequivocal terms confirmed the sale in favour of Respondent No.1. According to the terms and conditions of the sale, Respondent No.1 was required to deposit the balance consideration immediately upon confirmation by the Court. However, vide Order dated 26.2.2001 one month’s time was given to Respondent No.1 to deposit the balance consideration. 10. It appears from the record that on 15th March, 2001, an application was filed by the Petitioners, which pertained to the vacant possession of the properties subject matter of the sale whereupon the following Order was passed on 27.3.2001: “Adjourned. In the meantime, the auction purchaser may take steps in terms of Rule 85 Order 21 CPC. Put up after 31.3.01.” 11. In the subsequent Order, it was noticed that the balance consideration has been paid. It is an admitted fact on the record and as also mentioned in the judgment under review that such payment was made on 30.3.2001. 12. A careful examination of the available record referred to above, reveals that it is difficult to hold conclusively that the C.R.P.No.383/2005 -: 44 :- learned Executing Court had initiated, commenced or pursued the execution proceedings by invoking the provisions of the Code of Civil Procedure, 1908. At the very outset, the sale was sought to be effected through the Nazir of the Court by inviting sealed tenders. The Certificate under Order XXI, Rule 66 CPC was filed by the decree-holder (UBL). It is not apparent from the available record whether such filing was pursuant to a specific Order passed by the learned Executing Court. Thus, the contention of the learned counsel for the Review Petitioners to the contrary, in this behalf cannot be accepted, therefore, the learned Executing Court in view of Section 18 of the Act of 1997 may have been at liberty to adopt any procedure to effect the sale of the properties in question. 13. It is evident from the available record that the terms and conditions for sale were advertised with the approval of the learned Executing Court and in accordance therewith, the balance consideration was required to be paid immediately upon confirmation of the sale by the learned Executing Court. The sale was confirmed vide Order dated 26.02.2001. However, by the same Order, Respondent No.1 was allowed one month’s time to deposit the balance consideration. A perusal of the Order dated 26.02.2001 does not disclose any conscious adjudication by the Court, for granting this indulgence of extension of time beyond the period as C.R.P.No.383/2005 -: 45 :- contemplated by the terms and conditions of the sale. Be that as it may, the time allowed to Respondent No.1 to deposit the balance consideration was “within one month from today”. Admittedly, the said balance consideration was not deposited within one month but in fact was deposited on 30.3.2001. This aspect of the matter has been considered and dealt with in para 12 of the judgment under review, which is reproduced herein below: “12. The negotiated offer made by the appellant/auction-purchaser to purchase the properties in question was accepted by the Banking Court, by order dated 26.2.2001 with the direction to deposit the balance of consideration amount within a period of one month. The appellant moved C.M.A.No.619 of 2001 before the expiry of the period of one month for issuance of directions to the Nazir of the Court to obtain vacant possession of the properties. The photo-copies of pay orders for the balance amount were also attached therewith. The said application was taken up by the Banking Court on 27.3.2001 and the Court directed the appellant to take steps in terms of Order XXI Rule 85 CPC. Therefore, he deposited the entire balance amount of the sale with the Nazir of the Court on 30.3.2001. On 9.4.2001, the Banking Court had noted that the appellant had deposited the balance amount. Therefore, the Court directed the Nazir of the Court to take steps for confirmation of sale. The Banking Court, by order dated 26.2.2001, had itself given a period of one month to the appellant to deposit the balance of purchase money which was extended by order dated 27.3.2001. He made the requisite payment to the Court on 30.3.2001. Therefore, he could not be penalized merely on the ground that he had failed to make such deposit within a period of 15 days as stipulated in Order XXI Rule 84 CPC. It was for the first time through order dated 27.3.2001 that the Banking Court, by making a reference to Order XXI Rule 85, had decided to follow the procedure as laid down by the CPC.” (emphasis is supplied) 14. The entire judgment under review in this behalf is based on the erroneous assumptions that the time had been C.R.P.No.383/2005 -: 46 :- extended by the learned Executing Court vide Order dated 27.3.2001. The said Order has been reproduced hereinabove, which merely states that Respondent No.1 may take steps in terms of Order XXI, Rule 85 CPC, which reads as follows: “85. Time for payment in full of purchase-money—The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property: Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off which he may be entitled under rule 72.” (emphasis is supplied) 15. A bare perusal of the aforesaid provisions of the law reveals that the steps to be taken in terms thereof are to deposit the balance sale price within 15 days from the date of the sale of the property. In the instant case, sale was confirmed by the Court on or before 26th February, 2001. The only other steps to be taken or privilege advanced to the auction purchaser would be to take advantage of any set-off, if permitted, under Order XXI, Rule 72 CPC. In the above circumstances, it is very difficult to accept that in fact the period of one month to deposit the balance consideration set forth in the Order dated 26.2.2001 had been extended. 16. It is not the case of Respondent No.1 that a prayer for extension of time had been made. There is no clear and C.R.P.No.383/2005 -: 47 :- unequivocal Order passed to the effect that such time was extended. The judgment under review is based on an incorrect and erroneous assumption that the time for deposit of the balance consideration had been extended. This error is floating on the face of the record. The entire edifice of the judgment under review is based upon such incorrect assumption of the facts and law. The obvious failure of Respondent No.1 to deposit the balance consideration within time fixed would materially impact the final adjudication of the matter at hand especially since a general principle of law as also reflected by Order XXI, Rule 85 CPC, the failure to deposit the balance consideration by an auction purchaser may result in setting aside the sale. 17. After deposit of the balance consideration, while the matter was pending in appeal, Respondent No.1 made an application before the learned Appellate Court/Division Bench of the High Court seeking withdrawal of 90% of the consideration as deposited. No doubt, such withdrawal was sought without prejudice and was allowed by the Court without prejudice to the rights of Respondent No.1 and prima facie with the consent of the decree-holder (UBL) and the learned counsel of the present Petitioners, however, it has been noticed with some interest that possibility of depositing the balance consideration in a profit C.R.P.No.383/2005 -: 48 :- bearing scheme was spurned by Respondent No.1 on the plea that such profit in his view was interest which he was not prepared to accept. However, it is also mentioned in the Order that in case Respondent No.1 succeeded, he would deposit the money withdrawn within one week. A perusal of the judgment under review also reveals that this Court acted upon an erroneous assumption that the balance consideration stood deposited and was available with the Nazir of the Court. This is obvious from the fact that in the judgment under review neither any direction was given for deposit of the balance consideration nor any timeframe was fixed in this behalf. It does not appear that the said amount was re-deposited by Respondent No.1 immediately or within one week from passing of the judgment under review. 18. There is no cavil with the contentions of the learned counsel for Respondent No.1 that Section 18 of the Act of 1997, contemplates the Banking Court being permitted to adopt any procedure other than the one prescribed by the Code of Civil Procedure, for execution of the decree. It is a settled law that in sale of immovable properties under Order XXI CPC, the reserve price must be fixed and the absence thereof may vitiate the entire process. C.R.P.No.383/2005 -: 49 :- 19. In this behalf, reference can be made from various judgments of this Court. In the judgment reported as M/s Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi (2013 SCMR 1419), it was observed as follows: “11. Yes, the prices have gone to a dizzying height ever since the sale was confirmed in favour of the respondent but this will not deter the Court from undoing the sale when the proceedings leading thereto were marred by serious lapses causing serious prejudice to the decree holders as well as the judgment debtors whose amount, which is much greater than that of the auction purchaser, also lay in a static repose till date. … Agreed that the expression “reserve price” does not find mention in the relevant rule but the words used in the rule pointedly hint thereto. A sale, in its absence, is apt to give walkover to manoeuvrers to fix any price of their choice. A sale thus effected is no sale in the eye of law especially when the number of bidders is meager, which, indeed is close to nill. A superstructure of sale built on such a shaky infrastructure cannot sustain itself. Neither the buttress of limitation nor the ministerial nature of the rule can prevent it from a fall. …” (Emphasis is supplied) In the case reported as National Bank of Pakistan and 117 others v. Saf Textile Mills Ltd and another (PLD 2014 SC 283), while considering the vires of Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, pertaining to the sale without intervention of the Court, it was observed as follows: “40. As a supplement to the aforesaid, it may be noted that no doubt, some rudimentary procedure for conducting such sales is provided in subsection (4) of section 15 of the Ordinance of 2001 but yet again the time honoured and well entrenched principle of fixation of a “reserve price” is conspicuous by its absence. It is now well settled law that even where the sale is conducted by C.R.P.No.383/2005 -: 50 :- the Court a “reserve price” is essential and the absence thereof may be fatal….” 20. The question that floats to the surface is whether while adopting a procedure other than as provided by the Code of Civil Procedure, 1908, the Banking Court could permit the sale of immovable properties without fixing a reserve price. This aspect of the matter has also escaped notice of this Court and has not been adjudicated upon. However, the available record reveals that a Certificate of an approximate value of the property of the subject matter of the sale was provided by Respondent No.2 (UBL), to which no objection was raised by the either party. If such value is deemed to be equivalent to the reserve price then unfortunately the sale was confirmed at a price lower than the said price. 21. The aforesaid gains further significance as it appears from the record that at some point of time, a higher price was offered by a third party. By way of the judgment under review, it has been held that the said offer was made after the sale was confirmed and the amount deposited by Respondent No.1. A document in this behalf (the higher offer) is available on the record but is undated. It needs to be ascertained as to when such offer was in fact made and whether the same would be a sufficient ground C.R.P.No.383/2005 -: 51 :- for putting the property to re-auction as was ordered by the learned Appellate Court/Division Bench of the High Court. 22. In view of the facts and circumstances, detailed hereinabove, it is clear and obvious that the judgment under review is based upon incorrect and erroneous assumptions of facts and law, which are manifest and self-evident on the face of the record. Critical legal questions, which floated to the surface from the record and from the pleadings of the parties have been sidestepped and thus evaded adjudication. In order to do the complete justice and to avoid perpetuating an illegality, it is imperative that the judgment dated 27.5.2005 announced on 27.6.2005 of this Court be recalled and Civil Appeal No.670 of 2002 be revived to be decided afresh in accordance with the law. 23. Consequently, this Civil Review Petition is allowed and the judgment dated 27.5.2005 announced on 27.6.2005 is recalled and Civil Appeal No.670 of 2002 shall be deemed to be pending and be decided afresh. Judge C.R.P.No.383/2005 -: 52 :- ORDER OF THE BENCH By majority of 2 to 1 (Sh. Azmat Saeed, J. dissenting), this Civil Review Petition is disposed of. Judge Judge Judge Announced in open Court on 5.1.2016 at Islamabad Approved for Reporting Judge

IN THE SUPREME COURT OF PAKISTAN (REVIEW/APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALI SHAH CIVIL REVIEW PETITIONS NO.412 AND 413 OF 2014 IN CIVIL APPEALS NO.1223 AND 1224 OF 2014 (On review of this Court’s order dated 23.9.2014 passed in C.As.No.1223 & 1224/2014) AND CIVIL APPEALS NO.1223 AND 1224 OF 2014 (Against the judgments dated 23.10.2012 of the Lahore High Court, Lahore passed in W.P. No.3053/2012) AND CIVIL PETITIONS NO.2061 AND 2189 OF 2014 (Against the judgments dated 8.7.2014/2.10.2014 of the Lahore High Court, Lahore passed in C.M.No.1/2014 in W.P.No.19769/2014 and W.P.No.19769/2014) C.R.P.412/2014: Pakistan Olympic Association through its President Vs. Nadeem Aftab Sindhu etc. C.R.P.413/2014: Pakistan Olympic Association through its President Vs. Muhammad Khalid Mehmood etc. C.A.1223/2014: Pakistan Olympic Association through its President Vs. Nadeem Aftab Sindhu etc. C.A.1224/2014: Muhammad Khalid Mahmood etc. Vs. Nadeem Aftab Sindhu etc. C.P.2061/2014: Federation of Pakistan M/o Inter-Provincial Coordination through its Secretary, Islamabad and another Vs. Pakistan Olympic Association through its Secretary General, Lahore etc. C.P.2189/2014: Khawaja Farooq Saeed, Secretary General Pakistan Olympic Association Lahore Vs. Federation of Pakistan through M/o Inter-Provincial Coordination through its Secretary, Islamabad etc. For the petitioner(s)/ appellant(s): Mr. Muhammad Ahmed Qayyum, ASC (On behalf of Malik Muhammad Qayyum, Sr. ASC) (In C.R.Ps.412 & 413/2014 and C.P.2189/2014) Mr. Muhammad Ali Raza, ASC Mr. Tariq Aziz, AOR (In C.A.1223/2014) Kh. Haris Ahmed, Sr. ASC Ch. Akhtar Ali, AOR (In C.A.1224/2014) Mr. Muhammad Munir Paracha, ASC Mr. Mahmood A. Sheikh, AOR (In C.P.2061/2014) C.A. No.1223/2014 etc. - 2 - For the respondent(s): Mr. Muhammad Ali Raza, ASC (For respondent No.5 in C.R.P.412/2014; for respondent No.26 in C.R.P.413/2014 & for respondent No.4 in C.A.1224/2014) On Court’s notice: Mr. Sohail Mahmood, DAG Mr. Qasim Ali Chohan, Addl.A.G. Punjab Date of hearing: 14.11.2018 JUGDMENT MIAN SAQIB NISAR, CJ.- The brief facts of the instant matters are that the Pakistan Olympic Association (Association) is an autonomous society registered under the Societies Registration Act, 1860 (the Act) which is affiliated under the Olympic Charter with the International Olympics Committee (IOC) as the National Olympic Committee for Pakistan (subsequently, it also became member of the Association of National Olympic Committees and the Olympic Council of Asia). The background of the appeals (C.As. No.1223 and 1224/2014) is that the elections held on 04.02.2012 for all the posts within the Association, except that of the President, were not held through secret ballot but instead through a show of hands in contravention of Rule 37 of the Pakistan Olympic Association Election Rules, 2012 (the Rules). Aggrieved, respondent No. 1 filed a writ petition before the learned High Court which was accepted and the elections were declared to be illegal and without lawful authority. This judgment was challenged by the Association before this Court through a petition wherein leave was granted vide order dated 23.09.2014 to consider the maintainability of the writ petition against the Association in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). The said order also granted the following interim relief:- “As conceded by the learned counsel for the petitioners, pursuant to the judgment under challenge, they would not claim themselves to the office bearers of the Pakistan Olympic Association. Besides, for the offices except the President, fresh elections shall be conducted by the Pakistan Olympic Association, not by show of hands but by secret ballot under the rules. An independent election body for conducting elections shall be selected by the general body of C.A. No.1223/2014 etc. - 3 - the Pakistan Olympic Association; Mr. Arif Hassan shall act as the President and represent the Pakistan Olympic Association at all forums, if representation is so needed; the elections shall be held within 75 days from today and compliance report in this regard shall be submitted to this Court.” In compliance of the above interim order, the Association submitted a report (vide C.M.A. No. 5916/2016) stating therein that fresh elections had been announced and an independent election commission was notified. However, review petitions (C.R.Ps. No.412 and 413/2014) were filed against the said interim order. It is also pertinent to note that the Association had filed W.P. No.19769/2014 before the Lahore High Court against the Federation of Pakistan, etc. seeking, inter alia, a declaration to the effect that Syed Arif Hassan had no authority to present himself as the President of the Association and that the letters dated 13.06.2014 and 04.07.2014 issued by the Director General, Pakistan Sports Board (PSB) were without lawful authority. The learned High Court passed an interim order dated 08.07.2014 suspending the two noted letters of the PSB which (interim order) was challenged by the Federation before this Court in C.P. No.2061/2014. Thereafter, the learned High Court passed an order dated 02.10.2014 in the said writ petition withdrawing the interim relief it granted vide order dated 08.07.2014 in light of the leave granting/interim order of this Court dated 23.09.2014 passed in C.Ps. No.245 and 489-L/2013 (now C.As. No.1223 and 1224/2014) and adjourning the matter sine die. This order dated 02.10.2014 was then challenged before this Court in C.P. No.2189/2014. Be that as it may, the main questions of law arising from the instant matters stand on the following pivotal questions of maintainability:- i) Whether the Association was a ‘person’ performing public functions in connection with the affairs of the Federation under Article 199(1)(a) of the Constitution? ii) Whether a writ is maintainable against the Association in terms of Article 199(1)(c) of the Constitution? C.A. No.1223/2014 etc. - 4 - The above questions of law shall be dealt with separately in this opinion and the arguments of the learned counsel shall be reflected therein. i) Whether the Association was ‘person’ performing public functions in connection with the affairs of the Federation under Article 199 of the Constitution? 2. Mr. Ali Raza, learned counsel for the appellant in C.A. No.1223/2014 commenced his arguments by unequivocally stating that the Association is a private registered society affiliated with an international private body, the IOC; it is neither controlled nor funded by the Federal Government nor does it have any public function. The Association merely represents Pakistan for the purposes of participation in events held by the IOC internationally as well at national forums and it is admitted by the Federal Government that it exercises no control over the Association. The learned High Court arrived at the conclusion that the Association was a ‘person' under Article 199 of the Constitution on the mistaken assumption that because the participating athletes carry the national flag and the sports aspirations of the country, it consequently exercises a public function and hence is a public functionary in terms of Article 199 ibid. He argued that this view is not in consonance with the law laid down by this Court in Salahuddin and 2 others Vs. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), Pakistan International Airline Corporation and others Vs. Tanweer-ur-Rehman and others (PLD 2010 SC 676), Anoosha Shaigan Vs. Lahore University of Management Sciences and others (PLD 2007 SC 568), Pakistan Red Crescent Society and another Vs. Syed Nazir Gillani (PLD 2005 SC 806), and Abdul Wahab and others Vs. HBL and others (2013 SCMR 1383). 3. The learned counsel for the respondents submitted that the learned High Court based its decision on the sound observation that the athletes selected by the Association represented the Pakistani flag; C.A. No.1223/2014 etc. - 5 - moreover, according to the aims and objectives laid down in paragraphs No.2, 5, 7, 9 and 17 of the Constitution of the Association it, inter alia, has the exclusive authority to approve and guarantee the candidature of any city or organization of Pakistan for hosting or staging the Olympic or other games and has the exclusive authority to represent Pakistan therein. Additionally, he submitted that the Association is exempted from Capital Value Tax (CVT) and relied on Article VI of the Association’s Constitution which provides that the Association’s General Council will comprise of almost all federations affiliated and controlled by the Government. He emphasized that by reason of the international impact of the Association, the instant appeal is a matter of national dignity. He further laid emphasis on the fact that the Association finds mention in the Revised National Sports Policy, 2005 (Sports Policy) and has been recognized as one of the main sports organizing agencies alongside the PSB and the National Sports Federation, etc. Moreover, under paragraph No.5 of the Sports Policy, all national games are to be organized as per the policy of the Association and in paragraph No.11 of the Sports Policy, restrictions are being imposed on the manner of elections in the Association. Further, the participating athletes of the Association are fully funded by the Federal Government at these international/national events. According to him, the crucial question is whether the Association’s functions affects or are exercised with regard to the affairs of the Federation, the answer to which is in the affirmative. In support of his submissions he distinguished the present case from the cases of Anoosha Shaigan (supra) and Abdul Wahab (supra) arguing that unlike in these matters, the Association despite being a private body is not merely affecting its students or employees but is in fact, to the exclusion of others, affecting the international image of sports in Pakistan and collaterally affects the attached sentiments of countless citizens. C.A. No.1223/2014 etc. - 6 - 4. When questioned as to whether the Association is a public functionary and thereby satisfies the function test laid down in the cases of Abdul Wahab (supra) and Frontier Sugar Mills (supra), the learned counsel for the respondents submitted that the functions and powers exercised by the Association are analogous to those of the PSB, and hence it can be said to be exercising functions in connection with the affairs of the Federation. However, when probed as to whether the Federation exercises the same amount of control on the Association as it does on the PSB, he responded evasively. Be that as it may, it is an undisputed fact that the Association is not controlled by the Federal Government, neither is it a statutory body nor has it acquired any affiliation from the PSB. However, to answer the question as to whether the Association is exercising functions in connection with the affairs of the Federation Article 199(1)(a) of the Constitution is to be considered in detail in the light of the facts of the instant case, which reads as follows:- Article 199. Jurisdiction of High Court.- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (a) on the application of any aggrieved party, make an order- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; [Emphasis supplied] There is no cavil to the proposition that unless the Association is a ‘person’ under Article 199(5) of the Constitution, the threshold of C.A. No.1223/2014 etc. - 7 - maintainability under Article 199(1)(a) supra will not be met. Therefore, in order to conclusively determine whether the Association is a public body exercising the functions of the Federation, the function test laid down by this Court in Frontier Sugar Mills’ case (supra) must be considered wherein it was held that “regulatory control does not make a person performing functions in relation to the federation or a province”. This judgment was relied upon in Abdul Wahab’s case (supra) in which a six-Member Bench of this Court comprising of one of us (Mian Saqib Nisar, J.), while holding that Habib Bank Limited was a private entity, observed that:- “…in order to bring the Bank within the purview and the connotation(s) of a ‘person’ and ‘authority’ appearing in Articles 199, 199(5) and 199(1)(c) of the Constitution and also for the purposes of urging that appropriate order, in the nature of a writ can be issued independently by this Court under Article 184(3) (Constitution), to the Bank, the learned counsel for the petitioners has strenuously relied upon the ‘function test’…In this context, it may be held that for the purposes of resorting to the ‘function test’, two important factors are the most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof…” [Emphasis supplied] The Association organises National Games, represents Pakistan at International sporting events, scrutinises, approves, and guarantees the candidature of any city or organisation applying for staging at International sporting events, and is also responsible for the promotion and development of sports in Pakistan. None of the above functions involve the exercise of sovereign power or public power, and do not constitute a function or duty of the state. It is not exclusively state managed organisations who may bear the Pakistani flag or incorporate it into their identity. Therefore no functions of the State involving sovereign or public power are being exercised by the Association. While it is true that Federal Government approves the selection of contingents and gives C.A. No.1223/2014 etc. - 8 - its consent to the Association representing Pakistan at international events, We do not find that this amounts to executive control. The Federal Government does not exercise decision making authority even if the PSB is involved in scrutinising and approving teams. Notably, as per paragraph No.19 of the aims and objectives provided in the Association’s Constitution, “its autonomy, dignity and independence in accordance with the Olympic Charter” is not to be compromised. Hence, we are of the opinion that the Federal Government does not exercise substantial control on, or have dominance in the controlling affairs of, the Association. Finally, the Federal Government does provide funding to defray the costs of sending contingents to the Olympics, however the private activities and other management of the organisation is funded by the Association itself. The overall activities of the organisation are independent and the bulk of the activities carried out are privately funded. A single activity/undertaking is funded by the federal government (i.e. sending teams to the Olympics) and while it is an expensive undertaking, it is only part of what the Association does. Most importantly, no financial interest of the State lies in the functions of the Association. Thus, in light of the above precedents it can be concluded that the Association does not satisfy the function test laid down by this Court and therefore, is not exercising public functions and is not a ‘person’ as per Article 199(5) supra. No writ of quo warranto can therefore lie against its office holders, nor can a writ lie against the Association in terms of Article 199(1)(a) supra. Even otherwise, the only affiliation that the Association has acquired is that of private bodies such as the IOC which according to the Olympic Charter does not require that the affiliating body be a public body. Therefore, it is held that the finding of the learned High Court in this regard was incorrect; the Association is not a person exercising functions in connection with the affairs of the Federation in terms of Article 199(1)(a)(i) and (ii) of the Constitution. C.A. No.1223/2014 etc. - 9 - ii) Whether a writ is maintainable against the Association in terms of Article 199(1)(c) of the Constitution? 5. The learned counsel for the appellant submitted that the Association on account of not exercising public functions in connection with the Federation is not a public body, and thus no writ can lie against it in terms of Article 199(1)(c) of the Constitution. On the other hand, the learned counsel for the respondents averred that Article 199(1)(c) ibid does not require that the ‘person’ against whom a writ is being issued should necessarily be performing functions in relation to the affairs of the Federation etc. According to him, Article 199(1)(c) ibid, unlike Article 199(1)(a) supra, owing to the use of the word ‘including’ applies to all persons [unless excluded under Article 199(5) of the Constitution] and not just those performing functions in relation to the affairs of the Federation etc. Relying on the judgment reported as Don Basco High School Vs. The Assistant Director, EOBI and others (PLD 1989 SC 128) he submitted that this Court held therein that the use of the term ‘include’ enlarges the scope and meaning of the sentence. Additionally, according to him the functions of the Association affects the fundamental rights of the citizens of Pakistan (under Articles 9, 14, 17, 18, and 25 of the Constitution) since the manner in which the Association carries out its affairs involves the nation’s image in international sports, therefore, the present case falls squarely within the ambit of Article 199(1)(c) of the Constitution and any actions of the Association may be subject to judicial review in terms thereof . 6. At this juncture it is expedient to consider Article 199(1)(c) supra which is reproduced hereinbelow for ease of reference:- Article 199. Jurisdiction of High Court.- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,- (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or C.A. No.1223/2014 etc. - 10 - performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. [Emphasis supplied] The true import of this provision from a plain reading thereof is that (subject to the Constitution) a High Court is authorized to issue any directions, as may be appropriate for the enforcement of any of the Fundamental Rights conferred by the Constitution, to any person or authority exercising any power or performing any function in (or in relation to) any territory within the jurisdiction of that Court (which includes but is not limited to any Government), provided two conditions are met: (i) such direction is made pursuant to an application of any aggrieved person, in other words, the High Court cannot do so suo motu; and (b) no other adequate remedy is provided by law. However, this provision has to be read with Article 199(5) of the Constitution which provides as under:- “(5) In this Article, unless the context otherwise requires,- “person” includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan…” [Emphasis supplied] The key question is that whether the condition of “of or under the control of the Federal Government or of a Provincial Government” applies only to “any authority” or will it also apply to “any body politic or corporate” and we find that such condition only applies to “any authority” and not “any body politic or corporate”. We hold so for the reason that a coma has been used between the two sets of phrases, i.e. “any body politic or corporate” and “any authority of or under the control of the Federal Government or of a Provincial Government”, which differentiates the two; besides, the word “any” is used separately for both C.A. No.1223/2014 etc. - 11 - sets of phrases. In fact, the word “any” is also used with the third phrase/set of bodies, i.e. “Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan”, creating three distinct categories. Thus, in light of the foregoing interpretation, a writ is maintainable under Article 199(1)(c) of the Constitution against any person including the body politic or corporate for the purpose of enforcement of any of the Fundamental Rights conferred by the Constitution. 7. This interpretation is in consonance with the ratio of the judgment of this Court reported as Human Rights Commission of Pakistan and 2 others Vs. Government of Pakistan and others (PLD 2009 SC 507) wherein it was held that the amplitude of Article 199(1)(c) ibid is wider than the other parts of Article 199 of the Constitution and is not restricted to public functionaries only but could extend to private parties, as long as there is a question of enforcement of fundamental rights under the Constitution:- “35. …the Jurisdiction of superior courts to enforce fundamental rights under Article 199(1)(c) of the Constitution is not merely exercisable against persons performing functions in connection with the affairs of the Federation or Province or a local authority but against any person or authority including a Government. Some of the fundamental rights by their very nature may be impaired by private persons and there is no embargo on the powers of the High Court to issue such directions as may be appropriate for enforcement of such rights.” [Emphasis supplied] Furthermore, in Abdul Wahab’s case (supra) it was held as under:- “8. …Fundamental rights enshrined in our Constitution have a very significant and pivotal position and are the most sacred of the rights conferred upon the citizens/persons of the country and thus the regard, security and the enforcement of these rights is one of the primary duties of the C.A. No.1223/2014 etc. - 12 - State and its institutions at all the levels…In view of the sanctity and the importance of these rights and for the safeness and the safeguard (saving those from a slightest impairment) thereof the Constitution itself in a noteworthy way, has provided a specific and a special mechanism, in terms of Article 199(1)(c) by virtue whereof notwithstanding the powers of the High Courts under Article 199(1)(a) and (b) an extraordinary power has been conferred on it “to make an order giving directions to any person etc…as may be appropriate for the enforcement of the fundamental rights conferred by Chapter I of Part-II”…” [Emphasis supplied] In other words, Article 199(1)(c) supra is contingent on the fact that the matter should involve the enforcement of fundamental rights guaranteed under the Constitution. In the instant case, the fundamental rights being relied on by the learned counsel in making such argument are Articles 9, 14, 17, 18, and 25 of the Constitution, all of which do not seem relevant in the instant matter. We do not find that the internal functioning of the Association, particularly the method of elections of certain posts thereof, deprives persons of the right to life or liberty (Article 9 of the Constitution), violates the dignity of man (Article 14 of the Constitution), curtails the right to freedom of association (Article 17 of the Constitution), trade, business or profession (Article 18 of the Constitution), or is discriminatory in any manner whatsoever (Article 25 of the Constitution). Therefore, we do not find that a writ is maintainable against the Association under Article 199(1)(c) ibid. 8. Before parting it is found pertinent to mention that indeed, the promotion of sports in Pakistan holds paramount importance and the participation of athletes in international sports events is a matter of immense pride and prestige for the entire nation, however, in the tide of such emotions we cannot lose sight of the fact that a body which is operating independently and is admittedly not being substantially controlled by either the Federal or Provincial Government or any other C.A. No.1223/2014 etc. - 13 - governmental body and considering the fact that the instant matter does not involve a violation of any of the fundamental rights, the internal functions of the Association cannot, in the facts and circumstances, be subjected to judicial review under Article 199 of the Constitution. Therefore, it is held that the decision of the learned High Court in holding a writ to be maintainable against the Association was erroneous and cannot be sustained. 9. For the foregoing reasons, the instant appeals are allowed and the impugned judgment is set aside. As the main appeals stand decided, the review petitions, civil petitions and miscellaneous applications have lost their relevance and are all disposed of accordingly. For the redressal of any grievances with regards to the internal functioning of the Association including its elections, the aggrieved may, if so advised, approach the courts of plenary jurisdiction to seek the appropriate remedy as provided under the law. CHIEF JUSTICE Announced on open Court on 1.1.2019 at Islamabad Approved for reporting JUDGE JUDGE M. Azhar Malik/*

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SYED MANSOOR ALI SHAH Civil Review Petition No. 420 of 2016 in Civil Petition No. 2990 of 2016 (To review the judgment dated 27.09.2016 passed by this Court in C.P. No. 2990 of 2016) Mst. Safia Bano Versus Home Department Govt. of Punjab through its Secretary and others Civil Review Petition No. 424 of 2016 in Civil Petition No. 2990 of 2016 (To review the judgment dated 27.09.2016 passed by this Court in C.P. No. 2990 of 2016) The Inspector General of Prisons Punjab Versus Mst. Safia Bano & others Criminal Review Petition No. 170 of 2016 in Criminal Appeal No. 619 of 2009 (To review the judgment of this Court dated 19.10.2015 passed by this Court in Crl. Appeal No. 619 of 2009) The State Versus Muhammad Ahmed Raza Human Rights Case No. 16514-P of 2018 (Matter regarding treatment of condemned prisoner, Kaneezan Bibi confined in Central Jail, Lahore) Constitution Petition No. 09 of 2019 (Regarding suspension of death sentence of condemned prisoner Ghulam Abbas on the ground of mental illness) Mst. Noor Jehan Versus Home Deptt. Govt. of Punjab through Its Secretary & others For the Petitioner(s) Syed Iqbal Hussain Shah Gillani, ASC assisted by Ms. Zainab Mahboob, Barrister Hashim, Barrister Syeda C.R.P. No. 420 etc 2 Jugnoo Kazim and Maria Kazmi (in CRP No. 420 of 2016 & HRC No. 16514-P of 2018) Mr. Qasim Ali Chohan, Addl. AG Punjab (in CRP No. 424 of 2016) Ch. Muhammad Sarwar Sidhu, Addl. PG Dr. Faria Munawar, WMO (Adyala Jail, Rawalpindi) Zahid Bhatti, Assistant Superintendent Jail, DIG Prisons Office Rawalpindi Region & Tahir Shah, Dy. Superintendent. (in Crl. R.P. No. 170 of 2016) For the Complainant: Mr. Sanaullah Zahid, ASC (in Crl.R.Ps No. 420 & 424 of 2016) On Court’s Notice: For the Federation: Mr. Sajid Ilyas Bhatti, Addl. AGP For the Province of Punjab: Mr. Qasim Ali Chohan, Addl. AG Punjab For the Province of Sindh: Mr. Solat Rizvi, Addl. AG Sindh For the Province of KPK: Mr. Shumail Ahmad Butt, AG KPK Mr. Atif Ali Khan, Addl. AG KPK Mr. Zahid Yousaf Qureshi, Addl. AG KPK For Province of Balochistan: Mr. Arbab Muhammad Tahir, AG Balochistan Mr. Ayaz Muhammad Swati, Addl. AG Balochistan For Islamabad: Mr. Niaz Ullah Niazi, AG Islamabad Amici Curiae: Brigadier (Retd.) Professor Mowadat Hussain Rana, Professor of Psychiatry Barrister Haider Rasul Mirza, ASC C.R.P. No. 420 etc 3 Date of Hearing 17.09.2020, 21.09.2020, 23.10.2018, 15.12.2020, 04.01.2021, 05.01.2021, 06.01.2021 & 07.01.2021 J U D G M E N T Manzoor Ahmad Malik, J.- The mental health of a person is as important and significant as his physical health. Unfortunately, it is often not given the importance and seriousness it deserves. Because of certain misconceptions, the implications of mental illness are overlooked and the vulnerability or disability that it causes is not given due attention. 2. The Apex Court of the country has been called upon, through this Larger Bench, to determine questions relating to culpability, competence to face trial, and execution of sentence in case of those accused persons and convicts who are suffering from mental illness. These determinations need to be made while considering the latest jurisprudential, legislative and medical developments on this subject. 3. The facts relevant to the adjudication of the petitions relating to the case of each condemned prisoner i.e. Imdad Ali, Mst. Kaneezan Bibi and Ghulam Abbas are briefly discussed herein below:- IMDAD ALI’S CASE (Civil Review Petition (C.R.P.) No. 420 of 2016 & C.R.P. No. 424 of 2016 in Civil Petition No. 2990 of 2016 AND Crl. Review Petition (Crl.R.P.) No. 170 of 2016 in Crl. Appeal No. 619 of 2009) 4. Imdad Ali (aged about 42 years at the time of commission of offence) was indicted by the learned Additional Sessions Judge, Burewala on 09.01.2002 for committing the murder of Hafiz Muhammad Abdullah on 21.01.2001 by firing shots with a C.R.P. No. 420 etc 4 rifle 222 bore, in the area of Police Station (P.S.) City Burewala, District Vehari. Upon framing of charge, Imdad Ali pleaded not guilty. The record shows that no Advocate was appointed by him or his family to represent him before the trial Court rather an Advocate at State expense was appointed by the trial Court vide its order dated 29.01.2002 to conduct his case. The order of said date further reflects that earlier an Advocate was appointed by Court at State expense to represent Imdad Ali who later showed his unwillingness to represent the accused and in his stead another Advocate was appointed at State expense to represent him. It is manifest from the interim order of trial Court dated 09.02.2002 that learned defence counsel submitted an application under section 465 Code of Criminal Procedure, 1898 (Cr.P.C.) for holding an inquiry to determine the competence of Imdad Ali to face trial. On the said application, arguments were heard and vide order dated 12.03.2002, the learned trial Court disposed of the said application by observing that there is no reason to believe that Imdad Ali is of unsound mind, as referred to in section 465 Cr.P.C. 5. This order was challenged before the learned Lahore High Court, Multan Bench, Multan on behalf of Imdad Ali through Crl. Revision No. 91 of 2002 which was dismissed as not pressed upon the contention of his counsel that he intends to move an application before the learned trial Court to summon, as a Court witness, the Doctor who examined Imdad Ali, before the occurrence. 6. Thereafter, an application was moved before the trial Court on behalf of Imdad Ali for summoning Dr. Ihtisham ul Haq, Medical Officer, Services Hospital Lahore. The said application was dismissed by the trial Court vide order dated 07.05.2002. 7. This order of the learned trial Court dated 07.05.2002 was challenged before the learned Lahore High Court, Multan Bench Multan through Criminal Revision No. 185 of 2002. Vide order dated 14.05.2002, a report was called from the doctor posted at New Central Jail, Multan regarding the mental health condition of Imdad Ali. The doctor was also directed to specify the disease, if any, and to opine C.R.P. No. 420 etc 5 whether the same was periodical or permanent. However, on 25.02.2002 when the case was taken up by the learned High Court, no one on behalf of convict Imdad Ali put in an appearance and the criminal revision was dismissed for non-prosecution. After the close of prosecution evidence, Imdad Ali was examined under section 342 Cr.P.C, as required under the law. Thereafter, his wife Mst. Safia Bano appeared as DW-1. She stated before the trial Court that 3-4 years prior to the occurrence, Imdad Ali occasionally talked about “supernatural beings” and “metaphysical elements” but “symptoms of abnormality” became usual one year prior to the occurrence. She further stated that prior to the occurrence, Imdad Ali was examined by Dr. Ihtisham ul Haq who recommended him for treatment at the Mental Hospital, Lahore. 8. On conclusion of the trial, Imdad Ali was convicted by the trial Court under section 302 Pakistan Penal Code, 1860 (P.P.C.) on 29.07.2002 and sentenced to death. The appeal filed by him was dismissed by a Division Bench of the learned Lahore High Court, Multan Bench, Multan on 07.11.2008 and murder reference was answered in the affirmative and his sentence of death was confirmed. Thereafter, he filed a jail petition before this Court wherein leave to appeal was granted on 13.11.2009, which culminated into Crl. Appeal No. 619 of 2009 and the same was also dismissed vide judgment dated 19.10.2015 and his death sentence was upheld. Imdad Ali did not file any review petition against the said judgment. However, he filed a mercy petition which was dismissed by the President of Pakistan on 17.11.2015. When black warrants were issued for execution of Imdad Ali on 26.07.2016, Mst. Safia Bano (wife of Imdad Ali) filed an application before the learned Sessions Judge, Vehari on 21.07.2016 praying therein that in order to examine the mental health condition of her husband (Imdad Ali), a Medical Board may be constituted and his execution may be stayed. The learned Additional Sessions Judge, Vehari dismissed the said application on 22.07.2016. Thereafter, Mst. Safia Bano filed a constitution petition (W.P. No. 10816 of 2016) before the Lahore High Court, Multan C.R.P. No. 420 etc 6 Bench, Multan, against dismissal of application by the learned Additional Sessions Judge, Vehari. The High Court dismissed the writ petition on 25.07.2016, whereafter Mst. Safia Bano filed C.P. No. 2990 of 2016 before this Court assailing the order of the learned High Court, which was dismissed by this Court vide judgment dated 27.09.2016. Mst. Safia Bano has now filed C.R.P. No. 420 of 2016. Additionally, C.R.P. No. 424 of 2016 has been filed by the Inspector General of Prisons, Punjab, for review of the judgment of this Court dated 27.09.2016. Crl.R.P. No. 170 of 2016 has also been filed by the State through Prosecutor General Punjab, praying therein that judgment dated 19.10.2015 passed in Crl. Appeal No. 619 of 2009 may be reviewed and the sentence of death awarded to Imdad Ali be converted into imprisonment for life on account of his mental illness. KANEEZAN BIBI’S CASE (Human Rights Case (H.R.C.) No. 16514-P of 2018) 9. Mst. Kaneezan Bibi (aged about 24 years at the time of commission of offence) along with her co-convict Khan Muhammad was tried by the learned Additional Sessions Judge, Toba Tek Singh for committing murder of Mst. Maryam Bibi, Aslam, Shaukat, Liaqat, Mst. Razia and Mst. Safia on the night between 27/28.7.1989, in the area of P.S. Pir Mahal, Tehsil Kamalia, District Toba Tek Singh. On conclusion of trial, the said Court vide its judgment dated 07.01.1991 convicted her under section 302(b)/34 PPC and she was sentenced to death on six counts. A criminal jail appeal filed by her against her conviction and sentence was dismissed by the Lahore High Court, Lahore vide judgment dated 01.03.1994 and murder reference sent by the trial Court for confirmation or otherwise of her sentence of death was answered in the affirmative and her sentence of death on six counts was confirmed. Her criminal appeal was dismissed by this Court on 02.03.1999 without there being any alteration in her conviction and sentence. As reported by office, Mst. Kaneezan Bibi did not file any review petition against the judgment of this Court. The mercy petition filed by her was also dismissed by the President of C.R.P. No. 420 etc 7 Pakistan on 19.01.2000. Thereafter, the convict Mst. Kaneezan Bibi filed CPLA No. 1925-L of 2010 against the dismissal of her writ petition by the learned Lahore High Court Lahore vide order dated 22.07.2010, for converting her sentence of death to imprisonment for life on the ground of mental ailment but the same was dismissed by this Court on 02.12.2010. Subsequently, her execution was stayed for three weeks by the President of Pakistan and she was referred to Punjab Institute of Mental Health (PIMH), where she was found to be suffering from schizophrenia. It is relevant to mention here that neither during trial nor before the learned High Court at the time of hearing of her appeal was the plea of mental ailment urged on her behalf. On 17.04.2018, the then Hon’ble Chief Justice after perusal of a report submitted by the Superintendent Central Jail, Lahore took suo motu notice and thereafter the instant case i.e. H.R.C. No. 16514-P of 2018 was ordered to be clubbed with C.R.P. No. 420 of 2016 (Imdad Ali’s case). GHULAM ABBAS’S CASE (Constitution Petition No. 9 of 2019) 10. Ghulam Abbas (aged about 23 years at the time of commission of offence) was indicted by the learned Additional Sessions Judge, Rawalpindi on 04.04.2005 for committing murder of Wajid Ali and for murderous assault on Mst. Saima Bibi (wife of Wajid Ali) on 02.09.2004 in the area of P.S. R.A. Bazar Rawalpindi. On conclusion of trial, the said Court, vide its judgment dated 31.05.2006, convicted him under section 302(b) PPC and sentenced him to death. He was also convicted under sections 449 and 324 PPC and sentenced to different terms of imprisonment. The criminal appeal filed by him against his conviction and sentence was dismissed by the Lahore High Court, Rawalpindi Bench, Rawalpindi on 12.04.2010 and the murder reference was answered in the affirmative and his sentence of death was confirmed. His criminal appeal was also dismissed by this Court on 27.10.2016 and his conviction and sentence were maintained. The review petition filed by Ghulam Abbas against the said judgment of this Court was also dismissed on C.R.P. No. 420 etc 8 18.07.2018. Same was the fate of his mercy petition filed before the President of Pakistan which was rejected on 22.04.2019. 11. Consequently, black warrants were issued, and his execution was fixed for 18.06.2019. In this backdrop, Mst. Noor Jehan (mother of Ghulam Abbas) filed the instant constitution petition No. 9 of 2019 under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) before this Court for staying the execution of black warrants on the grounds that Ghulam Abbas suffers from intellectual disability and mental illness which predate his confinement in jail; that he has severe learning disability since his childhood; that he is suffering from repeated seizures/fits; that he has a documented history of mental illness during his confinement in jail; that he has been prescribed antipsychotic medication. While pleading these circumstances, she has prayed for staying the execution of black warrants and assessment and evaluation of Ghulam Abbas by a Special Medical Board. While entertaining the petition, the then Hon’ble Chief Justice of Pakistan vide order dated 17.06.2019 stayed the execution of death sentence of Ghulam Abbas and directed the office to club the instant petition with C.R.P. No. 420 of 2016 (Imdad Ali’s case). 12. In view of the facts narrated hereinabove, the important legal questions which emanate from these petitions are as under:- (i) How should the trial Court deal with the plea of an accused that he/she was suffering from mental illness at the time of commission of offence? (ii) How should the trial Court deal with the claim that due to mental illness, an accused is incapable of making his/her defence? (iii) Whether a mentally ill condemned prisoner should be executed? C.R.P. No. 420 etc 9 13. In view of serious and important legal questions involved in these petitions, notices were issued to the Advocates General of Provinces of Sindh, Khyber Pakhtunkhwa, Balochistan and Federal Capital Territory. No formal notices were required to be issued to the Government of the Punjab and the Federation since they already stood represented in C.R.P. No. 424 of 2016 and Crl. R.P. No. 170 of 2016. 14. Considering the sensitivity and significance of the issues involved, by order dated 17.09.2020, Brigadier (Retd) Professor Mowadat Hussain Rana, a renowned Professor of Psychiatry and Barrister Haider Rasul Mirza, Advocate Supreme Court of Pakistan (ASC) were asked to assist the Court as amici curiae. ARGUMENTS 15. Learned counsel for the condemned prisoners Imdad Ali, Mst. Kaneezan Bibi and Ghulam Abbas has vehemently contended that these convicts are lodged in death cell for a considerably long period of time and they are suffering from acute mental illnesses. He stated that the Medical Board constituted by this Court has given a categoric opinion that Imdad Ali is suffering from Schizophrenia, Mst. Kaneezan Bibi has also been diagnosed with the same severe lifelong mental illness (Schizophrenia) and Ghulam Abbas suffers from cognitive/intellectual impairment. Learned counsel further contended that in the face of these mental illnesses, it is inhumane to execute the sentence of death of these condemned prisoners. While referring to certain provisions of the Prison Rules 1978 (Rules), learned counsel contended that from a wholistic reading of the referred Rules, it can safely be inferred that the condemned prisoners, because of their serious mental illness, are unable to understand and follow the mandatory procedures required to be followed before their execution. Therefore, learned counsel prayed that this Court may consider serious mental illness of the condemned C.R.P. No. 420 etc 10 prisoners as a mitigating circumstance for converting their sentences of death into imprisonment for life. 16. However, learned counsel for the complainant (in the case of condemned prisoner Imdad Ali) opposed the prayer of the learned counsel for the condemned prisoner and argued that at the time of commission of crime, Imdad Ali was mentally fit and knew the consequences of his action. He further argued that at this belated stage, when he has virtually exhausted all the remedies available to him under the law, he is not entitled to any indulgence. 17. Brigadier (Retd.) Professor Dr. Mowadat Hussain Rana, learned amicus, apprised the Court about the concept and nature of different mental diseases. He stated that unlike physical illnesses, mental disorders are misunderstood by majority of the people. He elaborated that there are myths and misconceptions surrounding mental illnesses, their causes, consequences, and the way they influence human behavior and even the enlightened sections of the society consider mental illness a curse. 18. He was of the view that even in legal circles, mental illnesses are inadequately understood often raising suspicion and doubt. He expressed his view that many in the legal profession consider mental illnesses as abstract conditions that are more “in the air” or as spiritual and psychological conditions that people experience transiently as a result of tensions and stresses of life, rather than diseases of mind and brain with a scientific basis. They may believe that a mentally ill individual can be spotted easily by asking few questions to determine if he/she is ‘sane’ or otherwise. 19. He further elaborated that another common misconception is that mental illnesses can be very easily feigned in order to circumvent the law. He added that there is a wrong impression as well that there are no specific assessment methods, diagnostic laboratories, radiological tests, or known scientific, C.R.P. No. 420 etc 11 structural and demonstrable means to determine or diagnose mental illnesses. He stressed that these notions, unfortunately, do not have a scientific basis because psychiatric disorders are like any other medical disorder. The diagnosis and objective determination of such disorders is a highly technical and a professional pursuit and like all other medical disorders, can only be assessed by Psychiatrists with the help of mental health professionals through rigorous clinical, psychometric and scientific electrophysiological and radiological tests and scans of functions of brain and mind. He also added that a mentally ill individual with disturbed higher mental functions of consciousness, thinking, mood, cognition and with impairment of judgment and insight cannot be treated at par with a normal criminal. 20. He apprised the Court that there are more than 160 recognized psychiatric disorders. Some of those disorders are Severe Mental Illnesses (SMIs), Personality Disorders, and Intellectual Disabilities (ID), and such disorders affect the capacity of an individual to fend for himself/herself in a court of law. He was of the opinion that forensic mental health assessment must, minimally, include an expert's opinion on the consciousness, thinking process, intellect, mood, emotions, perceptions, judgment and insight of the accused person. He also submitted that such assessment must include an evaluation of secondary functions of temperament, personality and the biological / physical state of the accused before a judgment can be passed on the existence or absence of mental illness. He went on to submit that in order to ensure a meaningful participation of an accused in a criminal trial, as provided by law, there are certain pre-requisites such as the accused must understand the nature of charge against him/her; he/she should have the ability to impart instructions to his/her counsel; he/she should be able to understand the difference between pleading guilty and not guilty; he/she must understand what is being said during the trial and what to do if he/she does not agree with what is being said; he/she must understand the evidence produced against him/her during trial and he/she must also be capable of leading evidence in his/her defence. He emphasized that without C.R.P. No. 420 etc 12 taking assistance of experts in the field of mental health i.e. psychiatrists and psychologists, it cannot conclusively be determined by the Court whether the accused is suffering from mental illness or whether he/she can understand the charge or defend himself/herself in Court and give instructions to counsel. 21. While commenting on the issue of executing mentally ill convicts, the learned amicus stated that in case the condemned prisoner is suffering from a mental illness making him/her incapable of understanding the retributive rationale behind his/her execution, the execution will serve no purpose either to him/her or to the society. Elaborating the point, he stated that this does not mean that he/she must be set free, rather, if this Court comes to the conclusion that mental illness can be a mitigating factor in converting the sentence of such a condemned prisoner from death to imprisonment for life, specific instructions may be passed on to the respective Governments to shift such mentally ill prisoner to some mental health facility for proper treatment and rehabilitation. He also suggested that effective steps should be taken by the prison authorities to protect a prisoner’s mental health, prevent mental illness, ensure early detection and provide prompt treatment and rehabilitation. He further suggested that proper training be provided to the prison staff to help them deal with their stressful and challenging atmosphere. 22. Learned amicus curiae Barrister Haider Rasul Mirza, ASC has also been heard at length. He referred to different provisions of domestic and foreign laws on the subject, Prison Rules, Jail Manuals, judgments, and other material from domestic and foreign jurisdictions, to contend that a serious approach is required to be adopted by the Courts if the issue of mental illness of an accused/convict is raised either at the time of trial, or while hearing an appeal against conviction and sentence of a convict. He, while highlighting different provisions of Prison Rules, stated that the death sentence cannot be executed in case of a condemned prisoner who is unable to take rational decisions and whose ability to understand the C.R.P. No. 420 etc 13 rationale behind his/her punishment is substantially impaired due to a medically recognized mental illness. 23. He also argued that in circumstances where a condemned prisoner develops a post-conviction mental illness and because of that mental illness, his/her mental faculties are not appreciative of the reason behind the punishment imposed by the Court, the execution of sentence would serve no purpose. He amplified that the retributive idea behind punishment is that it should not only serve as a deterrent, but also make one realize that he /she committed a wrong which has resulted in punishment. In the absence of such realization, due to an involuntarily induced mental disorder or illness, execution of a sentence loses its significance and may fail the test of proportionality attached to retributive justice. The learned amicus also argued that it is not every mental illness which would qualify for an exemption. The prohibition on executing mentally ill prisoners may be applied only to those who are medically found to be suffering from mental illness, the severity of which permanently impairs their ability to appreciate the rationale behind the punishment which they are sentenced to undergo. 24. The learned Additional Attorney General for Pakistan, learned Law Officers of all the Provinces as well as learned Advocate General, Islamabad adopted the submissions and contentions of learned amici Barrister Haider Rasul Mirza, ASC and Brigadier (Retd.) Professor Dr. Mowadat Hussain Rana. In particular, the learned Law Officers principally agreed with the contention of the amici curiae that death sentence should not be executed in case of those condemned prisoners who, due to mental illness, are unable to take rational decisions and understand the rationale behind their punishment. 25. We have heard all in detail, have considered their respective submissions and examined the relevant provisions of law with their able assistance. C.R.P. No. 420 etc 14 OPINION OF THE COURT 26. Before we embark upon to address the legal questions framed herein above, it is imperative to examine how the term “mental illness” has been defined in the domestic and foreign jurisdictions. 27. In our law, some terminologies/phrases/words such as “lunatic”, “insane” and “unsound mind” have been used in the PPC, Cr.P.C and the Rules, regarding the mental health of an accused or a convict. But these terms have not been expressly defined in either of these Statutes/Rules. 28. In Pakistan, the Mental Health Ordinance, 2001 (VIII of 2001) (Ordinance) was promulgated in the year 2001 which defined the terms “mental disorder”, “mental impairment”, “severe personality disorder”, “severe mental impairment” and “mentally disordered prisoner”. 29. However, after the passage of 18th Amendment, ‘Health’ became a Provincial subject and respective Governments of Sindh, Punjab, Khyber Pakhtunkhwa and Balochistan promulgated their own Acts in this behalf. These laws also define the terms “mental disorder” and “mentally disordered prisoners”. The Ordinance was adopted by the Province of the Punjab and amended through the Punjab Mental Health (Amendment) Act 2014. The Ordinance defines the terms ‘mental disorder’, ‘mental impairment’ ‘mentally disordered prisoner’ as under:- (m) “mental disorder” means mental illness, including mental impairment, severe personality disorder, severe mental impairment and any other disorder or disability of mind and “mentally disordered” shall be construed accordingly and as explained hereunder: (i) “mental impairment” means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant C.R.P. No. 420 etc 15 impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and “mentally impaired” shall be construed accordingly; (ii) “severe personality disorder” means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned; (iii) “severe mental impairment” means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and “severely mentally impaired” shall be construed accordingly; (n) “mentally disordered prisoner” means a person, who is a prisoner for whose detention in or removal to a psychiatric facility or other place of safety, an order has been made in accordance with the provisions of section 466 or section 471 of the Code of Criminal Procedure, 1898 (Act V of 1898), section 30 of the Prisoners Act, 1900 (III of 1900), section 130 of the Pakistan Army Act, 1952 (XXXIX of 1952), section 143 of the Pakistan Air Force Act, 1953 (VI of 1953) or section 123 of the Pakistan Navy Ordinance, 1961 (XXXV of 1961);” 30. Almost similar definitions are also available in the Sindh Mental Health Act, 2013, the Khyber Pakhtunkhwa Mental Health Act, 2017 and the Balochistan Mental Health Act, 2019. 31. The definitions of mental illness available in these Provincial Laws led us to examine the definition of the term “mental illness” or “mental disorder” in other jurisdictions. 32. In the United Kingdom, the Mental Health Act, 1983 initially defined the term “mental disorder” to mean mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. However, this definition has now been substituted with a less restrictive definition through the C.R.P. No. 420 etc 16 Mental Health Act, 2007. The term “mental disorder” is now defined as any disorder or disability of the mind. 33. In India, the Mental Healthcare Act, 2017 (Indian Law) is the prevalent law which deals with providing health care and services for persons with mental illness. Section 2(1) (s) defines “mental illness” in the following terms:- “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by subnormality of intelligence;” 34. Further more, section 3(1) of the Indian Law states as follows:- 3.(1) Mental illness shall be determined in accordance with such nationally or internationally accepted mental standards (including the latest edition of the International Classification of Disease of the World Health Organization) as may be notified by the Central Government. (2) No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force. (3) Mental illness of a person shall not be determined on the basis of, -----(a) political, economic or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person; (b) non- conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community. (4) Past treatment or hospitalization in a mental health establishment though relevant, shall not by itself justify any present or future determination of the person’s mental illness. (5) The determination of a person’s mental illness shall alone not imply or be taken to mean that the person is of unsound mind unless he has been declared as such by a competent court. C.R.P. No. 420 etc 17 35. Perusal of section 3(1) of the Indian Law reveals that it appreciates the developing nature of medical science and incorporates the nationally and internationally accepted medical standards, including the latest edition of the International Classification of Disease (ICD) of the World Health Organization (WHO), for determination of mental illness. We have been apprised that ICD-101 is the current edition of a medical classification of disease issued by the WHO and is expected to be replaced by ICD-11 in 2021/2022. Chapter-V of ICD-10 classifies medically recognized mental and behavioral disorders. It has been pointed out that Pakistan currently follows the ICD-10. However, reference has been made to Chapter 6 of ICD-11 titled ‘Mental, Behavioral or Neuro-developmental Disorders.’ It defines psychiatric disorders as ‘syndromes characterized by clinically significant disturbance in an individual’s cognition, emotional regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes that underlie mental and behavioral functioning. These disturbances are usually associated with distress or impairment in personal, family, social, educational, occupational, or other important areas of functioning’. This Chapter has 161 categories recognized as diseases of psychiatric origin. These categories are enlisted under twenty blocks. Some of the blocks which may be relevant to Forensic Mental Health in the context of criminal administration of justice are: Neuro-developmental disorders, Schizophrenia, Catatonia, Mood disorders, Anxiety or related fear disorders, Obsessive compulsive disorders, Disorders associated with stress, Dissociative disorders, Disorders due to substance use or addictive behaviors, Impulse control disorders, Disruptive behavior or dissocial disorders, Personality disorders, Paraphilic disorders, Factitious disorders, Neuro-cognitive disorders, Mental and behavioral disorders associated with pregnancy and puerperium, Secondary mental and behavioral disorders due to other diseases. 1 https://icd.who.int/browse10/2019/en#V C.R.P. No. 420 etc 18 36. The term “mental disorder” has also been defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published in 2013, as under:- “A mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion Regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g. political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.” 37. An examination of the definitions for mental illness provided for in the domestic and foreign laws establishes the fact that the terms “mental illness” or “mental disorder” are both used to refer to mental ailments and are defined by medical science. It is with the developing nature of medical science that scope of these terms may also evolve. Therefore, we are of the view that a limited definition of the terms “mental disorder” or “mental illness” should be avoided, and the Provincial Legislatures may, in order to better appreciate the evolving nature of medical science, consider to appropriately amend the relevant provisions of mental health laws to cater for medically recognized mental and behavioral disorders as notified by WHO through its latest edition of ICD. It has been noted that the evolution of medical science and human rights has sensitized the society to stigmatic labels such as “unsound mind”, “lunatic” and “insane”. Latest legislations all over the world do not use such terms. Therefore, we consider it appropriate to direct that the terms “unsoundness of mind” and “unsound mind” occurring in PPC, Cr.P.C. and the Prison Rules be substituted with term “mental disorder” or “mental illness”. The term “lunatic” wherever occurs shall also be substituted appropriately. C.R.P. No. 420 etc 19 38. We now proceed to address the question “How should the trial Court deal with the plea of an accused that he/she was suffering from mental illness at the time of commission of offence?” 39. So far as our criminal law is concerned, the impact of mental illness on the act (commission of offence) of an accused person and his/her ability to comprehend the legal proceedings before the trial Court is dealt with by the PPC and Cr.P.C. There are certain Prison Rules as well which deal with the mental health of under trial prisoners and convicts. 40. In a criminal trial, two situations may possibly arise in relation to mental health of an accused: firstly, his/her state of mind at the time of commission of offence; and secondly, his/her mental condition before the commencement or during the course of trial. For the first situation i.e. mental condition at the time of commission of offence, section 84 of PPC is relevant. Whereas, for the second situation i.e. mental condition of accused before the commencement or during trial, Chapter XXXIV of Cr.P.C, particularly sections 464 and 465 are relevant. 41. Mental condition at the time of commission of offence is considered as an exception (where act though committed yet not treated as offence) under section 84 of PPC which is reproduced as under:- “84. Act of a person of unsound mind. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” 42. The scope of section 84 PPC and the principles related thereto were discussed in detail by this Court in the case of Khizar C.R.P. No. 420 etc 20 Hayat versus. The State2. In this case, the Court was seized with a criminal appeal filed by convict against his conviction and sentence of death, with the plea that at the time of commission of the offence, he was insane and suffering from schizophrenia and his case was fully covered under section 84 PPC. This Court, while relying upon the interpretation of section 84 PPC in the case of The State versus Balahari Das Sutradhar3, rejected the plea of the convict and, while maintaining his conviction and sentence of death, observed that not every person who is mentally disturbed or is suffering from some mental illness(es) is, ipso facto, exempted from criminal liability. Any person who seeks the benefit of section 84 PPC must prove that at the time of committing the act, he was laboring under such defect of reason as not to know the nature and consequences of the act he was doing. The Court endorsed the principle that every man is presumed to be sane and assumed to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. We have carefully examined the law laid down in Khizar Hayat supra as well as in Lal Khan versus The Crown4 and Gholam Yousaf versus The Crown5 wherein the principles relating to a plea under section 84 PPC were dealt with in detail and it was unequivocally held by the Lahore High Court that in relation to a plea of an accused under section 84 PPC, the onus to prove the same is on the accused and the correctness or otherwise of the plea shall be decided after looking at the entire material/evidence available on the record. 43. Thus, within the contemplation of section 84 PPC, whenever the plea is raised regarding the state of mind of accused at the time of commission of offence, the onus-like all other exceptions in Chapter IV of PPC-will be on the defence (accused) to prove such a plea as contemplated in Article 121 of the Qanun-e-Shahadat Order, 1984 (QSO). As per Article 121 of QSO, the onus is on the accused to 2 2006 SCMR 1755 3 PLD 1962 Dacca 467 4 PLD 1952 Lahore 502 5 PLD 1953 Lahore 213 C.R.P. No. 420 etc 21 prove that when the alleged act was committed, he/she was suffering from a mental illness which made him/her incapable of knowing the nature of the act or that what he/she was doing was either wrong or contrary to law. While considering the case law referred to herein above, we hold that in the case of a special plea under section 84 PPC, the Courts should keep the following principles in view:- (i) It is the basic duty of the prosecution to prove its case against the accused beyond reasonable doubt and the prosecution will not be absolved of this duty if the accused is unsuccessful in proving a plea raised on his/her behalf. (ii) Where the accused raises any specific plea, permissible under the law, including a plea under section 84 PPC, the onus to prove such plea is on the accused. However, while proving such plea, the accused may get benefit from any material, oral or documentary, produced/relied upon by the prosecution. 44. Now we address the second question, “How should the trial Court deal with the claim that due to mental illness, an accused is incapable of making his/her defence?”. To answer this question, reference to the relevant provisions of Cr.P.C. is essential which are being reproduced:- 464. Procedure in case of accused being lunatic. (1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness, and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the Provincial Government, directs and thereupon shall examine such Surgeon or other officer as a witness, and shall reduce the examination to writing. (1A) Pending such examination and inquiry, the Magistrate may deal with the accused in accordance with the provisions of section 466. C.R.P. No. 420 etc 22 (2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defence he shall record a finding, to that effect and, shall postpone further proceedings in the case. 465. Procedure in case of person sent for trial before Court of Session or High Court being lunatic. (1) If any person before a Court of Session or High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case. (2) The trial of the fact of unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court. 45. Section 464 Cr.P.C. is relevant for trial of an accused before a Magistrate, whereas section 465 Cr. P.C. deals with the trial of accused before a Court of Sessions or High Court. It is clear from the provision of section 464 Cr.P.C. that if a Magistrate holding an inquiry or a trial, has reason to believe that the accused is suffering from mental illness and is consequently incapable of making his/her defence, he shall inquire into the fact of such mental illness, and shall also cause such person to be examined by a Civil Surgeon of the District or such other medical officer as the Provincial Government directs. Thereafter, he shall examine such Surgeon or other officer as a witness and also shall reduce the examination in writing. Under the provision of section 465, Cr.P.C. if any person before a Court of Session or a High Court appears to the Court to be suffering from mental illness and is consequently incapable of making his/her defence, the Court shall, in the first instance, try the fact of such mental illness and resulting incapacity. If the Court is satisfied of this fact, it shall record a finding to that effect and shall postpone further proceedings in the case. 46. A bare reading of sections 464 and 465, Cr.P.C. led us to consider the ancillary question “Whether the trial Court can form a C.R.P. No. 420 etc 23 prima facie subjective view regarding the incapability of the accused to make his/her defence without seeking the opinion of the medical expert?” 47. To address these legal questions, our attention has been drawn to the precedent case law wherein sections 464 and 465 Cr.P.C. have been interpreted. The first case in line is Ata Muhammad versus The State6. In this case, a Division Bench of the High Court interpreted sections 464 & 465, Cr.P.C. in an appeal against conviction and sentence awarded to Ata Muhammad under section 302 PPC. The main thrust of arguments of learned counsel for convict Ata Muhammad was his mental condition at the time of commission of offence, inquiry and trial of the case. The relevant portion of the judgment regarding this issue is reproduced herein below:- “12…… The legal position which emerges from the two sections is that under section 464 the Magistrate must have reason to believe that the accused person before him is of unsound mind and incapable of understanding the proceedings, and under section 465 it should appear to the Court at the trial that the accused person suffers from unsoundness of mind and thus is incapable of making his defence. In either case the action is to follow the subjective reaction of the Magistrate or the Court to the situation that arises before him. If, during the inquiry, nothing comes to the notice of a Magistrate to induce a belief in him that an accused person is of unsound mind and if at the trial before the Sessions Court it does not appear to the latter that the accused is of unsound mind and consequently incapable of making his defence, there is nothing for them to do except to proceed with the inquiry or the trial in the normal manner. The words “appear to the Court” are used in section 465 while the words “has reason to believe” are used in section 464, but it is clear that in practical effect they mean almost the same thing. The phrase “to appear” in my judgment used in the context of section 465 in its meaning is nearest to the phrase “to be in one’s opinion” as given in the Shorter Oxford Dictionary. 6PLD 1960 (W.P.) Lahore 111 C.R.P. No. 420 etc 24 In Sher Afzal versus The State7, learned High Court while deciding an appeal against conviction and sentence under section 302, 307 PPC addressed a technical objection regarding failure on the part of trial judge to comply with erstwhile provision of section 4658 Cr.P.C. and observed as under:- “4. It will be noticed that if the trial Court wants to satisfy itself about the mental state of the accused person and his capacity to make his defence, then it is bound to enquire into the question with the aid of assessors and not alone, and on this point the provision of section 465 is mandatory. In the present case, the learned trial Judge enquired into the question of whether the accused was or was not capable of understanding the proceedings of the trial, but he did it without the aid of assessors. The learned Additional Advocate-General concedes that non- compliance with the mandatory provision of section 465 vitiates the trial. In Santokh Singh v. Emperor (AIR 1926 Lah. 498) their Lordships held the same view and ordered retrial on similar ground.” In the case of Abdul Hamid versus the State9, while dealing with an appeal against conviction and sentence of death under section 302 PPC, the learned High Court while interpreting erstwhile provision of section 465, Cr.P.C. made following observations:- “16. ……… There are two stages in the section. The first stage is that it must appear to the Court that the accused, placed on trial before it, was of unsound mind and incapable of making his defence. The next stage is of trying the question of unsoundness of mind which has to follow the first stage, namely, when it appears to the Judge that the accused was of unsound mind and incapable of making his defence. Then starts an enquiry into the second question, which has to be tried by the Court as a preliminary proceeding with the aid of the assessors……..The question, therefore, that remains for 7PLD 1960 WP Peshawar 66 8 465 (1) if any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury, or the Court with the aid of assessors, shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied of the fact, the Judge shall record a finding to that effect, and shall postpone further proceedings in the case and the jury, if any, shall be discharged. (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.” 9PLD 1962 (W.P.) Quetta 111 C.R.P. No. 420 etc 25 determination is, whether the Court was bound to hold an enquiry and try the question, whether the appellant was of unsound mind or not. In our view the mere making of an application on behalf of a person, committed for trial, that he was of unsound mind, is not sufficient to necessitate the holding of an enquiry. It must appear also to the Court that the accused may be of unsound mind and when it so appears, an enquiry is necessary and the question whether the accused is of unsound mind or not and incapable of making his defence, has to be decided with the aid of the assessors. The learned Sessions Judge, with a view to satisfy himself, put certain questions to the appellants and then came to the conclusion that he did not seem to be of unsound mind and incapable of making his defence. The examination of the accused was with a view to see if it appeared that he was of unsoundness of mind. The examination was in relation to the first stage and not the second stage. The learned counsel for the appellant argues that the examination of the appellant amounted to an enquiry in the second stage and the question of unsoundness of mind had to be determined with the aid of the assessors. We do not agree with this contention, as we consider that the examination related to the first stage with a view to see if it appeared to the Court that he was of unsound mind and consequently incapable of making his defence. In this view we are supported by the decisions in Emperor v. Durga Charan Singh (AIR 1938 Cal. 6), Emperor v. Bahadur (AIR 1928 Lah. 796) and Nabi Ahmad Khan v. Emperor (AIR 1932 Oudh 190)….. 48. We may add that the afore-mentioned cases dealt with the erstwhile provision of section 465 Cr.P.C. which now stands substituted with the current provision through the Law Reforms Ordinance, 1972. Being relevant to the concept of fair trial, the existing provision of section 465 Cr.P.C. continued to enjoy the same attention as the erstwhile provision. The following cases are instances where sections 464 and 465 (after substitution) Cr.P.C. were once again subject of judicial interpretation. 49. In Munshi Khan versus The State10, it was argued that despite issue of appellant’s incapacity to face trial and making his 101982 P Cr. L J 778 [SC (A J & K)] C.R.P. No. 420 etc 26 defence, the learned trial Court failed to make requisite enquiries as envisaged in section 465, Cr.P.C. The Court observed as under:- “6. The language used in the sections suggests that prima facie when there was some evidence to believe or it so appeared, that an accused person was insane and consequently incapable of making his defence, it was enjoined upon the trial court to stop the trial and first hold independent inquiry into the question of such insanity. The words “has reason to believe” used in section 464 and the words “appears to the Court” used in section 465 are synonymous. In both the sections except that the forums are different, spirit of law is common. The discretion vested in the Magistrate or the Court has to be exercised in judicial fashion. The words “has reason to believe” “appears to the Court” are to be construed to suggest that there must be some tangible evidence of insanity of accused person. The belief of the Court must not rest on imaginative, speculative, hypothetical or arbitrary grounds. A tentative satisfaction of Court is a condition precedent to the inquiry in insanity. The trial Court is not obliged to stop trial and embark upon the inquiry or insanity merely on pointing out of defence counsel that accused was insane or when insanity was feigned. It should have its own satisfaction on the question.” In Abdul Wahid alias Wahdi versus the State11, the procedure laid down in sections 464 and 465, Cr.P.C. attracted the attention of this Court and while interpreting these provisions, it was observed as under:- “…….Chapter XXXIV of the Criminal Procedure Code which contains sections 464 to 475 deals with the trial of a lunatic person. These provisions make it obligatory on the Court holding an inquiry or a trial, if it has reasons to believe that the accused in the case is of unsound mind and in consequence is incapable of making his defence, to first hold an inquiry into the facts of such unsoundness of mind of the accused and for that purpose to get the accused examined by the Civil Surgeon of the district or by such other Medical Officer as the Provincial Government may direct and then record the result of such examination in writing. Pending inquiry into the unsoundness of mind of the accused the trial before the Court is to remain suspended. If as a result of the inquiry into the unsoundness of mind of the accused, it is found 111994 SCMR 1517 C.R.P. No. 420 etc 27 that the accused is of unsound mind and consequently incapable of making his defence the trial or inquiry has to be adjourned until such time the accused regains from his mental illness. While adjourning the trial or inquiry the Court has discretion either to enlarge him on bail or commit him in the safe custody as in the opinion of the Court may be necessary and report the matter to Provincial Government. The trial or inquiry so postponed could be resumed at any time by the Court if it is found that the accused is now in a position to make his defence in the case. However, if upon resumption of inquiry the accused once again is found to be incapable of making his defence, the inquiry and trial is again to be adjourned for such period the accused again recovers from his illness. Apart from obligation of the Court to hold an inquiry into the fact of unsoundness of the mind of the accused in the above-stated circumstances, the combined effect of sections 469 and 470, Cr.P.C. is that the Court shall also hold an inquiry, if it appears from the evidence produced before it, or if it has reasons to believe that the accused was incapable of understanding the nature of offence at the time he committed it for reasons of unsoundness of mind, into the fact of unsoundness of the mind of the accused at the time he committed the offence. If the Court reaches the conclusion after holding such inquiry, that the accused was incapable of understanding the nature of act constituting the offence for reasons of unsoundness of mind, the accused will be acquitted, but the Court shall give a specific finding whether he committed the act or not. The above finding by the Court is necessary as further action against the accused upon his acquittal in the case is to be taken by the Court under sections 471, 474 and 475, Cr.P.C.….” In Fauqual Bashar versus the State12, this Court examined the procedure laid down in sections 464 and 465, Cr.P.C. In this case, leave was granted by this Court in following terms:- “Brother of the accused, who is facing trial on the charge of murder in the trial court, made an application in the trial court raising plea that his brother is mentally deranged and is unable to understand the nature of the proceedings. Application was dismissed and in the High Court revision application was filed which also has been dismissed. Learned counsel for the petitioner has filed documents which show that the accused remained in the mental hospital for treatment. Plea is rejected by the two Courts below on the ground that the accused does not 121997 SCMR 239 C.R.P. No. 420 etc 28 claim to be insane and refuses to go for medical examination on the ground that he is normal. Question arises whether in such circumstances it was incumbent upon the Courts to have sent the accused for medical examination on the point whether he is insane or not or the Courts could decide this question on the basis of other attending circumstances of the case. 2. Leave is granted to consider the above contention. Proceedings in the trial Court are stayed until further orders.” It was held that:- “5. In context of insanity, the state of mind of an accused person, firstly, at the time of occurrence and, secondly, at the time of inquiry or trial is a question of fact. When a Court is confronted with the question during an inquiry or trial, whether or not an accused is of unsound mind and incapable of understanding the proceedings against him, it has to take action under sections 464 and 465, Cr.P.C. according as one or other is attracted to the case…” While placing reliance upon the case of Ata Muhammad supra the Court concluded that: “5.…Nonetheless, we are in no doubt that where it does not appear to the Court at all from its own observations or any other factor that the accused is because of unsoundness of mind incapable to make his defence, it is under no obligation to investigate the fact of unsoundness of mind.” Next case in line is that of Sirajuddin versus Afzal Khan and another13. In this case, the provision of section 465, Cr.P.C. was once again interpreted by this Court. While declining to grant leave to appeal against the judgment passed by the learned Peshawar High Court, whereby conviction and sentence of the accused under section 302 PPC was set aside and the trial was held to be vitiated due to non- compliance with the procedure laid down under section 465, Cr.P.C., the Court made the following observations:- “7. From perusal of the above it is clear that whenever question of insanity is brought to the notice of the Court the Court shall satisfy itself in the manner provided under the 13PLD 1997 SC 847 C.R.P. No. 420 etc 29 law; whether the person is capable of understanding the trial and defending himself. For such satisfaction medical evidence is of utmost importance. 8. In the instant case, therefore, it is to be seen; whether, the fact of insanity of the accused/respondent was ever brought to the notice of the Court at the trial stage and as to whether the trial Court complied with the above provision of law, before entering into the trial……” 50. The term “reason to believe” came under discussion in the case of Chaudhry Shujaat Hussain versus The State14 where while referring to the interpretation of the term in the case of Moulvi Fazlul Qader Choudhury versus Crown15 this Court held:- “…The term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reason to believe….” 51. After a careful examination of the case law discussed above, we hold that the terms “reason to believe” and “appears to the Court” used in sections 464 and 465 Cr.P.C are synonymous and refer to a tentative opinion which has to be formed for the purpose of deciding whether or not to enquire into the issue of capability of the accused to face trial as a question of fact. 52. We further hold that whenever the trial Court is put to notice, either by express claim made on behalf of the accused or through Court’s own observations, regarding the issue of incapability of accused to understand the proceedings of trial and to make his/her defence, the same shall be taken seriously while keeping in mind the importance of procedural fairness and due process guaranteed under the Constitution and the law. 53. The terms “reason to believe” and “appears to the Court” in the context of sections 464 and 465 Cr.P.C are to be interpreted as a prima facie tentative opinion of the Court, which is not a subjective view based on impressions but one which is based on 14 1995 SCMR 1249 15 PLD 1952 FC 19 C.R.P. No. 420 etc 30 an objective assessment of the material and information placed before the Court or already available on record in the police file and case file. While forming a prima facie tentative opinion, the Court may give due consideration to its own observations in relation to the conduct and demeanor of an accused person. Failure of the parties to raise such a claim, during trial, does not debar the Court from forming an opinion on its own regarding the capability of an accused person to face the proceedings of trial. In such a situation, the Court may rely on its own observations regarding the demeanor and conduct of the accused either before or at the time of taking a plea against the charge or at any later stage. The Court may take note whether he/she is being represented by Counsel or not and consider the material (if any) available on record which may persuade it to enquire into the capability of the accused to face trial. The Court may assess the mental health condition of an accused by asking him/her questions such as why he/she is attending the Court; whether he/she is able to understand the proceedings which are being conducted (trial); whether he/she is able to understand the role of people who are a part of the trial; the basic procedure may be explained to him/her to assess whether he/she is able to understand such procedure and whether he/she is able to retain information imparted to him/her; whether the accused is able to understand the act committed by him/her and what the witnesses are deposing about his/her act; and whether he/she is able to understand the evidence being produced by the prosecution against him/her. However, we would like to clarify that a prima facie tentative opinion cannot be formed by the Court only on the basis of such questions posed to the accused. The Court is required to objectively consider all the material available before it, including the material placed/relied upon by the prosecution. 54. Once the Court has formed a prima facie tentative opinion that the accused may be incapable of understanding the proceedings of trial or make his/her defence, it becomes obligatory upon the Court to embark upon conducting an inquiry to decide the C.R.P. No. 420 etc 31 issue of incapacity of the accused to face trial due to mental illness. Medical opinion is sine qua non in such an inquiry. For this purpose, the Court must get the accused examined by a Medical Board, to be notified by the Provincial Government, consisting of qualified medical experts in the field of mental health, to examine the accused person and opine whether accused is capable or otherwise to understand the proceedings of trial and make his/her defence. The report/opinion of the Medical Board must not be a mere diagnosis of a mental illness or absence thereof. It must be a detailed and structured report with specific reference to psychopathology (if any) in the mental functions of consciousness, intellect, thinking, mood, emotions, perceptions, cognition, judgment and insight. The head of the Medical Board shall then be examined as Court witness and such examination shall be reduced in writing. Both the prosecution and defence should be given an opportunity to cross examine him in support of their respective stance. Thereafter, if the accused wishes to adduce any evidence in support of his/her claim, then he/she should be allowed to produce such evidence, including expert opinion with the prosecution given an opportunity to cross examine. Similarly, the prosecution may also be allowed to produce evidence which it deems relevant to this preliminary issue with opportunity given to the defence to cross examine. It is upon the consideration of this evidence procured and adduced before the Court that a finding on this question of fact i.e. the capability of the accused to face trial within the contemplation of sections 464 and 465 Cr.P.C. shall be recorded by the Court. 55. Therefore, in view of the foregoing, the question “How should the trial Court deal with the claim that due to mental illness, an accused is incapable of making his/her defence?” and the supplementary question “Whether the trial Court can form a prima facie subjective view regarding the incapability of the accused to make his/her defence without seeking the opinion of the medical expert?” are both answered in the above said terms. C.R.P. No. 420 etc 32 56. We hold that words “Civil Surgeon” and “medical officer” used in Chapter XXXIV Cr.P.C. and Prison Rules be substituted by the relevant Legislature with “Medical Board”. The Medical Board shall comprise of qualified and experienced Psychologists and Psychiatrists. The concerned governments are directed to take immediate steps to do the needful. 57. Now we address the important legal question: “Whether a mentally ill condemned prisoner should be executed?” 58. Our attention has been drawn to the fact that in Pakistan there is no express provision in any Statute or Rules, which places express restriction on the execution of a convict who is on death row and suffering from mental illness. However, reference has been made to certain provisions in the Prison Rules, which may be termed as implied safeguards against execution of mentally ill condemned prisoners. The relevant Rules to which our attention has been drawn are reproduced herein below:- Rule-107.- The following instructions are laid down for the preparation and submission of mercy petition of condemned prisoners by the Superintendent of the prison:- (i) Each and every mercy petition submitted by a condemned prisoner shall simultaneously be addressed to the President of Pakistan, Islamabad and the Governor of the Province and should be in duplicate. (ii) If the petition is submitted in Urdu or any other language it shall be accompanied by a carefully prepared translation in English in duplicate, which to ensure its accuracy should be examined by the Superintendent. The documents shall be attested by the Superintendent. (iii) The mercy petition roll, in duplicate, shall also accompany the petition. (iv) In case where the condemned prisoner takes plea of young or old age, unsound mind or ill-health, two copies of the Medical report by the Medical Officer, of the prison shall also be submitted, stating therein the correct age, ailment, infirmity, etc., as the case may be. C.R.P. No. 420 etc 33 (v) If in the opinion of the Superintendent and the Medical Officer the prisoner was below 18 years of age on the date of occurrence of the crime or above 60 years on the date of submission of mercy petition, a copy of the birth certificate or particulars of birth viz date of birth of the prisoner and the name of the union council or committee and the district where the entry of birth was recorded may be obtained from the relatives of the prisoner and forwarded to Government. (vi) All correspondence pertaining to condemned prisoner shall always be made in pink coloured envelopes inscribed. "Death case Immediate" standardized for use in all prisons. Rule-362. (i) The Superintendent and Deputy Superintendent will visit the condemned prisoner in his cell a few minutes before the hour fixed for execution. The Superintendent shall first identify the prisoner as the person named in the warrant and read out a translation of the warrant and sequence of rejection of appeal and mercy petitions in national or regional language to the prisoner in the presence of the Coordination Officer. Any other document requiring signature by the prisoner, such as his will, shall thereafter be signed by him and attested by the Coordination Officer. The Superintendent will then proceed to the scaffold; the prisoner remaining in his cell. In the presence of the Deputy Superintendent the hands of the prisoner will next be pinioned behind his back and his fetters (if any) removed.” 59. Rule 107 (iv) makes it obligatory upon the Superintendent of the prison to submit two copies of the medical report along with a mercy petition to the President of Pakistan and the Governor of the Province, in case where the condemned prisoner takes a plea of mental illness. Rule 362 read with the language used in the warrant, issued under section 381 Cr.P.C, shows that the purpose behind this rule is to convey to the condemned prisoner the reason behind his execution. Similarly, the purpose behind informing him that his appeal and mercy petition stand rejected is to make him aware that he has exhausted all the legal remedies against his/her conviction. With this understanding, Rule 362 provides the condemned prisoner an opportunity to write a will before being executed. Therefore, this C.R.P. No. 420 etc 34 Rule can be termed as an implied safeguard against execution of death sentence where a condemned prisoner, due to mental illness, has lost his ability to reason and understand the rationale behind his/her punishment. 60. The issue of executing a mentally ill condemned prisoner has also been considered in other jurisdictions. In particular, the judicial opinions of the Supreme Courts of United States and India are relevant. 61. The question of mental illness and execution of death sentence was dealt with by the Supreme Court of United States in the case of Ford v. Wainwright16. It was held by a plurality opinion that the Eighth Amendment17 prohibits a State from carrying out sentence of death upon a prisoner, who is insane. The reasons provided by the plurality judgment were (i) killing one who has no capacity to understand his/her crime or punishment offends humanity; (ii) lack of retributive value in executing a person who has no comprehension or awareness of penalty’s existence and purpose. 62. The Supreme Court of United States clarified the scope of the category of accused persons exempt from execution in the case of Pannetti v. Quarterman18 by setting a “standard for competency”. This standard focuses on whether a condemned prisoner can reach a rational understanding of the reason for his/her execution. A clear pronouncement of the principles laid down by the Supreme Court of United States is found in the following passage of its judgment in the case of Madison v. Alabama19:- “…..This Court decided in Ford v. Wainwright, 477 U. S. 399 (1986), that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner 16477 U. S. 399 (1986) 17Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 18551 U.S 930. (2007) 19586 U.S. ____(2019) C.R.P. No. 420 etc 35 who has “lost his sanity” after sentencing. Id., at 406. While on death row, Alvin Ford was beset by “pervasive delusion[s]” associated with “[p]aranoid [s]chizophrenia.” Id., at 402-403. Surveying both the common law and state statutes, the Court found a uniform practice against taking the life of such a prisoner. See id., at 406-409. Among the reasons for that time-honored bar, the Court explained, was a moral “intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” Id., at 407, 409; see id., at 409 (citing the “natural abhorrence civilized societies feel” at performing such an act). Another rationale rested on the lack of “retributive value” in executing a person who has no comprehension of the meaning of the community’s judgment. Ibid.; see id., at 421 (Powell, J., concurring in part and concurring in judgment) (stating that the death penalty’s “retributive force []depends on the defendant’s awareness of the penalty’s existence and purpose”). The resulting rule, now stated as a matter of constitutional law, held “a category of defendants defined by their mental state” incompetent to be executed. Id., at 419. 63. Now, we refer to the decisions rendered by the Supreme Court of India with regard to the issue of prohibition of executing mentally ill death row convicts. In the case of Shatrughan Chauhan and another v. Union of India and others20, a number of convicts prayed for the issuance of a writ inter alia declaring that execution of a mentally ill/insane death row convict is unconstitutional. It was held:- 86 The above materials, particularly, the directions of the United Nations International Conventions, of which India is a party, clearly show that insanity/mental illness/schizophrenia is a crucial supervening circumstance, which should be considered by this Court in deciding whether in the facts and circumstances of the case death sentence could be commuted to life imprisonment. To put it clear, "insanity" is a relevant supervening factor for consideration by this Court. 87. In addition, after it is established that the death convict is insane and it is duly certified by the competent doctor, undoubtedly, Article 21 protects him 20(2014)3 SCC1 C.R.P. No. 420 etc 36 and such person cannot be executed without further clarification from the competent authority about his mental problems. It is also highlighted by relying on commentaries from various countries that civilized countries have not executed death penalty on an insane person. The learned Counsel also relied on the United Nations Resolution against execution of death sentence, debate of the General Assembly, the decisions of International Court of Justice, Treaties, European Conventions, 8th amendment in the United States which prohibits execution of death sentence on an insane person. In view of the well-established laws both in the national as well as international sphere, we are inclined to consider insanity as one of the supervening circumstances that warrants for commutation of death sentence to life imprisonment. In 'X' v. State of Maharashtra21, complex questions concerning the relationship between mental illness and crime were raised. While addressing the issues of mental illness and execution, the Court ruled: - 60. Moreover, Article 20 of the Constitution guarantees individuals the right not to be subjected to excessive criminal penalty. The right flows from the basic tenet of proportionality. By protecting even those convicted of heinous crimes, this right reaffirm the duty to respect the dignity of all persons. Therefore, our Constitution embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency against which penal measures have to be evaluated. In recognizing these civilized standards, we may refer to the aspirations of India in being a signatory to the Convention on Rights of Persons with Disabilities, which endorse prohibition of cruel, inhuman or degrading punishments with respect to disabled persons. Additionally, when the death penalty existed in England, there was a common law right barring execution of lunatic prisoners. Additionally, there is a strong international consensus against the execution of individuals with mental illness. ………………….. 68. In line with the above discussion, we note that there appear to be no set disorders/disabilities for evaluating the severe mental illness, however a test of severity can be a guiding factor for recognizing 21(2019) 7 SCC 1 (also available at 2019 SCC OnLine SC 543) C.R.P. No. 420 etc 37 those mental illnesses which qualify for an exemption. Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia. 64. Reference is also made to international human rights law which we have found relevant. Rule 109 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) lays down that:- 1. Persons who are found to be not criminally responsible, or who are later diagnosed with severe mental disabilities and/or health conditions, for whom staying in prison would mean an exacerbation of their condition, shall not be detained in prisons, and arrangements shall be made to transfer them to mental health facilities as soon as possible. 2. If necessary, other prisoners with mental disabilities and/or health conditions can be observed and treated in specialized facilities under the supervision of qualified health-care professionals. 3. The health-care service shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment. 65. Our attention has also been drawn to the Resolution 2000/65 adopted by the United Nations Commission on Human Rights in the year 2000, whereby all the States who still sustain death penalty were urged “not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person". Reference has also been made to the International Covenant on Civil and Political Rights (ICCPR) and the Convention on Rights of Persons with Disabilities (CRPD), both ratified by the Government of Pakistan, in support of the contention that cruel, inhuman or degrading punishment shall not be awarded. C.R.P. No. 420 etc 38 66. After considering the material discussed herein above, we hold that if a condemned prisoner, due to mental illness, is found to be unable to comprehend the rationale and reason behind his/her punishment, then carrying out the death sentence will not meet the ends of justice. However, it is clarified that not every mental illness shall automatically qualify for an exemption from carrying out the death sentence. This exemption will be applicable only in that case where a Medical Board consisting of mental health professionals, certifies after a thorough examination and evaluation that the condemned prisoner no longer has the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to him/her. To determine whether a condemned prisoner suffers from such a mental illness, the Federal Government (for Islamabad Capital Territory) and each Provincial Government shall constitute and notify, a Medical Board comprising of qualified Psychiatrists and Psychologists from public sector hospitals. 67. After discussing legal aspects relevant for disposal of the issues in hand, we would now deal with the captioned petitions separately: IMDAD ALI’S CASE (Crl.R P. No. 170 of 2016 in Crl. Appeal No. 619 of 2009) 68. The delay in filing Crl. Review Petition No. 170 of 2016 has already been condoned vide order of this Court dated 23.10.2018. 69. Further to the narration of facts in paragraphs 4 to 8 above, it is evident from a perusal of the record that to ascertain the mental health condition of convict Imdad Ali, the learned trial Court merely relied upon its own observation and after asking a few questions formed a subjective view on the matter without having recourse to the material annexed with the application filed on behalf of Imdad Ali or any argument advanced by the learned counsel in support of his contentions and grounds raised in the application filed C.R.P. No. 420 etc 39 under section 465 Cr.P.C. We do not appreciate such a slipshod approach of the trial Court regarding a crucial legal issue and the same cannot be condoned. 70. We have also observed that the issue of mental illness of Imdad Ali was not even appreciated by the learned High Court in its true perspective. Perhaps this oversight was on account of lack of assistance on behalf of counsel for convict Imdad Ali. Our observation finds support from paragraph 2 of the judgment of learned High Court, which is reproduced as under:- “2. Before proceeding further it may be noted that the learned counsel for the appellant had not turned up in this case on 4.11.2008 when the matter was adjourned to 5.11.2008 and on 5.11.2008 on account of the written request for adjournment the counsel being sick, the matter was adjourned for today with appointment of counsel for the appellant at State expense as an abundant caution, in case the learned counsel for the appellant still did not appear and today the position is that the learned counsel for the appellant has not bothered to enter appearance or intimate this Court any further, therefore, we have heard Sh. Imtiaz Ahmad, advocate, the learned counsel appointed for him at State expense and proceeded to dispose of the appeal and the Murder Reference.” 71. As earlier pointed out that during trial, a counsel at State expense was appointed to represent the condemned prisoner Imdad Ali and on unwillingness of the said counsel to conduct trial, another counsel was appointed also at State expense. Furthermore, when the original counsel for the convict Imdad Ali failed to appear before the learned High Court at the time of hearing of his criminal appeal along with Murder Reference, the learned High Court appointed some other counsel on his behalf to represent him in a rather hasty manner and he was asked to argue the case on the next day. This hasty approach cannot be appreciated because it was a matter of life and death for the convict Imdad Ali. After the learned High Court had appointed a C.R.P. No. 420 etc 40 counsel at State expense, he should have been given sufficient time to prepare his brief and to take instructions from his client (the convict). The issue of mental illness of Imdad Ali has been dealt with by the learned High Court in the following manner:- “……Since there is overwhelming evidence on record justifying the conviction………..in the absence of any solid material on the file regarding mental illness of the appellant, mere statement of wife of the appellant as DW1 would not create any room for the appellant for lesser sentence….” 72. As already observed, after dismissal of his criminal appeal by the learned High Court, the condemned prisoner Imdad Ali filed a petition through jail, wherein leave to appeal was granted by this Court on 13.11.2009 culminating into Crl. Appeal No. 619 of 2009, which was dismissed vide judgment dated 19.10.2015. It would thus be seen that neither before the trial Court, learned High Court, nor before this Court was the issue of mental illness of Imdad Ali appreciated in terms of section 465 of Cr.P.C. 73. Another important aspect of the matter is that while hearing the subject petitions, a Medical Board was constituted to report about the mental health condition of the condemned prisoner Imdad Ali. The report of the Medical Board dated 19.09.2019 registered as CMA No. 8850 of 2019 has been placed on record, which is reproduced as under:- “1. Imdad Ali S/O Muhammad Ismail was mentally re-examined by the Medical Board on 14th September 2016 at 1200 hrs in Adyala Jail Rawalpindi. It is the opinion of Medical Board, that accused Imdad Ali is suffering from chronic Schizophrenia (insanity) and the Board stands by its opinion previously given. 2. After re-examination and reviewing the documents available and considering the present mental state of accused, it is likely that illness had already started at the time of crime, and he might have committed murder under the delusional belief of persecutions (insanity). Even, medical record available dated 10 November 2000 (prior to the act of crime) reveals that Imdad Ali was examined by a Medical Officer of C.R.P. No. 420 etc 41 Services Hospital Lahore. In his opinion Imdad Ali, seemed to be suffering from Schizophrenia and he referred him to Mental Hospital for further management and evaluation.” 74. In the circumstances of the case, and in view of what has been discussed above, coupled with the fact that convict Imdad Ali is behind bars for the last about 20 years and has served out substantive part of alternative sentence provided under section 302(b) PPC i.e. imprisonment for life, we do not feel it appropriate to remand the case for denovo trial. It is relevant to mention here that in this case, no review was filed by the convict Imdad Ali after dismissal of his appeal by this Court against his conviction and sentence. However, a review petition has been filed by the State, through Prosecutor General Punjab, with the prayer to review the judgment passed by this Court in Crl. Appeal No. 619 of 2009. The review is being sought on the ground that in the circumstances of the case and keeping in view the mental health condition of convict Imdad Ali, his sentence of death may be converted into imprisonment for life. Without touching the mental health condition of convict Imdad Ali, we have observed that there are sufficient reasons/circumstances available on record, which warrant conversion of his death sentence to imprisonment for life. Firstly, the motive set up by the prosecution was disbelieved by the trial Court in Para 25 of its judgment after assigning valid and convincing reasons. This fact was not considered by this Court while dismissing the appeal of Imdad Ali perhaps due to lack of proper assistance. This oversight qualifies as a ground for review and consequently converting the sentence of death to imprisonment for life. Secondly, as earlier pointed out, convict Imdad Ali has already served out about 20 years of his substantive sentence. Therefore, on the principle of legitimate expectancy of life recently considered by this Court in the case of Sikandar Hayat and another versus the State and others22, he is entitled to conversion of death sentence to that of imprisonment for life. Resultantly, Criminal Review Petition 22PLD 2020 SC 559 C.R.P. No. 420 etc 42 No. 170 of 2016 is allowed. The judgment passed by this Court in Crl. Appeal No. 619 of 2009 is reviewed and recalled. Consequently, Crl. Appeal No. 619 of 2009 is partly allowed. The conviction of appellant Imdad Ali under section 302(b) PPC is maintained, however, his sentence of death is converted into imprisonment for life, with benefit of section 382-B, Cr.P.C. The amount of compensation and sentence in its default shall remain intact. (C.R.P. Nos. 420 & 424 of 2016) 75. As already mentioned in Para 8 above, Mst. Safia Bano (wife of convict Imdad Ali) has filed C.R.P. No. 420 of 2016, whereas C.R.P. No. 424 of 2016 has been filed by the Inspector General of Prisons, Punjab seeking review of this Court’s judgment in C.P. No. 2990 of 2016 dated 27.09.2016, which is reported as PLD 2017 SC 18, passed while placing reliance upon the view of the Supreme Court of India in the case of Amrit Bhushan Gupta v. Union of Indian and others23 and Ram Narain Gupta v. Smt. Rameshwari Gupta24. It appears that this Court was not properly assisted in the matter which led to a misplaced reliance upon the case of Ram Narain supra which in fact dealt with the question of mental illness with regard to the dissolution of marriage considering the provisions laid down in the Hindu Marriage Act, 1955. The case was not relevant to the distinguishable circumstances of the case of Imdad Ali. In this backdrop, Paragraphs 9 and 10 of the judgment rendered in the case of Ram Narain are being reproduced for ease of reference:- “9. The point, however, to note is that S. 13(1)(iii) does not make the mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of a marriage. Section 13 (1)(iii) provides: “S.13. Divorce: (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either husband or the wife, be dissolved by a decree of divorce on the ground that the other party- and (ii) omitted as unnecessary. 23AIR 1977 SC 608 24AIR 1988 SC 2260 C.R.P. No. 420 etc 43 (iii) has been incurably of unsound mind, or has been suffering from continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation: In this clause, the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.” Omitted as unnecessary. 10. The context in which the idea of unsoundness of ‘mind’ and ‘mental disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of ‘mental-disorder’. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognized as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.” 76. It also appears that this Court was not apprised of the fact that the opinion of the Supreme Court of India in the case of Amrit Bhushan was revisited by a three Judge Bench in the case of Shatrughan Chauhan and Another v. Union of India and Others25 which was followed by a larger (four Judge) Bench in the case of Navneet Kaur v. State (NCT of Delhi) and another26. These judgments were further relied upon in the case of ‘X’ v. The State of Maharashtra27 where the Court was called upon to decide how culpability should be assessed for sentencing those with mental illness and whether treatment is better suited than punishment. The following observation of the Supreme Court of India in the case of Accused ‘X’ merits to be once again cited being relevant to the questions posed before this Court:- “68. In line with the above discussion, we note that there appear to be no set disorders/disabilities for 25 (2014) 3 SCC 1 26 (2014) 7 SCC 264 27 (2019) 7 SCC 1 (also available at 2019 SCC OnLine SC 543) C.R.P. No. 420 etc 44 evaluating the severe mental illness, however a test of severity can be a guiding factor for recognizing those mental illness which qualify for an exemption. Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia.” 77. Since we have already allowed the review petition filed by the State in the case of Imdad Ali by converting his sentence of death into imprisonment for life, so these review petitions have become infructuous and are disposed of accordingly. However, we hold that the observations of this Court in the judgment reported as PLD 2017 SC 18 are not relevant anymore and are of no legal effect. KANEEZAN BIBI’S CASE (H.R.C. No. 16514-P of 2018) 78. As discussed in Para 9 above, on 17.04.2018 the then Hon’ble Chief Justice after perusal of a report submitted by the Superintendent Central Jail Lahore directed the office to fix the instant case along with C.R.P. No. 420 of 2016. The case came up for hearing on 21.04.2018 and it was observed as under:- “2. Let the same Medical Board, as has been constituted by this Court in the case of Sofia Bano, be constituted for the purpose of examining Kaneezan Bibi at Lahore. The Board shall examine her and submit a report to this Court. In the meanwhile, the order of her execution is suspended. She shall immediately be shifted to the Punjab Institute of Mental Health (PIMH) under the supervision of Dr. Tahir Pervaiz, Consultant Psychiatrist PIMH. She shall be provided the best available medical facilities.” 79. The report of Medical Board has since been received vide letter dated 19.09.2019, which has been placed on record as CMA No. 8851 of 2019. The relevant portion of the report of Medical Board is reproduced herein below:- C.R.P. No. 420 etc 45 “1. Medical Board examined accused Kaneezan Bibi on 14 September 2019 at 1000 hrs in Adyala Jail Rawalpindi. Mental state examination revealed, a middle aged lady adequately kempt and fully aware of her surrounding and environment. She was electively mute (voluntary refusal to speak). There was no evidence of any psychotic illness (insanity) at the time of examination, she fully communicated through gestures of hands and head…….. 3. After going through the available documents it is obvious that Kaneezan Bibi was never referred to mental health services till 2000 when her co- accused Khan Muhammad was executed and her own execution was stayed. Medical Board is of the opinion that most likely Kaneezan Bibi developed Depression with psychotic symptoms due to stress of her impending execution for which she has been under treatment of mental health services ever since. 4. Medical Board is of the opinion that it is likely the Kaneezan Bibi was not suffering from Schizophrenia (insanity) at the time of committing crime and for 11 years following that.” 80. When this case came up for hearing on 21.09.2020, after hearing the learned counsel for the convict and perusal of report of Medical Board, referred to above, it was observed that Mst. Kaneezan Bibi needed re-examination. Therefore, the Medical Board constituted for medical examination of condemned prisoner Ghulam Abbas was directed to also examine Mst. Kaneezan Bibi and submit its report. The report of Medical Board has been received which is placed on record through CMA No. 7386 of 2020. The findings of the Medical Board are as under:- “It is assessed by panel that Ms. Kaniza is having Mutism (Not Speaking), unresponsive to commands, lack of eye contact, talking to herself, lack of warmth, socially inappropriate smile (smiling not in response to environment). On further assessment, she has Alogia (No Speech), Avolition (Lack of motivation), Anhedonia (complete lack of interest), Apathy (No Emotional Response, lack of Spontaneity) (lack of prompt action verbal, emotional and physical), slowness, negativism (Negative or opposite physical reaction), self-muttering (talking to herself in very low voice) and withdrawn C.R.P. No. 420 etc 46 emotionally (Isolated from environment)………She has been diagnosed as having severe lifelong Mental illness “schizophrenia”. She will need lifelong treatment Psychiatric tools could not be applied because of her mental status.” 81. It has been observed by us that Mst. Kaneezan Bibi is behind bars for the last about 32 years meaning thereby that she has served out more than the alternate sentence provided under section 302(b) PPC i.e. imprisonment for life. On this score, it is a fit case where principle of legitimate expectancy of life can be invoked. The office has reported that after dismissal of her criminal appeal by this Court on 02.03.1999, she did not file any review petition. In the circumstances of the case, since no review petition has been filed by Mst. Kaneezan Bibi, we while exercising our suo motu jurisdiction to review coupled with the power available to this Court under Article 187 of the Constitution to do complete justice, review the judgment dated 02.03.1999 only to the extent of Crl. Appeal No. 415 of 1994 filed by Mst. Kaneezan Bibi. Consequently Crl. Appeal No. 415 of 1994 is partly allowed. The conviction of Mst. Kaneezan Bibi under section 302(b)/34 PPC on six counts is maintained, however, her sentence of death on six counts is converted into imprisonment for life on six counts. It has been observed by us that Mst. Kaneezan Bibi was also directed by the learned trial Court to pay fine of Rs.20,000/- and in default of payment of fine, she has to undergo 05 years RI, on each count, which sentence in default is otherwise against the relevant provisions of law. Therefore, she is directed to pay compensation of Rs.20,000/- under section 544-A Cr.P.C. to legal heirs of each deceased, in default whereof she will have to undergo SI for six months on each count. Benefit of section 382-B, Cr.P.C. is extended to her. All the sentences of imprisonment of Mst. Kaneezan Bibi shall run concurrently. 82. However, in view of the medical opinion placed on record regarding the mental health condition of convicts Imdad Ali and Mst. Kaneezan Bibi, we direct the Government of the Punjab to immediately shift them from prison to Punjab Institute of Mental C.R.P. No. 420 etc 47 Health, Lahore for treatment and rehabilitation in accordance with provisions of Prison Rules. On the completion of their sentence, they shall be examined afresh by the Medical Board required to be notified by the Government of Punjab in pursuance of the directions issued in this judgment. They shall be released from the hospital as and when the said Medical Board opines that they are fit for themselves and for the society. GHULAM ABBAS’S CASE (Const. Petition No. 09 of 2019) 83. As discussed in Paras 10 and 11 above, the conviction and sentence of death awarded to Ghulam Abbas were maintained up to this Court and even the review petition filed by him stands dismissed. 84. A Medical Board constituted by this Court vide order dated 21.09.2020 was directed to examine Ghulam Abbas and submit a report whether he is suffering from any mental illness. The said report has since been received and placed on record as C.M.A. No. 7386 of 2020. The Medical Board has concluded in the said report as under:- “Conclusion: On the basis of formal and informal assessment of Ghulam Abbas, it is concluded that though he was aware of his surroundings, i.e.; Jail or hospital but he was unable to understand and comprehend instructions for the tests administered on him. His performance shows the presence of neurological illness and impaired cognitive functioning which is further validated by his estimated IQ (<59) according to his performance on Benton Visual Retention Test (BVRT) and Standard Progressive Matrices (SPM). Thus, on the basis of his formal and informal assessments, it is concluded that Ghulam Abbas was having cognitive / intellectual impairment. At the time of testing and while admitted in the hospital, he was having psychotic symptoms as well, which affected his ability to comprehend tests instructions as well as performance on different tests administered on him. Therefore, it is suggested to keep him under observation and appropriate treatment be C.R.P. No. 420 etc 48 provided (for example: his behavior in the ward, interaction with other patients and doctors for a period of time.) till he is recovered from psychosis. Reassessment by a Board of Professionals is recommended after six months.” 85. It has been observed by us that Ghulam Abbas has exhausted all the remedies available to him under the law. However, the plea taken by him that he is suffering from mental illness is endorsed by the report of the Medical Board constituted by this Court, alluded to in the preceding paragraph. Though, it has come on record that a mercy petition filed by condemned prisoner Ghulam Abbas was rejected by the President of Pakistan yet there is nothing on record to show whether the ground of mental illness was taken into consideration while dismissing the mercy petition. Keeping in view the judgment of this Court reported as Moinuddin and others versus the State and others28, whereby a fresh mercy petition was directed to be submitted on behalf of condemned prisoners, and on consideration of the peculiar circumstances of the instant case, we direct the concerned Jail Superintendent to ensure that a fresh mercy petition is filed on behalf of condemned prisoner Ghulam Abbas. The mercy petition is to be prepared in accordance with relevant Prison Rules and submitted to the President of Pakistan mentioning therein the plea of mental illness taken by condemned prisoner Ghulam Abbas along with copies of his entire medical history/record, copies of report of Medical Board constituted by this Court on 21.09.2020 and a copy of this judgment. We expect that the mercy petition filed on behalf of condemned prisoner Ghulam Abbas shall be disposed of after taking into consideration all the circumstances including the observations made by this Court in the instant judgment. The instant Constitution Petition is disposed of in terms noted above. 86. Till the disposal of Mercy Petition, it is directed that condemned prisoner Ghulam Abbas shall be immediately shifted to 28PLD 2019 SC 749 C.R.P. No. 420 etc 49 Punjab Institute of Mental Health, Lahore in accordance with provisions of Prison Rules for his treatment and rehabilitation. 87. In view of the foregoing, we deem it appropriate to direct that:- i. The Federal Government and all the Provincial Governments shall immediately make necessary amendments in the relevant laws and the rules in the light of observations given in this judgment, particularly those in Paras 37, 56 and 66 above. ii. The Prison Rules shall be appropriately amended so as to bring the jail manuals of all the Provinces in harmony. iii. The Federal Government (for Islamabad Capital Territory) and all the Provincial Governments shall immediately establish/create High Security Forensic Mental Health Facilities in the teaching and training institutions of mental health for assessment, treatment and rehabilitation of under trial prisoners and convicts who have developed mental ailments during their incarceration. iv. The Federal Government (for Islamabad Capital Territory) and each Provincial Government, shall immediately constitute and notify a Medical Board comprising of three qualified and experienced Psychiatrists and two Psychologists from public sector hospitals for examination and evaluation of the condemned prisoners who are on death row and are suffering from mental illness to ensure that such mentally ill condemned prisoners who no longer have the higher mental functions to appreciate the rationale and reasons behind the sentence of death awarded to them are not executed. C.R.P. No. 420 etc 50 v. The Federal Government (for Islamabad Capital Territory) and all the Provincial Governments shall immediately constitute and notify a Medical Board consisting of two qualified and experienced Psychiatrists and one Psychologist from public sector hospitals at Islamabad (in case of Federal Government) and at each Divisional Headquarter of the Provinces for examination, assessment and rehabilitation of the prisoners i.e. under-trial and convicts, if referred by the jail authorities. The said Medical Board shall also be authorized to examine those accused persons who are referred by the trial Court(s) for examination under the provisions of sections 464 and 465 Cr.P.C. vi. The Federal Government (for Islamabad Capital Territory) and all the Provincial Governments shall immediately launch training programs and short certificate courses on forensic mental health assessment for psychiatrists, clinical psychologists, social workers, police and prison personnel. vii. The Federal Judicial Academy, Islamabad and all the Provincial Judicial Academies shall also arrange courses for trial Court judges, prosecutors, lawyers and court staff on mental illness including forensic mental health assessment. 88. Office is directed to send copies of this judgment to the Federal Secretary, Ministry of Law & Justice, Federal Secretary, Ministry of Interior, Government of Pakistan, the Chief Secretaries of all the four provinces as well as the Federal and Provincial Judicial Academies for compliance. C.R.P. No. 420 etc 51 89. Before parting with this judgment, we appreciate the assistance rendered by learned counsel for the condemned prisoners (in all the petitions), learned counsel for complainant (in C.R.P. Nos. 420, 424 & 170 of 2016), learned Additional Attorney General for Pakistan, learned Advocate General Islamabad and learned Law Officers of different provinces. We also commend and appreciate the assistance and efforts put in, and that too with alacrity, by the learned amici curiae Barrister Haider Rasul Mirza, ASC and renowned psychiatrist Brigadier (Retd.) Professor Mowadat Hussain Rana. It was a treat to hear them. The way Barrister Haider Rasul Mirza, ASC dug out the relevant law both from domestic and foreign jurisdictions and made submissions in his persuasive style was invaluable indeed. The way Professor Mowadat Hussain Rana articulated his viewpoint and highlighted different mental ailments in his suave and lucid style was equally commendable.

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE QAZI FAEZ ISA CIVIL REVIEW PETITIONS NO.43-K TO 45-K OF 2012 IN CIVIL APPEALS NO.189-K TO 191-K OF 2011, CIVIL REVIEW PETITIONS NO.2-K & 3-K OF 2013 IN CIVIL APPEAL NO.189-K OF 2011, CIVIL REIVEW PETITIONS NO.4-K & 5-K OF 2013 IN CIVIL APPEALS NO.190-K & 191- K OF 2011, CIVIL REVIEW PETITIONS NO.6-K & 7-K OF 2014 IN CIVIL APPEAL NO.189-K OF 2011, C.M.A. NO.2238 OF 2014 IN CIVIL REIVEW PETITION NIL OF 2014 IN CIVIL APPEAL NO.189-K OF 2011, C.MA. NO.2242 OF 2014 IN CIVIL REVIEW PETITION NIL OF 2014 IN CIVIL APPEAL NO.190-K OF 2011, C.M.A. NO.2246 OF 2014 IN CIVIL REVIEW PETITION NIL OF 2014 IN CIVIL APPEAL NO.191-K OF 2011_______________________________________ (On review against the judgment dated 06.11.2012, passed by this Court in C.As. No.189-K to 191-K/2011 CRP.43-K/2012 in CA.189-K/2011 Chairman Federal Board of Revenue and others Vs. Iqbal Hussain Shaikh CRP.44-K/2012 in CA.190-K/2011 Chairman Federal Board of Revenue and others Vs. Dr. Abdul Lateef CRP.45-K/2012 in CA.191-K/2011 Chairman Federal Board of Revenue and others Vs. Abdul Hameed Anjum CRP.2-K/2013 in CA.189-K/2011 Aisha Farooq and others Vs. Iqbal Hussain Shaikh and others CRP.3-K/2013 in CA.189-K/2011 Abbas Ahmed and others Vs. Chairman Federal Board of Revenue and others CRP.4-K/2013 in CA.190-K/2011 Aisha Farooq and others Vs. Dr. Abdul Lateef and others CRP No.43-K-2012 etc - 2 - CRP.5-K/2013 in CA.191-K/2011 Aisha Farooq and others Vs. Abdul Hameed Anjum and others CRP.6-K/2014 in CA.189-K/2011 Shazia Abid and others Vs. Chairman, Federal Board of Revenue and others CRP.7-K/2014 in CA.189-K/2011 Abdul Wahid Uqaily and others Vs. Chairman, Federal Board of Revenue and others CMA.2238/2014 in CRP Nil/2014 in CA.189-K/2011 Irfan Raza, Secretary, FBR and others Vs. Chairman, Federal Board of Revenue and others CMA.2242/2014 in CRP Nil/2014 in CA.190-K/2011 Irfan Raza, Secretary, FBR and others Vs. Chairman, Federal Board of Revenue and others CMA.2246/2014 in CRP.Nil/2014 in CA.191-K/2011 Irfan Raza, Secretary, FBR and others Vs. Chairman, Federal Board of Revenue and others For the Petitioner (s) (in CRPs.43-K to 45-K/2012) : Mr. Akhtar Ali Mahmud, ASC For the Respondent (s) (in CRPs.43-K to 45-K/2012) : Mr. Rasheed A. Rizvi, Sr. ASC For the Petitioner (s) (in CRP.2-K/2013) : Mr. Tariq Aziz, ASC/AOR For Respondent No.1 (in CRP.2-K/2013) : Abdul Qadir Khan, ASC For Respondent No.2 (in CRP.2-K/2013) : Hafiz S.A. Rehman, Sr. ASC Mr. M.A. Sheikh, AOR Respondent No.3 (in CRP.2-K/2013) : N.R. For the Petitioner (s) (in CRP.3-K/2013) : Hafiz S.A. Rehman, Sr. ASC a/w Mr. Mehmood A. Sheikh, AOR For Respondent No.1 (in CRP.3-K/2013) : Ms. Misbah Gulnar Sharif, ASC (FBR) CRP No.43-K-2012 etc - 3 - Respondents No.2-3 (in CRP.3-K/2013) : N.R. For the Petitioner (s) (in CRP.4-K/2013) : Mr. Tariq Aziz, ASC/AOR For Respondent No.1 (in CRP.4-K/2013) : Mr. Abdul Qadir Khan, ASC For Respondent No.2 (in CRP.4-K/2013) : Ms. Misbah Gulnar Sharif, ASC Respondent No.3 (in CRP.4-K/2013) : N.R. For the Petitioner (s) (in CRP.5-K/2013) : Mr. Tariq Aziz, ASC/AOR For Respondent No.1 (in CRP.5-K/2013) : Mr. Abdul Qadir Khan, ASC For Respondent No.2 (in CRP.5-K/2013) : Hafiz S.A. Rehman, Sr. ASC a/w Mr. M.A. Sheikh, AOR Respondent No.3 (in CRP.5-K/2013) : N.R. For the Petitioner (s) (in CRP.6-K/2014) : Mr. Tariq Aziz, ASC/AOR For Respondent No.1 (in CRP.6-K/2014) : Hafiz S.A. Rehman, Sr. ASC Respondents No.2 & 3 (in CRP.6-K/2014) : N.R. For the Petitioner (s) (in CRP.7-K/2014) : Mr. Tariq Aziz, ASC/AOR For Respondent No.1 (in CRP.7-K/2014) : Hafiz S.A. Rehman, Sr. ASC Respondents No.2 & 3 (in CRP.7-K/2014) : N.R. For the Applicant (s) (in CMAs.2238, 2242 and 2246/2014 in CRPs Nil/2014) : Mr. Tariq Mehmood, Sr. ASC For Respondent No.1 (in CMAs.2238, 2242 and 2246/2014 in CRPs Nil/2014) : Hafiz. S.A. Rehman, Sr. ASC CRP No.43-K-2012 etc - 4 - Date of Hearing : 11.11.2015 JUDGMENT SH. AZMAT SAEED, J.- Through this judgment, it is proposed to decide Civil Review Petitions Nos.43-K to 45-K of 2012, 2-K to 5-K of 2013, 6-K & 7-K of 2014, C.M.A. No.2238 of 2014 in CRP No.NIL of 2014 in Civil Appeal No.189-K of 2011, C.MA. No.2242 of 2014 in CRP No.NIL of 2014 in Civil Appeal No.190-K of 2011, C.M.A. No.2246 of 2014 in CRP No.NIL of 2014 in Civil Appeal No.191-K of 2011, which are directed against the Judgment of this Court dated 06.11.2012, whereby Civil Appeals No.189-K to 191-K were allowed. 2. The brief facts necessary for adjudication of the lis at hand are that in the year 1993, the Federal Board of Revenue (the then Central Board of Revenue) in an effort to expand its Income Tax Administration decided to increase the strength of its Income Tax Assessing Officers through posting of suitable Officers in BPS-17 on deputation from other Departments. Consequently, at the initiative of the Federal Board of Revenue (FBR), the Establishment Division issued a letter dated 18.12.1993 to the Secretaries CRP No.43-K-2012 etc - 5 - of the various Departments seeking Officers from other Occupational Groups to be initially appointed on deputation under Section 10 of the Civil Servants Act, 1973 with the FBR. It was also notified that such Officers were likely to be considered for induction in the Income Tax Group. Apparently, in this behalf, options were invited from various Officers. It appears that the private Respondent Iqbal Hussain Sheikh, who was originally inducted in service in 1986 through 14th CTP (Common Training Program) in the Postal Group, private Respondent Dr. Abdul Lateef inducted in 1990 through 18th CTP in the Information Group and the private Respondent Abdul Hameed Anjum also inducted in 1990 through 19th CTP in the Information Group exercised their options and were among the 72 Officers whose cases for posting on deputation in the Income Tax Group were considered by a Joint Committee constituted in this behalf. The said Joint Committee vide Order dated 19.02.1994 decided that such Officers would undergo intensive Professional Training at the Directorate of Training (Income Tax), Lahore, for a period of four to six months; pass Departmental examinations within two years after completing the CRP No.43-K-2012 etc - 6 - training; would continue to have their lien in their parent Departments for a maximum period of five years; and shall rank lowest viz-a-viz the Officers of the Income Tax Group in BPS-17. However, their inter se seniority in their own Cadre and Group would be maintained in their parent Departments. The said decision was approved by the Establishment Division vide Order dated 22.02.1994. Consequently, private Respondents (Iqbal Hussain Sheikh, Dr. Abdul Lateef and Abdul Hameed Anjum) were placed at the disposal of the FBR vide Notification dated 19.03.1994 and posted as Assistant Commissioners of Income Tax (Under Training) in the Directorate of Training, Lahore. 3. In the years that followed the question of permanent induction of the Officers from other Groups into the Income Tax Group remained unresolved, though it appears, various communications were exchanged. Eventually, on 19.12.2000, the FBR made the offer to the Officers on deputation for their induction into the Income Tax Group. Such offer was required to be accepted by or before the end of December, 2000. The private Respondents CRP No.43-K-2012 etc - 7 - (Iqbal Hussain Sheikh, Dr. Abdul Lateef and Abdul Hameed Anjum) exercised their options for their permanent induction in the Income Tax Group. However, no formal Order, in this behalf, was passed. In the above backdrop, the said private Respondents (Iqbal Hussain Sheikh, Dr. Abdul Lateef and Abdul Hameed Anjum) along with other Officers similarly placed invoked the Constitutional Jurisdiction of the learned High Court of Sindh on 15.01.2002 seeking their induction in the Income Tax Department. The said Constitutional Petitions were dismissed by the learned High Court of Sindh vide judgment dated 10.05.2002. Aggrieved, the private Respondents (Iqbal Hussain Sheikh, Dr. Abdul Lateef and Abdul Hameed Anjum) along with others filed a Civil Petition for Leave to Appeal before this Court, which was converted into Appeal i.e. Civil Appeal No.1745 2002 and was allowed vide judgment dated 29.09.2009, reported as Abdul Hameed Anjum and others v. Federation of Pakistan and others (PLD 2010 SC 857). The aforesaid judgment of this Court was given effect to, whereafter the seniority of the present Respondents CRP No.43-K-2012 etc - 8 - (Iqbal Hussain Sheikh, Dr. Abdul Lateef and Abdul Hameed Anjum) was fixe d vide Notification dated 11.8.2010 and their seniority was reckoned from 01.01.2001. The said private Respondents filed Departmental representations, which were rejected on 08.10.2010 whereafter they filed Service Appeals bearing No.153(K)CS to 155(K)CS of 2010 before the learned Federal Service Tribunal, Karachi, which were dismissed vide judgment dated 01.02.2011. Aggrieved, the said private Respondents (Iqbal Hussain Sheikh, Dr. Abdul Lateef and Abdul Hameed Anjum) filed Civil Petitions for Leave to Appeal No.264-K to 266-K of 2011 before this Court against the aforesaid judgment of the learned Service Tribunal in which leave to appeal was granted vide Order dated 29.02.2011 and the same were converted into Appeals i.e. Civil Appeals No.189-K to 191-K of 2011. This Court vide judgment under review dated 06.11.2012 allowed the said Civil Appeals and directed the FBR to notify 26th March 1994, as the date from which the seniority of the Appellants would be reckoned. CRP No.43-K-2012 etc - 9 - 4. Civil Review Petitions Nos.43-K to 45-K of 2012 have been filed by the Chairman, FBR against the aforesaid judgment, while Civil Review Petitions Nos.2-K to 5-K of 2013 and 6-K & 7-K of 2014 have been filed on behalf of the Officers of the Income Tax Group, who were not a party before this Court in Civil Appeals Nos.189-K to 191-K of 2011 but whose seniority was likely to be affected, as a consequence of the judgment under review. 5. It is contended by the learned counsel for the Review Petitioners that by way of the judgment under review, the provisions of Rule 4 of the Civil Servants (Seniority) Rules 1993, hereinafter referred to as “the Rules of 1993” applicable to the facts of the case have been misinterpreted and misapplied. It is added that the judgments of this Court, the dicta whereof were not attracted to the facts and circumstances of the case have not only been relied upon incorrectly but also misinterpreted. Furthermore, the judgment under review runs contrary not only to Rule 4 of the Rules of 1993 but also to the law as laid down in various judgments of this Court, hence is liable to be reviewed. In support of their contentions, the CRP No.43-K-2012 etc - 10 - learned counsels relied upon the judgments reported as (1) S. Habib Haider v. The Secretary, General Ministry of Interior, Islamabad and 14 others (1991 SCMR 1505), (2) Major Retd Muhammad Matlub Khan, Deputy Director, Intelligence Bureau, Islamabad etc v. Government of Pakistan etc (NLR 1993 Service 33), (3) Muhammad Arshad Sultan Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others (PLD 1996 SC 771), (4) Mehr Sher Muhammad and others v. Federation of Pakistan (1999 SCMR 185), (5) S. M. Farooq and others v. Muhammad Yar Khan and others (1999 SCMR 1039), (6) Din Muhammad v. Director-General, Pakistan Post Office, Islamabad and 20 others (2003 SCMR 333), (7) Hamid-ul-Hussain and others v. Federation of Pakistan through Secretary, Establishment Division and others (2006 SCMR 832), (8) Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483), (9) Abdul Hameed Anjum and others v. Federation of Pakistan and others (PLD 2010 SC 857), (10) Captain (R) Khalid Zaman v. Government of Pakistan through Secretary, Establishment Division and others (NLR 2011 Service 38)/(2011 SCMR 99), (11) Iqbal Hussain CRP No.43-K-2012 etc - 11 - Sheikh and two others v. Chairman, Federal Board of Revenue and another (2013 SCMR 281), (12) Contempt Proceedings against Chief Secretary, Sindh and others (2013 SCMR 1752), and (13) Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456). 6. The learned counsel for the private Respondents controverted the contentions raised on behalf of the Review Petitioners and contended that all the Civil Review Petitions are barred by limitation, hence liable to be dismissed on this ground alone. It is further added that the Civil Review Petitions filed by the private Respondents, who were not a party to the Civil Appeals whereupon the judgment under review was passed, are not maintainable having been filed by strangers. It was contended that the judgment under review does not suffer from any error apparent from the face of the record and no such error has been pointed out on behalf of the review Petitioners. It is added that the Review Jurisdiction of this Court is not synonymous with its Appellate Jurisdiction and this Court cannot sit in appeal on its own judgments. The learned counsel for the Respondents further contended that even CRP No.43-K-2012 etc - 12 - otherwise the judgment under review is in line with the law laid down in the earlier judgments of this Court, which have not only been mentioned but also the extracts whereof have been quoted in extenso, in the judgment under review therefore the Review Petitions are liable to the dismissed. The learned counsel for the Respondents relied upon the judgments reported as (1) Muhammad Arshad Sutlan, Section Officer Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others (PLD 1996 SC 771), (2) Mehr Sher Muhammad and others v. Federation of Pakistan (1999 SCMR 185) and (3) Din Muhammad v. Director General, Pakistan Post Office, Islamabad and 20 others (2003 SCMR 333) (4) Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483), (5) S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary, Establishment and others (2014 SCMR 799), (6) Muhammad Aslam Awan, Advocate Supreme Court v. Federation of Pakistan and others (2014 SCMR 1289). 7. Heard and the available record perused. CRP No.43-K-2012 etc - 13 - 8. Before proceeding to dwell upon the arguments canvassed at the bar by the learned counsel for the parties, it would perhaps be appropriate to recapitulate the relevant facts of the case so that both, the rival contentions of the learned counsels and the judgment under review can be examined in their true perspective, while exercising our limited Review Jurisdiction. 9. The private Respondents, it is an admitted fact, were initially recruited, appointed and were serving in the Postal Group and in the Information Group. Pursuant to the decision of structural expansion of the Income Tax Group of the FBR, it was decided to solicit options from the Officers serving in various other Departments, for joining the Income Tax Group on deputation. In terms of the aforesaid decision, a letter was issued by the Establishment Division on 18.12.1993 to the Secretaries of the various Departments. The private Respondents expressed their willingness to join the Income Tax Group. Their case was considered by the Joint Committee constituted in this behalf and 72 Officers including the private Respondents vide Order dated 19.02.1994 of the said Joint Committee CRP No.43-K-2012 etc - 14 - were selected subject to, inter alia, the conditions that they would undergo training, pass the Departmental examination and would serve on deputation with the Income Tax Group for initial period of five years and were likely to be absorbed and inducted in the said Group. It was also clarified that such Officers would rank lower than the Officers already serving in the Income Tax Group in the same grade i.e. BPS-17. The said decision of the Joint Committee was also approved by the Establishment Division vide Order dated 22.2.1994. 10. It is in the above back ground the private Respondents were appointed on deputation in the Income Tax Group vide Notification dated 19.3.1994. After the lapse of the initial period of five years a formal decision was eventually taken to seek option from the said Officers serving on deputation in the Income Tax Group for their absorption and induction in the said Group. However, the said decision was not implemented and some of such Officers including the private Respondents sought their absorption and induction in the Income Tax Group by unsuccessfully invoking the Constitutional Jurisdiction of CRP No.43-K-2012 etc - 15 - the learned High Court. The Constitution Petitions filed in this behalf were dismissed vide judgment dated 10.5.2002, whereafter, the private Respondents along with others filed Civil Petitions before this Court, which were eventually decided in their favour vide judgment dated 29.9.2009 reported as Abdul Hameed Anjum and others v. Federation of Pakistan and others (PLD 2010 SC 857), in the terms reproduced herein below:- (i) This appeal is accepted on behlaf of appellants Nos.1, 2, 3 and 6; the appeal on behalf of other appellants is dismsised as not pressed. (ii) Appellants Nos.1, 2, 3 and 6 are declared to have been inducted w.e.f. 01.1.2001 in the Income Tax Group of CBR pursaunt to the acceptance of offers by them under CBR’s decision dated 21.7.2000; The appellants Nos.1, 2, 3 and 6 are also declared to have been accoridngly absorbed in the Income Tax Group; (iii) Establishment Division O.M. dated 25.1.2001 is declared to have been issued without any lawful authority hence of no legal effect. (iv) For the purpose of record and for all other requirements, respondents shall issue necessary notificitons, orders or memos in terms of the declaration above granted to appelalnts Nos.1, 2, 3 and 6. (v) Costs througout shall be paid by the respondents to appellants Nos.1, 2, 3 and 6. (empahsis supplied) CRP No.43-K-2012 etc - 16 - 11. Subsequently, the private Respondents sought fixation of their seniority in the Income Tax Group from the date when they initially joined Income Tax Group on deputation from their parent Departments. Upon failure of the representation/Departmental appeals and subsequent dismissal of their appeals by the learned Federal Service Tribunal, the jurisdiction of this Court was invoked, which culminated into the judgment under review. 12. It is an admitted fact that the Petitioners are civil servants, who were initially sent on deputation from their parent Departments to the Income Tax Group wherein they were eventually absorbed and inducted. 13. The question of seniority both inter se the present Respondents as well as with respect to other Officers, who were already serving in the Income Tax Group is covered by Rule 4 of the Rules of 1993. For the ease of reference the said Rule is reproduced hereunder:- “4. Seniority on appointment by transfer. - Seniority in a service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post : Provided that- CRP No.43-K-2012 etc - 17 - (a) persons belonging to the same service, cadre or post selected for appointment by transfer to a service cadre or post in one batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and (b) persons belonging to different service, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior.” 14. A perusal of the judgment under review reveals that it is primarily based on three previous judgments of this Court reported as (1) Muhammad Arshad Sutlan, Section Officer Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others (PLD 1996 SC 771), (2) Mehr Sher Muhammad and others v. Federation of Pakistan (1999 SCMR 185) and (3) Din Muhammad v. Director General, Pakistan Post Office, Islamabad and 20 others (2003 SCMR 333). The law laid down in the aforesaid judgments must necessarily be examined in the context of the aforesaid admitted facts and the applicable law i.e. Rule 4 of the Rules of 1993 referred to above. CRP No.43-K-2012 etc - 18 - 15. With the help of the learned counsel for the parties, we have examined the judgments reported as Muhammad Arshad Sultan (Supra) (PLD 1997 SC 771). After trawling through the entire judgment, we find that there is no reference, at all, to the Rules of 1993. The said judgment is entirely based on the interpretation of the Esta. Code, various Office Memorandums, (OMs) periodically issued and some statutory provisions and the Rules other than the Rules of 1993, hence the basis of the decision of the said judgment is not the Rule 4 of the Rules of 1993, which is admittedly applicable to the case at hand. It is in the above perspective, primarily on the interpretation of said Office Memorandum and the Esta Code, certain observations were made by this Court, which have been quoted in extenso in the judgment under review. However, eventually, through the said judgment the matter was remanded for fixation of the seniority of the Applicants therein. The interpretation of Rule 4 of the Rules of 1993 admittedly applicable in the instant cases is conspicuous by its absence. CRP No.43-K-2012 etc - 19 - 16. The second judgment whereupon the judgment under review is based, is the case of Mehr Sher Muhammad and others (Supra). It appears that pursuant to the judgment passed in Muhammad Arshad Sultan, Section Officer and another (Supra), the seniority of some of the Officers of OMG was fixed. However, the other Officers, feeling aggrieved, invoked the jurisdiction of the learned Service Tribunal and eventually to this Court, which culminated into the judgment passed in Mehr Sher Muhammad and others (Supra). We have also examined the said judgment and find that the law laid down therein, which has been relied upon and quoted in extenso in the judgment under review is again based upon the interpretation of the various Office Memorandums, the Esta Code and Practice of the Department. However, it appears that the provisions of Rule 4 of the Rules of 1993 were brought to the notice of this Court. In respect whereof, it was observed as follows:- “14. … We would like to elucidate here that Federal Government has now framed Civil Servants Seniority Rules vide S.R.O. No.163(1)/93, dated 28th February, 1993 (PLD 1993 Central Statutes, page 281) which are prospective in character and would supersede all practices, instructions CRP No.43-K-2012 etc - 20 - and Office Memorandums in the sphere of fixing the seniority of civil servants from the date of its promulgation and all other methods existing till then shall cease to be operative.” (emphasis supplied) 17. The aforesaid observations make it clear and obvious that the law laid down in this judgment is not applicable to the subsequent cases to which Rule 4 of the Rules of 1993 is applicable. The said Rules of 1993 were not applied as the same could not be given retrospective effect. In this case, the entire process commenced on 18.12.1993, when the Establishment Division called for options from the Officers of the various Departments to join the Income Tax Group on deputation, while the Rules of 1993 came into force on 28.02.1993. Thus, at all material events in the instant case from the exercise of the option to the reckoning of the seniority and the dispute in relation thereto occurred after the Rules of 1993 had come into force and were covered squarely by Rule 4 thereof. Hence, there was no question of retrospective application involved in the instant case unlike the judgment of Mehr Sher Muhammad and others (Supra) (1999 SCMR 185). CRP No.43-K-2012 etc - 21 - 18. In view of the above, it is clear and obvious, as has been held in the case of Mehr Sher Muhammad and others (Supra) in no uncertain terms that the said judgment and the judgment of Muhammad Arshad Sultan (Supra) (PLD 1996 SC 771) at best pertained to the various Office Memorandums, the Esta Code and the Departmental Practice and are not relevant for the purpose of interpretation of Rule 4 of the Rules of 1993. In fact, the said judgments and the law laid down therein are not relevant for adjudication of a case pertaining to the seniority of the deputationists arising after coming into force the Rules of 1993 including the cases at hand, hence, could not form the basis of the judgment under review. 19. It appears that this aspect of the matter escaped the attention of this Court, while erroneously passing the judgment under review and holding that the private Respondents were entitled to the seniority from the date earlier than the date of their formal induction into the Income Tax Group. This error unfortunately materially, significantly and adversely affects the adjudicatory process resulting in an obvious error of law. CRP No.43-K-2012 etc - 22 - 20. Rule 4 of the Rules of 1993, which has been reproduced hereinabove on its plain reading leaves no room for doubt that the seniority of persons on deputation is to be reckoned from the date of their regular appointment in the transferee Group or Department and not from their posting or transfer or any earlier date. The wording in the said provision is clear and obvious and leaves little room for any other contrary interpretation. 21. The said Rule 4 of the Rules of 1993 has come up for interpretation before this Court in a number of cases. In the case reported as S.M. Farooq and others v. Muhammad Yar Khan and others (1999 SCMR 1039), it has been held as follows:- “12. … Besides rule 4 of Civil Servants Seniority Rules, 1993 promulgated by Notification S.R.O. (1)/93, dated 28th February, 1993 lays down that seniority in service, cadre or post by transfer shall take effect from the date of regular appointment of civil servant to said service, cadre, or post. Therefore, necessary corollary would be that such civil servant on his appointment by transfer would rank junior to those who were already serving in permanent capacity in the same grade. This is in consonance with principle of justice and fair play because service rights of employees in the absence of any rules cannot be normally affected by outside introduction. The respondent No.1 Muhammad Yar Khan till date of his absorption continued to be member of his parent CRP No.43-K-2012 etc - 23 - service or cadre. Therefore, unless transferred and absorbed on account of conscription; the seniority of above respondent in Tourist Services Department had to be reckoned from the date of his regular appointment against permanent post. It may be mentioned here that respondent No.1 had option to refuse and in such eventuality, he would be entitled to seniority reckoned in the parent Department.” 22. In the case reported as Hamid-ul-Hassain and others v. Federation of Pakistan through Secretary, Establishment and others (2006 SCMR 832), it was held as under:- “9. Rule 4 in so many words lays down that seniority in service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre, or post. Undisputedly the petitioners were appointed on regular basis vide notification dated 17-11-1999 and they were not correct in claiming their seniority from any earlier date on the ground that they ought to have been absorbed or inducted into O.M.G. in the year 1992 or before that. …” (empahsis supplied) 23. It appears that the aforementioned judgments of this Court had escaped notice, while passing the judgment under review, which runs contrary thereto as well as to the provisions of Rule 4 of the Rules of 1993. CRP No.43-K-2012 etc - 24 - 24. At this juncture, it may be appropriate to refer to the 3rd judgment relied upon and quoted in extenso in the judgment under review i.e. Din Muhammad v. Director General, Pakistan Post Office, Islamabad and 20 others (2003 SCMR 333). Even in this judgment, the general principle that the seniority of deputationists would be reckoned in the transferee Department from the date of issue of order of absorption therein has been reiterated. In this behalf, it has been held as follows:- “…We having carefully considered the contention raised by the learned Deputy Attorney-General find that crucial date for determination of the seniority of appellant would be the date of permanent absorption of appellant in the office of Post Master General, Northern Circle, Rawalpindi…” (emphasis supplied) In the said case, the Appellants therein had been transferred without any option being exercised by them and there was some issue regarding the date of their induction into the parent Department. In the instant case, the date of induction of the private Respondents in the their transferee Department i.e. the Income Tax Group had been finally settled by this Court upon an appeal filed by CRP No.43-K-2012 etc - 25 - the private Respondents in the judgment reported as Abdul Hameed Anjum and others (Supra) (PLD 2010 SC 857), and it has clearly been held that the date of induction of the private Respondents will be 01.01.2001 and it is obviously from such date their seniority in terms of Rule 4 of the Rules of 1993 must necessarily be reckoned. To ante- date the induction of the private Respondents in the Income Tax Group from 01.01.2001 would amount to a review of the judgment of this Court reported as Abdul Hameed Anjum and others (Supra) (PLD 2010 SC 857), which has attained finality and its findings could not be disturbed or varied in the subsequent proceedings as has apparently been done, by necessary implication by way of the judgment under review. This aspect of the matter too had escaped the notice of this Court resulting in an error apparent on the face of the record, requiring rectification. 25. In view of the above, there is little room for doubt that the seniority of the private Respondents was to be determined in terms of Rule 4 of the Rules of 1993 and to be reckoned from the date of induction and the regular appointment in the transferee Department i.e. Income Tax CRP No.43-K-2012 etc - 26 - Group, a fact conclusively determined by this Court in an earlier judgment. By way of the judgment under review, it has been held to the contrary, initially by relying upon the judgments of this Court, which pertained to the interpretation of the various Office Memorandums, Esta Code and the Departmental Practice and not Rule 4 of the Rules of 1993. It is mentioned in the said judgment in no uncertain terms that the law laid down therein would not be applicable to the cases covered by Rule 4 of the Rules of 1993 (as is the instant case). Furthermore, the judgment under review in fact reviewed the earlier judgment of this Court passed in appeal filed by the private Respondents i.e. Abdul Hameed Anjum and others (Supra) (PLD 2010 SC 857). Consequently, the aforesaid legal error has crept into the adjudicatory process and requires rectification to further the ends of justice and uphold the law. 26. Adverting now to the objections of the private Respondents that the instant Review Petitions are barred by limitation and some of them are not maintainable having been filed by the persons who were not party to the Appeals wherein the judgment under review was passed. CRP No.43-K-2012 etc - 27 - Civil Review Petitions Nos.43-K to 45-K of 2012 have been filed by the Department, which was admittedly the Respondent in the aforesaid Appeals. Hence, the question of their maintainability does not arise. No doubt, these Review Petitions have been filed 11 days beyond the period of limitation prescribed for filing thereof. The said Review Petitions are accompanied by applications for condonation of delay i.e. Civil Misc. Applications No.456-K to 458-K of 2012. It appears that the learned counsel for the Department, who had appeared in the Appeals, whereupon the judgment under review was passed, was on general adjournment and had gone abroad and the Review Petitions could not be filed in his absence as he alone could have given a Certificate in terms of the Rule 4 of Order XXVI of the Supreme Court Rules, 1980. The learned counsel upon being instructed to file a review cut short his visit abroad returned to Pakistan and made an application for recall of his general adjournment and thereafter filed the Civil Review Petitions in question. In the circumstances, the delay in filing of the Review Petitions was beyond the control of the Review Petitioners. Hence, the said delay is condoned and the Civil Misc. CRP No.43-K-2012 etc - 28 - Applications No.456-K to 458-K of 2012 are allowed. Since the Civil Review Petitions Nos.43-K to 45-K of 2012 filed by the Department have been held to be maintainable and the delay has been condoned, hence the question of maintainability and limitation in other Review Petitions is not material. 27. These are the reasons of our short Order of even date, which is as follows:- “We have heard the arguments of the learned ASCs. For the reasons to be recorded separately, Civil Review Petitions No.43-K to 45-K of 2012, 2-K to 5-K of 2013 and 6-K & 7-K of 2014 and the other three Civil Review Petitions which are yet to be numbered along with listed Civil Misc. Applications are allowed. The judgment under review dated 06.11.2012 is set aside and the Civil Appeals No.189-K to 191-K of 2011 are dismissed.” Chief Justice Judge Islamabad, the Judge 11th November, 2015 Approved For Reporting Safdar/*

/ PRESENT: MR. JUSTICE UMAR ATA BANDIAL, CJ MRS. JUSTICE AYESHA A. MALIK MR. JUSTICE SYED HASAN AZHAR RIZVI C.R. P.446 / 2022 C.A.2154/2019, C.R.P.449 / 2022 C.A.2157/2019, C.R.P.452/2022 C.A.2160/2019, C.R.P.455 / 2022 C.A.2163/2019, C.R.P.458/ 2022 C.A.2166/2019, C.R.P.461 / 2022 C.A.2169/ 2019, C.R.P.464/ 2022 C.R.P.466/2022, C.R.P.468/2022 C.A.2176/2019, C.A.2178/2019, C.R.P.473/ 2022 C.A.2181/2019, C.R.P.476 / 2022 C.A.2184/2019, C.R.P.479 / 2022 C.A.2187/2019, C.R.P. 482 / 2022 C.A.2190/2019, g.R.P.485 / 2022 C.A.2193/2019, C.R.P.488/ 2022 C.A.2196/2019, C.R.P. 49 1 / 2022 C.A.2199/2019, C. R. P.494/ 2022 C.A.2202 / 2019, C.R.P.497/2022 C.A.2205/2019, C.R.P. 500 / 2022 C.A.2208/2019, C.R.P.503/2022 C.A.2211 /2019, C.R.P.506/2022 C.A.2214/2019, C.R.P.509/2022 C.A.2217/2019, C.R.P. 512/2022 C.A.2220/2019, C.R.P.515/2022 G.A.2223/2019, IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) C.A.2150/2019, IN C.R.P.448/2022 C.A.2156/2019, IN C.R.P.45 1 / 2022 IN C.A.2159/2019, IN C.R.P.454/ 2022 C.A.2162/2019, IN IN C.R.P.457/2022 C.A.2165/2019, IN C.R.P.460/2022 C.A.2168/2019, IN C.R.P.463 / 2022 IN IN IN IN IN C.R. P.475 / 2022 IN C.R.P.478/2022 C.A.2186/2019, IN C.R.P.48 1 /2022 C.A.2189/2019, IN C.R.P.484/ 2022 IN IN IN IN IN IN IN IN C.R.P.496/ 2022 IN C.R.P.499/2022 C.A.2207/2019, IN C.R.P. 502 / 2022 IN IN IN IN IN IN IN IN IN IN C.R.P.517/2022 IN C.A.2219/2019, IN C.A.2210/2019. C.R. P.505 /2022 C.A.2213/2019 C.R.P.508/2022 C.A.2216/2019, C.R.P.511/2022 C.R.P.514/2022 C.A.2222/2019, IN C.A.2198/2019, IN C.R.P.487/2022 IN C.A.2192/2019, C.A.2195/2019, C.R.P.490/2022 C.R.P.493 /2022 C.A.2201/2019, C.A.2204/2019, IN C.R.P.470/2022, IN in C.A.2171/2019, C.R.P.467/2022 C.A.2175/2019, C.R.P. 472 / 2022 C.A.2180/2019, C.A.2183/2019, IN IN C.R.P.447/2022 IN C.A.2155/2019, C.R.P.450/2022 IN C.A.2158/2019, C.R.P.453/2022 IN C.A.2161/2019, C.R.P.456/2022 IN C.A.2164/2019, C.R.P.459/2022 IN C.A.2167/2019, C.R.P.462/2022 IN C.A.2170/2019, C.R. P.465 /2022, C.A.2174/2019, C.R.P.469/2022 IN C.R.P. 471 / 2022 IN C.A.2179 / 2019, C.R.P.474/2022 IN C.A.2182 / 2019, C.R.P.477/2022 IN C.A.2185/2019, C.R.P.480/2022 IN C.A.2188/2019, C.R.P.483/2022 IN C.A.2191/2019, C.R.P.486/2022 IN C.A.2194/2019, C.R.P.489/2022 IN C.A.2197/2019, C.R.P.492/2022 IN C.A.2200/2019, C.R.P.495/2022 IN C.A.2203 / 2019, C.R.P.498/2022 IN C.A.2206/ 2019) C.R.P.501/2022 IN C.A.2209 / 2019, C.R.P.504/2022 IN C.A.2212/2019, C.R.P.507/2022 IN C.A.2215/2019, C.R.P.510/2022 IN C.A.2218/2019, C.R.P.513/2022 IN C.A.2221 /2019, C.R.P.516/2022 IN C.A.2224/2019, C.R.P.446/2022 etc 2 C.R.P.518/2022 IN C.A.2225/2019, C.A.2226/2019, C.R.P.520/2022 C.R.P.521/2022 IN C.A.2228/2019, C.A.2229/2019, C.R.P.523/2022 C.R.P.524/2022 IN C.A.2231/2019, C.A.2232/2019, C.R.P. 526/ 2022 C.R.P.527/2022 IN C.A.2234/2019, C.A.2235/2019, C.R.P. 529 / 2022 C.R.P.530/2022 IN C.A.2237/2019, C.A.2238/2019, C.R.P.532/2022, C.A.2240 / 2019, C.R.P.534/2022 C.R.P.535/2022 IN C.A.2242/2019, C.A.2243 / 2019, C.R.P.537/2022 C.R.P.538/2022 IN C.A.2245/2019, C.A.2246 / 2019, C.R.P.540 / 2022 C.R.P.541/2022 IN c.A.2248/2019, C.A.2249 / 2019, C.R.P. 543 / 2022 C.R.P.544/2022 IN C.A.2251/2019, C.A.2252 /2019, C.R.P. 546/2022 C.R.P.547/2022 IN C.A.2254/2019, C.A. 2255 / 2019, C.R.P.549 / 2022 C.R.P.550/2022 IN C.A.2257/2019, C.A.2258/2019, C.R.P.552 /2022 C.R.P.553/2022 IN C.A.2260/2019, C.A.2261 /2019, C.R.P.555/2022 C.R.P.556/2022 IN C.A.2263/2019 IN IN IN IN IN IN IN IN IN IN IN IN IN (Against the judgment dated 24.03.2022 passed by this Court in CA No.2150- 2263/2019 and CMA No.5284-5300/2020) Federal Govt. of Pakistan thr. M/o. Defence Rawalpindi and another v. Mst. Zakia Begum and others C.R.P.446/2022 IN C.A.2150/2019 1. Federation of Pakistan and another v C.R.P.447/2022 INC.A.2154/2019 Muhammad Ashraf (decd.) thr. 1,Rs. and others 2. C.R.P.448/2022 Federation of Pakistan and another v. IN C. A.2155/2019 Zumard Khan (decd.) thr. 1,Rs. and others 3. C.R.P.449/2022 Federation of Pakistan and another v. Ali IN C.A.2156/2019 Bahadur (Decd.) thr. LRs and others 4. Federation of Pakistan through Secretary C.R.P.450/2022 Ministry of Defence Rawalpindi and IN C.A.2157/2019 another v. Taj Muhammad Khan (Decd.) thr. 1,Rs and others 5. Federation of Pakistan thr. M/o. Defence C . R.P.45 1 / 2022 Rawalpindi and another v. Taj IN C.A.2158/2019 Muhammad Khan (decd)thr. LRg and others 6. C.R.P.452/2022 Federation of Pakistan thr. M/o. Defence IN C.A.2159/2019 Rawalpindi and another v. Fazal-ur 7. Q.R.P.519/2022 C.A.2227/2019, C.R.P.522/2022 IN C.A.2230 / 2019, C.R.P.525/2022 IN C.A.2233/2019, C.R.P.528/2022 IN C.A.2236/2019, C.R.P.531/2022 IN C.R.P.533/2022 IN C.A.2241 /2019, C.R.P.536/2022 IN C.A.2244/2019, C.R.P.539/2022 IN C.A.2247/2019, c.R.P.542/8022 IN C.A.2250/2019, C.R.P.545/2022 IN C.A.2253/2019, C.R.P.548/2022 IN C.A.2256/2019, C.R.P.551/2022 IN C.A.2259/2019, C.R.P.554/2022 IN C.A.2262 /2019, C.R.P.446/2022 etc 3 Rehrnan and others 8. C.R.P.453/2022 IN C.A.2160/2019 Federal Govt. of Pakistan thr. M/o. Defence Rawalpindi and another v. Mst. Zakia Begum and others 9. C.R.P.454/2022 Federation of Pakistan and another v. IN C.A.2161/2019 Mst. Rafia Begum and others 10. C.R.P.455/2022 Federation of Pakistan and another v. IN C.A.2162/2019 Muhammad Ashraf and others 11. C.R.P.456/2022 Federation of Pakistan and another v IN C.A.2163/2019 Akram Khan (decd.) thr. LRs. and others 12. C.R.P.457/2022 Federation of Pakistan and another v IN C.A.2164/2019 Khurshid Khan and others Federation of Pakistan thr. Secy. M/o. C.R.P.458/2022 Defence, Rawalpindi and another v. IN C.A.2165/2019 Muzaffar Khan (decd.) thr. 1,Rs. mId others 13. 14. C.R.P.459/2022 IN C.A.2166/2019 Federation of Pakistan through Secretary Ministry of Defence Rawalpindi and others v. Aslam Khan (decd.) thr. 1,Rs. and others 15. C.R.P.460/2022 Federation of Pakistan and another v IN C.A.2167/2019 Umer Hayat Khan and others 16. C.R.P.461/2022 Federation of Pakistan and another v IN C.A.2168/2019 Amanat Khanand others 17. C.R.P.462/2022 Federation of Pakistan and another v IN C.A.2169/2019 Waqar Ahmed Khan and others 18. C.R.P.463/2022 Federation of Pakistan and another v. IN C.A.2170/2019 Azmat Ali Khan and others 19. C.R.P.464/2022 Federation of Pakistan and another v in C.A.2171/2019 Mst. Inayat Bibi and others Federation of Pakistan and another v Khizar Hayat Khan (decd.) thr. LRs. and others 20. C.R.P.465/2022 Federation of Pakistan and another v Barkat Ali Khan (decd.) thr. 1,Rs. and others 21. C.R.P.466/2022 22. C.R.P.467/2022 Federation of Pakistan and another v. IN C.A.2174/2019 Sardar Ali Khan and others 23 C.R.P.468/2022 Federation of Pakistan and another v IN C.A.2175/2019 Mst. Shamshad Begum (decd.) thr. 1,Rs. C.R.P.446/2022 etc 4 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. C.R.P.469/ 2022 IN C.A.2176/2019 C.R.P.470/2022 C.R.P.471/2022 Federation of Pakistan and another v. IN C.A.2178/2019 Masood Khan (decd.) thr. 1,Rs and others C.R.P.472/2022 Federation of Pakistan and another v. IN C.A.2179/2019 Sardar Afsar Khan and others C.R.P.473/2022 IN C.A.2180/2019 C.R.P.474/2022 IN C.A.2181/2019 C.R.P.475/2022 IN C.A.2182/2019 C.R.P.476/2022 Federation of Pakistan and another v. Rab IN C.A.2183/2019 Nawaz (decd.) thr. LRs. and others C.R.P.477/2022 IN C.A.2184/2019 C.R.P.478/2022 IN C.A.2185/2019 C.R.P.479/2022 Federation of Pakistan and another v. IN C.A.2186/2019 Chan Nawaz & others C.R.P.480/2022 Federation of Pakistan and another v. Mir IN C.A.2187/2019 Afzal Khan (decd.) 1,Rs. C.R.P.481/2022 Federation of Pakistan and another v. IN C.A.2188/2019 Abdul Khaliq and others C.R.P.482/2022 IN C.A.2189/2019 Federation of Pakistan through Secretary C.R.P.483/2022 Ministry of Defence Rawalpindi and IN C.A.2190/2019 another v. Ghulam Muhammad (decd.) thr. LRs. and others and others Federation of Pakistan through Secretary Ministry of Defence Rawalpindi and another v. Sadaaqat Ali Khan and others Federation of Pakistan thr. Secy. M/o. Defence, Islamabad and another v. Sher Afzal Khan (decd.) thr. 1,Rs. and others Federation of Pakistan and Khalid Mehmood and others Federation of Pakistan and Mst. Sajida Begum & others another v. another v. Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Muhammad Ayub & others Federation of Pakistan and another v Mst. Hafeezan Sultan (decd.) thr. LRs. & others Federation of Pakistan and another v Mst. Naeema Zayad (decd) thr. L.Rs & others Federation of Pakistan through Secretary Ministry of Defence Rawalpindi and another v. Mst. Zakia Begum and others 39. C.R.P.484/2022 Federation of Pakistan and another v. Lal C.R.P.446/2022 etc 5 IN C.A.2191/2019 Khan (decd.) thr. LRs. & others 40. C.R.P.485/2022 IN C.A.2192/2019 Federation of Pakistan and another v Mst. Mumtaz Begum (decd) thr. L.Rs & others 41. C.R.P.486/2022 Federation of Pakistan and another v. IN C.A.2193/2019 Iftikhar Ahmed Khan & others 42. C.R.P.487/2022 Federation of Pakistan and another v. IN C.A.2194/2019 Muhammad Ashraf & others 43. C.R.P.488/2022 Federation of Pakistan and another v. IN C.A.2195/2019 Goher Rehman & others 44. C.R.P.489/2022 Federation of Pakistan and another v. IN C.A.2196/2019 Ghulam Zaki & others 45. C.R.P.490/2022 Federation of Pakistan and another v. IN C.A.2197/2019 Abdul Khaliq & others 46. C.R.P.49 1/2022 Federation of Pakistan and another v. Haji IN C.A.2198/2019 Fazal Dad & others 47. C.R.P.492/2022 Federation of Pakistan and another v. IN C.A.2199/2019 Amir Afzal & others 48. C.R.P.493/2022 Federation of Pakistan and another v. IN C. A.2200/2019 Khalid Mehmood & others 49. C.R.P.494/2022 Federation of Pakistan and another v. IN C.A.2201/2019 Muzaffar Khan & others 50. C.R.P.495/2022 Federation of Pakistan and another v. Haji IN C.A.2202/2019 Ahmed & others 51. 52. C.R.P.496/2022 IN C.A.2203/2019 C.R.P.497/2022 IN C.A.2204/2019 Federation of Pakistan and another v Fazal Dad & others Military Estates Officer (MEO) Hazara Circle, Abbottabad v. Fazal Dad & others 53. C.R.P.498/2022 Federation of Pakistan & another v. IN C.A.2205/2019 Muhammad Afzal & others 54. C.R.P.499/2022 Federation of Pakistan & another v. IN C.A.2206/2019 Muhammad Nawaz & others Federation of Pakistan through Secretary 5 5 s R R& :IF;?!!£2% ?! ??: bA1 9 :::AiiT V r f 1M[F:}t: fe ::a ][1CIIp==r1 PiEjnr& ' '-~' ' ' others 56 C.R.P.501/2022 Federation of Pakistan & another v. IN C.A.2208/2019 Barkat Ali Khan & others \ C.R.P.446/2022 etc 6 57. C.R.P.502/2022 Federation of Pakistan & another v IN C.A.2209/2019 Ghulab Shah & others 58. C.R.P.503/2022 Federation of Pakistan & another v. Lal IN C.A.2210/2019 Khan & others 59. C.R.P.504/2022 Federation of Pakistan & another v. Sher IN C.A.2211/2019 Afzal & others 60. C.R.P.505/2022 IN C.A.22 12/2019 Military Estates Officer (MEO) Hazara Circle, Abbottabad v. Zakia Begum & others 61. C.R.P.506/2022 Federation of Pakistan & another v. Aslam IN C.A.2213/2019 Khan & others 62. C.R.P.507/2022 Federation of Pakistan & another v IN C. A.2214/2019 Muhammad Ashraf & others 63. C.R.P.508/2022 Federation of Pakistan & another v. Mst IN C.A.2215/2019 Rafia Begum & others 64. C.R.P.509/2022 IN C.A.2216/2019 Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Mst. Mumtaz Begum & others 65. C.R.P.510/2022 INC.A.2217/2019 Federation of Pakistan thr. M/o. Defence and another v. Sardar Afsar Khan & others 66. C.R.P.511/2022 Federation of Pakistan & another v. Umer IN C.A.2218/2019 Hayat Khan & others 67. C.R.P.512/2022 IN C.A.22 19/2019 Military Estate Officer, (MEO) Hazara Circle, Abbottabad v. Akram Khan & others 68. C.R.P.513/2022 IN C.A.2220/2019 Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Azmat Ali Khan & others 69 . C.R.P.514/2022 Federation of Pakistan & another v. IN C.A.2221/2019 Masood Khan & others 7. C.R.P.515/2022 Federation of Pakistan & another v. IN C.A.2222/2019 Sardar Ali Khan & others Federation of Pakistan thr. M/o. Defence C . R.P.5 16/ 2022 Rawalpindi and another v. Ghulam IN C.A.2223/2019 Muhammad & others 71. 72. C.R.P.517/2022 IN C.A.2224/2019 Federation of Pakistan & another v. Raja Muhammad & others 73. C.R.P.518/2022 Federation of Pakistan & another v C.R.P.446/2022 etc 7 IN C.A.2225/2019 Mushtaq Ahmed Khan & others 74. C.R.P.519/2022 Federation of Pakistan & another v. IN C.A.2226/2019 Waqar Ahmed & others 75. C.R.P.520/2022 IN C.A.2227/2019 Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Iftikhar Ahmed Khan & others 76. C.R.P.521 /2022 IN C.A.2228/2019 Federation of Pakistan and another v Naeema Zaid & others 77. C.R.P.522/2022 Federation of Pakistan and another v. Ali IN C.A.2229/2019 Bahadur & others 78. C.R.P.523/2022 Federation of Pakistan and another v. IN C.A.2230/2019 Mst. Hafizan Sultan & others 79. C.R.P.524/2022 Federation of Pakistan and another v. IN C.A.2231/2019 Muhammad Saddique & others 80. C.R.P.525/2022 Federation of Pakistan and another v. IN C.A.2232/2019 Khayzer Hayat & others 81. C.R.P.526/2022 Federation of Pakistan and another v. IN C.A.2233/2019 Saadat Khan Ali & others 82. C.R.P.527/2022 IN C.A.2234/2019 Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Amir Afzal & others 83. C.R.P.528/2022 Federation of Pakistan and another v. IN C.A.2235/2019 Samundar Khan & others 84. C.R.P.529/2022 Federation of Pakistan and another v. IN C.A.2236/2019 Khurshid Khan & others 85. C.R.P.530/2022 Federation of Pakistan and another v. IN C.A.2237/2019 Sher Bahadur & others 86. C.R.P.531/2022 Federation of Pakistan and another v. IN C.A.2238/2019 MeerAfzal & others 87. C.R.P.532/2022 Federation of Pakistan and another v. Taj Muhammad & others 88. C.R.P.533/2022 Federation of Pakistan and another v. IN C.A.2240/2019 Amanat Khan & others C.R.P.534/ 2022 IN C.A.2241/2019 Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Ghulam Muhammad & others 89 . 90. C.R.P.535/2022 Federation of Pakistan and another v. C.R.P.446/2022 etc 8 IN C.A.2242/2019 Muhammad Ay)'ub & others 91. C.R.P.536/2022 Federation of Pakistan and another v. Taj IN C.A.2243/2019 Muhammad & others 92. C.R.P.537/2022 Federation of Pakistan and another v IN C. A.2244/2019 Zamurrad Khan & others 93. C.R.P.538/2022 Federation of Pakistan and another v IN C.A.2245/2019 Mst. Hafizan Sultana & others 94. C.R.P.539/2022 Federation of Pakistan and another v IN C.A.2246/2019 Masood Khan & others 95. C.R.P.540/2022 Federation of Pakistan and another v IN C.A.2247/2019 Amir Afzal & others 96. C.R.P.54 1/2022 Federation of Pakistan and another v. Rab IN C.A.2248/2019 Nawaz & others 97. C.R.P.542/2022 Federation of Pakistan and another v IN C.A.2249/2019 Mst. Sajida Begum & others 98. C.R.P.543/2022 Federation of Pakistan and another v IN C.A.2250/2019 Chan Nawaz & others 99. C.R.P.544/2022 Federation of Pakistan and another v. IN C.A.2251/2019 Fazal Ahmed & others Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Mir Afzal Khan & others 100. C.R.P. 545/2022 IN C.A.2252/2019 101. C.R.P.546/2022 IN C.A.2253/2019 Federation of Pakistan and another v Sadaqat Ali Khan & others C.R.P.547/2022 IN C.A.2254/2019 Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Fazal-ur- Rehman & others 102. 103. C.R.P.548/2022 IN C.A.2255/2019 Federation of Pakistan and another v. Ali Haider & others 104. 105. C.R.P.549/2022 IN C.A.2256/2019 C.R.P.550/2022 IN C.A.2257/2019 Federation of Pakistan and another v Mst. Maskeena Jan & others Federation of Pakistan and another v Akbar Jan & others 106. C.R.P.551 /2022 IN C.A.2258/2019 Federation of Pakistan and another v Muhammad Ali & others Federation of Pakistan thr. M/o. Defence Rawalpindi and another v. Mst. Anwar Jan & others 107 C.R.P.552/2022 IN C.A.2259/2019 C,R.P,446/2022 etc 9 l08' RRdTx?jjZ£F2%219 :Tr::I;IrLr::nT£:: St;t:hrTri.Rsa rItE:rsv 109. C.R.P.554/2022 Federati pn. of Pakistan & another v. Mst -- ' ' IN C.A.2261/2019 InayatBibi & others Military Estates Officer (MEO) Hazara 110. gRanT;Z172:19 Circle, Abbottabad v. Manzoor Alam and ' '--' ' ' others Federation of Pakistan thr. M/o. Defence 1 1 1 • }gHHi J IB:HFH:Ir :fI;LT£Z : 7jJ 1 9 :a::: :PoT : : d ::hdersanothe;v• BHam ida For the Petitioner(s) : Mr. Rashdeen Nawaz Qasoori, Addl. AGP assisted by Mr. Muhammad Ibrahim, Advocate High Court Mr. Rameez Sarfraz, MEO Abbottabad NR 18.07.2023 ORDER UMAR ATA BANDIAL, CJ: We have heard the learned Addl. Attorney General at length. His principal grievance is that the increase in value of acquired land to the amount that the High Court has ordered is not backed by evidence. Paragraph-05 of the judgment of the High Court records the evidentiary values of the land acquired according to its agricultural/revenue classification. Considering that the land is acquired for a single project, this Court has affirmed the value assigned by the High Court to the acquired land for the reason that the original value as determined by the Collector and the Referee Court was based on revenue classifications which have no relevance for the purposes of calculating compensation. Furthermore, when land is acquired in small parcels, awarding compensation based on revenue classifications to small parcels of land is to the disadvantage of the landowners, because it undermines the potential value of the large For the Respondent(s) Date of Hearing C.R.P.446/2022 etc 10 parcels of land acquired for a single project. Consequently, the uniform valuation for the entire land acquired for the project possesses justification. Reference is made to paragraph-17 of our judgment under review reported as “Federal Government of Pakistan versus Mst. Zakia Begum” (PLD 2023 SC 277). 2. An important aspect of our judgment under review is that the calculation of potential value of acquired land by a Court of law starting from the referee Court up to this Court cannot be left to their discretionary assessment. There must be guidelines framed by the competent legislative or regBlatory bodies for determining the potential value of the land acquired for various types of public purpose projects. To emphasize the point, we reproduce the said observation made in paragraph-18 of our impugned judgment: “18. Ideally, there should be guidelines to calculate this uatue, however, since the efforts of the gouernment have been to unciervatue the land, no real effort has gone into deuising a scheme to calculate potential uatue ot?er the years. This is why there is so much litigation on just this issue. Under the circumstances, there is a dire need to legislate on the issue and to devise a methodology to calculate potential ualue and market value so that it is neither arbitrary nor left to the whims of the Collector. This should be a priority for the gouernTnent as acquisition cannot be at the expense of the Fnancial loss of a landowner. Where there is acquisition for public purpose, the Act mandates that a fair value is prescribed based on the market value and the potential value of the land and the cases of this Court glue suffIcient guidance on calculating market value and potential uaLue, hence, there appears to be no justifIcation to continue with archaic concepts whilst valuing the land. In these cases, market uatue and potential value has been assessed at / Rs.30,000/ - per kanal based on the willing buyer, uaIling C + C.R.P.446/2022 etc 11 seller formula as well as on the auailable amenities such as transport, electricity, urban development and industrialization, which shows there is potential for the area to be fully deueloped. This is based on the euidence and calculation of future prospects. Unfortunately, a great amount of time was consumed for the land owners to get the worth of their land all of which could hat/e been avoided, had the value been properly assessed. ” 3. In the light of foregoing, we do not find any ground to interfere with the judgment under review. Dismissed islamabad 18.07.2023 Rashid/ * anDroved for renortin

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) Present: Mr. Justice Tassaduq Hussain Jillani Mr. Justice Nasir-ul-Mulk Mr. Justice Mohammad Moosa K. Leghari Mr. Justice Sheikh Hakim Ali Mr. Justice Ghulam Rabbani CIVIL REVIEW PETITIONS No. 45, 46, 47, 48, 50, 51, 52, 59, 60, 61, 62 of 2009 IN C.Ps. No. 778, 779, 878, CA No.166/09 & C.PS. 803, CMA Nos.63 & 64/08 IN CMA No.1674-75/08 IN CP No. NIL of 2008, Crl. R. P. No.22/09 IN Crl. O. P. 41 of 2008 (On review from the judgments of this Court dated 25.2.2009 passed in the above captioned petitions) C. R. P. Nos. 45 & 46 of 2009 IN C.P.Nos.778 & 779 of 2008 Federation of Pakistan Petitioner (in both cases) Versus Mian Muhammad Nawaz Sharif and others Respondents (in both cases) For the petitioner : Agha Tariq Mehmood Khan, DAG (in both petitions) For respondent No.1: Mr. Abid Hassan Minto, Sr.ASC with (in both petitions) Mr. Mehr Khan Malik, AOR (in CRP 45/09) For Respondents No.2-5:Nemo. (in both petitions) For Respondent No.6: Dr. Mohyuddin Qazi, Sr. ASC with (in both petitions) Mr. Ejaz Muhammad Khan, AOR C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 2 C. R. P. Nos. 47 & 48 of 2009 IN C. P. Nos. 905 & 878 of 2008 Federation of Pakistan Petitioner (in both petitions) Versus Syed Khurram Shah & others Respondents (in both cases) For the petitioner : Agha Tariq Mehmood, DAG with (in both cases) Mr. Arshad Ali Ch. AOR For respondent No.1: Mr. Ahmed Raza Qasuri, Sr. ASC (in both cases) Mr. Ejaz Muhammad Khan, AOR For Respondent No.2: Khawaja Haris Ahmed, ASC with (in both cases) Mr. Mehr Khan Malik, AOR For Respondent Nos.3-5 Nemo. (in both cases) C. R. P. No. 50 of 2009 IN C.P.No.803 of 2008 Speaker of Provincial Assembly Province of Punjab Petitioner Versus Syed Khurram Shah and others Respondents For the petitioner : Mr. Muhammad Raza Farooq, ASC and Mr. Ashtar Ausaf Ali, ASC with Mr. Arshad Ali Ch. AOR For respondent No.1: Mr. Ahmed Raza Qasuri, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR For respondent No.2: Khawaja Haris Ahmed with Mr. Mehr Khan Malik, AOR For respondent Nos.3-5: Nemo. For respondent No.6: Agha Tariq Mehmood, DAG C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 3 C.R. P. No. 51 of 2009 IN CMA No.64/08 IN CMA No.1674/08 IN CP No.Nil of 2008 Shakeel Baig Petitioner Versus Noor Elahi and others Respondents For the petitioner : Mr. A. K. Dogar, ASC with Mr. Arshad Ali Ch. AOR For respondent No.1 Dr. Mohyuddin Qazi, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR For respondent No.2: Mr. Abid Hassan Minto, Sr. ASC with Mr. Mehr Khan Malik, AOR For respondents No.3-5: Nemo. For respondent No.6: Agha Tariq Mehmood, DAG C.R. P. No.. 52/09 IN CMA No.63/09 IN CMA No.1675/08 Mehr Zafar Iqbal Petitioner Versus Syed Khurram Shah and others Respondents For the petitioner : Mr. Muhammad Akram Sheikh, Sr. ASC Mr. Arshad Ali Ch. AOR For respondent No.1 Dr. Mohyud Din Qazi, Sr. ASC with Mr. Ejaz Muhammad Khan, AOR For respondent No.2: Mr. Abid Hassan Minto, Sr. ASC with Mr. Mehr Khan Malik, AOR For respondents No.3-5: Nemo. For respondent No.6: Agha Tariq Mehmood, DAG C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 4 C. R.P. Nos. 59 & 60 of 2009 IN C.P.Nos.778 & 79 of 2008 a/w CMA No. 1130 & 1551 of 2009 Mian Muhammad Nawaz Sharif Petitioner Versus Federation of Pakistan and others Respondents For the petitioner : Mr. Abid Hassan Minto, Sr. ASC with Mr. Mehr Khan Malik, AOR (in both cases) For respondent No.1: Agha Tariq Mehmood, DAG For respondent Nos.2-5: Nemo. For respondent No.6: Dr. Mohyud Din Qazi, Sr. ASC with Mr. Ejaz M. Khan, A0R (in both cases) For the applicant: Mr. Shahid Orakzai (in person in CMAs) C. R.P. Nos. 61 & 62 of 2009 IN C.P.Nos.878 & C.P.No.905/08 (CA No.166/09) a/w CMA No.1525 of 2009 Mian Muhammad Shahbaz Sharif Petitioner Versus Federation of Pakistan and others Respondents For the petitioner : Khawaja Haris Ahmed, ASC Mr. Mehr Khan Malik, AOR (in both cases) For respondent No.1: Agha Tariq Mehmood, DAG in CRP No.61 & 6 in CRP No.62/09 For respondent Nos.2-4: Nemo. (in both cases) For respondent No.5: Dr. Mohyud Din Qazi, Sr. ASC with In CRP 61 & 1 in CRP 62/09 Mr. Ejaz M. Khan, AOR For the Applicant: Mr. Shahid Orakzai (in person in CMA) C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 5 Crl. R.P. No. 22 of 2009 IN Crl.O.P.No.41/09 IN CP No.657-L of 2008 Javed Mehmood Petitioner Versus Syed Khurram Shah and another Respondents For the petitioner : Mr. Muhammad Raza Farooq, ASC with Mr. Mehr Khan Malik, AOR For respondent No.1: Mr. Ahmed Raza Qasuri, Sr. ASC On Court’s Call: Sardar Muhammad Latif Khan Khosa Attorney General for Pakistan. Dates of hearing: 11.05.2009 to 26.5.2009 SHORT ORDER Tassaduq Hussain Jillani, J.- For reasons to be recorded in the detailed judgment later, Civil Review Petitions No. 59 & 60 of 2009 filed by Mian Muhammad Nawaz Sharif, Civil Review Petitions No. 61 and 62 of 2009 filed by Mian Muhammad Shahbaz Sharif, Civil Review Petitions No. 45, 46, 47 and 48 of 2009 filed by the Federation of Pakistan and Criminal Review Petition No. 22 of 2009 filed by Javed Mehmood, Civil Review Petition No. 50 of 2009, Civil Review Petitions No. 51 and 52 of 2009 filed by Shakeel Baig and Mehar Zafar Iqbal and Civil Misc. Application No. 1130, 1551 and 1525 of 2009 filed by Shahid Orakzai are being disposed of by this short order. 2. Petitioner Mian Muhammad Nawaz Sharif (in Civil Review Petition No. 59 & 60 of 2009) filed his nomination papers for N.A. 123 Lahore. The only objection petition filed by Mian Akhlaq Ahmad @ Guddu was dismissed vide order dated 5.5.2008, inter alia, on the ground that the objection C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 6 petition had not been supported by any documentary evidence despite the opportunities given to the objector. This order was challenged in appeal before the Appellate Tribunal comprising of two learned Judges of the High Court. However, on 27.05.2008 the said objector withdrew his appeal but on the same day the other candidate Noor Elahi filed an application under Order 1 Rule 10 CPC with the prayer that he might be allowed to be transposed as appellant. This application was dismissed with the observation that he might file a separate appeal, if so advised. Later on, he filed a time barred appeal on 28.05.2008 (last date for filing appeal was 24.05.2008). In the meanwhile, one Syed Khuram Shah had also laid information under section 14(5-A) of the Representation of Peoples Act, 1976 [hereinafter referred to as ‘the Act’] through an application dated 26.05.2008 alleging that Mian Muhammad Nawaz Sharif was disqualified in the light of the said information. 3. Petitioner Mian Muhammad Shahbaz Sharif (in Civil Review Petition No. 61 & 62 of 2009) filed his nomination papers to contest the elections for the seat of Provincial Assembly Punjab for the Constituency of PP 48 Bhakkar-II. Only one person namely Malik Nazar Abbas filed an objection petition on the grounds that the candidate had defamed the judiciary by criticizing the then District & Sessions Judge; that his nomination papers were rejected in the General Elections on 01.12.2007; that he along with his nomination papers had filed a false declaration; that he was not qualified to contest the elections in view of Article 63 (1) (g) of the Constitution read with section 99 of the Act. This objection was dismissed and nomination papers were accepted on 16.05.2008. The said objector did not challenge this order but on 27.05.2008 Syed Khurum Shah filed a petition under section 14(5-A) of the Act purporting to lay information against Mian Muhammad Shahbaz Sharif to the effect that he was disqualified to be elected as member of the C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 7 Assembly on the ground that he was guilty of defaming the judiciary; that he was propagating against the sitting Chief Justice and the Judges who had taken oath under the Provisional Constitutional Order, 2007; was attempting to divide the judiciary and was willful defaulter of, “seve ral loans running into billions”. 4. The learned Appellate Tribunal (comprising of two learned Judges of the High Court) consolidated both the cases and gave split opinions. While one learned Judge dismissed the appeals and declared both the petitioners to be qualified to contest the elections, the other learned Judge declared both of them to be disqualified and rejected the nomination papers. On account of this split opinion, the appeals remained undecided (though as per the Election Schedule, the same had to be decided by 31.05.2008). The Chief Election Commissioner of Pakistan declared that since the appeals/petitions filed by respondents against acceptance of nomination papers had not been decided by the afore - mentioned cut-off date, the same shall be deemed to have been rejected. Respondent Syed Khuram Shah challenged this order by way of two separate writ petitions (Writ Petitions No. 6469 & 6470 of 2008), while Noor Elahi, the rival candidate, also filed Writ Petition No. 6468 of 2008 against acceptance of nomination appers of Mian Muhammad Nawaz Sharif. These writ petitions were allowed by separate judgments of even date by the learned High Court. In the case of Mian Muhammad Nawaz Sharif, the Court held that he was disqualified to contest the elections as he was:- (i) a convict in terms of the judgment of Accountability Court in Reference No.2 of 2000 dated 22.7.2000 under section 9-A(v) of the National Accountability Bureau Ordinance; (ii) had scandalized, abused and ridiculed the judiciary; and C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 8 (iii) had sworn a false affidavit attached with his nomination papers to the effect that he was qualified to contest the elections.” 5. However, the same learned Bench though accepted the petition against Mian Muhammad Shahbaz Sharif but held that the information laid under section (5-A) of the Act could not be treated as appeal and the Chief Election Commissioner was directed to constitute another Appellate Tribunal (comprising of three Judges of the High Court) to decide the said application. The afore -mentioned judgments of the learned High Court were challenged in Civil Petitions No. 778 and 779 of 2008 and Civil Petition No. 878 of 2008, filed by the Federation of Pakistan, Civil Petition No. 905 of 2008 (converted into C.A. No. 166 of 2009) filed by Syed Khurrum Shah, Civil Petition No. 803 of 2008 filed by Speaker Provincial Assembly Punjab, Civil Petition No. 657-L of 2008 and C.M.A. No. 471-L of 2008 in Civil Petition No. NIL of 2008 filed by the Chief Secretary Punjab and C.M.A. No. 95 of 2009 filed by Shahid Orakzai against the petitioners. Although the writ petition filed by Syed Khurrum Shah had been accepted yet the latter filed the civil petition praying that since the order of the Chief Election Commissioner dated 1.6.2008 was set aside, the Court should have de -notified the membership of Mian Muhammad Shahbaz Sharif which had emanated on account of the order of Chief Election Commissioner dated 1.6.2008. This Court vide the judgment under review while accepting the Civil Petition No. 905 of 2008 filed by Syed Khuram Shah dismissed all the connected petitions. Reversing the judgment of the High Court in the case of Mian Muhammad Shahbaz Sharif, he was disqualified to contest the elections. 6. We have heard learned counsel for the petitioners and for the respondents, the learned Attorney General and C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 9 Deputy Attorney General for Pakistan and have given anxious consideration to the submissions made. 7. Having heard the learned counsel for the parties, we hold as under:- (i) That the judgments under review i.e. of the Lahore High Court dated 23.06.2008 and of this Court dated 25.02.2009 are ex-parte on account of which certain factual aspect and legal provisions having bearing on the issues raised, were not brought to the notice of the Court and therefore were not considered leading to miscarriage of justice which has been found by us to be errors apparent on the face of record warranting review. (ii) Realizing the exceptional and extraordinary events relating to unconstitutional removal of Judges of the Superior Courts which in the judgment under review has been described as, ““enforced by a brutal force, by deviating from constitutional provisions,” triggering an unprecedented nationwide movement, culminating in the restoration of those Judges, and during the interregnum, non-appearance of petitioners before the Courts then constituted could neither be termed as contumacious nor reflecting acquiescence, the findings of fact rendered on such assumptions merit to be interfered with in the review jurisdiction. (iii) That both the appeals filed under section 14(5) of the Act and the information laid or directed against the acceptance of nomination papers (under section 14(5A) of the said Act) were mandated to be decided by or before 31s t of May 2008, the period fixed for deciding the appeals in the Schedule issued by the Chief Election C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 10 Commissioner under section 11 read with section 14(5) of the said Act. Since the appeals were not decided by then, the order of the Chief Election Commissioner holding that the appeal stood dismissed was in accord with section 14(6) of the Act which stipulated that, “an appeal not disposed of within the period specified in sub section (5) shall be deemed to have been dismissed.” The finding that information laid under section 14(5A) of the said Act could remain pending and decided beyond the said date fixed for disposal of appeals was not in consonance with the legislative intent. (iv) The last date for disposal of appeal against the acceptance of nomination papers was 31.05.2008 and thereafter the Appellate Tribunal had become functus officio. The order of the Chief Election Commissioner dated 01.06.2008 to the effect that since the appeals had not been decided within the afore -referred cut-off date, the same were deemed to have been rejected (in terms of sub-section (6) of section 14 of the said Act) was passed with jurisdiction. The learned High Court not only allowed respondents’ writ petitions against this order but while doing so, passed two inconsistent judgments of even date i.e. while in the case of Mian Muhammad Shahbaz Sharif, it held that the source information/petition (under sub- section (5A) of section 14 of the Act) shall be deemed to be pending before the Appellate Tribunal comprising of three Judges of the High Court to be constituted by the Chief Election Commissioner, whereas in the case of Mian C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 11 Muhammad Nawaz Sharif declared him disqualified to contest the elections. (v) The mandate of Article 225 of the Constitution has not been appreciated in the context of the instant cases. This Article places a bar to challenge an election dispute except through an election petition under the law i.e. the Representation of Peoples Act, 1976. In exceptional circumstances, however, the qualification or disqualification of a candidate can be challenged under Article 199 of the Constitution provided the order passed during the election process is patently illegal, the law has not provided any remedy either before or after the election; and the alleged disqualification is floating on record requiring no probe and enquiry. In the cases in hand, the issues of unpaid loans, of court contempt and of filing false affidavit were disputed questions of fact which could not have been adjudicated upon in the proceedings under Article 199 of the Constitution and even the material placed before the Court was not sufficient to render the impugned findings. (vi) That the ‘Presidential Pardon’, in the case of Mian Muhammad Nawaz Sharif stood admitted by the Federation of Pakistan through the statement made by the Deputy Attorney General before the High Court, before this Court during the hearing of the main petition and in the instant review petition and even by the learned Attorney General for Pakistan who appeared in these review proceedings. To allege that it was conditional or qualified pardon required deeper probe which exercise entailed factual enquiry. C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 12 Similarly, the questions whether petitioners were hit by Article 63(h) and (l) of the Constitution or by section 99 of the Act could also not have been decided by the High Court or by this Court in writ jurisdiction. The judgments under review therefore are not in accord with the law laid down by this Court in the cases reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), Ghulam Mustafa Jatoi v. Addl. District & Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others (1994 SCMR 1299) and Let. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan (PLD 2008 SC 735 at 763). (vii) That one of the onerous functions of the Supreme Court is to protect the constitution and to sustain democracy. Democracy is not merely holding of periodical elections or of governance by legislative majority. It is a multi- dimensional politico-moral concept epitomizing the abiding values of equality, human dignity, tolerance, enjoyment of fundamental rights and due process of law. Whether it is the issue of denial of a substantive right or of construing a statutory provision, these principles should weigh with the Court. Article 4 of the Constitution is a restraint on the legislative, executive and judicial organs of the State to abide by the rule of law. Abdication of this awesome responsibility by any organ leads to arbitrariness and injustice. These in our estimation are canons of substantive democracy embodied in our Constitution which, inter alia, C.R.P. Nos. 59 and 60 of 2009 C.R.P. Nos. 61 & 62 of 2009 and others 13 we have kept in view while exercising the power of judicial review. 8. For what has been discussed above, Civil Review Petitions No. 59 and 60 of 2009 filed by Mian Muhammad Nawaz Sharif and Civil Review Petitions No. 61 and 62 of 2009 filed by Mian Muhammad Shahbaz Sharif and Criminal Review Petition No. 22 of 2009 filed by Javed Mehmood are allowed and all the remaining civil review petitions and civil miscellaneous applications are being disposed of as not maintainable. Consequently, the judgments of the learned Lahore High Court dated 23.06.2008 (in W.P. Nos. 6468, 6469 and 6470 of 2008) and of this Court under review dated 25.02.2009 (in civil petitions captioned above) are set aside and the orders of the Returning Officer accepting nomination papers of the petitioner Mian Muhammad Nawaz Sharif dated 15.05.2008 and Mian Muhammad Shahbaz Sharif dated 16.05.2008 and the order of the Chief Election Commissioner dated 1.6.2008 are restored. Judge Judge Judge Judge Judge Islamabad. May 26, 2009 Khurram Anis APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN ( Review/Original Jurisdiction ) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MUSHIR ALAM MR. JUSTICE IJAZ-UL-AHSAN C.R.P.49/2016, CRL.O.P.No.186, 193 OF 2016, CMAS.1681/2016, 7575/2016, 8132/2016, 8143/2016, 8144/2016, 8146/2016, 8147/2016, 8148/2016 IN CRP.49/2016 IN CA.184-L/2013 AND CMA. 8177/2016 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Shahid Pervaiz Vs. Ejaz Ahmad and others C.R.P.50/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Manzoor Ahmed and others Vs. RPO Gujranwala and others C.R.P.51/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Jamil Ahmed Vs. RPO Gujranwala and others C.R.P.52/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Malik M. Sarwar Awan etc Vs. Govt. of Punjab and others C.R.P.83/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Awais Malik and others Vs. Ejaz Ahmad and others C.R.P.84/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Mst. Rashida Bashir and another Vs. Regional Police Officer, Gujranwala and another CRP.49/2016 etc 2 C.R.P.85/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Syed Jamat Ali Bokhari and others Vs. Ejaz Ahmed and others C.R.P.89/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Muhammad Nawaz and others Vs. Chief Secy. Govt. of Punjab and others C.R.P.91/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Ghulam Dastgir and others Vs. Ejaz Ahmad and others C.R.P.92/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Muhammad Azam Vs. Ejaz Ahmed and others CRL.R.P.52/2016 IN Crl.O.P.89/2011 (On review from the judgment dated 12-06-2013 passed by this Court in Crl.O.P.89/2013) Awais Malik and others Vs. Chief Secy. Punjab and another CRL.O.P.123/2016 IN CP.1446-L/1997 (Contempt proceedings arising out of order of this Court passed in Civil Petition No.1446-L/1997) Akhtar Umer Hayat Lalayka Vs. Mushtaq Ahmed Sukhaira, IG Punjab, Lahore. CIVIL MSIC. APPLICATION NO.4435/2016 (Application against out of turn promotions in the Province of Punjab) C.R.P.382/2016 IN CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Muhammad Ami Taimoor etc Vs. Province of Punjab and others C.R.P.383/2016 in CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Mahmood-ul-Hassan Rana etc Vs. Province of Punjab and others CRP.49/2016 etc 3 C.R.P.454/2016 in CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Abrar Ahmad Khalil and others Vs. Govt. of Punjab and others CRL.R.P.174/2016 in Crl.O.P.89/2011 (On review from the judgment dated 12-06-2013 passed by this Court in Crl.O.P.89/2013) Ghulam Dastgir and others Vs. Chief Secretary, Govt. of Punjab and others CRL.O.P.186/2016 in CA.184-L/2013 (Contempt proceedings arising out of judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Muhammad Azam Vs. Mushtaq Ahmad Sukhera etc Crl.O.P.193/2016 in Crl.O.P.86/2016 in C.P.1000-L/2005 (Contempt proceedings arising out of the order dated 4.10.2016 passed by this Court in Crl. O.P.86/2016 in C.P.1000-L/2005) Shahid Pervaiz Vs. Mushtaq Ahmed Sukhera, IG Punjab. Lahore. Crl.O.P.195/2016 in CA.184-L/2013 (Contempt proceedings arising out of the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Imtiaz Sarwar Vs. Zahid Saeed, Chief Secretary Punjab and others C.R.P.479/2016 in CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Tahir Sikandar and others Vs. The Inspector General of Police, Punjab and others C.R.P.480/2016 in CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Muhammad Waseem Ijaz Vs. IGP Punjab and others C.R.P.481/2016 in CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Khalid Mehmood Afzal and others Vs. IGP Punjab and others CRP.49/2016 etc 4 C.R.P.482/2016 in CA.184-L/2013 (On review from the judgment dated 26-01-2016 passed by this Court in CA. No.184-L/2013) Malik Muhammad Sabir Vs. IGP Punjab and others Crl.R.P.191/2016 in Crl.O.P.89/2011 (On review from the judgment dated 12-06-2013 passed by this Court in Crl.O.P.89/2013) Shahid Pervaiz, SP Vs. Chief Secretary, Govt. of Punjab etc. Attendance For Federal Govt: : Mr. Ashtar Ausaf, Attorney General for Pakistan Mr. M. Waqar Rana, Addl. Attorney General For Govt. of Pb. : Barrister Khalid Waheed, Asstt. AG Pb. For Govt. of Balochistan : Mr. Ayaz Swati, Addl.AG For Govt. of Sindh : Mr. Shehyar Kazi, Addl. AG Sindh. For Govt. of KPK : Mian Arshad Jan, Addl.AG For ICT: : Mian Abdul Rauf, AG CRP.49/2016, CRP 191/16 and CRP.85/16 : Syed Ali Zafar, ASC Mr. Zahid Nawaz Cheema, ASC Mr. M. Akram Sheikh, Sr. ASC (for Respondent No.6 in CRP.85/16) Crl.R.P.52/16 CRP.83/16 : Kh. Haris Ahmed, Sr. ASC CRP.89/16 : Ms. Asma Jahangir, ASC CRP.92/16, 382-383, 480/16, Crl.O.186/16 : Mr. Hamid Khan, Sr. ASC Mr. M. S. Khattak, AOR CRP.50&52/2016, 454/16, CMA.132/16. : Mr. Talat Farooq Sheikh, ASC Mr. Khalid-Ibn-i-Aziz, ASC CRP.51/2016, : In person. CRP.89/16, 91/16, Crl. RP.174/16, Crl.O.P. 195/16, CRP.479/16 & 84/16, CMA.4435/16 : Nemo. CRP.51/2016 : Jamil Ahmed in person. Crl.O.P.123/16 : Malik M. Qayyum, Sr. ASC Crl.O.P.193/16 : Mr. Rashid A. Rizvi, Sr. ASC. Mr. Qausain Faisal, ASC Syed Rafaqat Hussain Shah, AOR CRP.49/2016 etc 5 CRP.481/16 : Nemo. CRP.482/16 : Mr. S. A. Mahmood Sadozai, ASC Ch. Akhtar Ali, AOR CMA.7575/2016 in CP.49/16 : Nemo. CMA.8177/2016 in CRP.Nil/2016 : Baleegh-uz-Zaman Jawad, ASC CMA.8132, 8146, 8147/16 : Mian Qamar-uz-Zaman, ASC Raja Abdul Ghafoor, AOR CMA.8143- 8144/2016 : Nemo. CMA.8148/16 in CRP.49/16 : Ch. Akhtar Ali, AOR/ASC For the Department : Mr. Kamran Adil, AAIG(Legal) Sajjad Hussain, SP Shaban Mehmood, DSP Legal M Jamshed. SC RPO Office DGK. Mushtaq Hussain, SSP. Date of Hearing : 08-11-2016, 16-11-2016, 29-11-2016, 01-12-2016, 08-12-2016 and 14-12-2016 JUDGMENT AMIR HANI MUSLIM, J. - C.R.P 49/2016 etc Shahid Pervaiz Vs. Ejaz Ahmad and others The facts relevant for the present proceedings are that on 04.03.1984, the Petitioner was appointed as Assistant Sub-Inspector in the Punjab Police, promoted as Sub-Inspector on 05.07.1987 and then as Inspector on 05.03.1990. In the year 1996, while he was posted as S.H.O Hanjarwal, the Petitioner participated in an operation for the arrest of notorious outlaws Mujahid @ Musa and others, who were involved in the murder case of deceased Mureeb Abbas Yazdani. The accused were alleged CRP.49/2016 etc 6 to have started indiscriminate firing at the time of Fajar Prayer in Masjid Alkhair at Multan which resulted in the murder of many people and injuries to others. 2. It is pleaded that as a corollary of this gallantry performance, the Police party which carried out the operation was recommended for accelerated promotion by the D.I.G, vide letter dated 30.11.1996, under Section 8-A of the Punjab Civil Servants Act, 1974. The Petitioner was recommended for promotion as DSP. It is claimed that the committee formed under Section 8-A read with Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, recommended out of turn promotion of all the members of the raiding team including the Petitioner. It is further claimed that all the members of the Police Party were promoted out of turn except the Petitioner. It has been further pleaded that the Petitioner approached the Lahore High Court, by filing Writ Petition No.28879 of 1997, with the prayer that he may also be given out of turn promotion like the other members of the raiding party. 3. The Writ Petition No.28879/1997 of the Petitioner was clubbed with an identical Writ Petition No.8147 of 1998, which were allowed and the learned High Court directed the Respondent-Department to grant one step out of turn promotion to the Petitioner. However, the Department did not accept the decision of the High Court and approached this Court through Civil Appeal No.259-L of 2000, which was dismissed on the ground of limitation. It is pleaded that on dismissal of Appeal of the Government on the ground of limitation, the relevant committee was formed under Section 8-A read with Rule 14-A, which also recommended out of turn promotion of the Petitioner CRP.49/2016 etc 7 and he was granted one step out of turn promotion as DSP, vide Notification dated 24.05.2001, with a rider that the Petitioner would be allowed to wear the rank of Deputy Superintendent of Police subject to the condition that his substantive promotion would be allowed in the course after his seniors get promotion. 4. It is further pleaded that against the above condition, the Petitioner filed another Writ Petition before the Lahore High Court, which was allowed and it was directed that a civil servant is entitled to promotion from the date he performed his duties as recognized by Section 8-A, therefore, the condition incorporated in the Notification dated 24.05.2001 was violative of Section 8-A. The Department filed Civil Petition for Leave to Appeal before this Court, which was dismissed. 5. After dismissal of the Petition of the Department by this Court, the Petitioner made a representation to the Government and accordingly he was given out of turn promotion, vide Notification dated 16.08.2007, with effect from 24.10.1996. 6. It was in the year 2013, that this Court in its judgment reported as Contempt Proceedings against Chief Secretary, Government of Sindh (2013 SCMR 1752), declared the practice/concept of out of turn promotions as unconstitutional and against the fundamental rights of the individuals. 7. It is pertinent to mention here that after the above-judgment, the aggrieved persons filed Review Petitions directly which were also dismissed by this Court vide judgment reported as Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456). It is also worthwhile to mention here that both CRP.49/2016 etc 8 the aforesaid judgments were ordered to be sent to the Chief Secretaries of the Provinces as well as the Secretary, Establishment Division, with the direction to streamline the civil structure in conformity with the principles enunciated in the aforesaid judgments. 8. The present proceedings emanate from an order of this Court, which was passed on 26.01.2016 in Civil Appeal No.184-L of 2013, wherein this Court has ordered as under:- We expect that all out of turn promotions granted either to the police personnel on gallantry award or otherwise shall be undone within four weeks from today and their seniority be re-fixed with their batch mates in terms of the directions contained in the aforesaid judgments. Out of turn promotions ranging from constable to any gazette officers shall be streamlined in terms of the aforesaid two judgments. On completion of the exercise, the I.G Police Punjab, Home Secretary, Punjab and Chief Secretary, Punjab, shall submit compliance report with the Assistant Registrar of the Court for our perusal in chambers. This order shall be communicated to the I.G, Punjab, Home, Secretary, Punjab and Chief Secretary, Punjab, for their information and compliance and non- compliance of this judgment shall expose the concerned officials to contempt proceedings. 9. After the passage of this Order, the Petitioner was relegated to the post of DSP, by applying the principles of the aforesaid judgments. It is against this order that the Petitioner alongwith others has directly approached this Court through Civil Miscellaneous Applications, which came up for hearing on 22.02.2016 and were ordered to be registered as a Review Petition. CRP.49/2016 etc 9 Civil Review Petition No.51 of 2016 in C.A.No.184-L/13. 10. In this Review Petition, it has been pleaded that the Petitioner was appointed as Assistant Sub-Inspector in the year 1998, following which he had earned a reputation of being a dedicated and fearless Police Officer. Being instrumental in causing arrest of wanted terrorists, he was granted out of turn promotion in the year 1991 as Sub-Inspector and then out of turn promotion as Inspector in the year 1998, under Section 8-A of the Punjab Civil Servants Act, 1974. It has been further pleaded that even in the year 1999, the Petitioner was recommended for out of turn promotion as DSP, which recommendation was not considered, therefore, he filed numerous writ petitions and contempt applications before the Lahore High Court and eventually he was promoted as DSP on 20.09.2010. 11. It has been pleaded that after an observation made by this Court on 26.01.2016, in the case of Civil Appeal No.184-L of 2013, the Petitioner is relegated to the post of A.S.I. Civil Review Petition No.52 of 2016 in C.A.No.184-L/13. 12. It has been pleaded that the Petitioner was appointed as Assistant Sub-Inspector in the year 1998 and was promoted as officiating Sub-Inspector in the year 1990. Later, he was granted one step out of turn promotion as Inspector under Section 8-A of the Punjab Civil Servants Act, 1974 read with Rule 14-A, which was not implemented, therefore, the Petitioner filed Writ Petition No.8147 of 1998, which was allowed, by judgment dated 22.06.1996. However, the Department challenged the judgment of the learned High Court before this Court through Civil Petition No.226-L of 2000, which was dismissed, vide judgment dated 26.04.2000. In the intervening period, the CRP.49/2016 etc 10 Petitioner was promoted as DSP and S.P. More or less the case of the other Respondents is identical to that of the Petitioner. Civil Review Petition No.83 of 2016 in C.A.No.184-L/2013. 13. It has been pleaded in this Petition that on 22.06.1982, the Petitioner joined the Police Department as Assistant Sub-Inspector and was promoted as Sub-Inspector on 29.06.1987. On 16.11.1995, he was further promoted to the rank of Inspector. On 18.01.1997, the Petitioner suffered injuries in a bomb blast which took place in the premises of the Sessions Court, in which the Chief of a banned outfit and fifteen officers lost their lives. It is pleaded that in view of his excellent performance, the Petitioner was recommended for out of turn promotion as DSP, by the Inspector General of Police, Punjab, under Section 8-A of the Punjab Civil Servants Act, 1974, read with Rule 14-A, which recommendation was not executed, therefore, the Petitioner filed Writ Petition before the Lahore High Court. The learned High Court disposed of the Writ Petition of the Petitioner with the direction to issue formal notification of promotion of the Petitioner as DSP. Thereafter, the Department filed two Civil Petitions No.443 and 584-L of 2001 before this Court, which was dismissed on the ground of limitation. After dismissal of the Petitions of the Department by this Court, the Petitioner made a representation to the Home Secretary, Punjab, and eventually he was given out of turn promotion as DSP, vide notification dated 27.06.2008, w.e.f. 18.01.1997 i.e the date of incident. The case of the other Petitioners is almost identical to that of the Petitioner. CRP.49/2016 etc 11 Crl. Original Petition No.123 of 2016 in C.P.No.1446-L/1997. 14. The Petitioner joined the Punjab Police as Inspector in the year 1989. While posted as S.H.O Piplan, District Mianwali, he eliminated a proclaimed offender namely Ahmad Nawaz @ Barbari, a fugitive from law since 1979, who was wanted in more than twenty murder and harabba cases. The Petitioner was recommended for out of turn promotion under Section 8- A read with Rule 14-A, but this recommendation for his out of turn promotion was not implemented, therefore, he filed Constitution Petition No.2445 of 1995 before the Lahore High Court, with a prayer to grant him out of turn promotion as DSP, which was allowed. The Department filed Civil Petition for Leave to Appeal No.1446 of 1997 before this Court, which was dismissed, vide order dated 18.04.1998. It has been pleaded that the Government of Punjab in compliance with the judgment of the Lahore High Court, promoted the Petitioner as DSP vide Notification dated 17.10.1997, effective from 08.05.1993. In the interregnum, the Petitioner rose to the rank of Deputy Inspector General of Police. However, in view of the observations made, on 26.01.2016, by this Court in Civil Appeal No.184-L of 2013, the out of turn promotion granted to the Petitioner as DSP, vide Notification dated 17.10.1997, has been revoked. 15. More or less, the case of all the other Petitioners/Applicants is almost identical to that of the Petitioners whose cases have been given in detail above. 16. Syed Ali Zafar, learned ASC, Counsel for the Petitioner in Civil Review Petition No.49 & 85 of 2016, has contended that on 08.11.1987, Section 8-A was inserted in the Punjab Civil Servants Act, 1974, to grant out CRP.49/2016 etc 12 of turn promotion to a civil servant who provenly exhibits exemplary intellectual, moral and financial integrity and high standard of honesty and gives extraordinary performance in the discharge of his duties, and was omitted on 17.10.2006. He submits that this Section was regulated by Rule 14-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. He next contended that out of turn promotions under the said section were declared to have been made lawfully by this Court. In support of his contention to establish that this Court, in different cases, directed the competent authority to implement the orders passed under Section 8-A of the Act, he has relied on the cases of Capt. (Retd). Abdul Qayyum vs. Muhammad Iqbal (PLD 1992 SC 184), Government of Punjab vs. Shamsher Ali Khan, Additional Commissioner Multan (1992 SCMR 1388), Chief Secretary, Government of Punjab vs. Mumtaz Ahmed (1996 SCMR 1945), Abdul Ghaffar vs. Deputy Inspector General (1997 PLC (CS) 1150), Government of Punjab vs. Muhammad Iqbal (1997 SCMR 1429), I.G Police Lahore vs. Qayyum Nawaz Khan (1999 SCMR 1594) Javed Hussain Shah vs. Government of the Punjab (2005 PLD (CS) 974) and Sardar Zafar Iqbal Dogar vs. Secretary of the Government of the Punjab, Home Department (2006 PLC (CS) 164). 17. He then referred to the case of Muhammad Nadeem Arif vs. I.G of Police (2011 SCMR 408), wherein this Court has observed that the concept of out of turn promotion is against the Constitution as well as the injunctions of Islam. He submits that the view taken by this Court in the case of Muhammad Nadeem Arif (supra) was an obiter dicta, as in this case, the vires of Section 8-A were not challenged and only the orders/instructions passed by CRP.49/2016 etc 13 the I.G.P were set-aside. The view taken in this Judgment was followed in another case reported as Ghulam Shabbir vs. Muhammad Munir Abbasi (PLD 2011 SC 516). 18. He has further contended that the language of Section 9-A of Sindh Civil Servants Act, which has been interpreted by this Court in the case of Contempt proceedings against Chief Secretary, Sindh (2013 SCMR 1752), was distinct from Section 8-A of the Punjab Civil Servants Act. He contended that the Section 8-A was regulated by the Rule 14-A, whereas in Sindh no rules were framed to regulate out of turn promotions under Section 9-A, which was inserted on 21.02.2002. He further submitted that for a short period of three months starting from 10.02.2005 to 11.05.2005, Rule 8-B was inserted in the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, to regulate the provisions of Section 9-A. On 31.03.2009, the High Court of Sindh in C.P 1595/2005 had declared the out of turn promotions as unlawful and directed to re-examine them by a Committee. Consequently, Appeals arising out of said judgment came up for hearing before this Court and were dismissed as withdrawn. Thereafter six (06) validating laws were promulgated which had been examined on the touchstone of constitutional provisions by this Court and declared unconstitutional in the case of Contempt Proceedings against Chief Secretary Sindh (2013 SCMR 1752) and then in review Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456). 19. He next contended that this Court did not strike down the whole Section 9-A in its entirety, but only declared the out of turn promotions to be unconstitutional, however, the award/reward conferred under this Section were kept intact. CRP.49/2016 etc 14 20. The learned ASC has further submitted that this Court on 26.01.2016, while disposing of Civil Appeal No.184-L of 2013, has observed that the judgments of this Court referred to hereinabove were not being followed in letter and spirit in the other provinces. Therefore, he has now filed review against the said part of the order. 21. He next contended that Section 8-A of the Punjab Civil Servants Act, 1974, had not been set-aside by any of the judgments of this Court, although Section 9-A of the Sindh Civil Servants Act, 1973, which was pari- materia, had been declared unconstitutional. Moreover, in C.R.P 49/2016, the Petitioner Shahid Pervaiz, who joined service on 04.03.1984, was promoted on grounds of having judgments of this Court in his favour. He has contended that now the question would be whether the declaratory judgments of this Court would have any binding effect on the case of the Petitioner on basis of the principle of res judicata. 22. He further submitted that a statute could only be declared as non- est, if the legislature is not competent to legislate that law. He submitted that law becomes unenforceable so long as a conflict exists with a fundamental right and if the fundamental right is for some reasons or the other disappears, the law becomes operative again on the basis of doctrine of eclipse. In this regard, he referred to the cases of The Province of East Pakistan vs. MD. Mehdi Ali Khan (PLD 1959 SC 387) and Abul A’ la Maudoodi vs. Government of West Pakistan (PLD 1964 SC 673) and State of Gujrat vs Shri Ambica Mills Ltd. (AIR 1974 SC 1300). CRP.49/2016 etc 15 23. He has further contended that the effect of a judgment which declares a law to be unconstitutional will have to be examined on pending cases as well as on future cases. He has contended that even if a Court declares a law to be unconstitutional, it does not affect the past and closed transactions and the cases wherein vested rights have been created. In support of his contention, he has relied on the cases of Muhammad Yousaf vs. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 101),Nabi Ahmed vs. Home Secretary, Government of West Pakistan, Lahore(PLD 1969 SC 599, Income-tax Officer, Central Circle II, Karachi vs. Cement Agencies Ltd (PLD 1969 SC 322), Miss Asma Jilani vs. Government of the Punjab (PLD 1972 SC 139), Al-Jehad Trust vs. Federation of Pakistan (PLD 1996 SC 324), Asad Ali vs. Federation of Pakistan, (PLD 1998 SC 161) Jamat -I - Islami Pakistan vs. Federation of Pakistan (PLD 2000 SC 111), Muhammad Mubeen-us-Salam and others vs. Federation of Pakistan through Secretary, Ministry of Defence (PLD 2006 SC 602), Begum Nusrat Ali Gonda v. Federation of Pakistan (PLD 2013 SC 829), Pakistan, through the Secretary, Ministry of Finance vs Muhammad Himayatullah Farukhi (PLD 1969 SC 407), Mehram Ali vs Federation of Pakistan (PLD 1998 SC 1445), Liaqat Hussain vs Federation of Pakistan (PLD 1999 SC 504),Zafar Ali Shah vs Pervez Musharraf Chief Executive of Pakistan (PLD 2000 SC 869), Attiyya Bibi Khan vs Federation of Pakistan (2001 SCMR 1161), Hussain Badshah vs Akhtar Zaman (2006 SCMR 1163), Muhammad Idrees vs Agricultural Development Bank of Pakistan (PLD 2007 SC 681), Imran vs Presiding Officer, Punjab Special Court (PLD 1996 Lahore 542), Chenab Cement Products vs Banking Tribunal (PLD 1996 Lahore 672), CRP.49/2016 etc 16 Muhammad Aslam vs Muhammad Hayat (PLD 1998 SC 165), Coromandel Fertilizers Ltd. Vs. CTO (1992(1) ALT 327), Collector of Customs & Central Excise Vs. Oriental Timber Industries. (1985 SCR(3) 475), Union of India Vs. Godfrey Philips (1985 SCR Supl.(3) 123), West Bemgal Hosiery Association vs. State of Bihar (1998 71 STC 298 (CS)), Video Electronics Pvt. Ltd vs. State of Rajasthan (1998 71 STC 304 (SC)), Hi-Beam Electronics Pvt. Ltd. Vs. State of Andhra Pradesh (1998 71 STC 305 (SC)), Besta Electronics Pvt Ltd. Vs. State of Madhya Pradesh (1998 71 STC 307 (SC)), Indian Cement Case (1998 69 STC 305 (SC)), Blue Star Limited vs. State of Andhra Pradesh (1990 78 STC 48),Brindavan Roller Floor Mills (ILR 1994 KAR 2196) and the cases of Govindaraju Chetty (1968 22 STC 46), Kil Kotagiri Tea Coffee (1988 174 ITR 579 (KER), Suresh Babu (res-judicata) (ILR 1998 KAR 3885), DP Sharma Case (ILR 1987 KAR 3255), Gokaraju Case (1995 Supp 1 SC 271), Avatar Sindh Case (AIR 1979 SC 1991), Upendra Nath vs. Lal (AIR 1945 PC 222), I.C. Golak Nath case (AIR 1967 1643), Coromandel Fertilizers Ltd Vs. Dy. Commissioner of Income-Tax (1992 (1) ALT 327), Brindavan Roller Flour Mills Pvt. Ltd. Vs. Joint Commissioner of Commercial Taxes (ILR 1994 KAR 2196), Managing Director, ECIL, Hyderabad Vs. B. Karunakar (AIR 1994 SC 1074), Superintendent & Legal Vs. Corporation of Calcutta (AIR 1967 SC 997), D. P. Sharma Vs. State Transport Authority. (ILR 1987 KAR 3255), Beddington Vs. British Transport Police (1998) 2 AC 143), Kleinwort Benson Ltd Vs. Lincoln City Council (1998) 3 WLR 1095), Hislop Vs. Canada (2007) 1 SCR 429), Murphy and Murphy vs. The Attorney General (1982) 1 I.R.). CRP.49/2016 etc 17 24. He contends that where rights were created under or in pursuance of a judgment rendered which attained finality irrespective of the fact that the Courts have declared such law to be void in a later judgment, does not open the issue resolved in a past and closed transaction on the principle of res- judicata. In this behalf, he relied on the cases of Mir Afzal and others vs. Qalandar and others (PLD 1976 AJ&K 26), Ch. Rehmat Ali vs. Haji Jan Muhammad (1983 SCMR 1109), Atiq-ur-Rehman vs. Muhammad Ibrahim (1984 SCMR 1469, Noor Muhammad vs. Muhammad Iqbal Khan (1985 CLC 1280), Mst. Amina Bai vs. Karachi Municipal Corporation (1985 CLC 1979), Pir Baksh vs. The Chairman, Allotment Committee (PLD 1987 SC 145), Kohinoor Sugar Mills Lt vs. Pakistan (1989 SCMR 2044), Muhammad Anwar vs. M/s Associated Trading Co. Ltd. (1989 MLD 4750), Kharati and others vs. Muhammad Ibrahim (1989 CLC 894), Shahzad Hussain vs. Hajra Bibi (PLD 1990 Lahore 222), Nazam Din vs. Deputy Settlement Commissioner (1990 SCMR 239), Engineer-in-Chief Branch vs. Lalaluddin (PLD 1992 SC 207), Feroze Din vs. Administrator (1992 CLC 2430), Khadim Hussain vs. Govt. of Punjab (1993 SCMR 1869), Rahat Mehmood vs. Tariq Rasheed (PLD 1993 Kar. 648), Malik Gul Hassan and Co. vs. Federation of Pakistan (1995 CLC 1662), Muhammad Younis vs. Province of Punjab (1995 CLC 1834), Messrs Tank Steel and Re-Rolling Mills Pvt Ltd Dera Ismail Khan vs. The Federation of Pakistan (PLD 1996 SC 77), Muhammad Sohail vs. Govt. of NWFP (1996 SCMR 218), Muhammad Naqi vs. Mst. Rasheeda Begum (1997 MLD 900), Shah Zareen Khan vs. Sada Gul (1997 MLD 903), Nazir Ahmad Vs. Abdullah (1997 SCMR 2881), Amanul Mulk vs. Ghafoor-ur-Rehman (1997 SCMR 1796), Muhammad Ali Naqvi CRP.49/2016 etc 18 vs. Sindh Employees Social Security (1999 PLC (CS) 893), Quetta Textile Mills Limited, Nadir House, Karachi. vs. Pakistan (2000 YLR 2683), Allah Dawaya vs. Additional District Judge (2002 SCMR 1183), Rukhsana Tabassum vs. Kazim Imam Jan (2003 CLC 189 Kar), Hameeda Shamim vs. Deputy Commissionr, Karachi (2003 CLC 53 Kar), Ch. Riaz Ahmad vs. Punjab Text Book Board, Lahore (2004 PLC (CS) 1243), Mustafa Kamal vs. Daud Khan (PLD 2004 SC 178), Mst. Bashiran Bibi vs. State Life Insurance Corporation of Pakistan (2004 CLC 1392), Ghulam Hassan vs. Munawar Hussain (2005 CLC 773), Muhammad Saleem vs. Additional District Judge, Gujranwala (PLD 2005 SC 511), Messrs Gadoon Textile Mills vs. Chairman, Area Electricity Board, WAPDA, Peshawar (PLD 2005 SC 430), Ch. Riaz Ahmad vs. Punjab Text Book Board (2006 SCMR 867), Nasir Khan vs. Province of Punjab (2006 YLR 87), District Coordination Officer Pakistan (2006 MLD 1), Ms. Mumtaz Maqsood vs. Secretary, Revenue Division and others (2010 YLR 1869), Aftab Ahmad vs. Muhammad Riaz (2010 MLD 240), Trustees of the Port of Karachi vs. Karachi International Container Terminal Ltd (2010 CLC 1666), Dr. Hassan Bux Rind vs. Province of Sindh (2010 PLC (CS) 228), Syed Ghazanffar Hussain vs. Nooruddin (2011 CLC 1303), Sanaullah vs. Mst. Naseem Begum (2012 MLD 1675), Punoo Khan vs. Mst. Iqbal Begum (2012 MLD 1678), Ghulam Akbar Lang vs. Dewan Ashiq Hussain Bukhari (2012 SCMR 366), Abdul Rauf Khan vs. Muhammad Hanif (2013 CLC 219), Arshad Ali vs. Muhammad Tufail (2013 CLC 632), Zakir Ullah vs. Muhammad Reham (2014 CLC 1026), Ch. Muhammad Siddique vs. Executive Engineer Electricity Department AJ &K Bhimber (2015 CLC 60), B.C. International (Pvt) Ltd vs. Tahfeen Qayyum (2015 MLD 1347), Jamia CRP.49/2016 etc 19 Masjid Habiba vs. Dhoraji Cooperative Housing Society (PLD 2015 Sindh 39), Muhammad Nadeem Vs. Government of Balochistan (2015 PLC (CS) 1143), Upendra Nath vs. Lal (AIR 1940 PC 222), Satyadhyan Ghosal and others vs. Sm Deorajin Debi and another (AIR 1940 SC 941), Badri Narayan Singh vs. Kamdeo Prasad Singh (AIR 1962 SC 338), Amalgamated Goalfields Ltd and another Janapada Sbha Chhindwara and others (AIR 1964 SC 1013), Sheodan Sindh vs. Daryao Kunwar (AIR 1966 SC 1332), Virudhunagar Steel Rolling Mills Ltd vs. Government of Madras (AIR 1968 SC 1196), Ramagya Prasad Gupta vs. Murli Prasad (AIR 1974 SC 1320), State of Uttar Pradesh vs. Nawab Hussain (1977 SC 1680), Muhammad Mustafa vs. Mansoor and others (AIR 1977 Allahabad 239), Avtar Sindh and others vs. Jagjit Singh and another (AIR 1979 SC 1911), Rangarao vs. Kamalakant (1995 Supp (1) SCC 271), Suresh Babu vs. Smt. S. Susheela Thimmegowda (ILR 1998 KAR 3885), R. vs. Sarson [1996] 2 RCS, Canada (Attorney General) vs. Hislop [2007] 1 SCR 429, Harper vs. Virginia Department of Taxation (509 US 86 (1993), Norton vs. Shelby County 118 US 425 (1886), R vs. Kirby (1957 95 CLR 529), Boddington vs. British Transport Police (1998 2 AC 143), Regina vs. Governor of Her Majesty’s Prison Brockhill, (2000) 3 WLR 843,Murphy vs. Murphy(Attorney General) (1982 IR 241), Thomson vs. St. Cateherine’s College Cambridge, Henerson vs. Folkeston Waterworks Co., R vs. Unger (1997 2 NSWLR 990). 25. He further contended that people want certainty in their daily life issues, so that they can regulate their life, therefore, law should only be revisited in exceptional circumstances, and that although this Court has the power to do so, but such power must be exercised sparingly. He, in support of CRP.49/2016 etc 20 his submission, has relied upon the case of Nabi Ahmed vs. Home Secretary, Government of West Pakistan, Lahore ( PLD 1969 SC 599) on the issue of retrospective effect of judgments. 26. He next contended that in a number of judgments, this Court has held that even if a law is declared unconstitutional, the benefits accrued there- under would be protected on the basis of the principle of res judicata, therefore, rights created under or in pursuance of judgments rendered which have attained finality, would not open past and closed transactions. He submits that the binding decisions could not be re-opened and the past could not be erased by a judgment of the Court. Justice demands prospective over- ruling. 27. Mr Talat Farooq Shaikh, learned ASC, appeared in C.R.P 50 & 52/2016 and adopted the arguments of Syed Ali Zafar, ASC and submitted that except the Petitioner No. 6, Naveed, who was given anti-dated promotion, all other Petitioners were promoted out of turn. 28. Mr. Talat Farooq Shaikh, learned ASC for the Petitioners in C.R.P.No.454 of 2016, has filed written arguments contending that the promotions were granted to the Petitioners in pursuance of the Court orders; moreover, the seniority of the Petitioners has been disturbed without any legal justification, considering it out of turn promotion though they were never granted any out of turn promotion. He also contended that the Department has itself issued a list dated 17.06.2016, of the Superintendents of Police, who were granted out of turn promotion, but the names of the Petitioners do not figure therein. It was next submitted that the list of SPs, who were not CRP.49/2016 etc 21 promoted out of turn was also issued and the names of the Petitioners appeared at Sl. No.20, 23 and 24 of the list, hence the order of withdrawal of promotion dated 26.9.2016, was without any lawful authority, because the Petitioners were regularly promoted by orders of the Courts in accordance with Punjab Civil Servants Act and the Rules. The learned Counsel has also adopted the arguments of Syed Ali Zafar, learned Sr. ASC in addition to his own submissions. 29. Khawaja Haris Ahmed, learned Sr.ASC, appeared in C.R.P 83/2016 and Crl.R.P 52/2016 and has contended that in both the judgments i.e Contempt proceedings (Supra) and Ali Azhar Khan Baloch (Supra), the Petitioners were not party. He submits that Section 8-A of the Punjab Civil Servants Act, 1974, came into existence in the year 1987 in the province of Punjab and its vires were neither challenged nor examined by this Court in any of the judgments. He submitted that he does not challenge the findings recorded in the judgment of Contempt Proceedings (Supra). He next contended that Section 8-A of the Act was regulated by the Rule 14-A, whereas in Sindh, there was no rule to regulate Section 9-A that provided for out of turn promotion, therefore, the judgments given in peculiar facts and circumstances were not applicable to the other provinces. According to the learned Counsel, Section 9-A of the Sindh Civil Servants Act in Sindh stood alone but Section 8-A was to be regulated through the rules so they were not pari materia. Rule 14-A (ibid) had structured the discretion of the competent authority. 30. He then pointed out that even no notice was ever issued to the Advocates General of the other provinces in terms of Order XXVII-A of the CRP.49/2016 etc 22 Code of Civil Procedure, 1908, and without notice, the application of the aforesaid judgments could not be extended to the other provinces. 31. On this objection of the learned Counsel, the Court has passed the following order:- M/s Syed Ali Zafar and Talat Farooq Sheikh, learned ASCs, have made their submissions on behalf of their respective review petitioners represented by them in C. R. Ps. No. 49, 50 & 52/2016. 2. During the submissions Kh. Haris Ahmed, learned Sr. ASC for the review petitioners in C. R. P. No. 83/2016 & Crl. R. P. No. 52/2016, has raised objection with reference to notice under Order XXVII-A CPC. We deem it appropriate that before proceeding further with these connected review petitions, let notice of these proceedings be issued to the learned Advocate Generals of all the four Provinces, learned Advocate General for Islamabad Capital Territory and also to learned Attorney General for Pakistan to render assistance on the constitutional points involved in these petitions. Re-list on 16.11.2016. 3. C. M. As. No. 4240, 6936 & 7261/2016 and Crl. M. A. No. 338/2016: All these applications for grant of permission to file review petitions and to argue the same are allowed subject to all just exceptions, therefore, all such review petitions be assigned proper numbers and be put up in Court on the next date of hearing. 32. Khawaja Haris Ahmed, the learned Sr.ASC, has contended that the application of judgments of this Court reported as Contempt Proceedings Against Chief Secretary (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), could not be extended to the other Provinces, particularly the Province of Punjab. He submits that he has sought, inter alia, the review of paragraph 183 of the judgment reported as 2013 SCMR 1752, wherein a direction was given to all the Chief Secretaries of the CRP.49/2016 etc 23 Provinces including the Secretary, Establishment Division, Government of Pakistan, to streamline the service structure of civil servants in line with the principles laid down in the said judgment whereby the term ‘out of turn promotion’ was declared against the spirit of the Constitution as well as the injunctions of Islam. 33. He next contended that the provisions of Section 8A of the Punjab Civil Servants Act, 1974, relating to the out of turn promotion were neither examined nor considered by this Court while concluding the aforesaid judgment to make the principles enunciated therein applicable to the other provinces and the Federal Government. He submitted that such a direction contained in paragraph 183 of the judgment is violative of Article 10A of the Constitution, which protects the civil rights and obligations of the citizens in granting them a fair trial and due process. The Civil Servants of the Punjab were not given the opportunity of hearing before reaching such a conclusion by this Court, therefore, the findings recorded on the issue of ‘out of turn promotion’ contained in the aforesaid judgment could not be made applicable to the Province of Punjab. 34. While formulating his arguments, he further submitted that the circumstances prevalent in the Province of Sindh were distinct, which perhaps has influenced the Court to reach such a conclusion whereas in Punjab the provisions of Section 8-A were regulated by Rule 14-A of the (Appointment and Conditions of Services) Rules, 1974, therefore, grant of out of turn promotion to the Petitioners, in any way, could be set at naught. He attempted to make a distinction between the provisions of out of turn promotion in Section 9-A of Sindh Civil Servants Act and Section 8-A of Punjab Civil CRP.49/2016 etc 24 Servants Act. He stated that in Punjab statute, the discretion conferred under Section 8-A was structured and regulated by Rule 14-A, however, in the Sindh Civil Servants Act no Rule was enacted to regulate the provision of ‘out of turn promotion’, except for a limited period of three months. Therefore, the facts as well as the law of the province of Punjab were not pari materia with the province of Sindh which was declared un-constitutional. 35. He next contended that the aforesaid judgment did not take notice of some of the provisions of the Constitution, which have direct bearing on the findings recorded by this Court. In this connection, he has referred to Article 27(1) of the Constitution, which envisages that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the grounds of only of race, religion, caste, sex, residence or place of birth. He submitted that Article 27(1) is an exception to Article 25 of the Constitution. According to him, Article 27(1) has direct nexus to the discrimination in service and ought to have been considered while passing the judgment in review. 36. He further contended that Article 8(3)(a) of the Constitution, excludes the application of any law relating to the members of the Armed Forces or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them, was overlooked while recording findings on the issue of out of turn promotion. He submits that Section 8-A or Section 9-A of both the Provinces were police specific and are covered by the exclusion clause of Article 8(3)(a) of the Constitution. CRP.49/2016 etc 25 37. He next referred to the provision of Section 6 of the General Clauses Act and submitted that Section 8-A of the Punjab Civil Servants Act was omitted and has the same effect as that of repeal of a statute. In support of his contention, he has relied upon the cases of Muhammad Tariq Badr vs. National Bank of Pakistan (2013 SCMR 314), Dr. Mukhtar Ahmed Shah vs. Government of Punjab (PLD 2002 SC 757). He concluded that the effect of repeal of a provision of law is very much clear, which means that a law ceases to have effect but, by no means, it can be said to have undone the prior acts effectuated by that provision of law. 38. On the point of cut of date, he contended that in the province of Punjab, it would be the date when Section 8-A of the Punjab Civil Servants Act was omitted which is 17.10.2006, and not the date when it was inserted in the Punjab Civil Servants Act. 39. Khawaja Haris Ahmad, Sr. ASC argued that the judgment of this Court in the case of Contempt proceedings against Chief Secretary Sindh (2013 SCMR 1752) was rendered, keeping in view the peculiar facts as well as the law in the province of Sindh and the application of the same could not be extended to the other provinces, particularly the province of Punjab. 40. He next contended that the out of turn promotions under Section 8-A were never held to be unconstitutional during its life time and the out of turn promotions made under this Section were protected by this Court through various judgments. Moreover, the views of the Courts kept on changing by the afflux of time. Military Courts which were not considered Constitutional at one time have been validated by this Court established through amendment CRP.49/2016 etc 26 in the Constitution. In support of his contentions, he has relied upon the judgments of this Court, which according to him, declared out of turn promotions as lawful Government of Punjab vs. Shamsher Ali (1992 SCMR 1388), Abdul Qayyum vs. Muhammad Iqbal Khokhar (PLD 1992 SC 184), Government of Punjab vs. Raja Muhammad Iqbal (1993 SCMR 1814), Chief Secretary Government of Punjab vs. Raja Mumtaz Ahmed (1996 SCMR 1945), Government of Punjab vs. Muhammad Iqbal (1997 SCMR 1428), Inspector General of Police vs. Qayyum Nawaz Khan (1999 SCMR 1594), Muhammad Gulshan Khan vs. Secretary Establishment Division (PLD 2003 SC 102), Province of Punjab vs. Javed Hussain Shah, Inspector General of Police vs. Muhammad Iqbal (2007 SCMR 1864). 41. He further submitted that later on the trend changed and the out of turn promotions were questioned, however, the law was never struck down. He referred to the case of Farhat Abbas vs Inspector General (2009 SCMR 245), wherein it was observed that performance of duty with due diligence and efficiently deserves due appreciation but it cannot be over appreciated out of proportion so as to make out case a grievance to the other employees in service of the department. In the case of Muhammad Nadeem Arif vs. Inspector General of Police (2011 SCMR 408) this Court observed that rules should be framed to regulate the out of turn promotion to save the agony of the police officials/officers as well as to save the public exchequer from unnecessary litigation. He also referred to the cases of Government of Punjab vs. Sardar Zafar Iqbal Dogar (2011 SCMR 1239), Ghulam Shabbir vs. Muhammad Munir Abbasi (2011 PLC (CS) 763), Muhammad Fahim Soomro vs. Waqar Ahmed Qadri (2012 SCMR 680) to substantiate that the law on the CRP.49/2016 etc 27 point was never struck down despite observing it unconstitutional and against the injunctions of Islam. This was only done so in the case of Contempt proceedings against Chief Secretary Sindh (2013 SCMR 1752) on 12.06.2013. 42. Mr Mohammad Akram Sheikh, learned Sr.ASC, appeared for the Petitioner No.6 in C.R.P.No.85 of 2016 and contended that notice in terms of Order XXVII-A CPC was not issued to the Advocate General, Punjab and subsequent issuance of this notice would not cure this inherent defect. Therefore, the judgment under review was per incurim. In this behalf he relied on the case of Federation of Pakistan vs. Aftab Ahmed Khan Sherpao (PLD 1992 SC 723). 43. He next contended that though the principle of stare decisis does not apply to this Court, but the rights and benefits accrued to the individuals through earlier judgments would remain protected. He referred to the case of Pir Baksh vs. The Chairman Allotment Committee (PLD 1987 SC 145). 44. He further contended that the bar envisaged in Article 8(3) (a) would apply to the law relating to the police and such law is exempted from the scrutiny of this Court, as the police force has been dealt with differently as compared to the other civil servants. He referred to the cases of Inspector General of Police vs Mushtaq Ahmed Warriach (PLD 1985 SC 159) and Lt. Col. Anwar Aziz vs. Federation of Pakistan (PLD 2001 SC 549). 45. He next contended that the case of the Petitioner falls within the ambit of term “past and closed transaction” and rights accrued in favour of the Petitioner could not be taken away by change of law unless specifically CRP.49/2016 etc 28 declared to be applied retrospectively. He referred to the case of Quetta Textile Mills reported in 2000 YLR 2683. 46. He submitted that in paragraph 183 of the judgment reported as (2013 SCMR 1752), the Chief Secretary of the Government of Sindh was directed to implement the judgment whereas the Chief Secretaries of the other provinces and the Secretary, Establishment Division, Government of Pakistan, were directed to streamline the service structure in line with the principles laid down in the said judgment. He submitted that there was no direction to the other provinces and the Federation to implement the said judgment retrospectively, therefore, the Punjab Government should not have implemented the judgment. 47. He then contended that the concept of out of turn promotion is not against the injunction of Islam and the Federal Shariat Court is expressly empowered by the Constitution in this behalf to consider the validity of the law on the touchstone of the injunctions of Islam. He in this behalf placed before this Court an extract from the book titled Seerat Encyclopedia, Volume 10 which reads as under: - CRP.49/2016 etc 29 48. He submitted that picking best of the best is prerogative of the Commander of a Force. Moreover, all the powers are scared trust whether it be executive, legislative or judicial, therefore, heavy duty lies on the shoulders of the Hon’ble Judges of this Court to discharge their duty. In the present case the out of the turn promotion of the Petitioner was declared to be lawful up to CRP.49/2016 etc 30 this Court and now after so many years it would not be justified to apply the judgment of this Court retrospectively to undo such promotion. The concept that the judgment is not time bound has no sanctity in the eyes of law as vested rights have been accrued in favour of the Petitioner. 49. Mr. Muhammad Akram Sheikh, learned Senior ASC, has submitted written synopsis on behalf of the Petitioners in Civil Review Petition No.479 of 2016 in Civil Appeal No.184-L/2013, and contended that the direction contained in para No. 1 of C.A 184-L/2013 is not relevant to the case of the Petitioners, as interpreted by the Inspector General of Police, Punjab (IGPP), while issuing order dated 18.10.2016, whereby promotion of the Petitioners as DSP and in lower ranks was undone, holding that the same were made ante dating their seniority, which was held in C.A 184-L/2013, as violative of the law. He further contended that the order dated 26.01.2016 of this Court passed in C.A 184-L/2013, deals with cases of out of turn / accelerated promotion / back dated seniority to non-cadre officers in the regular cadres and the case of the Petitioners does not fall in any of these categories. He has also submitted that terms and conditions of service of the officers of Punjab Police upto the rank of Inspector (BS-16) are governed by the Punjab Police Rules, 1934. He referred to the Rule 12.8, 13.1 (3) and 13.18 and submitted that in the case of Gul Hasan Jatoi and others Vs. Faqir Mohammad Jatoi and other (2016 SCMR 1254) it has been held by this Court that “those police personnel who have completed their statutory period of probation, whether it is three years or two years, they shall stand confirmed whether or not a notification to that effect is issued.” CRP.49/2016 etc 31 50. He next contended that every case is to be decided on its own peculiar facts and circumstances, therefore, while passing the order dated 26.01.2016 no opportunity was provided to the Police Officers who were likely to be adversely affected. He has relied on the case of Muhammad Nadeem Arif Vs. Inspector-General of Police, Punjab Lahore (2010 PLC (CS) 924). He next contended that the principle of locus poenitentiae will be applicable in the case in hand. He has adopted the arguments advanced by Mr. Abdul Rahim Bhatti, learned ASC in C.R.P 384/2016 (Muhammad Anwar Vs. IGP Punjab and others) and prayed that Respondent No. 1 (IGPP) should be directed to review his orders after hearing the Petitioners. 51. The Petitioner, Jamil Ahmed, in Civil Review Petition No.51 of 2016, has appeared in person and filed a written statement, stating therein that he adopts the arguments of Messrs Khawaja Haris Ahmed and M. Akram Shiekh, learned Sr.ASCs. 52. Ms. Asma Jahangir, ASC appearing in C.R.P 89/2016 in C.A 184-L/2013 on behalf of the Petitioners had adopted the arguments of Khawaja Haris Ahmad, ASC except his contentions on Article 27 of the Constitution of Pakistan. She contended that there were many errors floating on the surface of the impugned judgments, justifying the review. Firstly, the Petitioners were never heard before passing the judgments of this Court sought to be reviewed. Secondly, no notice in terms of Order XXVII-A of the Code of Civil Procedure, 1908 was given to the Advocate General, Punjab. Thirdly, there was distinction between Section 8-A of the Punjab Civil Servants Act, 1974 and Section 9-A of the Sindh Civil Servants Act, 1973 and by striking down the out of turn promotions in the province of Sindh, same CRP.49/2016 etc 32 principle could not be applied to the Province of Punjab. She further submitted that in the province of Punjab there was a Committee formed under Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, therefore, unlike the practice in the Province of Sindh the discretion to grant out of turn promotion did not vest in a single person and such powers were not being exercised arbitrarily. Fourthly, Section 8-A of the Punjab Civil Servants Act, was omitted in the year 2006 and it had the same effect as that of repeal of a law and hence the vested rights created in favour of the Petitioners could not be taken away under the garb of the impugned judgments. She next contended that the question of out of turn promotion was one that stemmed out of a government policy, which could not be interfered with by the Court. In this regard she has relied upon the case of Dossani Travels Pvt Ltd Vs. Ms. Travels Shop Pvt. Ltd (PLD 2014 SC 1). 53. She next contended that all of the Petitioners were only given one time ‘out of turn promotion’ throughout their career and that too, validly under the law prevalent at that time and that too were awarded on good reasons as each one of them had acted in an exceptional manner during the discharge of their duties. She was of the view that such incentives are given to the officers/officials of the forces on the ground of “bravery” in many countries of the world, however, she did not point out any country where such benefit was being given. She further submitted that by the repeal of Section 8-A in Punjab in the year 2006, vested rights accrued in favour of the Petitioners, which could not be taken away on the basis of the principle of ‘past and closed transactions’. CRP.49/2016 etc 33 54. She next contended that the judgment of this Court could not be given retrospective effect to undo the out of turn promotions validly given, under the law in force at the relevant time as the vested rights had accrued and the effect of repeal as per the Constitution and the law would be attracted. In support of her contention, she has relied upon the cases of Dr Mukhtar Hamid Shah vs. Government of Punjab (PLD 2002 SC 757), M.C.B Bank Ltd, Karachi Vs. Abdul Waheed Abro and others (2016 SCMR 108), Nazeer Ahmad and others vs. Ghulam Mehdi and others (1988 SCMR 824), Taza Khan and others Vs. Ahmad Khan and others (1992 SCMR 1371), Muhammad Tariq Badr vs. National Bank of Pakistan (2013 SCMR 314), Shahida Bibi and others Vs. Habib Bank Limited and others (2016 CLD 2025), Federation of Pakistan Vs. Dr. Mubashir Hassan and others (PLD 2012 SC 106), Jannat-ul-Haq and 2 others Vs. Abbas Khan and 8 others (2001 SCMR 1073), Hakim Ali Zardari Vs. The State (PLD 1998 SC 1), Al-Samrez Enterprises Vs. Federation of Pakistan (1986 SCMR 1917), Badshah Gul Wazir Vs. Government of Khyber Pakhtunkhwa (2015 SCMR 43). 55. Mr Hamid Khan, learned Senior ASC, while appearing for the Petitioner in C.R.P.No.92 of 2016 in Civil Appeal No.184-L of 2013, contends that the Petitioner is aggrieved by the order of the department, whereby under the garb of directions of this Court vide order dated 26.01.2016, regarding implementation of the judgments of this Court reported as Contempt Proceedings against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), the Petitioner was reverted, inter alia, on the ground that he was promoted out of turn. The learned Counsel submits that the Petitioner was twice promoted out CRP.49/2016 etc 34 of turn but the issue of his seniority was settled up to this Court by the judgment dated 12.12.2013. He contended that the aforesaid judgments of this Court were not applicable to the case of the Petitioner, as the matter was different and had also become part of the history on the basis of the doctrine of “past and closed transaction”, therefore, the matter could not be put to another round of litigation to settle what had already been settled by this Court and the benefit granted under the valid law could not be taken away. 56. Mr. Hamid Khan, learned Sr. ASC appeared for the Petitioners in Civil Review Petition 382/2016 and Civil Review Petition 383/2016. He contended that all the Petitioners in these Review Petitions were appointed and promoted in the Punjab Police on the basis of Sports Policy and the maximum promotion one could achieve through the Sports Policy was up to the rank of Inspector. He submitted that the Punjab Police issued a Sports Policy in the year 1982, which provided for an objective criteria on the basis of which incentives in the shape of cash reward or promotion could be granted to any police officer/ official and there were hardly 140 police officials/ officers, who were inducted and given accelerated promotion in the Punjab Police on the basis of this policy. 57. He next contended that the participation in sports from our country both at national and international levels was facing a continuous decline and the country has suffered a rapid downfall in the Sports performance, therefore, there was a pressing need to encourage sports activities in the country in accordance with Article 259 of the Constitution. He submits that although the sportsmen appointed and promoted under this policy were part of the Punjab Police, yet they should be categorized CRP.49/2016 etc 35 separately from those who were promoted out of turn on the basis of an act of gallantry, based on the principle of intelligible differentia. In this regard he referred to the case of I. A Sherwani Vs. Government of Pakistan (1991 SCMR 1041). 58. He further contended that this category was never discussed in the judgments wherein the out of turn promotion was declared ultra vires the Constitution. He submitted that induction and accelerated promotion on the basis of sports policy has been a recognized method, which is based on the performance shown by an officer/official at national and international level. He added that since physical fitness and strength were of value to the duties entrusted to a Police Officer/Official, such inductions and promotions should be encouraged. Different departments like WAPDA, NBP, PIA, Air Force etc were also encouraging the sportsmen, representing the country at national and international level, by offering incentives in the shape of cash rewards as well as promotions. He contended that if the promotion of sportsmen in the Punjab Police is undone, then they will be discriminated against those who are getting the same benefit in other government departments. 59. He next contended that in the case of Contempt proceedings against Chief Secretary Sindh (2013 SCMR 1752) the rationale on the basis of which out of turn promotions were held against the Constitution cannot be applied to the persons promoted on the basis of Sports, and it was not possible for the authority to wrongly exercise its powers under the garb of Sports Policy since it was based on an objective criteria of winning championships and or gold medals. He submits that the principle of legitimate expectancy was also attracted in their case. CRP.49/2016 etc 36 60. He next contended that undoing of such promotions will be against the spirit of Article 10A of the Constitution which guaranteed “due process” and if the sportsmen, who have earned promotions on the basis of a valid sports policy are demoted, the principle of locus poenitentiae would be fully attracted, because the Sports Policy had become a mature practice in the Punjab Police since 1982 and has assumed the force of law which could not be deviated. In this regard he has relied on the case of Nazir Ahmad Vs. Pakistan (PLD 1970 SC 453). 61. Mr. Hamid Khan, learned Sr. ASC for the Petitioners has filed written arguments in C.R.P.No.480 of 2016 on behalf of 13 DSPs. He has submitted that in pursuance of order dated 12.12.2013 of this Court passed in Civil Appeal No.840/2012, seniority list of Inspectors dated 01.11.2012, was circulated and finalized. Another final seniority list of DSPs dated 01.07.2014, was circulated vide notification dated 01.07.2014, showing dates of promotion of all the Petitioners w.e.f. 12.02.2009 and 12.01.2010. He has further submitted that the seniority of the Petitioners as Inspector was adjusted w.e.f. 16.11.1995, alongwith colleagues of their own batch and this seniority list has assumed finality under the Orders of this Court. 62. He has next submitted that the seniority of the Petitioners through order dated 10.11.2016 of the Department has been disturbed and adjusted from 1999, which means that they have been promoted after 11 years, whereas their juniors have been promoted after 7 years and in some cases after 5 years. So the Petitioners have been rendered junior as Inspectors of Police on the pretext of implementation of the order of this Court dated 26.01.2016 passed in Civil Appeal No.184-L/2013. He has next submitted that the order dated CRP.49/2016 etc 37 10.11.2016, passed by the IGP, Punjab is violative of the orders of this Court dated 08.03.2011, 12.07.2011 and 05.01.2012 passed in HRC No.1038/201. Furthermore, the said order of the Department is also violative of the judgement of this Court dated 12.12.2013 passed in Civil Appeal No.840/2012 and order dated 08.04.2014 passed in CRP No.2/2014. 63. He has also submitted that the case of the Petitioners has nothing to do with out of turn promotions and they have neither been promoted out of turn nor have benefited from ante-dated fixation of seniority, hence, order of this Court dated 26.01.2016, is not applicable to the present case. He has also referred to the case of Gul Hasan Jatoi and others Vs. Faqir Muhammad Jatoi (2016 SCMR 1254) and submitted that adjustment of seniority from the date of confirmation after completion of the period of probation would reflect the actual position of seniority of the Petitioners and such subsequent adjustment cannot be treated as out of turn promotion or ante-dated fixation of seniority. 64. He has also submitted that the seniority of the Petitioners as Inspectors in the year 2008 and DSPs in the seniority list of 2014 are past and closed transaction and cannot be re-opened at this stage. Moreover, the Petitioners were condemned un-heard violating the fundamental principle of audi alteram partem and Respondent No.1/IGP Punjab was bound to give opportunity of hearing to the Petitioners before withdrawing their promotions as DSPs after about 7 years without any justification. This is also violative of due process of law as enshrined in Article 10A of the Constitution. He next submitted that the withdrawal of promotion of the Petitioners is violative of the principle of locus poenitentiae and the right to continue as DSPs has been vested in the Petitioners. Furthermore, the impugned order of IGP, Punjab CRP.49/2016 etc 38 suffers from bias and mala-fide. He has prayed that the seniority of the Petitioners as DSPs reflected in the final seniority list circulated on 01.07.2014, may be revived and restored. 65. Malik Muhammad Qayyum, Sr. ASC appeared on behalf of the Petitioner in Crl.O.P 123/2016 in C.P 1446-L/1997 and submitted that the Petitioner displayed gallantry beyond the call of his duty in an encounter, which took place on the night between 30th and 31st October, 1992 wherein Ahmad Nawaz alias Barbri, a notorious criminal and proclaimed offender was killed. Based on this act of gallantry, the Petitioner was recommended for accelerated promotion by the Deputy Inspector General of Police, Sargodha Range, Sargodha but this recommendation was turned down by the Inspector General of Police, Punjab. Thereafter, a Writ Petition was filed before the Lahore High Court which was accepted and the Lahore High Court directed for the grant of out of turn promotion on 03.12.1996. The Petition filed by the government before this Court (C.P 656-L/1997) was dismissed as being barred by time. However, the Petition (C.P 1446-L/1997) filed by Rana Shujat Ali Khan, compatriot Inspector of the Petitioner was dismissed by this Court and thereafter, on 17.10.1997, notification regarding promotion of the Petitioner was issued by the Government of Punjab pursuant to the Judgment of this Court in C.P 1446-L/2016, which was also affirmed on 18.04.1998, by dismissal of the Review Petition. He further submitted that now the said notification dated 17.10.1997, issued by the Governor of Punjab has illegally been withdrawn by the department on 17.02.2016 as the Inspector General of Police is not competent to withdraw the same of his own without any reference to or order of the Government. CRP.49/2016 etc 39 66. He next contended that neither the Petitioner nor the Government of the Punjab were parties to the case out of which judgments in the case of Contempt proceedings against the Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) had been passed. He submitted that these judgments were not binding on the Petitioner. 67. He next contended that the order of out of turn promotion of the Petitioner was issued in terms of Section 8-A of the Punjab Civil Servants Act, 1974 and this provision was omitted from the statute in the year 2006 and the said provision was not the subject matter of the judgments of this Court i.e. 2013 SCMR 1752 and 2015 SCMR 456, therefore, the said judgments could not be applied to the case of the Petitioner. 68. He further contended that the law in Punjab was repealed long before the two judgments Contempt proceedings (Supra) and Ali Azhar Baloch (Supra) were delivered by this Court and there was no question of the same being brought to life again and then declaring it against the Constitution. Regarding the effect of omission of law, he referred to the cases of Dad Muhammad and another Vs. Additional District Judge Quetta and others (1996 SCMR 1868), Idrees Ahmad and another Vs. Hafiz Fida Ahmad Khan and 4 others (PLD 1985 SC 376), Muhammad Tariq Badar and another Vs. National Bank of Pakistan (2013 SCMR 314) and Raja Shaukat Mehmood Vs. Azad Jammu & Kashmir and another (2003 PLC (CS) 424). 69. He next contended that even if the judgments in the cases of Contempt proceedings (Supra) and Ali Azhar Baloch (Supra) are assumed to be applicable to the case of the Petitioner, yet those cases which have become CRP.49/2016 etc 40 past and closed and have been concluded giving rise to vested rights cannot be reopened and interfered with on the basis of these judgments. In this regard he relied on the cases of Income Tax Officer (Circle-II), Karachi and another Vs. Cement Agencies Ltd and another (PLD 1969 SC 322), Pir Bakhsh and another Vs. Chairman Allotment Committee (PLD 1987 SC 145), Hussain Badshah and another Vs. Akhtar Zaman and others (2006 SCMR 1163), Mehram Ali Vs. Federation of Pakistan (PLD 1998 SC 1445), Dr. Subra Manian Swami Vs. State of Tamil Nadu and others (AIR 2015 SC 460), Akhtar Hussain Siddique Advocate Vs. The Province of Punjab (1999 CLC 951), Atia Bibi Vs. Federation of Pakistan (2001 SCMR 1161), Molasses Trading & Export Vs. Federation of Pakistan and another (1993 SCMR 1905), Province of East Pakistan Vs. Sharafat Ullah and others (PLD 1970 SC 514), Commissioner of Income Tax, Karachi Vs. Eastern Federal Union Company (PLD 1982 SC 247), Pakistan Steel Mills Corporation Vs. Muhammad Azam Katper and others (2002 SCMR 1023) and Ch. Textile Mills Vs. Income Tax Officer (PLD 1988 Lahore 440). 70. He next contended that the judgments of this Court generally apply prospectively and cannot destroy the rights which have already been accrued to a person. He relied on the cases of Pensionary benefits of Judges (PLD 2013 SC 829), Victor Linkletter Vs. Victor G. Walker Warden (381 U.S 618), Muhammad Yousaf Vs. Chief Settlement Commissioner (PLD 1968 SC 101), Muhammad Yousaf Vs. Essa Jan (2009 SCMR 1169), Mst. Atiya Bibi Vs. Federation of Pakistan (2001 SCMR 1161), Muhammad Farooq Vs. Muhammad Hussain (2013 SCMR 225), Mehram Ali Vs. the Federation (PLD 1998 SC 1145), Pir Bukhsh Vs. Chairman Allotment Committee (PLD 1987 CRP.49/2016 etc 41 SC 145), Asad Ali and others Vs. Federation of Pakistan and others (PLD 1998 SC 161). 71. He next contended that in any case the judgment delivered in favour of the Petitioner is protected by the doctrine of res judicata, estoppel and conclusiveness. The Petitioner, the I.G.P Punjab and the Government of Punjab are bound by the judgment of this Court passed in C.P 1446-L/1997 which had attained finality in the review petition on 18.07.1997 and these judgments, being conclusive and binding, operate as res judicata. In this regard he relied on the cases of Pir Bukhsh Vs. Chairman Allotment Committee (PLD 1987 SC 145), Dr. Subra Manian Swami Vs. State of Tamil Nadu and others (AIR 2015 SC 460). 72. The learned Counsel lastly contended that the judgment in the case of Dr. Mobashir Hassan and others Vs. Federation of Pakistan (PLD 2010 SC 265) i.e National Reconciliation Ordinance (NRO) case, was distinguishable on three grounds. Firstly, NRO was promulgated on 05.10.2007 and its vires were challenged within three days of its promulgation and within a week on first date of its hearing, this Court was pleased to pass an interim order, whereby any benefit under NRO was made subject to the outcome of the case. Secondly, in the NRO case it was observed that the President of Pakistan cannot issue an Ordinance of the nature which the Parliament is not empowered to enact. So there was an inherent defect in the promulgation of the NRO. Thirdly, no defense was put by Federation of Pakistan and no beneficiary has come forward to protect his benefits. CRP.49/2016 etc 42 73. Mr. M. Bilal, learned Senior ASC, has filed written arguments in C.M.A.No.1681/2016 in C.R.P.No.49 of 2016, contending that the Petitioner joined Punjab Police as Assistant Sub-Inspector on 29.4.1985 on sports basis and thereafter was promoted to the rank of Sub-Inspector and was confirmed in that rank by the competent authority with effect from 27.09.1986. She was promoted to the rank of Inspector on 20-12-1991. Thereafter, in August 2005, on the recommendations of the Departmental Promotion Committee, she was appointed as DSP. In light of order dated 26-01-2016, passed by this Court in Civil Appeal No.184-L/2013, a large number of promotions of Police Officers were withdrawn by the IGP and Addl. IGP, Punjab, vide order dated 17-02- 2016. As a result of order dated 17-02-2016, the date of promotion of the Applicant were revised, inter alia, on the ground that her batch mates in her range were promoted from the said dates. The CCPO Lahore vide order dated 03-03-2016, re-fixed her seniority against which the Applicant has already filed a departmental representation on 30-07-2016. 74. He next contended that the judgments reported as Contempt Proceedings against Chief Secretary, Government of Sindh (2013 SCMR 1752), Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) and order dated 26-01-2016, of this Court in Civil Appeal No.184-L/2013, have no bearing on the case of the Applicant as no findings have been recorded by this Court regarding appointment on sports basis, which has become a regular practice and is prevailing even in other departments like Pakistan Customs, Pakistan Railways, HBL, NBP, PIA, WAPDA and Pakistan Air Force. He further submitted that even Article 259(2) of the Constitution also encourages CRP.49/2016 etc 43 promotions on the basis of sports. Moreover, the “Sports Policy, 1982” has become a mature practice and the same cannot be undone. 75. He further contended that the principles of “past and closed transaction” and “locus poenitentiae” are fully attracted to the case of the Applicant. In this regard he has relied upon the case of Application by Abdul Rehman Farooq Pirzada vs. Begum Nusrat Ali Gonda Vs. Federation of Pakistan (PLD 2013 SC 829). He further contended that the Applicant has been condemned unheard as a result of which her fundamental rights guaranteed under Article 10-A and 25 of the Constitution have been affected. In this regard he has relied upon the cases of Contempt Proceedings against Syed Yousaf Raza Gillani, PM (PLD 2012 SC 553) and (Babar Hussain Shah vs. Mujeeb Ahmed Khan (2012 SCMR 1235). The learned Counsel has also adopted the arguments advanced by Mr. Hamid Khan, learned Sr. ASC in CRP No.382/2016 and 383/2016. 76. Mr. Muhammad Qamar-uz-Zaman, learned ASC appeared for the applicant / Petitioner in C.M.A.No.8132/2016 in C.R.P.No.49/2016, and has filed his written submission in which it is contended that case of the applicant lady is not of “out of turn promotion”. She was appointed as Sub- Inspector in Punjab Police on 27.11.1986. Thereafter, due to her outstanding performance shown in the arrest of a desperado, her admission to the List-F was anti-dated and she was promoted as Inspector w.e.f 21.01.1988 and when her juniors were promoted as DSP, having ignored the applicant, the Notification dated 02.11.1999 for her promotion as DSP was issued in light of the judgments of this Court dated 15.04.1999 and 20.10.1999. Thereafter, she was promoted as S.P w.e.f 05.10.2012. CRP.49/2016 etc 44 77. It is next submitted that now the IGP in light of order dated 26.01.2016 of this Court, passed in C.A 184-L/2013, has withdrew her promotion as S.P and thereafter also withdrew her promotion as DSP and relegated her to the post of Inspector. While withdrawing her promotion, it has specifically been mentioned that the Notification dated 02.11.1999 (for her promotion as DSP) was issued under the judgment of this Court. 78. It is also contended that the IGP, Punjab is not competent to whittle down the effect of judgments dated 15.04.1999 and 20.10.1999, passed by this Court as the same had attained finality. Moreover, under Article 185 (2) (b) of the Police Order, 2002 all rights, privileges, obligations or liabilities acquired, accrued or incurred under the Police Act, 1861 have been saved and the saving clause of Police Order, 2002 do not confer any authority to the IGP, Punjab to undo the ‘past and closed transactions’. Therefore, now after lapse of 18 years the IGP could not withdraw her promotion. 79. Mr. S. A. Mahmood Saddozai, learned ASC appearing for the Petitioner in C.R.P.No.482 of 2016 has submitted his written contentions that the Petitioner joined Police Department on 30.1.1980 as ASI and was placed in Balochistan Police. After 7 years he was promoted as officiating Sub- Inspector (S.I) w.e.f 15.01.1987, thereafter, he was confirmed as S.I w.e.f 22.05.1993. He was transferred to Rawalpindi Range, Punjab Police on 24.05.1993 and his name was placed at the bottom of the seniority of officiating Sub-Inspectors instead of placing in the list of confirmed Sub- Inspectors. He then filed departmental representation, which was not responded to. He approached the Punjab Service Tribunal where his Service Appeal was allowed on 27.03.2000, directing the Respondents to place his CRP.49/2016 etc 45 name at the bottom of seniority list of confirmed Sub-Inspectors of Rawalpindi Range. In compliance with the said judgment his name was placed in list ‘F’ w.e.f 01.11.1995 and thereafter, he was promoted as officiating Inspector w.e.f 16.11.1995 and confirmed as Inspector w.e.f 16.11.1995 by order dated 29-08-2001. He was further promoted to the rank of DSP vide order dated 12.02.2009. 80. It was next contended that by wrongly applying the judgments of this Court in the cases of Contempt Proceedings against Chief Secretary, Government of Sindh (2013 SCMR 1752), Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) and order dated 26-01-2016, of this Court in Civil Appeal No.184-L/2013, the Petitioner has been victimized and reverted back to as Inspector besides his seniority has been re-fixed after promotion to the rank of Inspector w.e.f 17.10.2001. 81. It was next contended that the above cited judgments of this Court have no nexus with the case of the Petitioner therefore, the order dated 10.11.2016, reverting him to the rank of Inspector may be set aside. 82. The Petitioner has submitted written arguments in Crl.O.P.No.195/2016 in C.A.No.184-L/2013, contending that the term ‘out of turn promotion’ as per its literal meaning means to get promotion while superseding someone who is senior to the promoted officer, whereas vide order of the Department dated 16.11.1991, the Petitioner was granted proforma promotion alongwith his batch mates as per his seniority and not a single person/officer, senior to him, was superseded, therefore, the promotion of the Petitioner cannot be termed as out of turn promotion. He has next CRP.49/2016 etc 46 submitted that vide notifications dated 18.03.2016, 23.06.2016 and 28.03.2016, issued by the Respondent - Department, whereby his promotions to the post of Inspector, DSP and SP, respectively have been withdrawn, are violative of the judgments passed by this Court, as well as of the Punjab Service Tribunal, which speaks about the malicious and mala fide acts of the Respondents. He has next submitted that vide order dated 26.01.2016, passed in Civil Appeal No.184-L/2013, directions were issued regarding withdrawal of out of turn promotions, but the Respondents have deliberately victimized him without his fault and even without hearing. Therefore, he has prayed for initiation of contempt proceedings against the Respondents and to restore him to the post of Superintendent of Police. 83. Syed Mansoor Ali Bukhari, learned ASC has submitted written arguments in C.R.P.No.481/2016, and contended that while hearing HRC No.2103-G/2011, 1038/2010 and 6679-P/2011, on 12.7.2011, this Court has observed that all the representations pending must be decided within a period of one week and no promotion / demotion / change in seniority shall be made till final orders are passed. He further submitted that on 12.12.2013, while hearing Civil Appeal No.840/2012, this Court had directed the departmental authority to issue the final seniority list, after hearing the objections of the parties in terms of the judgments of this Court, within a period of one month. 84. He has next submitted that names of the Petitioners were appearing in the list, which was accordingly submitted in this Court in pursuance of the order dated 12.12.2013. However, at the time of notifying the same, names of the Petitioners were excluded. He has next submitted that the Petitioners filed representations against the notified seniority list of DSPs CRP.49/2016 etc 47 dated 01-07-2014, but no response was given; thereafter, objections were submitted to the IGP, Punjab but the same proved abortive. 85. He has also submitted that the Respondents were bound to follow the directions of this Court vide order dated 08.03.2011, which, inter alia, stipulate as under : - i. Seniority list of the incumbent in all the cadres shall be updated for the purpose of the promotions against permanent existing vacancies, ii. All vacancies will be worked in respect of the present cadre to be filed in within due course of time, iii. Judgment delivered by the Apex Court, High Court, or Service Tribunal shall be implemented within the above stipulated period, iv. Final seniority list be prepared and promotions be made according to that list. v. Promotions shall be made in accordance with law and on merits in terms of seniority-cum- fitness basis. 86. He has next submitted that the order of this Court dated 26.01.2016, is quite within four corners of law and does not warrant any interference, therefore, the same should be maintained to foster the ends of justice. 87. In response to the notice issued to the learned Attorney General for Pakistan under Order XXVII A CPC, he has filed written arguments. He has contended therein that the judgments pronounced in relation to the Sindh Civil Servants Act, could not be extended to the Province of Punjab on the touchstone of Article 241 of the Constitution and that Section 8-A which CRP.49/2016 etc 48 remained on the statute book was never challenged during its life time and the promotions given under this Section were protected upto this Court. He has submitted that the actions taken under the said provision are protected in the light of Section 6 of the West Pakistan General Clauses Act, 1956. 88. He has contended that the promotions made under the said Section are past and closed transaction. In support of his submission, he has relied on the cases of Income Tax Officer Karachi vs. Cement Agencies (PLD 1969 SC 322), Pir Baksh and another vs. Chairman Allotment Committee (PLD 1987 SC 145). 89. He has next submitted that the term ‘omission’ and ‘repeal’ has the same effect. He further submits that Section 8-A was never declared discriminatory as envisaged by Articles 8(1) and (2) of the Constitution, therefore, application of the principles propounded in the judgments under review with respect to the Province of Punjab would be prospective and that the rights accrued to the Petitioners through the judgments of this Court are protected under the principle of res judicata. 90. He has next submitted that if the application of the principles enunciated in the judgments under review is extended to the Province of Punjab and that too on the basis of an omitted provision, it would amount to violating the principle of legislative competence and independence as recognized by this Court in the case of Province of Sindh vs Mutihidda Qumi Movement (Civil Appeal No.760 to 765). 91. He has next submitted that in terms of Article 7 of the Constitution, the term ‘State’ includes a Provincial Assembly and in order to CRP.49/2016 etc 49 make a declaration under Article 199(1)(a) of the Constitution, it would be necessary that the party should be before the Court and the Government of the Punjab was not a party at the time of hearing of the proceedings which culminated into judgments under review, and issuance of notice at this stage would not cure this defect. 92. He has further submitted that any adverse findings against the Petitioners would be against Article 10A of the Constitution and that the ratio of the judgments under review is against the spirit of the Constitution. 93. We have heard the learned Counsel for the Petitioners and have gone through the written synopsis submitted by them. The opportunity to file written synopsis was afforded to the learned Advocate General, Punjab, as well as the learned Attorney General for Pakistan, but the Advocate General, Punjab, did not file any written synopsis. We have perused the material on record with the able assistance of the learned Counsel and the learned Law Officer. Before examining the issues raised in these proceedings, we intend to reproduce certain material facts which formed the basis of the present proceedings. The first order in this regard passed by this Court on 26.01.2016 in Civil Appeal No.184-L of 2013, is reproduced hereunder: - “3. The learned Additional Advocate General, Punjab, states that the Punjab Government has started implementing judgment of this Court reported as Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456) and till date substantial portion of seniority of the Police personnel has been re-fixed. We support that morale of police personnel be boosted, as intended in the aforesaid impugned legislations, and on their exhibiting exceptional acts of gallantry, they should be given awards and rewards on CRP.49/2016 etc 50 merits. In order to confer award or reward on the police officer for his act of gallantry the Sindh Government will constitute a committee under Rule 8-B, to evaluate the performance of the police officer upon whom the proposed award or reward has to be bestowed. However, out of turn promotion in police force would not boost the morale of the police force, on the contrary by impugned legislative instruments granting out of turn promotion to police officers, has demoralized the force. This Court in the case of Watan Party reported in (PLD 2011 SC 997) has already directed the Sindh Government to depoliticize the police force. The out of turn promotions have engendered inequalities and rancor among the batch mates/course mates, rendering many of them junior/subordinate to their junior colleagues. Under Section 9-A, the Sindh Government, has granted out of turn promotions to the civil servants, who do not belong to police force. By using the word ‘Gallantry’ in section 9-A of the Act of 1973, the legislature never intended to grant out of turn promotion to civil servants other than police force, but the Sindh Government has extended this benefit to civil servants. We for the aforesaid reasons stated hereinabove, are clear in our mind that the impugned legislations on the issue of out of turn promotion and grant of backdated seniority are violative of Articles of the Constitution referred to hereinabove and are liable to be struck down. 94. There is one more judgment of this Court in Civil Petition No.2058 to 2060 of 2014 decided on 05.12.2014 (Gul Muhammad and others vs. Government of KPK through its Chief Secretary and others) which has not been noticed by either party on the issue, wherein while maintaining the judgment of a learned Division Bench of the Peshawar High Court, this Court has refused the leave. The backdrop of the proceedings was that the Petitioners-Police Officers of KPK in the aforesaid petitions had approached the Peshawar High Court, challenging the withdrawal of their out of turn promotions through notifications issued by the competent authority in compliance with the judgments of this Court in 2013 SCMR 1752 and 2015 CRP.49/2016 etc 51 SCMR 456. The learned Peshawar High Court after discussing the issues had concluded that the principles enunciated on the issue of out of turn promotion in the aforesaid judgments would extend to all the provinces including the KPK and the competent authority was justified in withdrawing out of turn promotions. 95. The Punjab Government in terms of Article 189 of the Constitution had complied with the judgments of this Court reported in 2013 SCMR 1752 and 2015 SCMR 456, by issuing notifications whereby out of turn promotions granted to the police officers at times, pursuant to the provisions of Section 8-A of the Punjab Civil Servants Act, 1974, were withdrawn. 96. The Punjab Government did not seek review of the judgments referred to hereinabove besides the orders passed by this Court in Civil Appeal No.184-L of 2013, on the issue of out of turn promotions. 97. Before we address the submissions made by the learned ASCs, we may examine the context in which the present proceedings have arisen. The Petitioners are either the beneficiaries of the exercise of power under Section 8-A of the Act, 1974, who were granted out of turn promotions or are claimants to such out of turn promotions. It needs to be appreciated that in matters relating to service, there are certain rights or benefits which are granted or which accrue to the civil servants without affecting the rights or interests of other civil servants while other benefits accruing to civil servants necessarily affect the rights or interests of other civil servants. The former category includes financial benefits, training, transfer, posting etc. while the CRP.49/2016 etc 52 latter category includes seniority, promotions, etc. where any arbitrary exercise of power by the authority may adversely affect rights of other civil servants in such matter. The out of turn promotions are inherently destructive of the rights of other officers who, though senior and entitled to be considered for promotion before the beneficiaries of out of turn promotions, are bypassed as a result of out of turn promotions. Thus each out of turn promotion must necessarily have a corresponding affected officer, who suffers due to this exercise despite being completely blameless. He suffers for no fault of his own when he is bypassed in favour of the beneficiary of such an exercise. Unless he voluntarily waives his rights, in which case the promotion could no longer be described as out of turn, the Courts ought not to ignore his rights in matters brought before it for adjudication, irrespective of his presence or absence before the Court in a particular case. The Section 8-A was regulated by the Rule 14-A, whereas in Sindh no rules were framed to regulate out of turn promotions under Section 9-A, which was inserted on 21.02.2002. 98. In a series of judgments, this Court has declared out-of-turn promotions as being unconstitutional, un-Islamic, and void ab initio. The principle of unconstitutionality attached to the instrument providing for out of turn promotion was laid down first in the case of Muhammad Nadeem Arif vs. I.G of Police (2011 SCMR 408). The view taken in this judgment was followed in another case reported as Ghulam Shabbir vs. Muhammad Munir Abbasi (PLD 2011 SC 516); wherein it was held that out of turn promotion was not only against the Constitution, but also against the Injunctions of Islam; and that reward or award should be encouraged for meritorious public service but should not be made basis for out of turn promotion. CRP.49/2016 etc 53 99. In another case, Suo Moto case No.16/2011, this Court again deprecated the practice of conferring out of turn promotions in the following terms:- “It is also a hard fact that the police has been politicized by out of turn promotions and inductions from other departments time and again, through lateral entries which has brought unrest amongst the deserving police officers waiting their promotions on merits. The posting and transfers of the police officers also lack merits. The complete service record of a police personnel which could reflect posting and transfer is not maintained by the relevant wing. Even many police officers posted within the Karachi on senior positions lack qualifications and competence both……If this is the state of affairs, how can there be peace in Karachi. It seems instead of depoliticizing police force further damage has been caused by the government by introducing their blue eyed persons in police force through lateral entries and then granting them retrospective seniority and out of turn promotions.” 100. Subsequently, this Court reiterated, inter alia, the principle of declaring the law of out of turn promotion unconstitutional and void ab initio in the Contempt proceedings against Chief Secretary, Sindh (2013 SCMR 1752). The relevant para is reproduced as under:- “158. On the issue of out of turn promotions, the impugned enactments are discriminatory persons/class specific and pre-judicial to public interest, as it would be instrumental in causing heart burning amongst the police officers whose inter-se seniority and legitimate expectation of attaining upper ladder of career would be affected. The out of turn promotions to the police officers and other civil servants by virtue of Section 9-A would affect the performance of hundreds of thousands of the civil servants CRP.49/2016 etc 54 serving in the Sindh Government. The impugned instruments on out of turn promotions are neither based on intelligible differentia nor relatable to lawful objects and by the impugned instruments the entire service structure has been distorted, affecting the inter-se seniority between the persons, who are serving on cadre posts after acquiring job through competitive process and their seniorities were and are superseded by the powers granted to the Chief Minister through Section 9-A.” 101. This Court also highlighted the pernicious effects of the conferment of out of turn promotions, at paras 161 and 162 (ibid):- “161...........The ultimate casualty of the impugned instruments would not only be the establishment of meritocratic public service but more ominously the certainty of law which undermines both legitimate expectancy individually among the civil servants as regards the smooth progression of their career, but also the overall administrative environment. Article 143 of the Constitution has been promulgated to harmonize and regulate the service of the civil servants from federal government and provincial governments on their opting for All Pakistan Unified Group/PSP. The impugned legislation would distort interse seniority of the civil servants not only within the province but also the federal civil servants. 162. The absorption and out of turn promotion under the impugned legislative instruments will also impinge on the self- respect and dignity of the civil servants, who will be forced to work under their rapidly and unduly promoted fellow officers, and under those who have been inducted from other services/cadres regardless of their (inductees) merit and results in the competitive exams (if they have appeared for exam at all) and as a result the genuine/bonafide civil servants will have CRP.49/2016 etc 55 prospects of their smooth progression and attainment of climax of careers hampered, hence the impugned instruments are violative of Article 14 of the Constitution. The laws are made to achieve lawful object. The impugned legislative instruments do not advance this concept while conferring powers on the Chief Minister to grant out of turn promotions, on the contrary the unstructured discretion vested in him has infringed the valuable rights of the meritorious civil servants of legitimate expectancy of attaining climax of careers.” 102. The Court then determined the unconstitutionality of the out of turn promotion and provided a direction for boosting the morale of police personnel at Paragraph 164 of the said judgment:- “164. We support that morale of police personnel be boosted, as intended in the aforesaid impugned legislations, and on their exhibiting exceptional acts of gallantry, they should be given awards and rewards on merits. In order to confer award or reward on the police officer for his act of gallantry the Sind Government will constitute a committee under Rule 8-B, to evaluate the performance of the police officer upon whom the proposed award or reward has to be bestowed. However, out of turn promotion in police force would not boost the morale of the police force, on the contrary by impugned legislative instruments granting out of turn promotion to police officers, has demoralized the force. This Court in the case of Watan Party reported in (PLD 2011 SC 997) has already directed the Sindh Government to depoliticize the police force. The out of turn promotions have engendered inequalities and rancor among the batch mates/course mates, rendering many of them junior/subordinate to their junior colleagues. Under section 9-A, the Sindh CRP.49/2016 etc 56 Government, has granted out of turn promotions to the civil servants, who do not belong to police force. By using the word ‘Gallantry’ in section 9-A of the Act of 1973, the legislature never intended to grant out of turn promotion to civil servants other than police force, but the Sindh Government has extended this benefit to civil servants. We for the aforesaid reasons stated hereinabove, are clear in our mind that the impugned legislations on the issue of out of turn promotion and grant of backdated seniority are violative of Articles of the Constitution referred to hereinabove and are liable to be struck down.” 103. The Review Petitions were filed against the aforementioned judgment by the Sindh Government besides those who were aggrieved on their de-notification in terms of the directives contained therein. These Review Petitions were dismissed on 05.01.2015, by a three Member Bench of this Court, maintaining the findings recorded in the judgment reported in 2013 SCMR 1752. The judgment passed in Review Petitions is reported in 2015 SCMR 456. The learned Counsel for Petitioners raised a number of grounds challenging various findings of this Court, including the issue of out of turn promotion. Upholding the unconstitutionality and nullity of the legislative instrument pertaining to out of turn promotions, this Court recorded the following findings which are reproduced hereunder:- OUT OF TURN PROMOTIONS. 122. The issue of out of turn promotions has been dealt with by us in detail in the judgment sought to be reviewed and we reached the conclusion that it was violative of Article 240, 242, 4, 8, 9 and 25 of the Constitution. Mr. Adnan Iqbal Chaudhry, CRP.49/2016 etc 57 learned Advocate Supreme Court has contended that section 9-A of the Act has not been struck down by this Court, while declaring the out of turn promotion s as un-constitutional. We are mindful of this fact as we have held that the Competent Authority can grant awards or rewards to the Police Officers, if they show act of gallantry beyond the call of duty. However, we had struck down the very concept of ‘out of turn promotion’ being violative of Constitution for the reasons incorporated in paras 158 to 164 of the judgment under review. “126. The contention of the learned ASC that the judgment of the High Court of Sindh relating to the out of turn promotion is still in field, therefore, he prayed for formulation of a Committee to scrutinize the cases of the Police Officers, who were given out of turn promotion, is without substance. We have already declared “out of turn promotion” as unconstitutional, therefore, after recording such findings, the need of forming a Committee under Rule 8-B for scrutinizing the cases of Police Personnel is of no significance. However, they could be awarded or rewarded compensation for their exceptional acts of gallantry.” 104. Through the successions of its orders, this Court has consistently maintained the unconstitutionality, and the consequential nullity of the instruments providing for the out of turn promotion. Article 189 of Constitution 105. Under Article 189, this Court is the court of last resort and laws declared or principles enunciated by it are binding on all the subordinate courts and authorities in Pakistan as reflected in Farhat Azeem vs. Waheed CRP.49/2016 etc 58 Rasul (PLD 2000 SC 18). We have also held that the decisions of this Court laying down the proposition in law are laws binding on all, regardless whether they were party to the proceedings or not M/s Star Diamond Co vs. Union of India (PTCL 1988 FC 229). It has also been held by us that even a decision of Supreme Court for which no reasons are given would be binding upon the Courts in the Country Safdar Ali vs Conservator of Forests (1987 PLC (CS) 55). Likewise, where amendment in an Act was made prior to a decision of Supreme Court, declaration of law by Supreme Court would override the amendment in the Act and nullify its effect by virtue of Article 189 of the Constitution (PLD 1986 SC 14). Finally, the doctrine of stare decisis is not applicable to this Court. This Court in the case of Hitachi Limited vs. Rupali Polyester (1998 SCMR 1618), has concluded that the Supreme Court is not a slave of doctrine of stare decisis and can change or modify its view with the passage of time. All the courts and public institutions are bound to follow the principles laid down by this Court. No exception to this principle can be created under the garb of rule or procedural niceties. Difference between Section 8-A of PCSA and 9-A of SCSA: 106. It has been contended that the language of Section 9-A of Sindh Civil Servants Act, which has been interpreted by this Court in the case of Contempt proceedings against Chief Secretary, Sindh (2013 SCMR 1752), was distinct from Section 8-A of the Punjab Civil Servants Act. For ready reference both the provisions are reproduced in juxtaposition as under:- Section 8-A of Punjab Civil Servants Act, 1974 Section 9-A of Sindh Civil Servants Act, 1973 Notwithstanding anything contained in this Act or any other law for the time being in force or in any contract, or “Notwithstanding anything contained in this Act or any other law for the time being in force or any judgment, a civil CRP.49/2016 etc 59 rights claimed or acquired under any judgment of any Court or Tribunal, a civil servant who provenly exhibits exemplary intellectual, moral and financial integrity and high standard of honesty and gives extraordinary performance in the discharge of his duties, may be granted out of turn promotion or award or reward in such manner as may be prescribed” servant who provenly exhibits, the act of gallantry while performing his duties or very exceptional performance beyond the call of duty, may be granted out of turn promotion or award or reward in such manner as may be prescribed” 107. Even a perfunctory comparison of the two provisions would vouchsafe the following facts: i. Both provisions are substantively similar in nature and cater to the same purpose, i.e., out-of-turn promotion, which this Court has already declared unconstitutional and a nullity ab initio; ii. Both provisions create a new exception or category of promotion to the existing framework of service rules, in the name of out-of- turn promotion, whereas such promotion is alien to the concept and scheme of civil service rules, read with Articles 4, 9, 14, 18, 25 and 240, 242 of the Constitution; iii. Both provisions overtly militate against the settled law and principles of promotion based on merit, inter se seniority, annual performance reports and so on; iv. Both provisions are discriminatory and violative of the fundamental rights of other civil servants who have been affected by the out of turn promotions, despite the fact that they may stand a notch up in merit, inter se seniority and even competence from the beneficiary of such promotions; v. Measured on the touchstone of ‘pith and substance’, both the provisions seem to have been instrumentalized for the same purpose—out of turn promotion. 108. In view of the above similarities, the contention of the learned Counsel that the two provisions may be differentiated on the basis of the language used, holds no ground. Both provisions are similar in nature and CRP.49/2016 etc 60 cater to the same purpose - out of turn promotion - which we have consistently held to be unconstitutional and void ab initio. Therefore, we are not persuaded by the argument that an exception may be created in the case of Section 8-A of PCSA. 109. It was also contended that Section 9-A of Sindh Civil Servants Act, which has been interpreted by this Court in the case of Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752), was distinct from Section 8-A of the Punjab Civil Servants Act, in that Section 8-A was regulated by the Rule 14-A, whereas in Sindh no rules were framed to regulate out of turn promotions except for a short period of three months starting from 10.02.2005 to 11.05.2005, Rule 8-B was inserted in the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, to regulate the provisions of Section 9-A. 110. We fail to appreciate the principle of law underlying this submission. It is settled law that the operation of a statute or any statutory provision is not dependent upon framing of the Rules. In some cases the absence of Rules may affect the enforceability or operatability of the statute, as happened in the case of Section 9-A of the Sindh Civil Servants Act, where the Rules were to prescribe the procedure for claiming benefits under the provision and such could not be claimed unless the procedure prescribed in the statute was adopted. However, for considering the constitutionality or otherwise of a statute on the touchstone of the Constitution or Fundamental Rights, framing or non-framing of the Rules under that statute could hardly be relevant. The framing of Rules would be generally relevant for determining as to whether the power under the statute has been exercised properly or not, CRP.49/2016 etc 61 but the existence of Rules could neither save nor destroy the constitutional validity of the Rules. Thus, the reasoning in the earlier judgments with respect to Section 9-A of the Sindh Civil Servants Act, is fully applicable to Section 8-A of the Punjab Civil Servants Act. 111. Yet another anomalous consequence of this argument is that while two identical provincial laws are enacted and acted upon and one province repeals the law while the other continues with its operations. Subsequently, the vires of the law that continues on the statute books is examined by the Court and its provisions have found to be inconsistent with the Constitution or Fundamental Rights with the result that the benefits conferred or availed thereunder, unless protected by the category of past and closed transaction, have to be reversed and its deleterious effects undone. This category, quite obviously, consists of the cases wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court. They shall remain intact unless reviewed. Even otherwise, it does not appeal to logic that in such a situation, while those benefitting from a law which continued to be on the statute book and eventually found to be ultra vires the Constitution would stand deprived of such illegal benefits, those continuing to enjoy the same under the omitted/repealed law in other Province would stand protected. If an illegal benefit was accrued or conferred under a statute, whether repealed (omitted) or continuing, and its benefits continue to flow in favour of beneficiaries of such an unconstitutional Act, and it is declared ultra vires, the benefits so conferred would have to be reversed irrespective of the fact that the conferring Act was still on the statute book or not. Where such an CRP.49/2016 etc 62 anomalous situation surfaces – i.e. where one province continues to countenance the benefits of an unconstitutional (though repealed/omitted) Act, while the other Provincial statute has been struck down on the same touchstone, and thereby determined whether those enjoying benefits pursuant to the repealed law are entitled to continue to do so, such reversal of benefits is imperative. A statute could only be declared as non-est, if the legislature is not competent to legislate that law:- 112. Undoubtedly, the legislature enjoys much leeway and competence in matters of legislation, but every law enacted may not necessarily be tenable on the touchstone of the Constitution. It is the sole jurisdiction of this Court, under the law and the constitution to look into the fairness and constitutionality of an enactment and even declare it non-est, if it is found to be in conflict with the provisions of the Constitution. Thus, legislative competence is not enough to make a valid law; a law must also pass the test at the touchstone of constitutionality to be enforceable, failing which it becomes invalid and unenforceable. 113. Normally the courts make utmost efforts to save a piece of legislation from becoming invalid. But in certain cases, the courts also apply, inter alia, the doctrine of severance to remove a piece of legislation that distorts the scheme of a parent law, or deviates from the provisions of the Constitution. While dealing with the issue on the effect of law declared to be non est, a 14 Member Bench of this Court in the case of Dr Mobashir Hassan vs. Federation of Pakistan (PLD 2010 SC 265), has reached the following conclusion:- CRP.49/2016 etc 63 “169. It may be noted that the President has an authority under Article 89 of the Constitution to promulgate an Ordinance, but cannot issue temporary legislation, which the Parliament is not empowered to do. A thorough perusal of the Federal and the Concurrent Lists persuades us to hold that the President was not empowered to issue the NRO, 2007 as the subjects covered by its Section 2, 6, and 7 fall beyond the scope of these lists. As far as its manifestations is concerned, it has already been done by the Parliament before whom the NRO 2007 was placed, but the same was withdrawn subsequently under Rule 139 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, as impliedly the National Assembly refrained itself from making it as an Act of parliament. Inasmuch as, the actions taken from the date of its inception till the expiry of its constitutional life of 120 days under Article 89 of the Constitution from 5th October 2007 to Ist February, 2008, benefits derived by some of the persons have not been protected, and the Government (either Federal of provincial) has also not insisted to allow retention of the benefits derived out of it to the accused persons during the said period. More so, none of the beneficiaries, who have drawn benefit during the said stipulated period from 5th October 2007 to 31st July, 2009, when vide judgment dated 31st July 2009, all the Ordinances were declared to have been shorn of permanency, have not come forward to protect their benefits, although hearing of these petitions has been widely publicized in print and electronic media. Thus in view of theory of ultra vires, explained in Cooley’s Constitutional Limitations, reference of which has been made by Chief Justice Cornellius (as then he was) in Fazlul Quader Chowdhry vs. Muhammad Abdul Haque (PLD 1963 SC 486), wherein it has been observed that CRP.49/2016 etc 64 “for the constitution of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it, since such body or officer must exercise a delegated authority, and one that must necessarily be subservient to the instrument by which the delegation is made; in any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity”, we are of the opinion that the NRO, 2007 is void ab initio, therefore, the parties who have derived benefit shall not be entitled for the same from 5th October, 2007 and all the cases withdrawn under Section 2, 6, & 7 of the NRO, 2007 shall stand revived immediately. The Courts seized with the matters shall proceed to decide the same, considering that the NRO 2007 was never promulgated. 171. We have examined the respective contentions of the learned counsel for the parties as well as the vires of the NRO, 2007 on the touchstone of various Articles of the Constitution, and have come to the conclusion that the NRO, 2007 as a whole, particularly its Sections 2, 6 and 7, is declared void ab initio being ultra vires and violative of Articles 4, 8, 12, 13, 25, 62(f), 63(1)(h), 63(1)(p), 89, 175, 227 of the Constitution, therefore, it shall be deemed non est from the day of its promulgation i.e. 5th October 2007 as a consequence whereof all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the Courts of law including the orders of discharge and acquittals recorded in favour of accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect. 172. Resultantly, all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO, 2007 or where proceedings pending against the CRP.49/2016 etc 65 holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this Court and any other such cases/proceedings which may not have been brought to the notice of this Court, shall stand revived and relegated to the status of pre-5th of October, 2007 position.” 114. The present matter falls in the latter category. Section 8-A, or similar instruments of law, clearly falls foul of the principles laid down in a series of cases by this Court. Therefore, legislative competence alone cannot be made a ground of saving the impugned provision, unless the relevant Constitutional provisions are amended, which is not the case in hand. Even if a Court declares a law to be unconstitutional, it does not affect the past and closed transactions and the cases wherein vested rights have been created. 115. This question was also raised before this Court during the proceedings of the aforementioned Review petitions, where a number of contentions were made in this regard. It was contended that the Judgment under review should have been effective prospectively; that the benefits accrued to the Petitioners by the impugned legislative instruments, which were struck down by this Court, could not have been withdrawn as their rights were protected by the principles of locus poenitentiae; that the judgment under review was in personam and did not apply to others; and that judgments always applied prospectively and not retrospectively. In that regard, reliance was placed on the case Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their respective retirements, irrespective of their length of service as such’ (PLD 2013 SC 829). However, this Court did not agree with the contentions and observed that:- CRP.49/2016 etc 66 “129.......Now, it is a settled law of this Court that no right or obligation can accrue under an unconstitutional law. Once this Court has declared a legislative instrument as being unconstitutional, the effect of such declaration is that such legislative instrument becomes void ab initio, devoid of any force of law, neither can it impose any obligation, nor can it expose anyone to any liability.” “130. In the case in hand, the benefits extended to the Petitioners through the impugned legislation, were not only violative of law but were also declared ultra vires of the Constitution. In such like circumstances, the benefits, if any, accrued to the Petitioners by the said legislative instruments shall stand withdrawn as if they were never extended to them. The judgment relied upon by Syed Iftikhar Hussain Gillani is distinguishable on facts. Under the said judgment, this Court had re-visited the earlier judgment of this Court titled as Accountant General Sindh and others vs. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522) by which the retired Judges were granted pensionary benefits. In the said case, it was held that the pensionary benefits granted to retired Judges were violative of the scheme and as such the judgment was declared as per incurium, declaring further that no pensionary benefits could be granted to any retired Judge, unless he serves for five years in office. In the present proceedings, this Court has struck down the legislative instruments by which benefits were extended to a class of persons, in complete disregard of the service structure mandated by the provisions of Articles 240 and 242 CRP.49/2016 etc 67 of the Constitution. Through the legislative instruments, which were struck down by this Court, undue favours were extended to a few individuals, for political considerations against the mandate of the Act and the recruitment Rules framed thereunder. Such instruments were held to be violative of Articles 4, 8, 9, 14 and 25 of the Constitution. Through these legislative instruments, many of the Petitioners were absorbed and/or given out of turn promotions or back-dated seniority, depriving other meritorious Civil Servants of their seniority and smooth progression in career. A substantial number of unfit and unmeritorious Officers were thus absorbed/ promoted out of turn/given back-dated seniority in important cadres, services and posts by extending undue favors by the Authorities, skipping the competitive process. Such absorptions etc, which were not permissible under the Civil Servants Act, had practically obliterated the Constitutional and legal differentiations that existed amongst various cadres, posts and services. We have already observed in our judgment that the legislative instruments, which were struck down by this Court, had engendered a culture of patronage, bringing more politicization, inefficiency and corruption in the Civil Service.” 116. As to the claim that the out of turn promotions are covered by the doctrine of past and closed transaction, the infirmity of the argument is self- evident. Sometimes there are wrongs without individual victims while in other cases there are identified individual victims. The brunt of out of turn promotions is always borne by the individual officers who were bypassed due CRP.49/2016 etc 68 to out of turn promotions. The damaging effect on the careers of deserving officers who suffered due to these out of turn promotions continue during service and even after retirement in terms of pensionary benefits. If the beneficiaries of this illegal exercise are reverted to the positions to which they would have been entitled to, on their respective merit and promotion, on their turn, this would immediately open up vistas of promotion for those deserving officers who were earlier bypassed due to out of turn promotions. 117. In the light of the rules and principles laid down by this Court, we with respect are not inclined to agree with the proposition that vested rights that were created under a law subsequently declared unconstitutional by this Court have attained finality under doctrine of past and closed transaction, and that they are immune from the application of the aforementioned judgments of this Court. We have maintained that vested rights are generated only under a valid and uncontested instrument of law. An instrument that was still born or treated by this Court as non est is barred from creating any vested rights, let alone being protected under the doctrine of past and closed transactions. we believe that it is our duty to protect the rights and interests created under a law and also to deny the enjoyment of rights created under an invalid law. In the instant case, the Petitioners are claiming the protection of rights that were created under a law that has failed to pass the test of constitutionality, as determined by this Court; hence, they cannot take the plea of past and closed transaction. 118. The contention of the learned Counsel that the effect of the aforesaid judgments which declares the concept of out of turn promotion unconstitutional cannot be extended to apply retrospectively on the cases CRP.49/2016 etc 69 where law granting out of turn promotions was omitted, is without force. Insofar as the issue of examining the provisions of a repealed statute is concerned, such an exercise is carried out by Courts in routine in the context of Section 6 of the General Clauses Act, as well as Article 264 of the Constitution of Pakistan. Whenever any right, obligation, privilege or liability acquired, accrued or incurred under the repealed law is raised, the Courts are necessarily required to examine the provisions of the repealed statute. Thus, there is neither any reason in principle nor any precedent which bars the Courts from examining the provisions of a repealed statute in a case pending before it on the touchstone of its inconsistency with the provisions of the Constitution or the Fundamental Rights, as enumerated in the Constitution. Any other conclusion would lead to the absurd consequences that while the statute remains on the statute book, the Courts can examine its vires but once it was repealed by a subsequent statute, its effect, even if ex facie inconsistent with the Constitution or Fundamental Rights goes beyond the realm of judicial review. If such were the effect of repeal, then all that would be required to create a protected class of legislation is promulgation of patently unconstitutional statutes creating rights in favour of certain interested persons which though completely destructive of the Fundamental Rights of others, stood protected behind an impenetrable wall by the mere repeal of the statute through such unconstitutional Act. Such would not only be a fraud upon the statute but would be completely destructive of the rule of law and constitutional governance. Thus, there is no reason which compels the Court to sustain such an absurd proposition. As and when a repealed statute is invoked or raised in support of any claim, right, office or act, before the Court, CRP.49/2016 etc 70 the Court would always be entitled to examine its validity on the touchstone of the Constitution and Fundamental Rights. We have not been able to discover any instance from our own history as well as that of other legal systems with entrenched judicial review on the touchstone of the Constitution, where the Courts have refrained from examining the vires of the statute on the mere ground that at the time of review such law stood repealed by a subsequent statute. 119. However, when a statute (whether existing or repealed) is found to be ultra vires the Constitution, the Court is empowered – indeed, mandated – to examine whether any person continues to enjoy the benefits of the ultra vires statute, or whether any state of affairs continues to exist as a result, and if it is found so, the Court is mandated to undo the same, provided that the benefit or state of affairs in question is not a past and closed transaction. For instance, the case of an employee who had enjoyed an out of turn promotion pursuant to a law found to be ultra vires the Fundamental Rights, who now stands retired and or died, it would constitute a past and closed transaction inasmuch as it would be a futile exercise to re-open the case of such an employee. On the other hand, employees who were so promoted under such a statute and who continue to remain in service, would be liable to be restored to the position that existed prior to the benefit conferred under the statute found inconsistent with Fundamental Rights. Indeed, once a statute has been declared as being unconstitutional for any reason, all direct benefits continuing to flow from the same are to be stopped. Reference in this behalf may be made to the case of Dr. Mobashir Hassan vs Federation of Pakistan (PLD 2010 SC 265). Even during hearing, we called upon the learned Counsel CRP.49/2016 etc 71 for the Petitioners to satisfy us that the term ‘out of turn promotion’ used in Section 8-A is not violative of the provisions of Constitution guaranteeing fundamental rights to the civil servants. But none of them had addressed us on the issue. 120. In view of the above, we cannot accept the argument that while the beneficiaries of the repealed law could invoke its provisions to justify their out of turn promotions and yet raise an impenetrable bar, if the Court seeks to examine its consistency with the provisions of the Constitution and the Fundamental Rights. Indeed the case of the Petitioners claiming out of turn promotion under the repealed statute of Punjab is on a weaker wicket as compared to the officers whose out of turn promotions were sought to be given cover by a subsisting law. Yet when a subsisting statute was declared unconstitutional due to its violation of Fundamental Rights, a preferential treatment could hardly be sustained on the basis of a repealed statute. 121. This Court in the cases of Fazlul Quader Chowdhry vs. Muhammad Abdul Haque (PLD 1963 SC 486) and Muhammad Mubeen ul Salam vs. Federation of Pakistan (PLD 2006 SC 602), has held that “in any event, on questions relating to the constitutionality of actions, the ground of laches cannot prevail, for their can be no estoppel against the Constitution and an Act which is unconstitutional cannot become constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act.” These judgments further concluded that “this Court cannot be refrained from examining the constitutionality of a law because of lapse of time, therefore, notwithstanding any objection, if the constitutionality CRP.49/2016 etc 72 of a law is under challenge, its vires can be examined despite the fact that it had remained on the statute book for a considerable time.” 122. Indeed, raising such a question would lead to disastrous consequences; some of them are enumerated as under:- i. Citizens would lose their legitimate rights to usurpers merely by the lapse of time and under the garb of closed and past transactions; ii. In practical terms, declaring a law void and non est would make no difference as the undue benefits would continue to be enjoyed by the undeserving persons, under the garb of closed and past transactions, and at the cost of deserving persons. iii. The aims of justice would be defeated at the hands of a mechanical force of time; in other words, a mere operation of time would upstage the operation of law. iv. More alarmingly, this Court may come to lose its inherent jurisdiction to review a previous judgment, or any aspect of it, which may have remained hidden in the procedural or technical folds or escaped the testing at the altar of constitutional law. v. If allowed to be hampered by procedural niceties, this Court, or High Courts, may find it difficult to exercise their discretionary powers to render justice to the victims of an invalid law or of a law that has been declared void ab initio by this Court. vi. Annulling a law on constitutional grounds and yet protecting the rights created there-under would create an absurd situation, requiring the courts to enforce the provisions of substantive/constitutional CRP.49/2016 etc 73 laws, without disturbing the principle of closed and past transactions. vii. The blind application of the principle of past and closed transactions may also lead to defeat the very intent of legislature, in addition to causing hardship cases. viii. Finally, upholding a prima facie unconstitutional provision merely on the grounds of past and closed transaction would subjugate the rules of judicious construction to a mindless adherence to temporal considerations, whereas the very concepts of retrospectivity and prospectivity of laws are rooted in the golden tenets of equity and fairness, not in the mechanical passage of time. 123. We are clear in our view that the issue of past and closed transaction (except what has been concluded in paragraph 111) does not arise in the instant case as we have already declared void ab initio the legislative instruments that provided for out of turn promotions. In other words, the provisions of section 8-A of PCSA created no vested rights in favor of the Petitioners because it was void from the moment of its inception. The principle of past and closed transaction would apply in the cases where rights are created under a valid law, even though such laws are allowed to lapse or removed from statutes. It is critical to differentiate between the rights created under a valid law and those claimed under a law that was void ab initio, regardless of the fact that this Court declared its invalidity or unconstitutionality after some times. 124. The Counsel have relied on certain judgments in support of their contentions. We have perused them and found that most of these were passed CRP.49/2016 etc 74 before this Court examined the vires of the law providing for out of turn promotion in its constitutional jurisdiction in the case of Nadeem Arif. This judgment was followed later in a series of cases decided by this Court in constitutional jurisdiction. A fourteen Member Bench of this Court in the case of Justice Khurshid Anwar Bhinder vs. Federation of Pakistan (PLD 2010 SC 483), has concluded that “where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question of law, such pronouncement is the law declared by the Supreme Court within the meaning of Article 189 and is binding on all the Courts of Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to high place which the Court holds in the hierarchy in the country enjoy a highly respected position as if it contains a definite expression of the Court’s view on a legal principle, or the meaning of law. The principles enunciated by this Court in respect of the provisions of law pertaining to out of turn promotion hold the ground. 125. The contentions of the learned Counsel Khawaja Haris, Sr. ASC, pertaining to applicability of Article 27(1), are beyond appreciation. This Article protects the citizens from discrimination based on race, religion, caste, sex, residence and place of birth in matter of appointment to service of Pakistan. However, it does not open the doors of other forms of discrimination or nepotism under the garb of some rules that are patently unconstitutional and against the very scheme of the civil services. Were it so, a number of constitutional provisions such as Articles 4, 8, 9, 14, 18 and 25 would lose their significance and the entire edifice of social justice and equality before law would become vulnerable to various exceptions created under the CRP.49/2016 etc 75 perverse interpretation of Article 27(1). Moreover, the ambit of Article 27 (1) is confined only to the initial appointments and not the appointments by way of promotion; therefore, to stretch it any further would contort or destroy the very spirit of this important constitutional provision. Article 27 (1) is complementary to Article 25 and should be read in tandem. 126. The learned Counsel Khawaja Haris attempted to argue that Section 8-A of P.C.S.A falls within the exclusionary clause of Article 8 (3) (a) of the Constitution as it is a police specific section. With respect, we find this argument flawed and misconceived, because the exclusion clause deals with the situation where the law enforcement agencies are required to maintain public order at the perils of some law which is otherwise protected under Article 8(3) (a). In other words, the exclusionary clause has nothing, whatsoever, to do with the Civil Servants Act which governs the terms and conditions of the civil servants including the police force. 127. The further contention of learned Counsel Khawaja Haris, Sr.ASC, on the point of applicability of the cutoff date of Section 8-A of the Punjab Civil Servants Act, which was omitted on 17.10.2006, is also without force. The contention to treat a certain law which otherwise was held as void ab initio from a particular date in itself, is self-contradictory. We have already held that a law which was declared by this Court as un-constitutional from the date of its inception cannot be treated as being so from a date when it was omitted or repealed. 128. We have already dealt with the contentions of Messrs Hamid Khan, Muhammad Akram Shiekh and Ms. Asma Jehangir, on the issue of past CRP.49/2016 etc 76 and closed transaction in our foregoing paragraphs. Mr Muhammad Akram Sheikh, the learned Sr.ASC, has attempted to argue that the out of turn promotion is permissible in Islam and has relied upon an extract (reproduced above) from Seerat Encyclopedia, Volume 10. We do not find any substance in his contention nor has he advanced any argument except relying upon the above extract from the book, which has no nexus with the proposition he has advanced. 129. We have also perused the written synopsis of the learned Attorney General for Pakistan, received by us through mail. In substance he has only advanced his arguments that the judgments under review should apply prospectively. He has further contended that the principles enunciated in the judgments under review would not extend to the Province of Punjab. The grounds on which these arguments have been advanced are already dealt with by us in the foregoing paragraphs, therefore, we are of the considered view that the points raised, having already been answered in the judgments under review and this judgment, merit no consideration. 130. The learned Counsel for the Petitioners have attempted to draw a distinction in the judgments under review, inter alia, on the ground that no rules were framed to form a committee for scrutinizing the out of turn promotion to a Police Officer in the Province of Sindh, whereas in Punjab Rule 14-A was introduced to ensure transparency in grant of out of turn promotion. we have noticed from the available record that even this distinction is missing. The committee constituted under Rule 14-A had failed to draw a line between the job description of a Police Officer and the justification for grant of out of turn promotion. It is the duty of a Police Officer CRP.49/2016 etc 77 to arrest an accused or recover drugs and if he performs well, the law provides that such officer should be decorated with awards and rewards, but grant of out of turn promotion, in no way, is permissible, in view of the reasoning recorded by this Court in the judgments under review. The Committee constituted under Rule 14-A, has completely lost sight of the duty of a Police Officer while awarding them out of turn promotion. We have noticed numerous instances, which clearly speak that they in discharge of their duties were bound to perform such acts and if they were found to have done something extraordinary, they could have been decorated with awards, rewards or compensated with any amount. Although there are a number of glaring instances of out-of-turn promotions granted by the committee which do not conform to the set principles, however, we find it inappropriate to delve into each instance in order to examine the merits of the said promotions.We have already laid down the principle that the very concept and practice of out- of-turn promotions are violative of the services rules and the provisions of the Constitutions, hence, the question of merit of these promotions do not matter our considerations. SPORTS POLICY, 1982 131. For ease of reference, the Sports Policy of 1982, is reproduced hereunder: - Subject: PROMOTION OF SPORTS IN THE POLICE FORCE Memorandum It was observed at the D.Is.G’s conference held on 2nd and 3rd of December, 1981 that not only the general standard of sports had been gradually going down but the interest in games had also been sagging for the past few years. Since physical fitness is one of the principal trait of a professionally sound police officer, it was felt that necessary incentives and stimuli be provided for promotion of sports and physical fitness in Police Force. In order to achieve the objective in view, rewards and promotions to outstanding CRP.49/2016 etc 78 sportsmen have been considered imperative. Comprehensive standing instructions as outlined below are, therefore, being issued for strict compliance at all levels. D.Is.G. and SSP are particularly emphasized to kindly evince personal interest and ensure that the talent, wherever available, is given due recognition and good sportsmen are encouraged to give better performance: - i) All Heads of Police Offices will ensure that the following major games are played daily in unit lines, except for closed holidays. Not only necessary facilities be provided in this behalf but an endeavor should be made to raise District / Unit teams, where necessary talent is forthcoming: - a) Athletics b) Hockey c) Football d) Volleyball e) Basketball f) Kabaddi g) Wrestling h) Polo (for Lahore, Rawalpindi, DG Khan and PTC/Sihala only. ii) Inter District / Unit Tournaments. a) Range D.Is.G will organize Inter-District Range Tournaments in the above games by 15th of November each year. b) The individual sportsmen and members of teams winning Inter-District Range Tournaments shall be given commendations Certificates Class II which Rs.200/- as cash reward while the runner-up Commendation Certificate Class II with Rs.100/- as cash reward. c) Constable exhibiting outstanding performance shall be considered for entry into list “A” “B-1” and “C” as the case may be, by the Range D.Is.G. iii) Inter Range Sports. a) Inter Range Punjab Police Sports Tournaments shall be organized by the Director-General, Sports, Punjab Police by 15th December every year. b) Policemen securing first position in any individual event in Athletics and members of the teams winning the Police Inter Range Championship shall be awarded C.C. Class 1 with Rs.1000/- as cash reward while the runners-up given C.C. Class II with Rs.500/- as cash reward. iv) Selection of Teams and Training a) Punjab Police Teams shall be selected by the Director-General, Sports, Punjab Police by 15th December each year and he would organize training camps at stations considered suitable for improved hard training. b) The Members of the Punjab Police teams when called for camp training by the Director-General CRP.49/2016 etc 79 Chief Sports Officer, shall immediately be relieved by the Heads of Police Officers. v) Posting of Sportsmen Members of the Punjab Police Teams shall normally be posted close to the Provincial, Divisions or District HQrs, as the case may be. vi) Promotions a) Police Officers selected in the provincial teams for National Competition shall be awarded a C.C. Class 1 with Rs.5000/- as rewarded every time they are picked-up for such representation. b) Members of the Police Teams or individual Police Officers who win the National Championship in any game or an individual event in Athletics 1. Shall be placed on List B-1, promoted as Offg; HCs and sent for the next immediate lower School Course, if they happen to be Constables. 2. Shall be confirmed, promoted as officiating A.S.Is and sent for the next immediate Intermediate School Course, if they happen to be officiating H.Cs. 3. Shall be confirmed and promoted to the next higher rank if they are officiating as ASI, SI or Inspector, in case of ASIs and S.Is, they shall be nominated for the next immediate Upper School Course as well. 4. They shall also be awarded C.C. Class 1 with a cash reward of Rs.7,500/-. 5. Police members of the National teams who win Gold Medal in Word/Asian Olympic Games or World Cup shall be given one step promotion, brought on next immediate promotion course and also awarded a cash reward of Rs.10,000/- with a letter of appreciation by the Inspector-General of Police, Punjab, which shall be placed on their Character Rolls. vii) Promotion Indicated under Items (vi) (b) above, will, however, be admissible once in two years and an officer earning promotion on sports basis to the next rank should have served for at least two years since the date of his last promotion on similar basis. viii) Meritorious performance by G.Os will also be duly recognized by offering them suitable souvenirs. The above instructions should please be given vide circulation and brought to the notice of all ranks. CRP.49/2016 etc 80 132. We have heard the learned Counsel for the Petitioners Messrs. Hamid Khan and others on the issue of out-of-turn promotions pursuant to the Sports Policy, and we have also perused the said Policy. With respect, we do not subscribe to the contentions of the learned Counsel. The Sports Policy broadly lays down two paths of accelerated promotions for the officials. One prescribes the courses and examinations, in addition to the performance in the sports competitions, in order to be qualified for out-of-turn promotions. However, the other path provides for the out-of-turn promotions to the members of National teams who win Gold Medal in World/Asian Olympic Games or World cup. 133. We believe that there is some justification for allowing out-of- turn promotions, and that too up to the level of ASIs only, due to the fact that certain qualifications/courses/examinations have been prescribed in the Policy in order to be qualified for such promotions. In other words, there is no element of an arbitrary or selective choice of candidates for the accelerated promotions and they have to meet the bare minimum requirements of the Police Rules. 134. As far as the accelerated promotions in terms of Sub-clause (5) of Clause VI of the Sports Policy are concerned, we are of the view that such promotions are in conflict with the provisions of Punjab Civil Servants Act, 1974, and the rules framed thereunder, and which Act itself is created pursuant to the provisions of Articles 240 and 242 of the Constitution. 135. Moreover, there seems no justification to allow the police officers to enjoy accelerated promotions on the basis of their performance in CRP.49/2016 etc 81 sports activities, while this Court has declared out of turn promotion granted through statutory instrument to be ultra vires the provisions of the Constitution, on the ground of proven gallantry. In fact, promoting sports at the cost of professionalism within the police force will lead to ominous consequences. The efficient police officers will be demoralized if they are superseded by their junior colleagues, which in turn will also affect the overall performance of police in maintaining law and order. 136. This Court has already held in a series of judgments that acts of gallantry, no matter how commendable and appreciated by the society, do not justify out-of-turn promotions as they necessarily lead to impingement of the fundamental rights of fellow officers in terms of blocking their smooth progression of careers and impinging their respect and honor as protected under Articles 9 and 14 of the Constitution. Hence, this policy to the extent of accelerated promotions is not sustainable, being violative of the service laws and the provisions of the Constitution. This Court in a series of judgments has held that policy making is the domain of the executive and the Courts normally do not interfere in such matters, but when a policy is violative of the fundament rights of individuals, the Courts are obliged to examine such policy in judicial review. We are fortified by the judgments of this Court reported as Ghulam Rasool Vs. Government of Pakistan through Secretary, Establishment Division Islamabad (PLD 2015 SC 6), Dossani Travels Pvt. Ltd Vs. Travels Shop (Pvt) Ltd. (PLD 2014 SC 1), Iqbal Zafar Jhagra and Senator Rukhsana Zuberi Vs. Federation of Pakistan (2014 PTD 243), OGRA through Secretary Vs. Midway II, CNG Station (2014 SCMR 220), Watan Party Vs. Federation of Pakistan (PLD 2013 SC 167), Alleged CRP.49/2016 etc 82 Corruption in Rental Power Plants etc. (2012 SCMR 773), Dr. Akhtar Hassan Khan Vs. Federation of Pakistan (2012 SCMR 455), Executive District Officer (Revenue), District Khushab at Jauharabad Vs. Ijaz Hussain (2011 SCMR 1864), Al-Raham Travels and Tours (Pvt.) Ltd. Vs. Ministry of Religious Affairs, Hajj, Zakat and Ushr (2011 SCMR 1621), Punjab Public Service Commission Vs. Mst. Aisha Nawaz (2011 SCMR 1602), Suo Motu Case No.10 of 2007 ) (PLD 2008 SC 673) and Wattan Party through President Vs. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad (PLD 2006 SC 697). 137. The learned Counsel for the Petitioners, Mr. Hamid Khan, has contended that the accelerated promotions on the basis of Sports Policy are allowed to the officers who belong to a group that is separate from the main police group, and hence, distinction has to be drawn. Apparently, this contention does not seem convincing given the fact that we have perused the record and found that there exist no separate group of sports in the Punjab Police. In fact, serving police officers are participating in the sports competitions and they are the subjects of accelerated promotions on the basis of their performance. We have already held that seniority and promotions of the police officers are to be fixed/decided on the basis of the required standards provided in the service rules, hence accelerated promotions cannot be accorded on the basis of an officer’s performance in a sports competition. 138. However, it would be open to the government to frame rules providing a Sports Group within police in order to encourage and incentivize sports, which will not form part of the regular police force. In other words, the CRP.49/2016 etc 83 members of Sports Group shall not be assigned field posting, but will be restricted to their specialized Group. 139. The Learned Counsel Mr. Hamid Khan has referred to Article 259 of the Constitution to substantiate his point that the said Policy has been framed to promote sports in terms of the said Article. The perusal of Article 259, however, does not provide for any accelerated promotion and in fact confines the awards to the extent of decorations to be given by the President under the Federal Law. It may also be pointed out that the context of Article 259 is entirely different and it deals with the awards to be given to citizens by way recognizing their varied services and performances. It cannot be stretched beyond the given parameters to include accelerated promotions, by way of the said Policy; hence, the contentions of the learned Counsel are without substance. 140. We cannot lose sight of one important aspect of the case that the Punjab Government/Competent Authority has withdrawn all out of turn promotions earned by the police officials, in terms of Section 8-A of the Punjab Civil Servants Act, 1974. As a consequence, hundreds of thousands of police personnel have acquired their lawful right to promotion/seniority, which was denied to them owing to the invalid omitted law i.e. Section 8-A of the Act. In fact, a right has been created in favour of hundreds of thousands of Punjab Police personnel due to withdrawal of all out of turn promotions by the Punjab Government/Competent Authority. The police personnel in whose favour this right to gain lawful promotion/seniority has been created, were not impleaded as party to the present proceedings, therefore, these proceedings on this score alone merit dismissal. CRP.49/2016 etc 84 141. During the hearing of these proceedings, one of the Petitioners’ Counsel has prayed that the judgment of this Court in the case of Gul Hassan Jatoi vs. Faqir Muhammad Jatoi reported in (2016 SCMR 1254), may also be made applicable to Punjab Police, inter alia, on the ground that Police Rules are abused by the authorities with regards to termination of probation and not sending the police officials to different examinations/courses under Chapter XIII of the Police Rules on their turn. The Police Rules are applicable both to the Sindh Police and the Punjab Police. We are cognizant of the fact that delay in promotion of police officials affect their morale as they work hard in performing their duties. This Court in paragraphs 74 and 75 of the aforesaid judgment has given the following directions: - “74. It has been observed that in many cases the Police personnel have completed their statutory period of probation but they were not confirmed for want of notification, and as result of which such officials have suffered in terms of delayed promotion or loss of seniority, which is a sheer negligence and abuse of power on the part of the competent authorities concerned. Hence, we are of the view that this practice must be brought to an effective end so that injustice may not be perpetrated against such officials. Therefore, in future those Police Personnel who have completed their statutory period of probation, whether it is three years or two years, they shall stand confirmed whether or not a notification to that effect is issued. 75. We have further observed that a cherry picking is made in the case of selection of Police personnel for police training or practical training despite the fact they have completed their required period to be eligible for such trainings, which amounts to denying them of timely promotion for the next scale; hence, we direct that in future, competent authority shall ensure that the Police personnel who have completed their required period to be eligible for trainings shall be forthwith sent for the training; and in case such police officials are bypassed for such trainings on account of default by the department, or to extend a favor to the junior, or CRP.49/2016 etc 85 negligence by the authority concerned, their inter-se seniority and the accompanying financial entitlements shall not be effected on account of their late joining or completion of training.” These directives shall also be applicable to all the Police officials who are governed by Police Rules, 1934 and the competent authority shall ensure compliance to streamline the service structure of the police by redressing the heart burning and dismay of the police officials at the hands of high ups, who abuse their discretion in violation of the Police Rules. 142. Before parting with this judgment, we acknowledge the assistance of the Senior Counsel rendered by them on the issues at hand, which will have far reaching effect on the working of the police. 143. For the aforesaid reasons, all the listed Review Petitions and the Applications are dismissed. The I.G.P, Punjab, the Home Secretary, Punjab, and the Secretary, Establishment Division, are directed to comply with the judgment, by fixing the seniority of all the Police Officers who were given out of turn promotion alongwith their batch-mates, as if they were never given out of turn promotion. However, the orders of withdrawal of out of turn promotion passed by the Department/Competent Authority shall be recalled against the Police Officers who had earned out of turn promotions, pursuant to the judgments of superior Courts/Service Tribunals, as discussed in paragraph 111 of this judgment. For the purpose of compliance of this judgment, necessary D.P.C/Board, as the case may be, shall be immediately held without further loss of time and a compliance report be submitted to the Registrar of this Court for our perusal in Chambers. This exercise shall be completed within a period of one month. The Advocate General, Punjab, and the learned CRP.49/2016 etc 86 Attorney General for Pakistan shall communicate the directives of this Court to the relevant authorities. Chief Justice Judge Judge Judge Judge Announced in open Court at Islamabad on _____________2016. Judge. Approved for reporting.

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL REVIEW PETITION NO. 526 OF 2020 IN CIVIL PETITION NO. 923 OF 2020 (To review this Court’s order dated 21.10.2020 passed in Civil Petition No. 923/2020) Abid Hussain … Petitioner VERSUS Secretary, Ministry of Defence, Government of Pakistan through Chief of Air Staff, Islamabad … Respondent For the Petitioner: Mr. Manzoor Ahmed Rehmani, ASC Ch. Akhtar Ali, AOR On Court’s Call: Mr. Sajid Ilyas Bhatti, Addl. Attorney Gen Date of Hearing: 16.02.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks review of the order of this Court dated 21.10.2020 whereby Civil Petition No. 923/2020 filed by him was dismissed. 2. Briefly stated the facts of the matter are that the petitioner while serving as Corporal Technician in the Pakistan Air Force in Administrative Wing at Faisal Base, Karachi, was charged on two counts i.e. under Sections 65 & 71 of Pakistan Air Force Act, 1953 for an act prejudicial to good order and Air Force discipline and for getting firearms training while violating the norms of a disciplinary force at Bhimber, Azad Kashmir in the months of April/May, 2003. However, he was found guilty of charge under Section 71 of the Pakistan Air Force Act, 1953 by the Field General Court Martial vide order dated 07.10.2004 and while dismissing him from service, he was further burdened with rigorous imprisonment for a term of 9 years and 8 months. This order was challenged before the Court of Appeals i.e. Appellate forum, which also concurred with the findings Civil Review Petition No. 526/2020 2 of the Field General Court Martial vide order dated 19.03.2005. Being aggrieved by the orders passed by the Field General Court Martial and the Court of Appeals, the petitioner filed Constitutional Petition before the Lahore High Court, Rawalpindi Bench, which was partially allowed vide judgment dated 26.04.2010 wherein the sentence of 9 years 8 months was reduced to 1 year and 6 months SI. The learned High Court while deciding the said petition mainly held that the petitioner has been convicted and sentenced on the basis of solitary statement of one Ghulam Murtaza who was also saddled with similar charge and since his case is at par with Ghulam Murtaza, therefore, the petitioner also deserves the same punishment as recorded against the said Ghulam Murtaza. The petitioner challenged the judgment of the High Court before this Court after ten years by filing Civil Petition No. 923/2020, which was dismissed vide order dated 21.10.2020, hence, the instant petition with prayer to review the said order. 3. Learned counsel for the petitioner inter alia contended that the petitioner was charged for committing a civil offence, which under the Pakistan Air Force Act, 1953, does not confer jurisdiction to Field General Court Martial to try the petitioner; that according to the definition clause of the aforesaid Act, “civil offence” means an offence which is triable by an ordinary criminal court; that in this view of the matter, the petitioner ought to have been handed over to a criminal court of ordinary jurisdiction to proceed against him; that as the Field General Court Martial has wrongly assumed jurisdiction, the conviction and sentence awarded to the petitioner has lost its sanctity and the same may be set aside; that this point was raised before the High Court and before this Court in the memo of petition, but this Court in the judgment under review did not consider this point. Lastly, it is contended that the question of limitation is out of the purview as the jurisdictional question was specifically raised but it was not decided. 4. On the other hand, learned Additional Attorney General has defended the order under review. He contended that being member of a disciplined force i.e. Pakistan Air Force, the petitioner was supposed to be dealt with under the Pakistan Air Force Act, 1953, and was rightly tried and punished under the relevant law by the Field General Court Martial. Civil Review Petition No. 526/2020 3 5. We have heard learned counsel for the petitioner as well as learned Law Officer at length and have also perused the relevant record with their able assistance. It would be in fitness of things to decide the question of venue of trial. The crux of the arguments advanced by the learned counsel for the petitioner is that under the Pakistan Air Force Act, 1953, the Field General Court Martial had no jurisdiction to try the petitioner, rather the same was within the domain of the ordinary criminal court. To resolve this argument, it would be advantageous to reproduce Section 4(xi) & (xvi) of the Pakistan Air Force Act, 1953, which define “civil offence” and “criminal court” in the following language:- “4(xi) “civil offence” means an offence which is triable by a Criminal Court; 4(xvi) “Criminal Court” means a Court of ordinary criminal justice in any part of Pakistan or established elsewhere by the authority of the Federal Government”; The words “civil offence” and “criminal court” are introduced in the laws enacted to deal with the personnel of the Armed Forces of Pakistan. The word “civil offence” has been defined in Pakistan Navy Ordinance, 1961, in the same language as has been used in the Pakistan Air Force Act, 1953. However, this expression has been outlined more clearly in the Pakistan Army Act, 1952, in the following terms:- “8(3). “Civil offence” means an offence which, if committed in Pakistan, would be triable by a criminal court.” It is not out of context to mention that in ordinary meanings, the word “criminal court” refers to a court constituted to deal with criminal offences. It is an established rule of interpretation of the statute that any provision of law has to be given its ordinary meanings in ordinary circumstances unless and until it interprets a different connotation. This Court in the case of Dr. Zahid Javed Vs. Dr. Tahir Riaz Chaudhry (PLD 2016 SC 637) has categorically held that “when language of the statute is plain and unambiguous, then the Court must give effect to each word used in the statute and it would not be open to the Courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and Civil Review Petition No. 526/2020 4 policy of the Act.” The definition of “criminal court” though confines itself to a court established to deal with the criminal acts and omissions but close scrutiny of the language used by the Legislature while defining the word “criminal court” in the three enactments dealing with Armed Forces of Pakistan i.e. Pakistan Air Force Act, 1953, Pakistan Army Act, 1952 and Pakistan Navy Ordinance, 1961, shows that it actually is a departure to give specific meanings regarding the definition of “criminal court” in which the domain of constitution of criminal court has been extended with special emphasis qua the authority of the Federal Government. 6. Broadly speaking the expression “civil offence” & “criminal court” are alien to Pakistan Penal Code, 1860 and Code of Criminal Procedure, 1898. Chapter II of Pakistan Penal Code, 1860, deals with “General Exceptions” wherein the word “offence” is defined at number 40 in the following terms:- “40. "Offence": Except in the chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code.” However, there is an exception to the general law, which is spelled out from Section 5(2) of the Code of Criminal Procedure, 1898, which speaks about trial of offences against other laws. Section 6 of the Cr.P.C. categorizes the criminal courts into (i) High Court of a Province (in original/appellate jurisdiction), (ii) Courts of Sessions, (iii) Courts of Magistrates. 7. Undeniably the petitioner was Corporal Technician i.e. a junior officer, therefore, was “airman” according to Section 4(viii) of the Pakistan Air Force Act, 1953, which says “airman” means any person subject to this Act other than an officer or a warrant officer”. According to Section 4(iv) “Air Force” means officers, warrant Officers and airmen…….”. Therefore, there is no doubt that the petitioner was subject to the Pakistan Air Force Act, 1953. The petitioner was convicted for the charge under Section 71 of the Pakistan Air Force Act, 1953. The expression “civil offence” is brainchild of the Pakistan Air Force Act, 1953. The same is reproduced as follows:- "71. Civil offences.___(1) Subject to the provisions of section 72, any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be dealt with Civil Review Petition No. 526/2020 5 under this Act and, on conviction, be punishable as follows, that is to say :- (a) if the offence is one which would be punishable under any law in force in Pakistan with death or with imprisonment for life, he shall be liable to suffer any punishment, assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; (b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by any law in force in Pakistan, or to suffer short imprisonment or such less punishment as is in this Act mentioned; Provided that, where the offence of which any such person is found guilty is an offence liable to hadd under any Islamic law, the sentence awarded to him shall be that provided for the offence in that law”. (2) The powers of a court‑martial or an officer exercising authority under section 82 or section 86 to charge and to punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an Air Force offence. (3) Notwithstanding anything contained in this Act or in any other law for the time being in force, a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (dd) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly.” 8. Section 71(1) clearly lays down that if any person who is subject to the Pakistan Air Force Act, 1953, commits a civil offence, he shall be deemed to be guilty of an offence against this Act and shall be liable to be dealt with under the Pakistan Air Force Act, 1953. Sub- sections 1(a) and 1(b) and its proviso prescribe punishment for different kind of offences. The words “any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be dealt with under this Act” need no elaborative interpretation. 9. Section 72 of the Pakistan Air Force Act, 1953, is an exception to the aforesaid Section 71. It speaks about civil offences, which are not triable by courts-martial in the following manner:- “72. Civil offences not triable by courts‑martial. A person subject to this Act who commits an offence of murder against a person not subject to Military, Naval or Air Force Civil Review Petition No. 526/2020 6 law, or of culpable homicide not amounting to murder against such a person, or of zina or zinabiljabr in relation to such a person, shall not be deemed to be guilty of an offence under this Act and shall not be tried by a court‑martial, unless he commits any of the said offences:- (a) while on active service, or (b) at any place outside Pakistan, or (c) at a frontier post specified by the Federal Government by notification in this behalf.” 10. In the case of Said Zaman Khan Vs. Federation of Pakistan (2017 SCMR 1249), the accused although was a civilian but was involved in launching attacks on the Pakistan Army. This Court candidly held that although he was a civilian but due to his acts, he became subject of Pakistan Army Act. It was held as under:- “The offence of which the Convict was accused is obviously punishable under the ordinary law of the lands triable by a Criminal Court, hence, constituted a "civil offence" as defined by subsection (3) of section 8 and liable to be tried by the FGCM in view of the provisions of section 59 of the said Act. 11. In the famous case of Cox Vs. Army Council ([1963] AC 48, House of Lords), the petitioner while serving in the British Army in Germany was charged before a District Court Martial under Section 70 of the Army Act, 1955 for committing a “civil offence” i.e. driving without due care and attention contrary to Section 3(1) of the Road Traffic Act, 1960 and was sentenced to be severely reprimanded. He appealed on the ground that the charge under Section 70 of the Army Act, 1955, is not correct as it does not disclose an offence; that the charge is not a civil offence within the meaning of said Section 70, and that the act of driving without care and attention is not an act which can be committed in England. The Court of Appeals dismissed his appeal by holding as under:- “This Court accordingly holds that section 70 is upon its true construction an offence-creating section, and it covers an act committed abroad by a person subject to military law which, if committed in England, would have constituted an offence under section 3(1) of the Road Traffic Act, 1960. The appellant was, therefore, rightly convicted of the civil offence with which he was charged.” The definition of the word “civil offence” also came under discussion. The relevant portion of the said judgment reads as follows:- Civil Review Petition No. 526/2020 7 “Before dealing with this argument, it is desirable to analyse section 70 of the Army Act, which provides as follows: “(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this Section. (2) In this Act the expression ‘civil offence’ means any act or omission, (a) punishable by the law of England, or (b) which, if committed in England, would be punishable by that law; and in this Act the expression ‘the corresponding civil offence’ means the civil offence the commission of which constitutes the offence against this section.” The letters (a) and (b) have been introduced by this court to facilitate reference hereafter. “Civil offence” means, of course, a civil as opposed to a purely military offence.” (Underlined to lay emphasis) The appeal before the House of Lords was also dismissed and in doing so, the House of Lords further elaborated the meaning of word “civil offence” as under:- “I have made no mention of a point which may deserve consideration in some future case. It will have been observed that “civil offence” is defined by Section 70(2) as meaning not only any “act” but also any “omission” which, if committed in England would be punishable by the law of England.” (Underlined to lay emphasis) 12. In view of the above, it can safely be concluded that the word “civil offence” though alien to Pakistan Penal Code, 1860, however, the acts and omissions similar to those offences relating to civilians are ordinarily triable by criminal courts in Pakistan. The expression “civil offence” is exclusively brainchild of the statute relating to the offences committed by members of the armed forces, hence, any person who is subject to law of the armed forces, if commits civil offence, would be dealt with under the procedure laid down in the respective enactments. However, the provision of Section 5(2) of the Code of Criminal Procedure, 1898, is an exception and that can be pressed into to avail the application of said provision for the purposes of taking cognizance to deal with the matter in the spirit of the enactment. The intent of the law makers is that any offence, which is punishable under ordinary law of Pakistan, if committed by a person who is subject to the law of armed forces including Pakistan Air Force, he would be dealt with under the respective law of the armed forces. 13. In view of what has been discussed in the preceding paragraphs, the Field General Court Martial had full jurisdiction to try the petitioner. We have noted that although the point of jurisdiction was taken in the memo of petitions before this Court and the High Civil Review Petition No. 526/2020 8 Court but it was never argued. Nonetheless, the petitioner should have taken the jurisdictional point before the court of first instance. 14. So far as the merits of the case are concerned, we have noted that this Court in the order under review has very elaborately dealt with the matter in paragraphs 2 & 3 of the order to which no exception can be taken. The said paragraphs read as under:- “2. The petitioner was not alone as there were other persons also who received firearm training, couple of them were in the service of Air Force. One of those was Ghulam Murtaza, who appeared as witness for the prosecution. Ghulam Murtaza in his deposition had stated that he was inquisitive to know as to how the Mujahidin get training in the camps. For such purpose, he obtained one week leave on the pretext of solving domestic problems. He also deposed that the petitioner also obtained training with him. Though such exculpatory statement is not sufficient to convict a co-accused, however, in the evidence it has come on the record that the petitioner did go to the place where other persons were being imparted firearm training. The petitioner stated that he did not go inside where training was imparted; that thereafter he came back with his senior and went to his native town. In his statement, he narrated how he reached that unknown place from Sargodha by public transport and did not inquire his senior where he was going. He also stated that he did not bear the travel expenditure and only when he reached the unknown place, he came to know that it was a firearm training camp. The High Court, while keeping in view the fact that the prosecution witness who confessed his guilt was given less punishment, reduced the sentence awarded to the petitioner from nine years eight months RI to one year six months RI as was awarded to Ghulam Murtaza. 3. After ten years of such decision and after getting released from jail after serving his sentence, the petitioner has filed this petition in the year 2020. Keeping aside the delay on one side, we proceeded to examine the merits of the case and found that there was sufficient material on record for awarding punishment. The High Court has already taken a lenient view by reducing the sentence from nine years eight months to one year and six months. No case for interference has been made out. This petition is, therefore, dismissed and leave refused.” 15. The proceedings carried out by the Field General Court Martial were appropriate and all the legal requirements of law were fully adhered to meet the ends of justice. The petitioner was given full opportunity to plead his case. This Court has repeatedly held that review jurisdiction vested in this Court under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973, read with Order XXVI of the Supreme Court Rules, 1980, can be invoked only when there is an error apparent on the face of the record, or for ends of Civil Review Petition No. 526/2020 9 justice or to prevent abuse of the process of the court. Such jurisdiction is not open to allowing re-hearing or re-arguing the merits of a case. Learned counsel for the petitioner could not point out any error apparent on the face of record, which could warrant interference by this Court. Besides, we have noted that the petitioner had challenged the judgment of the High Court before this Court after a lapse of more than ten years. He could not give any plausible reason for such an inordinate delay. Not challenging the order of the High Court means that the petitioner had accepted the decision. It is a well settled proposition of law that irrespective of the fact that the order is vague, without jurisdiction or illegal, one must approach the competent court of law to challenge the same within time prescribed by law. Where a right is required to be asserted, it has to be done vigilantly and no indulgence can be shown to indolent and negligent litigant. 16. For what has been discussed above, this review petition is dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 16th of February, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE QAZI FAEZ ISA CIVIL REVIEW PETITIONS NO.561, 568 TO 570, 600 TO 604 AND 607/2015 (On review of this Court’s judgment dated 19.8.2015 passed in Const.P.38/2015, CPLA No.250/2015, CMA No.1435/2015 in CPLA No.Nil/2015, CPLA No.145/2015, C.P.No.38/2015, C.P.No.20/2015, C.P.No.21/2015, Const.P.38/2015 and C.P.No.253/2015) AND CIVIL MISCELLANEOUS APPLICATION NO.8635/2015 (Application for impleadment) AND C.M.APPEAL NO.125/2015 IN CRP NO.NIL/2015 (Misc. Appeal against the order of Registrar) Govt. of Punjab, etc … (in CRP-561/15) Federation of Pakistan … (in CRP-568 to 570/15) Province of Sindh, etc … (in CRP-600/15) Govt. of Balochistan, etc … (in CRP-601 to 603/15) Mir Abdul Karim Nausherwani … (in CRP-604/15) Atta-ur-Rehman … (in CRP-607/15) Govt. of Punjab, etc … (in CMA-8635/15) Atta-ur-Rehman … (in C.M.Appeal-125/15) …Petitioners VERSUS Aamir Zahoor-ul-Haq, etc … (in CRP-561, 568, 601 & 604/15) Muhammad Aslam Bootani, etc … (in CRP-569, 602 & 607/15) Malik Muhammad Saleem … (in CRP-570 & 603/15) Lal Khan Chandio, etc … (in CRP-600/15) Aamir Zahoor-ul-Haq, etc … (in C.M.A-8635/15) Aamir Zahoor-ul-Haq, etc … (in C.M.Appeal-125/15) …Respondents For the petitioners: Mr. Salman Aslam Butt, A.G.P. Ch. Aamir Rahim, Addl. Attorney General Mr. Nayab Hassan Gardezi, ASC C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 2 :- Mr. M. Waqar Rana, Addl.A.G a/w Qari Abdul Rasheed, AOR (in CRP-568 to 570/15) Mr. Razzaq A. Mirza, Addl.A.G. Punjab (in CRP-561/15) Mr. Adnan Basharat, ASC (in CRP 607/15) Mr. Ayaz Khan Swati, Addl.A.G Balochistan (in CRP-601 to 603/15) Syed Iftikhar Hussain Gillani, Sr.ASC (in CRP-604/15) Mr. Farooq H. Naek, Sr.ASC (in CRP-600/15) Mr. Adnan Basharat, ASC (in C. Misc. Appeal 125/15) For the applicant: Mr. Ajmal Raza Bhatti, ASC (in CMA No.55 of 2016) For the respondents: Syed Ali Zaffar, ASC (in CRP-561/15) Nemo (in CRP-569/15) For M/o Foreign Affairs For respondents (in CRP 603/15) Mr. Riffat Butt, Dir. Legal, Advisor M/o F.A Mr. Naeem Cheema, DCP, M/o F.A Mr. Kamran Murtaza, ASC Dates of hearing: 6th to 8th January, 2016 … C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 3 :- JUDGMENT MIAN SAQIB NISAR, J.- Through the aforesaid petitions filed under Article 188 of the Constitution read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980, review has been sought of the consolidated judgment dated 19-08-2015 passed by this Court in Civil Petitions Nos. 250/2015 and CMA No. 1435/2015 in CP No. Nil/2015 filed by the Federation of Pakistan through M/O Foreign Affairs, Civil Petitions Nos. 253 and 574 of 2015 filed by one Atta-ur-Rehman, Civil Petitions Nos. 20-Q and 21-Q of 2015 filed by Government of Balochistan, etc. challenging the validity of the common judgment dated 27-11-2014 passed by the High Court of Balochistan, Quetta in C.P. No. 17 & 347 of 2011; Civil Petition No. 145/2015 filed by Province of Sind, etc. against the judgment dated 02-01-2015 passed by the High Court of Sindh, Karachi in Const. Petition No. D-5806/2014; and Constitution Petition No. 38/2015 filed by one Aamir Zahoor-ul-Haq under Article 184 (3) of the Constitution. 2. Brief facts necessary for the decision of the review petitions are that various constitution petitions assailing the validity of letters issued by the Ministry of Foreign Affairs, Government of Pakistan informing Arab dignitaries the area specified for the hunting of Houbara Bustard for the hunting season 2013-2014 and 2014-2015 were filed in the High Courts of Balochistan and Sindh respectively. The learned High Court of Balochistan struck down the impugned letter being unlawful and directed the government of Balochistan to perform its duties in accordance with the Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 2014 (Balochistan Act, 2014). Learned High Court of Sindh struck down the notification dated 23-10- 2014 issued by the Sindh Government under section 40 (1) of the Sindh Wildlife Ordinance, 1972 (Sindh Ordinance, 1972) removing Houbara Bustard from the category of protected animal and placing it in the category of game animal and consequently the letter issued by Ministry of Foreign Affairs was declared being without lawful authority. Aggrieved of the judgments the C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 4 :- Federation, Government of Balochistan, Province of Sindh and one Atta-ur- Rehman preferred the above mentioned Civil Petitions. During the pendency of the Civil Petitions one Aamir Zahoor-ul-Haq also filed a Constitution Petition before this Court under Article 184 (3) of the Constitution with the prayer that the Ministry of Foreign Affairs and Wildlife Departments be refrained from issuing any permit for hunting of Houbara Bustard. This Court allowed the Constitution Petition No. 38/2015 while the Civil Petitions filed by the Federation and Province of Balochistan and Sindh were dismissed vide Judgment dated 19-08-2015 as under:- “23. Therefore, for the aforesaid reasons, Civil Petition for Leave to Appeal No.145 of 2015, filed by the Province of Sindh, is dismissed and Constitutional Petition No.38 of 2015, filed by citizen-lawyer Mr. Amir Maroof Akhtar is allowed in the following terms: (i) The Notification is declared to be ultra vires the Sindh Wildlife Protection Ordinance and struck down; (ii) Neither the Federation nor a Province can grant license/permit to hunt the Houbara Bustard; (iii) The Federal Government is directed to ensure that its obligations under the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) and the Convention on Migratory Species of Wild Animals (CMS), which have been recognized by Pakistani law, are fulfilled and issue requisite directions to the Provinces in this regard in terms of Article 149 (1) of the Constitution; and (iv) The Provinces to amend their respective wildlife laws to make them compliant with CITES and CMS and not to permit the hunting of any species which is either threatened with extinction or categorized as vulnerable.” 3. Leading the arguments, Mr. Salman Aslam Butt, the learned Attorney General argued with regard to Para 23(i) that notification issued by the Sindh Government being temporary in nature has lapsed with time and is neither pressed nor defended. With regard to Para 23 (ii) he maintained that perusal of paragraphs 11 and 14 of the judgment reveals that this Court was mindful of a situation where the global population of Houbara Bustard could C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 5 :- be at a level where sustainable hunting under the law could be allowed. However by placing a perpetual ban through Para 23 (ii) the judgment has effaced its own reasoning and findings. Further stated that perpetual ban is against the wildlife laws of the country. The vires of those laws have never been questioned, therefore perpetual ban renders them redundant, which is not envisaged under the law and the Constitution. Alluding to international convention on Conservation of Migratory Species of Wild Animals (CMS), the learned Attorney General maintained that CMS does not obligates Federation or Provinces to place a ban on the hunting of Houbara Bustard rather the same allows sustainable taking (hunting) of Houbara Bustard as best mean of conservation. He stated that according to WWF Pakistan the population of Houbara Bustard in Pakistan has remained stable in the last twenty year, which shows that sustained hunting is not in any way affecting the population of Houbara Bustard. Learned Attorney General, therefore, submitted that Para 23 (ii) of the judgment be reviewed to the extent it allows hunting of Houbara Bustard in accordance with the law. 4. With regard to the direction contained in Paragraph 23 (iv) of the judgment, the learned Attorney General contended that direction to legislature to legislate on a particular subject is beyond the pale of jurisdiction of the Apex Court. In this regard he relied upon the case tiled Al-Jehad Trust through HabibulWahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan (1999 SCMR 1379). 5. Mr. Razzaq A. Mirza, learned Addl. A. G Punjab submitted that Province of Punjab was not a party to the Petition and any order affecting the rights of the Province of Punjab could not be made. Further stated that Punjab Wildlife Protection Act, 1974 empowers the Provincial Government to allow hunting of various species of wildlife by placing them in the schedule of game animals, therefore permanent ban placed on the hunting of Houbara Bustard is against the law. He also objected to the maintainability of the petition under Article 184 (3) as no question of public importance for the enforcement of fundamental right was raised in the petition. C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 6 :- 6. Appearing for the Province of Sindh, Mr. Farooque H. Naek, Sr. ASC maintained that the Province of Sindh was not allowed a proper and due hearing. In this regard it was pointed out that the Civil Petition filed by the Province of Sindh was settled by late Mr. Abdul HafeezPirzada, Sr. ASC of this court, who also appeared in the case on number of dates of hearing, however his request for adjournment was declined despite the fact he was admitted in hospital in UK. Addl. A. G Sindh was asked to argue the case instead. Learned counsel also submitted that this Court erred in law by placing reliance on the judgment of the Sindh High Court tiled Society for Conservation and Protection of Environment (SCOPE), Karachi v. Federation of Pakistan, etc. (1993 MLD 320) while setting aside the notification dated 31-10-2014 issued by the Government of Sindh. According to him the facts of the SCOPE case are distinguishable as in the said case the circular was not issued by the Government in exercise of powers conferred under section 40 (1) of the Sindh Wildlife Protection Ordinance, 1972. It was argued that in absence of any malafide the notification issued in exercise of lawful authority under the law could not have been set aside. Referring to conventions which forms basis of the judgment, the learned counsel submitted that CMS was not ratified by the Parliament whereas Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES) was not applicable to the case of hunting. In any event both the conventions being not made applicable through municipal laws of the Province the same are not enforceable by the Courts. 7. Mr. Muhammad Ayaz Khan Swati, learned Addl. A.G. Balochistan while adopting the arguments of learned Attorney General and Mr. Farooque H. Naek added that the Balochistan (Wildlife Protection, preservation, Conservation and Management) Act, 2014 recognizes both CMS and CITES and that Houbara Bustard has been listed as a game animal under the Balochistan law. To the question that the Civil Petition filed by Government of Balochistan were dismissed being time barred he replied that as identical question was being decided by the Court, the delay in filing the Petitions should have been condoned and the same should have been decided on merits. C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 7 :- 8. On behalf of Muhammad Aslam Bhootani respondent, Mr.Kamran Murtaza, learned ASC appeared and submitted that under Order XXVI Rule 8 of the Supreme Court Rules, 1980 the review has to be heard by the same bench which passed the judgment. Learned ASC supported the judgment and contended that no ground for review has been made out, hence the petitions are liable to be dismissed. 9. Power of review has been conferred upon this Court under Article 188 of the Constitution subject to any Act of the Parliament and the rules framed by the Supreme Court. Order XXVI rule 1 of the Supreme Court Rules, 1980, framed under Article 191 of the Constitution, provides that the Supreme Court can review its judgment, order of any civil proceedings on the grounds analogous to those mentioned in Order XLVII Rule 1 of the Civil Procedure Code and any criminal proceeding on the ground of an error apparent on the face of the record. Under Order XLVII Rule 1 a party can have recourse to review of a judgment on the grounds of discovery of new and important matter or evidence which, despite due diligence was not within his knowledge or could not be produced at the time of passing of the judgment or order, on account of some mistake or error apparent on the face of the record or for any other sufficient reasons. Scope of the review, thus is limited and is confined only to error apparent on the face of the record or floating on the surface of the judgment which, if noticed earlier, would have direct bearing on the conclusions drawn by the Court. This court in the report tiled Abdul Ghaffar- Abdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363) while elaborating the scope of review jurisdiction held: “17. From the above case law, the following principles of law are deducable: (i) That every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the case; (ii) that if the Court has taken a conscious and a deliberate decision on point of fact or law, a review petition will not lie; C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 8 :- (iii) the fact the view canvassed in the review petition more reasonable than the view found favour with the Court in the judgment/order of which the review is sought, is not sufficient to sustain the review petition; (iv) that simpliciter the factum that material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie; (v) that simpliciter the fact that the conclusion recorded in the judgment/order is wrong does not warrant the review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie; (vi) that if the error in the judgment/order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie; (vii) that the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel would warrant sustaining a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility; (viii) that the Constitution does not place any restriction on the powers of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis come its way so long review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good; (ix) that the Court is competent to review its judgment/order suo moto without any formal application; (x) that the under the Supreme Court Rules, its sits in divisions and not as a whole, Each Bench whether small or large exercises the same powers vested in the Supreme Court and decisions rendered by the Benches irrespective of their size are decisions of the Court having the same binding nature.” C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 9 :- 10. Keeping in view of the limited scope of review jurisdiction, we will now consider the arguments of the review petitioners to see if their case falls within the ambit of review jurisdiction of this Court. Before proceeding further it will be advantageous to examine the various provisions of the wildlife laws of the Provinces and international conventions on the subject. 11. All the provinces had their wildlife laws with common object, as set out in their preambles, to protect, preserve, conserve and manage wildlife. The Balochistan Act, 2014 and KPK Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015 (KPK Act, 2015) recognizes CMS and CITES. Balochistan Act, 2014 list Houbara Bustard both as protected and game animal. The wildlife laws of the Punjab and Sindh are identical but for some minor variations. All the laws categorized wildlife into protected and game animal. Hunting of the protected animals is prohibited whereas license is required to hunt game animals. Under these laws the governments of respective Provinces are empowered to grant exemption from hunting and capturing of any animal as well as enjoy power to remove any animal from the protected list and to place it in the category of game animal and vice versa. Thus under the Sindh Ordinance, 1972, the Balochistan Act 2014, the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974 (Punjab Act, 1974) and the KPK Act, 2015 even protected animal are subject to change in status and change of schedule from protected to game animal in accordance with the law, can be hunted. 12. International convention on the Conservation of Migratory Species of Wild Animals (CMS) is an environmental treaty under the aegis of the United Nations Environment Programme. CMS provides a global platform for the conservation and sustainable use of migratory animals and their habitats. Article-II of the convention provides that the range states shall endeavor to conserve the endangered species and other species, conservation status of which is unfavourable. In particular, the parties shall provide immediate protection to the migratory species included in Appendix-I and endeavor to conclude agreements for the conservation and management of C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 10 :- species having unfavourable conservation status in Appendix-II. Article-III stipulates that Appendix-I shall list endangered species and range states of such species shall prohibit taking of such animals. Species which have been accorded unfavourable conservation status, according to Article-IV, shall be listed in Appendix-II. Houbara Bustard has been placed in the said Appendix-II of the CMS. Guidelines for agreements amongst range states have been provided in Article-V. With regard to species having unfavourable conservation status, the CMS requires range states to take measures, inter-alia on sound ecological principles, to control and manage the taking/hunting of the migratory species and adopt procedures for coordinating actions to suppress illegal taking. 13. We have noted above, that CMS does not in a way cast a duty upon the Federation or the Provinces to place a ban on the hunting of the species having unfavourable conservation status. It only endeavours for the range states to enter into bilateral or multi-lateral agreements or treaties for the conservation of such migratory species. No doubt the fundamental principle on which the convention is based (Article-II) obliges the parties to take individually or in cooperation appropriate or necessary steps to conserve such species and their habitat, such steps may include taking/hunting of species on sound ecological principles. However, what steps can be or should be taken, falls within the policy realm of the executive and this Court has always shown restraint in interfering into this domain. On the other hand, Fundamental principle, upon which CITES is based, is that strict regulation be put in place to stop the trade of such species across the borders so as not to endanger their survival any further. In this regard the Pakistan Trade Control of Wild Fauna and Flora Act, 2012 (Act, 2012) has been promulgated. Both CITES and Act, 2012 relates to prevention of trade of species and therefore, not applicable to the present controversy. In fact Act, 2012 supplements the efforts for the conservation of such species by placing an embargo upon their export from Pakistan, thus controlling illegal poaching and trapping of the birds for trade. C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 11 :- 14. Convention on the International Trade of Endangered Species of Wild Fauna and Flora (CITES) is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. According to Article-II of CITES all species threatened with extinction which are or may be affected by trade, their trade must be subject to strict regulation in order not to further endanger their survival. 15. Red List of International Union for the Conservation of Nature and Natural Resources (IUCN) places Houbara Bustard in the category of “vulnerable” below “near threatened” and “least concern” categories and above “endangered”, “critically endangered”, “extinct in the wild” and “extinct” categories. IUCN considers hunting primarily using falconry as a principal threat to its conservation. Under proposed conservation action, IUCN considers adopting conservation measures that will reduce exploitation to a sustainable level and to determine number of birds that can be hunted legally. 16. It can be seen that even IUCN recognizes sustainable use of the natural resources. Local communities plays a pivotal role in the conservation of a specie. Without the involvement of the local communities no conservation effort can be successful. Unless the economic value of saving the migratory species is raised to a level where it benefits the resident of those area its conservation will always be in jeopardy. Considering the economic backwardness of the areas where these migratory species land, it is very hard for conservation efforts to be successful without uplifting the economic well- being of those areas. It is for this reason that trophy hunting has been a successful tool for the conservation of endangered species throughout the world. Balochistan Act, 2014 defines trophy in section 2 (lll) which includes any dead wild animal and its feathers. Section 2 (c) defines animal to include birds. Thus by allowing limited hunting for a limited days under a license in consideration of a huge sum the Balochistan Act. 2014 has accorded a statutory backing to trophy hunting. We presume, in absence of any material on the contrary, that the amount so generated is used for the uplifting of the C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 12 :- people of the area where the licensees hunt so that they have an economic interest in conserving the specie rather than indulging in illegal hunting, poaching and trapping for personal consumption or for trade. 17. Having considered the laws and international conventions relating to migratory species of wild animals, we will now revert to examining the merits and demerits of the arguments advanced by the petitioners considering the limited scope of review jurisdiction of this Court. First we will address the objection raised by Mr. Kamran Murtaza, learned ASC for the respondent on the formation of the Bench. Rule 8 of Order XXVI of Supreme Court Rules, 1980 stipulates that as far as practical the review will be heard by the same Bench. The Rule provides a flexibility in constitution of the Bench, and rightly so, as there may be situation where the constitution of the same Bench may be impossible for the reason beyond the control of anyone, as in case of retirement of a judge or his indisposition on account of failing health. The objection therefore, is misconceived and accordingly repelled. 18. The counsel for the petitioners are unanimous on the point that perpetual ban on hunting of Houbara Bustard is neither envisaged by the wildlife laws of the country nor an obligation under the international conventions. Bare reading of the Balochistan Act, 2014, KPK Act, 2015, Punjab Act, 1974 and Sindh Ordinance 2015 shows that hunting of Houbara Bustard is allowed subject to license. Sindh Government through the notification dated 31-10-2014 changed the status of the specie from protected to game animal, which notification has been struck down by the learned High Court of Sindh and Civil Petition against the said judgment has been dismissed by this Court. The question before us is whether in presence of the positive laws permitting hunting of Houbara Bustard under a license, perpetual ban on hunting can be placed when the vires of the wildlife laws and their constitutional validity are not challenged and remain intact. 19. We have noted that the Balochistan law places Houbara Bustard both in protected and game animal categories. To us it is not an anomaly. According to Article-IV of CMS a migratory specie can be listed in both C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 13 :- Appendices. Sustainable use of natural resources is central to its conservation. We will discuss this aspect later in the judgment. 20. There is yet another aspect of the case which require serious consideration. Mr. Farooque H. Naek, learned Sr. ASC pointed out that CMS has not been ratified by the Parliament. In this regard reliance has been placed upon the report Societe Generale De Surveillance S.A v. Pakistan through Secretary, Ministry of Finance (2002 SCMR 1694). It is well settled proposition of law that international treaties and convention unless incorporated in the municipal laws, the same cannot be enforced domestically. In the judgment relied upon by the learned Sr. ASC this Court held: “Admittedly, in Pakistan, the provision of Treaty were not incorporated through legislation into the laws of the country, therefore, the same did not have the effect of altering the existing laws, as such, rights arising therefrom called treaty rights cannot be enforced through Court as in such a situation, the Court is not vested with the power to do so” Unless, therefore, CMS is incorporated into municipal laws the same cannot be enforced. Balochistan Act, 2014 and KPK Act, 2015 recognizes CMS, however as noted above Balochistan Act, 2014 places Houbara Bustard both in protected and game animal categories. 21. We have also noted that the Civil Petitions filed by the Government of Balochistan against the judgment of the learned High Court of Balochistan were dismissed on the ground of limitation. As common question of law was being heard by this Court, hence delay should have been condoned and petitions decided on merit. In this regard we are fortified by the judgment of this Court rendered in Mehreen Zaibun Nissa v. Land Commissioner, Multan and others (PLD 1975 SC 397). 22. Our constitution is based upon trichotomy of power. Each organ of the state has its sphere of jurisdiction and cannot transcend into the domain of the other. Role of the judiciary is to interpret the laws and not to legislate. It thus follows that unless the constitutionality of the law is tested on the C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 14 :- touchstone of constitutional provisions and struck down, it will remain law of the land and duty of the Court would be to enforce the same. 23. Examination of the laws clearly shows that permanent ban on hunting of Houbara Bustard is not envisaged. Under the Balochistan Act, 2014 Houbara Bustard is listed as game animal. Under the Sindh Ordinance, 1972 the government has the power to add or exclude any animal from the schedule. This Court while placing a complete ban on hunting of Houbara Bustard has seemingly overlooked the anomaly created by it. Further in view of the law laid down by this Court in the judgment reported as Al-Jehad Trust through HabibulWahab Al-Khairi, advoccat and 9 others v. Federation of Pakistan (1999 SCMR 1379) and other dicta of the Court, we also need to examine if a direction can be issued to the legislature by the superior courts to legislate on a particular subject as has been so directed in the judgment under review. 24. Having made the foregoing observations, we note that provincial governments exercise discretionary power conferred by respective provincial laws to classify animals as ‘protected’ or ‘game’ species. During the hearing of these petitions, the learned Attorney General and the learned counsel for the Province of Sindh have referred to limitations and checks imposed by the government on hunting of Houbara Bustard. These are reflected, inter alia, in the terms and condition of hunting permits issued by the provincial governments, the creation of protected areas, the scheduling of different areas for hunting during the season and so forth. The criteria and considerations on the basis of which the provincial governments exercise their regulatory power under their respective wildlife legislation have, however, not been shown to the Court. Ultimately, it is the adequacy and propriety of the regulatory measures that can in a sustainable manner achieve the statutory object of protecting, preserving, conserving and managing wildlife. That statutory object applies not just to the Houbara Bustard but to all endangered, vulnerable or near threatened wildlife. In this context the Court is inclined to examine the legal propriety of the discretionary safeguards applied by the provincial governments for assessing their relevance and reasonableness for attaining the C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 15 :- objects of wildlife legislation in respect of all vulnerable and threatened game species including the Houbara Bustard. Therefore, we are setting out the matters for hearing afresh, thus leave the above noted proposition open to be examined by the Bench hearing the cases. 25. In such view of the matter there is an apparent error on the face of record. We therefore, allow these review petitions, set aside the judgment dated 19.08.2015. The Civil Petitions and the Constitution Petition shall be listed for hearing afresh. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on __________ at __________ Not Approved For Reporting Waqas Naseer/* C.R.Ps.No.561, 568 to 570, 600 to 604 and 607/2015 etc. -: 16 :- ORDER OF THE COURT By majority of four to one (Qazi Faez Isa, J. dissenting), it is held that there is an apparent error on the face of record. We therefore, allow these review petitions, set aside the judgment dated 19.08.2015. The Civil Petitions and the Constitution Petition shall be listed for hearing afresh. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on 22.01.2016 at Islamabad Not Approved For Reporting Judge

IN THE SUPREME COURT OF PAKISTAN (REVIEW JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN C.R.P.No.70/2018 in C.M.Appeal No.203/2016 in S.M.C.No.20/2016, C.R.P.No.71/2018 in C.M.A.No.2656/2017 in C.M.A.No.1253/2017 in S.M.C.No.20/2016, C.R.P.No.72/2018 in C.M.A.No.8404/2016 in S.M.C.No.20/2016, C.R.P.No.82/2018 in C.M.A.No.8234/2017 in S.M.C.No.20/2016, C.R.P.No.83/2018 in C.M.A.No.9312/2017 in S.M.C.No.20/2016, C.R.P.No.84/2018 in C.M.A.No.9313/2017 in S.M.C.No.20/2016, C.R.P.No.85/2018 in C.M.A.No.9314/2017 in S.M.C.No.20/2016 and C.M.A.No.2416/2018 in C.M.A.No.883/2018 in S.M.C.No.20/2016 (Against the judgment of this Court dated 13.02.2018) C.R.P.70/2018: Khan Muhammad Khan Vs. Islamic Republic of Pakistan through President of Pakistan & others C.R.P.71/2018: Application Nazar Abbas Shah Vs. United Bank Limited through its Manager & Operations Manager C.R.P.72/2018: Allied Bank Ltd. Vs. Farrukh Niaz C.R.P.82/2018: Application by Muhammad Farooq Vs. Allied Bank Ltd. C.R.P.83/2018: Application by Ghulam Hussain & others Vs. Allied Bank Ltd. C.R.P.84/2018: Application by Walayat Hussain alias Raza Butt Vs. Allied Bank Ltd. C.R.P.85/2018: Application by Abdul Jabbar and others Vs. Allied Bank Ltd. through its president C.M.A.2416/2018: Application by Muhammad Anwar and others For the petitioner(s): (in CRP 99/18/ & CMA 2647/18) (CRP 100/2018) (CRP 101/18) (CRP 72/18) (CMA 2416/18) (CRPs 82-85/18) (CRP 70/18) (CRP 71/18) Mr. Salman Aslam Butt, Sr. ASC Syed Ali Zafar, ASC. Mr. Tariq Aziz, AOR. Mr. Ahmed Awais, ASC. Syed Rifaqat Hussain Shah, AOR. Mr. Shahid Anwar Bajwa, ASC. Mr. M. S. Khattak, AOR Mr. Babar A. Khilji, ASC. Mr. Tariq Mehmood Khokhar, ASC. Syed Rifaqat Hussain Shah, AOR In-person Nemo. For the respondent(s)/ On Court’s Notice: Mr. Zahid Hussain, General Manager MCB -: 2 :- Mr. Adnan Afzal, Unit Head UBL Mr. Atif Izhar, Group Head HR, ABL Rana Asif, Manager Industrial Relations ABL Date of hearing: 3.4.2018 ORDER MIAN SAQIB NISAR, CJ.- 10:30 a.m.: Our judgment dated 13.2.2018 has not been complied with till date. The review petitions though have been filed against the said judgment but no interim relief has been granted therein to suspend the judgment under review. Let the Chief Executive Officers of HBL, ABL, UBL and MCB be present in the Court at 6:30 p.m. today, or in lieu thereof, an undertaking be made by the said Banks to the effect that the judgment dated 13.2.2018 shall be complied with in letter and spirit. 6:30 p.m.: 2. Pursuant to our above order in the morning, Mr. Salman Aslam Butt, learned Sr. ASC present in Court has placed on the record the written undertakings on behalf of UBL and MCB, which are scanned as under: -: 3 :- 3. On account of the above, we hold that the judgment under review shall be implemented in letter and spirit. However, after hearing the learned counsel representing the Banks and going through the contents of the review petitions, we do not find any merit in these review petitions, which are accordingly dismissed but with one clarification, on the request of the learned counsel, that the implementation shall be made with regard to the persons who have been retired/retrenched by the respective Banks but the same shall not be done regarding the persons who left the Banks on the basis of the Golden Handshake Scheme (GHSS) because those who have received the benefits of the GHSS do not fall within the said category, and thus are not entitled to the said benefit of increase in pension. It is further clarified that pensionary benefits under our judgment dated 13.2.2018 will be paid to the 5416 retrenched employees of UBL whose services were terminated under the retrenchment scheme dated 10.10.1997, if they qualified on the said date in terms of having served the bank for ten years. -: 4 :- 4. Syed Ali Zafar, learned ASC representing HBL has placed on the record the following undertaking: He states that during the course of hearing of the matter as per paragraph 2(v)(c) of the proposal submitted by him, some clarification of the judgment under review is required, suffice it to say that this by itself is no ground for review. No case for review has been made out. The review petition is accordingly dismissed. However, if any person, who is entitled to the pension in terms of the said judgment, if not paid, may -: 5 :- approach this Court for enforcement of his right and that matter shall be decided independently. 5. Mr. Shahid Anwar Bajwa, learned ASC representing Allied Bank Limited, has also placed on the record the following undertaking: He states that a clarification is required regarding those employees who have received 50% commutation of their pension; suffice it to say that this by itself is no ground for review. No case for review has been made out. The review petition is accordingly dismissed. However, if any person who is not paid pension which he feels entitled under the judgment may -: 6 :- approach this Court for the enforcement of his right on that basis, this aspect of the matter shall be considered independently. 6. No case for review has been made out in all other review petitions. The review petitions and miscellaneous applications/appeals are accordingly dismissed. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 3rd April, 2018. Not approved for reporting Mudassar/

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Amir Hani Muslim Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel C.R.Ps. 87 & 125/2015 in C.As. No.1366 & 718/07 and CMA No.7144/2015 (For review of the judgment dated 1.04.2015 passed by this Court in C.As. No.718 & 1366/07) Ex-Lance Naik Mukarram Hussain (in CRP 87/15) Ex-Gunner Muhammad Mushtaq (in CRP 125/15) Petitioners Versus Federal Government, M/o Defence through Chief of Army Staff etc. (in CRP 87/15) Secretary, M/o Defence through Chief of the Army Staff (in CRP 125/15) Respondents AND C.M.A. No.6887/2015 in CRP No.452/2015 in C.P. No.276/2015 Ex-Hawaldar Iftikhar Hussain Applicant Versus Federation of Pakistan through Secretary, M/o Defence Rawalpindi Cantt. Respondent For the Applicant/Petitioner: (in CMA 6887/15 & CRP 125/15): Col. (R) Muhammad Akram, ASC Ch. Akhar Ali, AOR (in CRP 87/15): Nemo For the Respondents: Mr. Sajid Ilyas Bhatti, DAG Major Asad, JAG, G.H.Q. Date of Hearing: 23.01.2017 JUDGMENT Mazhar Alam Khan Miankhel, J.- The listed are two Civil Review Petitions i.e. C.R.Ps. No.87 & 125/2015 through which the petitioners seek review of the judgment of this Court dated 1.04.2015 and one Civil C.R.Ps.87 & 125/15 etc. 2 Miscellaneous Application i.e. C.M.A. No.6887/2015 in C.R.P. No.452/2015 through which the applicant seeks permission to file additional documents pertaining to compromise with the legal heirs of the deceased. Though the main review petition of the applicant, above referred, was dismissed vide order dated 5.10.2.015 but in his CMA following order was passed which for ready reference is reproduced below:- “ The learned ASC contends that in identical circumstances, request for compromise between the petitioner and the legal heirs of the deceased has been entertained by the Court in Civil Review Petition No.125 of 2015 (RE Ex-gunner Muhammad Mushtaq v. Secretary Ministry of Defence) in terms of order dated 07.09.2015. Notice of this application be issued to the Attorney General for Pakistan as regards the maintainability of such application.” Since similar questions of law and facts are involved, therefore, all the listed matters will have their fate through this single judgment. 2. The petitioners in both the review petitions as well as the applicant in CMA were tried, convicted and sentenced to death by the Field General Court Martial under the Pakistan Army Act, 1952 (in short the ‘Army Act’). After exhausting remedies available under the Army Act, they questioned their convictions before the Lahore High Court, Rawalpindi Bench which were dismissed for want of jurisdiction under Article 199(3) of the Constitution. All the three convicts filed their petitions for leave to appeal before this Court. After grant of leave in Civil Petitions No.2149/05 and 336/06, filed by the petitioners, they filed Civil Appeals No.718 & 1366/2007 which were dismissed through a consolidated judgment dated 1.04.2015. Now they have filed the listed civil review petitions whereas the review petition of the applicant was dismissed vide order dated 5.10.2015 but through the same order notice was issued in his CMA No.6887/2015 to the Attorney General for Pakistan with regard to its maintainability. C.R.Ps.87 & 125/15 etc. 3 3. Learned counsel for the applicant/petitioner submitted that in view of the compromise between the legal heirs of the deceased and the petitioner, the applicant/petitioner may be acquitted by accepting the said compromise. The main stance of the learned counsel was that in view of Section 1(2) Cr.P.C. provisions of Cr.P.C. are applicable to the case in hand, hence compromise under Section 345(2) Cr.P.C. can be accepted. 4. As against that the learned DAG while supporting the impugned judgment and giving strength to his arguments referred to Section 143 of the Army Act which provides pardons, remissions and suspension by the Federal Government or the Chief of Army Staff or any officer not below the rank of Brigadier empowered in this behalf by the Chief of Army Staff and as per the learned DAG, this Court cannot assume the jurisdiction in the matter in hand. Learned DAG in support of his arguments placed reliance on the cases of Javed Iqbal Vs. The S.H.O. and others (2013 P Crl.LJ 1394), Muhammad Rawab Vs. The State (2004 SCMR 1170) and Muhammad Sharif alias Baggu Vs. Home Secretary (1986 MLD 1767). 5. We have heard learned counsel for the parties and have also perused the available record. The learned counsel for the applicant/petitioner, in support of his arguments, referred to Section 1(2) Cr.P.C. Reproduction of the same would be beneficial here which reads as under:- “Section 1. (1) …………….. (2) Extent. It extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” To address the arguments of learned counsel for the applicant/petitioner, we would like to refer and reproduce the provisions of Section 5(2) Cr.P.C. which reads as under:- C.R.Ps.87 & 125/15 etc. 4 Section 5. (1) ……………. (2) Trial of offences against other laws. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” A bare perusal of both the above provisions would make it clear that the provisions of Code of Criminal Procedure are not applicable to the matters governed by any Special or Local Law unless specifically provided in the said laws wholly or to any extent. If a person, who was proceeded against under a Special Law, he would be dealt with according to the procedure of enquiry/investigation and trial as laid down in the said Special Law. While reverting back to the case in hand, all the petitioners/applicant were dealt with in accordance with the provisions of the Army Act. The provisions of Section 143 of the Army Act would reveal that it is the Federal Government or the Chief of Army Staff or any officer not below the rank of Brigadier empowered in this behalf by the Chief of Army Staff who is empowered to grant such pardons, remissions and suspensions. In view of this very specific provision of the Army Act and being a Special Law, in our view, this Court cannot assume such jurisdiction and that too in its Review jurisdiction. The scope of Review provided under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973 is very limited as such jurisdiction can only be exercised by this Court when there is an apparent error on the face of the record having bearing on the fate of the case. The question of jurisdiction to entertain C.P.L.A. or C.A. has already been dealt with by this Court while deciding the appeals of the present petitioners vide judgment dated 1.04.2015 and this issue has also been addressed in an un-reported judgment dated 22.04.2015 delivered in Civil Petition No.276/2015 titled Ex. Havildar Iftikhar Hussain Vs. Federation of Pakistan through Secretary M/o Defence, Rawalpindi C.R.Ps.87 & 125/15 etc. 5 Cantt. This Court has time and again faced the question of jurisdiction relating to the orders or actions of the Armed Forces and it has been the firm view of this Court that there is no bar of jurisdiction if the same suffer from mala fide, jurisdictional error or corum non judicce. This Court in case of Ghulam Abbas Vs. Federation of Pakistan through Secretary Ministry of Defence (2014 SCMR 1530) has held that “any action or order of any authority relating to Armed Forces of Pakistan, which is either corum non judice, mala fide or without jurisdiction, the same could be challenged before the High Court and bar contained under Article 199(3) of the Constitution would cease to operate. In the case of Rana Muhammad Naveed Vs. Federation of Pakistan through Secretary M/o Defence (2013 SCMR 596) this Court was of the view that there is no prohibition on the High Court to make an order under Article 199(3) of the Constitution if acts, actions or proceedings suffered from defect of jurisdiction or coram non judice. Further in the case of Federal Government through M/o Defence, Rawalpindi Vs. Munir Ahmed Gill (2014 SCMR 1530) this Court has observed that if an action of the Army Authorities with regard to a serving officer of the Armed Forces or any other person subject to the Army Act is established to be either mala fide, corum non judice or without jurisdiction then the same could be assailed through a Constitution Petition by such aggrieved person and the bar of jurisdiction under Article 199(3) of the Constitution would have no applicability. Thus, we are very much clear that jurisdiction of this Court can only be justified against orders or actions of the Army Authorities if same are suffering from mala fide, jurisdictional error or thus corum non judice but in the case in hand all the elements lack their existence. Moreover, it has been the firm view of the Courts that provisions of the Cr.P.C. would not attract to a case involving an offence dealt with by the Field General Court Martial under the Army Act. More so, we have been apprised by the learned DAG that in view of pendency of these petitions, the JAG Branch of C.R.Ps.87 & 125/15 etc. 6 the Army has already initiated the proceedings pertaining compromise in these cases with the concerned authorities and we have been informed that death sentences of the present petitioners have been converted to that of life imprisonment. 6. In view of what has been discussed above, all the listed matters are dismissed being meritless. We are also unable to understand that when the main review petition of the applicant was dismissed how a miscellaneous application can be considered in that matter. So, for this reason too, CMA No.6887/2015 is liable to be dismissed. The above are the reasons for our short order of even date which reads as under:- “ For reasons to be recorded later, these Review Petitions alongwith Civil Misc. Application, are dismissed.” Judge Judge Judge ISLAMABAD 23rd January, 2017 APPROVED FOR REPORTING (Nasir Khan)

IN THE SUPREME COURT OF PAKISTAN (Review Jurisdiction) PRESENT: Mr. Justice Jawwad S. Khawaja Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed CIVIL REVIEW PETITION NO. 94 OF 2014 IN CIVIL APPEAL NO.31 OF 2014. (Against the review of order dated 7.3.2014 passed by this Court in CA 31 of 2014) Dr. Raja Aamer Zaman … Petitioner (s) Versus Omar Ayub Khan, etc. … Respondent (s) For the Petitioner (s) : Mr. Hamid Khan, Sr. ASC Mr. M. S. Khattak, AOR For the Respondent-1. : Mr. Muhammad Akram Sheikh, Sr. ASC Syed Rafaqat Hussain Shah, AOR For the other Respondents: Nemo Date of Hearing : 29.05.2015 J U D G M E N T Jawwad S. Khawaja, J.- This petition seeks review of our judgment dated 7.3.2014 whereby Civil Appeal No.31 of 2014 filed by the petitioner, was dismissed. The facts relevant for the adjudication of this review petition have been set out in the said judgment and, therefore, need not be reproduced except to the extent necessary for the present judgment. Furthermore, only points of law relating to the interpretation of sections 67 and 70 of the Representation of Peoples Act, 1976 (“ROPA”) are to be addressed in view of the limited scope of review jurisdiction. 2. The facts to the extent relevant are straightforward and can now be stated to facilitate the discussion which follows. The petitioner and respondent No.1 are the principal protagonists in this case. In the general elections held on 11.5.2013 for the constituency NA-19 (Haripur), the petitioner was declared as the returned candidate on the basis that he had secured 1,16,979 votes as against 1,14,807 votes in favour of the CRP 94 of 2014 2 respondent. A recount was ordered whereafter the petitioner remained the candidate with the highest number of votes polled although the difference of 2172 votes stood reduced to 1304 as a result of the recount. The respondent filed an election petition which was decided by the Election Tribunal vide order dated 31.12.2013. The Tribunal instead of declaring the election to be void as a whole, directed re-poll in seven polling stations only while holding that the petitioner was not responsible for any corrupt or illegal practice. This is the limited point of law in contention before us because according to the petitioner the Election Tribunal could not have directed a partial re-poll. The respondent, however, asserts that it was within the competence of the Election Tribunal to order partial re-poll in respect of seven polling stations. 3. Through our order of 3.2.2015 in this petition, the reason for issuing notice to the respondents has been given. The contention of learned counsel for the petitioner has been noted viz. “the [Election] Tribunal has the power to declare election as a whole void, but it, under no circumstances has the power to declare election void in respect of a few polling stations”. It is for this reason it was considered necessary to “hear this case in detail”. 4. On 7.5.2015 we had framed three questions of law and interpretation of statutes on which the hearing of the review petition was focused. These questions are reproduced as under:- “i) Whether under the law set out in Sections 67 to 70 of the ROPA, it was permissible for an Election Tribunal to pass an order for re-poll in only 7 out of 437 polling stations ? ii) Whether the provisions of Sections 103 and 103-AA of the ROPA, which empower the Election Commission are in pari materia with the provisions of Sections 67 to 70 of the ROPA and, therefore, if through precedent, the Election Commission is seen as being empowered to order a partial re-poll in some polling stations, whether Sections 67 to 70 of the ROPA can be similarly interpreted to authorize the Election Tribunal to order a partial re-poll ? iii) Whether the Election Tribunal is empowered by any of the provisions in Sections 67 to 70 of the ROPA to order a partial re-poll ?” 5. Learned counsel for the petitioner has drawn our attention to our judgment under review and in particular the precedent cited therein titled Ehsanullah Reki vs. Abdul Qadir Baloch (2010 SCMR 1271). The ratio of the said precedent is the basis on which the points CRP 94 of 2014 3 of law i.e. interpretation of sections 67 and 70 of ROPA, has been made. The relevant portion of the cited case on which reliance has been placed, has been reproduced in our judgment. The learned counsel agued that this precedent in fact goes against the conclusion arrived at in the judgment and according to him, has been erroneously made the basis of the judgment. The relevant extract from the cited case can usefully be reproduced at this stage to enable us to examine if indeed the contention of learned counsel for the petitioner is well founded. Paragraphs 32 and 33 of the precedent case which are the basis of the judgment under review are reproduced as under:- “32. We are mindful that the allegations leveled with regard to malpractices at some of the polling stations were such that it was difficult to identify the culprits and one obvious course to follow was to direct fresh polls of the entire constituency. However, we note that there were in all 220 polling stations and the dispute subject matter of this appeal is relatable to 11 polling stations only and with regard to four polling stations the appellant had alleged that in the recount carried out by P.W.1 on the direction of the Election Commission of Pakistan, the former had interpolated in the record, but this could not be proved. The objection of the appellant with regard to the report submitted by C.W.1, the Provincial Election Commissioner after the recount was duly addressed by this Court in remanding the case to the Tribunal. Parties were allowed to cross examine him. However, nothing adverse was brought in evidence which could discredit the testimony of C.W.1 and no mala fide was either alleged or could be inferred. We further note that notwithstanding the above even if all the rejected votes in all the eleven polling stations (although appellant had specific objection with regard to four only) are cast in favour of the appellant, the respondent still wins by a margin of 188 votes as is borne out from the break up given in Paras 25 and 26 above. 33. In the afore-referred circumstances, we do not deem it proper to annul the entire election and instead concur with the finding of the Election Tribunal to declare the respondent as a Returned Candidate”. 6. From the above extract it is evident that the cited case is quite distinguishable on facts and as a consequence, does not constitute precedent in the present case. The ratio, however, is supportive of the stance of the petitioner. The important point of distinction between the case of Ehsanullah Reki supra and the present matter is that in the cited case, regardless of the number of votes polled at the 11 disputed polling stations, the result of the election was not affected, while in the present case, the Election Tribunal as well as the judgment in appeal (now under review) have concluded CRP 94 of 2014 4 that the result of the seven disputed polling stations had materially affected the outcome of the election. It is an express stipulation of section 70 of ROPA that the election as a whole is to be declared void, if “the result of the election has been materially affected by reason of failure of any person to comply with the provisions of the Act [ROPA] or the rules”. In the present case both conditions of the statute viz. failure to comply with the provisions of ROPA and the second necessary condition that such failure should also have materially affected the result of the election, have been met. Since both statutory requirements exist concurrently in the present case, the election as a whole stands vitiated. 7. We will shortly be considering the words “as a whole” but in our humble opinion, the ratio in the case of Ehsanullah Reki supra supports the contention of the learned counsel for the petitioner rather than the stance of the respondent. The votes at the disputed polling stations would be decisive of the outcome of the election, which is why the case of Ehsanullah Reki supra is distinguishable. The only way the election in the present case could have been saved from being annulled is if the outcome of the election were to remain unaffected even if all votes at the disputed stations were treated as cast in favour of the loosing candidate. It is this “materiality test” which has been duly noted in paragraph 29 of the judgment under review. The case of Morgan and others v. Simpson and another [(1974) 3 All ER, 722] has been referred to wherein it has been held that “if there was breach of the rules or mistake in holding the polls, and it did affect the result, then the election is vitiated”. The case of Muhammad Ali v. Maulana Muhammad Zakria (PLD 1966 Journal 167) has also been cited to hold that if “it is not possible to assess as to what should have been the result of the election had the provisions of the law been correctly followed, the result of the election stood materially affected”. 8. If the ratio of the afore cited cases is applied to the facts of the present case, it is clear that the number of votes in the seven disputed polling stations and the difference in votes polled by the two main contestants at such stations is such that it is not possible to assess the outcome of the election. Thus in the judgment of 7.3.2014, it has rightly been observed “it is obvious that non compliance of the law in seven polling stations had materially affected the result of the entire election”. This clearly demonstrates that even as per the judgment sought to be reviewed, the election in the constituency became contaminated as CRP 94 of 2014 5 a whole. The question, therefore, which needs to be answered is as to whether despite such finding it was open to the Election Tribunal to conclude that the election was only partially void to the extent of seven polling stations. Section 70 of ROPA, for ease of reference is reproduced as under:- “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”. 9. With great respect we are of the humble view that the ratio in the cases of Ehsanullah Reki, Morgan and others & Muhammad Ali supra appears to have escaped the notice of the Bench, and as a consequence the same has not been correctly appreciated and applied to the law and to facts of the present case. Therefore, even on the authorities referred to and relied upon in the judgment under review, the conclusion which must follow is that the election stood vitiated as a whole, because of being materially affected on account of failure to comply with the provisions of ROPA. Furthermore, after concluding (rightly) that non compliance of the law in seven polling stations had materially affected the “entire election”, it was not possible to allow for a partial annulment of the election. 10. The learned counsel for the respondent placed a great deal of emphasis on the provisions relating to the Election Commission under sections 103 and 103AA of ROPA as interpreted by this Court, with the object of contending that the Election Tribunal also has power to order a partial re-poll at some polling stations. For reasons now considered by us, the powers of the Election Commission under sections 103 and 103AA ibid are materially different from the provisions of sections 67 and 70 of the ROPA and, therefore, any interpretation of sections 103 and 103AA cannot be applied to sections 67 and 70 of ROPA. The provisions are in fact quite different, both in letter and in spirit. 11. The most significant aspect of distinction between the powers of an Election Tribunal under sections 67 and 70 as opposed to the powers to the Election Commission in sections 103 and 103AA of ROPA is constitutional. While the Election Commission has powers vested in it under Article 218 of the Constitution requiring it to ensure that the CRP 94 of 2014 6 election is conducted honestly, justly, fairly, and in accordance with law, the powers of the Election Tribunal are derived from Article 225 of the Constitution which stipulates that “[n]o election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). The Act of Parliament referred to is the ROPA. 12. There is thus a qualitative difference between the powers enjoyed by and invested in the two forums. The Election Commission is mandated to conduct elections honestly, justly, fairly and in accordance with law. It follows, therefore, that where it comes to the notice of the Election Commission that the election being conducted is not in accordance with the mandate of the Constitution and the law i.e. ROPA, the Election Commission may act by removing impediments in the conduct of just and fair elections. It may well be as per ratio in the case of Lt. Gen. (R) Sallahuddin Tirimzi Vs. Election Commission of Pakistan (PLD 2008 SC 735), that for a particular reason such as natural calamity, violence, terrorism etc., effecting a few polling stations, the Election Commission has the power to order a re-poll in such polling stations which have been affected by such events. Section 103 simply states that the Commission may “stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices …”. Moreover, clause (c) of section 103 provides ample power to the Election Commission to “issue such instructions and exercise such powers and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of this Act [ROPA] and the rules”. This power under section 103 ibid is of sufficient amplitude to enable the Election Commission to order a re-poll only in some and not all polling stations in a constituency. The Election Tribunal is not invested with any such discretion. The wording of section 70 quite clearly requires that the Tribunal “shall declare the election as a whole to be void” if the dual conditions of section 70 are met, as in the present case. 13. Secondly section 103AA stipulates that “… if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violations of the provisions of this Act [ROPA] or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration CRP 94 of 2014 7 accordingly and … call upon the constituency to elect a member in the manner provided for in section 108”. This is an enabling provision which empowers the Election Commission to call upon a constituency to elect a member. This power does not detract, in any manner, from the powers under section 103 and in particular clause (c) thereof to pass orders in respect of some, but not all polling stations. Moreover, when the provisions of sections 103 and 103AA are examined, it becomes abundantly clear that the Commission has been granted administrative and policing functions for the purpose of conducting elections honestly, fairly, justly and in accordance with law. These administrative powers are not judicial in nature and are exercisable without any deep probe of facts as may be ascertainable on “the face of the record” or after a “summary inquiry” if deemed necessary by the Commission. These powers once exercised by the Commission are also subject to judicial review as administrative acts because the same are by definition, based on a summary inquiry or in certain cases, even without such inquiry. The powers of the Election Tribunal on the other hand are based on Article 225 of the Constitution and are of a judicial and adjudicatory nature subject only to an appeal, in accordance with the provisions of ROPA and the rules. 14. As for the interpretation of the above noted statutory provisions, learned counsel for the respondent cited a number of judgments from our own and from Indian jurisdictions and also referred to principles of interpretation of statutes in support of his plea that the interpretation of sections 103 and 103AA in the case of Aftab Shahban Mirani v. Muhammad Ibrahim (PLD 2008 SC 779) can be treated as precedent for applying the same interpretative principle to sections 67 and 70 of ROPA. This submission, in our opinion, is misconceived. Firstly, because of the nature of the powers of the Election Commission which are derived from section 218 of the Constitution as discussed above. This is in contradistinction to the powers of the Election Tribunal which are derived under Article 225 of the Constitution. Secondly, even the wording of sections 103 and 103AA is significantly different from the wording of sections 67 and 70 of ROPA. Since in the present case the result of the election has been materially affected as a result of the failure by polling staff to comply with the provisions of ROPA, there is no option left with the Tribunal but to declare the election as a whole to be void. The words “as a whole” do not CRP 94 of 2014 8 appear in sections 103 and 103AA and as such there is no justification for treating these provisions as being in pari materia with sections 67 and 70 of ROPA. The Election Commission has a wide range of powers and discretion which, we say with great respect, is not available to an Election Tribunal because of the language employed in section 70 of ROPA. The Election Tribunal cannot go beyond the powers granted by ROPA because it is constrained by Article 225 ibid to act only “in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)”. 15. The case of Aftab Shahban Mirani supra is thus clearly distinguishable and has no application in the present matter. Firstly because it relates to the Election Commission and its powers under ROPA and not to the powers of an Election Tribunal. Secondly, it is the plain reading of section 103 read with section 103AA of ROPA which was adopted and followed by the Court. It was clear on the facts of the cited case that in exercise of powers under sections 103 and 103AA of ROPA, the Election Commission was well within its jurisdiction to direct a re-poll only at 17 disputed polling stations. Thirdly, an important distinction is to be drawn from the fact that the case of Aftab Shahban Mirani supra arose out of a writ petition to challenge the administrative orders of the Election Commission by way of judicial review. The circumstances of the present case are materially different from those of the case of Aftab Shahbad Mirani for the reasons which have already been explained above and which demonstrate that none of the circumstances in the cited precedent are available in the present case. Moreover, the provisions of sections 67 and 70 of ROPA were neither subject matter of the said case nor were the same interpreted. 16. The learned counsel for the respondent also cited the case of Mohinder Singh vs. Chief Election Commissioner (AIR 1978 SC 851) decided by the Supreme Court of India wherein it was held that a partial re-poll could be ordered by the Election Court. We have examined the Indian ROPA and note that it is significantly different from the Pakistani statute and in particular it does not limit or mandatorily require the Election Court to declare the election as a whole to be void. This, however, is mandatory where the conditions of section 70 ROPA, reproduced above are met. Under section 100 of the Indian ROPA it is open to the Election Court to declare the election of the returned candidate to be void. The words “as a whole” are conspicuously missing from the Indian statute. The CRP 94 of 2014 9 case of Mohinder Singh vs. Chief Election Commissioner supra, therefore, does not have even persuasive value in the present case. Likewise the case of A.C. Jose vs. Sivan Pillai (AIR 1984 SC 921) is also not apt for the same reason. 17. The matter now before us, therefore, appears to be one of first impression for this Court. Finally, we may mention that learned counsel for the respondent referred to a number of cases involving interpretation of statutes. These cases and the treatise on statutory interpretation by F A R Bennion in fact, state quite clearly that where the wording of a statute does not admit of any ambiguity, Courts do not have the power to travel beyond such wording in search of some illusory meaning which may have been “intended” by Parliament. In the case before us we say with great respect, there appears to be no reason why the words “as a whole” should be ignored or made redundant. One salutary rule for interpretation of statutes is that redundancy is not to be imputed to the legislature. If the statute requires the election as a whole to be declared void, it is not possible to hold that this includes the jurisdiction to declare the election at a few polling stations to be void. This is particularly so when the finding recorded in our judgment is categorical that the entire election has been materially effected. Moreover, when the law mandates the doing of a certain thing in a certain way such thing has to be done in the way mandated by law and in no other way. 18. We may also add that the submission of learned counsel for the respondent that no prejudice has been caused to the petitioner on account of re-poll at seven stations, is not legally tenable. We have already noted above that even according to the finding of the Election Tribunal and of this Court in the judgment under review, the election as a whole stood contaminated when it became evident that the voting at the said polling stations had materially affected the outcome of the election. The prejudice, therefore, to the petitioner is evident. We may once again state that the Tribunal had concluded with clarity that “it is a clear cut case where the result of election can be said to have been materially affected on account of illegality in process of election on the part of the polling staff”. A similar view, as noted above, has been recorded in the judgment sought to be reviewed. Furthermore, the failure to properly apply the law would also, by definition, be prejudicial not only to the petitioner but also to the entire electorate of the constituency CRP 94 of 2014 10 because, as a consequence they would not be able to elect a Parliamentarian in a bye election, in accordance with law. This and the above discussed aspects of the case appear to have escaped the attention of the Bench while rendering the judgment under review. 19. In view of the foregoing discussion, we allow this review petition and hold that the election as a whole stood vitiated. Civil Appeal No. 31 of 2014 is thus allowed. The Election Commission shall, therefore, hold a bye election for the constituency NA-19 (Haripur) in accordance with law. Judge Judge Islamabad, the Judge ‘APPROVED FOR REPORTING’ A.Rehman/* CRP 94 of 2014 11 SH. AZMAT SAEED, J.- Through the instant Civil Review Petition under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973, the Petitioner has called into question the judgment of this Court dated 07.03.2014, whereby an Appeal filed by the Petitioner, was dismissed. 2. The brief facts necessary for adjudication of the lis at hand are that the Petitioner and the Respondents contested the elections for the National Assembly from Constituency NA-19, Haripur, KPK, held on 11.05.2013. And after a recount, directed by the Election Commission of Pakistan (ECP), the Petitioner was declared, as the Returned Candidate. Respondent No.1 filed an Election Petition before the Election Tribunal, which was partially allowed vide judgment dated 31.12.2013, and the ECP was directed to hold re-polling at seven Polling Stations. The Petitioner challenged the said judgment in an Appeal before this Court, which was dismissed vide judgment dated 07.03.2014, now sought to be reviewed through the instant Civil Review Petition. 3. A finding was returned by the Election Tribunal and maintained by this Court that there had been a failure to comply with the mandatory requirements of the Representation of the People Act, 1976 (ROPA) at the said seven Polling Stations and such failure in view of the close contest inter se the Petitioner and CRP 94 of 2014 12 Respondent No.1 had materially affected the result of the election. At the very outset, learned counsel for the Petitioner submitted that such findings are not disputed. However, it is the case of the Petitioner that upon an Election Petition filed before it, the Election Tribunal can only pass one of the several possible orders set forth in Section 67 of ROPA, subject to the conditions mentioned in the succeeding Sections and in the eventuality, the Election Tribunal reaches the conclusion that there was a failure to comply with the provisions of ROPA or the Rules, which materially affected the result of the election, the election as a whole is to be declared as void by virtue of Section 70 of ROPA. Therefore, in the instant case where such a finding had been returned, both by the Election Tribunal and this Court, the only order which could have been passed was to declare the election of the entire Constituency as void resulting in a fresh election. Re- poll in seven Polling Stations could not have been ordered. This is the only ground urged on behalf of the Petitioner. In support of his contentions, the learned counsel for the Petitioner relied upon the judgments, reported as Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Lone and 13 others (1999 SCMR 284) and Dr. Sheela B. Charles v. Qaisar Ifraeem Soraya and another (1996 SCMR 1455). CRP 94 of 2014 13 4. The learned counsel for the Contesting Respondent No.1 controverted the contentions raised on behalf of the Petitioner. At the very outset, the learned counsel contested the maintainability of the Civil Review Petition by urging that the ground has now been agitated on behalf of the Petitioner, was raised in Appeal and adjudicated upon by way of the judgment under review dated 07.03.2014. In the above backdrop, it is contended that the Petitioner is seeking re-hearing of the Appeal, which is not permitted in law. It is further contended that it is a settled law that the Election Tribunal for all intents and purposes, is a Court and has all the powers and jurisdiction of a Civil Court, including the inherent powers and jurisdiction under Order VII Rule 7 of the Civil Procedure Code, 1908, to mold the relief to the facts and circumstances of the case, as has been done in the instant case by directing a re-poll in the seven Polling Stations where admittedly there was a gross failure to comply with the mandatory provisions of ROPA and the Rules materially affecting the result. Therefore, no exception can be taken to the course of action adopted by the Election Tribunal and maintained by this Court vide judgment dated 07.03.2014. It is further urged that the provisions of ROPA in Pakistan are not dissimilar to the provisions of the Indian Representation of the People Act, 1951, CRP 94 of 2014 14 whereunder the Supreme Court of India has routinely ordered re- polling at a few Polling Stations in a particular Constituency. It is added that even otherwise, the powers and jurisdiction of the Election Tribunal to grant the full relief of declaring the election as a whole void, includes by necessary implication the jurisdiction to grant a partial relief of declaring the election of a few Polling Stations to be void and directing a re-poll there. Such interpretation of Section 70 of ROPA would be in accordance with the principle of interpretation, usually referred to as a common sense principle of interpretation. Even otherwise, the power to grant greater relief includes the power to grant lesser relief, as has been done in the instant case. 5. The learned counsel further contended that since the polling at only seven Polling Stations was contaminated the principle of severability would be attracted and such contamination could not poison the result of the remaining Polling Stations. It is added that by virtue of Section 103-AA of ROPA, the ECP has been conferred the jurisdiction to declare the poll in any Constituency void inter alia in cases of violation of the provisions of ROPA or the Rules. Such powers have been interpreted by this Court to include the power to direct a re-poll in some Polling Stations in a Constituency, by applying the CRP 94 of 2014 15 principle of severability. Such powers, it is contended, are obviously available to the Election Tribunal. Therefore, no exception can be taken in the impugned judgment. It is next contended that the interpretation of Sections 67 and 70 of ROPA canvassed on behalf of the Petitioner is not only literal rather than purposive but would also lead to unfair, unjust and improper result and, therefore, cannot be accepted. In support of his contentions, the learned counsel for the Respondents, relied upon the judgments, reported as Sind Employees’ Social Security Institution and another v. Adamjee Cotton Mills Ltd (PLD 1975 SC 32), Mrs. Monica Kamran Dost v. Mrs. Lilavati Barchandani and another (PLD 1987 SC 197), Haji Behram Khan v. Abdul Hameed Khan Achakzai and others (PLD 1990 SC 352), Aftab Shahban Mirani and others v. Muhammad Ibrahim and others (PLD 2008 SC 779), Federation of Pakistan through Ministry of Finance and others v. M/s. Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710), Reference under S. 12, Sindh Courts’ Act, 1926 [PLD 1956 (W.P.) Karachi 178], Hudabiya Engineering (Pvt) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90), Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and CRP 94 of 2014 16 others (AIR 1978 SC 851) and A. C. Jose v. Sivan Pillai and others (AIR 1984 SC 921). 6. Heard. Available record perused. 7. At the very outset, it has been noticed that it is not the case of the Petitioner that by way of the Order of the Election Tribunal upheld by this Court by way of the judgment under review any prejudice has been caused to him. The learned counsel is merely relying on the literal text of the provisions of Sections 67 and 70 of ROPA. In pith and substance, it is the case of the Petitioner that the Election Tribunal can only pass orders, specified in Section 67 sub-section 1 (a) to (d) and the subsequent provisions of ROPA specify the ground whereupon each or any of such order can be passed. It is the case of the Petitioner that in the event of a failure to comply with the provisions of ROPA or the Rules framed thereunder materially affecting the result, the election as a whole must be declared void. Section 67 (1) of ROPA, is reproduced hereunder for ease of reference: “Sec. 67. Decision of the Tribunal.- (1) The Tribunal may, upon the conclusion of the trial of an election petition make an order (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; CRP 94 of 2014 17 (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring the election as a whole to be void.” And Section 70 of ROPA, reads as under: “Sec. 70. Ground for declaring election as a whole void.—The Tribunal shall declare the election as 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.” 8. The interpretation advanced by the learned counsel for the Petitioner is literal. The Courts in Pakistan have always preferred a purposive rather than a literal interpretation of Statutory Instruments. Reference in this behalf may be made to the judgments, reported as Hudabiya Engineering (Pvt) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90) and Federation of Pakistan through Ministry of Finance and others v. M/s. Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710). CRP 94 of 2014 18 9. An overview of the Constitution of the Islamic Republic of Pakistan, 1973, and ROPA reveals that political sovereignty is to be exercised by the chosen representatives of the people, as is apparent from the Preamble and the Article 2A of the Constitution. Such representatives must be chosen by the people through a free, fair and impartial election, as is mandated by Article 218 of the Constitution. In case of an election dispute, the same must be resolved through an Election Petition by the Election Tribunal, established in terms of Article 225 of the Constitution under ROPA. Such disputes, subject to mandatory procedural requirements, must necessarily be resolved in a manner that the will of the people is given effect to and respected. In the instant case, the election in 430 Polling Stations is not in issue. An interpretation whereby valid votes cast in 430 out of 437 Polling Stations are invalidated without any unavoidable compulsion, especially in the absence of prejudice to any party, would not advance the obvious purpose of the relevant constitutional provisions of ROPA, therefore, cannot be easily accepted. 10. The precipice of severability is well recognized and held applicable to election matters. Furthermore, such an interpretation would encourage and enable a losing candidate to CRP 94 of 2014 19 precipitate a re-poll in the entire Constituency by disturbing the election at one or two Polling Stations and thereby frustrating and subverting the purpose of the law. In this behalf, this Court in the judgment, reported as Haji Behram Khan v. Abdul Hameed Khan Achakzai and others (PLD 1990 SC 352), held as follows: “We agree with the High Court that in a case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, respondent No.1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered contained only 1,785 votes and even if all of them had been cast in favour of Haji Behram Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of other candidate would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This Court will not easily countenance such a malversion of the electoral process. It has been repeatedly held by this Court that it shall not act in aid of injustice and where an order of the High Court has been passed to bring about a just, proper and fair result, this Court will not interfere. 11. Furthermore, as a principle of interpretation a word or a phrase implying the “whole” ordinarily includes any part CRP 94 of 2014 20 thereof. Reference in this behalf may be made to the “Statutory Interpretation” A Code (Fourth Edition) by F A R Bennion MA (Oxon) Barrister, wherein it has been observed, as follows: “Greater includes less The requirement that commonsense shall be used in interpretation brings in such obvious principles as that the greater includes the less: omne majus continent in se minus. This is a principle the law recognizes in many contexts. …………………………………………………….. Example 197.5 Section 3(1) of the Criminal Law Act 1967 states that a person may use such force as is reasonable in the prevention of crime. Milmo J said ‘It is, of course, true that the charge against the defendant was not that he used force but that he threatened to use force. However if force is permissible, something less, for example a threat, must also be permissible …’” The aforesaid quoted maxim of interpretation is not unknown to the Courts in Pakistan. Reference in this behalf may be made to the judgment, reported as Reference under S. 12, Sindh Courts’ Act, 1926 [PLD 1956 (W.P.) Karachi 178], wherein Justice S.A. Rehman, as he then was, observed as follows: “Omne majus continet in se minus - the greater contains the less – is a well known maxim of the law.” 12. Section 67 of ROPA enumerates the possible reliefs, which may be granted by the Election Tribunal. It is in the above context that the phrase “declaring the election as a whole to be void” as used in clause (d) must necessarily be examined. The CRP 94 of 2014 21 jurisdiction to grant a specified relief includes the jurisdiction to grant a partial relief, as has been held by this Court in the case, reported as Sind Employees’ Social Security Institution and another v. Adamjee Cotton Mills Ltd (PLD 1975 SC 32), in the following terms: “It is not disputed that the Social Security Court, on an appeal brought before it under the above section can set aside the order appealed against in its entirety or may grant even partial relief depending upon the facts of a particular case. …” 13. Thus, as a general principle of law, the Election Tribunal while exercising its jurisdiction in terms of Section 67 (1) (d) of ROPA not only can declare the election as a whole void but also any part thereof i.e. the elections in a few Polling Stations, if the circumstances so require. This is also obvious from a bare reading of the aforesaid provisions which reveals that the phrase “declaring the election as a whole to be void” employed in clause (d) has been used in contradistinction to clause (b) envisaging an order “declaring the election of the returned candidate to be void”. 14. In the case of Mrs. Monica Kamran Dost v. Mrs. Lilavati Barchandani and another (PLD 1987 SC 197), equal numbers of valid votes were polled in favour of the two contesting candidates. The Returning Officer misapplied the CRP 94 of 2014 22 provisions of sub-rule 5 of rule 66 of the Representation of the Peoples (Conduct of Election) Rules, 1977. On an Election Petition, the Election Tribunal apparently following a literal interpretation of Section 70 of ROPA, declared the election as a whole void. On appeal, this Court modified the result by holding that “On this view of the matter, the Election Tribunal should have declared the election of the appellant, in Appeal No.3-K of 1986, to be void.” 15. The ROPA in addition to the powers conferred on the Election Tribunal has also conferred powers on the ECP to pass appropriate orders regarding the conduct of the election, including Section 103-AA, which is reproduced hereunder: “Sec. 103-AA. Power of Commission to declare a poll void.—(1) Notwithstanding anything contained in this Act, it, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108. (2) Notwithstanding the publication of the name of a returned candidate under sub- section (4) of section 42, the Commission may exercise the powers conferred on it by sub- section (1) before the expiration of sixty days after such publication; and, where the CRP 94 of 2014 23 Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal. (3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.” A perusal of the aforesaid provisions makes it is clear and obvious that inter alia on account of violation of any of the provisions of ROPA or the Rules framed thereunder, the ECP may declare the poll in any Constituency as void. It may be noticed that no specific power has been conferred to declare an election in a part of the Constituency as void or to direct a re-poll at a few Polling Stations, yet in exercise of the powers conferred by Section 103-AA of ROPA, the ECP on many occasions has ordered re-poll in a few specific Polling Stations. An order in one of such cases was challenged, inter alia, on the ground that in terms of Section 103-AA of ROPA, election as a whole could be declared void and no partial re-poll in a few Polling Stations could be ordered. In the said case, reported as Aftab Shahban Mirani and others v. Muhammad Ibrahim and others (PLD 2008 SC 779) it was held as follows: CRP 94 of 2014 24 “The emphasis of the learned counsel for the respondent that the Election Commission, without holding proper inquiry could not exercise powers under section 103-AA of the Act to declare the election of a constituency as a whole void and there is also no concept of partial declaration of election void, has no legal foundation. The Election Commission of Pakistan may exercise power under section 103-AA of the Act in the manner provided therein and not beyond that, but the plain reading of section 103-AA of the Act would show that meaning of expression “in the constituency void” is not only referable to the whole constituency rather its true import is election in the constituency as a whole or at one or more polling stations. It was held in Abdul Hamid Khan Achakzai v. Election Commission of Pakistan 1989 CLC 1833 as under:-- “Election commission’s jurisdiction for declaring election of the whole constituency as void would depend on being satisfied about the existence of grave illegalities or serious violations of the provisions of the Act LXXXV of 1976 or Election Rules in the conduct of polls in any constituency.” It was further held that:- “No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of section 103-AA but such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation.” 16. The provisions of the Indian Representation of the People Act, 1951, with regard to the Election Petitions are not dissimilar to that of ROPA. Though no doubt, the phrase “declaring the election as a whole void” has not been employed CRP 94 of 2014 25 yet in the relevant provisions, no specific power to declare the election in a few Polling Stations as void is granted. The Supreme Court of India upon an Election Petition has repeatedly declared the result of a few Polling Stations to be void and a re-poll in such Polling Stations ordered. Reference in this behalf may be made to the judgments, reported as Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851) and A. C. Jose v. Sivan Pillai and others (AIR 1984 SC 921). 17. In view of the above, it appears that the interpretation of Sections 67 and 70 of ROPA, being pressed into service on behalf of the Petitioner is too literal, rigid and ritualistic to accept. It offends against the well recognized common sense principle of interpretation and tends to erstwhile maxim that “the greater contains the less” which has been applied by the Courts. We cannot also loose sight of the fact that the Election Tribunal is for all intents and purposes a Court and it is settled law that Courts and Tribunals cannot only grant the entire relief permitted by law but also any part thereof. The principle of severability is also well recognized and the same is duly attracted to elections thereby isolating the result in a few Polling Stations where poll has contaminated and a fresh poll thereat. It is also obvious that such CRP 94 of 2014 26 principles have been applied by this Court, both with reference to the powers of the ECP under Section 103-AA and by the Election Tribunal, as is evident from the judgments referred to and reproduced hereinabove. Directing a re-poll in some Constituencies as was done in the instant case is also a course of action adopted and followed by the Supreme Court of India in the election matters. 18. The interpretation followed by the Election Tribunal and upheld by this Court by way of the judgment under review, besides conforming to the established principle of interpretation advances the object and intent of Articles 218, 219 and 225 of the Constitution and the provisions of ROPA. Furthermore, thereby the mischief of encouraging disruption of the poll is suppressed. In the instant case, the election in 430 out of 437 Polling Stations, was carried out fairly, justly and in accordance with the law merely because in seven Polling Stations, ROPA and the Rules framed thereunder are violated, does not justify annulling the election in 430 Polling Stations. Importantly, it is not the case of the Petitioner that the interpretation of Sections 67 and 70 of ROPA, as employed by in the instant case has caused any prejudice to him. It may be noted the possibility that the known result of 430 Polling Stations would influence the subsequent re- CRP 94 of 2014 27 poll in the seven disputed Polling Stations, does not arise as it was a very closely contested election dependent entirely on the result of the seven disputed Polling Stations. Even otherwise, the ECP under Section 103-AA of the ROPA order re-polling in a few Polling Stations, which course of action has been upheld by this Court. 19. We cannot also loose sight of the fact that during the pendency of the appeal, re-poll in seven Polling Stations, was conducted as a consequence whereof Respondent No.1 was declared the Returned Candidate. The people of the Constituency have spoken and there is no occasion to discard the will of the people and force them go to the polls again. 20. In this view of the matter, it appears that in the eventuality of a failure to comply with the mandatory provisions of ROPA and the Rules, an Election Tribunal in exercise of powers under Section 70 of ROPA, may declare the election as a whole to be void. However, the Election Tribunal is not denuded of the jurisdiction to grant partial relief of declaring the election at a few Polling Stations to be void and directing a re-poll thereat. Which of the two available courses of action to be followed would depend on the facts and circumstances of each case. The real and decisive factor would be the fulfillment of the mandate of the CRP 94 of 2014 28 Constitution and ROPA of ensuring the will of the people is respected and a free, fair and impartial election held. It should be ensured that no prejudice is caused to any of the candidates. In the instant case, it is not even the case of the Petitioner that any prejudice has been caused to him or the true intent and object of law has not been achieved. Consequently, the judgment dated 03.07.2014 does not suffer from any error requiring rectification, therefore, this Civil Review Petition, being without merit is liable to be dismissed. Judge CRP 94 of 2014 29 ORDER OF THE BENCH: By majority of 2 to 1 (Sh. Azmat Saeed, J. dissenting), we allow this review petition and hold that the election as a whole stood vitiated. Civil Appeal No.31 of 2014 is thus allowed. The Election Commission shall, therefore, hold a bye election for the constituency NA-19 (Haripur) in accordance with law. Judge Judge Judge Announced in open Court at Islamabad on 19.06.2015. APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Shariat Appellate Jurisdiction) Present: Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Mr. Justice Dr.Muhammad Khalid Masud Civil Shariat Appeal No.1 of 2013 Against the judgment dated 22.10.2012 passed by Federal Shariat Court in Sh. Mis. Application No.06/1 of 2011 Govt. of Punjab thr. Chief Secretary Appellant(s) VERSUS Dr.Zahoor Ahmad Azhar Respondent(s) For the Appellant(s): Barrister Qasim Chohan, Addl. AG. Pb. For the Respondent(s): N.R Date of Hearing: 19.09.2018 JUDGMENT CMA No. 8415-L of 2013 Mushir Alam, Chairman.- For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Civil Shariat Appeal is condoned. Disposed of. Civil Shariat Appeal No.1 of 2013 Appellant, Government of Punjab, have challenged the judgment dated 22.10.2012 rendered by the learned Federal Shariat Court whereby directions to implement Article 31 (2)(c) of the Constitution of Pakistan, 1973 and Shariat Act, 1991 were issued. 2. Briefly stating facts appears to be that Dr. Zahoor Ahmed Azhar, Respondent herein, through letter dated 14.12.2010 addressed to the Chief Justice, Federal Shariat Court sought intervention in the Civil Shariat Appeal No.1 of 2013 2 matter of introduction of Arabic language in all walks of life and for issuance of necessary direction to the Federal Government to make Arabic language as a part of curriculum from primary to secondary school in following terms: " 1۔ ۔����۠� �ۡ�� �ۗ��ٗ� �� ں�ۡ�ٗررو ٗڡ��ٗ� �� ٗ�ۡ�و�۠�٘� �ٗ��ٗ��٘� روا �ٗ�ۡ���ٓا ٗںا 2۔ ۔����۠� �ۡ�د م�٘��ٗ����۠� �ۡ�� ٗںا�ۡ�� ������� ہو��� �� �ۡ���٘� �� ٗں�۠�ٗر �۠��� ������۠� �ۡ�� �ٗ�۠��ۨ� �� ٗں�٘����ۨ� ٘����� 3۔ �ۡ���٘� �٘� �۠�رد ى�ٗ��ٙ� �ٰ��ا �� ى����ا�ۨ� �� �� ���ۡ�� �� �ۡ�ر�٘� �� ں�ۨ�۠� ٗں����� ��روا ٙ�ٗ�۠� ���٘� ��ٗر�� ۔����۠� �ۡ�� م�ٗ�٘�ٗ�ا ���ٗ��ٗ�ۡ�و�٘��د �٘��۠� ��ا�� �ۡ�ا ��٘�ٙ�� �ۨ� ٘ٮ��ٗ�� ٗ�ۡ�٘� �� ٗص�ٗ� �� ٘ٮ�������ۡ�� �� ٘�ٗ�و���� ٘��ا�� ۔"��� 3. Letter was converted into Shariat Petition. Notices were issued to the Secretary Law and Justice, Government of Pakistan, Attorney General of Pakistan, Standing Counsel for the Federal Government, and Advocates General of all the four Provinces. Attorney General and Standing Counsels for the Federal Government chose not to appear. After hearing the Petitioner and Advocates General of all the four Provinces, and taking into consideration various reports of different committees and in consideration of facts narrated in the impugned Judgment, learned Bench, through impugned judgment directed the Federation of Pakistan to implement Article 31 (2)(c) of the Constitution of Pakistan and Shariat Act, 1991. All the four Provinces were also directed to report the compliance, operative part contained in paragraph 6 of the impugned judgment runs as follows: “Federation of Pakistan is directed that, under Article 31(2)(a) of the Constitution of Islamic Republic of Pakistan, Shariat Act, 1991 and the facts mentioned above, necessary steps, stated to be already under way, in certain respects in this regard, as mentioned above, Civil Shariat Appeal No.1 of 2013 3 be finalized early for promotion of Arabic language for the educational and other relevant systems. It should regularly be monitored in order to ensure positive progress on the same, to be submitted to the Cabinet within six months.” 4. Appeal in hand under Article 203(F) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred by the Province of Punjab alone. Learned Additional Advocate General, Punjab, contended that impugned judgment cannot be sustained, Federal Shariat Court in terms of Article 203D of the Constitution of Pakistan, 1973 had no jurisdiction to issue direction for the implementation of Article 31 (2)(a) of the Constitution. Secondly, the Principle of Policy as contained in Articles 29 to 40 of the Constitution, 1973 are merely the guiding principles for the State governance, which cannot be enforced by any Court including Federal Shariat Court. And, lastly that the draft Bill “the Teaching of Holy Quran and Arabic language, Act, 2009” which was proposed and remained under consideration of various Ministries has never seen the light of day, and or reports of various Committees including Senate Committee cannot be made basis of issuing any direction as has been done through impugned Judgment. Respondent, though served through his counsel, chose to remain absent. 5. Heard the learned Additional Advocate General, Punjab and perused the record. Pivotal question that has engaged our attention is whether the Federal Shariat Court, under the facts and circumstances of case before us, has jurisdiction to issue any declaration and or direction of the nature as reproduced above or otherwise. Civil Shariat Appeal No.1 of 2013 4 6. Unlike wholesome original jurisdiction conferred on the High Courts and Supreme Court in terms of Article 199 and Article 184 (3) of the Constitution, respectively, to examine the justiciability of action or inaction as per law on the part of any State functionary, authority, organ and or person and to issue appropriate declaration, directions, or order as the case may be, such diversity of jurisdiction is conspicuously absent from the jurisdictional armory of Federal Shariat Court, [for illustrative study one may refer to celebrate case of Saeedullah Kazmi versus Government of Pakistan (PLD 1981 SC 42)]. 7. Federal Shariat Court has been instilled in our Constitution through amendment Ordinance, 1980 in the Constitution of Pakistan, 1973 in Part VII, whole new chapter 3A (Article 203A to 203J) was added, installing Federal Shariat Court and Shariat Appellate Bench in the Supreme Court. Federal Shariat Court on its own motion or on the petition of a citizen of Pakistan or the Federal or Provincial Government examine existing law and or any provision thereof is in conformity and not repugnant to Injunction of Holy Quran and Sunnah of the Holy Prophet (PBUH). Limit and extent of original jurisdiction of the Federal Shariat Court is well defined in terms of Article 203D of the Constitution of Islamic Republic of Pakistan, 1973 which reads as follow: 203D. (1) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam. (1A) Where the Court takes up the examination of any law or provision of law under clause (1) and such law Civil Shariat Appeal No.1 of 2013 5 or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Legislative List or to the Provincial Government in the case of a law with respect to a matter not enumerated [in the Federal Legislative List], a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court. (2) If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision: (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect. Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal. (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam: - (a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Governor in the case of a law with respect to a matter not enumerated in [said List] shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to Civil Shariat Appeal No.1 of 2013 6 have effect on the day on which the decision of the Court takes effect. 8. Article 203D, as reproduced above, clearly set down the original jurisdiction of the Federal Shariat Court, to the extent of examining the statute laws, custom or usage having force of law, including statutory rules, regulations framed thereunder on the touchstone of Injunctions of Islam and issuance of declaration in relation thereto, however Constitution, Muslim Personal Laws, fiscal law and law of procedure of any Court as mentioned in Clause (c) of Article 203B ibid; are kept beyond the pale of its jurisdiction. [See Dr. M. Aslam Khaki versus Syed Muhammad Hashim and 2 others (PLD 2000 Supreme Court 225)]. 9. Having examined the Jurisdictional bounds of the Federal Shariat Court, we have noted that the Federal Shariat Court has issued a direction in the form of writ of mandamus as reproduced in paragraph 3 above, which is clearly beyond its jurisdictional authority. 10. Learned Bench of the Federal Shariat Court, fell into error, treating Article 31(2) of the Constitution, as command of the Constitution or law capable of implementation by the Federal Shariat Court. As discussed above, jurisdiction of Federal Shariat Court is confined to the extent of examining the compatibility or otherwise of law (per Article 293B (c) ibid) on the touchstone of Injunctions of Islam. Once a law or any provision thereof is held to be repugnant to Injunctions of Islam, by the Federal Shariat Court then it becomes the responsibility of the appropriate legislature to harmonize it in accordance with Injunctions of Islam, otherwise declaration so made by the Federal Shariat Court becomes effective on the day so specified in its decision. Civil Shariat Appeal No.1 of 2013 7 11. It may be observed that Principles of Policy as embedded (Articles 29 to 40), infact are the guidelines for the State, stand alone, are not enforceable. Sub-Article (1) ibid on one hand places responsibility on each organ and authority of State to strive to achieve the same on the other sub Article (2) of Article 30 ibid insulates it against examination even by the High Courts and Supreme Court unless same are translated into command of the Constitution and or law like Article 141A, Article 10A, Article 25A, corresponding to Articles 32, 37(d) and 37 (b) & (c) respectively grafted through 18th Constitutional Amendment [For illustrative cases one may see Mehr Zulfiqar Ali Babu versus Government of the Punjab and others (PLD 1997 Supreme Court 11), President of Baluchistan High Court Bar Association versus Federation of Pakistan and others (2012 SCMR 745) and Hafiz Abdul Waheed versus Mrs. Asma Jehangir and another (PLD 2004 Supreme Court 219)]. 12. As discussed above original jurisdiction of the Federal Shariat Court is circumscribed by Article 203D of the Constitution, to the extent of examining any law to be in conformity with Injunctions of Islam or otherwise. Federal Shariat Court has no jurisdiction to examine or be influenced by any proposed draft legislation, Bill “the Teaching of Holy Quran and Arabic language, Act, 2009,” which has not yet been translated into the Act of Parliament nor possess any jurisdiction in the nature of Article 199 or 184(3) of the Constitution, for the enforcement of fundamental rights or to issue order, declaration or directions to implement any command of the Constitution or law. The direction given to Federation of Pakistan and all of the four Provinces through impugned judgment to take necessary steps under Article 31 (2)(c) of the Constitution and “Enforcement of Shariah Act, 1991” “for Civil Shariat Appeal No.1 of 2013 8 promotion of Arabic language for educational and other relevant purposes”, the jurisdiction and authority, if any, to issue such direction, may rest elsewhere but, certainly not with the Federal Shariat Court. 13. In view of foregoing discussion, impugned judgment dated 22.10.2012 is set aside, Civil Shariat Appeal stands allowed. Chairman Member Member ISLAMABAD, THE 19th of Sep., 2018 Arshed Approved for Reporting

IN THE SUPREME COURT OF PAKISTAN (Shariat Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Tariq Parvez Mr. Justice Dr. Muhammad Khalid Masud Civil Shariat Appeals No. 1 and 2 of 2014 (Against the judgment dated 10.02.2014 passed by the Federal Shariat Court, Islamabad in Service Appeals No. 1 and 2 of 2013) Amjad Ali (in both cases) …Appellant versus Federal Shariat Court through its Registrar (in both cases) …Respondents For the appellant: In person (in both cases) For the State: Mr. Abdul Rasheed Awan, Deputy Attorney-General for Pakistan Qari Abdul Rashid, AOR (in both cases) Date of hearing: 28.06.2016 JUDGMENT Asif Saeed Khan Khosa, J.: The impugned judgment passed by the Federal Shariat Court had been passed in two service appeals filed by the present appellant and the said judgment has been assailed by the appellant before this Court by invoking Article 203-F(2B) of the Constitution of the Islamic Republic of Pakistan, 1973. We have gone through the provisions of Article 203-F of the Constitution as a whole and have found that in the said Article different remedies have been provided which Civil Shariat Appeals No. 1 and 2 of 2014 2 include an appeal before this Court against a judgment or order passed by the Federal Shariat Court in its jurisdiction pertaining to Islamization of laws, an appeal before this Court in respect of a judgment, final order or sentence passed by the Federal Shariat Court in the matter of convictions, acquittals and sentences in cases of Hudood laws and it has been provided in Article 203-F(2B) that where an appeal does not lie to this Court as provided in the other clauses of Article 203-F there an appeal may lie to this Court after obtaining leave to appeal. According to our understanding of Article 203-F of the Constitution no appeal lies before this Court against a judgment or order passed by the Federal Shariat Court in service matters of its employees and likewise the matter of leave to appeal contemplated by the provisions of Article 203-F(2B) of the Constitution is also not relevant to the judgments or orders of the Federal Shariat Court passed in the service matters of its employees. The appellant appearing in person has drawn our attention towards Article 212 of the Constitution and we have noticed that the said Article provides for establishment of administrative courts or tribunals but clauses (a), (b) and (c) of Article 212(1) of the Constitution deal with specific subjects or areas regarding which an administrative court or tribunal may be established. We do not find an administrative court or tribunal established for administrative matters of the employees of the Federal Shariat Court to be falling within any of the said clauses of Article 212(1) of the Constitution and, thus, from a judgment or order passed in a service appeal by the Federal Shariat Court no appeal or petition for leave to appeal lies before this Court even by invoking clause (3) of Article 212 of the Constitution. Be that as it may clause (3) of Article 212 of the Constitution may even otherwise not be attracted because the case of the appellant essentially raises issues which are purely factual and personal to the appellant and the same do not involve any substantial question of law of public importance. Civil Shariat Appeals No. 1 and 2 of 2014 3 2. For what has been discussed above we have found these appeals filed before this Court to have been filed without jurisdiction and the same are, therefore, dismissed as not maintainable. Chairman Member Member Islamabad 28.06.2016 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Original Jurisdiction) Present: Mr. Justice Amir Hani Muslim Mr. Justice Mushir Alam Mr. Justice Dost Muhammad Khan Constitution Petition No.03 of 2014 And C.M.A.No.8540 of 2015 Ch. Muhammad Akram, Advocate High Court, Former Vice President, Islamabad High Court Bar Association, Islamabad……………………………..Petitioner Versus Registrar, Islamabad High Court and others…………Respondents For the Petitioner : Mr. Arif Chaudhry, ASC. Ch Akhtar Ali, AOR. For Respondent No.1 : Mr. M. Shahzad Shoukat, ASC. For Respondents No. : Syed Iftikhar Hussain Gillani, Sr.ASC. 3-22, 24-29, 31-76 For Respondent No.23 : Kh. Azhar Rasheed, ASC. For Respondent No.30 : Mr. Muhammad Munir Paracha, ASC. For the Federation : Mr. Sohail Mehmood, DAG. Mian Abdul Rauf, A.G, Islamabad. For the Applicant : In-person. in C.M.A.No.8540/2015 Mr. Anees Jillani, ASC. Syed Rafaqat Hussain Shah, AOR. Date of hearing : 9, 10, 11, 12 & 16.05.2016. Const.P.No.03/14. 2 JUDGMENT AMIR HANI MUSLIM, J. - These proceedings have been instituted by Ch Muhammad Akram, a practicing Advocate and Human Rights Activist, challenging various appointments, absorptions and transfers in the Islamabad High Court, claimed to have been made in violation of the Services Rules of the Islamabad High Court. 2. The Petitioner has mainly relied on an Audit Report for the years 2010 to 2013 submitted in July 2013, by Nasim-ul-Ghani, Accounts Officer, Office of the Accountant General, Pakistan Revenues, Islamabad. The relevant portion of the Report is reproduced hereunder:- “During scrutiny of personal files, it has been observed that after re-establishment of Islamabad High Court in 2010 not a single appointment of officers/officials has been made on merit and a number of appointments have been made in relaxation of rules including absorption of officer and officials (deputationists) in much higher scales than they were holding in their parent departments. Whereas, generally the absorption is made in the same scale or in some special case maximum one stage above only but in Islamabad High Court the deputationists have been absorbed in much higher scale without any plausible justification. Absorption is also a kind of appointment. The procedure of advertising the posts in newspapers for making appointments through open competition after conducting test/interview has totally been ignored in all the appointments made during the Const.P.No.03/14. 3 audit period. Appointments without open competition have been held illegal by the superior courts. Rule 8 of the Islamabad High Court Establishment (Appointments and Conditions of Service) Rules, 2011 also provides that initial recruitment to all posts shall be made after proper advertisement of the vacancies in the newspapers and on the basis of test and interview. It is more alarming that even after advertising the posts of non-gazette cadres, the same were still filled by relaxing the rules and the applicants who had applied against the said posts were deprived of their fundamental right to compete for getting job on merit. Further observed that no justification and exigency existed as already a reasonable number of employees (more than 200) had been working in the Court and there was no hurdle in adopting proper procedure to fill up the vacant posts but it appears that the intention was not there and nepotism/favoritism was allowed to prevail. Even in case of any exigency the post could have been filled temporarily (not more than for a period of six months) and then regular appointment could have been made by adopting the proper procedure in some cases of appointments, discretionary powers of relaxing of rules have been exercised more than one time. Whereas the power to relax any of the rules (rule 16 of the Islamabad High Court Establishment (Appointments and Conditions of Service) Rules, 2011) can only be exercised where a strict application of the rule would cause undue hardship and it is also subject to recording of reason in writing”. 3. It has been pleaded by the Petitioner that appointments/absorptions of the Respondents No.3 to 76 were made in complete departure of the Islamabad High Court (Appointment and Const.P.No.03/14. 4 Conditions of Service) Rules, 2011 [hereinafter referred to as ‘the Islamabad High Court Rules’], without adopting the procedure laid down in the Islamabad High Court Rules. It has been pleaded that Rule 8 of the Islamabad High Court Rules, provides that initial recruitment to all posts shall be made after proper advertisement of the vacancies in the newspaper having wide circulation and in any other manner to be determined by the Chief Justice or subject to his approval by the Selection Committee or Selection Board, as the case may be, and the applications of the candidates received whereof shall be scrutinized accordingly. It has been further pleaded that as per Rule 4 (1) of the Islamabad High Court Rules all appointments whether initial or by promotion or transfer or by deputation shall be made as prescribed by the Rules. 4. The Petitioner has stated that even after advertising the posts of the non-gazetted staff, the appointments were made by relaxing the Islamabad High Court Rules and the Applicants who had applied for the said posts were deprived of their fundamental rights to compete for the jobs on merit, thereby allowing nepotism/favoritism. He has pleaded that the selection of persons for Public office is a sacred trust, which is required to be discharged honestly, justly and fairly, so that each Applicant may get a fair chance to compete for the job, he has applied for. The Petitioner has prayed that the appointments/absorptions of the Respondents No.3 to 76 may be declared as illegal having been made without lawful authority. Const.P.No.03/14. 5 5. Mr. Arif Chaudhry, learned ASC for the Petitioner has contented that after the creation of the establishment of the Islamabad High Court, many appointments were made in its Establishment, which are inconsistent with the law, i.e. (1) appointments were made without any advertisement (2) direct appointments were made on posts where recruitment was supposed to be made on promotion basis (3) these appointments had not been made on the basis of merit (4) ineligible candidates were appointed against the Islamabad High Court Rules. 6. He states that ‘The Islamabad High Court Establishment (Appointment and Conditions of Service) Rules 2011’ were framed by the Administration Committee of the Islamabad High Court in exercise of the powers conferred by Article 208 of the Constitution and with the approval of the President. He submits that the Islamabad High Court Rules were published in the Official Gazette on 20th of May 2011. The learned ASC further states that four of the allegedly illegal appointments were made prior to the promulgation of these Rules and the remaining 57 were made after framing of the Islamabad High Court Rules. 7. It is contended by the learned Counsel for the Petitioner that the appointments were made without advertisement and bypassing the Islamabad High Court Rules. Before framing of the Islamabad High Court Rules, in terms of Section 5 of the Islamabad High Court Act, 2010, the appointments to the establishment were Const.P.No.03/14. 6 governed by the Lahore High Court Service Rules. Instead of appointing the Respondents No.3 to 76 under the Lahore High Court Rules, the Chief Justice has made all the appointments in relaxation of the Rules. He submitted that the mode adopted by the Islamabad High Court for making appointments is violative of the Rules besides it deprived meritorious and deserving candidates from participating in the competitive process for appointment to different public offices which is inherent right of every citizen under the Constitution. In support of his contentions, the learned Counsel has relied upon the case of Abdul Jabbar Memon and others (1996 SCMR 1349), wherein it was held by this Court that all appointments made to the public offices without requisite advertisement, are violative of the fundamental rights of the citizens. The learned Counsel has also relied upon the case of Mushtaq Ahmad Mohal v. Honourable Lahore High Court, Lahore (1997 SCMR 1043), wherein paragraph 7 of the aforesaid judgment, it has been held that inviting applications from the pubic for appointments without advertisement in the press is violative of Article 18 read with Article 2-A of the Constitution. He, in support of his contention, has also relied on the cases of Muhammad Naseem Hijazi v Province of Punjab (2000 SCMR 1720), Dr. Naveeda Tufail Vs. Government Of Punjab (2003 SCMR 291) and Chief Secretary Punjab & others V Abdul Raoof Dasti (2006 SCMR 1876). He further relied on the cases of Muhammad Ali Vs. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar (2012 SCMR 673), Baz Muhammad Kakar Vs. Federation Of Pakistan through Ministry of Const.P.No.03/14. 7 Law and Justice (PLD 2012 SC 923), Registrar, High Court Of Balochistan Vs. Abdul Majeed (PLD 2013 Balochistan 26) and Syed Mubashir Raza Jaffri Vs. Employees Old-Age Benefits Institutions (EOBI) (2014 SCMR 949). 8. The learned Counsel for the Petitioner then turned towards the facts of the present case which he believed held pivotal importance in advancing his contention. He informed the Court that Respondent No.35 Omer Daraz had been appointed to the post of Registrar. The basic pay scale for this post was 21 and 22 and the appointment under the Rules rests at the discretion of the Chief Justice of the Islamabad High Court when he decides to appoint (a) by transfer of District and Sessions Judge serving in the High Court or by borrowing District and Sessions Judge form Provincial High Courts (b) by promotion of an officer serving in BS-20 or (c) by initial appointment on contract basis of a suitable person with reasonable experience of administration and financial matters. The learned ASC Arif Chaudhry, contended that Respondent No.35 was a Reader (BS-18) who was illegally promoted to the said post in blatant contravention of the Rules. 9. The learned Counsel for the Petitioner has contended that on 17.04.2012, Idrees Kasi, Respondent No.3, was directly appointed against a promotion post of Deputy Registrar (BS-19). In terms of the Rules, promotion to the said post could only be made through (a) promotion amongst cadres of Assistant Registrars, Readers and Private Const.P.No.03/14. 8 Secretaries on seniority-cum-fitness basis on rotation basis or (b) transfer of Senior Civil Judge of Islamabad High Court or other High Courts by borrowing their services on deputation basis. Hence the direct appointment of Respondent No.3 was illegal and against the Rules. 10. Mr. Arif Chaudhry learned ASC for the Petitioner then argued that Respondent No. 30 Usman Qudoos was appointed as Research and Reference Officer. He submitted that the mode for appointment to the said post is by promotion from amongst the Librarians on seniority-cum-fitness basis provided that the said person is a law graduate and has rendered seven years’ service in BS-17 and above. The Rules further provided that in absence of the above qualifications, a person with a Master’s degree in Library and Information can be appointed, preferably a law graduate, with seven years’ experience in management and maintenance of Court Libraries in BS-17 and above. The learned Counsel contended that appointment of Usman Qudoos to this post was made over looking the required qualification of a Librarian having 12 years’ experience, who was not eligible for the aforesaid post. 11. It was next contended by the learned Counsel for the Petitioner that Respondent No.7 Kashif was directly appointed to the post of Additional Registrar which is a promotion post and the said Const.P.No.03/14. 9 Respondent was neither eligible nor qualified to hold the said post under the Rules. 12. Ijaz Ahmed, former Additional Registrar of the Islamabad High Court, has made an Application for impleadment (C.M.A.No.8540/2015) as party in these proceedings. The said Application was dismissed with the observation that he will have a right of audience. He has contended that out of 64 appointments made in the establishment of Islamabad High Court, 42 persons were eligible but were appointed without following the mandatory requirement of advertisement in the press. According to him, the remaining 22 persons, who were appointed, were neither eligible nor qualified and the process of appointments was not transparent. He contended that Respondent No.40, 41, 42 and 43 were originally employees of different corporations, who were inducted in the Islamabad High Court without advertising the said posts. According to Ijaz Ahmed, these Respondents did not posses the qualifications for the posts against which they were appointed and thereafter unauthorizedly absorbed. 13. He further contended that Usman Mir, Respondent No.40, was serving in Allied Bank Ltd. as Credit Analysis Officer and was appointed and absorbed as Assistant Registrar (BS-18) in the Islamabad High Court. Saqib Sheraz, Respondent No.41, was in Pay Scale 4 in the Pakistan Broadcasting Corporation and was appointed and absorbed as Assistant Accounts Officer (BS-17). Aamir Abdul Majeed, Respondent No.42, who was serving as Stenographer in Punjab University was Const.P.No.03/14. 10 appointed and absorbed as Personal Assistant (BS-17). Shakeel Raza, Respondent No.43, was serving as Assistant in Balochistan Assembly and was appointed and absorbed as Data Processing Officer in BS-17. He submits that all these appointments were violative of the judgments of this Court titled as Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456). He next contended that this Court in the case of Muhammad Naseem Hijazi vs. Province of Punjab (2000 SCMR 1720), while interpreting the scope of writ of quo warranto has held that any party can challenge the appointment of a person, who is not legally qualified to hold the office by way of a writ of quo warranto. He has further contended that the appointments of the Respondents were not only violative of the Rules of the Court, but also violative of Articles 27 and 189 of the Constitution. 14. Mr. Shehzad Shoukat, learned ASC appearing for the Islamabad High Court has contended that the Registrar, Islamabad High Court has filed a concise statement by way of C.M.A.No.369 of 2015 on behalf of the Respondents No.1 and 2. He has contended that Respondents No. 3 to 76 were appointed by the Islamabad High Court, which fact is incorrect. According to him, 11 Respondents have been named twice in the array of the Respondents. He contended that in all, 61 Respondents were appointed out of which 29 were appointed on lower posts e.g. Naib Qasids, Chowkidars and Sweepers. He contended that these employees could not be said to hold Public Office and, Const.P.No.03/14. 11 therefore, the Petition against them in the nature of quo-warranto does not lie. In support of his contention, he has relied on the judgment in the case of Sohrab vs. the State reported in (PLD 1975 SC 248). He next contended that the Respondents No.48 and 56 are no more in the employment of the Islamabad High Court. 15. The learned Counsel has further contended that out of the remaining 32 Respondents, 10 were appointed prior to the promulgation of the Islamabad High Court Rules and from the remaining 22, 06 were initially appointed on deputation and subsequently absorbed by the Competent Authority in terms of Rule 4(5) of the Rules. He contended that 14 fresh appointments were made; one was appointed on contract basis and the other on deputation. According to him, these appointments were made in relaxation of Rule 16 of the Rules, which confers power on the Chief Justice to relax the Rules. He submits that in exercise of powers conferred on the Chief Justice, he has appointed these persons, assigning good reasons for their appointment and, therefore, no illegality, if any, has been committed by the Chief Justice/Competent Authority. 16. He next contended that the grievance of the Petitioner cannot be entertained by this Court in exercise of its jurisdiction under Article 184 (3) of the Constitution, which according to the learned Counsel, has limited scope. He contended that the Counsel for the Petitioner has pleaded that the appointments of the Respondents were made in violation of the Rules, therefore, they be declared illegal. The Const.P.No.03/14. 12 learned Counsel while advancing his arguments has contended that this Court in exercise of jurisdiction under Article 184 (3) of the Constitution will seek guidance from the provisions of Article 199 (5) of the Constitution. He contended that even otherwise, a writ cannot be issued against a High Court or Supreme Court and in support of his contention, he has relied on the judgment reported as Jamal Shah vs. The Member, Election Commission, Govt. of Pakistan, Lahore (PLD 1966 SC 1). In substance, the contention of the learned Counsel was that the powers of appointment exercised by the Chief Justice were in his administrative capacity and cannot be examined under Articles 199 (5) and or 184 (3) of the Constitution. He submits that in order to exercise jurisdiction under Article 184 (3) of the Constitution, the Petitioner has to establish that the Competent Authority has not followed the Rules or exercised jurisdiction not vested in him under the law or did not have the requisite authority at all. According to the learned Counsel, unless any of the aforesaid ingredients are established, the Petitioner cannot seek relief in a writ of quo-warranto. He submits that the Chief Justice/ Competent Authority has the powers under Rules 16, 17 and 18 of the Islamabad High Court Rules to relax the conditions for appointment in the establishment and such appointments cannot be challenged. He submits that no rule can restrict the powers of the Chief Justice with regard to the appointments made under Rules 16, 17 and 18 to appoint any one, as these Rules have overriding effect on the other Rules. It is next contended by the learned Counsel that the scope of Article 184 (3) of the Constitution is limited. According to him, in order to entertain a Const.P.No.03/14. 13 Petition under Article 184 (3) of the Constitution, a party has to establish that the issue involved relates to a question of public importance having nexus with fundamental rights. He submits that in the absence of any of these ingredients, a Petition is not entertainable. The learned Counsel contends that in the case in hand, the Petitioner has failed to place any material which could justify invoking the jurisdiction of this Court under Article 184 (3) of the Constitution. 17. Syed Iftikhar Hussain Gillani, learned Sr.ASC, for the Respondents No.3 to 76, has submitted that the appointments were challenged by the Petitioner three times i.e. the Petitioners challenged the appointments in Writ Petition No.2997 of 2011 which was dismissed by the Islamabad High Court on 26.10.2011 against which they filed I.C.A.No.562 of 2012, which was also dismissed on 18.09.2012. They again challenged the appointments through another Writ Petition No.10100 of 2013, which was returned by the Registrar of the Islamabad on grounds of maintainability, against which order the Petitioners filed an Appeal and the learned High Court maintained the objections of the Registrar. 18. He next contended that the Petitioner has not approached this Court with clean hands. According to the learned Counsel, most of these appointments were made prior to the promulgation of the Rules. He contended that the Islamabad High Court has appointed 150 persons in the establishment, out of which appointments of only 10 Const.P.No.03/14. 14 persons have been challenged which clearly shows malice on the part of the Petitioner. 19. He contended that the Islamabad High Court was initially established under the Presidential Order No.VII of 2007. By judgment dated 31st July 2009 in the case of Sindh High Court Bar Association vs. Federation of Pakistan (PLD 2009 SC 879), the Islamabad High Court was declared unconstitutional. Through the 18th Amendment in the Constitution, Act No.XVII of 2010 was introduced and the Islamabad High Court was created. The learned Counsel has referred to Sections 5, 8 and 11 of the Islamabad High Court Act 2010, in order to show that prior to the Islamabad High Court (Appointment and Conditions of Service) Rules, 2011, the appointment of officers and staff of the Court was regulated by the Rules and procedures of the Lahore High Court and even the Administration Committee of the Islamabad High Court had adopted the aforesaid Rules of appointment, therefore, the appointments made prior to the promulgation of the Islamabad High Court Rules were on the basis of Rules of the Lahore High Court. 20. He next contended that the details of the Petitions filed by the present Petitioner are incorporated in the concise statement filed by the Respondents, by way of C.M.A.No.6198 of 2014, which clearly reflects that the Petitioner with ulterior motives, has repeatedly challenged the appointments of the Respondents, therefore, the present proceedings are tainted with malice and the Petitioner has not approached this Court with clean hands. It was contended by the Const.P.No.03/14. 15 learned Counsel for the Respondents that the provisions of Article 184 (3) of the Constitution which confers jurisdiction on this Court has to be read as a whole. According to him, in exercise of the jurisdiction under Article 184 (3), this Court cannot pass any order other than the order which the High Court can pass under Article 199 of the Constitution and that too, with the exception that before exercising the jurisdiction, this Court has to satisfy that the Petition raises question of public importance having nexus with fundamental rights. 21. It is further contended by the learned Counsel that even if one of the ingredients as stated hereinabove is missing, this Court could not entertain the Petition on the ground of maintainability. He next contended that the Petitioner has sought declaration in regard to the appointments on the ground that the said appointments were illegal and made without lawful authority. Such a prayer, according to the learned Counsel, is not covered under the writ of quo warranto. According to the learned Counsel, a writ of quo warranto is discretionary in nature. He submits that the appointments of the Respondents have not been challenged on the ground of their qualifications nor on the basis of encroachment on the fundamental rights of the public at large, therefore, the Petition merits dismissal. 22. The learned Counsel next contended that Article 199 (5) of the Constitution provides protection to the administrative orders of the High Courts. He, while arguing the matter contended that orders passed by the Administration Committee of the High Court could not Const.P.No.03/14. 16 be challenged under Article 199(5) or 184 (3) of the Constitution. (In support of his contention, he has relied upon the case of Wukala Mohaz Barai Thafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263). He submits that in paragraph 3 at page 1301 of the said judgment, this Court has provided protection to the superior judiciary and has placed the same on a higher pedestal providing a shield from challenging its orders passed on the administrative side). He next contended that this issue was dealt with by a Full Bench of the Lahore High Court in the case of Asif Saeed Vs. Registrar, Lahore High Court and others (PLD 1999 Lahore 350). He, however, contended that the bar contained in Article 199 (5) is not absolute and is subject to exceptions like if the order passed is mala fide, coram non judice and/or without jurisdiction. The learned Counsel states that these exceptions have been accepted as settled principles irrespective of the language of the ouster clause. While developing his arguments, he has referred to Article 199(3) which bars the jurisdiction of the High Court in relation to the matters of armed forces, but this bar does not extend if the order challenged before the High Court lacks jurisdiction, is tainted with malice or is coram non judice. 23. The learned Sr. ASC, Iftikhar Hussain Gillani, representing Respondents No.3 to 76, has contended that the Islamabad High Court had adopted the Lahore High Court Establishment Rules (Volume-V) 1981, during the interim period, for appointments in the establishment of the Islamabad High Court. He submitted that the Lahore High Court Const.P.No.03/14. 17 Rules referred to hereinabove were adopted by the Administration Committee of the Islamabad High Court, in terms of the provisions provided in the Islamabad High Court Act, 2010, as an interim arrangement. According to the learned Counsel, the Rules of the Lahore High Court conferred powers on the Chief Justice to appoint any person in the establishment of the Islamabad High Court in relaxation of the Rules. He submitted that different appointments in the establishment of the Islamabad High Court by the Chief Justice were made in exercise of powers conferred on him under Rule 26 of the Lahore High Court Rules 1981, and could not be challenged by any person and/or employee, in view of the bar contained in Article 199 (5) of the Constitution. He, however, contended that the bar of Article 199 (5) is not absolute and is subject to three exceptions laid down in the case of Federation of Pakistan vs. Ghulam Mustafa Khar (PLD 1989 SC 26). He submitted that if an impugned order is (1) without jurisdiction or (2) coram non judice or (3) mala fide, the High Court can entertain such a petition. He submitted that these exceptions also apply to the bar contained under Article 199 (3) of the Constitution, which restricts a High Court from entertaining a Constitution Petition in relation to the terms and conditions of a member of the Armed Forces of Pakistan. 24. He next contended that the judgment of the Lahore High Court in the case of Asif Saeed (supra), was affirmed by this Court in the case of Muhammad Iqbal and others vs. Lahore High Court through Registrar and others (2010 SCMR 632), which supports his contention Const.P.No.03/14. 18 that Article 199 (5) takes away the jurisdiction of the High Court to entertain a petition of an aggrieved party, challenging the appointments made by the Chief Justice and/or Administration Committee of a High Court. He, however, conceded that the protection provided under Article 199 (5) has to be read with the exceptions referred to hereinabove. 25. Giving a brief historical account of the Islamabad High Court, Mr. Gilani has contended that the Chief Justice Islamabad High Court had requested all the High Courts for borrowing the services of the officers required in the newly established Islamabad High Court. In response to this request, officers from the High Court of Sindh and Balochistan High Court were sent to the Islamabad High Court on deputation and these deputationists were later absorbed in the establishment. 26. He further submitted that he does not support the view taken by the Lahore High Court in the case of Asif Saeed (supra), that the definition of the ‘High Court’ includes the Registrar, as according to him the term “High Court” given in Article 192 (1) says “A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President”. The learned Counsel admitted that the term ‘High Court’ as defined in Article 192 of the Constitution read with the provision of Article 199(5) reflects that it is only the orders of the High Court that are protected under Article Const.P.No.03/14. 19 199(5) and the orders of its Registrar etc. do not enjoy the same protection. 27. He next contended that another ground that would create room for the exercise of the jurisdiction of the High Court under Article 199 (5) of the Constitution is if an appointment made by a competent authority in ‘excess of jurisdiction’. In support of his contention, he has relied upon the judgment in the case reported as Muhammad Yousaf v. Malik Karam Dad Khan and others (PLD 1968 Lahore 30). He therefore contended that order of the Chief Justice and/or Administration Committee of a High Court could be questioned under Article 199(5) of the Constitution if an ineligible person or a person lacking qualification has been appointed as such, which order would be in ‘excess’ of the jurisdiction. According to the learned Counsel, such an order would attract the mischief of the term ‘excess of jurisdiction’ as provided in the Black’s Law dictionary. He submits that where persons not eligible under the Rules to hold certain posts in the establishment were appointed by the Chief Justice of the Islamabad High Court, such orders of appointment can be assailed on the ground of exercise of excessive jurisdiction. 28. In this context, he pointed out that except one clerk, all the other Respondents were eligible for the posts to which they were appointed. He states that the Petitioner had incorrectly and irresponsibly stated that all Respondents to this Petition had fake degrees without placing any material in support of the allegations. Const.P.No.03/14. 20 29. He next contended that the present proceedings do not attract the ingredients of Article 184 (3), therefore, the Petition ought to have been dismissed on that score alone. According to Syed Iftikhar Gillani, learned ASC, the Petitioner has failed to satisfy this Court that the issue raised in these proceedings is of public importance and secondly it encroaches upon the fundamental rights of the public at large. In support of his contention, the learned Counsel has relied upon the case of Mian Muhammad Shahbaz Sharif vs. Federation of Pakistan (PLD 2004 SC 583) and the case of Dr. Muhammad Tahir-Ul- Qadri vs. Federation of Pakistan through Secretary M/o Law, Islamabad (PLD 2013 SC 413). 30. He has further submitted that the allegation that the brother of the incumbent Chief Justice was appointed on one of the posts despite the fact that he was ineligible to hold such a post, is incorrect, since he was not holding the office of the Chief Justice at the time of the appointment of his brother. However, it may be observed that the incumbent Chief Justice was nevertheless a Judge in the Islamabad High Court and could have exercised influence for the appointment of his brother. 31. The learned Counsel for Respondent No.23, Shakeel Raza, has contended that he was promoted from the post of Clerk (BS-07) as Assistant Coordinator (BS-15) in the Balochistan Provincial Assembly, on clearing the relevant departmental promotion examination. The Const.P.No.03/14. 21 learned Counsel has submitted that on 12.03.2011, Respondent No.23 was appointed as Computer Operator (BS-15) by deputation in the Islamabad High Court and was later absorbed in the establishment. Thereafter on 11.05.2011, the said post was upgraded as Data Processing Officer (BS-17). 32. The learned Counsel representing Respondent No.30 has submitted that the said Respondent was directly appointed to the post of Research and Reference Officer (BS-19). He was previously a practicing Advocate of the High Court based at Mansehra, and was appointed on 02.05.2011, before the promulgation of the 2011 Rules, but without advertising the said post in the print media. 33. He has further submitted that the jurisdiction of this Court under Article 184(3) of the Constitution can only be invoked if any of the fundamental rights of a citizen have been encroached upon or the issue involved is that of public importance. He stated that Article 27 of the Constitution is the relevant Article for the case in hand, which warrants protection from discrimination on grounds of race, religion, cast, sex, residence, or place of birth. None of these grounds have been mentioned in the present Petition. He further submitted that the term “Service of Pakistan” used in Article 27 is defined in Article 260 of the Constitution, which is a wider term and includes officials of “Civil Service of Pakistan”. Therefore, in absence of the grounds of discrimination laid down in Article 27, the present Petition is not maintainable. Const.P.No.03/14. 22 34. He has submitted that Article 184(3) cannot be invoked against the orders of a High Court in the absence of an issue of public importance impairing any of the fundamental rights. In support of his contention, he read out Section 11 of the Islamabad High Court Act 2010 which reflects that the Chief Justice had to adjust the employees of the previously established and later dissolved Islamabad High Court and hence there was room for direct recruitment. He stated that since the Islamabad High Court was a newly established Court, therefore, there was no possibility of making appointments on promotion. 35. He then concluded his arguments by submitting that according to him, under Article 199(5) of the Constitution, the Supreme Court has no jurisdiction to question an order of a High Court since Article 199(5) provides blanket protection to all orders passed by this Court or the High Courts. He also pointed out that the cherry picking of mere 10 Respondents out of a plethora of similarly placed officers substantiates malice on the part of the Petitioner. 36. In rebuttal, the learned Counsel for the Petitioner, Mr. Arif Chaudhry, ASC, has contended that the present Petition has been filed by a practicing Advocate, who was neither provided access to the record nor was he given any information pertaining to the appointments/promotions made by the Islamabad High Court, inspite of his repeated requests. He submits that the present proceedings are in the nature of quo warranto and the Petitioner, in no way, has any Const.P.No.03/14. 23 personal interest in the appointments made in violation of the Rules of Lahore High Court by the Islamabad High Court. Most of the appointments which are under challenge, were made on grounds of invoking of Rule 26 of the Lahore High Court Rules. This Rule authorizes the Chief Justice to undertake the exercise of appointments by relaxing the Rules ‘as may appear just and equitable to him’. He contended that he has merely passed on the information to this Court, in terms of Article 184(3) of the Constitution, with the objective to enable this Court to satisfy itself as to whether the mode adopted by the competent authority while making these appointments goes against the interest of the public at large, depriving the merit of those who were entitled to compete. According to him, every citizen of this country is entitled to hold a public office by competing in the process of appointments, which right is conferred upon by the Constitution, therefore, the two essential ingredients attracting the jurisdiction of this Court i.e. (1) that the question raised is one of public importance and (2) that fundamental rights of the citizens have been infringed, are covered in the Petition in hand, enabling this Court to exercise jurisdiction under Article 184(3) of the Constitution. According to the learned Counsel, there are a number of citizens who were similarly placed but were not allowed to compete for appointments, which reflects that the task undertaken by the Chief Justice in making appointments or promoting the officers in the establishment of the Islamabad High Court was neither transparent nor could it in any manner sustain the litmus test of merit. In support of his contentions, he has relied upon Const.P.No.03/14. 24 the case of Renue and others vs District and Sessions Judge (AIR 2014 SC 2175). 37. We have heard the learned Counsel for the parties, the learned Law Officers and perused the record with their assistance. In the present proceedings, the Petitioner who is a practicing Advocate, has challenged different appointments made by the Administration Committee of the Islamabad High Court. On the surface of this pool of heated debates between the parties, the material point of contention, is whether this Court under Article 184(3) is competent to entertain a Petition in the nature of quo warranto, challenging the appointments made by the then and the incumbent Chief Justice of the Islamabad High Court in the establishment. It is important to unshackle some of the legal minds from the preconceived notions about the limitations to ‘justice’. We need not remind the learned Counsel that the Supreme Court is the supreme and ultimate authority for the judicial determination of the precise scope of any Constitutional provision. The language of Article 184(3) of the Constitution provides a clear gateway to this Court to step in the matters which (1) raise a question of public importance and (2) involve the enforcement of any of the fundamental rights of the citizens of this Country. Moreover, under sub-Article 3 of Article 184, the application of Article 199 has been expressly excluded where the two aforementioned conditions have been satisfied. The term ‘considered’ used in sub-Article 3 of Article 184 is of pivotal importance as it connotes subjective assessment of this Court. Once this Court has Const.P.No.03/14. 25 satisfied itself that the matter in hand is one that affects the public at large and involves the infringement of fundamental rights given protection under the Constitution, there remains no bar on its competence to entertain this Petition. Conversely, it is equally important to distinctly define the outline of the scope of this Court’s judicial determination in the case at hand; the orders in question are the orders made by the Chief Justice of High Court in his capacity as the Chairman of the Administration Committee and not the judicial orders passed by him in his capacity as a Judge. The latter would be a separate debate, which can only aptly be addressed in wholly different circumstances. The challenge in these proceedings does not pertain to the competence of the appointing authority but in fact it is the process of appointments which needs to be examined for its legality. 38. It is settled that while it is impossible to mould the term ‘public importance’ in a rigid definition that is applicable to myriad situations, this Court in Watan Party vs. Federation of Pakistan (PLD 2012 SC 292) has held that a matter is of public importance if it directly and vitally concerns the general interest of the community or public at large, as opposed to the particular interest of an individual. It is not denied that the appointments made in the establishment of the Islamabad High Court are of acute significance to the community. A High Court is amongst the sacred establishments that stand as a beacon of justice. It is amongst the eminent establishments that are entrusted by the nation with the shoulder-crushing responsibility of dispensing Const.P.No.03/14. 26 justice. It goes without saying, that if appointments in the Islamabad High Court are made in colorful exercise of power or by bypassing the transparent process of recruitment provided under the Rules, it will have far reaching undulate effects on the public at large. If the torch bearers of justice are permitted to make appointments overlooking merits, the sanctity of the judicial system will be in peril. The exercise of power in a manner that results in depriving meritorious citizens from the opportunity of competing for public offices, therefore, is beyond a shadow of doubt and is a matter of public importance. Such an unlawful exercise of power is also an abrogation of the fundamental rights guaranteed under Article 18 of the Constitution, which protects an individual’s right to enter upon a lawful profession or occupation. The right conferred under Article 18 has to be read with Article 4 of the Constitution which provides every citizen the right to be dealt with in accordance with the law. 39. While the Counsel for Respondents in unanimity were of the view that no specific fundamental right has been violated by the Chief Justice/Administration Committee of the Islamabad High Court in making non-meritorious appointments to the establishment, it must be pointed out that no instance of a specific violation of Fundamental right needs to be established where ex-facie codal formalities or eligibility or competence of candidates have been given the due consideration as held by this court in the cases Dr. Akhtar Hassan Khan and others v. Federation Of Pakistan and others (2012 SCMR 455). Const.P.No.03/14. 27 Similarly this Court in the case of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) held that :- "After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation/class action, seeks to achieve as it goes further to relax the rule on locus stands so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, "(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" 40. In the aforesaid background, we are of the considered view that the issue raised in these proceedings attracts a question of public importance, which has a direct bearing on the fundamental rights of the citizens of Pakistan, therefore, we hold that this Petition under Article 184(3) is competent as the appointments to the public office made by an authority can be challenged through a petition even in the nature of a writ of quo-warranto so that no one can claim immunity from its scrutiny under the garb of any constitutional provision. 41. Having addressed the maintainability of this petition, now the next issue that needs to be focused is the bar contained under Const.P.No.03/14. 28 Article 199(5) with regard to challenging the appointments made in the High Court establishment by the Chief Justice or by the Administration Committee under the Rules framed under Article 208 of the Constitution; and whether such bar applies to the present proceedings. A common contention of the Counsel for the Respondents was that both the judicial and non-judicial decisions of the High Court/ Supreme Court are protected under Article 199(5) of the Constitution. This contention is based on the view of the Full Bench judgment rendered in the case of Asif Saeed v. Registrar Lahore High Court (PLD 1999 Lahore 350), which judgment was maintained by this Court in the case of Muhammad Iqbal and others v. Lahore High Court through Registrar and others (2010 SCMR 632). 42. We have gone through aforementioned judgments and have examined the case law cited by the Counsel in support of their contentions. We, with great respect, are not in agreement with the conclusion reached by the learned Lahore High Court that the judicial, administrative, consultative and executive powers are indistinguishable within the meaning of Article 199(5), and hence, unassailable through a writ petition. It is our considered view that the Constitution confers judicial powers (jurisdiction) on the High Court only under Article 199 and the administrative, consultative or executive powers are conferred on the High Court by virtue of the rules framed under Article 208. Rules framed by the High Court or Supreme Court further require approval of the Governor or President as the case may be. It needs to be Const.P.No.03/14. 29 highlighted that Article 199(5) excludes a High Court and Supreme Court from the definition of ‘person’. High Court is defined under Article 192, the relevant part of which is reproduced as under: “192. Constitution of High Court. (1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President.” This definition does not include the Registrar or any other officer of a High Court Establishment, who is appointed by the Chief Justice or the Administration Committee under the Rules. The executive/ administrative/ consultative powers conferred on the Chief Justice or an Administration Committee are drawn from the Rules; whereas the judicial powers (jurisdiction) conferred upon the High Court and exercised by the judges are embedded in Article 199 itself; hence, both the powers are different and unparalleled. 43. We, for the aforesaid reason, are of the considered view that the view of learned Lahore High Court and maintained by this Court in the cases of Asif Saeed (Supra) and Muhammad Iqbal is against the language of Article 192 and Article 199 of the Constitution. Moreover, the provisions of Article 208 which empowers the High Court or Supreme Court to frame Rules for their establishments have been completely overlooked. As a result, the judicial powers and the powers which are administrative/consultative/executive in nature have been mixed up leading to denial of remedy to an aggrieved person Const.P.No.03/14. 30 even in a case where codal formalities or eligibility or other mandatory requirements have been blatantly disregarded. 44. Even the plain reading of Article 199(5) leads to the conclusion that by excluding a High Court and Supreme Court from the definition of ‘person’, the framers of Constitution envisaged judicial jurisdiction and not the extraneous administrative/ executive/ consultative matters pertaining to the Establishment of the Courts. The reason obviously lies in the conferment of powers through the rules which are subject to the approval of the executive. Hence, in our view, a Judge acts in two different domains, when he performs judicial functions under Article 199 and when he performs administrative/ executive/ consultative functions under the Rules which cannot be mixed with each other. In other words, there is a grading of power: the parameters of judicial powers exercised by a judge under the provisions of the Constitution are distinct from the non-judicial powers he exercises under the Rules framed under the provision of the Constitution. The judgment rendered in the case of Mohammad Iqbal (supra) approving the case of Asif Saeed (supra) being against the provisions of the Constitution is per incuriam and is not a good law. 45. We for the aforesaid reasons conclude that the provisions of Article 199(5) would bar a writ against a High Court if the issue is relatable to judicial order or judgment; whereas a writ may lie against Const.P.No.03/14. 31 an administrative/consultative/executive order passed by the Chief Justice or the Administration Committee, involving any violation of the Rules framed under Article 208, causing infringement of the fundamental rights of a citizen. Relaxation of Rules: 46. The learned Counsel for the Respondents jointly attempted to save the appointments and absorptions, as the case may be, under the garb of Section 26 of the Lahore High Court Rules and Section 16 of the Islamabad High Court Rules. For facility of reference these two provisions are reproduced hereunder:- Rule 26 of the Lahore High Court: “26. Nothing in these rules shall be deemed to limit or abridge the powers of the Chief Justice to appoint or promote any person who has neither passed nor qualified at an examination held by the Public Service Commission or under these rules or to deal with the case of any person in such manner as may appear to him to be just and equitable. Rule 16 of the Islamabad High Court (Establishment) Appointment and Conditions of Service) Rules, 2011: “16. Relaxation.- The Chief Justice may relax any of these rules, subject to reason in writing, if the Chief Justice is satisfied that a strict compliance of the rule would cause undue hardships and his decision shall be final on such matter.” 47. A bare perusal of the Rule 26 of Lahore High Court Rules, makes it abundantly clear that the Chief Justice may deal with the case of a person/employee of the Lahore High Court as may appear to him just and equitable. It would be advantageous to interpret the term “just Const.P.No.03/14. 32 and equitable”. In Corpus Juris Secundum, Volume L, the term “just” has been defined as under:- “conforming to, or consonant with, what is legal or lawful; conformable to laws; conformable to rectitude and justice; conformed to rules or principles of justice; conforming to the requirements of right or of positive law; correct; right; legally right; rightful; right in law or ethics; due; lawful; legitimate; equitable; fair; honest; true; impartial in accordance with law and justice; not doing wrong to any; not transgressing the requirements of truth and propriety; 48. In Words and Phrases, Permanent Edition, Volume 23A, the term “just” has been defined as under:- “The term “just” may apply to law as well as ethics. In certain cases it denotes that which is right and fair according to positive law. The word “just” means a right, and more technically a legal right – a law. This “jus dicere” was to pronounce the judgment; to give the legal decision.” 49. The term “equitable” has been interpreted in Words and Phrases, Permanent Edition Volume 15, as under:- “The term “equitable” is defined as meaning according to natural right or natural justice; marked by the due consideration for what is fair, unbiased, or impartial.” 50. The term “undue” used in Section 16 of the Islamabad High Court Rules, has been defined in Words and Phrases, Permanent Edition, Volume 43, as under:- “Undue” means not appropriate or suitable, improper, unreasonable, unjustifiable, illegal, going beyond what is appropriate, warranted or natural” Const.P.No.03/14. 33 51. From the perusal of the above definitions in conjunction with the above-quoted Rules of Lahore High Court and Islamabad High Court, it can safely be held that absolute power to relax a certain service Rule has not been conferred on the Chief Justices of both the High Courts and this power is limited only to be exercised where it does not encroach upon the statutory rights of the other persons or employees. These two Rules cannot be interpreted in such a manner as to bestow an absolute power upon the Chief Justices to deal with the case of a person/employee in a manner they like. The Chief Justices can exercise powers under these Rules only in a manner that may not cause injustice or prejudice to any individual/employee. In the case in hand, the learned Chief Justice of Islamabad High Court has exercised a power beyond the scope of the Rules and relaxed them under the garb of “relaxation of Rules” which cannot be permitted in any circumstances, especially when it impinges upon the statutory rights of the citizens and other employees of the High Court. Rules can only be relaxed if the rules permit their relaxation, and the conditions stipulated for relaxation are strictly met. Admittedly, the conditions for relaxation of the Rules which are “just and equitable” and “undue hardship” have not been met in relaxing the Rules for making appointments and absorptions in the Islamabad High Court. 52. We have noticed that the Chief Justice Islamabad High Court has exercised powers under Rule 26 of the Lahore High Court and under Rule 16 of the Islamabad High Court to alter the eligibility Const.P.No.03/14. 34 and qualification for appointment as well as promotion within the Establishment of Islamabad High Court. We hold that the Chief Justice has lost sight of the scheme of the Rules by appointing Respondents and others in the Establishment of Islamabad High Court. We have also noticed that the provisions of Rules that provide for a mandatory competitive test for the appointment of employees in the Islamabad High Court Establishment were not followed, nor any advertisement was made to invite applications of eligible candidates. The justification that the Islamabad High Court was a new Establishment is not sufficient to override the mandatory requirement for the appointments. As a result, a number of meritorious and eligible candidates have been deprived of their fundamental right to seek employment through a competitive examination as provided under Article 18 of the Constitution. 53. This Court in the case of Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), while interpreting Section 24 of the Sindh Civil Servants Act, has held as under:- “ 137. .......The Competent Authority can exercise powers under section 24 of the Act, by relaxing rules, if there is a vacuum in law, but such powers cannot be exercised under the garb of the term "Relaxation of Rules" with the intent to by-pass the mandate of law for extending favours to a person or an individual, offending and impairing the statutory rights of other Civil Servants. The Competent Authority, by an executive order, cannot frame Rules in exercise of powers under section 24. The authority conferred under section 24 of the Act is confined to hardship cases, without negating the vested rights of the other Civil Servants and/or causing prejudice to their Const.P.No.03/14. 35 interests.” 54. While discussing section 23 of the Civil Servants Act, 1973 in the case of Peer Mukarram-ul-Haq Vs Federation of Pakistan (2014 SCMR 1457) this Court was pleased to observe that: “15. We may further observe that scope of section 23 is very limited. This section empowers the Competent Authority (President) to deal with the case of a Civil Servant in such a manner as may appear to him to be 'just' and 'equitable', but such powers are not unbridled.” 55. Scope of powers of Governor under section 22 of the Punjab Civil Servants Act, also (pari materia to section 24 of the Sindh Civil Servants Act) were discussed in the case of Muhammad Iqbal Khokhar Vs. Govt of Punjab (PLD 1991 SC 35) and it was observed that: “This power permits the Governor, as the Chief Executive of the Province at the apex, to deal with serious cases relating to civil servants in such manner as may appear to him to be just and fair, which otherwise cannot be sorted out by the Chief Minister or the Punjab Government under the various powers vested in them by the different rules existing from time to time relating to relaxation. This section is primarily a saving section, basically intended to correct serious cases, where unusual factors place a civil servant in serious disability, which requires correction on the basis of equity and justice by the Governor himself, sitting at the apex of the executive hierarchy. Amendments, additions and substitutions effected in the rules from time to time, mergers in and transfers from one service to another, etc., create a host of problems, where civil servants placed under serious disability and hardship call for a fair and equitable resolution of their difficulties. To meet these genuine cases, the Governor has been granted this special Const.P.No.03/14. 36 savings power to deal with such cases, so as to remove injustice and inequity which may stand in the way of a civil servant in securing his just rights. In short, it is a power rarely used, unless to serve justice or correct grave injustice, and perhaps never used arbitrarily to reward a person or to grant him an undue privilege over the right of another.” (Emphasis is ours) 56. We have noticed the numerous infirmities in the appointments of the following made by the Chief Justice/Administration Committee, and these infirmities are incurable by the Chief Justice under the powers conferred on him under Rule 26 of the Lahore High Court Rules and Rule 16 of the Islamabad High Court Rules. 57. Respondent No 31, Mr. Faiz Rasool was working as Deputy Registrar in the High Court of Baluchistan and after his retirement, on 10.05.2013, he was appointed on contract basis in BS-19 as Deputy Registrar. Since then his contract has been extended twice, thereby keeping a public office unnecessarily occupied which under the Rules is either to be filled through promotion from amongst the cadres of Assistant Registrars, Readers and Private Secretaries on seniority cum fitness basis or by transfer of a Senior Civil Judge serving under the High Court. 58. Respondent No. 27, Mr. Shakil Ahmed Qazi, was previously a Programmer in BS-18 in the Sindh High Court. On 02.06.2012, he was appointed as Additional Registrar (I.T) in BS-20 in the Islamabad High Court on deputation basis for a period of three Const.P.No.03/14. 37 years and was later absorbed. His appointment was made after the promulgation of the Islamabad High Court Rules according to which appointment to this post can be made by promotion from amongst the Deputy Registrars on seniority-cum-fitness basis; or by transfer of an Additional District and Sessions Judge serving under the High Court or the Provincial High Courts by borrowing his services on deputation basis. The appointment of a Computer Programmer to the post of Additional Registrar on the face of it is legally flawed and the Chief Justice’s power to relax the rules under Rule 26, only opens a narrow window for such relaxation where it is ‘just and equitable’ to provide such relaxation. 59. Respondent No.26, Mr. Shehzada Aslam, was previously a Private Secretary in BS-18 in the Lahore High Court. On 01.02.2011, his services were requisitioned on deputation basis for a period of three years to work as Secretary to the Chief Justice of the Islamabad High Court (BS-20). He was absorbed on 09.05.2011 as Additional Registrar (BS-20) under Section 11 of the Act. His appointment was made during the interim period and therefore as per Rule 7 read with Rule 6(i) of the Lahore High Court Rules, such appointment could only be made either (a) with the concurrence of the Governor or in Consultation with the Public Service Commission. This procedure was not followed. Section 11 cannot be used as a shield to effect the said appointment, since his appointment in 2008 too is not in conformity with the Rules for induction in the High Court establishment. Const.P.No.03/14. 38 60. Respondent No. 7, Mr. Muhammad Kashif was previously a practicing lawyer in the Subordinate Courts of Punjab. On 27.04.2011, he was appointed as Assistant Registrar (BS-18) in the Islamabad High Court. He was placed on probation for a period of two years and on 10.05.2013 his probation was further extended. His appointment was made during the interim period and therefore as per Rule 7 read with Rule 6(i) of the Lahore High Court Rules, appointment could only be made either (a) with the concurrence of the Governor or in Consultation with the Public Service Commission. This procedure was not followed. The Chief Justice’s power to relax the rules under Rule 26, only opens a narrow window for such relaxation where it is ‘just and equitable’ to provide such relaxation. This was not the case here. 61. Respondent No. 5, Mr. Usman Mir was previously a Credit Analyst in Allied Bank Limited. On 30.05.2013, he was appointed on deputation basis as Assistant Registrar (BS-18) in the Islamabad High Court. On 27.05.2016, concurrence was obtained from Allied Bank Limited for extension of his deputation which was not available in the bank’s policy. He was appointed on deputation after the promulgation of the Islamabad High Court Rules. Furthermore, the Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. The illegality in appointing a Credit Analyst from a bank to the post of Assistant Registrar on deputation in disregard of the applicable Rules Const.P.No.03/14. 39 cannot be cured by Rule 16 since the Respondent was previously employed and no undue hardship existed. 62. Respondent No.35, Mr. Umar Daraz was previously a Reader (BS-18) in the Lahore High Court and on 01.02.2011, he was appointed as Deputy Registrar (BS-19) on deputation basis in the Islamabad High Court. On 09.05.2011, he was absorbed against the post of Additional MIT (BS-20) on permanent basis. His absorption was made during the interim period and therefore as per Rule 7 read with Rule 6(i) of the Lahore High Court Rules, the absorption could only be made either (a) with the concurrence of the Governor or in Consultation with the Public Service Commission. This procedure was not followed. The Chief Justice’s power to relax the rules under Rule 26 only permits such relaxation where it is ‘just and equitable’. This was not the case where a Reader was appointed as Deputy Registrar on deputation basis and later absorbed as Additional Member Inspection Team, depriving countless meritorious potential candidates from the chance to compete for the post. 63. Respondent No.28, Mr. Imtiaz Ahmed was previously a Private Secretary (BS-18) in the Lahore High Court. On 01.02.2011 he was appointed on deputation basis as Deputy Registrar (BS-19) in the Islamabad High Court. On 09.05.2011 he was absorbed on permanent basis in the establishment. His appointment was made during the interim period and therefore as per Rule 7 read with Rule 6(i) of the Const.P.No.03/14. 40 Lahore High Court Rules, such appointment could only be made either (a) with the concurrence of the Governor or in Consultation with the Public Service Commission. This procedure was not followed. The Chief Justice’s power to relax the rules under Rule 26, only permits such relaxation where it is ‘just and equitable’. 64. Respondent No.29, Mr. Muhammad Naveed Qaisar, was previously a Personal Assistant (BS-17) in the Lahore High Court. On 01.02.2011, he was appointed on deputation basis for a period of three years as Private Secretary (BS-18) in the Islamabad High Court. On 09.05.2011 he was absorbed as Private Secretary on permanent basis in the establishment. His appointment was made during the interim period and therefore as per Rule 7-A of the Lahore High Court Rules, his credentials did not match the eligibility criteria and yet he was selected at the cost of other deserving candidates. 65. Respondent No. 34, Mr. Waheed Nawaz was directly appointed to the post of Assistant Accounts Officer (BS-17) on 18.02.2011. He was previously an Income tax Practitioner and was enrolled as Advocate of the subordinate Courts in Sindh Bar Council, Karachi, since April, 2009. His appointment was made during the interim period and therefore under Rule 7 read with Rule 6(i) of the Lahore High Court Rules, he was required to be selected on the basis of competitive examination but he was also selected by the Competent Authority using his power to relax the rules under Rule 26. Const.P.No.03/14. 41 66. Respondent No. 30, Mr. Usman Qudoos, was previously a practicing lawyer with an LL.M degree, who was directly appointed on 02.05.2011 as a Research and Reference Officer (BS-19) in the Islamabad High Court. He was appointed during the interim period and since there are no rules applicable to the appointment of a Research and Reference Officer in the Lahore High Court Rules, applicable customary practices of recruitment shall apply. This post was not advertised and he was appointed by the Chief Justice under the garb of relaxation of Rules. In this case also the Chief Justice’s power to relax the rules under Rule 26 is not applicable, because such relaxation did not pass the test of it being ‘just and equitable’. 67. Respondent No. 8, Mr. Sabir Hussain was a fresh appointee who was appointed as Personal Assistant (BS-17) in 2008 after the advertisement of the post in the Daily Azkaar newspaper on 20.11.2008. Under Section 11 of the Act, he was appointed in the establishment in 2011. He was previously working as Stenographer (BS- 16) in the Lahore High Court. Selection of a Stenographer with a B.A for the post of Personal Assistant from a pool of deserving candidates, on the face of the record does not make sense to the discerning eye. Lack of transparency is clearly reflected. 68. Respondent No. 24 (and 41), Mr. Saqib Sheraz, who was previously working as Assistant Accountant (SPS-04) in Pakistan Const.P.No.03/14. 42 Broadcasting Corporation (Islamabad), was appointed on deputation basis on 17.02.2011 as Assistant Accounts Officer (BS-17) and later absorbed. His appointment was made after the promulgation of the Islamabad High Court Rules according to which, initial recruitment could be made from amongst the holders of B.Com or equivalent degree. No advertisement had been published whereby other eligible candidates could be permitted to compete. Moreover, he was appointed on deputation basis and the Rules do not permit his absorption. The Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. 69. Respondent No.43, Shakeel Raza, was previously working as Coordination Assistant (BS-15) in the Provincial Assembly of Baluchistan. On 24.03.2011, he was appointed as Computer Operator (BS-15) on deputation basis (before the promulgation of the Rules) for a period of three years. On 11.05.2011 his post along with that of Mr. Yasir Altaf was upgraded to Data Processing Officer (BS-17). On 12.09.2011 he was absorbed in the establishment of the Islamabad High Court, by the Chief Justice in relaxation of Rules. The illegality committed in his absorption cannot be cured by the Chief Justice’s power to relax the rules. 70. Respondent No. 13, Mr. Amir Abdul Majeed, was previously working as a Stenographer (BS-12) in the University of Const.P.No.03/14. 43 Punjab. On 27.05.2011 he was appointed on deputation basis as Personal Assistant (BS-17) in the Islamabad High Court. Although his credentials match the eligibility criteria applicable under the Islamabad High Court Rules no advertisement had been published whereby other eligible candidates could be permitted to compete and therefore, his application was the only one considered for the said post. The Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. 71. Respondent No.3, Muhammad Idrees Kasi, was appointed directly without advertisement on the post of Deputy Registrar on 17.04.2012, which is meant for promotion. Since he was appointed after the promulgation of the Islamabad High Court Rules, appointment to this post could only be made on promotion basis from the cadres of Assistant Registrars, Readers and Private Secretaries on seniority-cum- fitness basis or by transfer of a Senior Civil Judge serving under the High Court. It is impossible that even a year after the establishment of the Islamabad High Court, there was no other deserving candidate who could be appointed on this post on promotion or transfer basis, that too without advertisement and treating him as the sole candidate for this post. The Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. No such hardship existed in this case. Const.P.No.03/14. 44 72. On 13.09.2011, Respondent No. 8, Mr. Hafiz Muhammad Sufyan, was directly appointed to the post of Assistant Registrar (BS- 18), without advertisement of the post in the press. Although he had a Master’s Degree in Journalism, the required qualifications under the eligibility criteria for initial recruitment to this post was BA, B.Sc or B.Com and hence the required field may not have been journalism for a post of this nature. He was appointed after the promulgation of the Islamabad High Court Rules. Regardless of his credentials, however, the procedure of initial recruitment in terms of advertisement and transparency was not followed. Furthermore, the Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. No such hardship is apparent on the face of the record. 73. On 02.07.2012, Respondent No. 9, Mr. Zaid Ahmed, was directly appointed to the post of Assistant Registrar (BS-18), after the promulgation of the Islamabad High Court Rules. He was previously working as data Processing Officer for Official Assignee in the High Court of Sindh. Although with a BA, he fulfilled the required qualifications under the eligibility criteria for initial recruitment to this post which is BA, B.Sc or B.Com, the procedure of initial recruitment in terms of advertisement and transparency was not followed. Furthermore, the Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency Const.P.No.03/14. 45 where undue hardship exists. No such hardship is apparent on the face of the record. 74. On 25.09.2012, Respondent No. 4, Mr. Ghawas Gul Mastoi, was directly appointed to the post of Assistant Registrar (BS-18), after the promulgation of the Islamabad High Court Rules. Although he had a Master’s Degree in International Relations, the required qualifications under the eligibility criteria for initial recruitment to this post was BA, B.Sc or B.Com and hence the required field may not have been International Relation for a post of this nature. He was appointed after the promulgation of the Islamabad High Court Rules. Regardless of his credentials however, the procedure of initial recruitment in terms of advertisement and transparency was not followed. Furthermore, the Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. No such hardship is apparent on the face of the record. 75. On 01.06.2011, Respondent No.6, Ms. Faiza Mir, was directly appointed as Personal Assistant (BS-17), after the promulgation of the Islamabad High Court Rules. She was previously working as a Teacher at Beacon House School System since March 2003, and although the record shows that she was computer literate, there is no record of her possessing the required skills for the post under the Islamabad High Court Rules which are shorthand speed of 100 w.p.m. and typing speed of 40 w.p.m. Although with a BA degree, she did not fulfill the required qualifications under the eligibility criteria for initial recruitment to this post, which is BA, B.Sc or B.Com with the required Const.P.No.03/14. 46 speed in typing and shorthand, and the procedure of initial recruitment in terms of advertisement and transparency was not followed. Furthermore, the Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. No such hardship is apparent on the face of the record. 76. On 15.04.2011, Respondent No. 10, Mirza Abid Baig, was directly appointed as Assistant (BS-14), after the promulgation of the Islamabad High Court Rules. The eligibility criteria for this post was fulfilled by the Respondent as he possessed a MS (CS) while the requirement was BA, B.Sc or B.Com, however the procedure of initial recruitment in terms of advertisement and transparency was not followed. On 19.05.2011, he was appointed as Personal Assistant (BS- 17), without complying with the codal formalities. It is not known whether he possessed the required skills of typing speed of 50 w.p.m. On 25.09.2012, he was appointed as Assistant Registrar (BS-18). It is also alarming that the competent authority for appointment, found no need of finding other deserving candidates for the posts and no advertisements were published for any of these posts, making the Respondent the only applicant. Furthermore, the Chief Justice’s power to relax the rules under Rule 16 of the Islamabad High Court Rules only permits for such leniency where undue hardship exists. No such hardship is apparent on the face of the record. Const.P.No.03/14. 47 77. Respondent No. 38, Mr. Imtiaz Ahmed, was appointed directly on the post of Deputy Registrar (BS-19) on 10.03.2008, after an advertisement was published in the Daily Nawa-i-Waqt newspaper. He possessed a BA and LL.B. It is not known whether the appointment of Respondent No.38 was made in a transparent manner or if all required procedures for initial recruitment were followed. Eligibility criteria under Lahore High Court Rules for this post were not followed. Since he was appointed in 2008, he was inducted in the establishment of the Islamabad High Court under Section 11 of the Act. 78. After hearing the contentions of the learned Counsel for the parties and on examining the record made available to us, we hold that the appointments which have been made in the Establishment of the Islamabad High Court since 2011 without following the codal formalities of competitive process are a nullity. Such appointments cannot be sanctified by the Chief Justice or the Administration Committee by dispensing with the mandatory requirements including competitive process. 79. We, therefore, direct in the following manner: Contract Employment Any person appointed on contract basis against a permanent vacancy or against a promotion post is violative of the spirit of the Rule and untenable, and should be de- notified. Const.P.No.03/14. 48 Deputation Any appointments made on the basis of deputation without observing the required codal formalities under the Rules and absorption of the deputationist thereafter against a permanent post or promotion post, in complete disregard of the eligibility or qualification required for initial appointment should also be de-notified. Initial Appointment Initial appointments made against a permanent post without following the required procedure as provided in the Rules, particularly the provisions related to the advertisement of posts, eligibility and competitive examination, are also to be de-notified. Promotions/up-gradations Appointments whether by way of initial appointment, deputation, contract or absorption in the grades/scales higher than the grades/scales in which such employees were serving before their induction in the Establishment are to be de-notified, as such up-gradation is not envisaged under the Rules and is contrary to the established principles of service laws. Absorptions Except those employees who have been recruited from the Establishments of different High Courts of Pakistan, in the same scale in which they were serving or were given one- step promotion within the same cadre, all other appointments by way of absorptions are without lawful authority and hence to be de-notified. Const.P.No.03/14. 49 We may clarify that the aforesaid directives will not be applicable to the low scale employees appointed in BS-1 to BS-07, provided they are otherwise eligible. 80. We direct that the appointments of the Respondents and other such employees of the Islamabad High Court are to be de-notified and they shall be repatriated to their parent departments, including the private sector, within fifteen days from the date of their de-notification in line with the mode given by this Court in the case of Contempt proceedings against Chief Secretary Sindh and Others reported in (2013 SCMR 1752) and in the case of Ali Azhar Khan Baloch reported in (2015 SCMR 456). 81. On repatriation the Respondents and/or other such employees shall be allowed to join their parent departments and the question of termination of lien of their service will not come in their way as their deputation or appointment by way of absorption was nullity in the eyes of law. They will also be entitled to their seniority with their batch mates in their parent departments. 82. For the purpose of these proceedings, the principles laid down by this Court in the case of Contempt proceedings against Chief Secretary Sindh and others reported in (2013 SCMR 1752) and in the case of Ali Azhar Khan Baloch and others vs. Province of Sindh and others reported in (2015 SCMR 456) would be applicable to the employees of Islamabad High Court Establishment. Const.P.No.03/14. 50 83. In order to examine the cases of appointments of the employees other than the Respondents, we constitute a three-member Committee, comprised of Senior Pusine Judge and two senior most Judges next to him, to examine the cases of all appointments made from 2011 onwards in violation of the Rules and findings recorded by us in these proceedings, and order their de-notification accordingly. The Committee shall complete this exercise within a period of one month from the date of communication of this judgment and submit a detailed report to this Court. 84. Fresh recruitment in place of the denotified employees shall be initiated simultaneously in accordance with the Rules and preferably completed in 45 days. This competitive process should be undertaken through NTS as is being practiced in this Court and Sindh High Court. 85. Before parting with the judgment, we may observe that the Chief Justice Islamabad High Court and/or the Administration Committee of Islamabad High Court have made appointments in the Establishment in complete disregard of the mandate given by the Rules framed under Article 208 of the Constitution. If the competent authority itself starts cherry picking by deliberately ignoring and overlooking meritorious candidates in appointment exercising powers under Rule 26 of the Lahore High Court or Rule 16 of the Islamabad High Court, then the image of the institution will be tainted beyond repair. Such Const.P.No.03/14. 51 practice may lead to distrust of the public in the judicial institution of the country. We could not allow denial of justice to those candidates who merit appointment nor could we encourage anyone to bypass transparent process of recruitment provided under the Rules. We have already cited certain instances showing the mode and manner in which the appointments were made by abusing the authority. 86. We, for the aforesaid reasons, allow this Petition in the above terms. Copy of this judgment be immediately remitted through fax to the Registrar, Islamabad High Court, for placing it before the Chief Justice and all the Judges for their information and compliance. Judge Judge Judge Approved for reporting Announced in open Court on 26-09-2016. J. Sohail & Saeed/**

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar, HCJ Mr. Justice Asif Saeed Khan Khosa Mr. Justice Maqbool Baqar Criminal Appeals No. 1-K to 3-K of 2018 converted into Suo Motu Case No. 01 of 2018 (Against the order dated 28.11.2017 of the High Court of Sindh, Karachi passed in Special Criminal ATA Nos. 25, 24 and 19 of 2013, Criminal Revision Application No. 40 of 2014 and Confirmation Case No. 1 of 2013) Muhammad Jibran Nasir and others (in all appeals) … Appellants versus The State and others (in all appeals) … Respondents For the appellants: Mr. Faisal Siddiqui, ASC (in all appeals) For respondent No. 1/State: Mr. Zafar Ahmed Khan, Additional Prosecutor-General, Sindh with Mr. Mukhtar Ahmed, DSP, Praidi, Karachi (in all appeals) For respondent No. 2: Sardar Muhammad Latif Khan Khosa, Sr. ASC with respondent No. 2 in person (in Cr. A. No. 1-K of 2018) For respondent No. 2: Syed Iqbal Hussain Gillani, ASC (in Cr. A. No. 2-K of 2018) For respondents No. 2 & 3: Mr. Farooq H. Naek, Sr. ASC Mr. Mehmood Akhtar Qureshi, ASC with respondents No. 2 & 3 in person (in Cr. A. No. 3-K of 2018) On Court’s notice: Mr. Ashtar Ausaf Ali, Attorney- General for Pakistan (in all appeals) Dates of hearing: 31.01.2018 & 01.02.2018 Suo Motu Case No. 01 of 2018 2 JUDGMENT Asif Saeed Khan Khosa, J.: On 01.02.2018 the captioned appeals had been disposed of by us through a short order which reads as follows: “These appeals are converted into a Suo Motu Case under Article 184(3) of the Constitution with a direction to the office to assign a number thereto as such. 2. For reasons to be recorded later the case is disposed of with the following orders: (i) The common judgment passed by a learned Division Bench of the High Court of Sindh, Karachi on 28.11.2017 in Special Criminal ATA No. 19 of 2013, Special Criminal ATA No. 24 of 2013, Special Criminal ATA No. 25 of 2013, Criminal Revision Application No. 40 of 2014 and Confirmation Case No. 1 of 2013 is set aside. (ii) The order passed by the said Court in the above mentioned matters remanding the relevant criminal case to a court of ordinary jurisdiction for a de novo trial as well as all the post-remand proceedings before the trial court are also set aside. (iii) Special Criminal ATA No. 19 of 2013, Special Criminal ATA No. 24 of 2013, Special Criminal ATA No. 25 of 2013, Criminal Revision Application No. 40 of 2014 and Confirmation Case No. 1 of 2013 shall be deemed to be pending before the High Court of Sindh, Karachi and the same shall be finally decided on their merits at the Court’s earliest convenience, preferably within a period of two months by another bench of the High Court to be constituted by the Chief Justice of the Court. (iv) The accused persons convicted in the relevant criminal case by an Anti-Terrorism Court are ordered to be retaken into custody as their admission to bail during the post-remand proceedings was nullity in the eyes of law. Our order dated 13.1.2018 putting the names of the accused on the ECL shall continue to hold the field till the time the main matters remanded to the High Court are finally disposed of.” The following paragraphs contain the reasons for the short order reproduced above. 2. As we have required the High Court of Sindh, Karachi to decide all the relevant matters afresh on their merits, therefore, it may be inappropriate for us to comment on the factual or legal aspects of the relevant criminal case other than the question of jurisdiction of the Anti-Terrorism Court which had passed the final judgment impugned before the High Court which question had Suo Motu Case No. 01 of 2018 3 been decided by the High Court through its judgment impugned before this Court. The long and short of the matter is that the private respondents to these matters before us are accused persons in case FIR No. 591 registered at Police Station Darakhshan, District South Karachi at 01.25 AM on 25.12.2012 for an offence under section 302, PPC read with section 34, PPC. The said criminal case was tried by the learned Judge, Anti- Terrorism Court No. III, Karachi and vide judgment dated 07.06.2013 the private respondents were convicted and sentenced by the said court for an offence under section 7(a) of the Anti- Terrorism Act, 1997 read with sections 302, 109 and 34, PPC besides some of the respondents having individually been convicted and sentenced for an offence under section 13(e) of the Arms Ordinance and an offence under section 354, PPC. The private respondents challenged their convictions and sentences before the High Court of Sindh, Karachi through Special Criminal ATA No. 19 of 2013, Special Criminal ATA No. 24 of 2013 and Special Criminal ATA No. 25 of 2013, the complainant filed Criminal Revision Application No. 40 of 2014 seeking enhancement of the sentences passed against the respondents and the trial court sent Confirmation Case No. 1 of 2013 seeking confirmation of the sentences of death passed against two of the respondents. All the said matters were disposed of by a learned Division Bench of the High Court on 28.11.2017 and the relevant criminal case was remanded to a court of ordinary jurisdiction for a de novo trial because, according to the High Court, the case was not one of terrorism and, therefore, an Anti-Terrorism Court had no jurisdiction to try the same. That common order passed by the High Court in the above mentioned matters was assailed by some members of the civil society before this Court through three Criminal Petitions for Leave to Appeal wherein leave to appeal had been granted by this Court on 13.01.2018 in the following terms: “After hearing the learned counsel for the applicants seeking leave of the Court to file the petitions, we on the strength of the constitutional provision of Article 185(3) and on the basis of the judgments cited before us reported as Federation of Pakistan through Secretary, Ministry of Law and another Vs. Gul Hasan Suo Motu Case No. 01 of 2018 4 Khan (PLD 1989 SC 633) and the judgments from the foreign jurisdiction (India) Arunachalam Vs. R.S.R. Sadhanantham and another [(1979) 2 SCC 297] and Manne Subbarao and another Vs. State of Andhra Pradesh [(1980) 3 SCC 140] and Ramakant Rai Vs. Madan Rao and others (AIR 2004 SC 77) allow these applications and direct the office to number the main petitions. 2. We have extensively heard the arguments of the learned counsel for the parties on merits of the case. Subject to the question of maintainability to be finally decided by the Court, we are inclined to grant leave, inter alia, on the following points:- 1. Whether the High Court had ignored the fact that at the inception of the case this Court had ordered the case in hand to be tried by Anti-Terrorism Court as it involved the offence of terrorism? That order of this Court passed in Constitution Petition No.1 of 2013 was never sought by any party to be reviewed and the same was acted upon. 2. During the trial of this case Anti-Terrorism Court had dismissed an application filed by the accused party seeking transfer of the case to a court of ordinary jurisdiction. Cr.R.No.43/2013 filed against such order was dismissed by the High Court on 15.5.2013 and later on Cr.P.No.57-K/2013 filed in that regard before this Court was also dismissed on 21.10.2013. Whether the High Court could nullify those earlier orders on the basis of a judgment of this Court passed in some other case having different set of facts? 3. Whether the observations made by this Court in its order dated 21.10.2013 passed in Cr.P.No.57-K/2013 that “The question of jurisdiction can now well be agitated before the appellate Court seized of the matter” amount to setting at naught the earlier order of this Court as well as the later order of the High Court and, thus, in exercise of its appellate jurisdiction the High Court could take a decision contrary to what had already been decided by this Court and by the High Court itself? 4. Whether in the impugned order the High Court was justified in relying upon and following the judgment of this Court passed in the case of Waris Ali and 5 others Vs. The State (2017 SCMR 1572) rendered by a three Member Bench of this Court without appreciating that a five Member Bench of this Court had declared the law differently in the case of Kashif Ali Vs. The Judge, Anti- Terrorism Court No. II, Lahore and others (PLD 2016 SC 951)? 5. It also needs to be examined as to whether the legislature had correctly amended the Pakistan Penal Code (PPC) and the Code of Criminal Procedure (Cr.P.C.) in the light of the judgment passed by the Shariat Appellate Bench of this Court in the case of Federation of Pakistan through Secretary, Ministry of Law and another Vs. Gul Hasan Khan (PLD 1989 SC 633) or not because waiver or compounding of the offence of murder was declared to be permissible in the Injunctions of Islam which are relevant to cases of Qisas and Hudood and not to cases of Tazir. The case in hand was a case of Tazir and not of Qisas, particularly whether the ratio of the above judgment shall apply to the cases where it is proved that the matter falls Suo Motu Case No. 01 of 2018 5 within the purview and scope of the Anti-Terrorism Act, 1997. 6. Whether the evidence does not speak of the act creating fear, panic and terrorism and whether the respondents are protected under the provisions of Articles 4 and 10A of the Constitution qua the fair trial? 7. Whether the case of locus standi set out in the petitions is absolutely illusionary and without any basis and if in such cases the right to file the petitions before this Court is granted to the public at large, this might open Pandora’s box. 3. In the meantime, notice be issued to the respondents. The Government of Pakistan through Ministry of Interior is directed to place the names of the respondents on ECL, even if Secretary is on leave today, the Deputy Attorney General of Pakistan shall convey this direction to the Secretary to convey this order to all the Borders and the Airports of Pakistan that the respondents should not leave the jurisdiction of this country; besides the Registrar of this Court shall also inform telephonically the Secretary, Interior about this order. Learned counsel appearing for the respective respondents undertake and assure that none of the respondents would leave the jurisdiction of this Court. The SSP concerned is directed to produce the respondents before this Court on the next date of hearing. The bailable warrants of arrest of the respondents are issued for surety of Rs.500,000/- each to the satisfaction of Assistant Registrar, Karachi Branch Registry. Any proceedings before the District Judge regarding giving effect to any compromise between the parties are suspended in the meantime. Re-list these matters in the week commencing 29th January, 2018 at the Principal Seat, Islamabad.” 3. We have heard the learned counsel for the parties and the learned Attorney-General for Pakistan appearing on Court’s notice at some length and have also perused the relevant record of the case with their assistance. 4. At the outset we have been apprised of the fact that soon after taking place of the incident in this case this Court had taken suo motu notice of the matter through Constitution Petition No. 01 of 2013 and this Court remained seized of those proceedings under Article 184(3) of the Constitution till after a Challan of the case was submitted by the local police before an Anti-Terrorism Court. That suo motu case was finally disposed of by this Court on 22.02.2013. Those suo motu proceedings conducted in the matter were not challenged by any party through a review petition and, thus, this Court’s opinion that the relevant criminal case involved questions of public importance with reference to the enforcement of some Suo Motu Case No. 01 of 2018 6 Fundamental Rights conferred by Chapter I of Part II of the Constitution so as to attract the jurisdiction of this Court under Article 184(3) of the Constitution remained unchallenged. One of the points on which leave to appeal had been granted by this Court on 13.01.2018 in the present round was about locus standi of members of the civil society to seek leave to appeal from this Court in such a case and maintainability of such a petition for leave to appeal but in view of the above mentioned peculiarity of this case we have found it inexpedient to decide such an issue in the present case. If at an earlier stage of this very criminal case suo motu proceedings under Article 184(3) of the Constitution were in order before this Court then there may not be any impediment in taking suo motu notice of any subsequent development in the same case. Apart from that the jurisdiction of this Court under Article 184(3) of the Constitution is an independent original jurisdiction which is not affected by pendency of any matter on the same subject matter before any other court or forum or even by a prior decision of the same issue by any other court or forum below and a reference in this respect may be made to the cases of Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Miss Benazir Bhutto v. Federation of Pakistan and others (PLD 1988 SC 416), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Suo Motu Case No. 10 of 2009 (2010 SCMR 885), Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad (PLD 2011 SC 365), Khawaja Muhammad Asif v. Federation of Pakistan and others (PLD 2014 SC 206) and Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others (2014 SCMR 1858). For these reasons we have converted these appeals into a Suo Motu Case under Article 184(3) of the Constitution. 5. As the order under consideration passed by the High Court of Sindh, Karachi on 28.11.2017 confined itself to the question of jurisdiction of an Anti-Terrorism Court to try the criminal case in hand, therefore, we have also restricted our discussion only to the Suo Motu Case No. 01 of 2018 7 said aspect of the case. We have straightaway noticed in that context that while passing its order dated 28.11.2017 the High Court had practically ignored some important decisions of this Court and of the High Court itself passed in this very case at some earlier stages. In the said order dated 28.11.2017 the High Court had completely omitted from consideration that soon after taking place of the occurrence in this case this Court had taken suo motu notice of the matter through Constitution Petition No. 1 of 2013 while exercising its jurisdiction under Article 184(3) of the Constitution. That Constitution Petition was finally disposed of by this Court on 22.02.2013 and the operative part of the order passed on that date reads as under: “4. In view of the above, we are of the opinion that the challan has been submitted, therefore, the trial has to take place independently, without being influenced in any manner from the present proceedings, in terms of the provisions of Anti Terrorism Act, particularly, Section 19(7), which provides that the cases have to be decided within a period of seven days by holding day- to-day hearing and also in accordance with the guidelines, which have been provided by this Court to monitor the trial proceedings in the case of Sh. Liaqat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs and others (PLD 1999 SC 504). The relevant guidelines have been incorporated in the following paras of the short order:- “(iii) The concerned Special Court should proceed with the case entrusted to it on day to day basis and pronounce judgment within a period of 7 days as already provided in A.T.A. or as may be provided in any other law; (viii) That the Chief Justice of Pakistan may nominate one or more Judges of the Supreme Court to monitor the implementation of the above guidelines. The Judge or Judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court; (ix) That besides invoking aid of the Armed Forces in terms of sections 4 and 5 of the A.T.A. the assistance of the Armed Forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the Presiding Officer, Advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.” 5. Copy of this order be sent to the learned Monitoring Judge, appointed by the Hon Chief Justice of High Court of Sindh as well as to the learned Monitoring Judge of this Court for information and for ensuring that the trial of this case is concluded, strictly in accordance with law, within the period as stipulated by the above provisions. Suo Motu Case No. 01 of 2018 8 6. Raja Muhammad Ibrahim Satti, learned Sr. ASC, has submitted a Civil Misc. Application No. 765/2012 and stated that as the challan has been submitted and the court had made observation that the trial shall be held independently, without being influenced in any manner, from the instant proceedings, therefore, his application be disposed of. Order accordingly. 7. The learned Monitoring Judge of the High Court of Sindh shall submit report to the learned Monitoring Judge, appointed by the Supreme Court of Pakistan, through the Registrar, for his perusal in Chambers.” A bare reading of the said order shows that this Court had not only blessed submission of the Challan of the case before an Anti- Terrorism Court but it had issued detailed guidelines as to how the case was to be tried by the relevant Anti-Terrorism Court and as to how such trial was to be monitored by the Monitoring Judges of this Court and the High Court vis-à-vis cases of terrorism. It was clearly observed by this Court that the trial of the case had to be conducted strictly in accordance with the provisions of the Anti- Terrorism Act, 1997 and the guidelines issued by this Court in that regard. It is quite unfortunate that no mention of that order passed by this Court on 22.02.2013 in Constitution Petition No. 1 of 2013 had been made by the High Court in its order dated 28.11.2017. 6. During the pendency of the trial of this case before the Anti- Terrorism Court one of the accused persons had filed an application under section 23 of the Anti-Terrorism Act, 1997 seeking transfer of the case to a court of ordinary jurisdiction as it did not involve the offence of terrorism. The said application was dismissed by the Anti-Terrorism Court on 05.03.2013 through a detailed order a part of which is reproduced below: “This incident also attracted the attention of public at large even residing at remote area as has been published in newspapers and televised in all channels by media. The Hon’ble Supreme Court had also took Suo Moto notice of the incident. The clear motive for the subject incident has been introduced by the complainant, as well as P.Ws in their statements, i.e. outraged modesty of Miss Maha by house servant of Siraj Talpur. Had the said malefactor did not do so, the instant crime would have not taken place. Therefore, I found no legal justification in the plea of learned advocate for the accused that this case is lacking of motive. Indeed creation of sense of fear in the society due to act of the accused for murder of Shahzaib is coupled with motive indicated above. I have great honour and respect for the Suo Motu Case No. 01 of 2018 9 decta laid down and observation made by the Hon’ble Superior Courts in the precedents cited by the learned advocate for the accused, but I am afraid that the same are not applicable in the facts and circumstances of the present case. The cumulative effect of my above discussion is that the instant crime having nexus with section 6 of Anti-Terrorism Act, 1997. In short subject offence has been committed with the object to terrorize section of public and such act has explicitly created sense of fear and insecurity in society, therefore, this Court is competent/having jurisdiction to try the accused of the subject crime. The application being merit less is dismissed accordingly.” The said order passed by the Anti-Terrorism Court expressly referred to the order dated 22.02.2013 passed by this Court in Constitution Petition No. 1 of 2013 but the order passed by the Anti-Terrorism Court on 05.03.2013 was also completely ignored by the High Court while passing the order dated 28.11.2017. 7. The above mentioned order dated 05.03.2013 passed by the Anti-Terrorism Court was assailed by the relevant accused person before the High Court of Sindh, Karachi through Criminal Revision Application No. 43 of 2013 which was dismissed by a learned Division Bench of the High Court on 24.04.2013 through an elaborate order. The operative part of the said order reads as follows: “9. Section 6 of the Anti-Terrorism Act, 1997 provides the definition of “terrorism”. In order to better appreciate the legal position, section 6(b) of the said Act which defines a “terrorist act” is reproduced as under: “6. Terrorism.---(1) In this Act, “terrorism” means the use or threat of action where: (a) ……………………………… (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or, a section of the public or community or sect or create a sense of fear or insecurity in society:” 10. A bare reading of the above quoted provision of law makes it crystal clear that Courts have only to see whether the “terrorist act” was such which would have the tendency to create sense of fear and insecurity in the minds of the people or any section of the society. The Honourable Supreme Court in a case reported as The State through Advocate General, N.W.F.P. Peshawar v. Muhammad Shafiq PLD 2003 SC 224 has held as under: “We have to see the psychological impact created upon the minds of the people. It is also not necessary that the said act must have taken place within the view of general public so as to bring it within the encompass of the Act. Suo Motu Case No. 01 of 2018 10 Even an act having taken place in a barbaric and gruesome manner, if it had created fear and insecurity, would certainly come within the purview of the act.” 11. In the present case of accused Shah Rukh Jatoi, offence was committed on the road. By said act of the accused, young boy was shot dead by automatic weapon over a petty matter. It was terrorist act of the accused Shah Rukh, proudly saying to be son of Sikandar Jatoi with sole object to set example for public at large, more particularly the parents of young daughters not to object to the act of the accused or their employee(s) for teasing their young daughter. The further statement of the complainant recorded on 25.12.2012, manifests that Miss Maha was teased by servant of accused Siraj Talpur, she made telephone call to her mother, the later asked deceased Shahzaib to go for rescue of his sister. By such act the accused created a sense of helplessness in minds of people. Impact of the act was such that people of the area protested, came on roads, news flashed in print and electronic media, Honourable Supreme Court of Pakistan took suo-moto notice. Accused Shah Rukh being influential person without joining the investigation succeeded to leave the country. It is clear in this case that the act of accused Shah Rukh Jatoi was designed to create a sense of fear and insecurity and helplessness in the minds of general public disturbing the tempo of the life and tranquility of the society. Provisions of section 6 of the Anti-Terrorism Act, 1997 are fully attracted in this case. The impact of such act terrorized society at large by creating panic and fear in their minds. There is no force in the contention of learned advocate for the Applicant that present case does not fall within the jurisdiction of Anti-Terrorism Court in absence of motive. In the case of Mirza Shaukat Baig versus Shahid Jamil and others (PLD 2005 SC 530) it is held that, “there could be no second opinion that where the action of an accused results in striking or creating fear, panic, sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounts to terror and such an action squarely falls within the ambit of section 6 of the Act.” Arguments of learned advocate for the applicant that murder has been committed on the basis of previous enmity and offence would not fall within the jurisdiction of Anti-Terrorism Court is also without any merit for the reasons that presence of personal enmity would not exclude the jurisdiction of Anti- Terrorism Court. Neither motive nor intent for commission of offence is relevant for the purpose of conferring jurisdiction on the Anti-Terrorism Court. In the case of Nooruddin versus Nazeer Ahmed and 4 others (2011 PCr.LJ 1370) this precise argument was rejected, it was held that enmity would not be the sole criteria to determine the jurisdiction of Anti-Terrorism Court. Aforesaid judgment of this Court was upheld by Honourable Supreme Court in the case Nazeer Ahmed and others Vs. Nooruddin and another (2012 SCMR 517). Relevant portion is reproduced as under: “We have heard the learned Advocate Supreme Court and have perused the record. The learned High Court has examined the material at length and has rightly concluded that the act of the petitioners created sense of insecurity among the villagers and did destabilize the public at large and therefore, attracts provisions of section 6 of the Anti- Terrorism Act. The learned Advocate Supreme Court in support of his contentions has relied upon the Judgment reported in the case of Mohabat Ali v. The State reported in 2007 SCMR 14 and the case of Basher Ahmed v. Muhammad Siddiq, reported in PLD 2009 SC 11, which are distinguishable on facts. Neither the motive nor intent for Suo Motu Case No. 01 of 2018 11 commission of the offence is relevant for the purpose of conferring jurisdiction of the Anti-Terrorism Court. It is the act which is designed to create sense of insecurity and or to destabilize the public at large, which attract the provisions of section 6 of the A.T. Act, which in the case in hand was designed to create sense of insecurity amongst the co- villagers.” We, therefore, hold that act of accused Shah Rukh Jatoi created sense of helplessness and insecurity amongst the people of Defence/Clifton area, where offence was committed and did destabilize the public at large. As such, provisions of section 6 of the Anti-Terrorism Act, 1997 are fully attracted in this case. Therefore, present case would fall within the jurisdiction of Anti- Terrorism Court. Order of learned trial Court dated 05.03.2013 did not suffer from any material irregularity or illegality, the same is maintained. Trial Court is directed to decide the case expeditiously.” In the above mentioned order the learned Division Bench of the High Court had clearly referred to the earlier order passed by this Court on 22.02.2013 in Constitution Petition No. 1 of 2013 but while passing the order dated 28.11.2017 another learned Division Bench of the same High Court had not only completely ignored the order passed by this Court on 22.02.2013 but had also failed even to refer to the order dated 24.04.2013 passed in this very case by another learned Division Bench of the same Court. If such omissions in the order dated 28.11.2017 were inadvertent then the same were unfortunate but if the omissions were deliberate then they were nothing but outrageous. 8. The order dated 24.04.2013 passed by the High Court of Sindh, Karachi dismissing Criminal Revision Application No. 43 of 2013 was challenged by the relevant accused person before this Court through Criminal Petition for Leave to Appeal No. 57-K of 2013 which was dismissed by this Court on 21.10.2013 at a time when the Anti-Terrorism Court had already concluded the trial and had convicted and sentenced the accused persons. The order passed by this Court on 21.10.2013 reads as under: “This criminal petition is barred by eight days, but not accompanied with any application for condonation of delay. Otherwise too, after the final judgment passed by the trial court, this criminal petition seems to have become infructuous, as the question of jurisdiction can now well be agitated before the appellate Court seized of the matter. Dismissed. Leave refused.” Suo Motu Case No. 01 of 2018 12 9. In the order passed by the High Court of Sindh, Karachi on 28.11.2017 the learned Division Bench of that Court had twice reproduced the words “as the question of jurisdiction can now well be agitated before the appellate Court seized of the matter” which appeared only as a part of a sentence used by this Court in the above mentioned order dated 21.10.2013. That part of the sentence used by this Court in that order was utilized by the High Court as an authorization from this Court to the High Court to reopen and reconsider the issue pertaining to jurisdiction of the Anti-Terrorism Court to try the relevant criminal case. That impression gathered or conjured up by the High Court was, however, nothing but erroneous and misconceived. The Criminal Petition for Leave to Appeal filed before this Court was barred by time and the same was not accompanied by any miscellaneous application seeking condonation of the delay and, thus, in the absence of condoning the delay there was no lawfully instituted petition before this Court and that is why it was dismissed by this Court. Apart from that the said petition had also been dismissed by this Court as having become infructuous because during its pendency the trial of the case had concluded before the trial court. A part of a sentence in an order passed by this Court in a petition which was dismissed on account of being barred by time and also on account of it having fructified could not possibly be construed by the High Court to have reopened the question of jurisdiction of an Anti-Terrorism Court which question already stood conclusively settled through earlier orders of this Court as well as the High Court itself, particularly when the said earlier orders of this Court and the High Court were not even mentioned in the relevant order of this Court. The High Court ought to have appreciated that the relevant part of the sentence in this Court’s order dated 21.10.2013 could not be construed as reviewing the earlier order of this Court passed on 22.02.2013 in Constitution Petition No. 1 of 2013 or setting aside the order passed by the High Court on 24.04.2013 in Criminal Revision Application No. 43 of 2013. Even otherwise, an observation made by this Court in a leave refusing Suo Motu Case No. 01 of 2018 13 order regarding a party to a case agitating a matter before the High Court could not be taken or understood by the High Court as a license or authorization from this Court to ignore an earlier order passed by this Court finally clinching an issue and still holding the field. It has, thus, not surprised us that the learned Attorney- General for Pakistan and the learned Additional Prosecutor- General, Sindh have refused to support the order passed by the High Court of Sindh, Karachi on 28.11.2017. 10. The learned counsel for the private respondents have argued that it had been observed by this Court in its order dated 22.02.2013 passed in Constitution Petition No. 1 of 2013 that “the trial has to take place independently, without being influenced in any manner from the present proceedings” which observation left it to the trial court as well as the High Court to decide the issue of jurisdiction of an Anti-Terrorism Court independently and without being influenced by the proceedings undertaken in the matter by this Court. The said argument of the learned counsel for the private respondents is based upon an incomplete reading of the sentence being relied upon. The complete sentence actually reads as “In view of the above, we are of the opinion that the challan has been submitted, therefore, the trial has to take place independently, without being influenced in any manner from the present proceedings, in terms of the provisions of Anti Terrorism Act, particularly, Section 19(7), which provides that the cases have to be decided within a period of seven days by holding day-to-day hearing and also in accordance with the guidelines, which have been provided by this Court to monitor the trial proceedings in the case of Sh. Liaqat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs and others (PLD 1999 SC 504).” The said sentence in fact contained a command that the trial of the case was to be conducted in terms of the Anti-Terrorism Act, 1997 and the Anti-Terrorism Court was to proceed with the trial independently and without being influenced by any extraneous factor. The said command of this Court could not be disregarded by the trial court and the High Court also Suo Motu Case No. 01 of 2018 14 cannot be allowed to dig holes in the same through half-baked or artificial reasons. 11. The above are the reasons for the short order passed by us on 01.02.2018 through which the captioned criminal appeals have been converted into a Suo Motu Case, the offending order passed by the High Court of Sindh, Karachi on 28.11.2017 in the relevant criminal case has been set aside and all the post-remand proceedings and orders of the trial court have been set at naught and reversed. Some of the questions raised in the leave granting order passed by this Court on 13.01.2018 have deliberately been left unattended to as the same do not appear to be relevant to resolution of the controversy at hand and such questions may be attended to by this Court in some other appropriate case. Chief Justice Judge Judge Islamabad. February 01, 2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Amir Hani Muslim Mr. Justice Umar Ata Bandial Mr. Justice Khilji Arif Hussain CRIMINAL APPEAL NO. 103 OF 2010 (On appeal from the judgment/order dated 04.02.2009 passed by Lahore High Court, Rwp. Bench in Cr.A. No. 351, 360 & 217/2002) Amjad Shah … … … Appellant. Versus The State … … … Respondent. For the appellant : Mr. Qadeer Ahmed Rana, ASC. For the State : Mr. Ahmed Raza Gillani, Addl. PG. Date of hearing : 01.02.2016. JUDGMENT: UMAR ATA BANDIAL, J. – The appellant Amjad Shah along with his co-accused Sajid Shah (since acquitted) were sentenced to death by the learned Sessions Judge Attock vide judgment dated 24.06.2002 upon conviction under Section 302 read with Section 34 PPC for committing the murder of Muhammad Saleem deceased in an occurrence reported vide FIR No.73 dated 17.04.2002 lodged with Police Station Saddar, Hassan Abdal, District Attock. The two convicts were also fined with Rs.200,000/- each and in case of non-payment thereof, were ordered to suffer imprisonment for two years; half of the amount of fine upon recovery was ordered to be paid to the legal heirs of the deceased as compensation. On appeal the learned High Court vide the impugned judgment dated 04.02.2009 acquitted Sajid Shah accused and maintained the conviction and sentence awarded to the appellant Amjad Shah. Cr.A.103/2010 2 Against the impugned judgment leave to appeal was granted by this Court on 03.03.2010. 2. The fateful incident as reported in the FIR is stated to have taken place on 17.04.2002 at about 3:00 p.m. in the area of village Kot Dadu, District Attock. The FIR was lodged at 5:20 p.m. on the written complaint of Sahibzada (PW-12), brother of deceased Muhammad Saleem, who handed over the same to the Investigation Officer (PW-13) at Civil Hospital, Hassan Abdal. On 17.04.2002 at about 1:00 p.m. the deceased along with his brother (PW-12) and nephew Shafaqat Ali (PW-11) rode their tractor trolley to load harvested wheat lying in their land described as ‘Mera’ in the statements of PW-11 and PW-12 recorded by the learned Trial Court. En route, while crossing another piece of their land described as ‘Wasan’ they spotted Sajid Shah accused grazing his cattle in their standing wheat crop. The deceased Muhammad Saleem reprimanded and abused Sajid Shah for damaging his standing crop. He had also insulted Sajid Shah for the same reason on the previous day. Feeling humiliated and hurt, Sajid Shah threatened to avenge his disgrace and left for his home. Later in the day, at 3:00 p.m. when the deceased Muhammad Saleem along with his brother Sahibzada (PW-12) and nephew Shafaqat Ali (PW-11) were returning after loading the harvested wheat, they again crossed their ‘Wasan’ land where both the appellant and Sajid Shah, each armed with 0.30 bore pistol raised lalkara for avenging the insult caused by the deceased Muhammad Saleem. The latter jumped from the tractor and started running away. Both the accused persons chased him; with PW-11 and PW-12 raising alarm and following at a short distance. The accused Sajid Shah fired one shot from his pistol which missed Muhammad Saleem deceased. Meanwhile, Amjad Shah appellant ran past the Cr.A.103/2010 3 deceased and fired at him from the front side striking him fatally on the forehead. Both the accused made good their escape. PW-11 and PW-12 stopped a wagon and took Muhammad Saleem in injured condition to Civil Hospital, Hassan Abdal, where he breathed his last. The police reached the hospital at about 5:00 p.m. where the PW-12 handed over to the Investigation Officer (PW-13) a complaint against the two accused persons for murdering Muhammad Saleem deceased with common intention to avenge the insult and humiliation caused by the deceased to Sajid Shah accused in the incidents of 17.04.2002 and 16.04.2002. 3. The usual investigation was commenced and the accused Sajid Shah was arrested on 24.04.2004 whilst the appellant Amjad Shah was arrested on 28.04.2004. After completion of the investigation the two accused were sent up to face trial under Section 302/34 PPC. The prosecution examined 13 witnesses including Dr. Ishtiaq Hussain (PW-8) who conducted post-mortem examination of the deceased, eyewitnesses Shafaqat Ali (PW-11) and Sahibzada (PW-12) who furnished the ocular account of the incident and the Investigation Officer, Saleem Akhtar, Inspector (PW-13) who provided details about the different limbs of the prosecution case. Both the accused got recorded their statements under Section 342 Cr.P.C wherein they pleaded their innocence and claimed their false implication in the case due to political rivalry. However, they opted not to appear in their own defence as witness under oath in terms of Section 340(2) Cr.P.C. Upon conclusion of the trial, the learned Trial Court vide judgment dated 24.06.2002 convicted/sentenced both the accused as detailed in the opening paragraph of this judgment. 4. Feeling aggrieved by their conviction/sentence, both the accused filed appeals before the learned High Court. A Murder Reference Cr.A.103/2010 4 was also sent by the learned Trial Court for confirmation or otherwise of their death sentence. By means of the impugned judgment dated 04.02.2009 the learned High Court allowed the appeal of accused-Sajid Shah and acquitted him of the charge on the ground of his ineffective firing upon the deceased and also because the motive set up by the prosecution was vague and tenuous. However, conviction as well as the sentence of the appellant-Amjad Shah was maintained on the grounds: that he caused the fatal injury to the deceased; that there was no reason for the prosecution to falsely implicate him in the commission of crime; and that lack of his motive was inconsequential on account of the clear and convincing ocular account. 5. Learned counsel for the appellant has argued against the view taken by the learned High Court about the motive in the present case being irrelevant and has urged that the appellant was roped into the occurrence on account of the political rivalry, which is conceded by both the eye-witnesses i.e. (PW-11) and (PW-12). 6. We have heard the learned counsel for the appellant, the learned Additional Prosecutor General; have gone through the impugned judgments and carefully examined the prosecution evidence available on record. 7. The promptitude of the postmortem of the deceased at 5:00pm within 50 minutes of his death at 4:10pm and the virtually contemporaneous lodging of the FIR at 5:20 pm by the complainant (PW-12) exclude the availability of time for deliberations or substitution. This view is reinforced by the fact that there is no previous enmity between the complainant and accused parties. Moreover, the medical evidence fully corroborates the ocular account which is therefore Cr.A.103/2010 5 forthright and truthful. These aspects make the prosecution case credible. Also the single shot by the appellant fatally struck the forehead of the deceased both effectively and decisively in achieving the object of murder. On that score, the case of the appellant Amjad Shah stands on a different footing from the case of acquitted accused Sajid Shah, whereby the conviction of the appellant is sustainable. 8. Be that as it may, according to the Forensic Science Laboratory (“FSL”) report (Exb.PM), the parcel of two crime empties was delivered by Rafiullah Constable (PW-7) on 04.05.2002 simultaneously with the two parcels, each containing 0.30 bore pistols. This destroys the evidentiary value of the recoveries effected and of the FSL report. One may also note that no motive whatsoever for the commission of offence is attributed to the appellant by the prosecution. The verbal reprimand or insult inflicted upon Sajid Shah (acquitted accused) by the deceased Muhammad Saleem lacks gravity and nexus with the appellant-Amjad Shah to enrage him to kill the deceased. In his evidence PW-11 admits that the appellant is not related to the acquitted accused; that they belong to the same clan and are friends. Importantly, the absence of repeated firing dispels premeditation by the appellant to kill the deceased. Indeed the Investigating Officer (PW-13) admitted that he was neither shown any damaged wheat crop nor recovered any harvested wheat, which would fortify the motive given by the prosecution. In these circumstances, the learned High Court disbelieved the motive alleged in the FIR. 9. On an objective appreciation of evidence, the appellant is merely a volunteer in the occurrence and not a party to the friction between the two sides. The real cause of the occurrence as it unfolded is, therefore, not known; its origin vis-a-vis the appellant is vague and Cr.A.103/2010 6 incomprehensible. Whilst giving an accurate account of the incident, it is possible that the eye-witnesses have withheld evidence that could fairly explain the immediate cause of the occurrence. Notwithstanding that the participation of the appellant in the commission of offence is duly established, his intention, guilty mind or motive to commit the same remains shrouded in mystery and is therefore unproven. In such like cases where the motive is not proved or is not alleged by the prosecution, the Court for the sake of safe administration of justice, adopts caution and treats the lack of motive as a mitigating circumstance for reducing the quantum of sentence awarded to a convict. Reference is made to Zeeshan Afzal v. The State (2013 SCMR 1602). Another ground for mitigation in sentence of the appellant is the fact that about two months after the occurrence, on 10.06.2002 the learned Trial Court whilst framing the charge has recorded the appellant’s age to be 24 years and that of his co- accused to be 19/20 years. Youthful tendency toward excitement and impulsiveness are also treated by the law as a mitigating circumstance. Under Section 302(b) PPC imprisonment for life is one of the lawful sentences for the commission of offence under Section 302 PPC. In the light of the aforesaid discussion the sentence of the appellant merits reduction from death to life imprisonment. 10. It is rightly urged that although a sentence of life imprisonment under Section 57 PPC extends to 25 years, the same is liable to reduction through remissions granted by the Executive under Section 401 Cr.P.C. and also Rule 216 and Rule 218 of the Pakistan Prison Rules, 1978 (“Prison Rules”). By virtue of Rule 140 of the Prison Rules, every ‘lifer-prisoner’ must undergo a minimum of fifteen years substantive imprisonment. Notionally, the Executive authorities may on that basis Cr.A.103/2010 7 remit in their discretion 10 years imprisonment from the statutory sentence of a lifer-prisoner. Such remission is granted lawfully in exercise of powers vested in the Provincial Government by the aforementioned provisions of law. Reference is made to Abdul Malik v. The State (PLD 2006 SC 365) for an informed discussion on the subject. However, the availability of remissions to lifer-prisoners cannot deprive a sentence of life imprisonment from being a lawful punishment in terms of Section 302 (b) PPC. Indeed, imprisonment for life is one of the legal sentences following conviction of an accused under Section 302(b) PPC. 11. Nevertheless, it is the criteria of entitlement to or for disentitlement to receive remissions granted by the Executive that ought, on account of their considerable impact, be subjected to judicial scrutiny. However, this may be done in a suitable case probing the ambit, object or effect of the remitting power of the Executive rather than a case as the present which involves adjudication on the appellant’s culpability and its punishment on merits, rendered in the exercise of appellate jurisdiction. To appreciate the purpose, principles and powers for the grant of remission of sentences under the Prison Rules may require harmonious interpretation of different provisions of such Rules and the Code of Criminal Procedure, 1898 and the manner of dispensations to be made by the overlapping authorities specified in such laws. 12. For the foregoing reasons, this appeal is partly allowed in the terms that the sentence of death of the appellant-Amjad Shah is altered to that of life imprisonment under Section 302(b) PPC. The remaining punishment of fine and imprisonment in case of default thereof shall remain intact. He shall also be entitled to the benefit of Section 382-B Cr.P.C. Cr.A.103/2010 8 13. Herein above are the reasons of our short of even date. J. J. J. Islamabad, 01.02.2016. Irshad Hussain /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Criminal Appeal No. 103 of 2019 (Against the judgment dated 10.03.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 302 of 2009) Nadeem Hussain …Appellant versus The State …Respondent For the appellant: Ms. Aisha Tasneem, ASC For the State: Mr. Muhammad Jaffar, Deputy Prosecutor-General, Punjab Date of hearing: 11.07.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: Nadeem Hussain appellant and some others were allegedly involved in two suicide bombings at the gate of and inside the premises of the Pakistan Naval War College, Mall Road, Lahore on 04.03.2008 at 12.50 P.M. in which incident three persons had died and 18 others, including some officers and officials, were injured. In respect of the said incident FIR No. 149 was registered at Police Station Race Course, Lahore on the same day and after a regular trial the appellant was convicted by the trial court on three counts of an offence under section 302(b), PPC read with section 109, PPC and was sentenced to imprisonment for life and to pay compensation on each of such counts besides having been convicted and sentenced for offences under section 7(a) read with section 21-I of the Anti-Terrorism Act, 1997, section 3 of the Explosive Substances Act, 1908 read with section 109, PPC, section 324, PPC read with section 109, PPC, Criminal Appeal No. 103 of 2019 2 section 427, PPC read with section 109, PPC and section 353, PPC read with section 109, PPC. The appellant challenged his convictions and sentences before the High Court through an appeal which was dismissed and all his convictions and sentences recorded by the trial court were upheld and maintained. Hence, the present appeal by leave of this Court granted on 08.02.2019. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. It is admitted at all hands that the appellant had not been nominated in the FIR in any capacity whatsoever and it was at some subsequent stage that he was implicated in this case as an accomplice of his co-accused. During the trial the prosecution had produced some pieces of circumstantial evidence only as there was no direct evidence available against the appellant. The first piece of evidence produced by the prosecution vis-à-vis the present appellant was the statement made by Muhammad Iqbal Younis (PW43) who had claimed that the appellant and some others were introduced to him by Abdul Hameed alias Watto co-accused during an assemblage at Raiwand but admittedly no specific utterance on that occasion was attributed to the appellant by the said witness. The second piece of evidence produced against the appellant was again through the statement made by the above mentioned Muhammad Iqbal Younis (PW43) who had claimed that on the date of the present occurrence the said witness had visited a computer shop of the appellant whereat he had seen Abdul Hameed alias Watto and Imran Mota co-accused and two unknown persons who had given some jackets to the said two unknown persons and then Abdul Hameed alias Watto and Imran Mota co-accused had taken those two unknown persons with them for the purpose of causing blasts at the Pakistan Naval War College, Lahore. We have gone through the statement made by Muhammad Iqbal Younis (PW43) before the trial court and have found that he had never stated that at the time of his seeing the co-accused at the computer shop the Criminal Appeal No. 103 of 2019 3 appellant was also present on that occasion or that he was involved in providing jackets to the unknown culprits and taking them to the scene of the crime. We have also observed that it had nowhere been established by the prosecution that the shop in issue actually belonged to the appellant or was in his possession in any other capacity. The third piece of evidence produced by the prosecution against the appellant was that he was arrested from a shop and from that shop some explosive substance, etc. had been recovered. In that respect we have found that no Memorandum of Recovery vis-à-vis recovery of the explosive substance, etc. had been brought on the record of the case and it had never been proved by the prosecution that the appellant had any connection with the said shop. The next piece of evidence produced by the prosecution against the appellant was that the Registration Book relevant to one of the motorcycles used in the main incident was recovered from the appellant’s possession but after going through the record of this case from cover to cover we have found that no Memorandum of Recovery regarding Registration Book having been recovered from the appellant was brought on the record of the case throughout the trial. The last piece of evidence relied upon by the prosecution against the appellant was the statement of Babar Bakht, S.P. (PW37) who had claimed that on 25.04.2008 the appellant, while in custody, had made a confession which was recorded under section 21-H of the Anti-Terrorism Act, 1997. We have straightway noticed that the said confessional statement attributed to the appellant was not signed or thumb-marked by the appellant. A confession before the police is inadmissible in evidence in normal cases but in cases of terrorism section 21-H of the Anti-Terrorism Act, 1997 has made such a confession before the police conditionally admissible. The condition placed by the said section upon admissibility of such a confession before the police is that there must be some other evidence, including circumstantial evidence, which must reasonably connect the accused person with the alleged offence before a confession made by the accused person before the police is accepted by a court worthy of any consideration. Such conditional admissibility of a Criminal Appeal No. 103 of 2019 4 confession before the police is contingent upon availability of some other evidence connecting the accused person with the alleged offence but in the present case, as we have already discussed above, all the other pieces of evidence relied upon by the prosecution against the appellant had utterly failed to connect the appellant with the alleged offences. In this view of the matter the case in hand was not a fit case wherein the trial court could even consider the confession before the police attributed to the appellant. As if this were not enough, the record of the case shows that Muhammad Hanif, Inspector (PW41), one of the investigating officers, had stated before the trial court in black and white that during the investigation no connection between the appellant and his co-accused had been established and this statement of the said investigating officer had been fortified by the statement made by another investigating officer namely Muhammad Yaqoob Awan, Inspector (PW39) who had conceded before the trial court that during the investigation nothing had been recovered from the appellant’s possession. 4. For what has been discussed above a conclusion is inescapable and unavoidable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. Chief Justice Judge Judge Islamabad 11.07.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.104-L of 2017 (On appeal from the judgment dated 12.01.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.1119 of 2012 and Capital Sentence Reference No.30-T of 2012). Muhammad Bilal …Appellant(s) VERSUS The State, etc …Respondent(s) For the Appellant(s) : Rai Bashir Ahmad, ASC For the Respondent No.2 : Mr. Muhammad Irfan Malik, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of Hearing : 15.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Adnan Aslam, deceased was being tried for committing qatl-e-amd of one Mehtab; on fateful day i.e. 11.03.2011 at about 09:30 a.m. he alongside co- accused appeared before a learned Additional Sessions Judge at Gujranwala; after hearing he was being escorted back when Muhammad Bilal, appellant, brother of Mehtab deceased, armed with .30 caliber pistol, confronted him to avenge the earlier incident; he targeted three fire shots on different parts of his body as a result whereof, he succumbed to the injuries at the spot. Present in the precincts, Mukhatar Ahmad, S.I. PW-13, with assistance of his colleagues subdued the appellant at the spot. Incident was reported on the complaint of the deceased’s father Muhammad Aslam, PW-9 wherein he arrayed, besides the appellant, Manzoor Ahmad and Shahzad Ahmad, alongside two unknown companions as accused for the crime; they were indicted Criminal Appeal No.104-L of 2017. 2 before an Anti-Terrorism Court at Gujranwala; learned trial Judge while extending benefit of the doubt to Manzoor Ahmad and Shahzad Ahmad, co-accused, convicted the appellant under clause (b) of Section 302 of the Pakistan Penal Code, 1860 read with clause (a) of Section 7 of the Anti-Terrorism Act, 1997 and sentenced him to death on both counts along with compensation and fine in the sum of Rs.100,000/- respectively vide judgment dated 12.06.2012; his appeal met with no better fate; a learned Division Bench of the Lahore High Court affirmed the Capital Sentence Reference vide impugned judgment dated 12.01.2015 vires whereof are being disputed through leave of the Court. 2. Previous bad blood in the aftermaths of murder of appellant’s brother at deceased’s hands and fixation of case before the Court on the fateful day are common grounds. However, according to the defence the deceased was shot while attempting to flee by a police contingent. In this backdrop, prosecution has primarily relied upon the statements of Ghanafar Khalid, PW-8, Muhammad Aslam, PW-9, Muhammad Zaman, PW-10 and Mukhtar Ahmad, SI, PW-13; of them Ghanafar Khalid, PW-8, escorted the deceased in custody after court hearing. Muhammad Aslam, PW was a co-accused required to appear in the same case; Mukhtar Ahmad, SI, was also present in the premises. Presence of these witnesses cannot be doubted at the spot; they are in a comfortable unison on all the details of the occurrence, salient as well as collateral. Embarrassingly lengthy cross examination remained inconsequential throughout. Defence’s edifice is structured upon bald suggestions alone, denied by the witnesses with vehemence. Appellant’s arrest at the crime scene shortly after the occurrence with a .30 caliber pistol subsequently found wedded with two out of three casings secured form the spot goes a long way to exclude hypothesis of his innocence. Acquittal of co- accused, tried for being in the community of intention, out of abundant caution, does not adversely impact upon prosecution’s case. Responsibility for the crime, unambiguously, revolves around the appellant alone. A most stringent and cautious analysis irresistibly leads to the conclusion of appellant’s guilt; he has been rightly returned a guilty verdict, however in so far as his conviction Criminal Appeal No.104-L of 2017. 3 under clause (a) of Section 7 of the Act ibid is concerned, it is found by us as inconsistent with the law declared by this Court in the cases of Amjad Ali and others vs. The State (PLD 2017 SC 661) and Farooq Ahmed vs. State and another (PLJ 2017 SC 408). Clause (iii) of Section 4 of the Third Schedule to the Act ibid provides an Anti Terrorism Court as a forum for trial of offences involving, inter alia, “firing or use of explosives by any device, including bomb blast in the Court premises”. Therefore the learned Special Judge was well within remit of law to try the appellant, however his conviction under Section 7(a) of the Act ibid has to be essentially consequent upon a nexus between his act and situations provided in Section 6 thereof. Aftermaths of appellant’s conduct were certainly far from being benign; he choose a venue most guarded by law to settle the score, nonetheless, he was undoubtedly actuated to quench a personal vendetta. Every act of violence triggers fear and panic with collateral impact on the surroundings; this by itself would not bring even a most violent act to fall within the mischief of terrorism as contemplated by law. Therefore, appellant’s conviction and sentence under Section 7(a) of the Act ibid is set aside, however his conviction under clause (b) of Section 302 of the Code ibid and sentence consequent thereupon is upheld. With the above modification, Criminal Appeal 104-L/2017 is dismissed. JUDGE JUDGE Lahore, the 15th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE MAQBOOL BAQAR Criminal Appeal No.104 of 2010 (On appeal from the judgment dated 20.5.2009 passed by the Lahore High Court, Lahore in Crl.Appeals No.722-724/06 and Crl.Appeals No.127/J and 128/J/2007 and M.R.No.27-T/06) 1. Waris Ali 2. Babar 3. Abdul Sattar 4. Sajjad 5. Tariq 6. Mubarak Ali @ Makha …Appellants VERSUS The State ..Respondent For the appellants: Ch. Fawad Ahmed, ASC Mr. Faisal Hussain Ch. ASC Mr. Mahmood-ul-Islam, AOR (absent) For the State: Rana Abdul Majeed, Addl. P.G. Pb. Date of hearing: 4.5.2017 JUDGMENT Dost Muhammad Khan, J.— Brief Fact:- The gory incident of bloodbath took place in village, “Behroop Garh” attached to PS Alipur Chatha, District Gujranwala on 24.4.2001 at about 8:30 pm. Four persons, namely, (i) Nazir Ahmed, (ii) Muhammad Saleem, (iii) Ghulam Abbas, and a child, namely, Sumbal, aged 8/9 years were killed, while (i) Mst. Safia Bibi, (ii) Mst. Tayyaba, (iii) Muhammad Crl.A.104/2010 2 Ramzan (PW-17), (iv) Farzana, (v) Khalid, (vi) Mst. Attya Bibi, (vii) Baby Sana, aged about 3/4 years and (viii) Sarmad, a child of 8/9 years, were the victims of firearm injuries. 2. Besides the six appellants, six other co-accused, one of whom is still proclaimed offender, were charged for the gruesome incident, attributing them distinct roles of firing at the victims/deceased. The crime report was lodged at the spot by Miskeen Ali (PW-19) at 10:15 pm on the arrival of Sub-Inspector of Police. On the basis of “Murasila Report” case FIR No.103 dated 24.04.2001 was registered at the above Police Station, District Gujranwala for crimes U/Ss. 302/324/452/436 PPC read with sections 148 and 149 PPC. Subsequently sections 6 and 7(a) of the Anti-Terrorism Act, 1997 (Special Act) were added thereto. 3. Charge-sheet was filed in the Anti Terrorism Court. During the trial, the prosecution examined 23 witnesses in all and after recording the statements of the accused u/s 342 Cr.P.C. and of some u/s 340(2) Cr.P.C. and also of five defence witnesses, the Judge, Anti-Terrorism Court-II, Gujranwala vide judgment dated 25.04.2006, awarded death sentences to all the six appellants and also to pay fine of Rs. 100,000/- each. Appellants 1, 2 and 3 were further convicted and sentenced to five years R.I., under section 449 PPC with a fine of Rs.20,000/- each, or in default thereof they had to undergo simple imprisonment for one month each on both counts. 4. Appellants No.4, 5 and 6 were also convicted and awarded death sentence on two counts u/s 7(a) of Special Act and had to pay a fine of Rs.100,000/- each on two counts or in default Crl.A.104/2010 3 thereof, they had to undergo three months simple imprisonment each on two counts. They were also convicted and sentenced under section 7(c) of the Special Act to ten years R.I. on two counts each for causing injuries to Sana and Sarmad with fine of Rs.25,000/- each on two counts or in default thereof, to undergo one month simple imprisonment. They were further convicted and sentenced u/s.449 PPC to five years R.I. and to pay fine of Rs. 20,000/- each or in default thereof, to undergo S.I. for one month each on two counts. Benefit of section 382-B Cr.P.C. was extended to them. Co- accused, Mukhtar, whose case was almost at par with the appellants, was convicted u/s 7(c) of the Special Act and was sentenced to 10 years R.I. with fine of Rs. 25,000/- and in default thereof, to suffer one month’s simple imprisonment. He was further convicted and sentenced u/s 458 PPC to three years R.I. with a fine of Rs. 20,000/- or in default thereof, one month S.I. Both the sentences were ordered to run concurrently with benefit of section 382-B Cr.P.C. Abdul Salam and Shehzad @ Sajjad co-accused both were acquitted, extending them benefit of doubt. 5. The appeals, filed by the appellants were dismissed through the impugned judgment by the Lahore High Court, Lahore along with appeal of Sabir Hussain and Murder Reference, sent by the Trial Judge was answered in the affirmative, hence this appeal filed with the leave of the Court. We have heard the learned ASC for the appellants and the learned Additional Prosecutor General and have carefully perused the record/evidence. Crl.A.104/2010 4 6. The report of the crime was lodged at the crime spot after more than two hours. Except 2/3 minor victims, Mst. Safia Bibi (PW-16), Muhammad Ramzan (PW-17) and two other were majors and of considerable maturity. They were having the stamps of injuries and according to the Medical Officer, they were able to speak coherently but the complainant, namely, Miskeen Ali (PW- 19) lodged the crime report, sidetracking the injured witnesses. Why the injured victims with bleeding wounds and in a very painful condition were kept at the spot for hours, till the time police arrived there; why they were not moved quickly to the hospital for medical aid and management/treatment, is another begging question, which shall put the Court on guard. 7. Admittedly, the motive for the crime did relate to the complainant however, he was not caused even a minor harm, though, he was chasing the accused like a shadow during the commission of the crimes at different successive stages and had witnessed different transactions in different houses. Being a prime target for the accused, sparing his life, is another aspect, leaving behind a room for debate. 8. The above infirmities and mysteries apart, the crucial point for the Court, requires determination is the application of sections 6 and 7(a) of the Anti Terrorism Act, 1997. Whether in view of the specific personal motive to take revenge, set up by the Prosecution, which was maintained upto the end of the trial, is fact, taking out the case from the fold of terrorism. Crl.A.104/2010 5 The preamble to Anti Terrorism Act, 1997 provides as follows:- “An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences, it is hereby enacted as follows:-…….” The provision of clause (x) of section 2, provides that “terrorism” or “act of terrorism” has the meaning as assigned to it in section 6. Sub-section (1)(a) (b) of section 6 states as follows:- “6. Terrorism.—(1) In this Act, “Terrorism” means the use or threat of action where:- (a) the action falls within the meaning of sub-section (2) and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society.” Sub-section (2) of section 6 provides as follows:- “(2) An “action” shall fall within the meaning of sub- section (1) if it: (a) involves the doing of anything that causes death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; …………” The provision of section 7 of the Act ibid provides as follows:- “7. Punishment of acts of terrorism.—(1) Whoever commits an act of terrorism under Section 6, whereby-- (a) death of any person is caused, shall be punishable, on conviction, with death or with imprisonment for life, and with fine; or Crl.A.104/2010 6 (b) he does anything likely to cause death or endangers life, but death or hurt is not caused, shall be punishable, on conviction, with imprisonment of either description for a term which shall be not less than ten years but may extend to imprisonment for life and with fine; (c) grievous bodily harm or injury is caused to any person, shall be punishable, on conviction, with imprisonment of either description for a term which shall not be less than ten years but may extend to imprisonment for life and shall also be liable to a fine; ………………” (The rest are not relevant for construction in this case) 9. Under the jurisprudence, “mens rea” is an essential ingredient of every crime, needs to be attended first by the Courts of law however, in cases of terrorism or terrorist activities the “mens rea” becomes twofold, i.e. the first object is to commit a crime, while the primary object of “the mens rea” in the second fold speaks of terrorism related ideology, purpose and object, the most nefarious and detestable designs to commit crimes, creating sense of fear, insecurity and instability in the society and community with the ultimate object to destabilize the State as a whole. The true and perceivable object of this second “mens rea” is to create chaos, large scale disturbances, widespread sense of insecurity in the society/public and to intimidate and destabilize the State as a whole by means of terrorist activities. 10. In cases of this nature, “mens rea” is essentially with an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the State, the State Institutions, the public at large, destruction of public and private properties, make Crl.A.104/2010 7 assault on the law enforcing agencies and even at the public at large. The ultimate object and purpose of such acts is to terrorize the society or to put it under constant fear while in ordinary crimes committed due to personal vengeance/blood feud or enmity, the element to create fear or sense of insecurity in the society, public by means of terrorism is always missing. 11. True, that the offences contained in the Schedule to the Anti-Terrorism Act would fall within the definition of terrorism and terrorist activities but the crimes committed due to private revenge or to say traditional crimes, cannot be dragged into the fold of terrorism and terrorists activities. 12. The mere fact that the crimes for personal motive are committed in a gruesome or detestable manner, by itself would not be sufficient to bring the acts within the meaning of terrorism or terrorist activities. The Courts of law should not lose sight of the fact that terrorism and terrorist activities are committed and are carried out by a person, group of persons and well equipped organizations, whose primary aim and object is to destabilize the society and the State as a whole through such activities. The object and “mens rea” behind such activities is clearly spelled out from the nature of the crime committed, which must be attended to by the Courts with a deep judicial thought, as in the latter category the sole object/purpose in committing different crimes is to cause alarm, dread, fright inducing sense of insecurity in the mind of the people. 13. The acts of terrorism and terrorist activities are committed and carried out in a wolfish manner by terrorists and Crl.A.104/2010 8 terrorist groups, to whom training and skills are imparted, their brainwash is made in a planned manner so that, while committing gruesome and sickening crimes, they have to act in cruel manner and in pursuance of creating terror, the prime and ultimate object to be accomplished. The suicidal attacks and blasts in busy markets/business places, hospitals, mosques, other religious and educational institutions where peoples are slaughtered/butchered and their limbs are blown apart through bomb blast, are some of the instances of such activities, conveying dreadful message to the community/society at large of terror, for no motive other than the one to create fear and sense of insecurity. 14. Albeit, murder, attempted murder, causing bodily harm or hurt and damage to property and some other offences have been included in the Third Schedule, appended to the Anti Terrorism Act however, on plain reading, it becomes apparent that these offences are triable by the Special Courts, constituted under the Special Act but, there is no reference either expressed or implied in the Schedule that the Special Court shall award punishment under section 7 read with section 6 of the Act to accused persons charged for such crimes. There is another category of offences, which are squarely mentioned in the substantive provision of section 7 read with section 6 of the Special Act, which are specifically described to be acts of terrorism and shall fall within that definition however, the qualifying words, attached thereto, create a subtle distinction between the ordinary crimes, committed out of personal revenge, enmity or private motive and those committed for the object of Crl.A.104/2010 9 creating terror. This aspect needs to be interpreted and construed in a meaningful and objective manner so that the two categories of crimes i.e. ordinary crimes and those related to terrorism, are neither mixed up nor intermingled because construction placed on it at random without judicial thoughts, the cardinal principle relating to construction of Statute, would be defeated and ordinary crimes having no nexus with terrorism or terrorist activities would be incorrectly or wrongly placed in the grey category of crimes, which is not the object and intent of the Legislature. If ordinary crimes committed due to personal revenge or motive are given the colour of terrorism or terrorist activities, hundreds and hundreds of Criminal Courts (Sessions Courts) and other Courts would be rendered inoperative and their vested jurisdiction would be taken away for no justifiable reason. The Prosecution and disgruntled complainants have been noticed making crude attempts to paint an ordinary crime as an act of terrorism so that the rival/opposite party is put to maximum mental agony. Here, it becomes the duty of the Court of law to draw a fine distinction between two kinds of crimes, which are definitely pole apart. 15. In construing and interpreting Statute, the fundamental principle is to discover the true intent of the Legislature enacting a particular law to meet a particular situation and to confront a specific emerging threat. What were the reasons and background, which influenced the mind of the Legislature in enacting special law of this nature, one has to look upon the history of events, which had occurred preceding the enactment of the law by the Legislature because that is of much help to the Court of law to reach at a proper and fair conclusion. Crl.A.104/2010 10 The Legislature consists of human being susceptible to receive impact and is influenced by the events necessitating the new legislation to meet a specific emerging threat so that to curb it, providing harsh measures and punishment and while doing so, Article 25 of the Constitution to some extent, is sidetracked because drawing a distinction, between different classes of people on reasonable differentia and sound rationale, is a permissible course. 16. Due to geographic importance of our homeland, when revolution occurred in the neighbouring country in the West, a mess of unmanageable disturbances prevalent there, crossed into our homeland through western border. Due to the intervention of alien powers on account of clash of interest, the neighbouring country was made intense battle ground. Sophisticated weapons were generously distributed amongst the so called crusaders, the impact of which was felt in our homeland within no time. 17. The civil war in the neighbouring country caused annoyance to looser. A wave of terrorism and terrorist activities was unleashed in our homeland, sparing none. When a Federal Minister of the country was assassinated in a bomb blast in the campus of the Peshawar University and when the terrorists posed a potential threat to the society, the Suppression of Terrorist Activities Ordinance, 1974 (repealed) was enacted in emergency, which was made Act of the Parliament. The Schedule to the said Act was amended from time to time. When the Seaport, the metropolitan city of Karachi was subjected to similar terrorist activities, besides the explosive substances, Kalashnikov rifles and Crl.A.104/2010 11 T.T. pistols were frequently used for carrying out such activities, the offences of murder and damage to properties, caused through such means were also included in the Schedule of the Act ibid. When the terrorism and terrorist activities got momentum and emerged as a potential threat to the society and the State both, the Legislature enacted the present Anti Terrorism Act, 1997 to confront and curb the same. With the passage of time, due to need and requirements of the day, amendments were introduced in the substantive provisions of the Act ibid as well as the Schedule, appended thereto. 18. However, in the resent past when the law & order situation became worst assuming the status of evil monster, the Pakistan Armed Forces were called in aid of Civil Administration in different parts of the country. The terrorists, captured during the military operation, were suggested to be tried by the Court Martial or Field General Court Martial and for that purpose through 21st Constitution Amendment, “Pakistan Protection Act” was enacted, the Military Laws, were amended, authorizing these Courts Martial to try civilians (terrorists) to prevent further damage to the State and the writ of the State. In the two military operations, one carried out in “Malakand” and “Sawat” area and the other in North and South “Wazirastan” tribal areas, the headquarters and bases of the terrorists and militants were destroyed and they were flushed out from those areas and writ of the State was re-enforced. Crl.A.104/2010 12 The above narrative of the events history would show that the Legislature was constrained to enact harsh laws and for speedy trial of terrorists through Special Courts, mentioned above. 19. Keeping in view the above narrative, it is thus essential to look at the legislation and the new enactments, as to how these were introduced and what was the purpose & object of the same. The conventional and ordinary crimes of murder, hurt, etc. were being committed due to personal motives however, in committing these crimes unlike in the past, where the same were being committed through clubs, sharp weapons, shotguns or non- automatic rifles, the old crime weapons were substituted by sophisticated weapons, fully or semi automatic which fell in the hands of the majority of the peoples. Now invariably these crimes are committed with modern weapons, which has no doubt a devastating effect. However, this category of crimes is committed due to longstanding blood feud and is the result of personal motive. There is no intention (mens rea) in committing these crimes to create fear, terrorize the society/community at large or to put it under constant fear and terror. In terrorism cases, evil elements are always persuasive factor and integral parts of it, therefore, due care and caution shall have to be observed by the Courts so that ordinary crimes might not be pushed to the grey area of terrorism or terrorist activities to be dealt with under the law, meant for a particular class of peoples, group of persons/organizations, which are to be treated altogether differently under the special law. The careful reading of all the relevant provisions of Anti Terrorism Act, 1997 would show that the sole and primary object Crl.A.104/2010 13 of the same is to curb and eliminate terrorism and terrorist activities and also the groups involved in the same, besides to eliminate the sectarian and factional violence committed with the same object therefore, ordinary crimes due to personal motive or revenge shall not be taken at par with acts of terrorism or terrorist activities, the sole object of which is nothing but to terrorize the society/community and the State as a whole. There is a sky high difference between the crimes of the old category and the new one, for which special law has been enacted. 20. Another cardinal principle for construing a Penal Statute is that if the same transgresses upon the liberty, property and life of the citizens, it shall be so construed and interpreted to preserve such rights and not in a manner to destroy the same, thus, at random application of the provisions of the Special Act to the crimes of ordinary nature like the instant one, would be neither desirable nor appropriate being not permissible under the law. In the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) the same principle was laid down by this Court. 21. In enactments, meant to deal with particular subject and purposive in nature, the Courts are required not to depart from its literal construction, the same shall be narrowly interpreted. Widening the scope of such Statutes would defeat the legislative intent therefore, indulging in straining by enlarging the scope of the Special Law, intended to cover specified crimes and special object, is not permissible course because the result and object intended to be achieved by the Legislature, shall go waste. Unnecessarily bringing conventional crimes within the mischief Crl.A.104/2010 14 provision of the special law may result into chaos and the very object of Article 175 of the Constitution and the laws would be defeated besides the clear intent of the Legislature. 22. As has been discussed earlier, Penal Statute and that too of a harsh nature, must be narrowly examined and by no stretch of imagination it shall be given extended meaning to cover crime/crimes, not clearly falling within the ambit of the same. Carrying forward any legal fiction on any other consideration, is not a permissible course in view of the universal principle relating to construction of Statute. The society has already suffered at the hands of the devils and evil minded people, indulging in terrorism and terrorist activities, thus, ordinary citizens, charged for crimes committed due to personal vendetta, irrespective of the consequences, ensuing in the consummation of a crime, shall not be lightly labeled as terrorists on account of the damage caused as it is not a determinative and decisive factor, as the most lethal/sophisticated weapons, fully automatic are conveniently available almost in every part of the country. The use of such weapons, even by a single person would thus cause multiple injuries or even multiple casualties. The situs of the crime with certain limitations is relevant to bring it within the fold of mischief provision of Special Act, as the offences committed in specified places are squarely mentioned in para-4, clause (ii) and (iii) which are as follows:- “(ii) Use of fire arms or explosive by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or Crl.A.104/2010 15 (iii) firing or use of explosive by any device, including bomb blast in the court premises.” Under section 34 of the Special Act, the Legislature has delegated powers authorizing the government to amend the Schedules, so as to add any entry thereto or to modify it, therefore, when the Legislature has specifically authorized the government to make amendment in the Schedule then, the Courts of law are not supposed to interpret the provision of the Special Act in a way by including any other place in the Third Schedule or to exclude any place, specifically mentioned therein because it would amount to encroachment on the power of the government without any justifiable reason, unless and until the provisions of the Third Schedule are struck down by the Court on the ground being violative or ulta –vires of the mandatory provision of the Constitution. 23. It may also be clarified that in the Third Schedule, some offences like abduction or kidnapping for ransom have been specifically mentioned as acts of terrorism while about the other offences, reference is made to the substantive provisions. If the entire scheme of the Special Act is carefully studied, combinedly with the Schedules appended thereto, it would suggest that the Special Act was enacted by the Legislature with an intent to meet and confront a particular class of criminals and specified crimes, posing threat to the society and the State attributable to terrorists. Many of these organizations have been duly proscribed, while some have been placed under watch/observation, as authorized by Schedules I, II and other related provisions. The Crl.A.104/2010 16 raising of funds by such organizations is prohibited and the funds raised, are liable to be forfeited in favour of the State; the money laundering by various suspect organizations is scanned and checked by the law enforcing agencies. All suspected financial transactions and accumulation of assets through terrorism have been brought within the ambit of the provision of the Special Act and are liable to forfeiture by the State. Not only the preamble to the Special Act but majority of the substantive provisions are clearly directed to deal with terrorists, terrorist activities and terrorist organizations. After careful study of the entire scheme of the Special Act, with a deep thought, the only legitimate conclusion thus would be that barring specified crimes, the conventional or customary crimes like murder, attempted murder, causing hurt and theft, etc. are not included in the scheme of the Special Act. In the same way, offences of murder, causing bodily harm or hurt with whatever weapon in places other than those mentioned in the Schedule where, element of terrorism is not perceivable from the facts of a particular case, the same shall not come within the mischief of terrorism or terrorist activities. The courts of law shall not lightly ignore that being a harsh law, enacted to punish terrorists, hardcore militant and those involved in offences, specifically mentioned in the Schedule or other provisions of the Special Act, the same cannot be liberally extended to cover criminals who commit crime of murder, hurt or of attempted murder for any reason or motive, having no nexus with terrorism or militancy. Crl.A.104/2010 17 24. True, that in section 6 read with section 7 of the Special Act, offences of murder, attempted murder or causing bodily hurt or injury have been made cognizable by the Special Court, however, from the qualifying words, preceding the description of offences under sub-section(1) of section 6 read with the provisions of section 7 the intention of the Legislature becomes perceivable/visible that in committing these crimes essentially the element of “terrorism” shall be persuasive factor however other category of crimes duly specified and listed in Special Act shall fall within the ambit of provision of same being act of terrorism in that regard. The manifest intent of the Legislature does not leave behind any doubt for debate. 25. In certain circumstances, offences of murder or bodily harm, committed by the individuals in a sudden fight, even at public places, due to sudden flare up where the reason preceding such fight is concealed by both the parties, shall also not fall within the definition of terrorism because the object to be achieved is not terrorism or to carry out terrorist activities, therefore, courts shall not hurriedly jump at the conclusion that any such offence(s) are acts of terrorism in all open and shut cases of ordinary crimes where object is not terrorism nor the culpable act committed is directed to carry out terrorist activities, shall not be forcibly brought within the ambit of the provisions of Special Act. 26. The famous Jurists on construction and interpretation of Statute are almost in agreement that whenever Penal Statute requires interpretation then, it shall be so interpreted, which favours the accused person and not the State. Reference may be Crl.A.104/2010 18 made in this regard to the case of Brig.(rtd.) F.B.Ali and another v. The State (PLD 1975 SC 506) and the case King v. Aung Nyum [ (Q.B) 42 Crl.L.J.125]. In the above cited precedents the principle that Penal Statute has to be strictly construed was adopted. Question of carrying forward any legal fiction does not arise in such cases and whenever there is a room where a Penal Statute is susceptible to two interpretations, then it must be interpreted in favour of the accused. 27. If the Legislature intended to bring the crimes of routine murder, attempted murder or causing bodily hurt within the ambit of the provisions of the Special Act then, it would have not employed the word of terrorism or terrorist activities. The comprehensive list of terrorism related offences against the public at large/society and in particular places of worship and educational institutions, offences against law enforcing agencies, armed forces, is the clear manifestation of intent of the law givers. This fact by itself signifies the intention of the Legislature what it actually intended to achieve. Although, incidentally, in ordinary crimes sometimes, the damage caused to human life might be devastating, gruesome and heart sickening, however, this by itself would be not sufficient reason to bring the crime within the fold of terrorism or to attract the provision of section 6 or section 7 of the Special Act, unless the object intended to be achieved was falling within the category of crimes, clearly perceivable to create terror in people or/and sense of insecurity. 28. Another crucial aspect which cannot be lightly ignored, the provisions relating to “Qisas and Diyat Laws” (now Crl.A.104/2010 19 the integral part of the PPC). These rights based on Islamic Injunction are personal rights of the legal heirs of a deceased person (wali) or the victims, while the State is placed next to it. These vested rights of individuals cannot be lightly disturbed or taken away by the provisions of Special Act in crimes, not related to terrorism or terrorist activities. Bringing these crimes at random within the mischief provisions of Anti Terrorism Laws, (Special Act) would certainly deprive the legal heirs of the deceased of taking “Qisas” in the case of “Qatl-i-amd” or “Diyat” and the victims of hurt from the right of “Qisas, Diyat, Arsh or Daman”. In the event of conviction under the penal provisions of the Special Act, the fine imposed along with other similar penalties shall go to the public exchequer and in this way these rights recognized by the Islamic injunctions as indefeasible and unavoidable would be defeated for no justifiable reason. For this reason too, crimes against human body or property not clearly falling within the definition of terrorism and terrorist activities shall not be construed as such because by adopting that course these rights would be infringed, which are of overriding and superimposing effects. 29. The provision of Article 4(1) of the Constitution in commanding language, directs as follows:- “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.” The phrase used “to be treated in accordance with law” includes that every citizen must be dealt with according to law applicable to him, subject, of-course, to the facts and Crl.A.104/2010 20 circumstances of the case. If any citizen is triable under the ordinary penal law of the land, then, treating him harshly under special law, not clearly applicable to him would be a violation of the command of the Constitution. Under Article 227 of the Constitution, “all existing laws shall be brought in conformity with the injunction of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.” Thus, the combined effect would be that the two categories of crime, the one committed in an ordinary manner due to personal vengeance/revenge/private motive or due to sudden fight where the essential ingredient of terrorism is not involved, shall in no manner affect the personal right of Qisas, Diyat, Arsh or Daman of the legal heirs of the deceased (wali) or the victims of the assault as the case may be superimposing the provision of Anti Terrorism Act, i.e. sections 6 and 7 thereof, because it will also defeat the prohibitory language contained in the above Article of the Constitution and to that extent any such order of any Court shall be deemed to void and be inoperative. 30. In the present case, besides many infirmities highlighted in the earlier paras of the judgment, it appears that the noose was thrown wider, the act/acts, the crimes committed and executed were the consequence of personal motive and in the course of the transaction no element of terrorism defined by Legislature was involved, although it was gruesome in nature, however, the punishment provided u/s 302(a) and (b) PPC is also death sentence besides compensation too was awardable u/s 544- Crl.A.104/2010 21 A Cr.P.C. therefore, in the matter of punishment there is no marked distinction, if the penal provision of PPC is applied. The parties are having a blood feud since long and the object to be achieved was to take revenge for the previous murder and attempted murder, therefore, in our considered view, both the Courts below have not taken due care by applying correct provision of law to the established facts of the case. The construction on the provisions of Anti Terrorism Act and the principle laid down in the cases cited at the bar ie. Shahbaz Khan @ Tippu v. Special Judge Anti-Terrorism Court (PLD 2016 SC 1) and Kashif Ali v. The Judge Anti-Terrorism Court, No.II, Lahore( PLD 2016 SC 951) proceeds on different premises, both legal and factual and are not attracted to the facts and circumstances of the present case. 31. Accordingly, the conviction of the appellants u/s 7(a) of the Special Act, is set aside and the same is converted to one u/s 302(b) PPC however, keeping in view the peculiar circumstances of the case, this Court is influenced by caution and for securing the ends of justice in the matter of sentence because all was not well with the complainant and the Prosecution, the possibility that innocent persons amongst the guilty one were also involved, could not be altogether ruled out, thus, the death sentences awarded to all the appellants are reduced to life imprisonment on the counts mentioned in the impugned judgment but u/s 302(b) PPC and the conviction and sentences awarded to them u/s 6 read with section 7 of the Special Act are set aside. Similarly, the conviction and sentences of the appellants for causing hurt to the injured victims are converted from section 7(a) etc. of the Special Act to one u/s 324 PPC read with S.337-A(a)(iii) Crl.A.104/2010 22 PPC in the case of Mst. Tayyba Bibi, while in the case of Khalid Mehmood to one u/s 337-E(c) PPC. In the case of Muhammad Ramzan u/s 337-E(c) PPC, in the case of Sarmad Ali to one u/s 337-A(i) PPC, in the case of Mst. Farzana u/s 337-E(c) PPC, and in the case of Mst. Safia Bibi to one u/s 337-A(i) PPC. The fine amount imposed, except for offences under Ss. 449 and 452 PPC are converted to ‘Daman’ in all cases of the injured victims, while rest of the compensation amount payable by the appellants for the murder of the deceased is maintained or in default thereof, the appellants shall have to undergo six months S.I. However, rest of the convictions recorded and sentences awarded to them under above Penal Provisions i.e. Ss. 449 and 452 PPC along with compensation amount and sentences of fine amount imposed upon them are maintained. It is directed that all the substantive sentences of imprisonments shall run concurrently, with benefit of section 382-B Cr.P.C to all the appellants. These are the detailed reasons for our short order of even date, which is as under:- “For the reasons to be recorded later, we partly allow this appeal, convert sentences of death of the appellants into imprisonment for life under section 302(b), PPC.” Judge Judge Judge Islamabad, the 4th May, 2017 Nisar /- “Approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.106-L of 2017 and Criminal Petition No.981-L of 2017 (On appeal from the judgment dated 13.11.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No.2089 of 2010 and Murder Reference No.511 of 2010). Manzoor Hussain alias Babo (In Crl.A.106-L/2017) Muhammad Aslam (In Crl.P.981-L/2017) …Appellant(s) …Petitioner(s) VERSUS The State (In both cases) …Respondent(s) For the Appellant(s) (In Crl.A.106-L/2017) : Mr. Akhtar Hussain Bhatti, ASC For the Petitioner(s) (In Crl.P.981-L/2017) : Mr. Salman Safdar, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of Hearing : 17.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Yar alias Bhatti, 20, was shot dead, in a marriage ceremony ‘Barat’, on 10.4.2008 at 4.00 p.m. within remit of Police Station Cantt Okara. Manzoor Hussain, appellant was blamed for the crime. Bullet pierced the body 5 cm above right nipple, trapped in chest cavity, leaving behind blackened margins. Motive for the crime is acrimony raging over divorce of deceased’s sister by the appellant as well as litigation over agricultural land. The appellant stayed away from law, finally arrested on 6.6.2008; pursuant to a disclosure, he led to the recovery of a .30 caliber pistol on 10.6.2008. The appellant was indicted on 22.8.2008; Saifullah and his father Allah Ditta were arrayed as conspirators. The appellant Crl.A.106-L of 2017 & Crl.P.981-L of 2017. 2 blamed a stuck bullet going off accidentally during the aerial firing. Unimpressed by the plea, the learned trial Judge convicted the appellant under clause (b) of Pakistan Penal Code, 1860 and sentenced him to death with compensation vide judgment dated 30.8.2010. Allah Ditta and his son Saifullah were however acquitted from the charge. A learned division bench of learned Lahore High Court maintained the conviction, however, altered penalty of death into imprisonment for life with benefit under Section 382-B of the Code of Criminal Procedure, 1898. This brings both the appellant as well the complainant to us, former for acquittal while later for restoration of death penalty; Criminal Appeal 106-L/2017 and Criminal Petition 981-L/2017, bound by a common thread are being decided through this single judgment. 2. Event on the fateful day in the backdrop of bad blood is a common ground. Ceremonial firing is unfortunately a usual phenomenon. It is prosecution case that taking advantage of the event, the appellant, actuated by a motive deliberately targeted the bullet, whereas the accused while pleading innocence has simultaneously advanced the theory of a stray fire shot, stuck in the chamber, went off accidentally. Death by a .30 caliber bullet is not in dispute; in this background, hypothesis of an accidental shot, as canvassed at the bar, is far from being impressive. Mechanics of .30 caliber pistol, a semi automatic weapon, rests upon a percussion cap with a primer, when detonated by the hammer of firing pin ignites explosive propelling the bullet in high velocity to leave the muzzle; in the process next bullet from the magazine automatically enters the chamber by the energy released by the preceding fire shot. A bullet would possibly stuck in the chamber if the hammer fails to ignite the explosive; a defective primer makes the cartridge dead if all other components are in good condition. A second strike by the hammer is not possible without manual intervention and that too would seldom ignite the charge as the fixed length of firing pin would not go farther than the first strike. Therefore, it is difficult to contemplate a situation where deceased would naively stand within the approximate distance of four feet to receive bullet above Crl.A.106-L of 2017 & Crl.P.981-L of 2017. 3 the nipple, through an accidental shot. Bullet trajectory is yet another factor to contradict the story of accidental shot. If at all someone was attempting to retrieve the defective bullet he had no occasion to hold the gun in a straight position; from point of entry it traversed through right pleura and lung landing on left side of the chest beneath 4/5th intercostal back, is a course that suggests assailant and the deceased standing face to face. Appellant’s plea, inherently flawed cannot dislodge preponderance of evidence furnished by the eye witnesses, found by us in a comfortable unison on all the details, salient as well as collateral therewith. Suggested scenario, otherwise too unrealistic to be received without being imprudent, merits outright rejection. Criminal Appeal 106-L/2017 is dismissed. Imprisonment for life, a conscionable wage in circumstances also does not call for interference. As a natural corollary Criminal Petition No.981- L/2017 is dismissed. JUDGE JUDGE Lahore, the 17th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.107-L of 2017 (On appeal from the judgment dated 28.4.2014 passed by the Lahore High Court, Lahore in Criminal Appeal No.1668 of 2010 and M.R. No.333 of 2010). Sadi Ahmad and another …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s) : Rana Liaqat Ali Khan, ASC along with Ms. Nighat Saeed Mughal, ASC Complainant(s) : In person (Taj Muhammad) For the State : Ch. Mustafa, Deputy Prosecutor General, Punjab Date of Hearing : 23.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Sadi Ahmad and Mukhtar Ahmad alias Bari, appellants herein, were indicted by a learned Additional Sessions Judge at Okara for committing murder of Javed Iqbal in the course of robbery on 2.4.2007 within the remit of Police Station Satgarha. It is alleged that Sadi Ahmad, appellant and Ijaz alias Jajji and two unknown assailants hired deceased’s cab within witnesses’ view, subsequently vanished. A corpse was spotted subsequently identified as that of Javed Iqbal and in this backdrop, the appellants and co-accused were suspected for the crime. Vehicle was taken into possession on 3.4.2007; it was traced in consequence of an accident in the province of Khyber Pakhtoonkhwa; it is prosecution case that the passengers impersonated themselves to hush up their identity; Sadi Ahmad, appellant was formally arrested on 13.4.2007; upon Criminal Appeal No.107-L of 2017. 2 disclosure, he led to the recovery of various incriminatory items, followed by Mukhtar Ahmad on 27.2.2008. Indicted on 29.5.2008, they claimed trial. 2. Prosecution case in nutshell is that the appellants hired the cab, done away with the deceased and while they were on their way to dispose of the vehicle, in the province of Khyber Pakhtoonkhwa they met an accident wherein Shamim Bibi died and Sadi Ahmad, appellant become unconscious, while Mukhtar Ahmad fled from the scene; in this backdrop, it relied upon evidence of last seen and a confessional statement by Sadi Ahmad, beside certain recoveries, to drive home the charge. According to the crime report, Taj Muhammad, PW along with Tariq Mahmood and Tanvir Amjad, saw the deceased departing with Sadi Ahmad and Ijaz alias Jajji, P.O. with two unknown persons. In the totality of circumstances, statements of the complainant, Tariq Mahmood and Saeed Anwar, notwithstanding, there is little evidence to safely frame Mukhtar Ahmad alias Bari with the crime as he was never exposed to the witnesses in the identification test. It is prosecution case that Sadi Ahmad impersonated himself when he met an accident in Khyber Pakhtoonkhwa and his real identity was established subsequent thereto. None has been produced to establish identity of Sadi Ahmad in injured condition, when apprehended after the accident. There is nothing on the record to infer that some woman by the name of Shamim Bibi died in the accident so what is left in the field is deficient last scene evidence and confessional statement of Mukhtar Ahmad alias Bari, recorded by the learned trial Judge in the midst. We are not much impressed by the evidence of last seen for being outside the bounds of proximity in terms of time and space, besides otherwise being far from confidence inspiring. According to the autopsy report, asphyxia is the cause of death, therefore recoveries of weapons do not advance prosecution case. Pointing out of place of occurrence by the accused and memo thereof being inadmissible is entirely beside the mark. It does not constitute information within the contemplation of Article 40 of the Qaoon-e-Shahadat Order, 1984. Adverting to confessional Criminal Appeal No.107-L of 2017. 3 statement of Mukhtar Ahmad alias Bari recorded on 14.1.2019, we do not feel persuaded to rely upon the disclosure; it is not in line with prosecution case set up in the crime report; so diametrically different that one cannot be accepted without exclusion of other and vice versa; it is exculpatory in nature as Mukhtar Ahmad is reticent about his individual role and liability in the crime. According to him, the deceased was blind folded, thrown in a sugarcane field with his hands tied with a rope, whereas as per autopsy report cause of death is asphyxia. Motive behind sudden move by the appellant, Mukhtar Ahmad alias Bari during the trial is far from clear; disclosure is certainly not a truthful account of event leading to deceased’s death. When confronted during his examination under Section 342 of the Code of Criminal Procedure, 1898, he denied to have confessed his guilt; he repudiated pangs of conscience, mistakenly observed by the learned trial Judge. Prosecution has not been able to drive home the charge beyond reasonable doubt, therefore, in the absence of reliable evidence appellants’ conviction on moral satisfaction alone cannot sustain; they are extended the benefit of the doubt. Criminal Appeal 107- L/2017 is allowed, impugned judgment is set aside; they shall be released forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 23rd of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.11-P/2014 (Against the judgment dated 4.10.2013. of the Peshawar High Court, Peshawar passed in Criminal Quashment Petition No.313/2011) Javed Khan …Appellant(s) VERSUS Ali Gohar Shah & others …Respondent(s) For the Appellant(s) : Mr. Astaghfirullah, ASC Mr. Ajmal Khan, AOR For the State: : Barrister Qasim Wadud, Additional Advocate General, KPK For respondents No.1-3 : Mr. Gul Sadbar Khan, ASC Date of Hearing : 30.04.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Through leave of the Court, impugned herein is judgment dated 4.11.2013, whereby a learned Judge-in-Chambers of Peshawar High Court proceeded to quash First Information Report No.5 dated 6.11.2011 registered with Police Station Anti-Corruption Establishment, Charsada. The controversy revolves around a dispute over immovable property; it was set off by Javed Khan, appellant being attorney of the owner. Learned Additional Advocate General, Khyber Pakhtunkhwa is in a unison with the appellant to maintain that there was hardly an occasion for the learned Judge to quash the First Information Report structured upon allegations/evidence that warranted investigative as well as judicial scrutiny. Learned counsel for the respondent has not faced the appellant or the learned Law Officer with much enthusiasm and instead prays for opportunity to re- agitate the plea before appropriate forums at the relevant time. Criminal Appeal No.11-P/2014 2 Criminal appeal is allowed, impugned judgment dated 4.11.2013 by the learned Judge-in-Chambers is set aside, while keeping respondents’ options wide open to re-agitate their plea, if so advised; bail granted to them shall hold field. JUDGE JUDGE Islamabad, the 30th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017 (On appeal from the judgment dated 19.04.2016 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat in Cr.As.178 & 216-M of 2014 with MR 9-M & 10-M of 2014). Muhammad Azhar Hussain (in Crl.A.11-P/2017) Al-Haj-ud-Din (in J.P.726/2017) …Appellant(s) …Petitioner(s) VERSUS The State & another (in Crl.A.11-P/2017) The State (in J.P.726/2017) …Respondent(s) For the Appellant(s) : Mr. Khalid Mehmood, ASC Mr. Zahoor Qureshi, AoR For the Petitioner : Through Jail For the State : Mr. Mujahid Ali Khan, Additional Advocate General, Khyber Pakhtunkhwa Date of Hearing : 02.05.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Muhammad Azhar Hussain, appellant in Criminal Appeal No.11-P of 2017, was tried along-side Al-Haj-ud-din, petitioner in J.P. No.726 of 2017 for committing qatl-e-amad of Fida-ur-Rehman; they were convicted under clause (b) of Section 302 of Pakistan Penal Code, 1860 and sentenced to death with direction to pay compensation in the sum of Rs.100,000/-each or to undergo six months S.I. in the event of default vide judgment dated 28.6.2014 upheld by the learned Peshawar High Court vide impugned judgment dated 19.4.2016; bound by a common thread these are being decided through this single judgment. Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017. 2 2. Fida-ur-Rehman, deceased, aged 4/5, went missing; he was spotted lying dead in a maize field. According to autopsy report dated 24.8.2012, his neck was found slit with sharp edge weapon; medical officer observed certain marks of resistance as well as a rounded small piece of glass in his hand. As the investigation progressed, the accused named above were hauled up by the police; they were produced before a Judicial Magistrate on 5.9.2012 when they, one by one, confessed the guilt; their confessional statements are prosecution’s mainstay. It is alleged that both the accused were jointly carrying on with one Mst. Khadija and on the fateful day they went to visit her while she was alone; as they were busy in foreplay, the deceased surprised them; he threatened disclosure, however the accused persuaded him for silence in lieu of Rs. 20/-. Later in the day they again came across the child, followed him and finally intercepted near a maize field; they subdued the child, constricted his neck with the string and afterward slit it with a knife. During the trial, Saleema Bibi alias Naseem Bibi, mother of Muhammad Azhar Hussain, appellant appeared as PW-22; according to her statement, she saw Al-Haj- ud-din while taking a small child in his slap heading towards the maize field; accused inquired from the lady about her son who according to her was about to set out to a different location. Amongst the array of witnesses, the prosecution has primarily relied upon the confessional statements to drive on the charge. 3. Learned counsel for the convicts contends that enormity of the crime notwithstanding, reliance on the confessional statements by the courts below was fraught with multiple errors, heavily impinging upon the principle of safe administration of criminal justice; according to him, the statements were inherently flawed; these were contradicted by prosecution’s own witness, Saleema Bibi, PW-22, a dichotomy that escaped notice of the courts below. The learned Law Officer has vehemently defended the impugned judgments by highlighting the gruesome nature of the crime. According to him, there was no earthly reason either for the devastated family or the police to swap the real offenders; every hypothesis of their innocence stood excluded, concluded the learned Law Officer. Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017. 3 4. The fate of the prosecution’s case is hinged upon confessional statements, made by the convicts before a Magistrate and it is on the basis of their disclosures that they have been handed down the ultimate corporal penalty, irreversible in nature and thus warrants a most careful scrutiny. Though examined separately, nonetheless their arrival before the Magistrate on the same day, one after another on 5.9.2012 is quite intriguing; two individuals in an extreme crisis situation, conducting themselves in a comfortable unison, both being in tune with the prosecution, reasonably excludes hypothesis of a voluntary disclosure, free from the taints of inducement or persuasion; it appears to be more a negotiated settlement rather than a volitional representation; there is a remarkable similarity in both the statements, in terms of sequential order as well as the pattern these were reduced into writing, otherwise surprisingly exhaustive. A person making his breast clean is not expected to be that expressive. The statements contain prosecution’s encyclopedia with all the relevant details required to prosecute the case; it does not appear to be an exercise by a repentant to bring himself at peace with his conscious. Another predicament for the prosecution is conflict between testimony of Saleema Bibi, PW-22 with the confessions. Going by the later, both the convicts remained together right from intercepting the child to finally dumping him in the field whereas according to the former she saw Al-Haj-ud-Din alone while taking the child in his lap towards the field. This is also not in line with the disclosure that the accused first constricted his neck with the string before they jointly threw him in the field. These positions are irreconcilable; evidence of Saleema Bibi, PW-22 cannot be accepted without excluding confessional statements from consideration and vice versa. Similarly, in both the statements, the accused stated to have thrown weapon of offence, a churri in the river, however according to memo, exhibit PW-6/11, dated 4.9.2012 it was recovered with blood stains from inside the bushes a day before confessional statements were recorded; if Al-Haj-ud-Din had led to the recovery of weapon he had no occasion to omit this important investigative step in his exhaustive narrative and in case it is presumed as factually incorrect, would tremor the very basis of the Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017. 4 confessions. We have also not felt comfortable with the printed form, purportedly used to administer warnings to the accused before recording of their statements. A confession may entail formidable consequences for an accused facing indictment and thus it is incumbent upon the Magistrate to ensure that the maker consciously comprehends the consequences of his choice and thus it is most important that the Magistrate himself, face to face, faithfully communicates to the accused all the relevant warnings, as contemplated by Section 364 of the Code of Criminal Procedure, 1898, a surer way to establish that the confession is free from all taints, thus we would not approve convenience procuring accused’s signature on a printed format. On an overall analysis of the prosecution case, confessional statements cannot be relied upon without potential risk of error. In the absence of evidentiary certainty, it would be unsafe to maintain the convictions on moral satisfaction that certainly cannot equate with legal proof. The convicts are entitled to the benefit of doubt. Criminal appeal No.11-P of 2017 is allowed and as a natural corollary Jail Petition No.726 of 2017 is converted into appeal and allowed. Impugned judgments are set aside. They shall be set at liberty forthwith, if not required in any other case. JUDGE JUDGE Peshawar, the 2nd of May, 2019 Not approved for reporting Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mr. Manzoor Ahmad Malik Mr. Justice Mr. Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.110 of 2020 and Criminal Petition No.865-L of 2014 (Against the judgment dated 27.06.2014 passed by the Lahore High Court Lahore in Crl Appeal No.230-J/2010, Criminal Appeal No.1467/2010 along with M.R. No.343/2010) Ishtiaq Hussain (in Crl. Appeal No.110/2020) Muhammad Sharif (in Crl. Petition No.865-L/2020) …Appellant/Petitioner(s) Versus The State, etc. (in Crl. Appeal No.110/2020) Muhammad Sharif (in Crl. Petition No.865-L/2014) …Respondent(s) For the Appellant(s): Ms. Bushra Qamar, ASC For the Complainant/ Petitioner: Mr. Imtiaz Khan Baloch, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 23.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Abid, 28, was done to death at 10:40 p.m. on 9.6.2009 within the precincts of Police Station Urban Area Sargodha; Muhammad Shoaib (PW-8), with a dagger blow survived the assault; Muhammad Sharif (PW-6) and Haji Muhammad Saeed (PW-11) witnessed the occurrence unharmed; casualties were shifted to the hospital where the former lodged report with the police at 11:50 p.m. 2. As per prosecution case, the deceased along with Haji Muhammad Saeed (PW-11) was on way to his home after offering Isha prayer, followed by his father Muhammad Sharif (PW-6), brother Babar Criminal Appeal No.110 of 2020 and Criminal Petition No.865-L of 2014 2 Sajjad (given up) and Muhammad Shoaib (PW-8) when Ishtiaq Hussain appellant accompanied by his sons Ali Raza, Hassan Raza, Hussain Raza and Bilawal Hussain, differently armed, already ambushed in the lane, confronted the entourage. Bilalwal Hussain exhorted the deceased while Hassan Raza clutched him soon whereafter Ali Raza dealt him a butt blow after firing in the air, followed by a fatal shot by the appellant targeting the neck; Muhammad Shoaib (PW-8) tried to intervene when Hassan Raza stabbed him on his left thigh with a dagger; as the witnesses approached, the accused took to the heels while firing in the air. The accused avenged prosecution of criminal cases by the deceased, alleged the complainant. Muhammad Shaoib PW was medically examined at 10:55 p.m; he was noted with a firearm wound of entry on his left thigh accompanied by an abrasion on the nasal bridge along with lacerated wound 1.5 x ¼ cm on the left side of head without bone exposure; autopsy followed at 3:00 a.m; a firearm entry wound on the back of left side of chest with a corresponding exit on the front accompanied by an incised wound on the forehead. Spot inspection includes seizure of five casings of .30 caliber as well as blood, forensically confirmed as that of human origin. The appellant stayed away from law and was finally arrested on 11.12.2009 with co-accused already in custody since 04.07.2009; during custody, upon disclosures, they led to the recovery of weapons assigned to them in the crime report, however, with a negative forensic report. The trial culminated into appellant’s conviction under clause (b) of section 302 of the Pakistan Penal Code, 1860; he was sentenced to death with a direction to pay compensation whereas the co-accused were acquitted from the charge vide judgment dated 29.04.2010; assailed both by the appellant as well as the complainant; it was upheld by the High Court through impugned judgment dated 27.06.2014 with alteration of death penalty into imprisonment for life; once again challenged by the convict through leave of the Court, clubbed with complainant’s petition, seeking reversal of acquittal as well as death penalty awarded by the learned trial Court. 3. Learned counsel for the appellant contends that the complainant has cast a wider net to indiscriminately rope all the able bodied members of the family and evidence disbelieved qua them could not have been relied upon against the appellant in the absence of independent corroboration, hopelessly lacking in the case; that occurrence being a night affair, the question of identification of assailants is looming large on the scene, a circumstance ignored by the Criminal Appeal No.110 of 2020 and Criminal Petition No.865-L of 2014 3 courts below; that there is a stark conflict in ocular account and medical evidence, by itself clamouring for exclusion of the former from consideration; inconsequential recoveries with a discarded motive was a last straw, concluded the learned counsel. The learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment. It is argued on behalf of the complainant that there was no occasion for the exclusion of co-accused from the array as overwhelming evidence that included testimony of an injured squarely implicated them with identical culpability being unmistakably in the community of intention that cost a youth his life in cold blood. 4. Heard. Record perused. 5. Given a firearm injury endured by Muhammad Shoaib (PW-8) with medical examination shortly after the incident under a police docket, it is hard to suspect his presence at the crime scene, nonetheless, discrepancy in the ocular account unanimously furnished by all the witnesses including the injured himself is most intriguing; with one voice they blamed Hassan Raza, acquitted co-accused, for a dagger blow on the left thigh whereas according to the medical examination, the witness sustained a firearm injury on the stated locale; the accused is shown to have led to the recovery of a dagger, a circumstance further compounding the confusion; a witness discredited and disbelieved qua his own tormentor is of little relevance to sustain the remaining structure of the case. A confirmed presence by itself is not equivalence of truth. Adverting to the prosecution case vis-à-vis the deceased, en bloc nomination of the appellant with his entire clan, each armed lethally, nonetheless, settling the score with a solitary fire shot accompanied by a trivial incised wound on the forehead, unlikely to be outcome of a butt blow, clearly indicates a reckless desire to see all the heads rolling down the street, unambiguously suggesting presence of innocent proxies. Accusation that Hassan Raza held the deceased in his arms in order to expose him to the fire shot targeted by the appellant, risking his own life, is a story that may not find a buyer particularly in view of an exit wound on frontal side of the chest. It is also manifestly inconsistent with the case initially set up in the crime report wherein the solitary shot is mentioned to have landed on the frontal side of the neck and not on the back as found in the autopsy report; to reconcile the dichotomy, the witness deviated from his earlier stance only to be confronted with the embarrassment of denial. An inherently flawed ocular account, reflecting an unquenchable desire to unconscionably Criminal Appeal No.110 of 2020 and Criminal Petition No.865-L of 2014 4 engage adversaries would cast away the entire case. Fraught with doubts, prosecution’s failure is inescapable. Criminal Appeal is allowed; impugned judgment is set aside; the appellant is acquitted from the charge; he has already been ordered to be released if not required to be detained in any other case vide short order of even date. As a natural corollary, Criminal Petition No.865-L of 2014 stands dismissed. Judge Judge Judge Islamabad, the 23rd October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE MANZOOR AHMAD MALIK Criminal Appeals No.115 & 116 of 2013 (On appeal from the judgment dated 30.1.2013 passed by the Peshawar High Court, Abbottabad Bench, Abbottabad in Crl. Appeals No.99 & 100/09) Hashim Qasim (in Crl.A.No.115/13) Khayam Khurshid (in Crl.A.No.116/13) … Appellant(s) VERSUS The State … Respondent(s) Criminal Petition No.161 of 2013 (On appeal from the judgment dated 30.1.2013 passed by the Peshawar High Court, Abbottabad Bench, Abbottabad in Crl.Rev.No.40/09) Jehangir Elahi … Petitioner(s) VERSUS Shoaib Ahmed and others … Respondent(s) For the appellant(s): Ch. Muhammad Shuaib, ASC (in Criminal Appeal No. 115/2013) Malik Abdul Haq, ASC (in Criminal Appeal No. 116/2013) Mr. Mushtaq Ali Tahirkheli, ASC (in Criminal Petition No. 161/2013) On Court Call / For Federation: Syed Nayyab Hussain Gardezi, A.A.G For the State: Mian Arshad Jan, Addl. A.G. KPK Date of hearing: 12.4.2017 Crl.A 115-116/13 Crl.P.161/13 2 JUDGMENT Dost Muhammad Khan, J.— Brief Facts:- At a trial, held by learned Additional Sessions Judge-IV, Abbottabad, (i) appellant Hashim Qasim (ii) appellant Khayam Khurshid and (iii) Shoaib Ahmed (non appealing accused) were found guilty and were convicted & sentenced as follows:- (a) Appellant Hashim Qasim (in Crl.A. 115/13): (i) U/s. 302 PPC: Death sentence and also to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased, or in default thereof, to suffer further simple imprisonment for six months. (ii) U/s. 377 PPC: Life imprisonment and to pay fine of Rs.20,000/-, or in default of payment thereof, to further undergo S.I. for three months. (iii) U/s. 367 PPC: 10 years R.I. and fine of Rs.10,000/- or in default of payment of fine to undergo two months S.I. (b) Appellant Khayam Khurshid (in Crl.A.116/13) (c) Shoaib Ahmed (non-appealing accused) (Tried under Juvenile Justice System Ordinance): (i) U/s. 302/34 (b) PPC: Life imprisonment and also to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased, or in default of payment thereof, to further undergo S.I. for six months. (ii) U/s. 367-A/34 PPC: 10 years R.I. and fine of Rs.10,000/- or in default thereof to further undergo S.I. for two months. (iii) U/s. 377 PPC: Life Imprisonment and also to pay fine of Rs.20,000/- or in default of payment of fine, to further undergo S.I. for three months. Benefit of S.382-B Cr.P.C. was, however, extended to all the accused. Crl.A 115-116/13 Crl.P.161/13 3 2. Appellant Hashim Qasim, filed Criminal Appeal No.99/09 before the Peshawar High Court, Abbottabad Bench, against his conviction and sentence of death and the above sentences of imprisonment, while the Trial Court sent Murder Reference to the High Court for confirmation of his death sentence. Similarly, Shoaib Ahmed (non-appealing accused) and Khayam Khurshid filed separate Appeal No.100/09, against their conviction and sentences. Both the appeals came up for hearing before the High Court, Bench at Abbottabad and the learned Judges dismissed both the appeals, while in the case of appellant Hashim Qasim, Murder Reference was answered in the affirmative. 3. Against the judgment of the Peshawar High Court, Abbottabad Bench dated 30.1.2013, appellant Hashim Qasim, the condemned prisoner, has filed Crl. Appeal No.115/13, while Criminal Appeal No.116/13 has been filed by Khayam Khurshid (juvenile), with the leave of the Court dated 31.5.2013. Similarly, on Criminal Petition No.161/13, filed by Jehangir Elahi, complainant, seeking enhancement of sentence of life imprisonment, awarded to Shoaib Ahmed (non appealing accused) and appellant Khayam Khurshid, notices were issued to the Attorney General for Pakistan and the Advocate General of KPK because interpretation of the provisions of Juvenile Justice System Ordinance is involved. Arguments heard, impugned judgment gone through and the evidence on record was perused with due care and caution with the assistance of the learned counsel for the parties. 4. The epitome of the occurrence is that, on 26.02.2007 at 11:30 am, Haider Elahi, a child of 8 years, after seeking permission of his father, the complainant Jehangir, in his house to play outside, went away but when he did not turn up, the complainant got worried and started search for his minor son. In the said course, he contacted each and every relative and friend and also informed the Emergency Response Police on phone No. 15, however, when no clue about the child was found from Crl.A 115-116/13 Crl.P.161/13 4 anywhere, the complainant (PW-17) lodged a report with Police Station, City Abbottabad on 28.2.2007 at 14:00 hrs., expressing suspicion that probably, the missing child was kidnapped, however, no one was charged in the FIR, nor any suspicion about anyone, much less the appellants was expressed. 5. During the course of investigation, the investigating officer, namely, Sardar Muhammad Haroon, S.I. (PW-18) arrested three suspects on 3.3.2007, however, after interrogation they were released. He stated at the trial that, the said three suspects disclosed during their interrogation that, complainant had beaten appellants Khayam, Hashim Qasim and one Zubair, due to plucking of fruits from his domestic orchard thus, he went in search of them but they were found missing from their homes. He arrested accused Shoaib while playing cricket in “Thanda Maira” on 5.3.2007 however, before that on 1.3.2007, he was informed by the Emergency Rescue Police-15 that a dead body of a child had been discovered inside the overhead water tank of government Primary School, “Thanda Maira”, thus he reached the site and secured the dead body of the child through Memo (Ex.PW-4/1); prepared its inquest report and injury sheet and dispatched the same to the mortuary of Ayub Medical Complex. He also found two packets of “Coco Supari” in the water tank, which too were secured through Memo (Ex.PW-4/3). He prepared the sketch of the crime spot (Ex.PB); collected water from the water tank in four small bottles and sent to the Medical Officer, recovery memo to that effect was prepared as Ex.PW-4/2; and also added penal sections 302/377/201/34 PPC in the FIR, already registered vide Crime No.119/2007. He further deposed that the complainant party availed services of the private Sniffer Dog Center at Sargodha; sniffer dogs were brought to the spot and one of the dogs, after sniffing the crime spot, went to the house of one Khurshid and sat on a “cot”, while the rest of the dogs did not enter in the house. The son of Khurshid, namely, Khayam Khurshid, appellant, was thus arrested Crl.A 115-116/13 Crl.P.161/13 5 and also Shoaib (non-appealing accused). The custody of all the three accused, was obtained from the “Ilaqa Magistrate” and on the expiry of the police custody, they were produced before the Magistrate where, Khayam appellant made a confession (Ex.PW- 15/2). He also recorded the statement of one Adeel u/s 161 Cr.P.C. on 4.3.2007 and his statement was also got recorded through Magistrate on 5.3.2007 u/s 164 Cr.P.C., who has furnished evidence of the deceased, last seen with Shoaib and two unknown accused. The autopsy report and reports of the Chemical Examiner were also placed on record. 6. According to the evidence, the dead body of the deceased was found by a student of the school, who in turn informed the “Chowkidar” who then informed a teacher and the teacher rang 15 Police, who informed the above Investigating Officer. At the belated stage, after the arrest of the accused, motive was set up by the complainant against the appellants and accused Shoaib Ahmed. 7. At the trial, the prosecution has relied, mainly on the following pieces of evidence: “(i) Retracted confession of accused, Khayam Khurshid (juvenile); (ii) The last seen evidence, given by Adeel (PW-8); (iii) Motive for crime; (iv) The medical evidence, furnished by Dr. Syed Farooq Shah (PW-13) and; (v) The pointing of place of crime by the accused where, the deceased was subjected to unnatural intercourse and then strangulated to death.” Analysis/discussion: 8. Keeping in view the above, the case of the prosecution appears to have been based entirely on circumstantial evidence. Placing reliance on circumstantial evidence, in cases involving capital punishment, the superior Courts since long have laid down Crl.A 115-116/13 Crl.P.161/13 6 stringent principles for accepting the same. It has been the consistent view that such evidence must be of the nature, where, all circumstances must be so inter-linked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. Any missing link in the chain would destroy the whole and would render the same unreliable for recording a conviction on a capital charge. Reference is made to the cases of Muhammad Aslam v. The State (PLD 1992 SC 254) and Ch. Barkat Ali v. Major Karam Elahi Zia (1992 SCMR 1047). 9. In cases of circumstantial evidence, there are chances of procuring and fabricating evidence, therefore, Courts are required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the Investigators. If there are apparent indications of designs on part of the investigating agency in the preparation of a case resting on circumstantial evidence, the court must be on its guard against the trap of being deliberately misled into a false inference. If the court fails to observe such care and caution and hastily relies on such evidence, there would be a failure of justice. Reference may be made to the case of Fazal Elahi v. Crown (PLD 1953 FC 214) and of Lejzor v. The Queen (PLD 1952 PC 109), it was held therein with considerable emphasis that circumstantial evidence may sometimes appears to be conclusive but it must always be narrowly examined, if only because this count of evidence may be fabricated in order to cast suspicion on another, therefore, it is all the more necessary before drawing inference, if the accused’s guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances, which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all. 10. Keeping in view the broader principles, so laid down, we have now to deal with the evidence of the prosecution, adduced Crl.A 115-116/13 Crl.P.161/13 7 at the trial and the manner, it was collected by the investigating agency. 11. The confession of appellant, Khayam Khurshid, recorded on 9.3.2007 by the Magistrate, namely, Shah Waliullah (PW-15) is the most suspicious piece of evidence in the whole case, besides having been retracted one. It might be right, as was argued by the learned counsel for the complainant, that retracted confession, if corroborated by independent evidence of reliable nature, can be made basis for conviction on a capital charge but it must be subject to the above cardinal principles. 12. It is trite law that for accepting a confession, two essential requirements must be fulfilled i.e. that the confession was made voluntarily, it was based on true account of facts, leading to the crime and the same was proved at the trial. The superior courts have also given strict guidelines for the Magistrate, recording confession, to be followed without any exception which need not be repeated herein, because long line of authorities on this point is already in the field. 13. In the instant case, we are confronted with confession consisting of almost six full scape sentences. The accused, Khayam Khurshid was treated as Juvenile by the prosecution itself being of the age of sixteen years or less at the relevant time; he remained in the custody of the police for many days, however, the recording Magistrate did not provide him sufficient time for reflection to recompose. Being a Juvenile (minor), it was appropriate and desirable that he should have been provided counseling / consultation facility of natural guardian or any close blood relative of mature age, having no clash of interest with him in the case in hand but no such care and caution was observed by the Magistrate. We have found that the name of Shoaib accused was added subsequently and we have satisfied ourselves in this regard by consulting the original record. This glaring manipulation has Crl.A 115-116/13 Crl.P.161/13 8 knocked at the bottom of the confession, and same is denuded of its legal worth. 14. The confession is contradicted by established facts on record and instead of providing any corroboration, the same is clashing with the rest of evidence. In this regard the pointation memo (Ex-PW/5) is at page-39 of the paper book would show that the said accused pointed out the house of the complainant where he had entered the courtyard and took away the deceased, Haider Ali, deceitfully on the pretext to play cricket outside and providing him plums. The deceased accordingly accompanied him there and then. To the contrary, the complainant stated that on the fateful day at 11:30 am his deceased son got his permission to go outside for playing. There is no mention of the presence of the said accused nor the deceased had disclosed to the father that with whom he was going to play outside. In the very beginning of the confession, the accused had stated that a conspiracy was hatched by all of them to kill the deceased to take revenge from his father, however, after such a disclosure, the prosecution did not add the penal provision of section 120-B PPC which was squarely attracted, the result would be that the prosecution itself was not relying on that portion of the confession because date and place, where such conspiracy was hatched, is still a mystery. The next point equally important is that, during the earlier beating, given to him by the father of the deceased, his hand was fractured but the Investigating Officer did not take a single step to get it confirmed from the concerned Doctor, also obtaining the opinion of the Crl.A 115-116/13 Crl.P.161/13 9 Radiologist taking X-Ray of his fractured hand. The confession is conspicuously silent about the meeting of Adeel (PW-8), who exchanged welcome words with co-accused Shoaib when the deceased was in their company. Keeping in view the above conflict with the other pieces of evidence, brought on record, the retracted confession of the accused has lost its evidentiary value and legal efficacy thus, it would be absolutely unsafe to rely on it and that too for recording punishment on a capital charge. Another important aspect, which escaped the notice of the two courts below, is that, the Magistrate in his certificate has mentioned that the accused gave statement in “Hindko Dialect” which the Magistrate translated into Urdu. The Magistrate has nowhere stated in the certificate or at the trial that he was fully acquainted with or could understand “Hindko language” and that the confession was translated word by word from ‘Hindko to Urdu’. 15. The appellant Khayam Khurshid was arrested, probably when ‘sniffer dog’ entered into his father house twice and sat on a “Cot”. No provision of Qanun-e-Shahdat Order, 1984 endorse with approval this process and procedure, nor such evidence has been made expressly or impliedly admissible, the begging question thus, would be that how one dog, out of many entered the house while remaining stood outside, could be made the basis of forming an opinion about the involvement of Khayam accused in the case. What was the level of training imparted to the dogs, no pointation memo was prepared by the investigating officer about the said proceedings are such aspects, looking askance but Crl.A 115-116/13 Crl.P.161/13 10 the prosecution has no satisfactory answer to give. The dogs were arranged privately by one Major Jehangir through phone call made to the Commander of the Dog Centre, Sargodha, showing himself to be the father of the deceased, as is evident from the statement of Azhar Mehmood (PW-16) who brought the dogs to the spot and conducted the whole exercise. He confessed that he was illiterate person and the report placed on record was prepared by the Commander Dog Centre and was sent to the police. 16. So far as, the last seen evidence is concerned, the same is cryptic, infirm in nature and substance, which deserves outright rejection. It was by sheer chance that Adeel (PW-8) came across Shoaib accused in the midway when, he was accompanied by two unknown persons and the deceased Haider Elahi. No identification parade was arranged to get identify the said two unknown persons through the PW. The said PW is absolutely a chance witness, he also stayed tight lips even when he came to know about the missing of the child, how he was discovered by the police and when he met the police, is a question mark. The recording of his statement u/s 164 Cr.P.C. on 5.3.2007 is a testimony to the fact that probably he was a paid and procured witness and because the complainant and the investigator, both were apprehensive that he might not resile, thus, his statement on oath was recorded. What was the distance of the place where this PW met with Shoaib accused from the house of the complainant and the place of crime, is also an unexplained circumstance, more Crl.A 115-116/13 Crl.P.161/13 11 so, when the actual time of death of the deceased is still not known. Thus, this evidence is of no help to the prosecution. 17. The motive was set up after the arrest of the accused, is another question enough to disturb judicial mind. If the motive was really in existence then, in the FIR or at least at a subsequent stage before the discovery of the dead body and arrest of the accused, the complainant (PW-17) might have disclosed it, being very important factor because on that basis, the investigator would have taken step to interrogate all the three accused before their actual arrest particularly when the complainant being a practicing lawyer was supposed to know its importance. To the contrary, the IO, Sardar Muhammad Haroon, SI (PW-18), has squarely stated in unequivocal words that during the course of investigation on 3.3.2007 he had arrested (i) Khurram (ii) Faisal and (iii) Yasir, being suspects in the crime, however, after thorough interrogation they were released. He further added that those suspects disclosed the motive with accusing finger towards the present three accused because they were given thrashing/beatings by the father of the deceased due to plucking of fruits from his domestic orchard thus, the motive was revealed for the first time by the persons who themselves were suspects in the crime and then it was put into the mouth of the complainant. Thus, the motive belatedly set up, is nothing but a cosmetic baseline, which appears to be self manufactured with the connivance of the police. The defence has consistently taken the plea that the deceased was son of a lawyer, all the Bar Associations of the area thus, put a weight behind him Crl.A 115-116/13 Crl.P.161/13 12 and even the accused could not arrange a counsel for their defence. In any case, the motive remained unestablished. 18. The next is the medical evidence, not only relied upon by the prosecution but readily accepted and acted upon by the learned Courts below. True, that the deceased child was done to death by strangulating him after he was subjected to sodomy, however, to establish the individual participation of each one of the accused, in the crime, it was all the more necessary that samples of semen of the accused should have been sent to chemical examiner with swabs for cross matching. Only one swab in the parcel was found to be stained with the human semen, while the rest were not so. No sample of semen was obtained from the three accused for cross-matching. On this point, the case law has settled the standard of proof, however, quick reference may be made to the cases of Mst. Ehsan Begum v. The State (PLD 1983 FSC 204), Ghulam Abbas v. SHO Polcie Station City Chiniot Jhang (1996 P Cr. LJ 1661) and Waqar-ul-Islam v. State (PLJ 1998 FSC 13). The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit(s). 19. The next question is the pointing out of the crime place by the accused. It was impossible for them to have had access to the school, which was surrounded by boundary walls, having a gate, and was under the watch and guard of “chowkidar” and was closed during the days of occurrence due to winter vacations. If the accused could have an access to it then, it was Crl.A 115-116/13 Crl.P.161/13 13 open to general public as well. The crime spot was already in the knowledge of the police and when in consequence of the alleged disclosure, no fresh discovery was made from the crime spot then, this piece of evidence is of no legal worth to be relied upon. 20. Even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts is bedrock principle of justice. Reference may be made to the case of Riaz Masih @ Mithoo v. The State (NLR 1995 Crl. 694). Conclusion/decision: 21. Judged from all angles and considered from all aspects after fair reappraisal of evidence, we are of the firm and considered view that the prosecution has miserably failed to establish its case against the accused. Accordingly, both the appeals of both the appellants namely, Hashim Qasim and Khayam Khurshid, are allowed and they are acquitted of all the charges leveled against them. 22. So far as the case of non-appealing accused, Shoaib Ahmed is concerned, as we have already mentioned that notice for enhancement of sentence was given to him in Crl.P. 161/13, and when his case too is not distinguishable on any factual and legal premises from the appellants, therefore, he is also entitled to and deserves the same treatment. Reference may be made to the cases of Haji Syed Rafi Ahmed v. Additional Sessions Judge, Rawalpindi and others (PLD 1992 SC 251) and Muhabbat Ali Crl.A 115-116/13 Crl.P.161/13 14 v. The State (1985 SCMR 662). Accordingly, he (Shoaib Ahmed) too is extended the benefit of doubt and is acquitted of all the charges leveled against him. All the accused, including Shoaib Ahmed (non appealing accused) be set free forthwith, if not required in any other case. 23. In view of the above, Criminal Petition No.161/13 has become infructuous and because the same was not supported by the Advocate General, who has also filed concise statement and the learned Additional Attorney General on behalf of the Attorney General for Pakistan, which is accordingly dismissed. Judge Judge Judge Islamabad, the 12th April, 2017 Nisar/* 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 IQBAL HAMEEDUR RAHMAN MR. JUSTICE KHILJI ARIF HUSSAIN CRIMINAL APPEAL NOS. 12-P,13-P OF 2011 (on appeal from the judgment of the Peshawar High Court, Peshawar dated 21.07.2010 passed in Criminal Appeals No.264 & 270 of 2009) AND CRIMINAL APPEAL NOS. 17-P & 18-P OF 2011 (on appeal from the judgment of the Peshawar High Court, Peshawar dated 03.03.2011 passed in Criminal Appeals No. 390 & 415 of 2009) AND CRIMINAL APPEAL NOS. 7-P TO 9-P OF 2012 (on appeal from the judgment of the Peshawar High Court, Peshawar dated 21.09.2011 passed in Criminal Appeals No. 186, 190 &244 of 2009) The State through Director ANF Peshawar …Appellant VERSUS Rashmali Khan (in Cr.A 12-P/11) Islam & another (in Cr.A 13-P/11) Murad Khan (in Cr.A 17-P/11) Said Ahmed (in Cr.A 18-P/11) Sher Mohammad (in Cr.A 7-P/12) Ameerzeb & another (in Cr.A 8-P/12) Ahmedzeb (in Cr.A 9-P/12) …Respondents For the Appellants: (in all cases) Raja M. Inam Amin Minhas, Sp.Prosecutor ANF For the Respondents: (in Cr.As 12,13/11 & 9-P/12) N.R. (in Cr.As 7-P,8-P/12) Nemo. (in Cr.As 17,18-P/12) Mr. Jaffar Raza Khan, ASC Date of Hearing: 24.02.2016. JUDGMENT Anwar Zaheer Jamali, CJ.— These appeals, with leave of the Court, arise out of various judgments passed by the Peshawar High Cr.As.7P-9P,17P,18P/11 etc -2- Court, Peshawar, in the cases where the respondents were charged, convicted and sentenced under the provisions of Section 9(c) of the Control of Narcotics Substance Act, 1997 (hereinafter referred to as “CNSA”). As the moot point is common in all cases, therefore, we propose to decide them with this single judgment. 2. Before proceeding further to examine the crux of controversy involved, it will be appropriate to summarize the facts of these cases as under: 3. Criminal Appeals No. 7-P to 9-P of 2012, arise out of common FIR No.16 dated 21.04.2007 registered under Section 9(c) of CNSA at Police Station ANF Kohat, wherein it was alleged that the respondents, who were four in number, were trafficking 68.2 Kg of Chars Garda to Karachi in a bus bearing No.PA-0085. The Trial Court, vide judgment dated 13.05.2009, convicted and sentenced each one of them with imprisonment for life along with a fine of Rs.50,000/- or in default whereof to undergo one year S.I. and benefit of Section 382-B Cr.P.C. was extended to them. The respondents assailed this judgment by filing separate appeals before the Peshawar High Court, Peshawar, whereby vide judgments dated 21.09.2011, their sentences were reduced to 10 years R.I. and the fine was reduced to Rs.25,000/- or in default whereof to suffer further six months S.I. The benefit of Section 382-B Cr.P.C. was kept intact. The reasons for reduction in sentence assigned by the High Court were two fold; firstly, the quantity of Chars Garda, weighing 68.200 Kg in powder form could have been reduced in weight up to 30-40% and even upto 50% when processed. Therefore, the quantity to be considered in determining the quantum of sentence would be reduced to 40 Kg. Thus, all the respondents for the purpose of quantum of sentence were saved from the rigours of proviso to Section Cr.As.7P-9P,17P,18P/11 etc -3- 9(c) of CNSA, providing minimum punishment of life imprisonment in those cases where the total quantity recovered exceeds 10 Kilograms. 4. Criminal Appeals No. 12-P and 13-P of 2011, arise out of FIR No.15 dated 20.04.2007 registered under Section 9(c) of CNSA at Police Station ANF Kohat, wherein it was alleged that the respondents, who were three in number, were carrying 12.5 Kg of Chars Garda in a bus bearing No.BK-3875. They were accordingly charged and tried by the CNS Court and vide judgment dated 09.06.2009, convicted and sentenced with imprisonment for life along with a fine of Rs.50,000/- each or in default whereof to undergo one year S.I. The benefit of Section 382-B Cr.P.C. was also extended to them. The respondents assailed this judgment by filing separate appeals before the Peshawar High Court, Peshawar, whereby vide judgment dated 21.07.2010, their sentences of life imprisonment were reduced to four years R.I. and fine was also reduced to Rs.25,000/- or in default whereof to undergo further six months S.I. The benefit of Section 382-B Cr.P.C. was kept intact. The reasons assigned by the High Court were two fold; firstly, the recovery of Chars Garda, weighing 12.5 Kg in powder form could have invariably been reduced in weight up to 30% when processed, therefore, the case of the appellants was outside the ambit of the provisions of Section 9(c) of the CNSA and further the total quantity was to be equally distributed among the number of convicts therefore each of them was liable for quantum of sentence befitting 1/3rd quantity of processed Chars Garda. 5. Lastly, Criminal Appeals No. 17-P and 18-P of 2011, arise out of FIR No.7 dated 25.07.2008 registered under Section 9(c) of CNSA at Police Station ANF Kohat, wherein it was alleged that the respondents, who were two in number along with co-accused lady, were found in possession of 24 packets of Chars Garda weighing 28.8 Kg and Cr.As.7P-9P,17P,18P/11 etc -4- a packet of opium weighing 500 grams, which were concealed in CNG cylinder of a car bearing No.LEE-9846-07. They were accordingly charged, proceeded and the Trial Court, vide judgment dated 04.08.2009, extending benefit of doubt acquitted the lady accused, Sultana, while convicted and sentenced each of the respondents with imprisonment for life along with a fine of Rs.50,000/- each or in default whereof to undergo one year S.I. and the benefit of Section 382-B Cr.P.C. was also extended to them. The respondents assailed this judgment by filing separate appeals before the Peshawar High Court, Peshawar, whereby vide judgment dated 03.03.2011, their sentence of imprisonment for life was reduced to 10 years R.I. and fine was also reduced to Rs.25,000/- each or in default whereof to undergo further six months S.I. The benefit of Section 382-B Cr.P.C. was kept intact. The reasons assigned by the Court were two fold; firstly, the quantity of Chars Garda in powder form, weighing 28.8 Kg recovered from the possession of two convicts was liable to be reduced in weight up to 30- 35% when processed. Thus, the quantity to be considered in determining the quantum of sentence would be reduced to 20 Kg, which was to be equally divided between the two accused for the purpose of determining their quantum of sentence. 6. We have heard arguments of learned Special Prosecutor ANF on behalf of the appellants and Mr. Jaffar Raza Khan, ASC. The learned Special Prosecutor ANF argued that after the promulgation of CNSA, innumerable cases have been proceeded and decided up to the level of Apex Court, yet this novel procedure of reducing the quantity of Chars Garda from 30 to 50 % on the pretext of being reduced when processed has never been applied or followed as it is entirely alien to the provisions of CNSA; Section 9 whereof clearly contemplates quantum of sentences based on the recovered quantity of narcotic substance. Cr.As.7P-9P,17P,18P/11 etc -5- Moreover, the approach of the Hon’ble Peshawar High Court regarding equal distribution of recovered quantity of Chars Garda among the number of convicts involved, also lacks any legal backing or moral justification. In this regard, the arbitrariness of impugned judgments is further exposed from the fact that they contain no useful discussion or sound reason on either of these two points. 7. When learned ASC for the respondents was confronted with these legal questions, he was unable to offer any factual or legal foundation elucidating or defending the identical view taken by the Peshawar High Court in all these cases. 8. It is pertinent to note that in these appeals, various judgments of the trial Courts which were impugned before the Peshawar High Court were maintained to the extent of conviction of respondents and remained unchallenged; therefore, we do not need to advert to this aspect of the matter but only to the quantum of sentences modified and awarded by the High Court through its impugned judgments. The learned ASC for the respondents also conceded to this position for the reason that against the impugned judgments of the Peshawar High Court, whereby respondents were convicted and sentences awarded to them by the trial Court were reduced, they did not prefer any appeal challenging their convictions, which thus attained finality. To this extent, facts in all these cases are quite similar and undisputed, therefore, in order to decide these cases, following points for determination are formulated: (a) whether the trial Court or the appellate Court could proceed on the assumption that for determining the quantum of sentence, recovered quantity of Chars Garda is to be first processed and then its net quantity is to be made basis for this purpose? Cr.As.7P-9P,17P,18P/11 etc -6- (b) whether the quantum of sentence awarded to a convict under section 9(a), (b) or (c) of CNSA shall commensurate with the exact quantity of the recovered narcotic substance or the self invented formula for processing of Chars Garda, purportedly reducing its weight from 30 to 50 %, is to be applied to extend its benefit to the convict, while determining his quantum of sentence, if so, on what legal basis? (c) whether in a case involving several convicts, the total quantity of narcotic substance recovered from their possession is to be equally distributed between them to determine the quantum of their sentence, if so, then on what legal principle or analogy? 9. As discussed in the earlier part of the judgment, in the instant proceedings sentences awarded to all the respondents have been saved from the rigours of proviso to section 9 (c) of CNSA by following the principle of (presumed) reduction in the quantity of recovered Chars Garda, when processed, though in none of these cases Chars Garda was processed or even asked for or directed to be processed, and further by adopting the formula of equal/even distribution of such remaining quantity amongst all the convicts followed by the Peshawar High Court. In two appeals, showing recovery of 68.2 Kg and 28.8 Kg and number of convicts as four and two respectively, the sentences of convict respondents have been reduced to 10 years R.I. with fine of Rs. 25,000/-, while in the third appeal, showing recovered quantity as 12.5 Kg with three convicts, it has been reduced to 4 years R.I. with fine of Rs. 25,000/-. Cr.As.7P-9P,17P,18P/11 etc -7- 10 Before proceeding further, at this stage, it will be useful to reproduce section 9 of CNSA which reads thus: “Section 9. Punishment for contravention of sections 6,7 and 8. Whosoever contravenes the provisions of Sections 6,7 and 8 shall be punishable with— (a) Imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less; (b) Imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram; (c) Death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to pay fine which may be upto one million rupees, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b). Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.” 11. A bare reading of the above reproduced provision of law reveals that a person convicted under Section 9 CNSA, for the purposes of sentencing, is to be placed in three categories depending upon the quantity of narcotic substance recovered. Section 9 (a) specifies the quantum of sentence if the quantity recovered is 100 gm or less; section 9 (b) provides quantum of sentence for cases where the quantity recovered is more than 100 gm but less than 1 kg; and section 9 (c) specifies the quantum of sentence for any quantity exceeding 1 kg. Additionally, the proviso to section 9 (c) provides for the quantum of minimum sentence in those cases where the quantity of narcotic substance recovered exceeds 10 kg. Thus, it is evident that nowhere in Cr.As.7P-9P,17P,18P/11 etc -8- the entire scheme of CNSA, the Courts have been empowered to either send the recovered quantity of Chars Garda for processing or arbitrarily reduce its quantity without any supporting material in this behalf or any intelligible criteria or legal justification for this purpose, as has been done by the Peshawar High Court in all the impugned judgments. Such view of the matter is, therefore, disapproved and rejected as being conjectural and unlawful. In this context it will be pertinent to mention here that the exercise to be undertaken by the Investigating Officer for the purpose of obtaining test report regarding narcotic drug, psychotropic substance and controlled substance from the chemical examiner as visualized under Section 36 of the CNSA read with Control of Narcotic Substances (Government Analyst) Rules, 2001 has no nexus to the above discussed theory of processing of Chars Garda advanced by the High Court. 12. Similarly, the provisions of CNSA do not permit the practice of equal distribution of total quantity of narcotic substance recovered from the possession of more than one convict in order to determine their individual sentences within the parameters of Section 9 of CNSA. The conclusion contrary to it recorded in the impugned judgments has also no legal sanctity; therefore, it could not be endorsed or approved. To put it in simple words, if in a case narcotic substance is recovered from the possession of more than one convict then, following the principle of their joint and collective liability, each one of them will be liable for punishment on the basis of the whole quantity of narcotic substance so recovered. To elucidate and fortify this view, reference may be made with advantage to Sections 34,35,149,394,396,460 etc of the Pakistan Penal Code, which is the general law applicable to criminal cases, as unless expressly declared inapplicable the principles of general law are deemed to be applicable to a special law. Cr.As.7P-9P,17P,18P/11 etc -9- 13. In the case of Ameer Zeb v. The State ( PLD. 2012 SC 380 ) passed by a larger Bench of five Hon’ble Judges of this Court, the question of quantity of recovered narcotic substance for the purpose of sentencing has been discussed as under: “It is of paramount importance to notice in this context that the sentences specified in the Control of Narcotic Substances Act, 1997 depend upon the quantity of the recovered narcotic substance and not upon the narcotic content of the recovered substance and, thus, quantity in such cases is the determinative factor as far as the sentences are concerned. It is, therefore, absolutely necessary that in all such cases there should be no room for doubt as to the exact quantity of the substance recovered and also as to the entire recovered substance being narcotic substance.” The above conclusion thus, aptly encapsulates this aspect of the matter. 14. Admittedly, in these cases, at no stage of the proceedings, either before the Trial Court or the Appellate Court, the actual quantity of Chars Garda recovered from the possession of respondents was disputed; neither any plea that Chars Garda when processed would be reduced in quantity was raised by the respondents nor any such exercise was ever undertaken or warranted by law. The definition Clauses provided under Section 2 of CNSA covers different categories of narcotic drugs and psychotropic substance in detail, which leave no further room for any speculation about their net quantity. Additionally, Section 3 of the CNSA only confines the question of calculation of percentage of narcotic substance to liquid preparations. Thus, these admitted facts, evident from the case record, and the legal position, are sufficient to show that the exercise of jurisdiction of Peshawar High Court in this context was entirely capricious, fanciful and contrary to the case record. 15. As a sequel of above discussion, the points for determination formulated in the earlier part of this judgment are Cr.As.7P-9P,17P,18P/11 etc -10- answered as (a) Negative; (b) Exact quantity of the recovered narcotic substance; and (c) Negative. 16. Foregoing are the reasons for our short order passed in these appeals on 24.2.2016. Chief Justice Judge Judge Judge Judge ISLAMABAD. 24th February, 2016. Mudassar/    “Approved for reporting.”

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.12-P/2013 (Against the judgment dated 23.01.2007 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.632 of 2005). State thr. Deputy Attorney General …Appellant(s) VERSUS Abdul Ali …Respondent(s) For the Appellant(s) : Mr.Manzoor Khan Khalil, Additiional Advocate General, Khyber Pakhtunkhwa Mr.Tariq Khan, ASC For the Respondent(s) : Mr. Noor Alam Khan, ASC Date of Hearing : 29.04.2019 JUDGMENT Abdul Ali, respondent was returned a guilty verdict by learned Judge, Special Court (CNS), Peshawar; he was indicted for being in possession of seventeen kilograms of opium at an FC check post. The learned Peshawar High Court, however, acquitted him from the charge vide impugned judgment dated 23.1.2007, vires whereof are being challenged by the State. It is argued that there was no occasion for the learned High Court to acquit the respondent in the face of overwhelming evidence, singularly pointed on respondent’s culpability when intercepted with huge quantity of contraband that cannot be conceivably foisted upon him. Forensic evidence confirming the narcotic character of the contraband his next argument is to seek reversal of the impugned judgment. Quantity of contraband notwithstanding, view taken by the learned High Court to acquit the respondent is neither artificial nor perverse inasmuch as discrepancy between the stated Criminal Appeal No.12-P/2013 2 date of respondent’s arrest and his remission into police custody for registration of a criminal case sans any plausible explanation. Contradictions in the statements of Mir Badshah Khan, PW-3 and Sabz Ali, PW-4 in the above backdrop cannot be received as trivial and thus it is rightly held that the local police and FC personnel, being out of tune, the charge against the respondent is not free from doubt. Impugned view being a possible rendition warrants no interference. Appeal is dismissed. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.122-L of 2017 (On appeal from the judgment dated 10.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.365-J of 2012 and CSR No.27-T of 2012). Iftikhar Ahmad …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s) : Ch. Nisar Ahmed Kausar, ASC For the Complainant : Mr. Muhammad Ozair Chughtai, ASC/AoR For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab with Furqan, S.I. Date of Hearing : 16.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Bisma Murad, 11, left home on 21.11.2011 to attend school; she did not return at the expected time whereupon her father, Murad Ali, PW-13 went to the school; he was informed that the girl did not turn up; a day passed by in search and finally the incident was reported at Police Station Nawan Kot, Lahore on 22.11.2011; after receipt of calls from two different cell phone numbers whereby the unknown caller demanded ransom of Rs.50,000. The complainant alongside Shahzad, PW went to the designated place with the amount once again and dropped it inside the corner of a steel fence; the caller directed them towards main road Sabza Zar to receive the abductee, however, to their dismay none were there. A dead body was spotted at about noon time identified by the complainant as that of his missing daughter Bisma Murad. According to the autopsy report, she was strangulated to death; hymen was found freshly ruptured with tears on anal opening; swabs bore seminal Criminal Appeal No.122-L of 2017. 2 traces without DNA identification. Trial before learned Special Judge, Anti Terrorism Court No.II culminated into appellant’s conviction under Sections 302(b), 365-A of the Pakistan Penal Code, 1860 read with Section 7 (e) of Anti Terrorism Act, 1997. The learned High Court maintained the convictions. As the investigation progressed, Iftikhar Rasool, Inspector, PW-17, with the help of cell phone data, tracked through IMEI number, arrested the appellant on 25.11.2011; upon his personal search, a cell phone hand set, P-8 with a sim (Subscriber Identity Module) bearing No.0308-4262290, P-9 with cash Rs.10,000 were recovered. The accused was lodged in judicial lockup with muffled face. He was presented before Muhammad Iqbal and Muhammad Ramzan, PWs, witnesses of last seen on 3.12.2011; they correctly identified him during the test identification parade; later, while taking the girl on motorbike and former, throwing a bag in the plot wherefrom the dead body was recovered. The appellant was remitted to police custody; pursuant to a disclosure he led to the recovery of various incriminatory articles that included a part of ransom amount; most importantly last belongings of the deceased. Learned trial Judge returned a guilty verdict; he stood convicted and sentenced as referred to above vide judgment dated 8.10.2012; his appeal before a learned division bench of Lahore High Court met with no better fate vide impugned judgment dated 10.2.2015. 2. Prosecution’s case is primarily structured upon the statement of Muhammad Ramzan, PW; he is complainant’s nephew and claims to have last seen the girl in appellant’s company on 21.11.2011; he shared information with the complainant on the following day and it was on this disclosure that the appellant was framed as suspect. This piece of evidence is further corroborated with the statement of Muhammad Iqbal, PW- 11 who saw the appellant dumping the corpse; both of them correctly identified the appellant under magisterial supervision, a process substantially flawless. Defence has not been able to impeach credibility of these witnesses; they have no axe to grind. Evidence of the last seen is well within the remit of proximity of Criminal Appeal No.122-L of 2017. 3 time and space. Recovery of articles constitutes an another strong link particularly last belongings including school bag as well as stationery items. Recovery of sim (Subscriber Identity Module) P-9 and generation of calls therefrom, received by the complainant, confirmed by cell phone data presents a formidable piece of evidence, based upon an automated system, immune from foreign interference. Investigative process and conclusion thereof inexorably points towards the appellant’s culpability. Circumstances though few, nonetheless, are well synchronized, excluding every hypothesis of appellant’s innocence. He has rightly been convicted by the learned Courts below, therefore, his appeal must fail. Prosecution’s failure of DNA profile generation of rectal and vaginal swabs is a most grievous lapse that in retrospect makes out a case to visit the appellant with alternate penalty of imprisonment for life, therefore death penalty on all counts is altered to imprisonment for life on each; amounts of fine and compensation are kept intact. Sentences shall run concurrently with benefit of Section 382-B of the Code of Criminal Procedure. With the above modification, Criminal Appeal 122-L/2017 is allowed. JUDGE JUDGE Lahore, the 16th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mr. Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.125 of 2020 (Against the judgment dated 8.11.2016 passed by the High Court of Sindh, Circuit Court, Larkana in Cr. Appeal No.D-3/2015) Mst. Sughran & Mst. Khalida …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. M. Amjad Iqbal Qureshi, ASC For the State: Mr. Hussain Bux, Addl. Prosecutor General Sindh Date of hearing: 27.10.2020. ORDER Qazi Muhammad Amin Ahmed, J.- After strenuously highlighting “flaws” in various investigative steps, the learned counsel, nonetheless, does not press appellant’s conviction, concurrently held in order by the Courts below, albeit in reduction of sentence by the High Court and prays for further reduction of her sentence to the period already undergone with corresponding modification in the amount of fine. The appellant alongside co-accused Mst. Sughra was surprised in a public vehicle by an Excise contingent of Jacobabad Circle in the Province of Sindh with a cache of cannabis 10 k.g. each. Mst. Sughra co-convict has since been passed away. According to the report submitted by the jail authorities, the appellant, as on 23.10.2020, has served out a period well exceeding six years and is scheduled to be released on 18.12.2022. A considerable cache of contraband, nonetheless, attributed by the prosecution to the appellant, being not in excess of 10-kg, brings her case out of the barriers of statutory sealing of lowest mandated sentence and, thus, for reasons valid and just, her plea for reduction of sentence can be visited thoughtfully; her apparent status of a hapless Criminal Appeal No.125 of 2020 2 carrier has not seriously been controverted by the learned Law Officer who otherwise, nonetheless, faithfully defended the impugned judgment and opposed the reduction of sentence in view of the grace already shown by the High Court. The primary purpose behind the Criminal Justice System is to enable an offender to reform and rehabilitate him/herself to rejoin the mainstream life to once again become a useful member thereof. It is not to wreak vengeance. In the present case, we have not been able to find out any material/circumstance to view the appellant or her deceased partner as being privy at the helm of the consignment; abandoned by those who ensnared them into the trap, they struggled for their release on their own through jail petitions after a trial conducted without craft. Substantial period already served out, death of identically placed inmate in the prison, are factors perhaps failing to individually qualify, nonetheless, taken into consideration together, cumulatively make out a case to reduce her sentence to the period already undergone. Reduction in fine to the tune of Rs.30000/- or to undergo three months SI in the event of default shall also be a conscionable arrangement. With the above modification, the appeal is partly allowed. Judge Judge Judge Islamabad, the 27th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Ejaz Afzal Khan Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Dost Muhammad Khan Mr. Justice Qazi Faez Isa Criminal Appeal No. 126 of 2012 (Against the judgment dated 23.11.2011 passed by the Islamabad High Court, Islamabad in Criminal Appeal No. 30 of 2004, Criminal Revision No. 19 of 2004 and Murder Reference No. 54 of 2005) Zahid Rehman … Appellant versus The State … Respondent Criminal Petition No. 568 of 2011 (Against the judgment dated 23.11.2011 passed by the Islamabad High Court, Islamabad in Criminal Revision No. 19 of 2004) Sheerin Zafar … Petitioner versus Zahid-ur-Rehman, etc. … Respondents Criminal Appeal No. 80 of 2001 (Against the judgment dated 20.04.2000 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 95 of 1994) Amir Khan … Appellant versus Muhammad Aslam, etc. … Respondents For the appellants: Kh. Haris Ahmed, ASC (in Cr.A. 126 of 2012) Hafiz Hifz-ur-Rehman, ASC (in Cr.A. 80 of 2001) For the petitioner: Nemo. (in Cr.P. 568 of 2011) For respondent No. 1: Kh. Haris Ahmed, ASC (in Cr.P. 568 of 2011) Malik Muhammad Kabir, ASC (in Cr.A. 80 of 2001) Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 2 For the State: Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab (in Cr.P. 568 of 2011 & Cr.A. 80 of 2001) Nemo. (in Cr.A. 126 of 2012) Dates of hearing: 14.10.2014 & 15.10.2014 JUDGMENT Asif Saeed Khan Khosa, J.: The law regarding Qisas in cases of murder and bodily hurt had been introduced in the criminal jurisprudence of this country about a quarter of a century ago but unfortunately the distinction between Qisas and Ta’zir and applicability of the two concepts to different kinds of cases has confused our courts ever since with the result that even this Court has rendered conflicting judgments in that respect. One of the reasons why leave to appeal had been granted in the case of Zahid Rehman convict-appellant was that an authoritative judgment may be rendered by this Court removing the prevalent confusion in this important field of criminal law and conclusively setting the controversy at rest. While granting leave to appeal in that case the following order had been passed by this Court on 09.03.2012: “Criminal Petition No. 581 of 2011 It has inter alia been contended by the learned counsel for the petitioner that the case in hand was a case of circumstantial evidence only as no eye-witness of the alleged occurrence had been produced by the prosecution. The learned counsel for the petitioner has maintained that links in the chain of the circumstantial evidence were broken at many places and, thus, it could not be said that the prosecution had succeeded in proving its case against the petitioner beyond reasonable doubt. He has also argued that the motive set up by the prosecution had been discarded by both the learned courts below, the extra-judicial confession allegedly made by the petitioner was not only a weak piece of evidence but the same had not been sufficiently proved before the learned trial court and the gun and the crime-empties had been recovered and sent together diminishing, if not eliminating, the evidentiary value of such recoveries. On the legal plane it has been argued by the learned counsel for the petitioner that even if the case of the prosecution against the petitioner was accepted as correct on the factual side still it was a case attracting the provisions of section 306(b) and (c), P.P.C. and not a case attracting section 302(b), P.P.C. It has been maintained by the learned counsel for the petitioner that in this case attracting the provisions of section 306(b) and (c), P.P.C. the sentence of the Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 3 petitioner could have been recorded under section 308, P.P.C. which carried a maximum sentence of 14 years' imprisonment at the time of the alleged occurrence. In this context the learned counsel for the petitioner has pointed out that this Court has expressed different opinions in respect of the above mentioned legal issue from time to time and the said issue requires a detailed examination by a Larger Bench of this Court. In this regard the learned counsel for the petitioner has referred to the cases of Naseer Ahmed v. The State (PLD 2000 SC 813), Dil Bagh Hussain v. The State (2001 CMR 232), Muhammad Abdullah Khan v. The State (2001 SCMR 1775), Amanat Ali v. Nazim Ali and another (2003 SCMR 608), Muhammad Ilyas v. The State (2008 SCMR 396) and Khalid Mehmood v. The State (2011 SCMR 1110) wherein it had been held that in a case like the one in hand an accused person found guilty is to be convicted under section 306, P.P.C. and is to be punished under section 308, P.P.C. He has also referred to the cases of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203), Muhammad Afzal alias Seema v. The State (1999 SCMR 2652), Umar Hayat v. Jahangir and another (2002 SCMR 629), Muhammad Akram v. The State (2003 SCMR 855), Ghulam Murtaza v. The State (2004 SCMR 4), Nasir Mehmood and another v. The State (2006 SCMR 204), Abdul Jabbar v. The State and others (2007 SCMR 1496), Iftikhar-ul- Hassan v. Israr Bashir and another (PLD 2007 SC 111) and Tauqeer Ahmad Khan v. Zaheer Ahmad and others (2009 SCMR 420) wherein this Court had categorically held that the provisions of sections 306 and 308, P.P.C. stand attracted to a case of Qisas only and they do not apply to a case of Ta'zir. Such divergence of opinion expressed by this Court in the above mentioned precedent cases requires an authoritative pronouncement by a Larger Bench of this Court to settle the legal controversy at rest. 2. For what has been noted above this petition is allowed and leave to appeal is granted to consider the factual and legal aspects of this case highlighted by the learned counsel for the petitioner. The Hon'ble Chief Justice may graciously consider constitution of a Larger Bench of this Court to determine the issues involved in the case, if so advised. Criminal Petition No. 568 of 2011 3. Through this petition the petitioner-complainant seeks enhancement of the amount of compensation ordered by the learned trial Court to be paid by respondent No. 1. Let this petition be heard along with the appeal of the convict/respondent No. 1.” (reported as Sheerin Zafar and another v. Zahid Rehman and others (2012 SCMR 728)) The titled Criminal Appeal No. 126 of 2012 has arisen out of the above mentioned Criminal Petition No. 581 of 2011 and the connected Criminal Petition No. 568 of 2011 had been ordered to be heard along with the appeal arising out of Criminal Petition No. 581 of 2011. The titled Criminal Appeal No. 80 of 2001 has stemmed from Criminal Petition No. 143 of 2000 in which leave to Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 4 appeal had been granted by this Court on 31.01.2001 in the following terms: “ --------------------- We have heard the learned counsel at length and perused the file. Contentions of the learned counsel are that if a person in his statement under Section 342 Cr.P.C. claims his age to be less than 18 years and at that stage produces school leaving certificate should that be relied upon as conclusive proof when the prosecution has not been given the chance to rebut the same and should the scribe of such certificate be not produced for cross-examination? According to the learned counsel Section 308 PPC is applicable only to cases which are to be dealt with Section 302(a) PPC i.e. Qatl-e-Amad. In the instant case the conviction was recorded under Section 302(b) PPC, which is Tazir, therefore, 308 PPC would not be applicable to such like cases. Points raised by learned counsel need examination, therefore, we grant leave to appeal to reappraise the evidence and to consider the points noted above. Let bailable warrant of arrest in the sum of Rs. 1,00,000/- with two sureties each in the like amount returnable to Sessions Judge, Attock, be issued against Muhammad Aslam, respondent No. 1.” On 12.06.2013 Criminal Appeal No. 80 of 2001 was ordered to be heard alongwith Criminal Appeal No. 126 of 2012 as the issue involved in the said appeal was also as to whether in a case of Ta’zir an accused person can be convicted and sentenced under section 308, PPC or not. 2. In view of the legal controversy involved in these matters we have decided to resolve the legal issue first and then to leave the present appeals and the connected petition to be decided by appropriate Benches of this Court on the basis of their respective merits in the light of the legal position declared through the present judgment. 3. Assisting the Court on the legal issue involved Kh. Haris Ahmed, ASC appearing for the appellant in Criminal Appeal No. 126 of 2012 has taken us through different provisions of the Pakistan Penal Code, 1860 (hereinafter referred to as PPC) and has also referred to a large number of precedent cases to which reference shall be made in the later part of this judgment. His main arguments have been that Qisas and Ta’zir are different kinds of punishments provided for an offence of Qatl-i-amd (intentional murder); the punishments for such murder prescribed Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 5 in section 302, PPC are “subject to the provisions of this Chapter” (Chapter XVI of PPC); the provisions of sections 306 and 307, PPC are independent provisions falling in the same Chapter and the same are not controlled or regulated by the provisions of section 302, PPC and, thus, the punishments provided in section 308, PPC are not to be looked at through the prism of section 302, PPC; and such punishments can be awarded in an appropriate case irrespective of the fact whether the relevant case is a case of Qisas or of Ta’zir. The central theme of his submissions is that section 306, PPC constitutes a distinct offence and the same entails different punishments under section 308, PPC and, therefore, in a case attracting the provisions of section 306, PPC there is hardly any relevance of sections 302 or 304, PPC. As against that Hafiz Hifz-ur-Rehman, ASC appearing for the appellant in Criminal Appeal No. 80 of 2001 has maintained that for attracting the provisions of sections 306, 307 and 308, PPC a case has to be a case of Qisas and that the said provisions have no relevance to a case of Ta’zir. According to him a case of intentional murder wherein proof in either of the forms specified in section 304, PPC is not produced or is not available has to be treated as a case of Ta’zir entailing the punishments of death or imprisonment for life as mandated by the provisions of section 302(b), PPC. Malik Muhammad Kabir, ASC representing respondent No. 1 in Criminal Appeal No. 80 of 2001 has adopted and supported the above noted arguments advanced by Kh. Haris Ahmed, ASC whereas Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab appearing for the State has argued on the same lines as has been done by Hafiz Hifz-ur-Rehman, ASC. 4. After hearing the learned counsel for the parties and attending to the legal provisions and the precedent cases cited by them in support of their respective contentions I may observe at the outset that, putting it in its broadest terms, Qisas in Islamic terms is Almighty Allah‟s law dealing with the offences of murder and bodily hurt and Ta’zir is the manmade law for such offences and the standards of proof and the punishments provided therefor Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 6 are by and large different. It is generally understood that the two concepts are mutually exclusive and they represent separate legal regimes. Since the year 1990 the concepts of Qisas and Ta’zir have coexisted in our criminal jurisprudence and for the purposes of the present cases the following provisions of the Pakistan Penal Code are relevant: Section 299. Definitions.- In this Chapter, unless there is anything repugnant in the subject or context,- --------------------- (k) "qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd and in exercise of the right of the victim or a wali; (l) "ta'zir" means punishment other than qisas, diyat, arsh or daman; ------- Section 302. Punishment of qatl-i-amd.-- Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be -- (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty-five years where according to the Injunctions of Islam the punishment of qisas is not applicable: Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be. Section 304. Proof of qatl-i-amd liable to qisas, etc.-- (1) Proof of qatl-i-amd shall be in any of the following forms, namely:- a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984). (2) The provisions of sub-section (1) shall, mutatis mutandis, apply to a hurt liable to qisas. Section 305. Wali.- In case of qatl, the wali shall be- a) the heirs of the victim, according to his personal law but shall not include the accused or the convict in case of qatl-i-amd if committed in the name or on the pretext of honour; and b) the Government, if there is no heir. Section 306. Qatl-i-amd not liable to qisas. -- Qatl-i-amd shall Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 7 not be liable to qisas in the following cases, namely:- a) when an offender is a minor or insane: Provided that, where a person liable to qisas associates with himself in the commission of the offence a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas; (b) when an offender causes death of his child or grandchild, how low-so-ever; and (c) when any wali of the victim is a direct descendant, how low-so-ever, of the offender. Section 307. Cases in which qisas for qatl-i-amd shall not be enforced.- (1) Qisas for qatl-i-amd shall not be enforced in the following cases namely:- a) when the offender dies before the enforcement of qisas; b) when any wali, voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under section 309 or compounds under section 310; and c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender. (2) To satisfy itself that the wali has waived the right of qisas under section 309 or compounded the right of qisas under section 310 voluntarily and without duress the Court shall take down the statement of the wali and such other persons as it may deem necessary on oath and record an opinion that it is satisfied that the waiver or, as the case may be, the composition was voluntary and not the result of any duress. Illustrations (i) A kills Z, the maternal uncle of his son B. Z has no other wali except D the wife of A. D has the right of qisas from A. But if D dies, the right of qisas shall devolve on her son B who is also the son of the offender A. B cannot claim qisas against his father. Therefore, the qisas cannot be enforced. (ii) B kills Z, the brother of her husband A. Z has no heir except A. Here A can claim qisas from his wife B. But if A dies, the right of qisas shall devolve on his son D who is also son of B, the qisas cannot be enforced against B. Section 308. Punishment in qatl-i-amd not liable to qisas, etc. -- (1) Where an offender guilty of qatl-i-amd is not liable to qisas under section 306 or the qisas is not enforceable under clause (c) of section 307, he shall be liable to diyat: Provided that, where the offender is minor or insane, diyat shall be payable either from his property or by such person as may be determined by the Court: Provided further that where at the time of committing qatl- i-amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to twenty-five years as ta'zir. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 8 Provided further that where the qisas is not enforceable under clause (c) of section 307 the offender shall be liable to diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to twenty-five years as ta'zir. (2) Notwithstanding anything contained in sub-section (1), the Court having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to twenty-five years as ta'zir. Section 311. Ta'zir after waiver or compounding of right of qisas in qatl-i-amd:-- Notwithstanding anything contained in section 309 or section 310 where all the walis do not waive or compound the right of qisas, or if the principle of fasad-fil-arz is attracted the Court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term which may extend to fourteen years as ta'zir: Provided that if the offence has been committed in the name or on the pretext of honour, the imprisonment shall not be less than ten years. Explanation.- For the purpose of this section, the expression fasad-fil-arz shall include the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or if the offender is considered a potential danger to the community, or if the offence has been committed in the name or on the pretext of honour. 5. The provisions of section 299, PPC clearly show that in the context of a Qatl-i-amd (intentional murder) Qisas and Ta’zir are simply two different kinds of punishments for such offence and that they are different from conviction for the said offence. As is evident from the provisions of section 304, PPC a conviction for an intentional murder can entail the punishment of Qisas only if the accused person makes before a court competent to try the offence a voluntary and true confession of commission of the offence or the requisite number of witnesses are produced by the prosecution before the trial court and their competence to testify is established through Tazkiya-tul-shahood (scrutiny of the witness before trial of the accused person) as required by Article 17 of the Qanun-e- Shahadat Order, 1984 and this was also so declared by this Court in the case of Abdus Salam v. The State (2000 SCMR 338). The cases of intentional murder other than those fulfilling the Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 9 requirements of section 304, PPC are cases entailing the punishment of Ta’zir, as provided in and declared by section 302(b), PPC, and the provisions relating to the punishment of Qisas are to have no application or relevance to the same. The relevant statutory provisions reproduced above make it abundantly clear to me that in all cases of conviction for the offence of intentional murder the question as to whether the convict is to be punished with Qisas or with Ta’zir is dependant upon the fact whether the conviction is brought about on the basis of proof in either of the forms mentioned in section 304, PPC or not. If the conviction is based upon proof as required by section 304, PPC then the sentencing regime applicable to such convict is to be that of Qisas but if the conviction is based upon proof other than that required by section 304, PPC then the sentencing regime relevant to such convict is to be that of Ta’zir. It is only after determining that the sentencing regime of Qisas is applicable to the case of a convict that a further consideration may become relevant as to whether such convict is to be punished with Qisas under the general provisions of section 302(a), PPC or his case attracts the exceptions to section 302(a) in the shape of sections 306 or 307, PPC in which cases punishments different from that under section 302(a), PPC are provided. I have entertained no manner of doubt that the general provision regarding an intentional murder being punishable through Qisas is section 302(a), PPC carrying only the punishment of death but section 302, PPC is subject to the other relevant provisions of Chapter XVI of the Pakistan Penal Code which provide punishments different from that of death for certain special classes of murderers mentioned therein despite their cases otherwise attracting a punishment of Qisas. Sections 306, 307 and 308, PPC belong to such category of cases which cases are exceptions to the general provisions of section 302(a), PPC but nonetheless all such cases are to be initially proved as cases entailing a punishment of Qisas which punishment is then to be withheld because the offender belongs to a special class for which an exception is created in the matter of his punishment. A plain reading of the provisions of sections 306 and 307, PPC shows, and Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 10 shows quite unmistakably, that the cases covered by those provisions are primarily cases of Qisas but because of certain considerations the punishment of Qisas is not liable or enforceable in those cases. It goes without saying that before considering the question of his punishment in such a case a convict must have incurred the liability or enforceability of the punishment of Qisas against him which punishment is to be withheld from him in view of the considerations mentioned in sections 306 and 307, PPC and that is why some alternate punishments for such offenders are provided for in section 308, PPC. In other words a conviction for an offence entailing the punishment of Qisas must precede a punishment under section 308, PPC and such conviction can only be recorded if proof in either of the forms mentioned in section 304, PPC is available before the trial court and not otherwise. The provisions of section 311, PPC provide another example in this context showing how in a case otherwise entailing a punishment of Qisas the offender may be handed down a punishment of Ta’zir and the said section also falls in Chapter XVI of the Pakistan Penal Code specifying an exception to the general provisions of section 302(a), PPC. It, thus, ought not to require much straining of mind to appreciate that the provisions of and the punishments provided in section 308, PPC are relevant only to cases of Qisas and that they have no relevance to cases of Ta’zir as in the latter category of cases a totally different legal regime of proofs and punishments is applicable. 6. I have not found Kh. Haris Ahmed, ASC to be justified in maintaining that section 306, PPC constitutes a distinct offence and the same entails different punishments under section 308, PPC and, therefore, in a case attracting the provisions of section 306, PPC there is hardly any relevance of sections 302 or 304, PPC. The general scheme of the Pakistan Penal Code shows that a section constituting a distinct offence specifies and contains the essential ingredients of such offence and thereafter either the same section or some following section prescribes the punishment for such offence. A bare look at section 306, PPC, however, shows that Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 11 no constituting ingredient of any offence is mentioned therein and the same only provides that the punishment of Qisas shall not be liable in cases of certain classes of murderers specified therein. According to my understanding that section provides an exception to the general provision regarding liability to the punishment of Qisas contained in section 302(a), PPC and for such an exceptional case a set of different concessional punishments is provided in section 308, PPC. A section dealing only with the issue of a punishment cannot be accepted as a section constituting a distinct offence nor can a section catering for a concession in the matter of a punishment be allowed to be treated as a provision altering the basis or foundation of a conviction. Any latitude or concession in the matter of punishments contemplated by the provisions of sections 306, 307 and 308, PPC and extended to certain special categories of offenders in cases of Qisas mentioned in such provisions ought not to be mistaken as turning those cases into cases of Ta’zir with the same latitude or concession in the punishments. This is the fine point of distinction which needs to be understood with clarity if the distinction between the provisions of section 302(b), PPC on the one hand and the provisions of sections 306, 307 and 308, PPC on the other is to be correctly grasped. The discussion about the relevant case-law to follow will highlight as to how blurring of vision regarding this fine distinction had in the past led to incorrect and confused interpretations and results. 7. The first category of the relevant precedent cases is that wherein all the convicts falling in different categories of persons mentioned in sections 306 and 307, PPC were held to be punishable only under section 308, PPC without even considering whether the cases in issue were cases of Qisas or of Ta’zir. As a matter of fact the first reported case dealing with sections 306, 307 and 308, PPC was itself the case which sowed the seeds of all the monumental confusion which was to follow and that was the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others (PLD 1994 SC 885) decided by a 2-member Bench of this Court. It Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 12 was a case of a person who had killed his wife and at the relevant time the couple had a living minor child. Using some strong expressions in the judgment this Court had castigated the learned court below for not appreciating that such a case did not attract the provisions of section 302, PPC and that the only provisions relevant to such a case were those of sections 306 and 308, PPC. The said judgment was, however, reviewed and reversed by a 5- member Bench of this Court later on in the case of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) and the conviction and sentence of the offender recorded by the trial court under section 302(b), PPC were restored. It was clearly held that the case was not a case of Qisas and, therefore, the punishment mentioned in section 308, PPC was not attracted or applicable to the case. 8. The case of Muhammad Iqbal v. The State (1999 SCMR 403) decided by a 3-member Bench of this Court was a case of a killer of his wife having a living minor child from the matrimony. It was held in that case that the case of such a convict attracted the provisions of section 308, PPC and for reaching that conclusion a reference was made to the case of Khalil-uz-Zaman (supra) the judgment wherein had been reviewed and reversed in case of Faqir Ullah (supra) by a 5-member Bench of this Court. 9. In the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758) a 3-member Bench of this Court had held that a convict of murder who was minor could be punished only under section 308, PPC but in that case also the judgment handed down earlier on by a 5-member Bench of this Court in the case of Faqir Ullah (supra) was not adverted to. 10. The next case in this category of the precedent cases was the case of Naseer Ahmed v. The State (PLD 2000 SC 813) decided by a 3-member Bench of this Court. In that case no discussion was made at all about the case being one of Qisas or of Ta’zir and it was held as a matter of course that the case of a minor convict of murder attracted the provisions of section 308, PPC. The earlier Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 13 judgment rendered by a 5-member Bench of this Court in the case of Faqir Ullah (supra) had, obviously, escaped notice. 11. The case next in line was that of Dil Bagh Hussain v. The State (2001 SCMR 232) decided by a 3-member Bench of this Court. That was the case of a person who had killed his son-in-law who was survived by the killer‟s daughter and her son who were wali of the deceased as well as of the killer. For holding that such a case attracted sections 306 and 308, PPC and not section 302, PPC this Court had relied upon the case of Khalil-uz-Zaman (supra) without even noticing that the judgment in the said case had already been reviewed and reversed by a 5-member Bench of this Court in the case of Faqir Ullah (supra). 12. The case to follow was that of Muhammad Abdullah Khan v. The State (2001 SCMR 1775) decided by a 3-member Bench of this Court and that case was also a case of a killer of his wife having a living minor child from the wedlock. In that case too applicability of sections 306 and 308, PPC to the case was taken for granted without any discussion while placing exclusive reliance upon the case of Khalil-uz-Zaman (supra) without having been apprised of the fact that the judgment in the said case had already been reviewed and reversed by a 5-member Bench of this Court in the case of Faqir Ullah (supra). 13. The next case was that of Amanat Ali v. Nazim Ali and another (2003 SCMR 608) decided by a 3-member Bench of this Court wherein no discussion was made regarding the case being one of Qisas or of Ta’zir and it was declared as a matter of course that the case of a minor convict of murder attracted the provisions of section 308, PPC and not those of section 302(b), PPC. Obviously, the judgment handed down by a 5-member Bench of this Court in the case of Faqir Ullah (supra) was not brought to the notice of the Court on that occasion. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 14 14. The last of this category of cases was the case of Muhammad Ilyas v. The State (2008 SCMR 396) decided by a 3-member Bench of this Court. Alas, in that case too no discussion was made in respect of the case being one of Qisas or of Ta’zir and it was taken for granted and declared as a matter of course that the case of a murderer of his minor daughter attracted the provisions of section 308, PPC and not those of section 302(b), PPC. Once again, and unfortunately so, the judgment handed down by a 5-member Bench of this Court in the case of Faqir Ullah (supra) was not even adverted to or brought under consideration before reaching the decision that was reached. 15. The second category of the relevant precedent cases is that wherein it had categorically been concluded and held by this Court that the provisions of sections 306, 307 and 308, PPC are attracted only to cases of Qisas and that the said provisions have no relevance to a case of Ta’zir. The first case of this category of cases was the case of Muddassar alias Jimmi v. The State (1996 SCMR 3) wherein a 2-member Bench of this Court had observed as follows: “31. Ostensibly section 304, P.P.C. plays pivotal role in determining fate of persons found guilty for murder “Qatl-i-Amd” under section 302, P.P.C.:-- (i) in cases where evidence as envisaged under section 304 P.P.C. is proved an accused shall be punished for offence under section 302, part (a) and sentenced to Qisas. (ii) In case where evidence as required under section 304, P.P.C. is brought on the record but sentence of Qisas cannot be applied because of bar imposed under section 306, P.P.C. It reads:-- --------------------- (iii) But where the evidence is available but does not fulfil the condition laid down under section 304, P.P.C. the person may be convicted and sentenced for Ta‟zir under section 302, part (b) to death or imprisonment for life.” 16. The case to follow was the case of Faqir Ullah v. Khalil-uz- Zaman and others (1999 SCMR 2203) mentioned above which case was decided by a 5-member Bench of this Court. Khalil-uz-Zaman convict in that case had killed his wife who was survived by a living minor child from the marriage and in the earlier round a 2-member Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 15 Bench of this Court had declared that the convict‟s sentence of death was not warranted because his case was covered by the provisions of section 308, PPC and had remanded the case to the High Court (PLD 1994 SC 885). Subsequently Faqir Ullah complainant‟s review petition was accepted by a 5-member Bench of this Court, the judgment in the case of Khalil-uz-Zaman was reviewed and reversed and the conviction and sentence of Khalil- uz-Zaman recorded by the trial court for an offence under section 302(b), PPC were restored. It was clearly held that the case was not a case of Qisas and, therefore, the punishment mentioned in section 308, PPC was not attracted or applicable to the case. It is of critical importance to mention here that the numerical strength of the said Bench of this Court was, and still remains to be, greater and larger than that of any other Bench of this Court deciding all the other cases falling in both the above mentioned categories of the precedent cases on the subject under consideration. I have already mentioned above that in none of the cases falling in the first category of cases referred to above this judgment rendered by a 5-member Bench of this Court had been referred to or discussed which fact had substantially impaired the probative, persuasive or precedent value of the judgments delivered in those cases. 17. The next case in this category of cases was the case of Muhammad Afzal alias Seema v. The State (1999 SCMR 2652) which had been decided by a 3-member Bench of this Court. In that case the convict of murder was a minor but after a discussion of the legal position it had been declared by this Court that the said case was not one of Qisas, sections 306 and 308, PPC did not stand attracted to a case of Ta’zir and, thus, the convict was liable to be convicted and sentenced under section 302(b), PPC. 18. Thereafter in the case of Muhammad Saleem v. The State (2001 SCMR 536) the plea of a convict of murder regarding reduction of his sentence of death on the ground of his minority and the case against him attracting the provisions of section 308, Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 16 PPC was rejected by a 3-member Bench of this Court by observing that “Moreover, even otherwise the said provisions would not apply as the penalty of death in this case has not been imposed as Qisas but has been awarded as Ta‟zir.” 19. The case to follow was that of Umar Hayat v. Jahangir and another (2002 SCMR 629) and the same had been decided by a 3- member Bench of this Court. In that case too the convict of murder was a minor and after discussing the provisions of section 306, PPC this Court had gone on to record his conviction and sentence under section 302(b), PPC because the case was one of Ta’zir and not that of Qisas. 20. The later case of Muhammad Akram v. The State (2003 SCMR 855) decided by a 3-member Bench of this Court was a case of a killer of his wife who was survived by living minor children from the matrimony. The issue at hand had received particular attention of this Court in that case and it had been observed in that regard as follows: “The next contention of the learned counsel for the petitioner related to the quantum of sentence. According to the learned counsel petitioner being Wali of the deceased would be entitled to the benefit of section 308, P.P.C., therefore, the conviction and sentence of the petitioner under section 302(b), P.P.C. was illegal. In the alternative, learned counsel argued that in any case the immediate cause of occurrence being not known, it would not be a case of extreme penalty. The first contention of the learned counsel relating to the application of section 308, P.P.C. by virtue of section 306, P.P.C. is without any substance, sections 306, 307 and 308, P.P.C. would only attract in the cases of Qatl-i-Amd which are liable to Qisas under section 302(a), P.P.C. and not in the cases in section 302 (b) and (c), P.P.C. For the purpose of removing the confusion and misconception of law on the subject the above provision must be understood in the true spirit. Section 306, P.P.C. provides that Qatl-i-Amd shall not be liable to Qisas in certain cases mentioned therein and thus it is clear that in such cases the punishment of Qisas will remain inoperative but there is no such exception in a case of Qatl-i-Amd punishable as Tazir. Under section 307, P.P.C. the sentence of Qisas for Qatl-i- Amd cannot be enforced in the cases referred therein and therefore, the exceptions mentioned in sections 306 and 307, P.P.C. are confined only to the cases liable to Qisas and not Tazir. Under section 308, P.P.C. it is provided that where an offender guilty of Qatl-i-Amd is not liable to Qisas in terms of section 306, P.P.C., the sentence of Qisas will not be enforced against him as provided under section 307, P.P.C., and he shall be liable to Diyat Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 17 and may also be punished with imprisonment which may extend to a term of 14 years as Tazir. The above provision of law can be made applicable only if the essential conditions contained therein are available in a case which is liable to Qisas, and not in the cases of Qatl-i-Amd punishable as Tazir. The petitioner was tried for the charge of Qatl-i-Amd under section 302(b), P.P.C. and was convicted and sentenced to death as Tazir, therefore, he would not be entitled to the benefit of section 308, P.P.C. and was rightly punished under section 302(b), P.P.C. It is not permissible to extend the benefit of provisions of section 308, P.P.C. in the cases of Qatl-i-Amd which are punishable under section 302(b) and (c), P.P.C. as Tazir and therefore, the extension of such benefit to cases falling under section 302(a) and 302(c), P.P.C. would amount to grant the licence of killing innocent persons by their Walies.” (underlining has been supplied for emphasis) 21. In the ensuing case of Ghulam Murtaza v. The State (2004 SCMR 4) the convict of murder was a minor and a 3-member Bench of this Court had not felt any hesitation in concluding that section 308, PPC was attracted only to a case of Qisas and not to a case of Ta’zir. 22. The subsequent case of Nasir Mehmood and another v. The State (2006 SCMR 204) was a case of a murderer of his wife who had been survived by living minor children from the wedlock. A 3- member Bench of this Court was pleased to hold that the said case was a case of Ta’zir and, therefore, the provisions of section 306, PPC had no application to such a case. 23. An elaborate discussion regarding the issue at hand was later on made by a 3-member Bench of this Court in the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111) and an effort was made to remove any “ambiguity” or “misconception” in that respect. The case was of a convict of murder who was a minor and it had been concluded in no uncertain terms that sections 306, 307 and 308, PPC have no application in cases of Ta’zir. It was observed as follows: “6. The sole question for determination in the present appeal, relates to the scope of section 308, P.P.C. and for better appreciation of the proposition, we deem it proper to examine the relevant provisions in Chapter XVI of P.P.C., along with the definition of "Adult”, "Qatl-e-Amd", "Qisas" and "Tazir" to Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 18 ascertain correct legal position regarding the application of sections 306 and 307, P.P.C. in respect of the punishment of Qisas and Tazir for Qatl-i-Amd under section 302, P.P.C. "299. (a) "Adult" means a person who has attained the age of eighteen years; --------------------- (k) "Qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-i-amd in exercise of the right of the victim or a Wali. (l) "Tazir" means punishment other than qisas, diyat, arsh or daman. " Qatl-i-Amd has been defined in section 300, P.P.C. as under:- "300. Qatl-i-Amd.--whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd." The punishment of Qatl-i-Amd liable to qisas is provided in section 302(a), P.P.C. whereas Tazir under section 302(b) and (c), P.P.C. as under:-- "302. Punishment of Qatl-i-Amd.--whoever commits Qatl-i-Amd shall subject to the provisions of this chapter, be--- (a) Punished with death as qisas; (b) Punished with death or imprisonment for life as tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) Punished with imprisonment of either description for a term which may extend to twenty five years, where according to the Injunctions of Islam the punishment of qisas is not applicable." 7. In sections 306 and 307, P.P.C. certain exceptions have been created to deal with the cases in which Qatl-i-Amd is not liable to qisas or the punishment of qisas is not enforceable. In the cases falling within the purview of sections 306 and 307, P.P.C., the offender is liable to the punishment of diyat under section 308, P.P.C. and having regard to the facts and circumstances of the case, the Court may in addition to the punishment of diyat, also punish him with imprisonment of either description which may extend to 14 years as tazir. Sections 306 to 308, P.P.C. provide as under:-- "306. Qatl-i-Amd not liable to qisas.--Qatl-i-Amd shall not be liable to qisas in the following cases, namely:-- (a) When an offender is a minor or insane: Provided that, where a person. liable to qisas Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 19 associates himself in the commission of the offence with a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas; b) when an offender causes death of his child or grandchild, howlowsoever; and (c) when any wali of the victim is a direct descendant, howlowsoever, of the offender. 307. Cases in which qisas for Qatl-i-Amd shall not be enforced.-- qisas for Qatl-i-Amd shall not be enforced in the following cases, namely:-- (a) when the offender dies before the enforcement of qisas; (b) when any wali voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under section 309 or compounds under section 310; and (c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender. 308. Punishment in Qatl-i-Amd not liable to qisas, etc.- -(1) where an offender guilty of Qatl-i-Amd is not liable to qisas under section 306 or the qisas is not enforceable under clauses (c) of section 307, he shall be liable to diyat: Provided that, where the offender is minor or insane, diyat shall be payable either from his property or, by such person as may be determined by the Court: Provided further that, where at the time of committing Qatl-i-Amd the offender being minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir: Provided further that, where the qisas is not enforceable under clause (c) of section 307, the offender shall be liable to diyat only if there is any wali other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as tazir. (2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as tazir." Section 338-F, P.P.C. provides that in the matter of interpretation and application of provisions of The Chapter XVI, P.P.C. of the offences relating to the human body and qisas and diyat, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of Holy Prophet Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 20 (p.b.u.h.). 8. The punishment for Qatl-i-Amd as qisas in the command of Holy Qur'an is prescribed in section 302(a), P.P.C. whereas the sentence of death as tazir is provided under section 302(b) and combined study of the provisions of law referred above, would clearly show that section 308, P.P.C. has limited scope to the extent of cases falling within the ambit of section 306, P.P.C. and 307, P.P.C. in which either an offender of Qatl-i-Amd is not liable to qisas or the punishment of qisas is not enforceable under law. The punishment of qisas is different to the punishment of tazir and the two kinds of punishments cannot be mixed together for the purpose of sections 306 and 307, P.P.C. to attract the provisions of section 308, P.P.C. The punishment of death for Qatl-i-Amd liable to qisas as provided under section 302(a), P.P.C. can only be awarded if the evidence in terms of section 304, P.P.C. is available and in a case of Qatl-i-Amd in which such evidence is not available, the Court may, having regard to the facts and circumstances of the case, convict an offender of Qatl-i- Amd under section 302(b), P.P.C. and award him the sentence of death as tazir. In a case of Qatl-i-Amd in which the offender is liable to qisas but by virtue of prohibition contained in section 306, P.P.C. he cannot be awarded punishment of death under section 302(a), P.P.C. as qisas or the punishment of qisas is not enforceable under section 307(c), P.P.C. he shall be liable to the punishment of diyat under section 308, P.P.C. and may also be awarded the punishment of imprisonment as provided therein but in a case in which the offender is awarded punishment under section 302(b), P.P.C. as tazir, the provision of section 308, P.P.C. cannot be pressed into service for the purpose of punishment. Section 304, P.P.C. provides as under:-- "304. Proof of Qatl-i-Amd liable to qisas, etc.--(1) Proof of Qatl-i-Amd liable to qisas shall be in any of the following forms, namely:-- (a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b) by the evidence as provided in Article 17 of the Qanun- e-Shahadat, 1984 (P.O. No.10 of 1984). (2) The provisions of subsection (1) shall, mutatis mutandis, apply to hurt liable to qisas." 9. The ambiguity regarding the application of section 308, P.P.C. in all cases of Qatl-i-Amd in which the offender cannot be awarded the punishment under section 302(a), P.P.C. is removed in the light of above discussion as careful examination of the different provisions of law referred hereinbefore, would clearly show that in the cases in which the offender is not liable to qisas for the reasons given in section 306, P.P.C. or the punishment of qisas cannot be enforced under section A 307(c), P.P.C. section 308, P.P.C. is attracted but in the cases in which the punishment of death is awarded under section 302(b), P.P.C. as tazir this section is not applicable. The right of qisas means the right of causing similar hurt on the same part of body and in case of death, the offender will be done to death in the manner he committed death of his fellow person and thus the punishment of death as qisas provided under section 302(a), P.P.C. cannot be awarded unless the evidence in terms of section 304, P.P.C. is available and in a case of Qatl-i-Amd in which the punishment of qisas cannot be awarded, the Court may on proving charge Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 21 against the offender, having regard to the facts and circumstances of the case, award him the punishment of death or life imprisonment as tazir under section 302(b), P.P.C. In view of the above distinction, a minor offender of Qatl-i-Amd may in case of punishment of tazir, avail the benefit of minority in the matter of sentence under section 302(b), P.P.C. but cannot claim the benefit of section 308, P.P.C. 10. This Court in Sarfraz v. State, referred hereinbefore, has held that a minor accused who has committed an offence of Qatl- i-Amd under influence of others cannot be awarded sentence of death as qisas under section 302(a), P.P.C. This is settled law that provisions of sections 306 to 308, P.P.C. attract only in the cases of Qatl-i-Amd liable to qisas under section 302(a), P.P.C. and not in the cases in which sentence for Qatl-i-Amd has been awarded as tazir under section.302(b),P.P.C. The difference of punishment for Qatl-i-Amd as qisas and tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-Amd, keeping in view the circumstances of the case, may award the offender the punishment of death or imprisonment of life by way of tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMR 4, Faqir Ullah v. Khalil-uz-Zaman 1999 SCMR 2203, Muhammad Akram v. State 2003 SCMR 855 and Abdus Salam v. State 2000 SCMR 338. 11. The careful examination of the provisions referred above, would clearly show that section 308, P.P.C. is attracted only in the cases liable to qisas in which by virtue of the provisions of sections 306 and 307, P.P.C., the punishment of qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as tazir. In the light of law laid down by this Court in the judgments referred above, we are of the considered view that in the facts of the present case, section 308, P.P.C. is not attracted for the reasons firstly that respondent has not been able to bring on record any legal evidence to the satisfaction of the law that at the time of occurrence, he was minor and secondly, in absence of the evidence in terms of section 304, P.P.C. to bring the case within the ambit of section 302(a), P.P.C. for the purpose of punishment of qisas, the respondent was awarded sentence of death by the trial Court under section 302(b), P.P.C. as tazir. There is misconception of law that the provision of section 308, P.P.C. is also applicable in the cases in which punishment of death is awarded as tazir whereas the correct legal position is that this special provision is invokeable only in the cases in which either offender is not liable to qisas or qisas is not enforceable. This is against the spirit of law that in all cases of Qatl-i-Amd in which sentence of death is awarded either as qisas under section 302(a) or as tazir under section 302(b), P.P.C., an offender who at the time of committing the offence, was less than 18 years of age shall be liable to the punishment provided under section 308, P.P.C. rather the true concept is that section 308, P.P.C. will operate only in the cases which fall within the ambit of sections 306 and 307, P.P.C. in which either offender is not liable to qisas or Qisas is not enforceable.” (underlining has been supplied for emphasis) Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 22 24. Thereafter came the case of Abdul Jabbar v. The State and others (2007 SCMR 1496) wherein a 3-member Bench of this Court concluded in the following terms: “13. A bare look at the afore-referred provision of law would indicate that Qatl-i-Amd is punishable with death as Qisas if the proof in either of the forms specified in section 304, P.P.C. is available. In absence of such a proof a Qatl-i-Amd can be visited “with punishment of death or imprisonment for life as Ta‟zir having regard to the facts and circumstances of the case under section 302(b), P.P.C.” In the instant case as admittedly the evidence led did not satisfy the requirement of proof as required in section 304, P.P.C. the case fell within the ambit of section 302(b), P.P.C. and the respondents were liable to be „punished with death or imprisonment for life as Ta‟zir‟.” 25. The case to follow was that of Tauqeer Ahmed Khan v. Zaheer Ahmad and others (2009 SCMR 420) which was also decided by a 3-member Bench of this Court. It was again a case of a convict of murder who was a minor. Explaining “the true concept” it was held by this Court in categorical terms that the provisions of section 308, PPC are attracted only in cases of Qisas and not in cases of Ta’zir. It was observed as under: “10. A careful examination of the different provisions of law would show that section 308, P.P.C. is attracted only in the cases liable to "Qisas" in which by virtue of the provisions of sections 306 and 307, P.P.C., the punishment of "Qisas" cannot be imposed or enforced and not in the cases in which punishment is awarded as "Tazir". In the light of law laid down by this Court, we are of the view that in the facts of the present case, section 308, P.P.C. is not attracted as respondent has not been able to bring on record any legal evidence to the satisfaction of the law that at the time of occurrence, he was minor and liable to punish provided under section 308, P.P.C., rather the true concept is that section 308, P.P.C. will operate only in the cases which fall within the ambit of sections 306 and 307, P.P.C. in which either offender is not liable to "Qisas" is not enforceable.” (underlining has been supplied for emphasis) 26. The next case of Samiullah and others v. Jamil Ahmed and 2 others (PLJ 2009 SC 243) was also a case of a convict of murder who was a minor. After some discussion of the legal issue a 3- member Bench of this Court concluded in that case that the provisions of section 308, PPC did not stand attracted to the case Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 23 because it was a case of Ta’zir and not a case of Qisas. The following observations were made: “19. The trial Court has convicted the appellant under Section 308 PPC. A minute study of the said section would show that it is attracted only in the cases liable to “Qisas” in which by virtue of provisions of Sections 306 & 307 PPC, the punishment of “Qisas” cannot be imposed or enforced and not in the cases in which punishment is awarded as “Ta’zir”. Reference can be made in this context to the cases of Ghulam Murtaza v. The State (2004 SCMR 4) and Iftikhar-ul-Hassan v. Israr Bashir (PLD 2007 SC 111). Even otherwise, Section 304 PPC contemplated “proof of Qatl-i-Amd” liable to Qisas, which is reproduced as under:- “304. Proof of Qatl-i-Amd liable to qisas, etc.: (1) Proof of Qatl-i-Amd liable to qisas shall be in any of the following forms, namely:- (a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984). (2) The provisions of subsection (1) shall, mutatis mutandis, apply to hurt liable to qisas.” 20. The facts of the instant case, when put to the test of “proof of Qatl-i-Amd liable to Qisas” as provided in the above referred provision of law, and the dictum laid down by this Court not fulfilling the required criteria for the purpose, neither the accused had made before the Court of competent jurisdiction a voluntary and true confession nor Article 17 of the “Qanun-e-Shahadat” Order, 1984, applied. The High Court has rightly observed that the appellant is not liable to conviction under Section 302(a) PPC, for want of application of Section 304 PPC.” 27. The case of Ahmad Nawaz and another v. The State (2011 SCMR 593) happens to be the last reported case of the second category of the precedent cases on the subject. In that case too a 3-member Bench of this Court had unambiguously held that sections 306, 307 and 308, PPC have no application to cases of Ta’zir and while holding so reference had been made to the earlier judgments of this Court delivered in the cases of Iftikhar-ul- Hassan, Ghulam Murtaza, Faqir Ullah, Muhammad Akram and Abdus Salam (supra). 28. A survey of all the precedent cases available on the subject so far clearly shows that in the first category of cases mentioned above the provisions of section 308, PPC had been applied to the Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 24 cases of Ta’zir as well without seriously considering the apparent distinction between Qisas and Ta’zir cases and also that the declaration of law to the contrary made by a 5-member Bench of this Court in the case of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) was never adverted to in those cases. The survey further reveals that the 5-member Bench of this Court deciding the case of Faqir Ullah (supra) still remains to be the largest Bench of this Court deciding the legal question involved and, thus, on account of its numerical strength the judgment passed by that Bench still holds the field overshadowing, if not eclipsing, all the other judgments rendered on the subject by the other Benches of lesser numerical strength. Another highlight of the survey conducted above is that on a number of earlier occasions this Court had tried to remove the “confusion”, “ambiguity” and “misconception” engulfing the legal issue under discussion but unfortunately uncertainty and misunderstanding in this regard still subsists and this is why we have now been called upon to pronounce upon the matter. 29. After hearing the learned counsel for the parties intently, examining all the relevant statutory provisions minutely and going through all the relevant precedent cases exhaustively I have found, as already observed above, that in view of the provisions of section 304, PPC a case is one of Qisas only if the accused person makes before a court competent to try the offence a voluntary and true confession of commission of the offence or the requisite number of witnesses are produced by the prosecution before the trial court and their competence to testify is established through Tazkiya-tul- shahood (scrutiny of the witness before trial of the accused person) as required by Article 17 of the Qanun-e-Shahadat Order, 1984. I also find that the cases not fulfilling the requirements of section 304, PPC are cases of Ta’zir and the provisions relating to Qisas have no relevance to the same. It is also evident to me that the cases covered by the provisions of sections 306 and 307, PPC are primarily cases of Qisas but because of certain considerations the punishment of Qisas is not liable or enforceable in those cases and Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 25 instead some alternate punishments for such offenders are provided for in section 308, PPC. I, thus, feel no hesitation in concluding that the provisions of and the punishments provided in section 308, PPC are relevant only to cases of Qisas and that they have no relevance to cases of Ta’zir and also that any latitude or concession in the matter of punishments contemplated by the provisions of sections 306, 307 and 308, PPC and extended to certain categories of offenders in Qisas cases mentioned in such provisions ought not to be mistaken as turning those cases into cases of Ta’zir with the same latitude or concession in the punishments. Upon a careful consideration of the legal issue at hand I endorse the legal position already declared by this Court in the second category of the precedent cases referred to above as on the basis of my own independent assessment and appreciation I have also reached the same conclusions as were reached in the said cases. I, therefore, declare that Qisas and Ta’zir are two distinct and separate legal regimes which are mutually exclusive and not overlapping and they are to be understood and applied as such. I expect that with this categorical declaration the controversy at hand shall conclusively be put to rest. 30. It needs to be mentioned here that the provisions of section 302(c), PPC have also remained problematic in the past and their interpretation has also not been free from controversy. The interpretation placed upon the said provisions by one Bench of this Court in the case of Abdul Haq v. State (PLD 1996 SC 1) was disagreed with by another Bench of this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) and later on the interpretation advanced in the case of Ali Muhammad (supra) was followed by this Court in the cases of Abdul Karim v. The State (2007 SCMR 1375) and Azmat Ullah v. The State (2014 SCMR 1178). According to my understanding the provisions of section 302(c), PPC are relevant to those acts of murder which are committed in situations and circumstances which do not attract the sentence of Qisas and I further understand that sections 306 and 307, PPC are person specific whereas section 302(c), PPC Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 26 relates to certain situations and circumstances wherein a murder is committed and according to the Injunctions of Islam the punishment of Qisas is not applicable to such situations and circumstances. In the case of Ali Muhammad (supra) it had been declared by this Court that such situations and circumstances are the same which were contemplated by the Exceptions to the erstwhile section 300, PPC and I tend to agree with the said view. It had been observed by this Court in the case of Ali Muhammad that “28. --------------------- It seems to me, therefore, that the class of cases to which clause (c) of section 302 applies is different from the cases enumerated in section 306 and punishable under section 308 and that clause (c) of section 302 is not limited to cases enumerated in section 306 and punishable under section 308.” Without dilating upon the scope and applicability of the provisions of section 302(c), PPC any further I leave the matter to be discussed in detail in some other appropriate case as while hearing the present matters this issue has cropped up only incidentally and I have not received adequate and proper assistance in the present proceedings so as to comfortably resolve the same. One thing may, however, be clarified here that section 302(c), PPC and section 338-F, PPC, both falling in Chapter XVI of the Pakistan Penal Code, speak of the Injunctions of Islam and it must never be lost sight of that by virtue of the provisions of Article 203G of the Constitution of the Islamic Republic of Pakistan, 1973 this Court, or even a High Court, has no jurisdiction to test repugnancy or contrariety of any existing law or legal provision to the Injunctions of Islam as laid down in the Holy Qur‟an and Sunnah and such jurisdiction vests exclusively in the Federal Shariat Court and the Shariat Appellate Bench of this Court. It, thus, may not be permissible for this Court, in the context of the present set of cases, to compare two or more provisions falling in Chapter XVI of the Pakistan Penal Code for holding or declaring as to which provision is in accord with the Injunctions of Islam and which provision is not. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 27 31. There are certain other issues relevant to cases of Qisas and Ta’zir and I take this opportunity to clarify the legal position in respect of such issues as well. The matter of compromise in cases of murder has also remained subject of some controversy before this Court in the past but the legal position in that respect has now been settled and I would like to restate the settled legal position so as to remove all doubts. Sections 309, 310 and 338-E, PPC and section 345, Cr.P.C. are relevant in this respect and the same are reproduced below: 309. Waiver –Afw of qisas in qatl-i-amd.- (1) In the case of qatl-i-amd an adult sane wali may, at any time and without any compensation, waive his right of qisas: Provided that the right of qisas shall not be waived-- (a) where the Government is the wali; or (b) where the right of qisas vests in a minor or insane. (2) Where a victim has more than one wali, any one of them may waive his right of qisas: Provided that the wali who does not waive the right of qisas shall be entitled to his share of diyat. (3) Where there are more than one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim. (4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender. 310. Compounding of qisas (Sulh) in qatl-i-amd.- (1) In the case of qatl-i-amd, an adult sane wali may, at any time on accepting badal-i-sulh, compound his right of qisas: Provided that a female shall not be given in marriage or otherwise in badal-i-sulh. (2) Where a wali is a minor or an insane, the wali of such minor or insane wali may compound the right of qisas on behalf of such minor or insane wali: Provided that the value of badal-i-sulh shall not be less than the value of diyat. (3) Where the Government is the wali, it may compound the right of qisas: Provided that the value of badal-i-sulh shall not be less than the value of diyat. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 28 (4) Where the badal-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat. (5) Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali. Explanation.- In this section badal-i-sulh means the mutually agreed compensation according to Shariah to be paid or given by the offender to a wali in cash or in kind or in the form of movable or immovable property. 338-E. Waiver or compounding of offences.- (1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898, all the offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award ta‟zir to the offender according to the nature of the offence: Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. (2) All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the Appellate Court: Provided further that where qatl-i-amd or any other offence under this Chapter has been committed as an honour crime, such offence shall not be waived or compounded without consent of the Court and subject to such conditions as the Court may deem fit having regard to the facts and circumstances of the case. 345. Compounding of offences.-(1) --------------------- (2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table: Offences Sections of the Pakistan Penal Code Persons by whom offence may be compounded Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 29 This Court has already declared that section 309, PPC pertaining to waiver (Afw) and section 310, PPC pertaining to compounding (Sulh) in cases of murder are relevant only to cases of Qisas and not to cases of Ta’zir and a reference in this respect may be made to the cases of Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307), Niaz Ahmad v. The State (PLD 2003 SC 635) and Abdul Jabbar v. The State and others (2007 SCMR 1496). In the said cases it had also been clarified by this Court that in cases of Ta’zir the matter of compromise between the parties is governed and regulated by the provisions of section 345(2), Cr.P.C. read with section 338-E, PPC. In the same cases it had further been explained and clarified by this Court that a partial compromise may be acceptable in cases of Qisas but a partial compromise is not acceptable in cases of Ta’zir. The cases of Manzoor Hussain and 4 others v. The State (1994 SCMR 1327), Muhammad Saleem v. The State (PLD 2003 SC 512), Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others (PLD 2003 SC 547), Niaz Ahmad v. The State (PLD 2003 SC 635), Riaz Ahmad v. The State (2003 SCMR 1067), Bashir Ahmed v. The State and another (2004 SCMR 236) and Khan Muhammad v. The State (2005 SCMR 599) also throw sufficient light on such aspects relating to the matter of compromise. It may be true that compounding of an offence falling in Chapter XVI of the Pakistan Penal Code is permissible under some conditions both in cases of Qisas as well as Ta’zir but at the same time it is equally true that such compounding is regulated by separate and distinct provisions and that such limited common ground between the two does not obliterate the clear distinction otherwise existing between the two separate legal regimes. applicable Qatl-i-amd 302 By the heirs of the victims other than the accused or the convict if the offence has been committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs or practices Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 30 32. The provisions of section 311, PPC had also posed some difficulty in the past and had remained a subject of controversy before different courts of the country but that difficulty has now dissipated and the controversy now stands resolved by this Court. Section 311, PPC is reproduced below: Section 311. Ta'zir after waiver or compounding of right of qisas in qatl-i-amd:-- Notwithstanding anything contained in section 309 or section 310 where all the walis do not waive or compound the right of qisas, or if the principle of fasad-fil-arz is attracted the Court may, having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment for life or imprisonment of either description for a term which may extend to fourteen years as ta'zir: Provided that if the offence has been committed in the name or on the pretext of honour, the imprisonment shall not be less than ten years. Explanation.- For the purpose of this section, the expression fasad-fil-arz shall include the past conduct of the offender, or whether he has any previous convictions, or the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or if the offender is considered a potential danger to the community, or if the offence has been committed in the name or on the pretext of honour. In the cases of Manzoor Hussain and 4 others v. The State (1994 SCMR 1327), Khan Muhammad v. The State (2005 SCMR 599), Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111) and Iqrar Hussain and others v. The State and another (2014 SCMR 1155) this Court has already declared that the provisions of section 311, PPC are relevant to and can be pressed into service in cases of Qisas only and not in cases of Ta’zir. 33. Having declared the correct legal position relevant to the cases of Qisas and Ta’zir I direct the office of this Court to fix the titled appeals and the connected petition for hearing before appropriate Benches of the Court for their decision on the basis of their respective merits in the light of the law declared through the present judgment. (Asif Saeed Khan Khosa) Judge Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 31 I have gone through the exhaustive judgment authored by my learned brother Mr. Justice Asif Saeed Khan Khosa. I, with utmost respect for my brother and his view and for the reasons recorded separately, don‟t tend to agree therewith. (Ejaz Afzal Khan) Judge I have the privilege of going through the opinions rendered by my learned Brothers i.e. Hon‟ble Mr. Justice Asif Saeed Khan Khosa and Hon‟ble Mr. Justice Ejaz Afzal Khan. Though both are elaborate, but I respectfully agree with the opinion rendered by Hon‟ble Mr. Justice Ejaz Afzal Khan. (Ijaz Ahmed Chaudhry) Judge I agree with main judgment of my lord brother Mr. Justice Asif Saeed Khan Khosa but with my own additional reasons. (Dost Muhammad Khan) Judge I agree with Hon‟ble Justice Asif Saeed Khan Khosa. However, I have also added a separate note. (Qazi Faez Isa) Judge Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 32 JUDGMENT OF THE COURT By a majority of three against two the opinion recorded by Asif Saeed Khan Khosa, J. is declared to be the judgment of the Court. Judge Judge Judge Judge Judge Announced in open Court at Islamabad on: 15.01.2015 Judge Islamabad 15.01.2015 Approved for reporting. Arif Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 33 EJAZ AFZAL KHAN, J.- I have gone through the detailed judgment authored by my brother Mr. Justice Asif Saeed Khan Khosa. Though the judgment is elaborate, almost exhaustive on many aspects of the subject but I don’t tend to agree therewith because it appears to be against the letter and spirit of the relevant provisions of the PPC and their legislative scheme. My reasons in this behalf run as follows :- 2. The word “qisas” as defined in section 299(K) PPC means “punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl-i-amd, in exercise of the right of the victim or a wali. According to Arabic English Lexicon compiled by Edward William Lane, the word qisas means “return of evil for evil”. It also means retaliation”. Another word, close in meaning to the word qisas is retribution which means a punishment inflicted in return for a wrong and thus distinctively stresses the operation of strict justice by administering merited punishment. The word “tazir” as defined in section 299(l) PPC means punishment other than qisas. But literally it means chastisement. Punishment of tazir is not prescribed by the Holy Quran and Sunnah. What punishment, in the circumstances of a case, was to be awarded, in the first instance lay with the discretion of the Court; with the passage of time exercise of such discretion was structured but at the Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 34 end of day discretion was replaced by the codified law. However, there are no two opinions on the point that punishment of tazir cannot be as stern and stringent as that of qisas. 3. Section 304 PPC sets out the mode for proof of qatl-i-amd liable to qisas. Section 302(a) provides punishment for qatl-i-amd liable to qisas. Section 302(b) provides punishment for qatl-i-amd liable to tazir when proof in either of the forms specified in section 304 PPC is not available. This is not the end, because it is not the form of proof alone which takes qatl-i-amd outside the pail of qisas. Section 302 (c) PPC deals with qatl-i-amd where according to the injunctions of Islam punishment of qisas is not applicable. There is another class of cases where qatl-i-amd shall not be liable to qisas in view of the circumstances mentioned in clauses (a), (b) and (c) of section 306 PPC. There is yet another class of cases where qisas shall not be enforceable in view of the circumstances mentioned in clauses (a), (b) and (c) of section 307 PPC. 4. Section 308 deals with punishments falling within the purview of section 306 and 307 (c) PPC. In case we subscribe to the view that provisions contained in section 306 and 308 PPC apply to the cases of qisas only, it is apt to give Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 35 rise to an anomaly. The anomaly is that if sentence in qatl-i- amd liable to qisas, despite stern and stringent forms of proof, can be lenient in view of the circumstances mentioned in section 306 and 308 PPC why can’t it be lenient in view of the same circumstances in the case of tazir notwithstanding the forms of proof and sentence provided thereunder are comparatively less stern and stringent. At no stage, I say so with utmost respect, an effort was made to resolve this anomaly in the light of the relevant provisions of the statute. 5. Before appreciating the true import of section 306 PPC and legislative intent behind it, a look there at would be necessary and useful, which reads as under :- “306. Qatl-i-amd not liable to qisas. _ Qatl-i-amd shall not be liable to qisas in the following cases, namely : a) when an offender is a minor and insane; Provided that, where a person liable to qisas associates with himself in the commission of the offence a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas; b) when an offender causes death of his child or grand child; how low-so-ever; and c) when any wali of the victim is a direct descendant, how low- so-ever, of the offender.” This section when read in its correct perspective leaves little doubt that it is a continuation of section 302 PPC. Clauses Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 36 (a), (b) and (c) of this section like clauses (b) and (c) of section 302 PPC state the circumstances taking qatl-i-amd out of the pail of qisas. However, according to proviso to clause (a) of the section the offender shall not be exempted from qisas if he, with the intention to save himself from qisas, associates with himself in the commission of an offence a person not liable to qisas. Legislative intent behind the words used in clause (a), (b) and (c) of the section being clear and unambiguous, does not admit of any other interpretation. Restricting the application of this section to qisas only would, thus, amount to reading down the above mentioned clauses without any interpretative justification. Above all else what has been ignored is that qatl-i-amd committed by a minor or insane, father or grandfather of the child or by a direct descendent of the victim is not liable to qisas from day one. Circumstances stated in clause (a), (b) and (c) of the section being inherent in the offender and existent at the time of commission of the crime are independent of the forms of proof. Such case has to be dealt with independently without being linked with the forms of proof. It doesn’t appeal to mind that qatl-i-amd committed by a minor or insane, father or grandfather of the child or by a direct descendent of the victim could be punished under section 308 PPC if it is proved to be one of qisas. This is what was ignored in the cases of Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 37 “Faqir Ullah. vs. Khalil-uz-Zaman and others” (1999 SCMR 2203), “Muhammad Afzal alias Seema. Vs. The State” (1999 SCMR 2652), “Muhammad Saleem. Vs. The State” (2001 SCMR 536), “Umar Hayat. Vs. Jahangir and another” (2002 SCMR 629), “Muhammad Akram. Vs. The State” (2003 SCMR 855), “Ghulam Murtaza. Vs. The State” (2004 SCMR 4), “Nasir Mehmood and another. Vs. The State” (2006 SCMR 204), “Iftikhar-ul-Hassan Vs. Israr Bashir and another” (PLD 2007 S.C. 111), “Abdul Jabbar. Vs. The State and others” (2007 SCMR 1496), “Taqueer Ahmed Khan. Vs. Zaheer Ahmed and others” (2009 SCMR 420), “Samiullah and others. Vs. Jamil Ahmed and 2 others” (PLJ 2009 SC 243), “Ahmed Nawaz and another. Vs. The State” (2011 SCMR 593) and other judgments endorsing the same view. 6. Section 307 PPC though also states the circumstances taking qatl-i-amd outside the pail of qisas, but they are not the ones existing at the time of commission of the crime. They, as a matter of fact, arise out of the events taking place subsequent thereto. A distinction thus has to be drawn between the circumstances stated in this section and those stated in the section preceding it. Qisas, in any event, shall not be enforced in the following cases :- a) when the offender dies before the enforcement of qisas; Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 38 b) when any wali, voluntarily and without duress, to the satisfaction of the Court, waives the right of qisas under section 309 or compounds under section 310; and c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender. Right of qisas in view of clause (a) shall not be enforced if the offender dies before its enforcement. Such right if waived or compounded under clause (b) shall be dealt with under section 309(2) or 310(4) respectively. Such right if devolved on the offender as a result of death of the wali of the victim or on the person who has no such right against the offender under clause (c) may end up in payment of diyat or punishment under tazir or both in view of the provision contained in section 308 PPC. 7. Section 308 PPC, which is also a continuation of sections 302, 306 and 307 elaborately deals with the cases by providing that where an offender guilty of qatl-i-amd is not liable to qisas under section 306 PPC or qisas is not enforceable under clause (c) of section 307 PPC he shall be liable to diyat. In case the offender is minor or insane, such diyat, according to first proviso to sub-section (1), shall be payable from his property or by such person as may be Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 39 determined by the Court. But where the offender being a minor has attained sufficient maturity or being insane had a lucid interval so as to be able to realize the consequences of his act, he according to the second proviso to sub-section (1), may be punished with imprisonment of either description for a term which may extend to 14 years as tazir. Where qisas is not enforceable under clause (c) of section 307 PPC, the offender, according to third proviso to sub-section (1) shall be liable to diyat only if there is any wali other than the offender, and where there is no wali other than the offender, he shall be punished with imprisonment of either description which may extend to 14 years as tazir. The Court, according to subsection (2), having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to 25 years as tazir notwithstanding anything contained in sub-section (1) of section 308 PPC. 8. Even waiver and compounding have been restricted to the cases of qisas by reading section 309 and 310 PPC in isolation. Section 338-E, which indeed is a key provision in this behalf inasmuch as it determines the scope and amplitude of section 309 and 310 PPC has been ignored altogether. The result is that a piecemeal rather than holistic view of the relevant provisions contained in chapter XVI holds Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 40 the field. Verbatim reproduction of Section 338-E would not thus be out of place, which reads as under :- “338-E. Waiver or compounding of offences. (1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of section 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences. Provided that, where an offence has been waived or compounded, the Court may in its discretion having regard to the facts and circumstances of the case, acquit or award tazir to the offender according to the nature of offence. Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. (2) All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court. Provided that where the sentence of qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the appellate Court; Provided further that where qatl-i-amd or any other offence under this Chapter has been committed as an honour crime, such offence shall not be waived or compounded without permission Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 41 of the Court and subject to such conditions as the Court may deem fit having regard to the facts and circumstances of the case.” 9. The above quoted provision infallibly shows that all offences under chapter XVI can be waived or compounded and the provisions of section 309 and 310 PPC shall mutatis mutandis apply to the waiver or compounding of such offences. The words “the provisions of section 309 and 310 PPC shall mutatis mutandis apply to the waiver or compounding of such offences” used in the above quoted provision not only dilute their rigidity but also widen their scope and extent. Proviso to sub-section (1) of section 338-E which unequivocally provides that “the Court in its discretion may, having regard to the circumstances of the case, acquit or award tazir to the offenders according to the nature of offence where it has been waived or compounded”, leaves no doubt about the scheme of the law and legislative intent behind it. These provisions, thus, cannot be interpreted narrowly as has been done in the past in some of the judgments cited in the main judgment. Reference to section 345 of Cr.P.C., in the provision quoted above by no means restricts the application of section 306, 307 and 308 PPC to the cases of qisas only. Nor does it prevent a wali from waiving or compounding the offence of Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 42 qatl-i-amd. The relevant entry relating to qatl-i-amd also deserves a reference which reads as under :- “(Qatl-I-amd) 302 By the heirs of the victim [other than the accused or the convict if the offence has been committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs or practices]. Qatl under ikrah-i-tam 303 -do- Qatl-i-amd not liable to qisas. 308 -do- “ 10. It, therefore, follows that the provisions contained in section 306 and 308 PPC also apply to the cases going outside the pail of qisas, with the same force and vigor. Any leniency in punishment available in the cases of qisas in view of the circumstances mentioned in section 306 and 308 of the PPC cannot be denied to a person guilty of qatl-i-amd liable to tazir. The interpretation placed on the provisions of Chapter No. XVI in the cases of “Faqir Ullah. vs. Khalil-uz-Zaman and others”, “Muhammad Afzal alias Seema. Vs. The State”, “Muhammad Saleem. Vs. The State”, “Umar Hayat. Vs. Jahangir and another”, “Muhammad Akram. Vs. The State”, “Ghulam Murtaza. Vs. The State”, “Nasir Mehmood and another. Vs. The State”, “Iftikhar-ul-Hassan Vs. Israr Bashir and another”, “Abdul Jabbar. Vs. The State and others”, “Taqueer Ahmed Khan. Vs. Zaheer Ahmed and others”, “Samiullah and others. Vs. Jamil Ahmed and 2 others” and “Ahmed Nawaz Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 43 and another. Vs. The State” (supra) does not appear to be in conformity with their letter and spirit, the more so when it leads to discrimination and even injustice, notwithstanding the nature of the crime committed is the same. 11. Ratio of the judgments rendered in the cases of “Muhammad Iqbal. Vs. The State” (1999 SCMR 403), “Sarfraz alias Sappi and 2 others. Vs. The State” (2000 SCMR 1758), “Naseer Ahmed. Vs. The State” (PLD 2000 SC 813), “Dil Bagh Hussain. Vs. The State” (2001 SCMR 232), “Muhammad Abdullah Khan. Vs. The State (2001 SCMR 1775), “Amanat Ali. Vs. Nazim Ali and another (2003 SCMR 608) and “Muhammad Ilyas. Vs. The State” (2008 SCMR 396) appears to be correct though it has not been rationalized in the light of the relevant provisions of the PPC. 12. Judgment rendered by a five member bench of this Court in the case of “Faqir Ullah. vs. Khalil-uz-Zaman and others” (supra) appears to be binding on the subsequent benches of same or less number of Judges in view of the dicta laid down in the cases of “The Province of East Pakistan. Vs. Dr. Azizul Islam (PLD 1963 SC 296), “Multiline Associates. Vs. Ardeshir Cowasjee and 2 others” (PLD 1995 SC 423), “Muhammad Afzal alias Seema. Vs. The State” (1999 SCMR 2652) and “Gulshan Ara. Vs. The State” (2010 SCMR 1162), but since it is against the letter and spirit of the provisions of Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 44 chapter XVI of the PPC, it being per-incuriam does not have that binding force. 13. The sum total of what has been discussed above is that Section 306, 307 and 308 PPC are equally applicable to the cases going outside the pail of qisas. Judge Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 45 Dost Muhammad Khan, J.— I have carefully gone through the original judgment drawn by my brother Mr. Justice Asif Saeed Khan Khosa, the earlier Larger Bench‟s decision and majority decision of the 3-Members Benches cited therein. In view of well settled principle of law, the same have a binding effect and any departure therefrom is thus, not permissible. 2. The provisions of Ss.299, 302, 304, 306, 307, 308, 311, 337-P, 338-E and 338-F PPC along with other provisions were added to the Pakistan Penal Code in light of the judgment of this Court (Appellate Shariat Bench), after the draft bill was routed through and approved by Islamic Ideology Council. 3. All these penal provisions, primarily have been based on the commandment of Almighty Allah given in different verses of the „Holy Quran‟ or the „Sunnah‟ of the Holy Prophet (Peace Be Upon Him). The same were enforced through an Ordinance, which was extended from time to time and finally it was made an Act of the Parliament (Act II, 1997) thus, it occupied a permanent seat in PPC as Chapter XVI. 4. To understand and to effectively resolve the prevalent controversy it has become essential to follow the Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 46 universally acknowledged and accepted principle with regard to the construction and interpretation of Statute. The power of judicial review to construe and interpret Statute is invested in the superior courts however, there are some restrictions and limitations and the Judges are to act within the parameters universally acknowledged and acted upon. In this process, the Judges may enter upon in construing and interpreting Statute if it does not convey a clear meaning and the intention of the law maker. Similarly, Judges would strive in search of the intent of the law maker in case a Statute is ambiguous or it conveys two different meanings and the Courts would give that meaning to a Statute which is more reasonable and further the purpose and object of the enactment intended by the Parliament. In exercise of these powers, the primary and fundamental principle is that the Courts/Judges have to discover the true intention of the law maker. In case the Statute is plainly understandable and its meaning is conveniently conceivable then it cannot put a different meaning on a Statute nor it can stretch the same to cover those matters or to apply to the cases which are not covered by the same, either impliedly or expressly. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 47 5. It is the duty of the Courts to undertake the exercise of construction and interpretation of Statute when it does not convey conceivable meaning or the intention of the law maker is not clearly flowing therefrom so to make it workable and beneficial one. Again, in the course of that, the Courts/Judges are supposed to give true meaning to the Statute keeping in view the objects of the enactment, the law maker wanted to achieve. Undoubtedly, the scope of this exercise is regulated by well settled principles and in no manner the Courts/Judges can enter into the field of legislation as that process falls within the province of the Legislature because of the constitutional command. 6. Of course, there is one exception to this rigid rule and that is when any Statute or enactment has encroached upon the fundamental rights of the citizens and comes inflict or clashing with those fundamental provisions of the Constitution, guaranteeing fundamental rights being inviolable in nature to make it in conformity with those fundamental rights. 7. I have the benefit of going through the original judgment drawn by my brother Mr. Justice Asif Saeed Khan Khosa, the judgment rendered by earlier larger Bench of five Judges in the case of Faqir Ullah v. Khalil-uz-Zaman Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 48 (1999 SCMR 2203) and the elaborate reasoning given in support of dissenting note of my brother Hon‟ble Mr. Justice Ejaz Afzal Khan (J.). 8. With utmost respect to the view held by my brother (Mr. Justice Ejaz Afzal Khan, J.) putting a different construction on the relevant provisions of the Pakistan Penal Code referred to above is not in conformity with the fundamental principle relating to construction of Statute rather it amounts to legislation and an attempt has been made to extend the scope of these provisions of penal law to cover the cases expressly omitted to be covered by the same. 9. It is not the province of the Courts to supply the omissions or to repair the defect in the Statute because that role and authority is undeniably vested in the law makers. The maxim, “A Causus Omissus” can in no eventuality be supplied by a Court of law as that would amount to make laws. A Court is not entitled to read words into an Act of Parliament unless unavoidable circumstances provide a clear reason for acting in that manner. It is also not the domain of a Court to add to nor to take from, a Statute anything unless there are very strong grounds for holding that the Legislature intended something, which it Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 49 has failed to express however, in the course of such exercise no undue inference could be drawn to that effect. Similarly, a Court has no power to fill up any gap in any Statute as doing so would amount to usurp the function and to encroach upon the constitutional power of the Legislature, whether the omission is intentional or inadvertent is not the concern of the Court and a “Causus Omissus” cannot be supplied by a Court of law. It is better to leave the same for the wisdom of the Legislature and the Court has to point out the defect or omission in any Statute. It is not the function of the Court to repair the blunders found in any Statute enacted by the Parliament rather those must be corrected by the Legislature itself. There is no reported decision where Court has added words to a Statute to fill up apparent omissions or lacunas while exercising such jurisdiction. Similarly, it is not for the Court to change the clear meaning of the Statue for the reason that it would cause hardship to the accused or would bring about inconvenient consequences. Such considerations are alien to the science of construction of Statute and even in this kind of Statute the meaning cannot be departed from by the Court on the ground of public policy because it is the exclusive business of the Legislature and not of the Judges to remedy the Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 50 defects in a particular Statute. The Court is neither supposed nor vested with powers to subvert the true meaning of a Statute by putting on it more liberal construction to cover the cases which were never intended by the Legislature. 10. It is also cardinal principle of law that Legislature cannot be attributed negligence to bring an evil because legislation is a delicate function and laws are enacted to suppress the evils and not to nurture the same. It is equally the duty of the Courts not to exonerate parties who plainly come within the scope of law enacted, on account of highly technical and forced construction because that would narrow down and exclude cases fairly falling within and covered by the Statute. Mere verbal nicety or forced construction is never to be resorted to in order to exonerate persons plainly coming within the scope of a Statute. True that Penal Statutes are to be strictly construed and in case of doubt in favour of the accused. In that case too, Courts are not authorized to interpret them in a manner to emasculate the same when they otherwise convey a clear and definite meaning. Adhering to the strict grammatical meanings of the words used in the Statute is a well settled principle of construction and has been emphasized time and again by the Superior Courts. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 51 11. Keeping in view the above bedrock principle and cannons of interpretation of Statute, we have to see whether punishment by way of „Ta‟azir‟ is expressly included in the provisions of S.306 where „Qatl-i-Amd‟ shall not be liable to „Qisas‟ in the category of cases enumerated in the provisions of Ss.306, 307 and 308 PPC and it can also be enforced as provided therein and whether same treatment is to be given in the case of Ss. 309 and 310 PPC read with S.345 Cr.P.C. 12. To further clarify the legal position, it is necessary to refer to the classification of crimes made by S.299, the definition clause and S.302 PPC. On combined reading of these two provisions in view of the new dispensation of justice, the crimes defined against the human body and the punishments provided therefor are as follows:- “S.299: ……. (k) “qisas‟ means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed „qatl-i-amd‟ and in exercise of the right of victim or a „Wali‟. (l) “tazir” means punishment other than qisas, diyat, arsh or daman. (b) “arsh” means the compensation specified in this Chapter to be paid by the victim or his heirs; Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 52 (d) “daman” means the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh; (e) “diyat‟ means the compensation specified in section 323 payable to the heirs of the victim. Similarly, the provision of section 302 PPC consists of three clauses, providing that, whoever, commits qatl-i-amd shall, subject to the provision of this chapter be— (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta‟zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) Punished with imprisonment of either description for a term which may extend to twenty-five years where according to the Injunction of Islam the punishment of qisas is not applicable. A proviso was added to clause (c) by Act-I of 2005 on 10.1.2005. 13. The provisions of Ss.306, 307, 308, 309 and 310 in unequivocal and clear terms mention the punishment of “Qisas” leaving no room for „Taizir‟ punishment to be read or included therein by implication. Same is the position of Ss. 311 and 312. However, the most important one is clause (a) of sub-section (2) of section 313 where, in case, the deceased/victim has left behind no „Wali‟, then the Government shall have the right of „Qisas‟. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 53 In the cases of „Qisas‟, „Diyat‟, „Arsh‟, „Daman‟ and Badl-e-Sulah”, the victim or the “Wali” (legal heir of the deceased) has been placed on higher pedestal vis-à-vis the State because of the injunctions of Islam laid down by the Holy Quran and Sunnah of the Holy Prophet (Peace Be upon Him) while the State has been relegated to the secondary status. However, after going through the entire scheme of Chapter XVI of the PPC and the criminal justice system, provided under the Criminal Procedure Code, the State still holds the overall dominating position because no victim or “Wali” of deceased has a right to take „Qisas‟, „Diyat‟, „Arsh‟, „Daman‟ or „Badl-e-Sulah‟ without due process of law as such right would only accrue after the accused/offender is booked for such crimes, investigation is carried out by the Investigating Agency, inquiry and trial is conducted by the Courts and the accused is held guilty for the offence of „Qisas‟, „Diyat‟, „Arsh‟, „Daman‟ etc. 14. Not only the Anglo-Saxon law but the Islamic Injunctions also acknowledge the supremacy of the State to prevent crimes or to investigate into the same through its agencies and try the offenders for the crimes through the established Courts. Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 54 After brief elaboration of the above legal position the only conclusion is that punishment by way of „Ta‟zir‟ exclusively rests with the State because such crimes are considered crimes against the society at large, while in the other categories of cases beside being crimes against the society, the victim/Wali has been given a preferential status excluding the State. In this way there is a marked distinction between the punishments for the two categories of crimes, one relates to the realm of the State authority and the other is vested in individuals who are victims of such crimes or Wali/legal heirs of the person killed. In case of Ta‟zir, if fine is imposed then it shall go to the government treasury, while in the case of „Diyat‟, „Arsh‟ and „Daman‟, it is payable to the individuals like the victim or the „Wali‟ (Legal heirs of the deceased). 15. While drawing such distinction between two types of crimes and entirely different kinds of punishment provided therefor, would lead us to a definite conclusion that the one exclude the other therefore, both cannot be read together or can be construed a substitute for the other, even in cases mentioned in the provisions of Ss.306, 307, 308, 309, 310 and 311 PPC. If the Legislature intended also to exonerate the accused from „Ta‟zir‟ punishment, in such eventualities, it would have definitely Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 55 included „Ta‟zir‟ punishment as well with „Qisas‟ which is not the case in hand. Rather it is expressly confined to cases falling under “Qisas”. Additionally, after being exonerated from “Qisas” punishment, the accused is still liable to punishment by way of “Ta‟zir”. 16. In the case of Niaz Ahmad v. Azizuddin and others (PLD 1967 SC 466) this Court has held that the plain language of clause (b) of subsection (1) of section 45, Electoral College Act, 1964 do not seem to be consistent with such an interpretation. There was no reason for reading the words “marked” and “or written by the voter” disjunctively in this clause. These provisions relate to the lowest tier of democracy in the country. It was further held that the language used by the Legislature being different in the Act, from that employed in the corresponding provisions of the National and Provincial Assemblies (Elections) Act, 1964, the Referendum Act and the Presidential Election Act, this should, if any, justify a different interpretation rather than an identical construction. Similarly, in the case of Brig. (Rtd.) F.B. Ali v. The State (PLD 1975 SC 506) it was held that language of a penal Statute is to be strictly construed and the question of carrying forward any “legal fiction” does not arise. In Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 56 another case, a declaratory judgment given by this Court, on a Reference made by the President of Pakistan (PLD 1957 SC 219), it was held that while interpreting Statute and provisions of Constitution, the following guidelines must be adhered to:- (i) Discover the intention of Legislature; (ii) The whole enactment must be considered to find the intention; (iii) Statute is not to be extended to meet a case for which a clear and distinct provision has already been made; (iv) In case of a particular and general enactment in the same Statue, the particular enactment must be operative and general enactment applies to other part; (v) Same principle applied to the interpretation of the Constitution as to the Statute, effect is to be given to the intention of the framer of the Constitution; (vi) Effect must be given to every part and every word of the Constitution; (vii) In the case of repugnancy between different provisions, the Court should harmonize them if possible (PLD 957 SC 219). Similarly, in the case of Khizar Hayat v. Commissioner Sargodha Division [PLD 1965 LHR 349 (F.B)] it was held that the Courts cannot extend a Statute or its meaning to meet a case for which a provision has „clearly and undoubtedly‟ not been made and Court has no power to fill gaps in a Statute. Also in the case of Chairman Evacuee Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 57 Trust Property v. Muhammad Din (PLD 1956 SC 331) the well known maximum “Expresio Unius Est Exclusio Alterius” was pressed into service and adopted, which means expressed mention of one thing in a Statute implies the exclusion of another. Statute limiting a thing to be done in a particular form necessarily excludes the negative i.e. things shall not be done otherwise nor any thing should be read in it, which has not been mentioned therein expressly. Similarly, in the case of E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) it was held that when there is expressed mention of certain things, then anything not mentioned is deemed to have been excluded. If doing of a particular thing is made lawful, doing something in conflict of that will be unlawful. 17. If the Legislature intended so then by express words it would have inserted a non obstante clause in the provision of Ss. 306 to 311 PPC to the effect that “notwithstanding any thing contained in section 299 and 302 PPC” and only in that case a different construction could be placed on these provisions and its scope could be widened to include „Ta‟zir‟ punishment with „Qisas‟ and „Diyat‟ etc. but once the Legislature has omitted the same from the above provision of law then it stands excluded for all purposes and intents and by no stretch of imagination Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 58 Court is invested with powers to include in it and read in the said provision of law relating to cases/punishments of “Ta‟zir” because that would amount to legislation bringing amendment in the law, which is the exclusive domain and authority of the Legislature 18. Similarly, the provision of 338-E and F cannot be pressed into service to enlarge the scope of the above provision of law to include therein Ta‟zir cases and punishment therefor, because the former provision has not been given any overriding or superimposing effect over Ss. 299, 302, 306 to 311 PPC, therefore, the said provisions of law have no nexus with the question of putting a construction and interpretation on the cited provisions of PPC to the contrary nor Ta‟zir cases and punishment could be read into it by implication when it has been expressly omitted therefrom. 19. For the above stated reasons and keeping in view the above cardinal principle with regard to construction and interpretation of Statutes and also keeping in view the Islamic Injunctions the cases of Ta‟zir and the punishment provided therefor cannot be construed to be at par and to be read as integral part of the provisions in question, which is meant for cases exclusively for Qisas, Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 59 Diyat, Arsh and Daman etc. called the Islamic Ta‟zirat and for the said reasons I am unable to subscribe to the dissenting view held by my brother Hon‟ble Mr. Ejaz Afzal Khan, rather I would agree with the reasonings and view held, the conclusion drawn by my brother Hon‟ble Mr. Justice Asif Saeed Khan Khosa (J.), who has written the main judgment. 20. There is another strong reason in support of the above view that once a five members larger Bench in the case of Faqir Ullah (supra) has held a similar view then, this Bench of equal strength has no authority to override or annul the same rather in view of the consistent practice and the principle of law laid down, the proper course was to have suggested to Hon‟ble Chief Justice for constituting a larger Bench of more than five Judges. The above proposition is clearly laid down in the case of The Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296), The Province of East Pakistan and others v. Abdul Basher Cohwdhury and others (PLD 1966 SC 854), Multiline Associates v. Ardeshir Cowasjee and others(PLD 1995 SC 423) and Sidheswar Ganguly v. State of West Bengal [1958 SC (India) 337] Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 60 21. After having the above view, at this stage, I deem it essential to point out to the Government to make suitable amendment in clause (b) of section 302 PPC omitting therefrom death sentence and only life imprisonment shall be awardable when for want of standard of proof as required u/s 304 PPC, the punishment of Qisas cannot be inflicted, then awarding death sentence is not desirable or justified because under the provision of section 314 PPC procedure of execution of “Qisas‟ punishment is almost one and the same and is executed by a functionary of a government by causing death of the convict as the Court may direct. The only addition made is that it shall be executed in the presence of the “Wali” of the deceased or their representative. However, when they fail to present themselves, then it shall be executed by the State functionaries. We should not ignore that till date, the execution of death sentence is carried out in the old fashion and style by hanging the offender on the gallows through his neck till he is dead and when no specific harsh method has been provided for execution of „Qisas‟ like beheading the offender by the State functionaries or the “Wali” then there is no difference between the execution of one or the other sentence therefore, the Government is well advised to bring suitable amendment in clause (b) of section 302 PPC Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 61 ordinarily providing punishment of life imprisonment unless the commission of the crime is attended by an element of terrorism, sectarian revenge or the murder is committed in a ruthless, cruel and brutal manner, which appear unconscionable and no mitigating circumstance is there to reduce the gravity of the crime in particular cases. 22. Similarly, once the punishment of Qisas cannot be enforced or the offender is not liable to punishment under Qisas in the cases enumerated in Ss.306 to 311 PPC then Ta‟zir punishment shall also not be inflicted or it should be mild in nature and not like death or life imprisonment. The proper course is that the courts are vested with a discretion in this regard to award punishment by way of “Ta‟zir” but not death sentence or life R.I. barring the above exceptions and also compensation to the “Wali” of deceased or victim of hurt crime. The law point in all these appeals/petitions is thus, answered in the above terms. (Justice Dost Muhammad Khan) Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 62 QAZI FAEZ ISA, J.- I have had the benefit of reading the judgments of my learned and distinguished colleagues. Justice Asif Saeed Khosa set out the sections from chapter XVI of the Pakistan Penal Code (“PPC”) which needed examination, including the different interpretations made by this court on these provisions and systematically examined the same. With lucid precision he analyzed the same and drew certain conclusions and I am in respectful agreement with him. 2. My learned brother Justice Ejaz Afzal Khan, however, was of a different opinion that appears to be premised on an interpretation of qisas, with which with the greatest of respect I cannot bring myself to agree. I must, however, at the outset acknowledge my inadequacy to interpret Almighty Allah‟s commands with certainty and seek His protection and mercy for any mistake in my understanding. My distinguished colleague states that the word qisas means “return of evil for evil” and also “retaliation” or “retribution”. However, Abdullah Yusuf Ali in his commentary on the 178th and 179th verses of surah Al-Baqarah, wherein the word qisas is mentioned writes: “Note first that this verse and the next make it clear that Islam has much mitigated the horrors of the pre-Islamic custom of retaliation. In order to meet the strict claims of justice, equality is prescribed, with a strong recommendation for mercy and forgiveness. To translate qisas, therefore, by retaliation, is I think incorrect. The Latin legal term Lex Talionis may come near it, but even that is modified here. In any case it is Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 63 best to avoid technical terms for things that are very different. "Retaliation" in English has a wider meaning equivalent almost to returning evil for evil, and would more fitly apply to the blood-feuds of the Days of Ignorance.” Moreover, when we examine the said two verses (2:178 and 179) they do not mandate stern and stringent punishments, but seek to inculcate forgiveness and charity in hardened hearts. “This is a concession and Mercy from your Lord” (2:178) and “In the law of qisas there is (saving of) life to you, O ye men of understanding; that ye may restrain yourself (2:179).” In any case there is no need to translate or interpret the word qisas because we are only concerned with how it has been used in the PPC, i.e. a defined term (section 299 (k) of PPC); similarly, tazir is also required to be considered as used in section 299 (l) PPC. 3. My learned colleague also states that, “there are no two opinions on the point that punishment of tazir cannot be as stern and stringent as that of qisas”, but the said statement is not referenced and I have also not been able to discover its source. I may however question whether a person who comes forth and makes a voluntary and true confession of murder (qatl-i-amd), thereby coming within the statutory definition of qisas, should be deserving of a greater punishment than the one whose crime is painstakingly established through other forms of evidence? 4. This Bench was assembled to consider whether sections 306 and 308 PPC are applicable to cases of tazir. Section Criminal Appeal No. 126 of 2012, Criminal Petition No. 568 of 2011 & Criminal Appeal No. 80 of 2001 64 306 attends to three different categories of cases. The first category is, “when an offender is a minor or insane” (section 306 (a) PPC), i.e. the offender does not have full mental capacity on account of age or state of mind. Had this exception not been provided, then an offender who is a minor or insane would have to be sentenced to death under section 302 (a) which prescribes no other exception. The second category is, “when an offender causes the death of his child or grandchild, how lowsoever” (section 306 (b) PPC). And the third category is, “when any wali of the victim is a direct descendant, how lowsoever, of the offender” (section 306 (c) PPC). In the second and third categories “qatl-i-amd is not liable to qisas” therefore it has been made liable to tazir. However, if the offender is also not liable to tazir (as held by my learned brother Justice Ejaz Afzal Khan), then the offender would only “be liable to diyat” (in terms of sub-section (1) of section 308 PPC), which is monetary compensation (section 323 PPC), subject however to the stated exceptions (the second and third provisos to sub-section (1) of section 308 and sub-section (2) of section 308). In Muhammad Akram v. The State (2003 SCMR 855) this court had held that such an interpretation, “would amount to grant the licence of killing innocent persons by their Walies.” Therefore, this is yet another reason for me to agree with the opinion of my learned brother Justice Asif Saeed Khosa. JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Ijaz ul Ahsan Criminal Appeals No. 128, 129 and 130 of 2010 (Against the judgment dated 01.04.2009 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals No. 371, 375 and 383 of 2002 and Murder Reference No. 608 of 2002) Azhar Mehmood, etc. (in Cr. A. 128 of 2010) Azam Sher (in Cr. A. 129 of 2010) Asad Ali (in Cr. A. 130 of 2010) …Appellants versus The State (in all cases) …Respondents For the appellants: Mr. Tanveer Iqbal, ASC Mr. Niaz Ahmed Rathore, ASC Syed Rifaqat Hussain Shah, AOR (in Cr. A. 128 of 2010) Mr. Niaz Ahmed Rathore, ASC (in Cr. A. 129 and 130 of 2010) For the State: Ch. Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab (in all cases) Date of hearing: 02.11.2016 JUDGMENT Asif Saeed Khan Khosa, J.: A dacoity had allegedly been committed in the house of Muhammad Ramzan complainant at about 08.00 P.M. on 20.08.2001 in the area of Police Station Saddar Hassan Abdal, District Attock and during the said dacoity two persons namely Muhammad Ijaz and Muhammad Anwar had been done to death. The culprits committing the alleged offences had remained unknown and FIR No. 245 had been lodged in respect of that incident by Muhammad Ramzan complainant at the above mentioned Police Station at 09.55 P.M. during the same Criminal Appeals No. 128, 129 and 130 of 2010 2 night. The present appellants namely Azhar Mehmood, Muhammad Altaf, Azam Sher and Asad Ali had subsequently been implicated in this case and after a regular trial the trial court convicted the appellants for offences under sections 460, 396 and 302(b), PPC read with section 34, PPC and sentenced them to various terms of imprisonment besides sentences of death on two counts of the charge under sections 396 and 302(b), PPC. Later on the High Court had upheld the sentence of death passed against Azhar Mehmood appellant whereas on the charge of murder the sentences of death passed against the remaining appellants were reduced to imprisonment for life each. The High Court had converted the appellants’ convictions for an offence under section 396, PPC into those for an offence under section 398, PPC and had passed a reduced sentence against the appellants for the said offence. The convictions and sentences of the appellants for the offence under section 460, PPC read with section 34, PPC were, however, upheld and maintained by the High Court. Hence, the present appeals by leave of this Court granted on 05.04.2010. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case. The present appellants had not been nominated in the FIR wherein it had been mentioned that the offences in issue had been committed by six unknown culprits but later on it had been maintained by the prosecution that the present appellants had been overheard by a witness discussing amongst themselves the commission of offences by them relevant to the dacoity and murders taking place at the house of the complainant. It was in Criminal Appeals No. 128, 129 and 130 of 2010 3 that dubious background that the present appellants had been arrested on 24.09.2001 and later on they had statedly been identified by the eyewitnesses namely Muhammad Ramzan complainant (PW15) and Arif Ali (PW16) in the test identification parades conducted on 01.10.2001 and 08.05.2002. We have gone through the statements made by the supervising Magistrates, i.e. PW5 and PW10 as well as the proceedings of the test identification parades and have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently been held by this Court that such a test identification parade is legally laconic and is of no evidentiary value and a reference in this respect may be made to the cases of Khadim Hussain v. The State (1985 SCMR 721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Siraj-ul-Haq and another v. The State (2008 SCMR 302), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563) and Muhammad Fayyaz v. The State (2012 SCMR 522). During the trial the above mentioned eyewitnesses had maintained that the appellants facing the trial were the actual culprits and the courts below had found such identification of the appellants during the trial to be of significance. We, however, note that both the above mentioned eyewitnesses, i.e. PW15 and PW16 had appeared before the trial court after 14 prosecution witnesses had already made their statements before the trial court and on all such occasions the present appellants were physically present in the dock and, thus, the above mentioned eyewitnesses had ample opportunities to see the present appellants in the courtroom on all such occasions. Even prior to that the appellants had been produced before the trial court at the time of framing of the charge and even at the time of obtaining remand from the concerned forum. This is why identification of a culprit before the trial court during the trial has repeatedly been held by this Court to be Criminal Appeals No. 128, 129 and 130 of 2010 4 unsafe and a reference in this respect may be made to the cases of Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Muhammad Afzal alias Abdullah and another v. State and others (PLJ 2009 SC 333), Nazir Ahmad v. Muhammad Iqbal (2011 SCMR 527), Shafqat Mehmood and others v. The State (2011 SCMR 537) and Ghulam Shabbir Ahmed and another v. The State (2011 SCMR 683). As regards the alleged recovery of weapons from the appellants’ custody during the investigation suffice it to observe that the recovered firearms had not matched with the crime-empties secured from the place of occurrence and the alleged recoveries had been discarded by the High Court. The medical evidence produced by the prosecution could not point towards any particular culprit. The only remaining piece of evidence produced by the prosecution was in respect of an alleged abscondance of Muhammad Altaf appellant but in the circumstances of the case we have not found the alleged abscondance of the said appellant to be totally inconsistent with the hypothesis of his innocence. 4. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. These appeals are, therefore, allowed, the convictions and sentences of Azhar Mehmood, Muhammad Altaf, Azam Sher and Asad Ali appellants are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case. Judge Judge Judge Islamabad 02.11.2016 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.128 of 2020 (Against the judgment dated 3.6.2015 passed by the Lahore High Court Bahawalpur Bench Bahawalpur in Criminal Appeal No.515-J of 2011 and M.R. No.65 of 2011) Muhammad Mehboob …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Zulfiqar Ahmad Bhutta, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 26.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Blamed for committing Qatl-i-Amd of Waris Ali, 24/25, the appellant accompanied by his sons, since acquitted, contested indictment before a learned Additional Sessions Judge at Bahawalnagar; convicted under clause (b) of Section 302 of the Pakistan Penal Code, 1860, he was sentenced to death vide judgment dated 16.12.2011, altered into imprisonment for life vide impugned judgment dated 3.6.2015, vires whereof, are being assailed through leave of the Court. 2. The appellant had leased out his agricultural land on annual rent of Rs.130,000/- to Barkat Ali complainant (PW-4); a sum of Rs.30,000/- for the year 2010 to be paid in the month of November was yet outstanding when on the fateful day i.e. 23.6.2010 at about 7:15 a.m. the accused restrained the complainant as well as the witnesses from cutting fodder; a brief altercation, however, shortly ended in a Criminal Appeal No.128 of 2020 2 truce albeit with a threat by Khalid Mehmood alias Bhola, acquitted co-accused; a short while later, the appellant with his two sons, armed with .12 caliber shotguns and an hatchet, confronted the complainant, his son Dilbar Hussain (PW-5), brother Muhammad Yousaf and Sabir Ali PWs once again. The appellant fired in the air from a distance of two acres, simultaneously commanding his sons Khalid Mehmood and Tariq to take on the witnesses. It is prosecution’s case that Barkat Ali PW assisted by the witnesses snatched gun from Khalid Mehmood before he could fire upon them; it was at this point of time that the deceased apprehending a fire shot by the appellant attempted to take refuge behind a cart, however, was trapped by a shot and succumbed to the injury at the spot. Autopsy conducted at 4:30 p.m. confirmed four entry apertures with multiple pallets, each surrounded by burnt margin. Spot inspection includes seizure of blood without there being any casing. As the investigation progressed, appellant’s sons were let off. The appellant, arrested on 27.6.2010, upon a disclosure led to the recovery of a .12 caliber shotgun (P-7). The family faced trial together, confronting prosecution evidence in a unison with the following plea: “I am innocent and similarly my co-accused are also innocent as they were not present at the spot at the time of occurrence. They were rightly found and declared innocent by the police. In fact on the day of occurrence I peacefully went to my land to demand lease money from the complainant. At that time complainant himself was armed with gun and I was empty handed. When I demanded lease money from complainant and his son Waris Ali (deceased) they not only refused to pay the lease money but also abused and insulted me on which we grappled with each other and in this process the gun held by the complainant accidentally went off and the fire of that gun hit Waris Ali deceased. The gun P-5 produced before the police was that of the complainant. The police had reached the place of occurrence without recording evidence and fabricated this case after conducting local inquiry in connivance with the complainant party.” Qua the appellant, it failed to inspire the courts below. 3. Learned counsel for the appellant contends that the prosecution withheld the whole truth as is evident from investigative conclusions that favoured Khalid Mehmood and Muhammad Tariq; he contends that their unchallenged acquittal by itself confirmed the veracity of appellant’s plea, otherwise supported by the attending circumstances that included the findings recorded by the Medical Officer. Prosecution failure on motive compounded by an inconsequential recovery had further vindicated the appellant’s position and that acquittal of the co-accused, framed within the integrity of charge, though roles somewhat different, nonetheless, cast away the Criminal Appeal No.128 of 2020 3 entire case, concluded the learned counsel. Learned Law Officer has contrarily defended the judgment on the ground that assigned with the fatal shot, the petitioner was rightly convicted and sentenced in circumstances. 4. Heard. Record perused. 5. Prosecution’s failure on motive notwithstanding, a default in payment of the rent, nonetheless, appears to have ignited a situation on the fateful day with no previous rancor. During the brawl, comprising two episodes, both sides confronted each other. Two .12 caliber shotguns, one produced by the complainant and the second, recovered pursuant to a disclosure, spell out a confrontation in close blank proximity; on the contrary, in scaled site plan (Ex.PE/2), inter se distance between the appellant and the deceased is shown as 9 ½ Karam, a scenario that does not accommodate autopsy findings of burning surrounding each wound. When confronted, during the cross- examination, with the distance between the appellant and the deceased, when the latter received the fatal shot, he complacently reaffirmed the disclosure. Locale of fatal shot on the back of the deceased in a configuration where both sides are confronting each other face to face is yet another circumstance intriguing upon the prosecution story. Though a cart noticed during spot inspection was secured by the Investigating Officer, nonetheless, pallet marks are conspicuously absent; it is no less surprising that the deceased, present on the driving seat of a tractor, statedly scrambling by the instinct of self preservation, would prefer a more vulnerable option to save his life; in retrospect, argument that the situation was acted out to write off the aftermaths of an obvious accidental shot does not appear to be unrealistic. Muhammad Bashir SI (PW-3) has investigated the case throughout and painted a picture altogether different by projecting the appellant being alone at the crime scene; his disclosure that “It is correct that during investigation from three nominated accused of the complainant, two were found innocent because in my investigation they were not present at the time and place of occurrence.” clearly suggests that occurrence did not take place in the manner as alleged in the crime report. Dichotomy inherent in the script visibly casts its shadows and, thus, in the totality of circumstances, prosecution has failed to bring forth “proof beyond doubt”. Criminal Appeal is allowed; impugned judgment is set aside; the Criminal Appeal No.128 of 2020 4 appellant is acquitted of the charge and shall be released forthwith, if not required to be detained in any other case. Judge Judge Judge Islamabad, the 26th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No.13-P of 2009, 37-P & 38-P of 2011 & 16-P of 2012 (Against the judgments dated 15.6.2007, 30.5.2011 and 19.10.2011 of the Peshawar High Court, Peshawar passed in Cr. A. No.666/2004, 602 & 614/2009 and 351/2009). State through Director ANF Peshawar (in all cases) …Appellant(s) VERSUS Muhammad Ramzan Rahim Gul Nasrullah Lal Pervez (in Crl.A.13-P/2009) (in Crl.A.37-P/2011) (in Crl.A.38-P/2011) (in Crl.A.16-P/2012) …Respondent(s) For the Appellant(s) : Mr. Muhammad Tariq Khan, ASC For the Respondent(s) : N.R. Date of Hearing : 29.04.2019 Judgment Qazi Muhammad Amin Ahmed, J.- With a common thread, the captioned appeals, though arisen out of different cases, nonetheless, inhere identical question of law and thus are being decided through this single judgment. Respondents were indicted for possession of narcotic contraband, in excess of 10 kilograms in each case; convicted under Section 9(c) of the Control of Narcotics Substances Act, 1997, they were sentenced to imprisonment for life along with fine. In appeals, their convictions were maintained, however, sentences awarded to them by the learned trial Courts were reduced to ten years R.I. The State did not countenance with the error and sought rectification thereof. In each case the leave has been granted to examine the vires of reduction of sentence. Respondents, released in consequence of the impugned judgments, despite repeated attempts, nonetheless, found it convenient to stay away from the Court by avoiding the process; they cannot be allowed to hold the process of law in abeyance by their default, Crl.As No.13-P/09, 37-P & 38-P/11 & 16-P/12 2 seemingly deliberate in circumstances. An appellant or a respondent has to be afforded a reasonable opportunity of hearing so as to vindicate his position more so in situations involving corporal consequences, however a party cannot avail this opportunity to a point of time of its own choice and therefore once the absence is found calculated to obstruct the judicial process, a case can be decided on its own merits. This practice is being consistently followed since the advent of case reported as Chan Shah versus The Crown (PLD 1956 FC 43) subsequently reaffirmed in the cases reported as Gul Hassan and another versus The State (PLD 1969 SC 89) as well as Ikramullah and others versus The State (2015 SCMR 1002). In this backdrop, we have examined the propriety of reduction of sentences with the assistance of learned counsel for the appellant. He has invited our attention to the proviso to Section 9 of the Act ibid, mandatorily providing punishment being not less than imprisonment for life in case the quantity of contraband exceeds ten kilograms, a common feature in each case. 2. Command of law escaped notice of the learned Judges of the Peshawar High Court and thus there being no occasion for the reduction of sentences, the captioned appeals are allowed, impugned judgments are set aside. Sentences awarded to the respondents by the learned trial Courts are restored. Perpetual warrants of arrest shall issue to bring the respondents to law so as to serve out sentences consequent upon convictions, never challenged by them before this Court. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.13-P/2014 (On appeal from the judgment dated 12.12.2013 of the Peshawar High Court, Peshawar passed in Cr. Appeal No.482- P/2013) The State through Regional Director ANF Peshawar …Appellant(s) VERSUS Sohail Khan …Respondent(s) For the Appellant(s) : Mr. Muhammad Tariq Shah, Special Prosecutor, ANF For the Respondent(s) : N.R. Date of Hearing : 30.04.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Sohail Khan, respondent herein, had been sent for through repeated process; instead of vindicating his position, he has opted to stay away, thus leaving the Court with no option to decide this appeal on merits with assistance of the learned Law Officer. On having been found in possession of 11.400 kilograms of Charas Garda, he was indicted before a Special Court (CNS) at Peshawar; convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 the learned trial Judge handed down sentence of five years with fine of rupees fifty thousand or to undergo six months S.I. in lieu thereof vide impugned judgment dated 21.1.2010. A learned division bench of the Peshawar High Court declined to enhance respondent’s sentence to imprisonment for life as mandated by law. The issue is being re-agitated through leave of the Court to examine whether a sentence lesser than imprisonment for life can be awarded to a convict with contraband exceeding ten kilograms in weight. Criminal Appeal No.13-P/2014 2 2. The learned Law Officer contends that the proviso to Section 9(c) of the Act ibid mandatorily provides punishment of imprisonment for life and this left the learned High Court with no option but to enhance respondent’s sentence to imprisonment for life so as to rectify the error committed by the trial Court; it has also been pointed out that the respondent did not prefer appeal after the learned High Court maintained his conviction. 3. The respondent by his own choice has found it convenient to stay away; his absence is seemingly calculated to avoid the process of law and certainly cannot stand in impediment to the disposal of this appeal; he has been found guilty of possessing contraband, in excess of ten kilograms; evidence of recovery and forensic report is inexorably pointed upon his culpability and thus in circumstances he was liable to be sentenced to imprisonment for life; magnanimity shown by the Courts below being outside the remit of law merits recall. Appeal is allowed, impugned judgments to the extent of quantum of sentence are set aside. He is sentenced to Imprisonment for life however, the amount of fine is kept intact along side attending consequences. Non-bailable warrants of arrest shall issue to bring the respondent before the law so as to serve out sentence inflicted upon him. JUDGE JUDGE Islamabad, the 30th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.13-P/2015 (On appeal from the judgment dated 13.02.2013 passed by the Peshawar High Court, Mingor Bench in Criminal Appeal No.97 of 2010). Wajahat …Appellant(s) VERSUS Gul Daraz & another …Respondent(s) For the Appellant(s) : Mr. Ansar Nawaz Mirza, ASC For the Respondent No.1 : Mr. Abdul Munir Khan, ASC For the State : Mr. Mujahid Ali Khan, Additional Advocate General, Khyber Pakhtunkhwa Date of Hearing : 30.04.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Touheed Begum met homicidal death in her home; Wajahat, appellant herein, was blamed for the crime by Gul Daraz, PW, no other than his father-in-law; domestic differences were cited as motive for the crime. The learned trial Court returned guilty verdict to the appellant; he was convicted under clause (b) of Section 302 of Pakistan Penal Code and sentenced to imprisonment for life along side direction for payment of diyat to the tune of rupees six lacs to the legal heirs with benefit of Section 382-B of the Code of Criminal Procedure, 1898 vide impugned judgment dated 28.1.2010 affirmed by the learned Peshawar High Court vide judgment dated 13.2.2013, albeit with conversion of diyat into compensation. Criminal Appeal No.13-P/2015. 2 2. Learned counsel for the appellant contends that judgments of the Courts below are erroneously premised on misconception of law inasmuch as in the absence of positive proof, the appellant could not have been convicted on the basis of presumptions or his failure to satisfactorily explain circumstances leading towards his wife’s death. Similarly, appellant’s absence from law cannot be equated with his guilt, complained the learned counsel, positions vehemently contested by the learned Law Officer. 3. The complainant, though seemingly with no axe to grind, nonetheless has not himself witnessed the occurrence; crime report, is structured upon his strong belief that no one else other than the appellant could be the possible assassin, a conviction based upon hearsay queries, most important being one furnished by his second daughter Nazakat PW married in the same household; she appeared as PW-5 and in the witness box pleaded ignorance about the culprit, responsible for her sister’s death. She merely deposed about crime without reference to the assailant. Her evidence is not of much benefit to the prosecution leaving in the field suspicion alone to sustain the charge. Appellant’s belated plea of the suicide even if rejected outrightly by itself would not absolve the prosecution to drive home the charge, on its own strength and same goes for appellant’s absconsion; people avoid to face process of law or their adversaries for a variety of reasons, not necessarily inclusive of their guilt; Appellant’s reticence to satisfactorily explain as to what befell upon his better half under the same roof, though somewhat intriguing, however cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences; his failure would not give rise to an adverse presumption within the contemplation of Article 121 of the Qanoon-e-Shahadat Order, 1984 and thus it would be grievously unsafe to maintain the conviction, without potential risk of error as well as diametrical departure from adversarial nature of criminal trial. The appeal is allowed, the impugned Criminal Appeal No.13-P/2015. 3 judgment is set aside and the appellant shall be set at liberty forthwith, if not required in any other case. JUDGE JUDGE Peshawar, the 30th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.133-L of 2017 (On appeal from the judgment dated 09.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.381 of 2012 and CSR No.7-T of 2012). Shaukat Ali …Appellant(s) VERSUS The State, etc. …Respondent(s) For the Appellant(s) : Mian Subah Sadiq Klasson, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of Hearing : 16.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Through leave of the Court, impugned herein is judgment dated 9.2.2015 of a learned division bench of Lahore High Court whereby appellant’s conviction and sentence returned by a learned Anti Terrorism Court vide judgment dated 23.2.2012 is maintained. 2. Naveed alias Guddu, hereinafter referred to as the deceased, left home after receipt of a phone call at 7.30 p.m. on 22.8.2011. Upon failure to return, his disappearance was reported by his brother, Muhammad Rafique, PW-7. On 25.8.2011, the family received a phone call, demanding ransom of Rs.500,000/- in pursuance whereto the witnesses went to the designated place where they saw the appellant who decamped from the scene. The incident was reported to the police in consequence whereof the appellant was arrested on 26.8.2011 and upon his disclosure dead body of the abductee was retrieved, wrapped in a jute bag. It is in this backdrop that the appellant alongside Shahzad, co-accused were indicted before the Court; third accused Nadeem Hussain is Criminal Appeal No.133-L of 2017. 2 still away from law. The learned Trial Judge while acquitting Shahzad co-accused from the charge convicted the appellant under Sections 201, 302(b), 365-A of Pakistan Penal Code, 1860 read with Section 7(e) of Anti Terrorism Act, 1997; he was sentenced to death on three counts along with five years R.I. under Section 302 of the Code ibid with fine of Rs.5,000/- or to undergo four months S.I. in lieu thereof. 3. Muhammad Rafique, PW-7, Muhammad Shehbaz, PW- 9 and Fida Muhammad, PW-10 are prominent amongst the witnesses to drive home the charge. They have furnished details preceding as well as subsequent to deceased’s disappearance. The investigating officer also collected cell phone data to establish conversations between the captor and the family. However, prosecution’s reliance is primarily upon appellant’s confessional statement dated 16.9.2011 before a judicial magistrate. It constitutes the mainstay. 4. Though the appellant when indicted claimed trial and retracted from his confessional statement during his examination under Section 342 of the Code of Criminal Procedure, 1898, nonetheless, on a careful examination we have found his confessional statement free from all taints. Seemingly voluntary without duress or inducement; inculpatory in nature the confessional statement reflects a complete and truthful narration of event leading to deceased’s death. The learned Magistrate has taken due care to administer necessary warnings to the appellant and recorded each detail thereof in his own hand. It does not appear to have been fabricated to advance prosecution’s case and thus can be squarely relied upon without any reflection on safe administration of criminal justice. It is by now well settled that a retracted confession can form basis for conviction if found voluntary and truthful. Retraction notwithstanding when examined in the totality of circumstances, the disclosure is synchronized with the events leading towards deceased’s death and recovery of dead body on appellant’s disclosure. These circumstances exclude every hypothesis of his innocence and thus the Courts below have rightly relied upon the confessional statement, there being no Criminal Appeal No.133-L of 2017. 3 space to entertain any hypothesis of innocence. Guilty verdict calls for no interference; the appeal fails. However, in so far as question of quantum of sentence to be exacted from the appellant is concerned it requires reconsideration; in the totality of circumstances, it is unmistakably found that predominant purpose behind the crime was to extract ransom and it was in that process that the deceased lost his life due to suffocation and tranquilizer, excessively administered to subdue him; taken from this angle, alteration of death penalty into imprisonment for life on each count would be a conscionable wage in circumstances. Consequently, penalty of death is altered into imprisonment for life on each count with amounts of fine and compensation kept intact; sentences shall run concurrently with benefit of Section 382-B of the Code ibid. With the above modification, Criminal Appeal 133- L/2017 is dismissed. JUDGE JUDGE Lahore, the 16th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.135-L of 2017 (On appeal from the judgment dated 11.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.1130- J/2010 and Capital Sentence Reference No.39-T of 2010). Shewaiz Rasool alias Shabi …Appellant(s) VERSUS The State, etc …Respondent(s) For the Appellant(s) : Ms. Khalida Parveen, ASC Mian Ghulam Hussain, AoR Respondent No.2 : In person For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of Hearing : 14.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Akbar and his three sons, namely Qasim Ali, Mubashir Hussain and Nazeer Hussain were done to death at 9.30 p.m. on 20.6.2004 within the remit of Police Station Kunjha, District Gujrat. Incident was reported by Amjad Ali, PW who escaped assailant’s wrath as according to him he alongside his mother and maternal uncles arrived at the scene just when the family was being given blood bath. It is prosecution’s case that the complainant and his mother had visited Muhammad Anwar and Muhammad Akbar, later’s real brothers to settle certain family differences and it was after reconciliation that the witnesses returned home together. Shewaiz Rasool, the present appellant, alongside Shahid Afzaal and Muhammad Rafi co-accused, armed with automatic weapons, were blamed to have targeted the deceased with multiple shots. Khawar Ali, Qamar-uz-Zaman, Muhammad Luqman, Criminal Appeal No.135-L of 2017. 2 Muhammad Boota and Asad Ullah, differently armed were also alleged to have resorted to firing. The witnesses viewed the occurrence in electric bulb light; motive is conspicuously absent in the crime report. 2. The appellant stayed away from law, while remainder were tried by an Anti Terrorism Court. Convicted on multiple counts, Shahid Afzaal and Muhammad Rafi were sentenced to death, whereas Khawar Ali, Muhammad Boota, Qamar-uz-Zaman, Asad Ullah and Muhammad Luqman, to imprisonment for life. In the wake of remand for re-writing of the judgment, the case came up before the learned High Court when vide judgment dated 18.11.2008 it maintained convictions and sentences of Shahid Afzaal and Muhammad Rafi while acquitting the remainder from the charge; appeal filed by them was allowed by this Court. It was a posthumous success for Shahid Afzaal, died during the pendency of his appeal. The appellant has been subsequently tried in the above backdrop; he was convicted on multiple counts and sentenced to death by the learned trial Court vide judgment dated 22.4.2010, affirmed by the learned High Court vide impugned judgment dated 11.2.2015 vires whereof are being challenged through leave of the Court. 3. The appellant is identically placed, on all fours, with Muhammad Rafi and Shahid Afzaal, co-accused; they had been assigned joint firing on the deceased; in the absence of any specific motive no distinction can be possibly drawn so as to distinguish, even obliquely appellant’s case from his co-accused. Though not assigned any harm to the deceased or the witnesses, acquittal of Khawar Ali, Muhammad Boota, Qamar-uz-Zaman, Asad Ullah and Muhammad Luqman stated to be in the company and community of intention with the appellant and acquitted co-accused, firing side by side, does cast a dark shadow upon prosecution’s case. This Court for a variety of reasons, each valid, acquitted Muhammad Rafi, co-accused from the charge; these include issue of identity of assailants during the fateful night; improbability of witnesses’ detour preceding assault and arrival exactly at a point of time when firing commenced; human incapacity to capture minor Criminal Appeal No.135-L of 2017. 3 details in an extreme crises situation involving no less than eight persons and lack of motive etc.; these are squarely applicable to the case of present appellant as well and thus we have not been able either to draw any distinction or take a different view. Sauce for the goose is sauce for the gander. Resultantly, Criminal Appeal No.135-L/2017 is allowed, impugned judgment is set aside. The appellant shall be set at liberty, if not required in any other case. JUDGE JUDGE Lahore, the 14th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Criminal Appeal No. 135 of 2013 (Against the judgment dated 09.03.2007 passed by the Peshawar High Court, Abbottabad Bench in Criminal Revision No. 27 of 2006) Tariq Mehmood …Appellant versus Naseer Ahmed, etc. …Respondents For the appellant: Mr. Mushtaq Ali Tahirkheli, ASC Ch. Akhtar Ali, AOR For respondent No. 1: Nomo. For the State: Mian Arshad Jan, Additional Prosecutor-General, Khyber Pakhtunkhwa Date of hearing: 26.01.2016 JUDGMENT Asif Saeed Khan Khosa, J.: The issue in this case is whether or not compounding of a criminal offence at the stage of bail can still be given effect to at the stage of trial when at the stage of trial the compounding has been resiled from by one of the parties. We have found that the precedent cases on the subject available thus far have not stated the legal position in this respect quite clearly and, therefore, we have decided to make an effort to remove all ambiguities confounding the issue and to state the correct legal position as lucidly as we can. Criminal Appeal No. 135 of 2013 2 2. The necessary facts giving rise to the present appeal are that Tariq Mehmood appellant is an accused person in case FIR No. 105 registered at Police Station Narra, District Abbottabad on 25.08.2005 for an offence under section 302, PPC in respect of an alleged murder of one Safeer Ahmed. The said FIR had been lodged by Naseer Ahmed complainant who is a brother of Safeer Ahmed deceased. Apprehending his arrest in connection with this case the appellant applied for pre-arrest bail before the learned Sessions Judge, Abbottabad on 03.09.2005 and the appellant’s application was marked to the learned Additional Sessions Judge-II, Abbottabad who admitted the appellant to ad-interim pre-arrest bail. During the pendency of that application a compromise deed was executed on 12.09.2005 and the same was signed by Naseer Ahmed complainant and a respectable person of the area wherein it had been stated that the heirs of Safeer Ahmed deceased had no objection to confirmation of the appellant’s ad-interim pre-arrest bail or to his acquittal in the main case. On the basis of the said compromise deed an application was filed by Naseer Ahmed complainant before the learned Additional Sessions Judge-II, Abbottabad on 28.10.2015 requesting for recording of statements of the heirs of Safeer Ahmed deceased through a Commission for confirming the factum of compromise between the parties and on the same date the said application was allowed by the learned Additional Sessions Judge-II, Abbottabad and a local Advocate was appointed as the Commission. On 29.10.2005 the Commission recorded a joint statement of the heirs of Safeer Ahmed deceased and in that statement the heirs of the deceased maintained that they had no objection to confirmation of the appellant’s ad-interim pre-arrest bail or to his acquittal. On 31.10.2005 the Commission submitted a report before the learned Additional Sessions Judge-II, Abbottabad and on 12.11.2005 the Commissioner got his statement recorded before the said court confirming that the heirs of the deceased had no objection to confirmation of the appellant’s ad-interim pre-arrest bail but the Commissioner said nothing in that statement regarding the heirs of Safeer Ahmed deceased Criminal Appeal No. 135 of 2013 3 having no objection to the appellant’s acquittal in the main case. On the same day, i.e. on 12.11.2005 the appellant’s ad-interim pre-arrest bail was confirmed by the learned Additional Sessions Judge-II, Abbottabad. Upon completion of the investigation of this case a Challan (report under section 173, Cr.P.C.) was submitted before the Court of Session, Abbottabad on 20.11.2005 and the learned Sessions Judge, Abbottabad kept the case to his own court for trial. On 28.02.2006 an application was submitted by the appellant under section 345(6), Cr.P.C. seeking his acquittal in this case on the basis of the compromise already entered into by the parties at the stage of bail but on 30.08.2006 the learned Sessions Judge, Abbottabad dismissed the said application of the appellant because by that time the heirs of the deceased had resiled from the compromise. The appellant filed Criminal Revision No. 27 of 2006 before the Peshawar High Court, Abbottabad Bench against the said order passed by the learned Sessions Judge, Abbottabad but the appellant’s revision petition was dismissed by a learned Judge- in-Chamber of the Peshawar High Court, Abbottabad Bench on 09.03.2007. Thereafter the appellant filed Criminal Petition No. 123 of 2007 before this Court wherein leave to appeal was granted on 03.07.2013. Hence, the present appeal before this Court. 3. In support of this appeal the learned counsel for the appellant has submitted that it had never been disputed by any party that at the stage of confirmation of the appellant’s ad-interim pre-arrest bail by the learned Additional Sessions Judge-II, Abbottabad the heirs of Safeer Ahmed deceased had entered into a compromise with the appellant and that they had stated before the Commissioner that they had no objection to confirmation of the ad- interim pre-arrest bail of the appellant besides having no objection to his acquittal. According to the learned counsel for the appellant once a genuine compromise had been entered into by the heirs of the deceased with the appellant and such compromise had also partly been acted upon then the heirs of the deceased could not thereafter be permitted to resile from the same and such compromise enured to the benefit of the appellant even during the Criminal Appeal No. 135 of 2013 4 trial before the trial court for the purpose of seeking acquittal. He has maintained that if the application of the appellant for pre- arrest bail had been decided by the learned Additional Sessions Judge-II, Abbottabad then the learned Sessions Judge, Abbottabad should not have kept the case of the appellant to his own court for trial and the trial of the appellant should also have been marked by the learned Sessions Judge, Abbottabad to the learned Additional Sessions Judge-II, Abbottabad so that the earlier compromise arrived at between the parties could have been given effect to by the learned Additional Sessions Judge-II, Abbottabad even during the trial. The learned counsel for the appellant has pointed out that in the case of Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others (1998 SCMR 466) a 2-member Bench of this Court had declared that a compromise in a criminal case entered into at the stage of bail is to enure to the benefit of the accused person even at the stage of trial but later on in the case of Muhammad Akram v. Abdul Waheed and 3 others (2005 SCMR 1342) another 2-member Bench of this Court had taken a different view of the matter and had declared that a compromise entered into between the parties to a criminal case at the stage of bail is to have no value at the stage of trial and it is only that compromise which has been entered into or is validly subsisting during the pendency of the trial which can be accepted by a trial court for the purposes of recording acquittal of an accused person. The learned counsel for the appellant has maintained that in the later case of Muhammad Akram the earlier case of Syed Iftikhar Hussain Shah had not even been referred to by this Court and, thus, the judgment passed in the case of Muhammad Akram can only be treated as per incuriam. As against that the learned Additional Prosecutor-General, Khyber Pakhtunkhwa appearing for the State has maintained that the case of Muhammad Akram decided subsequently by this Court had proceeded on the correct legal lines and the same had been followed by the Peshawar High Court, Abbottabad Bench in the case in hand and, thus, there is hardly any occasion for this Court to set aside the impugned judgment passed by the High Court. Criminal Appeal No. 135 of 2013 5 4. After hearing the learned counsel for the parties, going through the record of the case and attending to the precedent cases available on the subject we have observed that the matter of resiling from a compromise in a criminal case has been a subject of some controversy in different cases decided by different courts in the Indo-Pak sub-continent and we have also noticed that the actual reasons generating such controversy had never been clearly discussed or spelt out in such cases. In the cases of Kumarasami Chetty v. Kuppusami Chetty and others (AIR 1919 Madras 879(2)), Ram Richpal v. Mata Din and another (AIR 1925 Lahore 159), Jhangtoo Barai and another v. Emperor (AIR 1930 Allahabad 409), Dharichhan Singh and others v. Emperor (AIR 1939 Patna 141), Mt. Rambai w/o Bahadursingh v. Mt. Chandra Kumari Devi (AIR 1940 Nagpur 181), Godfrey Meeus v. Simon Dular (AIR (37) 1950 Nagpur 91), Prithvi Bhagat and another v. Birju Sada (AIR 1962 Patna 316), Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another (1995 MLD 563), Nabi Bakhsh, etc. v. Rehman Ali, etc. (PLJ 1999 Cr.C. (Lahore) 721), Barish Ali and 2 others v. Chaudhry Mushtaq Ahmed, Additional Sessions Judge Depalpur District Okara and 6 others (PLJ 2002 Cr.C. (Lahore) 1009), Mst. Maqsooda Bibi v. Amar Javed, etc. (NLR 2003 Criminal 545) and Manzoor Ahmed and another v. The State, etc. (NLR 2004 SD 1060) it had been held by different High Courts that a compromise between the parties to a criminal case, duly entered into and acted upon, cannot be allowed to be resiled from by any party and the stage at which such compromise had been entered into is immaterial. In some of the said cases a compromise entered into even at the stages of investigation or bail was not allowed to be resiled from at the stage of trial. We have carefully gone through the judgments rendered in the said precedent cases and have noticed that in the said judgments it had never been clearly mentioned or spelt out that the provisions of section 345, Cr.P.C. governing the matter of compounding of offences have two distinct parts and they pertain to cases which can be compounded without the permission of a court and cases in which compounding of the Criminal Appeal No. 135 of 2013 6 offence can be brought about only with the permission of a court. It may be advantageous to reproduce the relevant portions of section 345, Cr.P.C. for facility of understanding: 345. Compounding offences. (1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:- --------------------- --------------------- (2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table:- --------------------- --------------------- (2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. (3) When any offence is compoundable under this section, the abetment of such offence or any attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner. (4) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence. (5) When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard. (5-A) A High Court acting in the exercise of its power of revision under section 439 and a Court of Session so acting under section 439-A, may allow any person to compound any offence which he is competent to compound under this section. (6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. (7) No offence shall be compounded except as provided by this section. Subsection (1) of section 345, Cr.P.C. enlists the offences which may be compounded by the specified persons without any Criminal Appeal No. 135 of 2013 7 intervention of any court and in some of the above mentioned precedent cases it had been clarified that compounding in such cases takes effect from the moment the compromise is completely entered into by the parties, the relevant court which is to try the offence in issue is left with no jurisdiction to refuse to give effect to such a compromise and a party to such a compromise cannot resile from the compromise at any subsequent stage of the case. On the other hand subsection (2) of section 345, Cr.P.C. deals with cases in which the offences specified therein can be compounded only with the permission of the court and in all such cases any compromise arrived at between the parties on their own at any stage is not to take effect at all unless the court permits such compromise to be given effect to and the relevant court for the purpose is the court before which prosecution for the relevant offence is pending. Subsection (5) of section 345, Cr.P.C. goes on to provide that when an accused person has been convicted and an appeal is pending no composition of the offence can be allowed without leave of the court before which the appeal is to be heard and subsection (5-A) of section 345, Cr.P.C. provides for a court of revisional jurisdiction to allow a person to compound any offence which he is competent to compound under section 345, Cr.P.C. Subsection (7) of section 345, Cr.P.C. categorically declares that no offence can be compounded except as provided by section 345, Cr.P.C. It is in this context that the Lahore High Court, Lahore had declared in the case of Rana Awais and others v. S.H.O., Police Station People’s Colony, Faisalabad and others (2001 P.Cr.L.J. 241) that in a case falling in the category of cases specified in subsection (2) of section 345, Cr.P.C. any private composition of an offence by the parties has no legal value as in such cases the offence can only be compounded with the permission of the court before which prosecution for the relevant offence is pending. A similar view had earlier on been taken in the cases of Naurang Rai v. Kidar Nath and another (29 Cr.L.J. 1928), In re M. S. Ponnuswamy Ayyar (AIR 1937 Madras 825), Thunki w/o Deoman and another v. Bajirao Sitaram Dhoke (AIR 1956 Nagpur 161) and State of U.P. v. Nanhey (AIR 1968 Allahabad 394). This was also the Criminal Appeal No. 135 of 2013 8 view clearly taken and expressed by this Court in the case of Muhammad Akram v. Abdul Waheed and 3 others (2005 SCMR 1342). It had been observed by this Court in that case as follows: “4. We have heard the learned counsel for the petitioner who, inter alia, contended that the Court below had not considered the case in its proper perspective and that the affidavits filed by the P.Ws. as well as the injured to this effect have not been considered; that the compromise once effected is binding on the parties and the petitioner is entitled to acquittal under section 249-A, C.P.C. 5. We have considered the contentions of the learned counsel for the petitioner and carefully scanned the record available. Admittedly the petitioner was granted bail solely on the ground that the complainant party including injured filed affidavits in favour of the petitioner; that he may be released on bail. Subsequently, after completion of the investigation, police submitted charge-sheet against him before the trial Court where the case is pending for trial. The trial Court and the learned High Court rightly rejected the application of the petitioner. 6. The impugned judgment is well-reasoned and is entirely in accordance with the law, which does not call for any interference by this Court. However, for ready reference the relevant paragraph of the impugned judgment is reproduced below:--- "(3) I have heard the learned counsel for the petitioner at length, also have gone through the impugned order as also the contents of this petition. Under subsection (2) of section 345, Cr.P.C. the offences mentioned in the first two columns given in the said section may, with the permission of the Court before whom any prosecution for such offence is pending, be compounded by the persons mentioned in the third column given thereunder. It is an admitted position that compromises were effected during the pendency of petition for bail before arrest, when the prosecution of the offences was not pending before the learned trial Court. Such a compromise cannot be made basis for acquittal of the petitioner as under section 345(2), Cr.P.C. it is the trial Court which has to satisfy itself and grant permission to compound the offence being tried by it. I find no illegality or jurisdictional error in the impugned orders and maintain the same. The case-law cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of this case." 7. For the facts, circumstances and reasons stated hereinabove, we are of the considered opinion that the petition is without merit and substance, which is hereby dismissed and leave declined.” Criminal Appeal No. 135 of 2013 9 5. In the present case the offence involved is that under section 302, PPC which falls squarely within the ambit of subsection (2) of section 345, Cr.P.C. and, therefore, a compromise arrived at between the parties at the stage of bail, when even the Challan had not been submitted before the trial court, could not validly have been accepted as a compromise and the trial court could not have accepted any such compromise when before the trial court the heirs of the deceased were not willing to abide by the earlier agreement entered into by them with the present appellant. Apart from that there was no verification of the list of heirs of the deceased available before the trial court, the heirs of the deceased had not appeared before the trial court for getting their statements recorded in support of the compromise, the Commissioner before whom the heirs of the deceased had acknowledged the factum of compromise had not appeared before the trial court and, thus, there was no verified, valid or subsisting compromise before the trial court for according the requisite permission to compound the offence in terms of the requirements of subsection (2) of section 345, Cr.P.C. If the requirements of subsection (2) of section 345, Cr.P.C. did not stand fulfilled then, as expressly forbidden by subsection (7) of section 345, Cr.P.C., the trial court could not have accepted the application filed by the appellant for his acquittal on the basis of the claimed compromise. In this view of the matter the impugned judgment passed by the High Court in the present case has been found by us to be unexceptionable and completely in accord with the provisions of subsection (2) of section 345, Cr.P.C. read with subsection (7) of section 345, Cr.P.C. besides being in line with the law clearly declared by this Court in the above mentioned case of Muhammad Akram. 6. The learned counsel for the appellant has referred to the case of Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others (1998 SCMR 466) and also to two judgments passed by one of us (Asif Saeed Khan Khosa, J.) as a Judge of the Lahore High Court, Lahore in the cases of Manzoor Ahmed and another v. The State and 2 others (PLD 2003 Lahore 739) and Mst. Maqsooda Criminal Appeal No. 135 of 2013 10 Bibi v. Amar Javed, etc. (NLR 2003 Criminal 545) to maintain that a compromise entered into at the stage of bail is to enure to the benefit of the accused person even at the stage of his trial. We note that the cases of Manzoor Ahmed and Mst. Maqsooda Bibi had been decided by one of us (Asif Saeed Khan Khosa, J.) at a time when the only judgment of this Court holding the field was that handed down in the case of Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others (1998 SCMR 466) and in those judgments of the High Court the said judgment passed by this Court had expressly been referred to and followed. Till that time the judgment passed by this Court in the case of Muhammad Akram v. Abdul Waheed and 3 others (2005 SCMR 1342) had not been rendered and no other view of this Court was available in the field. After passage of the judgment by this Court in the case of Muhammad Akram the situation had undergone a sea change and, thus, the earlier judgments rendered by different High Courts are now to be examined or scrutinized on the basis of the law declared by this Court in the said case of Muhammad Akram. We find ourselves in complete harmony with the legal position declared by this Court in the said case and hold that in all cases covered by the provisions of subsection (2) of section 345, Cr.P.C. no compromise entered into by the parties privately can have any legal sanctity or validity vis-à-vis compounding of the relevant offence unless the court before which the prosecution for the relevant offence is pending grants a formal permission accepting the compromise between the parties and in all such cases if no prosecution is pending before any court when the compromise is entered into and no permission by the trial court is granted to compound the offence any compromise privately entered into between the parties cannot be accepted as valid compounding as is declared by subsection (7) of section 345, Cr.P.C. As regards the judgment passed by this Court in the case of Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others (1998 SCMR 466) we have noticed that in the said case the injured victim had entered into a compromise with the accused person at the stage of bail, in furtherance of that compromise the injured victim had received Criminal Appeal No. 135 of 2013 11 monetary compensation from the accused person and the accused person had already been acquitted on the basis of the compromise before the matter had reached this Court. In that backdrop this Court had held as under: “It may be true that while accepting revision application, the learned Judge in Chambers should have directed the learned Sessions Judge to dispose of the case in accordance with law but it is submitted before us that the learned Sessions Judge has already acquitted the accused in the case which has not been challenged by the petitioner. Be that as it may, after reading the statement of the petitioner recorded by the learned Additional Session Judge while disposing of the pre-arrest bail application of respondents, we are in no doubt that a sum of Rs.4,000 was received by the petitioner as compensation for settlement of the case and as such it is not a fit case in which leave should be granted. The order of the learned Judge in Chamber is a just and proper order in the circumstances of the case and no case is made out for interference with this order. Petition is, accordingly, dismissed and leave to appeal is refused.” It was in those peculiar circumstances of the case that this Court had, in exercise of its discretion, refused to interfere in the matter of the accused person’s acquittal. The said decision of this Court had proceeded on the basis of the peculiar circumstances of that case and no declaration of law of general applicability had been made by this Court in the judgment passed in the said case. 7. It may be relevant to mention here that section 309, PPC refers to waiver (afw) of right of Qisas in a case of Qatl-i-amd and section 310, PPC mentions compounding (sulh) in a case of Qatl-i- amd and, thus, an issue may crop up in future that the law declared by us through the present judgment in terms of the provisions of subsection (2) of section 345, Cr.P.C. relates to compounding under section 310, PPC and not to waiver under section 309, PPC. We would like to make it clear that it has already been clarified by this Court in the case of Zahid Rehman v. The State (PLD 2015 SC 77) that the provisions of sections 309 and 310, PPC are relevant only to cases of Qisas and not to cases of Ta’zir and a case is to be a case of Qisas only where the provisions of section 304, PPC stand attracted, i.e. where the accused person confesses his guilt before the trial court or where Tazkiya-tul- Criminal Appeal No. 135 of 2013 12 shahood of the witnesses is conducted by the trial court before trial of the accused person as required by Article 17 of the Qanun-e- Shahadat Order, 1984. Be that as it may the fact remains that both such steps required to make a case one of Qisas are relevant to a trial court and, thus, even waiver or compounding provided for in sections 309 and 310 are relevant to a trial court and not to any stage before the case reaches the trial court. 8. For what has been discussed above we have found the impugned judgment passed by the High Court to be based upon a correct understanding and application of the relevant law and also in accord with the legal position declared by this Court in the case of Muhammad Akram v. Abdul Waheed and 3 others (2005 SCMR 1342) and, therefore, this appeal is dismissed. Judge Judge Judge Islamabad 26.01.2016 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mushir Alam Mr. Justice Maqbool Baqar Mr. Justice Manzoor Ahmad Malik Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Syed Mansoor Ali Shah Criminal Appeal No. 137-L of 2010 (Against the judgment dated 06.10.2010 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 534 of 2005 and Murder Reference No. 547 of 2005) Muhammad Yousaf … Appellant versus The State, etc. … Respondents For the appellant: Mr. Muhammad Akram Qureshi, ASC For the State: Rana Abdul Majeed, Additional Prosecutor-General, Punjab For respondents No. 2 & 3: Mr. Rashid Mehmood Sindhu, ASC Syed Rafaqat Hussain Shah, AOR with respondents No. 2 & 3 in person Date of hearing: 25.10.2018 JUDGMENT Asif Saeed Khan Khosa, CJ.: One Muhammad Aslam was murdered and another namely Ijaz Ahmad was injured in an occurrence taking place on 02.02.2005 in Chak No. 93/WB in the area of Police Station Thingi, District Vehari and in that regard respondents No. 2 and 3, brothers inter se, were booked in case Criminal Appeal No. 137-L of 2010 2 FIR No. 19 registered at the said Police Station on the same day at the instance of the present appellant/complainant. After a regular trial respondents No. 2 and 3 were convicted by the learned Additional Sessions Judge, Vehari on 19.07.2005 for the offences under sections 302(b) and 324 of the Pakistan Penal Code, 1860 (PPC) read with section 34, PPC. For the offence under section 302(b), PPC read with section 34, PPC respondent No. 2 was sentenced to death and respondent No. 3 was sentenced to imprisonment for life whereas for the offence under section 324, PPC read with section 34, PPC both the said respondents were sentenced to rigorous imprisonment for 10 years each. The said respondents were also ordered to pay a sum of Rs. 1,00,000/- each to the heirs of Muhammad Aslam deceased by way of compensation under section 544-A of the Code of Criminal Procedure, 1898 (Cr.P.C.), to pay a sum of Rs. 1,75,000/- jointly to the injured victim namely Ijaz Ahmad by way of Arsh being half of the amount of Diyat and to pay a sum of Rs. 50,000/- jointly to the said Ijaz Ahmad by way of Daman. It was ordered that in case of default in payment of the said amounts respondents No. 2 and 3 would undergo rigorous imprisonment for a period of 6 months each. The benefit under section 382-B, Cr.P.C. was extended to the said respondents. 2. Respondents No. 2 and 3 jointly challenged their convictions and sentences before the Lahore High Court, Multan Bench, Multan through Criminal Appeal No. 534 of 2005 which was to be heard by a learned Division Bench of the said Court along with Murder Reference No. 547 of 2005 seeking confirmation of the sentence of death passed by the trial court against respondent No. 2. During the pendency of that appeal Criminal Miscellaneous No. 102 of 2009 was filed before the High Court seeking acquittal of respondents No. 2 and 3 from the charge under section 302(b), PPC read with section 34, PPC on the basis of a compromise between the said respondents and the heirs of Muhammad Aslam deceased which matter was referred by the High Court to the Criminal Appeal No. 137-L of 2010 3 learned District & Sessions Judge, Vehari for its verification. The report dated 25.02.2009 submitted in that regard by the learned District & Sessions Judge, Vehari showed that Muhammad Aslam deceased was survived by his father namely Waryam, his widow namely Mst. Razia Bibi and his son namely Muhammad Akmal out of whom the father of the deceased had denied entering into any compromise with respondents No. 2 and 3 whereas the widow and the son of the deceased had confirmed that they had entered into a compromise with respondents No. 2 and 3, they had forgiven the said respondents in the name of Almighty Allah and they had no objection to acquittal of the said respondents from the charge of murder on the basis of the compromise. During the pendency of Criminal Miscellaneous No. 102 of 2009 Waryam, the father of Muhammad Aslam deceased, died and thereafter Criminal Miscellaneous No. 431-M of 2010 was filed before the High Court seeking acquittal of respondents No. 2 and 3 from the charge of murder because all the surviving heirs of Muhammad Aslam deceased were agreeable to a compromise with the said respondents. The matter of compromise was again referred by the High Court to the learned District & Sessions Judge, Vehari for its verification. The report dated 12.05.2010 submitted by the learned District & Sessions Judge, Vehari in that regard confirmed that the surviving heirs of Muhammad Aslam deceased, i.e. his widow and son had acknowledged their compromise with respondents No. 2 and 3, they had forgiven the said respondents in the name of Almighty Allah and they had no objection to the respondents’ acquittal from the charge of murder on the basis of the compromise. The learned District & Sessions Judge, Vehari had, however, pointed out in that report that on an earlier occasion the father of Muhammad Aslam deceased, an heir of the said deceased, had denied entering into any compromise with respondents No. 2 and 3 and after his subsequent death his four sons namely Muhammad Yousaf, Muhammad Ashraf, Atta Ullah and Noor Ahmad, brothers of Muhammad Aslam deceased, were not agreeable to a compromise with respondents No. 2 and 3. The Criminal Appeal No. 137-L of 2010 4 learned District & Sessions Judge, Vehari was of the opinion that the said sons of Waryam and brothers of Muhammad Aslam deceased were not heirs of Muhammad Aslam deceased and, thus, their refusal to enter into a compromise with respondents No. 2 and 3 was irrelevant to the compromise voluntarily entered into by the surviving heirs of the deceased with respondents No. 2 and 3. According to the learned District & Sessions Judge, Vehari the acclaimed compromise between the surviving heirs of Muhammad Aslam deceased and respondents No. 2 and 3 was voluntary and complete. After perusal of the said report and after finding the compromise between the surviving heirs of Muhammad Aslam deceased and respondents No. 2 and 3 to be voluntary and complete a learned Division Bench of the Lahore High Court, Multan Bench, Multan accepted the compromise vide judgment dated 06.10.2010, partially allowed Criminal Appeal No. 534 of 2005 filed by respondents No. 2 and 3, acquitted the said respondents of the charge under section 302(b), PPC read with section 34, PPC on the basis of the compromise and dismissed the said appeal to the extent of the convictions and sentences of the said respondents for the offence under section 324, PPC read with section 34, PPC while answering the Murder Reference in the negative. 3. Aggrieved of the judgment passed by the Lahore High Court, Multan Bench, Multan on 06.10.2010 the appellant/complainant filed Criminal Petition for Leave to Appeal No. 1091-L of 2010 before this Court and on 24.12.2010 the said petition was allowed by this Court and leave to appeal was granted in the following terms: “Inter alia contends that the learned High Court has allowed compromise of the offence of murder on the application of two legal heirs namely Razia Bibi (wife of the deceased) and Muhammad Akmal (son of the deceased) notwithstanding the fact that the father of the deceased namely Waryam who was alive at the time of murder of Sajid [actually Muhammad Aslam] but died when the application for compounding the offence was made, his heirs were ‘walis’ and the offence could not have been compounded without their concurrence. Criminal Appeal No. 137-L of 2010 5 2. Having heard learned counsel for the petitioner at some length, leave is granted inter alia to consider whether the heir of an heir of the victim could be a ‘wali’ of the said victim and whether the law laid down by this Court [actually the Lahore High Court, Lahore] in Ahmed Nawaz Vs. State (PLD 2007 Lahore 121) would be attracted to the facts of the case in hand?” On 05.06.2018 it was noticed by this Court that the view of the relevant law taken by the Lahore High Court, Lahore in the case of Ahmad Nawaz alias Gogi v The State (PLD 2007 Lahore 121) was based upon the definition of ‘wali’ contained in section 305(a), PPC whereas a different view of the same law subsequently taken by a 5-member Bench of this Court in the case of Abdul Rashid alias Teddi v The State and others (2013 SCMR 1281) did not even refer to the definition of ‘wali’ contained in section 305(a), PPC. In this background it was felt by this Court on that date of hearing that the issue involved in the present case required a fresh look so as to render an authoritative pronouncement on the subject and, thus, the office of this Court was directed to bring the matter to the notice of the then Hon’ble Chief Justice who was requested to consider advisability or otherwise of constitution of a Larger Bench of at least seven Hon’ble Judges of this Court in order to resolve the controversy noted above. It is in this backdrop that the present Larger Bench is now seized of the matter. 4. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance besides perusing the precedent cases referred to by them. It has been argued by the learned counsel for the appellant that in the case of Abdul Rashid alias Teddi v The State and others (2013 SCMR 1281) this Court has already declared that the right to compound an offence is a heritable right and upon the death of a wali of the victim his right devolves upon that wali’s heirs and, thus, in the present case upon the death of the appellant’s father his capacity of being a wali of Muhammad Aslam deceased had devolved upon the appellant and his brothers and, therefore, compounding of the offence by the surviving heirs of Muhammad Criminal Appeal No. 137-L of 2010 6 Aslam deceased with respondents No. 2 and 3 could not materialize unless the appellant and his brothers had joined the compounding. He has also argued that the case in hand was a case of Ta’zir and by virtue of the law declared by this Court in the case of Sh. Muhammad Aslam and another v Shaukat Ali @ Shauka and others (1997 SCMR 1307) compounding of the offence of murder in the present case could not succeed unless all the heirs of Muhammad Aslam deceased, including the appellant and his brothers possessing the devolved status of wali upon the death of their father, had consented to the compromise. While referring to the case of Zahid Rehman v The State (PLD 2015 SC 77) the learned counsel for the appellant has maintained that the concept of compounding of an offence of murder is common to cases of Qisas as well as of Ta’zir and, therefore, the principles applicable to cases of Qisas in the matter of compounding of an offence ought to be read into cases of Ta’zir as well. He has, thus, prayed that the impugned judgment passed by the High Court may be set aside and the High Court may be required to decide the issue of compounding of the offence of Muhammad Aslam’s murder afresh in accordance with the law. The learned Additional Prosecutor- General, Punjab appearing for the State has also submitted that the right to claim Qisas is a heritable right in Islamic law and the same stands recognized in the provisions of section 307, PPC and, therefore, the offence of murder of Muhammad Aslam in the present case could not have been compounded by some of the heirs of the victim in the absence of the appellant and his brothers on whom the right to claim Qisas had devolved on account of death of their father after the murder of Muhammad Aslam. The leaned Additional Prosecutor-General has also prayed for setting aside of the impugned judgment passed by the High Court and for remand of the matter to the High Court for a decision of the matter of compounding afresh. As against that the learned counsel for respondents No. 2 and 3 has contended that the principles applicable to compounding of an offence in cases of Qisas cannot be made applicable to cases of Ta’zir which cases are governed in Criminal Appeal No. 137-L of 2010 7 the matter by the provisions of section 345, Cr.P.C. and in terms of section 345(2), Cr.P.C. the appellant and his brothers were not heirs of the victim and, therefore, they had no recognized role to play in the matter of compounding of the offence of Muhammad Aslam’s murder. He has, thus, prayed for upholding of the impugned judgment of the High Court and dismissal of the present appeal. 5. After hearing the learned counsel for the parties, perusing the record of the case with their assistance and going through the precedent cases referred to before us we have found it appropriate to refer to the relevant statutory provisions first and then to discuss the precedent cases on the subject. The Pakistan Penal Code, 1860 (PPC) provides for and recognizes two distinct and separate regimes in the criminal justice system of the country and they pertain to cases of Qisas and cases of Ta’zir depending primarily upon the standard of evidence required and produced in a criminal case. The distinction between the separate regimes of Qisas and Ta’zir cases was clearly elucidated by this Court in many cases including the cases of Sh. Muhammad Aslam and another v Shaukat Ali @ Shauka and others (1997 SCMR 1307) and Zahid Rehman v The State (PLD 2015 SC 77). It may be advantageous to begin the discussion with the relevant statutory provisions governing waiver (Afw) and compounding (Sulh) in cases of Qisas pertaining to the offence of qatl-i-amd (intentional murder) under section 302, PPC. Section 309(1), PPC provides that in a case of qatl-i-amd an adult sane wali may waive his right of Qisas without any compensation, section 310(1), PPC provides that in a case of qatl-i-amd an adult sane wali may compound his right of Qisas on accepting badal-i-sulh (compensation) and according to section 313(1), PPC the right of Qisas vests in the sole wali if there is only one and in each one of them if there are more than one. Section 305, PPC provides as follows: “305. Wali.-- In case of qatl, the wali shall be- Criminal Appeal No. 137-L of 2010 8 (a) the heirs of the victim, according to his personal law but shall not include the accused or the convict in case of qatl-i-amd if committed in the name or on the pretext of honour; and (b) the Government, if there is no heir.” Section 299(m), PPC defines wali in the following terms: “ “wali” means a person entitled to claim qisas (other than the person who has murdered the victim).” Section 307(1)(c), PPC provides as follows: “307. Cases in which qisas for qatl-i-amd shall not be enforced. (1) Qisas for qatl-i-amd shall not be enforced in the following cases, namely: (a) --------------------- (b) --------------------- (c) when the right of qisas devolves on the offender as a result of the death of the wali of the victim, or on the person who has no right of qisas against the offender. (2) --------------------- Illustrations (i) A kills Z the maternal uncle of his son B. Z has no other wali except D the wife of A. D has the right of qisas from A. But if D dies, the right of qisas shall devolve on her son B who is also the son of the offender A. B cannot claim qisas against her father. Therefore, the qisas cannot be enforced. (ii) D kills Z, the brother of her husband A. Z has no heir except A. Heir A can claim qisas from his wife B. But if A dies, the right of qisas shall devolve on his son D who is also son of B, the qisas cannot be enforced against B.” According to this section the right of Qisas vesting in a wali devolves on his heirs as a result of death of the wali. 6. From the statutory provisions referred to and quoted above it emerges that in cases of Qisas the right of Qisas vests in each wali (section 313, PPC), a wali may waive his right of Qisas (section 309, PPC), a wali may compound his right of Qisas (section 310, PPC), the heirs of the victim are his wali, according to his personal law (section 305(a), PPC), a person entitled to claim Qisas is wali (section 299(m), PPC) and upon death of a wali his right of Qisas devolves on the heirs of the wali (section 307, PPC). It, thus, becomes evident that even an heir of an heir of a victim has a Criminal Appeal No. 137-L of 2010 9 (devolved) right of Qisas and he himself becomes a wali and in that devolved capacity of a wali he too can waive or compound the offence of qatl-i-amd in a case of Qisas. According to section 309(2), PPC and the proviso to the same if a wali (having the original or a devolved right of Qisas) does not waive his right of Qisas but the other wali waive their right of Qisas then the non-waiving wali is entitled to his share of Diyat. Therefore, had the case in hand been a case of Qisas then the appellant and his other brothers (who were not the heirs of Muhammad Aslam deceased but the right of Qisas possessed by the victim’s father had devolved upon them upon the father’s subsequent death and they had not waived their devolved right of Qisas against respondents No. 2 and 3) would have been entitled to their share of Diyat whereas the waiver would have been effective to the extent of all the other wali of the victim who had waived their right of Qisas against respondents No. 2 and 3. 7. It is not disputed that the case in hand is a case of Ta’zir and not of Qisas because the proof required for a case of Qisas in terms of section 304, PPC was not adduced in this case before the trial court. It may be clarified here that a criminal case becomes a cases of Qisas when, after the case has reached the trial court, either a confession is made by the accused person before the trial court during the trial or Tazkiya-tul-shahood (scrutiny of the witnesses before trial of the accused person) is undertaken by the trial court and unless either of the said two things happen before the trial court every criminal case is to be treated as a case of Ta’zir at every stage of the case including the stage of investigation. Compounding of offences in cases of Ta’zir is governed by section 345, Cr.P.C. and according to section 345(2), Cr.P.C. (as the said legal provision stood in the year 2005 when the offences in the present case had been committed) the offence of qatl-i-amd under section 302, PPC could be compounded with the permission of the relevant court “By the heirs of the victim other than the accused or the convict if the offence has been committed by him in the name Criminal Appeal No. 137-L of 2010 10 or on the pretext of karo kari, siyah kari or similar other customs or practices”. The said legal provision was amended on 21.10.2016 and it presently reads as “By the heirs of the victim subject to the provisions of section 311, PPC.” According to the law in this country succession opens at the time of death of a person and upon his death his assets automatically stand devolved upon those who are entitled to inherit from him in specified shares in terms of his personal law and such inheriting persons are called the heirs of the deceased. There is, thus, no confusion in our law that an heir is a person who is entitled to inherit from the deceased at the time of his death. In view of this settled and recognized principle when the law of the land provides that in a case of Ta’zir an offence of qatl-i-amd under section 302, PPC may be compounded by the “heirs of the victim” and when an heir of a victim is only a person who inherits directly from the victim then what is clearly meant by section 345(2), Cr.P.C. is that only a person who can directly inherit from the victim is the person who can compound the offence of qatl-i-amd of the victim and none else. 8. We note that the concept of wali relevant to a case of Qisas is not relevant to a case of Ta’zir which belongs to a different regime of criminal law and is governed by separate and distinct principles. It has to be understood very clearly that in cases of Qisas the term wali means the entire body or group of persons who are entitled to claim Qisas for a qatl-i-amd and such persons include those who are heirs of the victim entitled to inherit from him as well as those on whom the right of Qisas devolves upon death of an heir of the victim even if such heirs of the heir of the victim do not themselves inherit from the victim directly. In cases of Ta’zir the law has conferred the capacity to compound only upon the heirs of the victim and has not provided for devolving of the capacity to compound upon an heir of an heir of the victim as has been provided in cases of Qisas, as discussed above. It has been canvassed before us that for the purposes of harmonious construction the said principle applicable to cases of Qisas may be Criminal Appeal No. 137-L of 2010 11 read into cases of Ta’zir as well but we have not felt persuaded to venture into such an exercise of judicial legislation through the means of interpretation, particularly when this Court has already recognized and declared in some earlier cases that different principles apply to cases of Qisas and Ta’zir in the matter of compounding of an offence and such principles cannot be confused or mixed and, hence, an attempt to harmonize the two concepts or principles may amount to unwholesome judicial engineering offensive to the concepts themselves. In the case of Sh. Muhammad Aslam and another v Shaukat Ali @ Shauka and others (1997 SCMR 1307) the distinction between the principles applicable to cases of Qisas under sections 309 and 310, PPC and to cases of Ta’zir under section 345, Cr.P.C. had clearly been recognized and acknowledged by this Court. The said case was a case of Ta’zir wherein a partial compromise had been arrived at between the convict and some of the heirs of the victim. This Court had elaborately discussed the issue from diverse angles and had then concluded that a partial compromise was acceptable in a case of Qisas but the same was not acceptable in a case of Ta’zir. In many subsequent cases and particularly in the case of Zahid Rehman v The State (PLD 2015 SC 77) this Court had reiterated and categorically declared again that the principles regarding compounding of an offence applicable to a case of Qisas are not relevant or applicable to a case of Ta’zir. In that case it was observed by this Court as under: “This Court has already declared that section 309, P.P.C. pertaining to waiver (Afw) and section 310, P.P.C. pertaining to compounding (Sulh) in cases of murder are relevant only to cases of Qisas and not to cases of Ta’zir and a reference in this respect may be made to the cases of Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307), Niaz Ahmad v. The State (PLD 2003 SC 635) and Abdul Jabbar v. The State and others (2007 SCMR 1496). In the said cases it had also been clarified by this Court that in cases of Ta’zir the matter of compromise between the parties is governed and regulated by the provisions of section 345(2), Cr.P.C. read with section 338-E, P.P.C. In the same cases it had further been explained and clarified by this Court that a partial compromise may be acceptable in cases of Qisas but a partial compromise is not acceptable in cases of Ta’zir. The cases of Manzoor Hussain and 4 others v. The State (1994 SCMR 1327), Muhammad Saleem v. The Criminal Appeal No. 137-L of 2010 12 State (PLD 2003 SC 512), Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others (PLD 2003 SC 547), Niaz Ahmad v. The State (PLD 2003 SC 635), Riaz Ahmad v. The State (2003 SCMR 1067), Bashir Ahmed v. The State and another (2004 SCMR 236) and Khan Muhammad v. The State (2005 SCMR 599) also throw sufficient light on such aspects relating to the matter of compromise. It may be true that compounding of an offence falling in Chapter XVI of the Pakistan Penal Code is permissible under some conditions both in cases of Qisas as well as Ta’zir but at the same time it is equally true that such compounding is regulated by separate and distinct provisions and that such limited common ground between the two does not obliterate the clear distinction otherwise existing between the two separate legal regimes.” As if this were not enough, section 338-E(1), PPC clinches the issue by providing as follows: “338-E. Waiver or compounding of offences. (1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: ---------------------.” This section makes it abundantly clear that the principles of waiver and compounding contained in sections 309 and 310, PPC and applicable to cases of Qisas are neither applicable to nor do they control the principles contained in section 345, Cr.P.C. pertaining to compounding of offences in cases of Ta’zir. In view of such clear statutory clarification and in view of the above mentioned repeated judicial enunciation there is hardly any scope left for any harmonious construction of the two distinct and separate concepts by us. 9. For the purpose of clarity of understanding we may explain why Qisas and Ta’zir are said to belong to separate legal regimes. To start with, the two concepts have different origins as the concept of Qisas has its origin in divine Islamic law and jurisprudence pertaining to offences in respect of human life and body whereas the origin of the concept of Ta’zir is secular and in our context it is derived mainly from Anglo-Saxon traditions. In the regime of Qisas the offence is committed against the victim whereas in the regime of Ta’zir the offence is committed against the Criminal Appeal No. 137-L of 2010 13 State and the society as a whole. Application of Qisas or Ta’zir to a criminal case requires different standards of proof and entails different punishments. In cases of Qisas the right of Qisas as well as the right to waive or compound the offence vest in the victim or his wali whereas in cases of Ta’zir the serious offences committed in respect of human life or body were originally not compoundable in our law but subsequently only a limited concession was made in that regard by the State by amending the law and providing for compounding of most of such offences by the victim or his heirs. Even while making such concession and providing for composition of such offences no right to compound was conferred on the victim or his heirs and any composition proposed by the parties was made subject to permission or leave of the relevant court which may refuse to grant the requisite permission or leave in the peculiar circumstances of a given case. Partial compromise is permissible in a case of Qisas but is not allowed in a case of Ta’zir. Devolving of a right of Qisas, waiver or compounding on the heir of a dead wali of the victim is recognized in cases of Qisas but is not permitted or recognized in cases of Ta’zir. Claiming Qisas is a right in Islamic dispensation whereas compounding in a case of Ta’zir is a concession subject to permission or leave of the relevant court in serious offences. A right in law ordinarily devolves upon an heir but a concession extended to a particular person is not to devolve on another unless the law expressly provides for the same. We entertain no manner of doubt that while expressly providing for some principles applicable to compounding of offences in cases of Qisas and while omitting to expressly provide for the said principles vis-à-vis cases of Ta’zir the legislature was conscious of the difference between the two concepts and their requirements. The silence of the legislature in this regard speaks, and speaks quite loudly, and we as a Court of law cannot ignore it or override it by transposing the principles applicable to one regime of law to the other. We cannot shut our eyes to the clear provisions of section 345(7), Cr.P.C. according to which in a case of Ta’zir “No offence shall be compounded except as provided by this section.” Criminal Appeal No. 137-L of 2010 14 10. In the present case of Ta’zir the offence of murder of Muhammad Aslam could be compounded only by the heirs of the said victim and all the surviving heirs of that victim had voluntarily compounded the said offence with respondents No. 2 and 3. The High Court was, therefore, quite correct in holding that the appellant and his brothers, who were heirs of a subsequently dying heir of the victim, were not relevant to the matter of compounding of the offence. 11. The argument that in his lifetime Waryam, the father and one of the heirs of Muhammad Aslam deceased, had refused to join the compromise between the remaining heirs of the deceased and respondents No. 2 and 3 and, therefore, after the death of Waryam any compromise between the remaining heirs of Muhammad Aslam deceased and the said respondents could not be complete without the heirs of Waryam joining the same had failed to impress the High Court and we have also not felt persuaded to accept the same. As already observed above, the concept of devolving of the right of Qisas upon an heir of an heir/wali of the victim relevant to a case of Qisas is not applicable to cases of Ta’zir. In the absence of any devolving of the capacity to compound in a case of Ta’zir the capacity to compound possessed by an heir of the victim at the time of murder of the victim stands exhausted upon the subsequent death of that heir. Being the father and an heir of Muhammad Aslam deceased Waryam had a capacity to compound the relevant offence but he had not compounded the offence during his own lifetime and upon Waryam’s death his capacity to compound stood exhausted and the same was not heritable as Waryam’s heirs were not heirs of Muhammad Aslam deceased because they did not, and could not, inherit from him. After Waryam’s death his heirs could not be treated as heirs of Muhammad Aslam deceased and the only heirs of Muhammad Aslam deceased left in the field at such stage were those surviving heirs of Muhammad Aslam deceased who could inherit directly Criminal Appeal No. 137-L of 2010 15 from him and they could compound the offence throughout their lifetime irrespective of timing of Waryam’s death. In cases of Ta’zir section 345(2), Cr.P.C. does not specify any time when compounding of an offence may take place and the provisions of section 345(2), Cr.P.C. do not place any embargo upon compounding of the relevant offence by the surviving heirs of a victim at a time when one or more of the heirs of the victim has/have already died. Placing an embargo upon the surviving heirs of a victim in such a situation may amount to committing violence upon the provisions of section 345(2), Cr.P.C. which we are not ready to commit. 12. Another thing to be clearly understood in the present context is that there is a difference between devolving of a right of Qisas and devolving of the status of an heir. Section 307, PPC recognizes that the right of Qisas devolves on an heir of an heir of the victim and because of devolving of the right of Qisas on him an heir of an heir of the victim also becomes a wali of the victim and in that devolved capacity of wali such heir of an heir of the victim can also waive or compound the relevant offence. Section 307, PPC, however, does not provide or recognize that through such devolving of the right of Qisas on him an heir of an heir of the victim also becomes or is recognized as an heir of the victim. Such distinction between devolving of the right of Qisas and devolving of a right to inherit from the victim has to be clearly understood because the first is relevant to the concept of Qisas whereas the second is relevant to the concept of Ta’zir. It has already been observed by us above that in cases of Qisas the term wali means the entire body or group of persons who are entitled to claim Qisas for a qatl-i-amd and such persons include those who are heirs of the victim entitled to inherit from him as well as those on whom the right of Qisas devolves upon death of an heir of the victim even if such heirs of the heir of the victim do not themselves inherit from the victim directly. In Qisas the tie of blood with the victim is the governing consideration even if a wali in his devolved capacity is not in a Criminal Appeal No. 137-L of 2010 16 position to directly inherit from the victim whereas in Ta’zir the sole consideration for the capacity to compound is the capacity to inherit directly from the victim. The present case offers a classical example of such a distinction because by virtue of section 307, PPC the appellant and his brothers might have become wali of Muhammad Aslam deceased on account of possessing a devolved right of Qisas (relevant to a case of Qisas) but they are not the heirs of Muhammad Aslam deceased for the purposes of compounding of the offence under section 345(2), Cr.P.C. in this case of Ta’zir. 13. In the interim order passed in this case on 05.06.2018 it was noticed by this Court that the view regarding the issue at hand taken by the Lahore High Court, Lahore in the case of Ahmad Nawaz @ Gogi v The State (PLD 2007 Lahore 121) was in conflict with the view of this Court on the subject taken in the later case of Abdul Rashid alias Teddi v. The State and others (2013 SCMR 1281) but we note that in none of the said cases the all-important distinction between cases of Qisas and those of Ta’zir had come under discussion and the Courts were not properly assisted in those cases in this particular regard. In the case of Ahmad Nawaz @ Gogi (supra) the Lahore High Court, Lahore had observed on the issue as follows: “At the very outset, we may here reproduce section 305 PPC-- "305. WALI. ---In case of a qatl, the wali shall be (a) the heirs of the victim, according to his personal law but shall not include the accused or the convict in case of Qatl-e-Amd if committed in the name or on the pretext of honour; and (b) the Government, if there is no heir." A bare perusal of the above quoted section clearly states that in case of a qatl, the wali shall be the heirs of the victim, according to his personal law and the said provisions do not contemplate that the heirs of an heir of the victim shall also be wali of the victim. An heir of a person is understood to be a person who is entitled to inherit the property of the deceased at the time of his death. In the case in hand the inheritance of the victim automatically opened upon his death and at that time, the only heirs of the victim were his father and mother and thus the Criminal Appeal No. 137-L of 2010 17 property of the deceased automatically devolved upon the said heirs of the victim. After devolving of the property of the victim upon the said heirs the inheritance of the victim had been exhausted and there was nothing left for anybody else to inherit from the victim. Keeping in view the spirit of the provisions of section 305(a) PPC the heirs of a victim are surely different from the heirs of a wali of the victim. In the present case, the consanguine sisters were to inherit from the father of the victim namely Maqbool Ahmad and not from Mohsin Raza victim himself and thus they were the heirs of Maqbool Ahmad not of the victim namely Mohsin Raza. It is not disputed that the said consanguine sisters had not and could not inherit the property of Mohsin Raza as they were not his heirs at the time of his murder. What the consanguine sisters are claiming before us is a right to effect or refuse a compromise with the appellant which right they claim to have inherited from Mohsin Raza's father namely Maqbool Ahmad and they are not claiming any right to inherit the property of Mohsin Raza directly. According to the spirit and rationale of the provisions of section 305(a), P.P.C. a wali of the victim is the person who is entitled to inherit the property of the victim and the interpretation of the said provisions cannot be stretched to include in the definition of wali a person who claims to have inherited the right of compromise possessed by the Wali. No legal provision has been produced nor any reference to the Islamic Jurisprudence has been made before us to support such a stretched interpretation of the provisions of section 305(a), P.P.C. Apart from that the spirit of the Qisas and Diyat laws is to quench the thirst of revenge of the immediate heirs of the victim and thus the right to enter into a compromise or otherwise cannot be extended to any other remote relative of the deceased who may not inherit the property from the deceased at the time of his murder but may at some subsequent stage become entitled to inherit some property from some heir of the deceased upon the death of such heir.” In the later case of Abdul Rashid alias Teddi (supra) this Court had extensively quoted from a judgment passed by the Lahore High Court, Lahore in the case of Muhammad Jabbar v The State and 10 others (2000 P.Cr.L.J. 1688) and had then concluded as under: “14. To put it in other words, Islam is a religion of peace and harmony. It has for the first time in the history of mankind introduced and encouraged the concept of afw, darguzar/condoning and compounding of offences, even those relating to heinous crimes. Particularly, the one which relate to disputes between two or more private parties and carry an element of revenge, thus, harming the peace and tranquility in the society at large. For this purpose, through the dictates of various verses from the Holy Qur'an and Sunna of our Holy Prophet Hazrat Muhammad (Peace be upon him), a workable and practicable scheme for compounding of offences has been outlined under the Islamic criminal law. The purpose behind it is to provide a respectable and fair mode, based on the principles of equality of all human beings, to reach some settlement/compromise in the larger interest of the civil society and to bury the hatchet of revenge once for all, so as to save other generations from facing the consequence of enmity amongst different segments of society, aimed for satisfaction of endless Criminal Appeal No. 137-L of 2010 18 personal vendetta. On this account too, such provisions of law relating to compounding of criminal offences are to be interpreted and applied liberally for the benefit of society and the humanity at large, but at the same time as per injunctions of Islam. 15. Thus, after a careful reading of the provisions of section 345, Cr.P.C., other relevant guiding principles of Islamic jurisprudence in this regard and the cases cited at the Bar, we are of the opinion that not only the surviving legal heirs of the victim have legal authority to waive right of qisas and compound the offence with the appellant/convict upon payment of compensation of diyat or without payment in lieu of pleasure of God, but such right is equally inheritable by the successors of any legal heir of the victim, who during his life time had either not entered into compromise witch the appellant/convict or refused to enter into such compromise, as despite his earlier refusal he was competent to change his mind and to subsequently enter into such compromise with the appellant/convict, while the principle of estoppel was not attracted in such situation to debar his successor from exercising such right independently at their own free will.” It is obvious that in the said case, due to lack of proper assistance, the Islamic concept of Qisas and the principles applicable thereto in the matter of compounding of an offence were expressly referred to and were simply presumed to be applicable to the secular concept of Ta’zir and compounding of an offence under that concept. Apart from that while holding that “not only the surviving legal heirs of the victim have legal authority to waive right of qisas and compound the offence with the appellant/convict ---------------- ----- but such right is equally inheritable by the successors of any legal heir of the victim” no statutory provision or any source of Islamic jurisprudence had been referred to or relied upon by this Court. Both the above mentioned cases were cases of Ta’zir but on account of lack of proper assistance they were decided on the basis of principles applicable to cases of Qisas. We are, therefore, constrained to observe that the said cases may not to be approved or treated as good precedents on the subject. 14. In India the Islamic regime of Qisas in criminal cases is not recognized and originally the matter of compounding of an offence was governed in India by statutory provisions identical to the original provisions of section 345, Cr.P.C. in Pakistan recognizing no role of an heir of a person in the matter of compromise if the person competent to compound an offence is dead. In Pakistan Criminal Appeal No. 137-L of 2010 19 section 345(2), Cr.P.C. now provides that an offence of qatl-i-amd under section 302, PPC may be compounded by “the heirs of the victim” and does not provide for devolving of such capacity to compound on an heir of an heir of the victim but in India the legislature had introduced section 320(4)(b) of the Code of Criminal Procedure, 1973 which reads as follows: “When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908, of such person may, with the consent of the Court, compound such offence.” Introduction of this legal provision in India is by itself a legislative acknowledgment that the capacity to compound an offence is not automatically devolved upon an heir of a person possessing the capacity to compound unless the law expressly provides for the same. The omission in this respect in the original law was supplied in India by the legislature and we in this country would not like to embark upon judicial legislation by supplying the relevant omission in our law through the means of interpretation. Let this responsibility rest where it lies and we would not like to encroach upon the domain of the legislature in this regard. We, therefore, refer this aspect of the matter to the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad so that the Federal Government may consider getting the relevant law amended by the Majlis-e-Shoora (Parliament) appropriately, if so advised. 15. As a result of the discussion made above we have not been able to take any legitimate exception to the impugned judgment passed by the Lahore High Court, Multan Bench, Multan. The case in hand was not a case of Qisas but was of Ta’zir. Under the Islamic law of inheritance the brothers of Muhammad Aslam deceased in this case did not inherit from the deceased directly and even when the father of Muhammad Aslam deceased, an heir of the said deceased, subsequently died the brothers of Muhammad Aslam deceased, including the present appellant, did Criminal Appeal No. 137-L of 2010 20 not become Muhammad Aslam deceased’s heirs because they stood excluded by a surviving son of Muhammad Aslam deceased who was closer to the deceased in degree in the matter of inheritance. In this case of Ta’zir only the heirs of the deceased could compound the offence of murder and the appellant and his brothers, all brothers of Muhammad Aslam deceased, did not and could not inherit from Muhammad Aslam deceased either directly or through their father and, thus, they never qualified as “heirs of the victim” for the purposes of section 345(2), Cr.P.C. This appeal is, therefore, dismissed. 16. The office is directed to send a copy of this judgment to the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad for his information and for appropriate action, if deemed warranted. Chief Justice Judge Judge Judge Judge Judge I concur with the conclusion but for different reasons, which have been set out in my separate note. Judge Criminal Appeal No. 137-L of 2010 21 Announced in open Court at Islamabad on 20.02.2019. Chief Justice Islamabad February 20, 2019 Approved for reporting. Arif Syed Mansoor Ali Shah, J. - I have gone through the judgment authored by the Hon’ble Chief Justice (hereinafter referred to as the “Judgment”). I concur with the conclusion of the Judgment that the instant appeal merits dismissal. I, however, espouse views different from those expressed in the Judgment, regarding the meaning and determination of the heirs of the victim or the wali of the victim in the context of compoundability of the offence of qatl-i-amd (interchangeably also referred to as compromise between the parties) under the two regimes of Qisas1 and Ta’zir2. 2. The precise legal question before the Court is the scope and extent of the term “heirs of the victim” used in section 345 Cr.P.C. in order to determine who on behalf of the deceased victim is entitled to compound the offence of qatl-i-amd punishable as ta’zir under section 302, PPC. Additionally, whether the scheme of compoundability is different in case of Qisas where “wali of the victim” is to be determined? 3. In my view, Islamic Law of Inheritance goes to the root of the case and is central to the concept of compounding of the offence of qatl-i-amd under Qisas and Ta’zir, which in turn rests on the meaning of heirs and walis of the victim. It is essential to 1 See sections 307(b), 309 and 310 PPC. 2 Section 345(2) Cr.P.C Criminal Appeal No. 137-L of 2010 22 emphasize that the only law that can determine the heir(s) of a deceased (victim) for Muslims in Pakistan is their personal law i.e., the Islamic Law of Inheritance (similarly for non-Muslims its their personal law). According to Professor Coulson, Islamic Law of Inheritance “is a solid technical achievement, and Muslim scholarship takes a justifiable pride in the mathematical precision with which the rights of the various heirs, in any given situation, can be calculated…Nowhere is the fundamental Islamic ideology of law as the manifestation of the divine will more clearly demonstrated than in the laws of the inheritance….From a sociological standpoint, the laws of inheritance reflect the structure of family ties and the accepted social values and responsibilities within the Islamic community3.” Under Islamic Law of Inheritance, rights of inheritance rest upon two principal grounds of marriage and blood relationship with the deceased and there are three kinds of heirs: Sharers, Residuries and Distant Kindred. Sharers are those who are entitled to a prescribed share of inheritance. Residuaries are those who take no prescribed shares but succeed to the residue after the claims of the sharers are satisfied. Distant Kindred are all those relations who are neither sharers nor residuaries. After ascertaining which of the heirs or descendants of the deceased (victim) are entitled to succeed, the next step is to distribute the estate among them.4 It is true that the inheritance opens on the death of the victim and the heirs are identified according to the Islamic Law of Inheritance and the estate of the victim automatically devolves upon the said heirs. While the estate of the deceased devolves on the heirs, the concept of inheritance and heirship does not end. Devolution is neither one time nor does it freeze in time at the time of the death of the victim. As families grow and evolve, moving from generations to generations, the heirs also grow, replacing the earlier heirs yet maintaining their descent and lineage from the ancestors. The heirship or right to inheritance moves downwards, as well as, upwards, hence the 3 N.J.Coulson - Succession in the Muslim Family. Cambridge University Press (1971). p 3 - underlining supplied. 4 see: D.F.Mulla’s - Principles of Mahomedan Law. Criminal Appeal No. 137-L of 2010 23 term “descendants” and “ascendants.” The concept of “how low-so- ever” or “how-high-so-ever” under the Islamic Law of Inheritance marks the downward and upward flowing concept of succession and inheritance, resembling a running chain of blood ties and marriage. As a matter of illustration, if in the instant case it is discovered after say thirty years from the death of the victim that the State has decided to confer certain property on the victim for his meritorious services or some property has been discovered that belongs to the victim, and the surviving heirs at the time of death of the victim being dead by now, who then will inherit the property of the victim? or will the property escheat and revert to the State because the first line of heirs is dead ? Under the Islamic Law of Inheritance, heirship is a living and an evolving concept and therefore the property will vest in the heirs of the victim as they stand today and the meticulous Islamic Law of Inheritance can identify the heirs of the victim even after three decades. Therefore, at any given time, the heirs or descendants or ascendants of the victim can be identified with mathematical precision under the Islamic Law of Inheritance. Restricting the term “heirs of the victim” to only the surviving heirs of the victim at the time of the death of the victim, is an interpretation that might not sit well with the Islamic Law of Inheritance and public policy. The concept of genealogical tree (shajrah nasab) in our Land Revenue law is an example of this successional calculation. At this juncture I cannot lose sight of section 338-F of the PPC which provides that while interpreting the provisions of chapter XVI (of offences affecting the human body) the court shall be guided by the injunctions of Islam as laid down in the Holy Quran an Sunnah. One of the best showcases of these injunctions is the Islamic Law of Inheritance, itself. 4. Applying the principles of the Islamic Law of Inheritance, as discussed above, to the instant case on merits, I see that in the presence of the son and the widow, the brothers of the victim or sons of the deceased father Waryam stand excluded Criminal Appeal No. 137-L of 2010 24 from the line of succession. Hence the available heirs at the time of compromise are the son and the widow of the victim. The High Court confirmed the view taken in Report of the District & Sessions Judge, Vehari dated 12.05.2010. The relevant extract of the Report is as follows: “5. From the statements of Razia Bibi (widow) and Muhammed Akmal (son) legal heirs of the deceased , it is evident that compromise between the parties is genuine as they have no objection if the said convicts are acquitted. The legal heirs of the deceased Waryam who was father of Muhammed Aslam deceased are not now the legal heirs of Muhammed Aslam deceased of this case.” (emphasis supplied) The Appellants were excluded not because they were the heirs of the heirs of the victim but because they were not the heirs of the victim under the Islamic Law of Inheritance. The application for compromise was rightly allowed leading to the acquittal of respondents No. 2 and 3. The impugned judgment of the High Court upholding this view is, therefore, correct and the present appeal merits dismissal. 5. It is now settled that Qisas and Ta’zir are two separate regimes, having their own sets of rules as laid down in Muhammad Aslam v. Shaukat Ali (1997 SCMR 1307) and Zahid Rehman v. State (PLD 2015 SC 77). However, when it comes to the question of determining the heirs of the victim or walis of the victim, for the purposes of compoundability of the offence of qatl-i-amd, the two regimes converge and both take guidance from the Islamic Law of Inheritance to resolve this question. This is because the Islamic Law of Inheritance is the only law that provides for determination of heirs in the country. Even otherwise, Pakistan Penal Code, 1860 or the Criminal Procedure Code, 1898 do not provide a separate mode and manner of determining heirs of the victim and, thus, cannot possibly be considered as a parallel system of inheritance and succession. Reference to the terms “heirs of the victim” and “wali of the victim” under these Codes assumes outsourcing the answer to the Islamic Law of Inheritance, as these Criminal Appeal No. 137-L of 2010 25 Codes have no mechanism to resolve these questions. Therefore, both the regimes of Qisas and Ta’zir rely on the principles of Islamic Law of Inheritance uniformly to determine the heirs of the victim or the wali of the victim for the purposes of compounability in the cases of qatl-i-amd. 6. Under the regime of Ta’zir, the heirs of the victim can compound the offence of qatl-i-amd under Section 345(2), Cr.P.C. with the permission of the Court. The right vested in the “heirs of the victim” makes the right of compoundability under Ta’zir inheritable. In another sense this right is also an actionable claim,5 hence inheritable. Section 345(2) Cr.P.C. has no time limit and can be invoked by the accused party at any stage after the offense is committed and before the sentence is executed. The purpose of this provision is understandably to encourage settlements between warring parties in order to protect family life and ensure a peaceful community. The heirs of the deceased victim can exercise this right. The first heirs of the victim are those who survive him immediately at the time of his death, but as explained above, the heirship of the victim continues in time and at any given time, when the heirs who survived at the time of death of the deceased are no more, there will still be heirs of the victim under the Islamic law of inheritance in the shape of sharers, residuaries or distant kindred. The heirship is based on blood and marriage and continues as the families evolve. So the available heirship is to be determined afresh when the right to compound is to be exercised irrespective of the time of death of the victim. It is emphasized that the available heirs of the victim and not heirs of the heirs are to be determined. In the instant case, the appellants are the heirs of the heir but are not the heirs of the victim under the Islamic law of inheritance, as they stand excluded by the son. A five member bench of this Court has upheld this view in Abdul Rashid v. State (2013 SCMR 1281), even though the distinction 5 see The Compendium of Islamic Law by All India Muslim Personal Law Board (AIMPLB) Criminal Appeal No. 137-L of 2010 26 between the two regimes of Qisas and Ta’zir was somewhat blurred in the said opinion. 7. Qisas means punishment by causing similar hurt to same part of the body of the convict as he has caused to the victim or by causing death if he has committed qatl-i-amd in exercise of the right of the victim or a wali6. Under section 299 (m) PPC, wali means a person entitled to claim qisas. Under section 305(a) PPC, wali in case of qatl means the heirs of the victim, according to his personal law. Section 306(c) provides that qati-i-amd shall not be liable to qisas when any wali of the victim is a direct descendant, how low-so-ever, of the offender. Section 307 (c) provides a situation when qisas for qatl-i-amd cannot be enforced i.e., “when” the right of qisas devolves on an offender as a result of the death of the wali of the victim. Section 307(c) PPC is actually about an offender not having a right of qisas and proceeds on an implied assumption that the right of qisas is inheritable. Section 307(c) is, therefore, not a specific provision mandating devolution of the right of qisas. In my view there is no requirement to state the obvious. Wali by definition is an heir of the victim7. Right to qisas is also akin to an actionable claim and is, therefore, inheritable under the Islamic Law of Inheritance.8 The right of qisas held by the wali of the victim devolves on to the next wali of the victim, who is ofcourse an heir of the victim and not necessarily an heir of the heir or heir of the wali. As discussed above, section 307, PPC does not provide a scheme of inheritance that helps identify the next wali of the victim. Therefore, it is difficult to accept the view propounded in the Judgment that had the instant case been under qisas, the appellants would pass for walis (para 6 of the Judgment), being the heirs of the deceased wali (Waryam). The distinction between heirs of the victim i.e., wali under section 299(m) PPC and heirs of wali (Waryam), needs to be kept in mind. Under Islamic Law of Inheritance, the appellants (brothers of the 6 See section 299 (k) PPC 7 section 305(a) PPC. 8 see The Compendium of Islamic Law by All India Muslim Personal Law Board (AIMPLB) Criminal Appeal No. 137-L of 2010 27 victim) stand ousted in the presence of the son and cannot pass as wali of the victim even though they are the heirs of Waryam. So even if the instant case was under qisas, only walis would have been the son and the widow or else the principles of Islamic Law of Inheritance would stand violated. 8. Another dimension is sociological and rests on public policy. Why should an interpretation be encouraged that restricts the choice or option of the subsequent heirs of the victim to settle a feud and move towards a more harmonious and peaceful life. Why deprive the heirs of this right? This interpretation supports the protection of the family as envisaged in the Principles of Policy under article 35 of the Constitution. Any embargo on the exercise of the right to compound under section 345(2) Cr.P.C. by the subsequent heirs of the victim might not be in consonance with the Islamic Law of Inheritance. 9. Section 320 of the Indian Code of Criminal Procedure, 1973 does not provide for compounding of an offence in case of murder (qatl-i-amd). Further, in case the person who can compound the offences given under the said section dies a natural death, his or her legal representative, with the consent of the court, may compound the offence. Legal representative supports the purposive interpretation employed in this note, recognizing a more contemporary status of the heir of the victim, who is there at the point of time of compounding and is not frozen in history at the time of the death of the victim. 10. The Judgment has referred the matter to the Federal Government to consider the possibility of amending the law by the Parliament. I am sure these reasons will also assist the Federal Government in bringing about more clarity in the proposed amendment. I, therefore, concur with the said direction. Criminal Appeal No. 137-L of 2010 28 11. As a conclusion, these are my reasons for concurring with the Judgment to the extent of the dismissal of the instant appeal and the direction to the Federal Government as discussed above. (Syed Mansoor Ali Shah) Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.137-L of 2017 (On appeal from the judgment dated 25.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.1935 of 2012 and Capital Sentence Reference No.39-T of 2012). Khurram …Appellant(s) VERSUS The State, etc …Respondent(s) For the Appellant(s) : Mr. Sher Afghan Asadi, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of Hearing : 15.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Atif Sajjad, 15/16, worked as an Apprentice with his father, Sajjad Ahmed, PW, an Auto Mechanic; on fateful day i.e. 28.6.2012 at 11.30 a.m. he left shop to fetch grocery items and deposit utility bills; he did not return; suspecting abduction, his disappearance is reported to the police on the following day. Muhammad Munir, SI, PW, attempted to locate the abductee through his cell phone, however without success. Abdul Qayyum and Muhammad Sabir, PWs joined investigation on 16.7.2012; they nominated Bilal, Khurram, Ajmal and Amir as the suspects; they saw the abductee with the accused on 28.6.2012. It is in this backdrop that appellant was arrested same day; Bilal, co-accused is still away from law. Consequent upon their disclosure, a dead body was recovered from a house, concealed beneath a floor, identified as that of Atif Sajjad. According to autopsy report, it was at advanced stage of putrefaction, partially skeltonized with unidentifiable features. Criminal Appeal No.137-L of 2017. 2 Through supplementary statement dated 3.8.2012, the complainant blamed the accused to have demanded ransom to the tune of rupees two crores, information, thenceforth, withheld by him out of concern for his son’s life. Upon conclusion of trial vide judgment dated 14.11.2012, learned Judge, Anti Terrorism Court- 1, Gujranwala convicted the appellant alongside Ajmal and Amir, co-accused, for homicide, abduction for ransom and screening of evidence; they were sentenced to death. The learned High Court acquitted Ajmal and Amir, co-accused from the charge; however, appellant’s conviction was maintained with Capital Sentence Reference returned in the affirmative. 2. Abdul Qayyum, PW-11 and his brother Muhammad Sabir, PW-12 are the star witnesses; both of them, with one voice, claimed to have last seen the deceased in accused’s company, seemingly, volitional. They have given the date of encounter as 28.6.2012, while conspicuously omitting the point of time thereof. The witnesses were once again together on 16.7.2012 when they visited the complainant to fix an electric generator; having seen him perturbed, upon inquiry, they shared information with him; disclosure diverted course of investigation towards the accused. One may find it hard to buy the story, capturing details, at a thorough fare in a crowded city at an unspecified point of time as well as with purpose of presence, vague by all means, that too per chance, incidentally required by the prosecution to prosecute its case. The script is far from being plausible. Acquittal of the identically placed co-accused adds to predicament of these witnesses. The dead body was recovered from a premises, statedly owned by Ghaffar Ahmed, CW-1; on motion dated 25.10.2012 by the State, he was summoned for 13.11.2012 to establish that the house was rented to the accused and that it was the same place wherefrom the dead body was recovered; exercise was taken in the midst of the trial. While a Court has ample power to send for witnesses for just decision of the case, nonetheless, power of this amplitude must be exercised with circumspection without disturbing the adversarial balance of the trial. There was no Criminal Appeal No.137-L of 2017. 3 statement of the witness recorded during the investigation; no proof of ownership or tenancy as admitted by the witness. Such a sudden move and reliance thereon to the detriment of an accused, cannot be viewed as conscionable. There is yet another reason to discard this piece of evidence as according to the witness the house was jointly occupied by the accused including those acquitted form the charge. Advance stage of putrefaction, with elimination of facial features, without DNA analysis, represents a real issue regarding the identity of the corpse, recovered in pursuance to a joint disclosure though statedly recorded, one by one, nonetheless in the same session. 3. On the whole prosecution’s case structured upon the statements of three witnesses, in alliance at each step, is fraught with doubts otherwise it is hard to distinguish appellant’s culpability from the acquitted co-accused. Criminal appeal is allowed, impugned judgment is set aside. The appellant is acquitted from the charge. He shall be released forthwith, if not required in any other case. Above are the reasons of our short order of even date which is reproduced as under:- “For detailed reasons to be recorded later, the instant criminal appeal is allowed. The conviction and sentence of the appellant Khurram are set aside. He is acquitted of the charge framed against him. He shall be released forthwith, if not required to be detained in any other criminal case.” JUDGE JUDGE Lahore, the 15th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Sardar Tariq Masood Mr. Justice Amin-ud-Din Khan Mr. Justice Muhammad Ali Mazhar CRIMINAL APPEAL NO.139 OF 2022 (On appeal against the judgment dated 30.10.2018 passed Peshawar High Court, Peshawar, in Crl. Appeal No.335-P of 2018) Javed Iqbal … … Appellant Versus The State … … Respondent For the appellant : Mr. Arshad Hussain Shah, ASC Syed Rifaqat Hussain Shah, AOR For the State : Mian Shafaqat Jan, Addl. AG KP. Date of hearing : 25.10.2022 JUDGMENT SARDAR TARIQ MASOOD, J.- Crl. Misc. Application No.2231 of 2018 For reasons set out in the application for condonation of delay, the same is allowed and the delay of five days in filing of the petition is condoned. 2. Crl. Appeal No.139/2022. Through this appeal by leave of the Court, appellant Javed Iqbal has impugned the judgment dated 30.10.2018 of the Peshawar High Court, Peshawar, whereby his appeal was dismissed and his sentence of imprisonment for life under section 9(c) of the Control of Narcotics Substances Act, 1997 (‘the CNSA’) was maintained. 3. Precise facts of the case are that the appellant was indicted in case FIR No.676 dated 18.12.2013, registered at Police Station Sardheri, Charsadda, under section 9(c) of the CNSA. After a full-flagged trial vide judgment dated 20.03.2018, the petitioner was convicted under the section 9(c) of the CNSA for recovery of 25 kilograms charas pukhta and sentenced to imprisonment for life with fine of Rs.1,00,000/- or in default there of to further suffer S.I., for six months. Benefit of section 382-B of the Code of Criminal Procedure 1898 (‘the Code’) was also Crl.A.139/2022 etc 2 extended to him. Hence, this appeal by leave of the Court granted on 03.03.2022. 4. We have heard he learned counsel for the appellant, learned Addl. AG KP, perused the record and observed that in this case, the recovery was effected on 18.12.2013 and the sample parcels were received in the office of chemical examiner on 20.12.2013 by one FC No.1007 but the said constable was never produced before the Court. Even the Moharrar of the Malkhana was also not produced even to say that he kept the sample parcels in the Malkhana in safe custody from 18.12.2013 to 20.12.2013. It is also shrouded in mystery as to where and in whose custody the sample parcel remained. So the safe custody and safe transmission of the sample parcels was not established by the prosecution and this defect on the part of the prosecution by itself is sufficient to extend benefit of doubt to the appellant. It is to be noted that in the cases of 9(c) of CNSA, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused. Reliance in this behalf can be made upon the cases of Qaiser Khan Vs. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana vs. The State and another (2019 SCMR 1300), The State through Regional Director ANF Vs. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others Vs. The State (2015 SCMR 1002) and Amjad Ali Vs. the State (2012 SCMR 577) wherein it was held that in a case containing the above mentioned defects on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt. So the prosecution has failed to prove the case against the petitioner and his conviction is not sustainable in view of the above mentioned defects. 5. Both the Courts below have relied upon the judicial confession of the appellant recorded by the Judicial Magistrate (PW-5) and even learned Addl. AG KP appearing in Court also tried to pursued us to rely upon such confession but we observed that the appellant in the said judicial confession stated that he was sent by one Imran son of Sultan to Peshawar for bringing luggage from one ‘Haji Sahib’ and gave him some money; that in pursuance of that direction he went there where said Haji Sahib put luggage in the diggi of the vehicle and when he was returning he was stopped by the police and narcotics was recovered from the said Crl.A.139/2022 etc 3 luggage. He categorically stated that he was not aware of presence of said narcotics in the said luggage. Even the Judicial Magistrate (PW-5) admitted that: “….Imran shown by the accused in his confessional statement has not disclosed to him that what kind of luggage that Haji Saib hand over to him near Motorway Interchange, Peshawar. The accused expressed that he was not in the knowledge that what sought of luggage was put in the Diggi of the Motor car.” The above statement indicates that even before the Judicial Magistrate his claim was that he was not aware of the narcotics concealed in the luggage which was put by one, Haji Sahib in the said vehicle. Learned Addl. AG KP tried to persuade us that as he has taken an amount from Imran S/o Sultan for bringing the luggage from Haji Sahib, hence it can easily be presumed that he was aware that he was trafficking the narcotics. It is to be noted that the criminal cases cannot be decided on presumptions when there is no direct evidence available on record to indicate the exclusive knowledge of presence of narcotics in the luggage lying in the diggi of vehicle. We have already found the prosecution story doubtful and in that eventuality, the judicial confession of the petitioner is to be taken as a whole and not in parts. It is settled by now by this Court that any confession cannot be taken into consideration in pieces. The argument of the learned Addl. AG KP is that some part of the judicial confession can be taken into consideration but we have already observed in number of cases that any confession made by an accused, whether judicial or extra-judicial, should be taken into consideration in toto and could not be split into pieces, nor any part of the same can be taken to favour the prosecution. There is no doubt that any such confession may be taken into consideration but the court cannot select out of the statement, the passage, which goes against the accused. Such confession must be accepted or rejected as a whole. No scrutiny is required by this Court of such a confession. 6. The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case and evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the version of the accused whether in the shape of confession, judicial or extra judicial, or statement recorded under section 342 or 340(2) of the Code (hereinafter Crl.A.139/2022 etc 4 called ‘the statement’). If the Court disbelieves or rejects or excludes from consideration the prosecution evidence, then the Court must accept ‘the statement’ of the accused as a whole without scrutiny. If ‘the statement’ is exculpatory, then he must be acquitted. If ‘the statement’ when believed as a whole, constitutes some offence punishable under the law, then the accused should be convicted for that offence only. 7. In the present case we have already excluded the prosecution story being doubtful and there remained only exculpatory confession of the petitioner, which if taken into consideration as a whole, no case is made out against him because according to his confession, he was not having any knowledge of presence of narcotics in the luggage placed in the vehicle by one Haji Sahib on the asking of one Imran. The confessional statement in this case being the only material left on which the petitioner was convicted, had to be either accepted as a whole by the Court or rejected as a whole. It is not open to accept only a part of the confessional statement of the petitioner and reject the other part while maintaining his conviction. It is a well recognised principle that confession has to be read as a whole and not by relying only on the inculpatory part of the confession/the statement. 8. It is further to be noted that the prosecution must prove its case against the accused beyond reasonable doubt irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Where the prosecution succeeds in establishing its case against the accused beyond reasonable doubt, then the stage arrives for consideration of the plea of accused in defence and the question of burden of proof becomes relevant. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise. However, if the Court decides to convict the accused on the basis of his confessional statement or his plea under section 342, Cr.P.C. then it is not open to the Court to accept a part of the statement of the accused and reject another part for the purpose of convicting him for the offence. 9. It is the prosecution who has to prove the case against an accused beyond any doubt and accused is not required to establish his plea (stated in his confessional statement or in his statement recorded under section 342 or 340(2) of the Code) and it is the duty of the Court to examine as to whether such plea was reasonably possible and the benefit of doubt arising out of such plea/ confession must be extended to the Crl.A.139/2022 etc 5 accused. The confession especially exculpatory of an accused person with a different version is not a confession of guilt and the Court without splitting up it is supposed to reject the same, especially, when prosecution failed to establish the case against the said accused. Reliance can be made upon the case of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) wherein it was held that the statement of an accused recorded under section 342 of the Code may be taken into consideration but the Court cannot select out of the statement the passage which goes against the accused. Such statement must be accepted or rejected as a whole. i) In the case of Ashiq Hussain alia Muhammad Ashraf v. the State (PLD 1994 SC 879) it was held that while deciding a case, the Court should first discuss the prosecution evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342 of the Code, statement under section 340(2) of the Code and the defence evidence. If the Court disbelieves or rejects or excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342 of the Code is exculpatory, then he must be acquitted. If the statement under section 342 of the Code believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. ii) In the case of Naseer Hussain v. Nawaz and others (1994 SCMR 1504) it was held that where prosecution story was rejected by the Court and the confessional statement is the only material on which the accused is convicted, the same has to be either accepted as a whole or rejected as a whole. It is not open to the Court to accept only some part of the confessional statement and reject the other part while awarding conviction. iii) In the case of Bahadur Khan v. The State (PLD 1995 SC 336)] that confession has to be read as a whole and not by relying only on the inculpatory part of the statement. It was further held that the corroborative pieces of evidence support the confessional statement though retracted. However, well recognized principle is that confession has to be read as a whole and not by relying only on the inculpatory part of the statement. iv) In the case of Shamoon alias Shamma v. the State (1995 SCMR 1377) it was held that the prosecution has to prove its case against the Crl.A.139/2022 etc 6 accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence and the prosecution cannot fall back on the plea of an accused to prove its case. In case prosecution fails to prove its case against the accused, the accused becomes entitled to an acquittal. However, where the prosecution succeeds in establishing its case against the accused beyond reasonable doubts, then the stage arrives for consideration of the plea of accused in defence and the question of burden of proof becomes relevant. If the Court decides to convict the accused on the basis of his confessional statement or his plea under section 342 of the Code then it is not open to the Court to accept a part of the statement of the accused and reject another part for the purpose of convicting him for the offence. v) In the case of Faqir Ullah v. Khalil-uz-Zaman and others (1999 SCMR 2203) it was held that the basic principle of Islamic Law is that the Bayyinah or evidence is a proof whose implications may extend to others while the confession is a proof whose implications are limited to the one who makes it. Under this principle the confessional statement of a person can only inculpate himself and no other person can be inculpated merely because some other person has made any admission. Another possibility appears to be that the statement of the convict- respondent recorded under section 342 of the Code confessing his guilt on the ground of ‘Ghairat’ was taken to be a voluntary and true. Even if it be so, whether it is not a sine qua non for such a confession to be true and voluntary because it has to be either accepted as a whole or rejected in toto. vi) In the case of Shera Masih and another v. the State (PLD 2002 SC 643) it was held that the admission of occurrence by the accused with a different version is not confession of guilt and the Court, without splitting up it, can reject or accept the same in toto but if the admission in part or full is of the nature which provides support to prosecution case, the same can be used for the purposes of corroboration. vii) In the case of Ayyaz Ahmed v. Allah Wasaya and others (2004 SCMR 1808) it was held that the solitary judicial confessions, if made the basis for conviction, it had to be relied upon in toto without any pick and choose. viii) In the case of Mst. Gul Nissa and another v. Muhammad Yousuf and another (PLD 2006 SC 556) it was held that the confession or admission made by an accused when made sole basis of conviction must be considered as a whole and the accused can be convicted on his own statement, even if the prosecution evidence is rejected. Crl.A.139/2022 etc 7 ix) In the case of Allah Nawaz v. The State (2009 SCMR 736) it was held that a confession is to be rejected or accepted as a whole. however, when one of the deceased was unarmed and the other deceased was carrying a Lathi, while the accused was equipped with fire-arm and inflicted injuries to both the deceased at the vital part of the body, the accused exceeded his right of self-defence. x) In the case of Muhammad Azam and others v. The State (2009 SCMR 1232) it was held that the confessional statement of accused recorded under section 342 of the Code has to be accepted or rejected as a whole. However, the accused exceeded in his right of self-defence and suppressed the real story with regard to injuries caused to injured. xi) In the case of Mushtaq and others v. The State (2012 SCMR 109) it was held that the confessional statement of an accused can be made the basis of his conviction for the crime, however, the confessional statement of a co-accused can only be taken as circumstance against an accused, but no conviction can be recorded upon it. xii) In the case of Ali Ahmad and another v. the State and others (PLD 2020 SC 201) it was held that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. Once the prosecution evidence is disbelieved, rejected or excluded from consideration, and the facts explained by the accused in his statement under section 342 of the Code are accepted entirely, the court is then to examine the said facts to give due effect to the statement of the accused, under the law, whether in favour of or against the accused. xiii) In the case of Muhammad Abbas v. the State (PLD 2020 SC 620) it was held that two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception, firstly, where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence and secondly, where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible. 10. In the light of forgoing discussion, following principles emerged from the above case law: Crl.A.139/2022 etc 8 (a) the solitary judicial confession, if made the basis for conviction, it had to be relied upon in toto without any pick and choose; (b) where there is no other evidence and the confessional statement is only material on which an accused is convicted, then it has to be either accepted as a whole or rejected as a whole; (c) the exculpatory portion of a confession cannot be discarded while proceeding to rely upon the same for decision of the case; (d) a confession has to be read as a whole and not by relying only on the inculpatory part of the statement; (e) the confessional statement of a person can only inculpate himself and no other person can be inculpated merely because some other person has made any admission; (f) the admission of occurrence by the accused with a different version is not a confession of guilt and the Court, without splitting up it, can reject or accept the same in toto, but if the admission in parts or full is of the nature which provides support to prosecution case which is proved through reliable evidence, thus of course such statement/confession can be used for the purpose of corroboration and supporting evidence; and (g) where there is other prosecution evidence in field which is believable then of course a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence. 11. The crux of the above analysis is that where the prosecution fails to prove its case through cogent, reliable and trustworthy evidence, the court can base the conviction on the confessional statement of the accused, however, the same has to be considered in toto and the exculpatory parts of the confession cannot be rejected. In the present case we have already found the prosecution evidence doubtful and while considering the confessional statement as a whole, observed that the Crl.A.139/2022 etc 9 same was exculpatory confession and from the said confession, conscious knowledge and conscious possession of the narcotics, qua the appellant, is not established; hence, his conviction on such exculpatory statement/confession is not sustainable. 12. For the forgoing, this appeal is allowed. The conviction and sentence awarded by the trial Court and upheld by the High Court is set aside. The appellant Javed Iqbal is acquitted of the charge in this case by extending the benefit of doubt to him. He be released forthwith from jail if not required to be detained in connection with any other case. Judge Judge Judge Islamabad 25.10.2022 M.Saeed/* APPROVED FOR REPORTING Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali Mr. Justice Asif Saeed Khan Khosa Mr. Justice Amir Hani Muslim Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 (Against the judgment dated 18.02.1999 passed by the Lahore High Court, Lahore in Criminal Appeal No. 322 of 1991, Criminal Revisions No. 82 of 1992 & 178 of 1993 and Murder Reference No. 499 of 1991) Hassan (in Cr. A. 13 of 2004) Sher Muhammad (in Cr. A. 14 of 2004) Sher Muhammad (in Cr. A. 15 of 2004) Sikandar, etc. (in Cr. A. 16 of 2004) Muhammad Hashim, etc. (in Cr. A. 53 of 2011) … Appellants versus The State (in Cr. A. 13 of 2004) Ghulam Qadir (in Cr. A. 14 of 2004) Abdul Ghaffar (in Cr. A. 15 of 2004) The State (in Cr. A. 16 of 2004) The State (in Cr. A. 53 of 2011) … Respondents For the Appellants: Sardar Muhammad Latif Khan Khosa, Sr. ASC (in Cr. A. 13 & 16 of 2004) Sh. Zamir Hussain, Sr. ASC (in Cr. A. 14 & 15 of 2004 & Cr. A. 53 of 2011) For the State: Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab (in all cases) For respondents No. 1 to 3: N.R. (in Cr. A. 14 of 2004) For respondents No. 1 to 5: N.R. (in Cr. A. 15 of 2004) On Court’s Notice: Mirza Waqas Rauf, Additional Advocate-General, Punjab Syed Arshed Hussain Shah, Additional Advocate-General, KPK Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 2 Mr. Naseer Ahmed Baugulzai, Additional Advocate-General, Balochistan Dates of hearing: 30.05.2013 & 31.05.2013 JUDGMENT Asif Saeed Khan Khosa, J.: Leave to appeal had been granted by this Court in this case on 06.02.2004 and the order passed in that regard reads as follows: “These petitions for leave to appeal have been filed against the judgment dated 18th February 1999 passed by Lahore High Court, Lahore in Cr. A. 322/91, Cr. R. 82/1992 & Murder Reference No. 499 of 1991. 2. Facts in brief leading to filing of above noted petitions are that an occurrence had taken place on 13th June 1986 at about 2.30 p.m. in the area of Mustafa Abad about 12 miles from Police Station Luddan of District Vehari, a complaint in respect whereof was lodged by Muhammad Iqbal to the effect that he is a resident of Mustafa Abad and is a cultivator. On the day of occurrence he was returning home from Melsi in Jeep alongwith Mushtaq (deceased), Farrukh Mahmood (deceased), Ghulam Haider (deceased), Mohammad Yaqoob (PW-13) and Muhammad Nawaz (PW-10). When they reached near the Bhaini of Faqir Muhammad Arain suddenly firearm shots were fired at their Jeep as a result of which the front left tyre got punctured and even number of bullets had hit the Jeep at which Mushtaq (deceased) stopped the Jeep and all the occupant of the said Jeep came out of the same and started running to save their lives. The complainant also hid himself under the Jeep. He also added that he saw Sikandar armed with a .303 rifle, Manik armed with a .12 bore gun, Abdul Ghaffar also armed with a local gun, Khuda Bukhsh, Zahoor, Ghulam Qadir, Bahadur, Abdul Ghaffar son of Shahamand, Hashim, Qasim and Shahamand armed with hatchets and Hakim and Sultan armed with ‘Daangs’ sitting in the ambush. At a Lalkara raised by these accused persons, Sikandar appellant fired a shot which hit the face of Mushtaq deceased who was followed by Hassan appellant who fired a shot which landed on the front right chest of Farrukh deceased and who was then followed by Khuda Bukhsh appellant who inflicted a hatchet blow on the head of Ghulam Haider deceased whereafter the assailants armed with firearms resorted to indiscriminate firing as a result of which Mushtaq, Farrukh, Ghulam Haider, Nawaz and Yaqoob fell down injured. The complainant had further alleged that Khuda Bukhsh, Zahoor, Ghulam Qadir, Bahadur, Abdul Ghaffar, Hashim and Qasim then inflicted hatchets blows on the person of Farrukh deceased and Nawaz and Yaqoob P.Ws. The complainant had further disclosed that Mushtaq, Farrukh and Yaqoob P.Ws had received serious injuries on their persons. The complainant had also mentioned that in the meantime Mushtaq Ahmad Inspector (PW.18) had reached the spot hearing the report of firearms and had apprehended Sikandar, Bahadur, Zahoor and Abdul Ghaffar and Yaqoob accused at the place of occurrence alongwith their respective weapons of offence, whereas the other Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 3 accused made their escape good. Motive behind the occurrence was stated as in the year 1983, a sister’s son of Sikandar, namely Dur Muhammad Khand was murdered and the two brothers of Mohammad Iqbal complainant namely Mushtaq (deceased) and Gulzar were accused of the said murder out of whom Mushtaq deceased had secured his acquittal. This, according to complainant, induced the members of Khand brotherhood to launch an attack on the complainant party and about the grievance of the members of the Arain brotherhood amongst the accused persons, it was mentioned that in a land dispute, the complainant party used to help one Allah Ditta Arain while Shahamand accused and other Arain accused persons used to oppose him. On completion of usual investigation all the accused persons were sent up to face trial. As they did not plead guilty to the charge read over to them, therefore, prosecution led evidence to substantiate accusation against them. Learned trial Court vide its judgment dated 21st October 1991, after having gone through the evidence and hearing both the sides, acquitted Manik, Abdul Ghaffar son of Khuda Bukhsh, Yaqoob, Shahamand, Hakim and Sultan, whereas convicted Sikandar, Hassan, Khuda Bukhsh, Bahadur, Ghulam Haider, Zahoor, Hashim, Qasim and Abdul Ghaffar son of Shahamand. Upon their conviction under Section 148 PPC each of them was sentenced to undergo one year R.I. Pursuant to their conviction under Section 307/149 PPC each of them was sentenced to suffer seven years R.I. with fine of Rs.1000/- each or one year R.I. and in case of default in payment of fine to undergo further R.I. for one year. Accused Sikandar, Hassan and Khuda Bukhsh were further convicted under Section 302/149 PPC and sentenced to death whereas remaining accused namely Bahadur, Ghulam Qadir, Zahoor, Hashim, Qasim and Abdul Ghaffar son of Shahamand were sentenced to undergo imprisonment for life. On the murder charge each of them was also punished with a fine of Rs.15000/- or in default whereof to undergo two years R.I. They were also directed to pay Rs.15000/- each as compensation to the legal heirs of the deceased or to undergo six months R.I. in default thereof. Feeling dissatisfied all the accused persons approached to the Lahore High Court, Lahore by filing appeals. A murder reference was also sent by the trial Court for confirmation or otherwise of death sentence awarded to three accused, Sher Muhammad, Abdur Rab and Mohammad Yaqoob, being dissatisfied from acquittal of accused Manik, Abdul Ghaffar son of Khuda Bukhsh, Mohammad Yaqoob, Shahamand and Sultan accused. Sher Mohammad, Abdur Rab and Muhammad Yaqoob also filed appeal. Learned High Court, after having gone through the entire evidence produced by the parties, vide judgment dated 18th February, 1999, maintained the conviction/sentence of accused Sikandar, Hassan, Khuda Bukhsh, Bahadur, Zahoor and Hashim but acquitted Ghulam Qadir, Qasim and Abdul Ghaffar for giving them benefit of doubt. As such Criminal Petition No. 147-L and 168-L of 1999 have been filed by accused Hassan, Sikandar and Khuda Bukhsh against their conviction and sentence whereas Criminal Petitions No.156- L and 157-L of 1999 have been filed by Sher Mohammad against acquittal of Ghulam Qadir etc. and Abdul Ghaffar etc. 3. We have heard learned counsel for the parties and have also gone through the material available on record carefully. In our opinion petitioners Sikandar son of Allah Bukhsh, Khuda Bakhsh son of Allah Ditta and Hassan son of Shahamand have made out a case for grant of leave to appeal for the purpose of reappraisal of evidence in the interest of justice particularly in view of the fact that some of the accused who were apprehended at the spot alongwith accused Sikandar have been acquitted of the charge either by the trial Court or by the High Court, whereas Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 4 he has been convicted for the offence charged against him. It is to be seen that main reason prevailed upon the learned trial Court and High Court to found him guilty for the commission of the offences is that a .303 rifle was recovered from his possession which otherwise could not be treated as crime weapon in absence of recovery of bullets of .303 and positive firearms expert report. Similarly so far as the case of Khuda Bukhsh petitioner is concerned, he was stated to be arrested on 16th June 1986 as per statement of PW-Muhammad Saadullah Khan but incriminating crime weapon was recovered from him on 5th June 1986, much beyond the period of police remand thus, prima facie, his involvement in the commission of offence has become doubtful. Likewise no incriminating article has been recovered from accused Hassan but without any corroboration he has been convicted. 4. As far as petitions filed by the complainant against acquittal of the respondents Ghulam Qadir, Qasim and Abdul Ghaffar are concerned, questions involved in these petitions are required to be examined in depth for the purpose of safe administration of justice as it has been pointed out that some of the accused were apprehended at the spot and crime weapons were also recovered from them but they have been acquitted of the charge, therefore, in these petitions as well, leave to appeal is granted. 5. Office is directed to issue bailable warrants of arrest of respondents Ghulam Qadir, Qasim and Abdul Ghaffar in the sum of Rs. 100,000/- (Rupees one lac) returnable to the District and Sessions Judge, Vehari. 6. In pursuance of our earlier order dated 5th March 2002, office has submitted a report that no Jail Petition has been filed by Zahoor, Bahadur and Hashim. However, office is directed to send a letter to the Superintendent New Central Jail, Multan with direction to him to inquire from the convicts as to whether they have filed any Jail Petition or not. If any Jail Petition had been filed by them and is pending for decision, office may fix the same alongwith criminal appeals arising out of above noted criminal petition on an early date.” On 06.03.2008 when these appeals were fixed for regular hearing this Court had passed the following order: “The convicts in these appeals are in jail for the last about twenty-two years and are in death cell waiting for the fate of their appeals for the last about seventeen years. 2. This Court in Abdul Malik and other Vs. The State and others (PLD 2006 SC 365) in the light of principle of double punishment in terms of the mandate of the Constitution, held that the imposition of sentence of death notwithstanding the period of detention in jail, is not in conflict to the concept of protection against double punishment in terms of Article 13 of the Constitution and may not be a consideration to withhold the death penalty. 3. The question which arises for the essential consideration, is that detention in jail as condemned prisoner for a long period without disposal of appeal is not rigorous of imprisonment in addition to the substantive sentence of death awarded to a Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 5 convict and is not in conflict to the spirit of Article 13 of the Constitution. The second limb of the question requiring consideration, is whether non-disposal of cases involving death penalty within the statutory period or at-least in reasonable time is not denial of the right of access to justice and fair treatment in terms of fundamental right of a person. 4. We find that the above right of condemned prisoners, has not been considered in the judgment referred to above in consequence to which the question as to whether the execution of sentence of death awarded to a convict after he had undergone the rigorous of life imprisonment in jail as condemned prisoner is in consonance to the spirit of Article 13 read with Article 9 of the Constitution, would essentially need examination. In view thereof, we deem it proper to send this matter to the Hon’ble Chief Justice of Pakistan for constitution of larger Bench for examination of the above question, which was not as such considered in Abdul Malik and others Vs The State and others (PLD 2006 SC 365). 5. The matter is of a great public importance, therefore, we deem it proper to direct that the learned Attorney General for Pakistan, learned Advocate Generals of Provinces and also learned Prosecutor Generals of the Provinces will assist the Court. We also request Syed Sharif-ud-Din Pirzada, learned Sr. ASC, Mr. Khalid Anwar, learned Sr. ASC, Syed Abdul Hafeez Pirzada, learned Sr. ASC to assist the Court in the matter as amicus curiae. 5-A. The learned counsel for the appellants has requested that the convicts in the present appeal and such other appeals are in jail since long therefore, the Hon’ble Chief Justice of Pakistan may be requested for a direction for early fixation of all such cases together before the proposed Bench. The request being genuine, the Hon’ble Chief Justice of Pakistan may consider the same in the larger interest of justice.” None of the learned amici curiae has entered appearance at the time of final hearing of these appeals and we have heard elaborate arguments advanced by the learned counsel for the convicts- appellants, the learned counsel for the complainant, the learned Additional Prosecutor-General, Punjab appearing for the State, the learned Additional Advocate-General, Punjab, the learned Additional Advocate-General, Khyber Pakhtunkhwa and the learned Additional Advocate-General, Balochistan and have gone through the record of the case with their assistance. 2. The case in hand pertains to an alleged murder of three persons and causing of hurt to some others in Mauza Mustafa Abad situated within the area of Police Station Luddan, District Vehari and FIR No. 131 was registered in that regard at Police Station Luddan, District Vehari on the same day at 04.35 P.M. for Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 6 offences under sections 302/307/148/149/379, PPC. After a full- dressed trial the learned Additional Sessions Judge, Vehari conducting the trial acquitted Manik, Abdul Ghaffar son of Khuda Bakhsh, Yaqoob, Shahamand, Hakim and Sultan accused vide judgment dated 21.10.1991 whereas through the same judgment he convicted and sentenced Sikandar, Hassan, Khuda Bakhsh, Zahoor, Ghulam Qadir, Bahadur, Abdul Ghaffar son of Shahamand, Hashim and Qasim accused for various offences. Sikandar, Hassan, Khuda Bakhsh, Ghulam Qadir, Abdul Ghaffar son of Shahamand, Zahoor, Bahadur, Qasim and Hashim accused were convicted for an offence under section 148, PPC and were sentenced to rigorous imprisonment for one year each. Sikandar, Hassan, Khuda Bakhsh, Zahoor, Ghulam Qadir, Bahadur, Abdul Ghaffar son of Shahamand, Hashim and Qasim accused were also convicted on three counts of an offence under section 302, PPC read with section 149, PPC for causing the death of Mushtaq, Farrukh Mehmood and Ghulam Haider in prosecution of their common object. Sikandar, Hassan and Khuda Bukhsh accused were sentenced to death each on each count and to pay a fine of Rs. 15,000/- or in default of payment thereof to undergo rigorous imprisonment for two years each. They were also ordered to pay Rs. 15,000/- each to the heirs of the deceased on each count by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months each on each count. The remaining convicts namely Zahoor, Ghulam Qadir, Bahadur, Abdul Ghaffar son of Shahamand, Hashim and Qasim were sentenced to imprisonment for life each on each count and to pay a fine of Rs. 15,000/- each on each count or in default of payment thereof to undergo rigorous imprisonment for two years each on each count. They were also ordered to pay a sum of Rs. 15,000/- to the heirs of the three deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months each on each count. The learned trial court further convicted Khuda Bakhsh, Zahoor, Ghulam Qadir, Abdul Ghaffar son of Shahamand, Bahadur, Hashim, Qasim, Sikandar and Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 7 Hassan accused for an offence under section 307, PPC read with section 149, PPC and sentenced them to undergo rigorous imprisonment for seven years each and to pay a fine of Rs. 5,000/- each or in default of payment thereof to undergo rigorous imprisonment for one year each. The learned trial court had ordered that the sentences of imprisonment passed against the convicts under sections 148/307/149, PPC would run concurrently and the benefit under section 382-B, Cr.P.C. would be extended to the convicts. All the nine convicts challenged their convictions and sentences before the Lahore High Court, Lahore through Criminal Appeal No. 322 of 1991 which was heard along with Murder Reference No. 499 of 1991 seeking confirmation of the sentences of death passed by the learned trial court and Criminal Revision No. 82 of 1992 filed by a member of the complainant party seeking enhancement of the sentences of imprisonment for life passed against six convicts to death and Criminal Revision No. 178 of 1993 filed by a member of the complainant party seeking setting aside of the acquittal of those accused persons who had not been convicted by the learned trial court. A learned Division Bench of the Lahore High Court, Lahore decided all the above mentioned matters on 18.02.1999 through a consolidated judgment whereby the sentences of death passed by the learned trial court against Sikandar, Hassan and Khuda Bakhsh convicts were upheld and confirmed, the sentences of imprisonment for life passed by the learned trial court against Bahadur, Zahoor and Hashim convicts were maintained but it was ordered that their sentences of imprisonment for life would run concurrently and the sentences of imprisonment passed against six convicts on two counts of an offence under section 307, PPC read with section 149, PPC were also upheld and the same were also ordered to run concurrently. The extension of the benefit under section 382-B, Cr.P.C. by the learned trial court to all the convicts ordered to undergo sentences of imprisonment was affirmed by the learned Division Bench. The learned Division Bench, however, set aside the convictions and sentences of Ghulam Qadir, Qasim and Abdul Ghaffar son of Shahamand convicts and they were acquitted of the charge. The Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 8 Murder Reference was answered accordingly and both the revision petitions filed by the complainant party were dismissed. Hence, the present appeals by leave of this Court granted on 06.02.2004. 3. Criminal Appeal No. 53 of 2011 has been filed before this Court by Muhammad Hashim, Bahadur and Zahoor convicts who had been sentenced by the learned trial court to imprisonment for life each on three counts of the charge of murder and their convictions and sentences had been upheld by the Lahore High Court, Lahore. The learned counsel for the appellants has pointed out that the said convicts-appellants have already served out their sentences in their entirety and they have already been released from the jail. He has, thus, submitted that he does not press this appeal any further. Criminal Appeal No. 53 of 2011 is, therefore, dismissed as having not been pressed. 4. Criminal Appeal No. 13 of 2004 has been filed before this Court by Hassan convict who had inter alia been sentenced to death on three counts of a charge of murder and his sentences of death had been confirmed by the Lahore High Court, Lahore. Criminal Appeal No. 16 of 2004 has been filed before this Court by Sikandar and Khuda Bakhsh convicts who had also inter alia been sentenced to death each on three counts of a charge of murder and their sentences of death had also been confirmed by the Lahore High Court, Lahore. We have been informed that Khuda Bakhsh appellant has already died and, thus, his appeal has abated and for this reason the learned counsel for the convicts-appellants has pressed Criminal Appeal No. 16 of 2004 only to the extent of Sikandar appellant. Criminal Appeal No. 14 of 2004 has been filed by a member of the complainant party seeking setting aside of the acquittal of Ghulam Qadir, Qasim and Abdul Ghaffar son of Shahamand accused who had been convicted by the learned trial court but were acquitted by the Lahore High Court, Lahore. Finally, Criminal Appeal No. 15 of 2004 has also been filed by a member of the complainant party seeking setting aside of the acquittal of Abdul Ghaffar son of Khuda Bakhsh, Manik, Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 9 Muhammad Yaqoob, Shahamand and Sultan accused who had been acquitted by the learned trial court and their acquittal had been upheld by the Lahore High Court, Lahore. 5. Taking the case of the convicts sentenced to death first, we note that Hassan convict is the appellant in Criminal Appeal No. 13 of 2004 and Sikandar convict is the only surviving appellant in Criminal Appeal No. 16 of 2004 and both the said appellants had inter alia been convicted by the learned trial court on three counts of a charge of murder and had been sentenced to death each on each count. After making a feeble attempt at arguing their case on the merits the learned counsel for the said appellants has submitted that he shall mainly concentrate on seeking reduction of the said appellants’ sentences of death to imprisonment for life in view of some peculiarities of the case. In this context the learned counsel for the appellants has pointed out that according to the FIR itself and also according to the statements of the eyewitnesses produced by the prosecution it was the complainant party which had gone to the place of occurrence whereat the members of the accused party were already available and, thus, the case in hand could not be treated as a case of premeditation on the part of the accused party. He has also referred to the statements made before the learned trial court by Muhammad Saad Ullah Khan, Inspector/SHO (PW16) and Mian Mushtaq Ahmed, Inspector/SHO (PW18) who had categorically stated that the parties to this case had fought with each other and during such fight firing had been resorted to by both the parties. In this context the learned counsel for the appellants has drawn our attention to the FIR which mentioned that Mushtaq Ahmed deceased was carrying a rifle 7MM with him at the time of occurrence and the relevant Memorandum of Recovery showed that as many as twenty crime- empties of a rifle 7MM had been secured by the police from the place of occurrence. The learned counsel for the appellants has highlighted that according to the prosecution no accused person was armed with a rifle 7MM. He has also pointed out that although Sikandar appellant was allegedly armed with a rifle 303 yet no Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 10 crime-empty of a rifle 303 had been secured from the place of occurrence. The learned counsel for the appellants has, thus, maintained that the statements made by the above mentioned police officers regarding firing by both the parties at each other at the spot was a factor which established that the prosecution had suppressed the truth and the doubt created in that regard ought to be resolved in favour of the appellants at least by reducing their sentences of death to imprisonment for life. The learned counsel for the appellants has gone on to submit that neither Hassan appellant nor Sikandar appellant had caused any injury to Ghulam Haider deceased and, thus, the capital sentence passed against them even on that count of the charge was unwarranted. He has further submitted that both the convicts-appellants had fired at their victims only once and despite having an ample opportunity in that regard they had not repeated their fires which factor may also be relevant to the matter of their sentences. The learned counsel for the appellants has vehemently argued that both the said appellants have already undergone more than twenty-five years of imprisonment in connection with this case and, thus, if their sentences of death are upheld by this Court at this stage then the said appellants would be deemed to have been sentenced to death and imprisonment for life on each count of the charge of murder whereas the provisions of section 302(b), PPC stipulate that a person found guilty of murder can be sentenced to death or imprisonment for life. According to the learned counsel for the appellants in such an eventuality the appellants would be justified in maintaining that two sentences have been passed against them for committing the same offence which would militate against the Fundamental Right guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 under Article 13(a) thereof. He has also invoked the provisions of section 403, Cr.P.C., the concept of double jeopardy and the principle of expectancy of life in support of this argument. He has also relied in this respect upon a recent unreported judgment handed down by a 5-member Bench of this Court on 09.05.2013 in the case of Dilawar Hussain v. The State (Criminal Review Petition No. 72 of 2007 in Criminal Appeal Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 11 No. 200 of 2003). With these submissions the learned counsel for the convicts-appellants has prayed that the sentences of death passed against Hassan and Sikandar appellants may be reduced to imprisonment for life on each count. 6. As against that the learned counsel for the complainant has vehemently argued that Hassan and Sikandar convicts-appellants have indeed undergone a period of custody which is more than a term of imprisonment for life but they have not spent that period in custody while undergoing any sentence of imprisonment for life and as a matter of fact and record they have spent that period in jail while waiting for exhaustion of their legal remedies and awaiting execution of their sentences of death. He has, therefore, maintained that the case in hand cannot be treated as a case of double jeopardy or double punishment so as to attract the provisions of Article 13(a) of the Constitution or of section 403, Cr.P.C. According to him the principle of expectancy of life already stands abandoned by this Court and, therefore, the same cannot be invoked in this case. During his submissions the learned counsel for the complainant has referred to the cases of Vasanta v. State of Maharashtra (AIR 1983 SC 361), Sher Singh and others v. State of Punjab (AIR 1983 SC 465) and Khurram Malik and others v. The State and others (PLD 2006 SC 354). 7. The learned Additional Prosecutor-General, Punjab appearing for the State has referred to the case of Dila and another v. State of U.P. ((2002) 7 Supreme Court Cases 450) wherein the Supreme Court of India had declined to reduce a convict’s sentence leaving it to the State for taking a sympathetic view in the matter of the convict’s sentence. 8. The learned Additional Advocate-General, Punjab appearing on the Court’s notice has pointed out that the provisions of sections 497, 426 and 382-B, Cr.P.C. manifest that where the State fails in its duty to provide expeditious justice to an accused person or a convict there the law extends some favours to him and Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 12 grants him some relief in terms of bail or suspension of sentence on the statutory ground of delay in his trial or appeal or in terms of counting his period of imprisonment as an under-trial prisoner towards his sentence after conviction. He has submitted that the cases of Abdul Malik and others v. The State and others (PLD 2006 SC 365), Abdul Haq v. Muhammad Amin alias Manna and others (2004 SCMR 810), Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502), Aga Dinal Khan v. Saffar, etc. (NLR 2008 Criminal 280) and Khurram Malik and others v. The State and others (PLD 2006 SC 354) throw sufficient light on the issues involved in this case. 9. The learned Additional Advocate-General, Khyber Pakhtunkhwa has referred to the provisions of sub-section (5) of section 367, Cr.P.C. to maintain that the sentence of death is the normal punishment for an offence of murder and this Court may keep that in mind while considering the prayer made by the learned counsel for the convicts-appellants regarding reduction of the said appellants’ sentences of death to imprisonment for life. 10. The learned Additional Advocate-General, Balochistan has maintained that the sentence of death and the sentence of imprisonment for life mentioned in section 302(b), PPC are alternative sentences and in a case where a convict sentenced to death undergoes a sentence equal to or more than a sentence of imprisonment for life while awaiting the outcome of his appeal then upholding his sentence of death by the appellate court would amount to sentencing the convict to death and imprisonment for life which would defeat the letter as well as the spirit of the provisions of section 302(b), PPC. 11. After hearing the learned counsel for the convicts-appellants, the learned counsel for the complainant, the learned Additional Prosecutor-General Punjab appearing for the State and the learned Additional Advocates-General, Punjab, Khyber Pakhtunkhwa and Balochistan appearing on the Court’s notice and after attending to Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 13 the relevant facts of the case and the precedent cases cited before us we have straightaway found the learned counsel for the convicts-appellants to be somewhat justified in not seriously pressing the two appeals on the merits of the case because during the progress of the incident in issue the local police had reach the spot and Sikandar appellant had been arrested by the police at the spot with a firearm in his hands. The ocular account of the incident had been furnished by four eyewitnesses out of whom two had the stamp of injuries on their bodies to vouchsafe their presence at the scene of the crime at the relevant time. The motive set up by the prosecution had been admitted by the accused party in so many words and the same had provided corroboration to the ocular account. The medical evidence brought on the record had provided sufficient support to the ocular account. In these circumstances both the learned courts below, after assessing and evaluating the evidence in some detail, had concurred in their conclusion regarding the convicts-appellants’ guilt. The version of the incident advanced by the accused party had been duly attended by the learned courts below and for cogent and valid reasons the same had been rejected by them. It could, therefore, not be urged before this Court with any degree of seriousness that the prosecution had not been able to prove its case against the convicts-appellants beyond reasonable doubt. 12. We have given serious and anxious consideration to the question of reduction of the sentences of death passed by the learned courts below against the convicts-appellants to sentences of imprisonment for life and have carefully examined all the submissions made before us in that regard from all the sides. We have found this to be correct that according to the prosecution’s own case it was the complainant party which had gone to the place of occurrence whereat the accused party was already present and, thus, it could well be that it was not a case of any premeditation on the part of the accused party and the incident in issue could have taken place when the parties, otherwise inimical towards each other, had come face to face by way of a chance encounter. In Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 14 a case lacking malice aforethought on the part of the accused party and in a case of an occurrence developing at the spur of the moment this Court, depending upon the circumstances of the case, generally looks at the matter of sentence with some degree of empathy and consideration. It is also borne out from the record, particularly from the statements made before the learned trial court by Muhammad Saad Ullah Khan, Inspector/SHO (PW16) and Mian Mushtaq Ahmed, Inspector/SHO (PW18), that the case in hand was a case of a fight between the parties during which firing had been resorted to by both the parties. The FIR itself had mentioned that Mushtaq Ahmed deceased was carrying a rifle 7MM with him at the relevant time and during the spot inspection conducted by the police as many as twenty crime-empties of a rifle 7MM had been secured from the place of occurrence. It was not the case of the prosecution that any of the accused persons in this case was carrying or had used a rifle 7MM. The record further shows that although according to the prosecution Sikandar convict-appellant was carrying a rifle 303 at the relevant time yet no crime-empty of rifle 303 had been secured from the spot. The accused party had maintained before the learned trial court that the complainant party had aggressed against it which led to cross- firing between the parties but no independent evidence had been brought on the record by the accused party to support that stand taken by it. Be that as it may the fact remains that according to the investigating officers mentioned above, who were witnesses of the prosecution, there indeed took place cross-firing between the parties. It has already been observed by us above that it was the complainant party which had gone to the place of occurrence and in the occurrence that followed both the parties had fired at each other which makes it a case unsafe for conclusively holding that the appellants had committed the murders in issue with a predetermined mind and design. This aspect of the case, in its peculiar background, may call for withholding the extreme sentence of death. The learned counsel for the appellants is quite right in pointing out that Hassan and Sikandar appellants had not caused any injury to one of the murdered persons namely Ghulam Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 15 Haider and, thus, awarding them a sentence of death even on that count of the charge of murder appears to be rather excessive. It is also true that despite having an ample opportunity to cause more injuries to the complainant party by keeping on firing at it both the appellants namely Hassan and Sikandar had fired from their firearms only once causing one injury each to their victims. When incessant firing was taking place from both the sides, as is evident from the very large number of crime-empties secured from the place of occurrence, the said appellants could have fired more shots causing injuries to more persons of the opposite party but no such allegation had been levelled against them by the prosecution. This aspect of the case may also furnish some justification for reducing their sentences of death to those of imprisonment for life. 13. The record shows that the occurrence in this case had taken place on 13.06.1986 and soon after the occurrence both the convicts-appellants namely Hassan and Sikandar had been arrested by the local police. The said appellants were convicted and sentenced to death, etc. by the learned trial court on 21.10.1991 and during the trial they had remained on bail for about a couple of years. The said appellants are behind the bars continuously since 21.10.1991 and they are languishing in death-cells ever since, i.e. for a period of about twenty-two years. They had already spent about three years in jail as under-trial prisoners and if the remissions earned by them are to be counted towards their sentences then both of them have already spent more than twenty- five years in custody in connection with the present case. After recording of their convictions and sentences by the learned trial court in the year 1991 the appellants’ sentences of death had been confirmed by the Lahore High Court, Lahore in the year 1999 and they had then approached this Court through Criminal Petitions in the year 1999 wherein leave to appeal was granted to them in the year 2004. Now after about fourteen years of their approaching this Court and after spending more than twenty-five years of their lives in custody, out of which period they have spent about twenty- two years in death-cells, the appellants’ appeals have come up for Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 16 decision before this Court. The stark reality staring us in the face is that both the appellants have already spent in custody a period more than a full term of imprisonment for life and if we uphold their sentences of death at this late stage then the appellants would, for all practical purposes, be punished with death after spending a period in custody which is more than a full term of imprisonment for life and such a bizarre situation may run contrary to the letter and the spirit of section 302(b), PPC which provides for a sentence of death or a sentence of imprisonment for life. In the following paragraphs we proceed to examine this issue from all the diverse angles presented before us. 14. The issue involved here is simple and straightforward, i.e. if a person has been sentenced to death in a case of murder and during the pendency of his appeal before this Court his period of custody equals or exceeds a full term of imprisonment for life then can/should his sentence of death be maintained by this Court despite the fact that he has already served out one of the two legal sentences provided for in section 302(b), PPC. The learned counsel for the appellants maintains that in such a situation this Court cannot, and must not, affirm the sentence of death and may reduce the same to imprisonment for life. In support of his stand he has invoked the provisions of section 403, Cr.P.C., the concept of double jeopardy, the principle of expectancy of life and the Fundamental Right guaranteed by Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973. We have attended to each of such aspects in some detail with reference to the relevant provisions and the precedent cases. 15. Section 403(1), Cr.P.C. provides as follows: “403. Persons once convicted or acquitted not to be tried for the same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 17 36, or for which he might have been convicted under section 237.” (bold letters have been supplied for emphasis) It is quite obvious from a plain reading of the said section that the principles of autrefois acquit and autrefois convict contained in section 403(1), Cr.P.C. forbid a new trial after a conviction or acquittal on the basis of the same facts has attained finality but it is equally obvious that the said principles have no application to the case in hand wherein holding of a new trial is not in issue. It is true that in the case of Aziz Muhammad v. Qamar Iqbal and others (2003 SCMR 579) a passing reference had been made to section 403, Cr.P.C. in the context of considering whether to enhance the sentence of a convict to death or not after he had already served out a legal sentence of imprisonment for life on a charge of murder but subsequently in the cases of Abdul Malik and others v. The State and others (PLD 2006 SC 365) and Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) it had been clarified by this Court that the principles of autrefois acquit and autrefois convict contained in section 403(1), Cr.P.C. have no relevance to a case wherein the question under consideration in an appeal is not as to whether a new trial of the convict should be held or not but the issue is as to which sentence would be the appropriate sentence for a convict. It had been held by this Court in the case of Abdul Malik and others v. The State and others (PLD 2006 SC 365) that: “15. When the conviction or acquittal of a person is under challenge in appeal or revision the proceedings are neither fresh prosecution nor there is any question of second conviction or double jeopardy. It is by now a well settled principle of law that an appeal or revision is continuation of trial and any alteration of sentence would not amount to double jeopardy. In Kalawati and another v. The State of Himachal Pradesh AIR 1953 SC 131, the Court was called upon to comment on a similar question when it ruled in para. 9 of page 10 that, “--- - an appeal against an acquittal wherever such is provided by the procedure is in substance a continuation of the prosecution”.” (bold letters have been supplied for emphasis) Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 18 In the case of Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) this Court had held as under: “9. In law, there are two legal maxims on this point:--- (i) Autrefois acquit and autrefois convict (formerly acquitted and formerly convicted) and the other is, (ii) Nemo debet bis vexari pro una et eadem causa (It is a rule of law that a man shall not be twice vexed for one and the same cause): Principles of autrefois acquit and autrefois convict are incorporated in section 403 of the Criminal Procedure Code, 1898, which provides that persons once convicted or acquitted are not to be tried for the same offence. But this principle is not stricto sensu applicable to the facts and circumstances of the case in hand because convict is not being tried for the same offence again by any other Court as the present proceeding is, in fact, a continuation of the same proceeding which had commenced from the first Court. It is not a fresh or another round or trial of the proceeding against the accused after his conviction for the same offence.” We have, therefore, faced no difficulty in concluding that the provisions of section 403, Cr.P.C. are not attracted to the situation posed by the present case. The concept of double jeopardy is inseparably linked with the principles of autrefois acquit and autrefois convict and, thus, the said concept may also have little relevance to the case in hand. 16. The precedent cases in this country show that the principle of expectancy of life may be relevant to three situations, i.e. firstly, where an unconscionable delay is occasioned in final disposition of a legal remedy being pursued by a condemned prisoner where the undergone period of his incarceration is less than that of a term of imprisonment for life; secondly, where the State or the complainant party is seeking enhancement of a sentence of imprisonment for life of a convict to death and before or during the pendency of such recourse the convict has already served out his entire sentence of imprisonment for life and he has, or has not yet, been released from the jail; and thirdly, where a convict sentenced to death undergoes a period of custody equal to or more than a term of imprisonment for life during the pendency of his legal remedy against his conviction and sentence of death. Adverting to the first situation mentioned above we may observe that till about Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 19 a quarter of a century ago there was a general judicial trend to reduce a sentence of death of a convict on the charge of murder to a sentence of imprisonment for life if the convict had spent a long time in a death-cell awaiting confirmation or otherwise of his sentence of death by a High Court or affirmation of such sentence by this Court through deciding his appeal. Such reduction of sentence from death to imprisonment for life was based upon the principle of expectancy of life as throughout the period of his incarceration in a death-cell the convict was expecting that his life might be saved some day. In view of long delays in final disposition of such appeals, etc. on account of the ever increasing workload and in order to obviate miscarriage of justice through manoeuvred delays with the object of taking advantage of the principle of expectancy of life the judicial trend in this regard underwent a metamorphosis about a quarter of a century ago and the principle of expectancy of life vis-à-vis reduction of a sentence of death to imprisonment for life on the ground of delay was abandoned in this country. That changed approach, starting through the cases of Muhammad Aman v. The State (1987 SCMR 124) and Maqbool Ahmad and others v. The State (1987 SCMR 1059), continues to be followed till date as is evident from the cases of Moahzam Shah v. Mohsan Shah and another (1995 SCMR 1190), Raheem Bakhsh v. Abdul Subhan (1999 SCMR 1190), Muhammad Hanif and others v. The State and others (2001 SCMR 84), Muhammad Aslam and others v. The State and others (2001 SCMR 223), Khurram Malik and others v. The State and others (PLD 2006 SC 354) and Agha Dinal Khan v. Saffar and others (2008 SCMR 728). 17. As regards the second situation referred to above this Court has repeatedly held that in such a situation a sentence of imprisonment for life passed against a convict on a charge of murder may not be enhanced to death because after serving out a legal sentence on such a charge the convict has legitimately entertained an expectancy of life. This approach is manifested by the cases of Mst. Razia Begum v. Jahangir and others (PLD 1982 SC 302), Mst. Promilla and others v. Safeer Alam and others (2000 Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 20 SCMR 1166), Amir Khan and others v. The State and others (2002 SCMR 403), Aziz Muhammad v. Qamar Iqbal and others (2003 SCMR 579), Abdul Haq v. Muhammad Amin alias Manna and others (2004 SCMR 810), Abdul Malik and others v. The State and others (PLD 2006 SC 365), Haji Tahir Hussain v. Sqlain and others (2008 SCMR 817) and Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502). In some of those cases while basing its judgment on the principle of expectancy of life this Court had also referred in passing to the provisions of section 403, Cr.P.C. and to the concept of double jeopardy but in the last mentioned case reliance had particularly been placed upon the provisions of Article 13(a) of the Constitution as well. The most elaborate judgment concerning this category of cases is that handed down by this Court in the case of Abdul Malik and others v. The State and others (PLD 2006 SC 365) and it was held and declared in that case as follows: “20. There is no rule of general application that the serving out of sentence during the pendency of appeal or revision, by itself, would constitute a bar for enhancement of sentence or that any exercise to do that effect would be violative of Article 13 of the Constitution. This could be one factor which the Court may consider, along with other factors and the principles referred to in para. 18 above, while deciding the question of enhancement. 21. We are mindful of the fact that this Court did not enhance sentence of convicts from life imprisonment to death who had already undergone the sentence in some cases. But the consideration of having already undergone the sentence was considered along with other circumstances in not enhancing the sentence and in some cases there was an oblique reference to provisions of Article 13 of the Constitution. A brief comment on those cases would be pertinent here:-- ---------------------------------------------- An analysis of the afore-cited precedent case law of this Court would show that mostly there were multiple factors which weighed with the Court in not enhancing the sentence and the circumstance that a convict has already undergone the sentence also weighed with the Court. Reference to Article 13 of the Constitution as a ground was made in two cases only namely 2003 SCMR 579 and 2004 SCMR 810. In Muhammad Sharif supra (PLD 1976 SC 452), the Court did not lay down that enhancing the sentence would amount to second punishment for the same offence. Nevertheless, this Court in a subsequent case (PLD 1982 SC 302) while relying on the former judgment (Muhammad Sharif supra) observed that enhancing the sentence from life to death would have the effect of punishing the offender Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 21 for the same offence again. The other cases namely 2003 SCMR 579, 2000 SCMR 1166 and 2004 SCMR 810 are the leave refusing orders and there was neither any elaborate discussion nor adjudication with regard to the application of Article 13 of the Constitution in situations where the convict has already undergone the sentence of imprisonment during the pendency of appeal. In both these cases the judgment of this Court in Muhammad Ilyas v. Muhammad Sufian (2001 SCMR 465) (sic) was neither referred to nor discussed. In this case bar of Article 13 was pleaded by the convicted, but his sentence was enhanced to death, and this argument was repelled. At para. 474 it was observed as under:-- “We are not persuaded to agree with learned ASC on behalf of the convict/respondent that the convict/respondent has already undergone the sentence awarded by the learned Appellate Court and accordingly at this belated stage the judgment of the trial Court could not be restored in view of the Doctrine of Expectancy of life for the reason that “as regards the doctrine of expectancy of life, in view of the chronic delays in committal, trial and disposal of appeals as also the deliberate tactics of the convicts to delay the proceedings in order to escape the gallows there has been a shift in the trend of this Court as adumbrated in its judgments in Asadullah Khan v. Muhammad Ali (1) Muhammad Khan v. Dost Muhammad (2) and Mst. Razia Begum v. Hijrayat Ali and 3 others (3) and the doctrine like that of falsus in uno falsus in omnibus is rarely and exceptionally invoked by this Court.” (Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; the State v. Rab Nawaz and another PLD 1974 SC 87; Abdus Sattar v. Muhammad Anwar and 6 others PLD 1974 SC 266; Asadullah v. Muhammad Ali and 5 others PLD 1971 SC 541 and Mst. Nuran v. Nura and another PLD 1975 SC 174.” (Emphasis is supplied). This judgment still holds the field and has not been re-visited.” (bold letters have been supplied for emphasis) We note that the above mentioned case of Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) had been decided by a 3-member Bench of this Court whereas the afore-quoted case of Abdul Malik and others v. The State and others (PLD 2006 SC 365) had been decided by a 5-member Bench of this Court. In such a situation usually the view expressed by a Bench of greater numerical strength is to be followed even if its view was expressed prior in time to a different view expressed by a Bench of smaller numerical strength at some subsequent stage. What follows from the discussion made above is that in a case wherein the convict sentenced to imprisonment for life has already served out his Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 22 entire sentence of imprisonment for life there the Court may, in its discretion, not enhance his sentence of imprisonment for life to death and while considering the issue of such enhancement of sentence the Court may, as per the judgment rendered in the case of Abdul Malik and others v. The State and others (PLD 2006 SC 365), consider the provisions of Article 13(a) of the Constitution along with the other factors for deciding whether the sentence of imprisonment for life passed against the convict may be enhanced to death or not. Be that as it may this situation is not relevant to the appeals under consideration as the issue herein is not as to whether any convict’s sentence of imprisonment for life may be enhanced to death or not. 18. This brings us to the third situation mentioned above regarding the principle of expectancy of life, i.e. where a convict sentenced to death undergoes a period of custody equal to or more than a term of imprisonment for life during the pendency of his legal remedy against his conviction and sentence of death. Such a case recently came up for hearing before a 5-member Bench of this Court and it was held by it that the convict had “acquired expectancy of life” and it reduced the sentence of death of the convict on the charge of murder to imprisonment for life. That was the case of Dilawar Hussain v. The State (Criminal Review Petition No. 72 of 2007 in Criminal Appeal No. 200 of 2003, decided on 09.05.2013). The relevant passages from the judgment delivered by this Court in that case are reproduced below: “8. Section 302(b) of Pakistan Penal Code provides only two sentences, one death sentence and the other imprisonment for life. In order to better appreciate the contention of the learned Counsel for the petitioner that only one sentence out of two would be awarded to the petitioner, provisions of section 302 PPC are reproduced below for facility of reference:- “302. Punishment of Qatl-i-amd – Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be – (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 23 the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty- five years where according to the injunctions of Islam the punishment of qisas is not applicable. Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.” According to section 302(b) of the Pakistan Penal Code the person committing qatl-i-amd shall be punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case if the proof in either of the forms specified in section 304 PPC is not available. The counter argument raised by the learned counsel for the complainant that prolonged detention of the person convicted for an offence under section 302(b) PPC as a result of the delay in the conclusion of his trial and disposal of the appeal is not by itself sufficient to declare him entitled to the lesser penalty under section 302(b) PPC is nothing but departure from the intent of the legislature as the law itself has tackled the situation in which the Court has to select one out of the two sentences of the offence. -------------------- 9. ----------------------- Even otherwise, it would be unjust to impose double sentence on the petitioner for commission of one offence as by keeping the accused in death cell for a period of 18 years, the delay in the disposal of his case being not at all attributable to him, it will be against the principle of natural justice that he is hanged by neck. In this view of the matter, we are of the considered view that such extenuating circumstances do exist in the matter in the instant case for giving the benefit thereof to the petitioner. ------------------------- 10. After having found in the scheme of criminal litigation that the discretion lies with this Court either to go for maintaining the sentences of death of the convict or to convert it into imprisonment for life, keeping in view the facts and circumstances of the case, we would have to first define the term ‘life imprisonment’ and have also to see whether such conversion would meet the ends of justice. ------------------------ 11. In view of the afore-quoted provisions of law it is crystal clear as the light of day that life imprisonment mean twenty five years rigorous imprisonment. ----------------------- In the instant case the petitioner is being incarcerated in the death cell for the last 17 years, one month and five days and by efflux of time he has also earned remissions for 18 years, eight months and ten days. ------------------------ 12. ------------------------- In the instant case the petitioner has not only served out one sentence provided under section 302(b) PPC but has also suffered the agonies of his remaining incarcerated in the death cell for a quite long period. In such circumstances, while keeping in view the principle of abundant caution we are of the considered view that the petitioner has made out a case for review of the earlier judgment of this Court. 13. The doctrine of expectancy of life has been dealt with in the case of --------------------------- Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 24 14. Although the argument of the learned counsel for the complainant not to consider the doctrine of expectancy of life as a mitigating circumstance for lesser penalty, yet, the facts of the instant case are different from the aforesaid case as in that case the convict had not undergone one of the two legal sentences provided under section 302 PPC whereas in the instant case the petitioner having been incarcerated in the death cell for a quite long time of eighteen years and earning remissions almost for the same period has acquired expectancy of life for which he is entitled -----------------------. The aforesaid factors provide for mitigation for lesser penalty, as such, we, in the interest of justice, hold that the petitioner has been able to make out a case for lesser sentence.” (bold letters have been supplied for emphasis) In the present case the convicts-appellants have already spent about 22 years in death-cells and their total period of custody exceeds a full term of imprisonment for life each even if the remissions earned by them are not taken into consideration. The case of the present appellants is, therefore, a better case for reducing their sentences of death to imprisonment for life on the charges of murder than the case of the convict in the above mentioned judgment rendered by a 5-member Bench of this Court. In view of availability of that recent precedent withholding the benefit of the principle of expectancy of life from the appellants in the present case may be oppressive, if not unjust. 19. Now we turn to Article 13(a) of our Constitution which incorporates a Fundamental Right and reads as follows: “13. No person – (a) shall be prosecuted and punished for the same offence more than once; or (b) -----------------------” The word “punished” appearing in the said Article cannot be lifted out of context or read in isolation and, to us, the words “prosecuted and punished” used therein are conjunctive and not disjunctive. We understand that all that the said provision of the Constitution does is to recognize the age-old maxims and jurisprudential principles of autrefois acquit and autrefois convict and to grant them the status of a Fundamental Right which right cannot be violated or abridged and against which no legislation can Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 25 be passed. We understand that in a case where a convict sentenced to death undergoes a period of custody equal to or more than a full term of imprisonment for life during the pendency of his legal remedy against his conviction and sentence of death the principle relevant to the question of reduction of his sentence of death to imprisonment for life would be that of expectancy of life along with the peculiar facts and circumstances of the case rather than the question of applicability or otherwise of Article 13(a) of the Constitution as the convict in such a case is neither to be prosecuted again nor punished again. The only issue involved in such a situation would be a possible variation of the sentence of the convict which is hardly relevant to the principles of autrefois acquit and autrefois convict meant by Article 13(a) of the Constitution to be elevated to the status of a Fundamental Right. We are of the considered view that a situation like this only involves issues of propriety of sentence and exercise of discretion by the court concerned in that regard and not an issue of any right, not to speak of a Fundamental Right, earned by a convict. We are, therefore, not surprised to notice that in the case of Abdul Malik and others v. The State and others (PLD 2006 SC 365) a 5- member Bench of this Court had refused to accept direct applicability of Article 13(a) of the Constitution to such a situation and later on in the case of Dilawar Hussain v. The State (Criminal Review Petition No. 72 of 2007 in Criminal Appeal No. 200 of 2003, decided on 09.05.2013) another 5-member Bench of this Court had not even deemed it necessary or relevant to refer to Article 13(a) of the Constitution while accepting the review petition and reducing the convict-petitioner’s sentence of death to imprisonment for life inter alia on the ground that he had already spent a period of time in custody which was more than a term of imprisonment for life. In the latter case this Court had referred only to “natural justice”, “extenuating circumstances”, “abundant caution” and “expectancy of life” for reduction of the convict’s sentence. In this background the reference made to and the reliance placed upon Article 13(a) of the Constitution by a 3- member Bench of this Court in the case of Iftikhar Ahmed Khan v. Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 26 Asghar Khan and another (2009 SCMR 502) in a similar context may be treated as per incuriam. While dwelling upon the issue of Fundamental Rights of a convict sentenced to death it may be interesting to mention here that in India the issue at hand was looked at from another angle and in the case of T. V. Vatheeswaran v. The State of Tamil Nadu (AIR 1983 SC 361(2)) it was declared by the Supreme Court of India that if the sentence of death passed against a convict on the charge of murder was not executed within a period of two years then the sentence of death ought to be quashed and reduced to imprisonment for life because such delay in execution of the sentence of death militated against the convict’s Fundamental Right to life and liberty guaranteed by the Indian Constitution. The said judgment was, however, quickly overruled, and understandably so, by the Supreme Court of India in the case of Sher Singh and others v. State of Punjab (AIR 1983 SC 465). 20. The discussion made above shows that as of today the following principles of practice are being followed by the courts of this country in respect of the principle of expectancy of life: (a) In a case where delay is occasioned in final disposition of a legal remedy being pursued by a convict sentenced to death on a charge of murder and where the undergone period of his incarceration is less than that of a term of imprisonment for life there the principle of expectancy of life for its use for the purpose of reduction of the sentence of death to imprisonment for life stands abandoned by the courts of this country. (b) In a case where the State or the complainant party is seeking enhancement of a sentence of imprisonment for life of a convict to death and before or during the pendency of such recourse the convict serves out his entire sentence of imprisonment for life and he has, or has not yet, been released from the jail Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 27 there the principle of expectancy of life is still relevant for not enhancing the sentence of imprisonment for life to death. Article 13(a) of the Constitution is not directly relevant to such a situation but the spirit of that Article may be considered in such a case as a factor along with the other factors like expectancy of life and the facts and circumstances of the case, etc. for not enhancing the sentence of imprisonment for life to death at such a late stage. (c) In a case where a convict sentenced to death undergoes a period of custody equal to or more than a full term of imprisonment for life during the pendency of his judicial remedy against his conviction and sentence of death there the principle of expectancy of life may be a relevant factor to be considered along with the other factors for reducing his sentence of death to imprisonment for life. 21. After attending to the mitigating circumstances available in the facts and circumstances of this case and after deliberating upon the issues concerning section 403, Cr.P.C., double jeopardy, expectancy of life and Article 13(a) of the Constitution we now proceed to briefly advert to some other submissions made before us. We note that by virtue of Article 37(e) of the Constitution it is a responsibility of the State to “ensure inexpensive and expeditious justice”. It is probably in this context that through the provisions of sections 497, 426 and 382-B, Cr.P.C. the legislature itself intends to provide some relief to an accused person or a convict in a criminal case if the State has not been able to fulfil its constitutional responsibility of providing him expeditious justice. If an accused person’s trial is not concluded within a specified period section 497, Cr.P.C. contemplates bail for him, if a convict’s appeal is not decided within a particular period section 426, Cr.P.C. provides for suspension of his sentence and release on bail and if a trial is unduly prolonged then section 382-B, Cr.P.C. makes it Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 28 possible that the period of detention of an accused person during the trial may be counted towards determination or calculation of his sentence of imprisonment passed after conviction. Applying the same standard or principle, it may not be unreasonable to conclude that where a convict sentenced to death on a charge of murder fails to obtain a final judicial determination qua validity of his conviction or desirability of his sentence of death for such a long time that his period of custody stretches to a period equal to or exceeding a full term of imprisonment for life, which is one of the two alternative legal sentences provided in section 302(b), P.P.C., there the State, acting through its judicial Organ, may acknowledge failure of its constitutional responsibility of ensuring expeditious justice and may exercise discretion in the matter of the sentence of such convict by reducing it from death to imprisonment for life. It has already been mentioned by us above that after recording of their convictions and sentences by the learned trial court in the year 1991 the appellants’ sentences of death had been confirmed by the Lahore High Court, Lahore in the year 1999 and they had then approached this Court through Criminal Petitions in the year 1999 wherein leave to appeal was granted to them in the year 2004. Now after about fourteen years of their approaching this Court and after spending more than twenty-five years of their lives in custody, out of which period they have spent about twenty-two years in death-cells, the appellants’ appeals have come up for decision before this Court. We have also observed above that the stark reality staring us in the face is that both the appellants have already spent in custody a period more than a full term of imprisonment for life and if we uphold their sentences of death at this late stage then the appellants would, for all practical purposes, be punished with death after spending a period in custody which is more than a full term of imprisonment for life and such a bizarre situation may run contrary to the letter and the spirit of section 302(b), PPC which provides for a sentence of death or a sentence of imprisonment for life. Such a case may not strictly be termed as a case of double punishment but it can more appropriately be called a case of an unconscionably delayed Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 29 punishment, delayed to such an extent that the punishment is aggravated beyond the contemplation of the relevant law itself. Upon the analogy of sections 497, 426 and 382-B, Cr.P.C. noted above the legislative intent may lean in favour of extending some relief to the appellants placed in such a predicament which is not of their own making and the least that this Court can do for them in such an unfortunate situation is to exercise its discretion in the matter of their sentences by reducing their sentences of death to imprisonment for life on the basis of the facts and circumstances of the case detailed above and also on the basis of the principle of expectancy of life. In the case in hand after committing the abominable crime of murder the appellants have been vegetating and rotting in death cells awaiting their execution for so long that they now appear to have become victims themselves, victims of a monumental systemic failure which the system must acknowledge and own and in return it should extend the appellants some respite or reparation. 22. We are, however, conscious of the ingenuity and craftiness of a human mind and it can be visualised by us that the observations made by us above may possibly be misused in future through clever machinations of a convict whose neck is on the line. We, therefore, make it clear that the observations made above shall not be applicable to any delay caused by the Executive in processing or deciding a condemned prisoner’s mercy petition or in executing his sentence of death after his judicial remedies have been exhausted. The said observations shall also not be applicable to a case wherein the convict is himself demonstrably and significantly responsible for the delay occasioned in conclusion of his judicial remedies. 23. Upon the strength of the provisions of sub-section (5) of section 367, Cr.P.C. it has been maintained before us that the normal sentence for an offence of murder is death and while considering a prayer for reduction of a sentence of death passed against a convict this Court may remain mindful of that statutory Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 30 stipulation. We have found such a submission to be suffering from multiple misconceptions. Sub-section (5) of section 367, Cr.P.C. provides as follows: “(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, then the Court shall in its judgment state the reason why sentence of death was not passed.” We have not been able to find anything in the said provision of law even hinting at the sentence of death being the normal sentence in such a case. Section 302(b), P.P.C. clearly provides for two alternative sentences, i.e. sentence of death or sentence of imprisonment for life for the offence of murder and it does not state that any one of those sentences is to be treated as the normal sentence. As a matter of fact section 302(b), P.P.C. itself mentions that any one of the two alternative sentences provided for therein is to be passed “having regard to the facts and circumstances of the case”. There are cases wherein “the facts and circumstances of the case” do not warrant a sentence of death and what is required by sub-section (5) of section 367, Cr.P.C. is that such facts and circumstances of the case ought to be mentioned by the trial court in its judgment so that the higher Courts may straightaway become aware of the same while entertaining or deciding a challenge thrown again the trial court’s judgment. We believe that the general misunderstanding or misconception about the true import of the provisions of sub-section (5) of section 367, Cr.P.C. entertained by the legal community, including the courts, in this regard needs to be removed and rectified. The other misconception about sub-section (5) of section 367, Cr.P.C. is that it is considered to be applicable to the entire hierarchy of criminal courts whereas that is not the case. Sub-section (5) of section 367, Cr.P.C. is placed in Chapter XXVI of Part VI of the Code of Criminal Procedure, 1898 and Part VI of the Code pertains only to ‘Proceedings in Prosecutions’ before a trial court. The matters pertaining to the appellate and revisional courts are provided for in Part VII of the Code and that Part of the Code does not contain any Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 31 provision akin or similar to that of sub-section (5) of section 367, Cr.P.C. It is, thus, evident that the requirements of sub-section (5) of section 367, Cr.P.C. are relevant only to a trial court and they have no application to an appellate or revisional court. The provisions of section 423(1)(b), Cr.P.C. unambiguously show that it is well within the powers of an appellate court seized of an appeal against conviction to reduce the sentence of a convict and the requirement relevant to a trial court, as contained in sub-section (5) of section 367, Cr.P.C., is not to be found in section 423(1)(b), Cr.P.C. The powers conferred upon a revisional court under sections 435 and 439, Cr.P.C. also clearly demonstrate that while exercising revisional jurisdiction a sentence can be reduced and, again, the requirement relevant to a trial court, as contained in sub-section (5) of section 367, Cr.P.C., is not to be found in sections 435 and 439, Cr.P.C. It, therefore, goes without saying that when an appellate or revisional court is considering a question of propriety or otherwise of a sentence passed against a convict the provisions of sub-section (5) of section 367, Cr.P.C. cannot be pressed into service before it and any question of the sentence of death being the normal sentence is hardly relevant before the appellate and revisional courts. 24. As a consequence of the discussion made above we have concluded that on account of the mitigating circumstances oozing out of the facts and circumstances of this case and also on account of the principle of expectancy of life the sentences of death passed against Hassan and Sikandar convicts-appellants on all the counts of murder contained in the charge framed against them ought to be reduced to imprisonment for life. Criminal Appeals No. 13 and 16 of 2004 are, therefore, partly allowed, the sentences of death passed against Hassan and Sikandar convicts-appellants on all the relevant counts of the charge are reduced to sentences of imprisonment for life and the remaining convictions and sentences of the said appellants are maintained. All the sentences of imprisonment passed against them shall run concurrently and they shall be extended the benefit under section 382-B, Cr.P.C. Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 32 Criminal Appeal No. 16 of 2004 has already abated to the extent of Khuda Bakhsh appellant who has died. Criminal Appeals No. 13 and 16 of 2004 are disposed of in these terms. 25. As far as Criminal Appeal No. 14 of 2004 is concerned we have observed that Ghulam Qadir, Qasim and Abdul Ghaffar son of Shahamand respondents had been acquitted by the Lahore High Court, Lahore on the grounds that none of them had been arrested at the spot; they were not saddled with any specific injury on the person of any of the victims; no independent corroboration was forthcoming to their extent; and, therefore, they were entitled to be acquitted by extending the benefit of doubt to them. We have noticed that the occurrence in this case had taken place in the year 1986 and the said respondents had earned their acquittal from the Lahore High Court, Lahore way back in the year 1999, i.e. about fourteen years ago. In this backdrop the learned counsel for the appellant has not pressed this appeal with any degree of vehemence. The reasons recorded by the Lahore High Court, Lahore for acquitting the said respondents have not been found by us to be fanciful or perverse. In these circumstances no occasion has been found by us for interference with the said respondents’ acquittal. Criminal Appeal No. 14 of 2004 is, therefore, dismissed. 26. As regards Criminal Appeal No. 15 of 2004 we have noticed that Abdul Ghaffar son of Khuda Bakhsh, Manik, Muhammad Yaqoob, Shahamand and Sultan respondents had been acquitted by the learned trial court in the year 1991 and their acquittal had not been interfered with by the Lahore High Court, Lahore in the year 1999. It had been observed by the learned courts below that Manik, Abdul Ghaffar son of Khuda Bakhsh and Muhammad Yaqoob respondents had not been attributed any specific injury in the FIR but during the trial the prosecution witnesses had improved the version contained in the FIR and had attributed effective firing to them. It had also been noticed by the learned courts below that even Shahamand respondent had not been attributed any effective role in the FIR but the prosecution Criminal Appeals No. 13, 14, 15 & 16 of 2004 and 53 of 2011 33 witnesses had made improvements in that regard before the learned trial court and had alleged that he had played an active part in the incident. It had particularly been observed by the learned trial court that Shahamand and Sultan respondents were old and infirm persons and the allegations levelled by the prosecution against them were even otherwise difficult to be accepted at their face value. The learned counsel for the appellant has failed to point out any misreading or non-reading of the evidence on the part of the learned courts below and the reasons recorded by the learned courts below for recording acquittal of the said respondents have not been found by us to be arbitrary. In these circumstances there is hardly any occasion for us to interfere with acquittal of the said respondents. Criminal Appeal No. 15 of 2004 is, therefore, also dismissed. 27. These are the detailed reasons for the short order announced by us on 31.05.2013 which reads as follows: “After hearing the arguments of learned ASCs for the appellants, Additional Prosecutor-General, Punjab, Additional Advocate-Generals, Punjab, KPK and Balochistan Criminal Appeals No. 13 and 16 of 2004 are partly allowed to the extent that the sentences of death penalty awarded to the appellants Hassan and Sikandar are converted into imprisonment for life on each count which shall run concurrently. Further benefit under section 382-B, Cr.P.C. is also extended to them.” 2. Criminal Appeals No. 14 & 15 of 2004 are dismissed. Criminal Appeal No. 53 wherein all the three convicts-appellants have already served out their entire sentences is dismissed as not pressed. 3. Reasons for this short order to follow separately.” Judge Judge Judge Islamabad 31.05.2013 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Anwar Zaheer Jamali Mr. Justice Asif Saeed Khan Khosa Mr. Justice Amir Hani Muslim Criminal Appeal No. 140 of 2005 & Criminal Miscellaneous Applications No. 629 of 2010, 141 of 2005, 228 to 233 of 2004, Civil Petition No. 205 of 2006 & Civil Miscellaneous Application No. 393 of 2007, Civil Appeals No. 91 and 609 of 2006 & Civil Miscellaneous Application No. 2710 of 2013, Civil Appeal No. 1189 of 2008, Criminal Appeal No. 1-Q of 2010, Civil Appeal No. 1324 of 2007, Criminal Appeals No. 274 to 279 of 2006, Criminal Petitions No. 78-L & 79-L of 2004, Civil Petitions No. 1355-L, 1188-L, 1363-L and 1013-L of 2010, Civil Petitions No. 1749, 1548 of 2009, 226-L of 2010, 1936-L of 2011, 1145-L, 1326-L, 2534-L of 2009, 629-L of 2008, Criminal Original Petition No. 31 of 2007 in Civil Appeal No. 1324 of 2007, Civil Petition No. 318 of 2008, Civil Appeal No. 483-L, 484-L of 2009, Criminal Appeals No. 101, 102 of 2005, 86 of 2003 & Criminal Petitions No. 96 and 97 of 2003 Abdul Aziz Memon (Crl.A. 140/05) Mst. Farida Abdul Aziz (Crl.A. 141/05) The State through NAB (Crl.As. 228 to 233/04, C.P. 1548/09) The State through PG NAB (C.A. 91/06, C.P. 318/08, Cr.As. 96 & 97/03) The State through Chairman (Crl.As. 274-276/06, C.P.1936-L/11) NAB Sohail Akhtar, etc. (C.P. 250/06) Shahbaz-ud-Din Ch. etc. (C.A. 609/05) Mst. Farzana Shaheen (C.A. 1189/08) Muzaffar Hussain, etc. (Crl.A. 1-Q/10) Nadeem Majeed (C.A.1324/07) Muhammad Asif Sehgal (Crl.As. 277 to 279/06) Mohib Fabrics Limited (Crl.Ps. 78 & 79-L/04) Mazhar Wakil Malik (C.P. 1355-L/10) Brig. Retd Zaheerullah (C.Ps. 1188-L/10, 1145-L/09) Munir Ahmad Virk (C.P. 1363-L/10) Dr. Ayesha Tahir, etc. (C.P. 1013-L/2010) Mehran Bibi, etc. (C.P. 1749/09) Anjuman Mutasareen Double (C.P. 226-L/05) Shah Mohammad Yaseen (C.P. 1326-L/09) Mohammad Amin Bhatti (C.P. 2534-L/09) Muhammad Ashraf (C.P. 629-L/08) Nadeem Majeed (Crl.O.P. 31/07) M. Anees-ur-Rehman Butt, etc. (C.As. 483 & 484-L/09) Ch. Aamir Sher Ali (Crl.As. 101 & 102/05) Criminal Appeal No. 140 of 2005, etc. 2 Haji Kabir Khan (Crl.A. 86/03) … Appellant(s)/Petitioner(s) versus The State (Crl.As. 140-141/05, 277 to 279/06, Crl.Ps. 78 & 79-L/04, Crl.As. 101 to 102/05 & 86/03) Nasim-ur-Rehman (Crl.A. 228/04) Anwar-ur-Rehman (Crl.A. 229/04) Masood-ur-Rehman (Crl.A. 230/04) Mujeeb-ur-Rehman (Crl.A. 231/04) Faisal Saleem (Crl.A. 232/04) Asad Saleem (Crl.A. 233/04) Chairman NAB, etc. (C.Ps. 250/06, 1355-L, 1188-L, 1363-L, 1013-L/2010, 1145- L/09, 629-L/08) Naseem-ur-Rehman, etc. (C.A. 91/06) The State, etc. (C.A. 609/05, Crl. A. 1-Q/10, C.A. 1324/07, Crl.O.P. 31/07) Federation of Pakistan through (C.A.1189/08, C.P. 1749/09) Secretary, Interior, etc. Brig (R) Karar Ali Agha (C.P. 1548/09) Government of Pakistan, etc. (C.P. 226-L/2010) Dr. Abdul Basit (C.P. 1936-L/11) DG NAB, Lahore, etc. (C.Ps. 1326-L/09, 2534-L/09) M. Kamran Khan, etc. (C.P. 318/08) Rashid Ahmad Yaqoob, etc. (C.As. 483 & 484-L/09) Haji Kabir Khan, etc. (Crl.Ps. 96-97/03) …Respondent(s) Criminal Appeal No. 140 of 2005 & Criminal Miscellaneous Application No. 629 of 2010 and Civil Appeal No. 141 of 2005 For the appellant(s) : Mr. Abid Hassan Minto, Sr. ASC Mr. Afzal Siddiqui, ASC Mr. M. S. Khattak, AOR For the respondent : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB Crl. As. 228 to 233/2004 For the appellant(s) : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB For the respondent(s) : Raja Muhammad Bashir, Sr. ASC C. P. 205/2006 & CMA No.393/07 For the petitioner : Mr. Afzal Siddiqui, ASC Sardar Muhammad Ghazi, ASC Criminal Appeal No. 140 of 2005, etc. 3 For respondent No.1 For respondent No.3 : : Raja M. Ibrahim Satti, Sr. ASC Mr. M. S. Khattak, AOR Nemo C. A. No. 91/2006 For the appellant : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB For respondent No.1 : Nemo. C. A. No. 609/2006 & CMA 2710/13 For the appellant : Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR For respondent No.1 For Complainant : : Raja M. Ibrahim Satti, Sr. ASC Mr. M. S. Khattak, AOR a/w Syed M. Iqtidar Haider (in person) C. A. 1189/2008 For the appellant : Mr. M. Akram Sheikh, Sr. ASC Mr. Naseer-ud-Din Khan, ASC Ch. Akhtar Ali, AOR For respondent No.1 : Nemo. Crl. A. No.1-Q/2010 For the appellant : Nemo. For the respondent : Mr. K. K. Agha, PG (NAB) C. A. No.1324/07 For the appellant : Mr. Kamran Murtaza, ASC For respondent No.1 Respondent No. 7 : : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB Mr. M. S. Khattak, AOR Mr. Ali Shafi (in person) Crl. A. No. 274 & 276/2006 For the appellant(s) : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB For the respondent : Ch. Aitzaz Ahsan, Sr. ASC Crl. A. No. 277 to 279/2006 & Crl. Ps.78 & 79-L/2004 and C. P. 1335-L/2010 Criminal Appeal No. 140 of 2005, etc. 4 For the appellant(s) : Ch. Aitzaz Ahsan, Sr. ASC For the respondent : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB Cr. P. 79-L/2004 For the petitioner : Nemo For the respondent : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB) C. P. 1188/2010 For the petitioner : Nemo For the respondent : N.R. C. Ps. No. 1363-L & 1013/2010 For the petitioner : Nemo. For the respondent : N.R. C. P. No. 1749/2009 For the petitioner : Mr. M. Akram Sheikh, Sr. ASC Mr. Naseer-ud-Din Khan, ASC For the respondent : N. R. C. P. 1548/2009 For the petitioner : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB) For the respondent : Nemo. C. P. No. 226-L/2011 For the petitioner : Dr. A. Basit, Sr. ASC For the respondent : N.R. C. P. No. 1936-L/2011 For the petitioner : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB For the respondent : In person C. Ps. No. 1145-L, 1326-L/2009 & 2534-L/2009 For the petitioner(s) : Nemo. Criminal Appeal No. 140 of 2005, etc. 5 For the respondent(s) : N.R. C. P. No. 629-L/2008 For the petitioner : Nemo. For the respondent : N.R. C. P. No. 318/2008 For the petitioner : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB For the respondent : Nemo. C. A. 483 & 484-L/2009 For the appellant : Appellant No. 2 in person For respondent No.1 Official respondents : : Nemo. Nemo. Crl. As. No. 101 & 102/2005 For the appellant(s) : Mr. M. Akram Sheikh, Sr. ASC Mr. Naseer-ud-Din Khan, ASC For the respondent(s) : Mr. K. K. Agha, PG (NAB) Mr. Fauzi Zafar, Dy. PG (NAB) Crl. A. No. 86/2003 For the appellant : Mr. Abid Hassan Minto, Sr. ASC For the respondent : Mr. K. K. Agha, PG (NAB) Mr. Fauzi Zafar, Dy. PG (NAB) Crl. Ps. No.96 & 97/2003 For the petitioner(s) : Mr. K. K. Agha, Prosecutor-General, NAB Mr. Fauzi Zafar, Additional Prosecutor- General, NAB For the respondent : Mr. Abid Hassan Minto, Sr. ASC. Dates of hearing : 21.05.2013 & 22.05.2013 JUDGMENT Asif Saeed Khan Khosa, J.: There are two features common to all these appeals and petitions for leave to appeal and they are, firstly, the persons affected have been proceeded against Criminal Appeal No. 140 of 2005, etc. 6 under the National Accountability Ordinance, 1999 and, secondly, such persons claim not to be holders of any public office during the period relevant to the offences regarding which they have been proceeded against. These two common features in these appeals and petitions have given rise to a common question as to whether the provisions of the National Accountability Ordinance, 1999 are applicable to a person who is not holder of a public office or not. Thus, before taking up these appeals and petitions for decision in terms of their individual factual and legal merits we have decided to resolve and answer the said common question in the first instance and have heard the arguments of the learned counsel for the parties regarding the said issue. 2. Mr. Abid Hassan Minto, Sr. ASC appearing for the appellants in some of the appeals has submitted that a close examination of the provisions of section 9(a) of the National Accountability Ordinance, 1999 shows that three categories of persons can be proceeded against by the National Accountability Bureau for the offences mentioned in that section and they are: (a) a person who is holder of a public office, (b) a person who aids and abets or conspires with holder of a public office, and (c) any other person who may not be holder of a public office and may have nothing to do with holder of a public office. He has taken us through different provisions of section 9(a)(i) to 9(a)(xii) of the National Accountability Ordinance, 1999 pointing out which provision relates to which of the categories of persons mentioned above. While Mr. Minto was making his submissions Mr. Wasim Sajjad, Sr. ASC interjected and maintained that there is also a fourth category of persons who have held a public office at some point of time and they are proceeded against for an offence under section 9(a) allegedly committed before and during the period of holding the public office and he has maintained that such persons cannot be proceeded against for an offence allegedly committed during the period when they were not holding any public office. Mr. Minto has acknowledged that there indeed exist some provisions of section 9(a) of the National Accountability Criminal Appeal No. 140 of 2005, etc. 7 Ordinance, 1999 whereunder any private person who may not be holder of a public office himself and who may have nothing to do with any holder of a public office may independently be proceeded against by the National Accountability Bureau if the offence committed by him affects the public at large. 3. Mr. Muhammad Akram Sheikh, Sr. ASC appearing for the appellants/petitioner in some of the appeals and a petition has argued that holder of a public office is a trustee and for dealing with the offence of corruption committed by such a person different laws have been framed in this country from time to time. He has argued that if a private person is also covered by such laws then an uncertainty is to creep in as to whether in a given case such private person ought to be tried under the normal laws of the land or under the special law generally meant for holders of public offices and in matters of penal laws any uncertainty is to be avoided. He has referred in this respect to the cases of Jamat-i- Islami Pakistan through Syed Munawar Hassan, Secretary-General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs (PLD 2000 SC 111), In the matter of: Reference No. 2 of 2005 by the President of Pakistan (PLD 2005 SC 873) and Jibendra Kishore Achharyya Chowdhry and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC (Pak.) 9). He has gone on to contend that any law which allows the authorities to pick and choose at their whims as to which person is to be proceeded against under which law is bad law. He has maintained that a law which is capable of discriminatory applicability is violative of the Fundamental Right guaranteed by Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Mr. Sheikh has referred in this regard to the cases of Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563), Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504) and Rauf Bakhsh Kadri v. The State and others (2003 MLD 777). Criminal Appeal No. 140 of 2005, etc. 8 4. Ch. Aitzaz Ahsan, Sr. ASC appearing for some of the parties to these matters has contended that the words “any other person” appearing in different parts of section 9(a) of the National Accountability Ordinance, 1999 ought to be read as any person who has benefitted from a person holding a public office because beneficiaries from the offences committed by holders of public offices are covered by different provisions of section 9(a) and he has referred in this respect to the cases of Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others (PLD 2003 SC 46) and Vijant Kumar and 4 others v. State through Chief Ehtesab Commissioner, Islamabad and others (PLD 2003 SC 56). He has maintained that the National Accountability Ordinance, 1999 is a very harsh and stringent law as there is no provision therein for bail, it allows freezing of properties, the sentences provided therein are high and excessive, remissions are not available to convicts, a conviction also entails disqualifications and transfer of property is not allowed even to those facing an investigation or trial and, therefore, such a law is to be interpreted quite strictly and beneficially towards a citizen. 5. Mr. Wasim Sajjad, Sr. ASC appearing for the appellant in one of the appeals has argued that the accountability laws introduced in the country from time to time were meant to apply mainly to holders of public offices and the purpose invariably was to curb the menace of public sector corruption. According to him a “Holder of Public Office” has been defined in section 5(l) of the National Accountability Ordinance, 1999 quite elaborately and the words “holder of a public office or any other person” appearing in section 9(a) of the said Ordinance are to be treated as ejusdem generis. By referring to the Black’s Law Dictionary and 2nd Edition of Mr. S. M. Zafar’s book ‘Understanding Statutes’ he has elaborated that it is an established principle of interpretation of statutes that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. He has Criminal Appeal No. 140 of 2005, etc. 9 gone on to submit that if the intention of the legislature was to include every person within the scope of section 9(a) of the National Accountability Ordinance, 1999 then there was no need to refer to holder of a public office specifically in that section. Mr. Wasim Sajjad has also referred to Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 to maintain that every citizen has an inalienable right to enjoy the protection of law and if the ordinary law of the land covers the allegations leveled against a private person then subjecting him to a harsher special law adversely affects his constitutional right under Article 4. He has also drawn our attention towards the National Accountability Bureau Ordinance, 1999 as introduced originally (published in PLD 2000 Central Statutes 57) and has pointed out that the originally introduced provisions of section 9(a)(i) to 9(a)(vii) were relevant only to holders of public offices and any other person who aided such holder of public office or who was a beneficiary of the corruption of such holder of public office. According to him subsequent widening of the net through amendments introduced in the main Ordinance was not in consonance with the spirit and scope of the original law. He has lastly pointed out that that the High Court of Sindh in the case of Abdul Aziz Memon v. The State (2003 YLR 617), the Lahore High Court in the case of Ch. Zulfiqar Ali v. Chairman, NAB and others (PLD 2003 Lahore 593) and the Peshawar High Court in the case of Haji Kabir Khan v. The State (2003 YLR 1607) have rendered divergent views regarding interpretation of the words “any other person” appearing in section 9(a) of the National Accountability Ordinance, 1999 and, thus, there is a pressing need that the said words may be interpreted by this Court so that the prevalent ambiguity in that regard may be brought to an end. 6. Mr. Sardar Muhammad Ghazi, Mr. Kamran Murtaza, Raja Bashir Ahmad and Dr. A. Basit, Sr. ASCs appearing in some of the appeals and petitions have adopted the arguments advanced by Mr. Muhammad Akram Sheikh and Mr. Wasim Sajjad and have maintained that a private person not holding a public office, other than a private person aiding or abetting or conspiring with holder of a public office or a beneficiary from holder of a public office, Criminal Appeal No. 140 of 2005, etc. 10 cannot be proceeded against under the National Accountability Ordinance, 1999. Written synopses of their arguments have also been submitted before us by some of the learned counsel mentioned above. No other learned counsel has addressed arguments or submitted written synopsis in support of the submissions noted above. 7. As against the arguments and submissions noted above Mr. K. K. Agha, the learned Prosecutor-General Accountability appearing for the National Accountability Bureau, has taken us through the legislative history of this country and the laws introduced from time to time concerning accountability of holders of public offices. He has particularly highlighted how different laws were amended or new laws were enacted extending the jurisdiction of the agencies established for curbing corruption not only in high public places but also in the public at large. According to him the National Accountability Ordinance, 1999 is a hybrid law in its present form and the same is now applicable not just to holder of a public office or a person aiding or abetting or conspiring with holder of a public office but also to any other person who is neither holder of a public office himself nor has anything to do with holder of a public office. He has extensively compared the provisions of the erstwhile Ehtesab Act, 1997 with the provisions of the National Accountability Ordinance, 1999 to show how through the latter legislation the net has deliberately been spread wider even to cover large-scale corruption in the private sector and in the public at large. He has also extensively read out many portions of the judgment handed down by this Court in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607) to maintain that this Court has already recognized the enlarged scope of the provisions of the National Accountability Ordinance, 1999 and that the question being debated before the Court already stands answered by this Court in that judgment. Referring to the judgment delivered by this Court in the case of Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483) he has submitted that while interpreting the words in a statute the ordinary meanings of the words are to be Criminal Appeal No. 140 of 2005, etc. 11 the preferred option unless the context requires otherwise and, thus, the words “any other person” appearing in section 9(a) of the National Accountability Ordinance, 1999 ought to be understood to mean any other person not necessarily connected with holder of a public office. Mr. Agha has emphasised that different High Courts in the country have understood and applied the said words differently and, thus, this Court may clarify the correct legal position in this regard. As regards the submission made by some of the learned counsel mentioned above regarding the power of the Chairman, National Accountability Bureau to pick and choose cases for their handling under the National Accountability Ordinance, 1999 he has maintained that the National Accountability Bureau has a safe mechanism for deciding as to which case is to be handled by it and the decision of the Bureau in that regard is subject to judicial scrutiny, as held by the High Court of Sindh in the case of Rauf Bakhsh Kadri v. The State and others (2003 MLD 777). He has gone on to submit that this aspect of the jurisdiction of the National Accountability has already been examined by this Court in the case of Khan Asfandyar Wali (supra) on the touchstone of the Fundamental Rights guaranteed by the Constitution and no violation of the Constitution had been found by this Court in that regard. 8. Raja Muhammad Ibrahim Satti, Sr. ASC appearing for the respondents in an appeal and a petition has also traced the legislative history qua accountability in this country and has referred in this respect to the case of Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26). He has also made a reference to the case of Chaudhary Aamir Ali v. The State (2002 YLR 1902) wherein a view identical to that in the case of Ch. Zulfiqar Ali v. Chairman, NAB and others (PLD 2003 Lahore 593) had been taken by the Lahore High Court on the issue being considered by this Court. 9. After hearing the learned counsel for the parties and the learned Prosecutor-General Accountability and after going the relevant laws and provisions and attending to the precedent cases Criminal Appeal No. 140 of 2005, etc. 12 cited before us we have found that the stance that a person can be proceeded against under the National Accountability Ordinance, 1999 only if he is holder of a public office is clearly misconceived. It may be true that the accountability laws in this country introduced till the Ehtesab Act, 1997 were mainly directed against holders of public offices and persons aiding and abetting or conspiring with holders of public offices but at the same time it is equally true that, in the words of Mr. K. K. Agha, the National Accountability Ordinance, 1999 had brought about a “sea change” by expanding the jurisdiction of the National Accountability Bureau far beyond holders of public offices and by covering corruption of high scale even in the public at large. For a proper understanding of this change a look at the legislative history in this field may be in order and fortunately the same has already been summed up by this Court in the case of Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26) as follows: “Before we proceed to consider the above contentions of the learned counsel for the patties, it may be stated here that transparent, even-handed and across the board accountability of holders of all public offices, is the essence of Islamic polity and a democratic set-up. Presence of accountability process in a system of governance not only deter those who hold sway over the populace from misusing and abusing the power and authority entrusted to them but it also ensures principles of good governance. It would be pertinent at this stage to briefly refer to the legislative history of accountability laws in Pakistan. Soon after the establishment of State of' Pakistan, Public and Representative Offices (Disqualification) Act, 1949 (PRODA) was passed by the Legislature which became effective from 15th August, 1947. This Act provided for debarring from public life for a suitable period of persons judicially found guilty of misconduct in any public office. It remained enforced until 21st September, 1954 when it was repealed by Public and Representative Offices (Disqualification) (Repeal) Act, 1954. After the repeal of PRODA, there was no special law on the statute book dealing with the accountability of holders of public offices between the period from 21st September, 1954 to 6th August, 1959. On 7th August, 1958 while the country was under the Martial Law, Elective Bodies (Disqualification) Order, 1959 (President's Order No.13 of 1959) (EBDO) was promulgated which remained enforced only until 31st December, 1960 (EBDO provided for disqualifications of certain categories of persons from being a member or a candidate for the membership of any elective body until 31st December, 1966. EBDO was amended by P.O. No.7 of 1960 dated 10-2-1960; P.O. 9 of 1960 dated 5-3-1960; P.O. 27 of 1960 dated 28-11-1960 and P.O. 29 of 1960 dated 27-11-1960. On 7th January, 1963, Elective Bodies Disqualification (Removal and Remission) Ordinance, 1963 was promulgated which authorised the President to reduce the period of disqualification of a person disqualified under EBDO. Once again, after expiry of EBDO on 31st December, 1960, no special law existed on the subject of Criminal Appeal No. 140 of 2005, etc. 13 accountability of holders of public offices until 8th of January, 1977. On 9th January, 1977, Holders of Representative Offices (Prevention of Misconduct) Act IV of 1976 and Parliament and Provincial Assemblies (Disqualification from Membership) Act V of 1976 were passed which provided for trial of offences of misconduct of holders of public offices before a Bench of the High Court consisting of not less than two Judges. On 13th November, 1977 Holders of Representative Offices (Punishment for Misconduct) Order (President's Post Proclamation) Order No.16 of 1977 (P.P.P.0.16) and Parliament and Provincial Assemblies (Disqualification for Membership) Order (President's Post Proclamation Order 17 of 1977 (P.P.P.O. 17) were promulgated. P.P.P.Os. 16 and 17 of 1977, however, did not repeal Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and Provincial Assemblies (Disqualification for Membership) Act, 1976 with the result from 13-11-1977 onwards we had on the Statute Books Act IV of 1976, Act V of 1976, P.P.P.0.16 of 1977 and P.P.P.O. 17 of 1977, all dealing with punishment for misconduct and disqualification of the holders of public offices. Holders of Representative Offices (Prevention of Misconduct) Act, 1976 and Parliament and Provincial Assemblies (Disqualification for Membership) Act, 1976 were finally repealed by Parliament and Provincial Assemblies (Disqualification for Membership) (Amendment) Act, 1991 which was assented to by the President on 28-4-1991. P.P.P.O. 16 of 1977 was amended through P.P.P.O. 5 of 1978 dated 17-1-1978 and President's Order I of 1981. Similarly, P.P.P.O. 17 was also amended by Ordinance IX of 1990 dated 15-10-1990 and Act V11 of 1991 dated 28-4-1991. On 18th November, 1996, Ehtesab Ordinance CXI of 1996 was promulgated which repealed P.P.P.O. 16 and P.P.P.O. 17 of 1977. Ordinance CXI was amended by Ordinance CXXIII of 1996, Ordinance V11 of 1997 and Ordinance XI of 1997. Ordinance CXI amended as aforesaid was repealed and replaced by Ordinance XX of 1997. Ordinance XX was repealed by Act IX of 1997. Act IX of 1997 was amended through Ordinance II of 1998 on 4th February, 1998 but this Ordinance stood repealed on 3rd June, 1998 as it was not passed by the Parliament. From the legislative history mentioned above, two conclusions clearly emerge. Firstly, the necessary for special legislation relating to accountability of holders of public offices has been recognised both by the Civilian as well as Military Governments. Secondly, except for two brief interludes, the special laws relating to accountability of holders of public offices remained in the field from 15th August, 1947 till today. At this stage, we may also mention that at least on two previous occasions, the justification for imposition of Martial Law and deviation from the Constitutional Rule in the country was sought to be justified on the plane of rampant corruption of the politicians. It is also not without significance that four previous elected Civilian Governments were also dismissed before completion of their tenure under the Constitution on allegations of corruption besides other allegations. In this backdrop, when the second Benazir Bhutto's elected Government was dismissed under Article 58(2)(b) of the Constitution in November, 1996, there was a public outcry for a severe accountability of the holders of public offices. The caretaker set-up which carne into existence as a result of dismissal of elected Government of Benazir Bhutto, therefore. promulgated Ehtesab Ordinance CXI of 1996, which was later amended through Ordinance CXXIII, Ordinance VII and Ordinance XI, before it was repealed and replaced by Ordinance XX of 1997. Nawaz Sharif's Government which came into power as a result of general elections in the country held in February, 1997 promulgated the Act which Criminal Appeal No. 140 of 2005, etc. 14 repealed Ordinance XX of 1997. In the light of the preceding discussion, we now proceed to consider the above contentions of the parties.” The “sea change” regarding spreading the net wider and enlarging the scope of the accountability law referred to by Mr. K. K. Agha in his submissions with reference to the Ehtesab Act, 1997 and the National Accountability Ordinance, 1999 already stands noticed and recognized by this Court in the case of Khan Asfandyar Wali (supra) as it was observed by this Court in that case as under: “106. Mr. Minto submitted that while examining the vires of this law, the following provisions may be given deeper consideration:  Section 5 (a) wherein ‘accused’ has been extensively defined;  Section 5 (m) defines ‘holder of public office’, which has been gathered from all the previous statutes on the subject and thus the scope and purview of the process of accountability has been enlarged;  Clause (iv) of section 5 (m) has brought all persons in the service of Pakistan within the purview of accountability, inasmuch as even the serving officers of the Armed Forces, who are employed in organizations other than the Armed Forces, have been included;  Likewise in clause (vi) (ibid), all those persons have been included who have served in, resigned, retired, discharged or dismissed from the Armed Forces and thus only a limited class of persons employed in the Armed Forces, who are within the discipline of the Force concerned, have been excluded with a view to maintaining integrity in the institution inasmuch as public trial in such cases would not be in the interest of the Institution. Even otherwise, such persons are amenable to the discipline of the Force concerned:  The word ‘person’ used in various provisions of this law is wide enough to cover any person and thus no body is being spared and across the board accountability is being conducted throughout the length and breadth of the country with no discrimination whatsoever, inasmuch as there is no political bias, no provincial bias.  The impugned law is applicable to the politicians, bureaucrats and other persons, it is vast in its application and the exceptions are very exceptional and very limited; -------------------------------------------------------------- 157. The case of the Federation/respondents is that the NAB Ordinance does not suffer from any legal infirmity inasmuch as: -- It is a valid piece of legislation made and promulgated by the competent authority under the Chief Executive’s Order No. IX of 1999 dated 15.11.1999, as amended from time to time; -- The legislation has been duly acted upon and is being administered throughout the country inasmuch as numerous Accountability Courts have been established and Judges have been appointed to such courts in consultation with the Chief Justice of Pakistan. This ensures the independence of the courts and the judiciary in general. All these Courts are presided over by serving and retired District & Sessions Judges, who are under the direct supervisory control of the Chief Justices of the respective High Courts of the four Provinces; Criminal Appeal No. 140 of 2005, etc. 15 -- The NAB Ordinance is a special law falling in the series seeking to combat the evil of high level corruption. For the first time, through the NAB Ordinance, members of hitherto an untouchable class of influential and powerful persons, not merely restricted to holders of public offices, but also including bankers, businessmen, industrialists, bureaucrats and other persons, who are involved in corruption and corrupt practices as defined in the NAB Ordinance, fall within the purview of accountability in an effective and coherent manner; The NAB Ordinance seeks to: (i) re-define certain offences and re-prescribe their punishments; (ii) provide for Special Courts and procedure for trial of specified offences; (iii) provide for special agency for pre-trial investigation/inquiry, namely, the National Accountability Bureau; -- One of the objectives of the NAB Ordinance is the retrieval of the looted public money. It also provides for ‘plea bargaining’, which appears for the first time in such a law in Pakistan and in consequence 1064.600 million rupees have been recovered during a short span; -- Up to 2.4.2001, 759 authorized investigations have been undertaken by the NAB out of which 143 have been completed while 586 are in progress and 30 have been closed or suspended. Similarly out of 261 filed in the Accountability Courts, 120 have been decided with 73 convictions and 16 acquittals. 46 ‘plea bargaining’ cases were concluded while 13 were rejected. Only 36 accused are in NAB custody for interrogation, 156 are in the judicial lock-ups, 56 have been released and 69 are at large; -- The NAB Ordinance was framed keeping in mind Articles 175, 202 and 203 of the Constitution and the principles laid down in Mehram Ali’s case (supra); -- It does not create a new offence with retrospective effect, but an offence, which is in the nature of continuation of ‘wilful default’ after coming into force of the NAB Ordinance; -- Section 5(r) does not negate the freedom of trade, business and profession as contemplated in Article 18 of the Constitution. It merely seeks to penalize deliberate evaders of due payments to financial institutions. Prosecution of genuine cases where there are no deliberate and wilful evasions is abandoned within the contemplation of the NAB Ordinance; -- Section 5 (r), no doubt, is a constitutional deviation in view of the provisions of Article 12(2) of the Constitution, but on the ground of state survival and having regard to the objectives of the Chief Executive coupled with the law declared in the case of Syed Zafar Ali Shah (supra), no objection can be taken to section 5 (r), particularly when adequate safeguards have been provided by making appropriate amendments in the Ordinance; -- Conciliation Committee has been established and no proceedings against the loan defaulters can be initiated by the NAB without the recommendation of the Governor, State Bank of Pakistan. However, section 25-A requires to be further suitably amended so as to empower the Court of competent jurisdiction to Criminal Appeal No. 140 of 2005, etc. 16 decide as to whether or not accept the agreement/conciliation reached between the parties; -- The NAB Ordinance does not contravene the provisions of Articles 23/24 of the Constitution, in that, freezing of property of the accused persons (ill-gotten properties) is merely an interlocutory measure; -- The vires of the NAB Ordinance cannot be tested on the touchstone of the Fundamental Rights, which stood suspended by the Proclamation of Emergency of 28th May 1998, which has been upheld by this Court in Syed Zafar Ali Shah’s case (supra); -- The burden of proof on accused is not an alien concept in jurisprudence. There are number of existing laws, which place the burden of proof on the accused and/or require an accused to rebut a statutory presumption. Such a course is not violative of the equality clause(s) of the Constitution; -- The choice of Court to which a reference is sent for trial is a matter of procedure and no body has a vested right to demand that his case be tried by a particular Court/Bench; -- The power conferred on Chairman NAB is not uncontrolled and his discretion is to be exercised judiciously having regard to the provisions of section 24A of the General Clauses Act, 1897, which require reasons to be recorded in writing for a deviation while passing any discretionary order; -- The provisions of the Ordinance are in conformity with the established principles of procedure for criminal proceedings; -- The nature of investigation and inquiry under the NAB Ordinance is of special kind, which entails inquiry and investigation into such offences, and in most cases requires tedious efforts including careful perusal of voluminous records of companies/banks, which cannot be completed overnight and therefore the period of 90 days for custody has been prescribed; -- The period of remand of 90 days is not violative of Article 10(2) of the Constitution, in that, section 24 (d) requires production of the accused before an Accountability Court within 24 hours of the arrest; -- Section 23 of the Ordinance, insofar as it prohibits transfer of any right, title, interest or creation of charge on property after Chairman NAB has initiated investigation into the offences under the NAB Ordinance, is an interlocutory measure, in that, it is not desirable that persons accused of such offences should frustrate the objects of law by creating third party rights in respect of illegally acquired property thereby creating hurdle in the objects of law; -- Power vesting in Chairman NAB under section 24 (a) of the NAB Ordinance to order arrest of the accused if not already arrested at any stage of the investigation, is neither discriminatory nor violative of Article 25 of the Constitution, in that, similar powers are conferred upon police officers under section 54 Cr.P.C.; -- As to the case of voluntary return, i.e. ‘plea bargaining’ under section 25, the provision stands amended by virtue of Amendment Ordinance No. XXIV of 2000 and now, by virtue of section 25 (a) (ii), after cognizance of the offence has been taken Criminal Appeal No. 140 of 2005, etc. 17 by the Court or the trial has commenced, Chairman NAB may release the accused only with the approval of the Court; -- There is no restraint on freedom of contract, in that the powers earlier vesting in Chairman NAB under section 25 (e) & (g) have now been vested in the Governor, State Bank of Pakistan by virtue of the Amendment Ordinance No. XXIV of 2000, thus clause (g) of section 25 does not suffer from excessive delegation; -- Section 32 (d) of the NAB Ordinance is subject to the Constitution and does not purport to oust the constitutional jurisdiction of the Courts; -- The Civil Servants Act, 1973 continues to apply to civil servants, who are deputed to or posted in the NAB. Those, who are appointed directly, are distinct and separate category and class of persons and therefore no violation of Article 25 of the Constitution is caused; -- The mere fact that the Ehtesab Act, 1997 was competently and validly made and its vires were upheld by this Court does not curb the power of the Legislature to make a new law on the same subject; -- The NAB Ordinance is neither discriminatory nor un-Islamic and in any case, its vires cannot be examined on the touchstone of Article 2A of the Constitution; -- The method of appointment in respect of Chairman NAB is contained in section 6 (b) (I) and for other officers in section 28 ibid. Provisions relating to transfer of cases qua the provincial courts within the territories of a Province and from one Province to another Province, do not suffer from excessive delegation; -- As regards special treatment to be meted out to women accused, the provisions of section 167 Cr.P.C. are applicable and the same have not been ousted;” (italics and bold letters have been supplied for emphasis) The above mentioned stands taken by the Federation of Pakistan had been accepted by this Court in the said case and the National Accountability Bureau Ordinance, 1999 (as the said Ordinance was titled at that time) had been declared by this Court to be a constitutionally valid piece of legislation. It had been observed and held by this Court as follows: “201. For the last several years there has been tremendous increase in allegations of massive corruption against divergent strata of the society. The necessity for creating the offence of `wilful default' arose because in the past the prosecution agency and other government agencies had not properly carried out their public duty to investigate the offences disclosed due to the alleged involvement of several persons holding high offices in the executive, public offices, etc. Indifferent/casual attitude of the concerned agencies to conduct and proceed with the investigation is understandable. This is, indeed, a grave situation. Supreme Court can take judicial notice of the fact that great loss of public revenue owing to enormous corruption and failure to recover the looted money through huge bank loan defaults pose a serious threat to economic life, financial stability, credit and security of Criminal Appeal No. 140 of 2005, etc. 18 Pakistan including the unity and integrity of the nation. These are the circumstances in which the vires of the Ordinance are to be judged, which was promulgated for an expeditious and thorough probe into corruption and corrupt practices and holding accountable those accused of such practices, which had already been delayed for several decades. The validity of the impugned Ordinance is also to be judged keeping in view the extraordinary circumstances prevailing in the country and the adverse impact of lacking probity in the public life leading to highest degree of corruption. Such a situation has also adversely affected the foreign investment and funding from the International Monetary Fund as well as the World Bank who have warned that future aid to Pakistan shall be subject to the requisite steps being taken to eradicate corruption. If the pervading corruption in the society is permitted to continue unchecked it would lead to economic disaster. 202. It was on 12th October, 1999, that the situation prevailing in the country in the sphere of economic debacle was recognised. The factors leading to the above situation on the ground, included the acts and omissions of persons who were the Members of the National and Provincial Assemblies, the Senate, the Civil Services, in business and/or working for gain in other disciplines in the country. 203. In Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869) Supreme Court took notice of the pleadings of the parties, and after considering the adverse effects of the inaction etc. of all concerned to collect the looted wealth of the country from those who were responsible therefor, it was observed that the action taken on 12-10-1999 was justifiable and that the speeches of the Chief' Executive dated 13-10-1999 and 17-10-1999 correctly spelt out the plan/scheme to be adhered to by him for the purposes of making recovery thereof: It was held that Chief Executive of the Islamic Republic of Pakistan is entitled, inter alia, to perform all such acts and promulgate all legislative measures as would establish or lead to the establishment of the declared objectives of the Chief Executive as spelt out in his speeches referred above. The Chief Executive in his speech dated 17-10-1999 clearly stated: "Revival of economy is critical. Our economy is in deep trouble and revolutionary steps are needed to put it back on track. The Pakistani people were subjected to betrayal of their trust. Their hard- earned money was frozen or taxed in violation of State commitment. We need to restore this trust.” ………………………………… "The process of accountability is being directed especially towards those guilty of plundering and looting the national wealth and tax evaders. It is also directed towards loan defaulters and those who have had their loans rescheduled or condoned. The process of accountability will be transparent for the public to see. My advice to the guilty is to return voluntarily national wealth, bank loans and pay their taxes before the hand of law forces them to do so with penalty. As a last chance I urge all defaulters to come forth and settle their debts within a period of four weeks, after which their names will be published and the law will take its due course. They owe this to Pakistan and I expect their spirit of patriotism to guide them." Criminal Appeal No. 140 of 2005, etc. 19 It was in the above backdrop that the Ordinance was promulgated and amendments made therein, subsequently. The plea that a person entering into contractual obligations before the promulgation of the impugned Ordinance cannot be made to suffer for his alleged failure to clear his said indebtedness under the impugned Ordinance and that too as an offence, loses all significance in the light of the above circumstances. It is not the case of any one that they have been willing to account for the ill- gotten wealth and that it was not their inaction which has placed them in the predicament in which they find themselves today. The sources of amassing wealth by the specific individuals and juristic persons being what they are, they should not expect any lenient view in the cases, against them provided the action taken against them is not contrary to a valid piece of law. More so, when the efforts on behalf of Bureau in putting them under notice of 30-days in terms of section 5(r) of the impugned Ordinance also fell on deaf ears. Viewed in this perspective, the transformation of the alleged civil action flowing out of the contractual obligations, into an "offence" under the impugned Ordinance, does not suffer from any flaw whatsoever. --------------------------------------------- 208. Yet another factor, which is to be taken into consideration while judging the validity of the impugned Ordinance would be that one of the grounds on which validation and legitimacy was accorded to the present regime as stated in the case of Zafar Ali Shah (supra) was that the representatives of the people, who were responsible for running the affairs of the State were themselves accused of massive corruption and corrupt practices in the public as well as private spheres and were benefiting therefrom. They were resisting the establishment of good governance. There was a general perception that corruption was being practised by diversified strata including politicians, parliamentarians, public officials and ordinary citizens and there was no political and economic stability in the country. The bank loan defaults were rampant, in that, as per report of the Governor, State Bank of Pakistan, Rs. 356 billion were payable by the bank defaulters upto 12.10.1999. There being no accountability and transparency, economic stability in the country was highly precarious and there was an overall economic slowdown as GDP growth during the past three years had hardly kept pace with the growth of population and that Pakistan has a debt burden which equals the country’s entire national income.” (bold letters have been supplied for emphasis) We have also found Mr. K. K. Agha to be quite justified in maintaining that the stand of the Federation of Pakistan that the provisions of the said Ordinance are applicable not just to holders of public offices and to persons who aid and abet or conspire with holders of public offices but also to any other person who may not be holder of any public office or connected with holder of a public office in any manner had been accepted by this Court in the said case. The issue raised before us through the present appeals and petitions, thus, already stands resolved by this Court in the above mentioned case. Criminal Appeal No. 140 of 2005, etc. 20 10. We have observed that on different occasions different High Courts in the country have made an effort to understand and interpret the words “any other person” appearing in section 9(a) of the National Accountability Ordinance, 1999 and some times they have reached conclusions which are divergent and at variance. On 01.02.2001 a learned Division Bench of the Peshawar High Court held in the case of Haji Kabir Khan v. The State (2003 YLR 1607) as follows: “12. Haji Kabir Khan remained a member of the Parliament from 1993 to 1999. Apart from this, he had not held public office in any other period. Though there is a controversy regarding the dates on which some of the properties were acquired but the admitted position is that the list of the properties for which Haji Kabir Khan was charged, and which were found by the trial Court to be the assets of Haji Kabir Khan, included properties acquired by him prior to the year 1993. The question thus arose as whether such properties would fall within the scope of NAB Ordinance and the accused prosecuted for them. The argument of the defence was that since the properties were acquired before Haji Kabir Khan held a public office, he could not be tried for these acquisitions under the Ordinance. The learned Prosecutor however submitted that as the Ordinance has come into force from 1-1-1985, all properties acquired by the appellant since that date shall be treated as the appellant's assets for the purpose of the offence under section 9(a)(v) of the Ordinance. 13. The charge framed in this case stated that the accused was being tried for “the properties acquired during the period 1988 to 1999, which included his tenure as holder of public office at National Assembly". Thus, the trial of the accused was also for the assets acquired by him during the period of five years in which he did not hold any public office. The learned Prosecutor relied upon the definition of "holder of public office" given in section 5(1)(ii) of the Ordinance which not only includes a person who is, but who has been, a member of Parliament. By this definition the present as well as past member of Parliament have been termed as holders of public office. Though past members of Parliament can be tried under the Ordinance, the definition by no means can be stretched retrospectively so as to make an accused accountable for acts done by him prior to his becoming a member of Parliament. Again by section 2 the Ordinance has been given retrospective effect from 1-1-1985. By this retrospectively no doubt persons who have held public office since the commencing date of the Ordinance can be tried thereunder. It does not however mean that the holder of public office can be tried under the Ordinance for acts, though committed after 1-1-1985, but during the period when he did not hold any public office. To hold otherwise would be going against the very object of the Ordinance as stated in the preamble, that is, "to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kick- backs, commissions and for matters connected and ancillary or incidental thereto". The corruption, corrupt practices and misuse of power obviously must relate to the periods during which a person is in a position as a holder of public office to misuse this office for private gains. If wealth is acquired by illegal means at a time when the accused did not hold a public office, it may constitute an offence under some other law but not under the NAB Ordinance. Criminal Appeal No. 140 of 2005, etc. 21 14. The principle laid down in the unreported judgment of this Court in Syed Zahir Shah v. The State (Ehtesab Appeal No.5 of 2000, decided on 2-1-2001) is not relevant for resolving the present controversy. In that case the question was, whether the appellant, who was a civil servant, could be charged and tried for properties and assets acquired by him prior to 1-1-1985, the date on which the NAB Ordinance came into force. The question was answered in the positive and it was held that the appellant could be made accountable under the Ordinance for accumulation of wealth illegally prior to the commencing date during his tenure as civil servant. The question before the Court there was not whether the appellant could be tried for properties or assets acquired by him before he was inducted in the civil services but whether he could be tried for assets acquired by him prior to 1-1-1985, but during his holding of public office. 15. We therefore hold that Haji Kabir Khan could not have been tried for properties or assets acquired by him before he was elected member of Parliament. Such properties were therefore wrongfully included in the charge framed by the trial Court. The, charge was therefore defective.” Subsequently on 08.06.2002 a learned Division Bench of the Lahore High Court had held in the case of Chaudhary Aamir Ali v. The State (2002 YLR 1902) as under: “9. There is weight in the submission made by the learned Law Officer that not only holder of a public office but also "any other person" can be tried for the offence of corruption and corrupt practices under section 9 of the Ordinance. This is clear from the plain reading of section 9 of the Ordinance. Therefore, the prosecution need not establish any nexus with the exercise of powers by the appellant as Mayor of the Corporation and acquisition of the disputed properties by him. He can be tried in his position as an ordinary person and be held guilty of the offence of corruption and corrupt practices. -------” Later on a learned Division Bench of the High Court of Sindh had attended to this issue in the case of Abdul Aziz Memon v. The State (2003 YLR 617) and in its judgment dated 06.11.2002 it had concluded as follows: “A perusal of the first para. of preamble shows that it envisages setting-up of National Accountability Bureau so as to eradicate corruption and corrupt practices and to hold accountable all those persons accused of such practices and matter ancillary thereto. In this para. the purpose of setting-up of National Accountability Bureau has been given very vividly which is to "hold accountable all those persons accused of such practices and matters ancillary thereto". Thus, the purpose of setting up of National Accountability Bureau is not confined to eradication of corruption committed by the holders of public offices only but to hold accountable to all those persons who are found involved in corruption. Again in section 4 of the NAB Ordinance, dealing with the application of said Ordinance, it is provided that, "it extends to whole of Pakistan and shall apply to all persons in Pakistan". Again it is stated by the Legislature in very clear and unambiguous terms that the NAB Ordinance extends to all persons in Pakistan. Thus, no section or group of persons or individuals has been excluded from the applicability of the NAB Ordinance. Section 5 of the NAB Ordinance contains the Criminal Appeal No. 140 of 2005, etc. 22 definitions in clause (a) of section 5, the term "accused" has been defined to include a person in respect of whom there are reasonable grounds to believe that he is or has been involved in the commission of any offence triable under the Ordinance. Here again the term "accused" is not confined to the holder of public office only. In clause (c) of section 5, the expression "assets" has been defined to mean any property owned, controlled by or belonging to any accused whether directly or indirectly or held benami in the name of his spouse or relatives or associates, whether within or outside Pakistan, for which they cannot reasonably account for, or for which they account prove payment of full and lawful consideration". In this definition also the properties owned, controlled by or belonging to any accused, his spouse or relatives or the associates are required to be reasonably accounted for and the burden of giving reasonable account and to prove the payment of full and lawful consideration is on all those persons and the accountability is not restricted to the holder of public office only. Here it is pertinent to note that the terms "assets" has been defined with the expression "means" while the expression "accused" has been defend with the word "include". Thus, the definition of the term "assets" is conclusive while the definition of term "accused" is inclusive and thus, the definition of term "accused" is wider in its import. In clause (d) of section 5, the expression "associates" has been defined. In this definition any individual who is or has been managing the affairs or keeping accounts of the accused has been included. An association of persons, body of individuals, partnership firms and private limited companies are also included in which such a person is or has been a member, partner or director or which have been promoted, floated, established or run by the same group of persons. It also includes any Trustee of a private Trust or any person who ostensibly holds or is in possession of any property of an accused on his behalf for the benefit and enjoyment of the accused. Clause (m) of section 5, contains the definition of holder of public office. Mr. Khalid Anwar learned counsel for the appellants, has conceded that the appellant Abdul Aziz Memon was holder of public office as an MNA in between the years 1993 and 1996, therefore, no discussion is required in respect of this definition. Clause (r) of section 5 contains the definition of willful default and a bare reading of this provision shows that this particular provision is applicable to the persons other than holders of public offices as well. Clause (n) of section 5 contains the definition of offence. According to this definition the offence for the purpose of NAB Ordinance means offence of corruption and corrupt practices as defined in the NAB Ordinance and includes the offences as specified in the Schedule to the NAB Ordinance. This provision is to be read with section 9 of the NAB Ordinance, which defines the expression "corruption and corrupt practices". Various acts and omissions have been enumerated in paras. (i) to (ix). It provides that, a holder of public office, or any other person (emphasis provided by us), is said to commit or to have committed the offence of corruption and corrupt practices, if the acts and omissions specified in paras. (i) to (ix) of clause (a) of section 9 are committed. It includes para. 5, which is relevant in this case. If the opening sentence of section 9(a) of the NAB Ordinance is read with para. (v) it reads as follows:-- "A holder of public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices, if he or any of his dependents or Benamidars owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for." Criminal Appeal No. 140 of 2005, etc. 23 The word 'he' used in para. 5 above, is a reference to holder of public office as well as any other person. Thus, the act specified in section 9(a)(v) is not confined to holder of public office only but is extended to any other person as well. Section 20 of the N.A.B. Ordinance, is also pertinent in this behalf. For the sake of convenience, the section 20 of NAB Ordinance is reproduced below:-- "20. Reporting of suspicious financial transactions. ---(a) Notwithstanding anything contained in any law for the time being in force, it shall be the duty of all banks and financial institutions to take prompt and immediate notice of all unusual or large transactions in an account, which have no apparently genuine, economic or lawful purpose and upon bona fide professional judgment of the Bank or financial institution, that such transactions could constitute or be related to illegal or illicit activities, corruption or corrupt practices, the manager or director of such Bank or financial institution shall report all such transactions to the Chairman, NAB forthwith by the quickest possible mode of communication to be confirmed in writing. (b) Whoever fails to supply the information in accordance with subsection (a) shall be punishable with rigorous imprisonment, which may extend to 5 years, or with fine, or with both. (c) Where there are reasonable grounds to believe that the assets of a person or any part thereof were acquired through corruption or corrupt practices, and there was no other likely source of acquiring such assets or part thereof, it shall be presumed, unless proved to the contrary by the accused person, that such assets or part thereof were acquired, generated or obtained through corruption and corrupt practices." A perusal of the above section shows that it starts with the non obstante clause and is comprehensive so as to include every bank account without any exception. It is not confined to the bank accounts of the holders of public offices only. It enjoins upon the Manager of Bank or Director of a financial institution about all the transactions by any account holder constituting or relating to illegal or illicit activities, corruption or corrupt practices. Clause (c) of section 20 also speaks of an assets of 'a person' acquired through corruption or corrupt practices and provides that if no other likely source of acquiring such assets or part thereof is furnished there shall be a presumption unless proved to the contrary by the accused persons that such assets or part thereof are acquired/generated through corruption and corrupt practices. Thus, the provisions contained in section 20 of the NAB Ordinance are also leading to the conclusion that the scope and applicability of the NAB Ordinance is not confined to the holders of public offices only. Consequent to the above discussion, we are persuaded to agree with the contention of Mr. S. M. Zafar, that the scope of NAB Ordinance is wider in terms and is applicable to all citizens of Pakistan and all persons including the holders of public offices. The result is that, the appellants are accountable for acquiring the assets from the year 1985 till the year 1996, the period for which they were tried.” Criminal Appeal No. 140 of 2005, etc. 24 Still later a learned Division Bench of the Lahore High Court decided the case of Ch. Zulfiqar Ali v. Chairman, NAB and others (PLD 2003 Lahore 593) on 12.05.2003 and after a detailed analysis of the relevant statutory provisions and the precedent cases available till then it held as under: “11. The questions which have cropped up for consideration in these petitions are as under:-- (i) ------------------------------------ (ii) Whether a 'person' other than holder of a public office can be tried under the NAB Ordinance for any act which falls within the mischief of the said Ordinance? (iii) Can the holder of a public office being tried for an act committed when he held the said office, be tried alongwith the afore-referred act for an offence relatable to a period when he did not hold the office? (iv) ------------------------------------ Reply to Question (ii).--Whether A "PERSON" other than holder of a public office can be tried under the NAB Ordinance for any act which falls within the mischief of the said Ordinance? 13. This is the foundational question so far as the ambit and scope of the law under which the petitioners are being tried, is concerned. To appreciate the import of the expression "a holder of a public office or any other person (section 9) it is essential to examine the context in which it has been used i.e. the Pre-amble of the enactment, its various provisions and the mischief it sought to remedy. The preamble of the National Accountability Bureau Ordinance XVIII of 1999 declared the objective of the enactment as under:-- "An Ordinance to provide for the setting up of a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary. 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 Criminal Appeal No. 140 of 2005, etc. 25 removed such money or assets through corruption, corrupt practices and misuse of power or authority. And whereas there is an urgent need to educate the society about the causes and effects of corruption and corrupt practices and to implement policies and procedure for the prevention of corruption in the society. And whereas there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutual legal assistance in matters concerning corruption and for matter connected, ancillary or incidental thereto." Section 4 of the Ordinance provides:-- "It extends to the whole of Pakistan and shall apply to all persons in Pakistan, all citizens of Pakistan and persons who are or have been in the service of Pakistan wherever they may be, including areas which are part of Federally and Provincially Administered Tribal Areas". (Underlining is our). Section 5(a) defines the accused in the following:-- "Accused" shall include a person in respect of whom there are reasonable grounds to believe that he is or has been involved in the commission of any offence triable under this Ordinance or is subject of an investigation or inquiry by the National Accountability Bureau, or any other agency authorized by the National Accountability Bureau in this regard under this Ordinance." (Underlining is ours). Section 5(o) stipulates as under:-- " 'Person' unless the context otherwise so requires, includes in the case of a company or a body corporate, the sponsors, Chairman, Chief Executive, Managing Director, elected Directors, by whatever name called, and guarantors of the company or body corporate or anyone exercising direction or control of the affairs of such company or corporate body, and in the case of any firm, partnership or sole proprietorship, the partners, proprietor or any person having any interest in the said firm, partnership or proprietorship concern or direction or control thereof" Section 9 further spells out the scope of the enactment, those who can be tried and lists the offences. It stipulates as under:-- "9. Corruption and corrupt practices.--(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices-- (i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Criminal Appeal No. 140 of 2005, etc. 26 Penal Code 1860 (Act XLV of 1860) for doing or for bearing to do any official act, or for showing or for bearing to show, in the exercise his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or (ii) if he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceedings or business transacted or about to be transacted by him, or having connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or (iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or (iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property, valuable thing, or pecuniary advantage; or (v) if he or any of his dependents or Benamidars owns, possesses, or has acquired right or title in any assets or holds irrevocable power of attorney in respect of any assets or pecuniary resources disproportionate to his known source of income, which he cannot reasonably account for or maintained his standard of living beyond that which is commensurate with his source of income; or (vi) if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority; or (vii) if he issued any directive, policy, or any S.R.O. (Statutory Regulatory Order) or any other order which grants or attempts to grant any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person; or (viii) if he commits an offence of wilful default; or (ix) if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person; or (x) if he commits the offence of criminal breach of trust as defined in section 405 of the Pakistan Criminal Appeal No. 140 of 2005, etc. 27 Penal Code, 1860 (Act XLV of 1860) with regard to any property including money or valuable security entrusted to him by members of the public at large; (xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent commits any breach of trust as provided in section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860) in respect of property entrusted to him or over which he has dominion; and if he aids, assists, abets, attempts or acts in capacity with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi). (b) All offences under this Ordinance shall be non-bailable and, notwithstanding anything contained in section 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance. (c) If after completing the investigation of an offence against holder of public office or any other person, the Chairman is satisfied that no prima facie case is made out against him and the case may be closed, the Chairman NAB shall refer the matter to a Court for approval and for the release of the accused, if in custody." In the ordinary use, the word "or" is disjunctive that marks an alternative which generally corresponds to the word "either" (Crawford's Interpretation of Laws). The word "person" has been used in the general sense and includes every person. It is one of the fundamental rules of Construction that the general words should be given a general construction unless the statute in some manner reveals that the legislative intent was otherwise. We have not been able to find any contrary intent after going through various provisions of Ordinance referred to in the preceding paragraphs. A close examination of section 9, reproduced above would show that with reference to subject-matter there are three kinds of offences. Those kinds are as under:-- (i) Offences which are holder of public office specific; (ii) offences which are committed by the holder of a public office along with any other person and in which the latter are also liable, (iii) offences committed by person who do not hold any public office. 14. The arguments of the petitioner's learned counsel that the "person" used in section 9, only refers to a person who abets, the offence with a holder of public office, is not tenable as the offence of abetment has been separately dealt with in clause (xii) of section 9. 15. Even in section 10 of the NAB Ordinance which relates to punishments, "the holder of public office" and "person" have been separately described. It reads as under:-- 10. Punishment for corruption and corrupt practices: Criminal Appeal No. 140 of 2005, etc. 28 (a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited to the appropriate Government or the concerned bank or financial institution as the case may be. (Underlining is ours). Similarly, the legislative intent of making it applicable to all persons is clear from a reading of section 20 of the Ordinance. 16. Precisely, this question came up for consideration before a learned Division Bench of this Court in an unreported Ehtesab Criminal Appeal No.753 of 2001 (Ch. Amir Sher Ali v. The State) and it was held as under:-- "There is weight in the submission made by the learned Law Officer that not only holder of a public office but also "any other person" can be tried for the offence of corruption and corrupt practices under section 9 of the Ordinance. This is clear from the plain reading of section 9 of the Ordinance. Therefore, the prosecution need not establish any nexus with the exercise or powers by the appellants as Mayor of the Corporation and acquisition of the disputed properties by him. He can be tried in his position as an ordinary person and be held guilty of the offence of corruption and corrupt practices." A Division Bench, of Sindh High Court Karachi in an unreported Ehtesab Appeal No.58 of 2002 (Abdul Aziz Memon v. The State) held as under:-- "Thus the purpose of setting up of National Accountability Bureau is not confined to eradication of corruption committed by the holders of public offices only but to hold accountable to all those persons who are found involved in corruption. Again in section 4 of the NAB Ordinance, dealing with the application of said Ordinance, it is provided that, it extends to whole of Pakistan and shall apply to all persons in Pakistan. Again it is stated by the legislature in very clear and unambiguous terms that the NAB Ordinance extends to all persons in Pakistan. Thus, no section or group of persons or individuals have been excluded from the applicability of the NAB Ordinance." In an unreported judgment of the Peshawar High Court in Ehtesab Criminal Appeal No.5 of 2001 (Haji Kabeer Khan v. The State) copy of which was placed before us, a contrary view has been taken. The operative part of the judgments is para 13 wherein the learned Bench held as under:-- "... ....Though past member of Parliament can be tried under the Ordinance, the definition by no means can be stretched retrospectively so as to Criminal Appeal No. 140 of 2005, etc. 29 make an accused accountable for acts done by him prior to his becoming a member of Parliament. Again by section 2 the Ordinance has been given retrospective effect from 1-1-1985. By this retrospectively no doubt persons who have held public office since the commencing date of the Ordinance can be tried thereunder. It does not however mean that the holder of public office can be tried under the Ordinance for acts, though committed after 1-1-1985, but during the period when he did not hold any public office. To hold otherwise would be going against the very subject of the Ordinance as stated in the Preamble that is, to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto. The corruption, corrupt practices and misuse of power obviously must relate to the periods during which a person is in a position as a holder of public office to misuse his office for private gains. If wealth is acquired by illegal means at a time when the accused did not hold a public office, it may constitute an offence under some other law but not under the NAB Ordinance." Having held so, the case was remanded to the trial Court for a re- trial in terms of the observations made. This judgment was challenged before the august Supreme Court in Criminal Petitions Nos. 54, 55, and 96 of 2002. The august Supreme Court allowed the appeal in terms of an agreement between learned counsel for the appellant and the NAB. The operative part of the order reads as under:-- "Grievance as canvassed by both the learned counsel for the petitioner Mr. Abid Hasan Minto, Advocate Supreme Court as well as Mr. Muhammad Afzal Siddiqui, Advocate Supreme Court for NAB was that sufficient material existed before the High Court to resolve the controversy instead of remanding the case to the trial Court. The contention raised by both the learned counsel has force, because we feel that no ground existed for re-trial, inasmuch as, inadmissible evidence could have been bifurcated from the admissible evidence, and thus the High Court itself ought to have decided the question of guilt or innocence of the petitioner in the light of admissible evidence. Accordingly, we convert these petitions into appeal and allow the same with direction that High Court shall decide the appeal on the basis of admissible evidence with regard to properties, which the petitioner had allegedly procured after 1993." 17. We are bound by the law declared by the august Supreme Court. However, it is a settled principle of law that a judgment rendered on concession given by a counsel is not a law declared. The Supreme Court of India was called upon to decide a similar issue in Municipal Corporation of Delhi v. Gurnam Kaur (AIR 1989 Supreme Court 38) and it held as under:-- "It is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lay down any principle. Quotability as 'Law' applies to Criminal Appeal No. 140 of 2005, etc. 30 the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judges is the principle upon which the case was decided. Statements which are not the part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be re-opened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority." As reflected in the operative part of the judgment of the Hon'ble Supreme Court reproduced in the earlier part of this para, learned counsel for the NAB had conceded for remanding the case. That judgment, therefore, cannot be classified as declaring a law. The judgment of the Peshawar High Court, therefore, shall have to be examined on its own merit. With utmost humility and respect for the Court, we have not been able to persuade ourselves to agree with the view expressed therein for following reasons:-- (i) The Court was persuaded to render the judgment solely with reference to a portion of the preamble. It did not appreciate that the expression 'corruption, corrupt practices' used in the preamble stand defined and exemplified in section 9 of the NAB Ordinance and it includes criminal acts which may be committed by any other person as well; (ii) the learned Court did not take note of the fact that the word 'person' (section 9) has been used in the general sense and it includes every person; (iii) the import of section 3, 4, 5, 10, and 20 of the NAB Ordinance escaped the attention of the Court. The legislative intent and the meaning of the word 'person' could not have been appreciated without a careful glance at these provisions. Reply to Question No. (iii).---Can the holder of a public office being tried for an act committed when he held the said office, be tried alongwith the afore-referred act for an offence relatable to a period when he did not hold the office? 18. In view of answer to Question No. 2 above we hold that the holder of a public office can be tried alongwith an offence which may have been committed when he was not holder of a public office as there is no bar in any law and an ordinary person can be tried under the National Accountability Bureau Ordinance, 1999.” Criminal Appeal No. 140 of 2005, etc. 31 We note that the case of Haji Kabir Khan v. The State (2003 YLR 1607) decided by the Peshawar High Court was the only case which struck a note different from that of the Lahore High Court and the High Court of Sindh but we further note that the said judgment of the Peshawar High Court had been set aside by this Court through appeals arising out of Criminal Petitions No. 54, 55 and 96 of 2002 and the matter was remanded to the Peshawar High Court with consent of the parties for deciding the convict’s appeal afresh on the merits of the case. After setting aside of that judgment of the Peshawar High Court by this Court what remains in the field is complete harmony on the issue as far as the Lahore High Court and the High Court of Sindh are concerned. 11. As has been noticed above, the Lahore High Court and the High Court of Sindh agree that the words “any other person” appearing in section 9(a) of the National Accountability Ordinance, 1999 show that any person not holding any public office and not aiding and abetting or conspiring with any holder of a public office can also be proceeded against under the said Ordinance and this Court has also made observations to that effect in the judgments referred to earlier on. The reasons for handing down such an interpretation of those words appearing in the National Accountability Ordinance, 1999 are not difficult to explain or understand and although some reasons for holding so have already been recorded in the afore-referred judgments of the Lahore High Court and the High Court of Sindh in some detail, which reasons we endorse, yet we may also briefly allude to some other reasons in support of the same conclusion so that the issue in this respect is clinched and the controversy is set at rest. 12. None of the learned counsel appearing before us has challenged the constitutionality and legal validity of the National Accountability Ordinance, 1999, and rightly so, as the same already stands accepted and established through the judgment of this Court handed down in the case of Khan Asfandyar Wali (supra). It also cannot be denied that there is a marked difference between the Ehtesab Act, 1997 and the National Accountability Ordinance, 1999 vis-à-vis the canvas and the scope of their Criminal Appeal No. 140 of 2005, etc. 32 applicability and Mr. K. K. Agha is spot on when he maintains that a necessity of enacting a new piece of legislation arises only where the old law is found incapable of catering for a totally new approach because otherwise an amendment of the old law can serve the purpose. The Preamble to the Ehtesab Act, 1997 manifested that the said law had been enacted only “for eradication of corruption and corrupt practices from the public offices” whereas the Preamble to the National Accountability Ordinance, 1999 does not even mention “public offices” and instead it states the objects to be achieved as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices; 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; 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; 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; to seek, obtain or give mutual legal assistance internationally in matters concerning corruption; and to educate the society about the causes and effects of corruption and corrupt practices and to implement policies and procedures for the prevention of corruption in the society. It is but obvious that the scope of applicability of the National Accountability Ordinance, 1999 is much larger than the scope envisioned in the Ehtesab Act, 1997 and, thus, it would be naïve to examine the former through the narrow prism of the latter. The stated object of the National Accountability Ordinance, 1999 was to rid the whole society of the menace of corruption and that is why section 33C of the said Ordinance had provided as follows: “33C. Measures for the prevention of Corruption and Corrupt practices. The Chairman NAB, shall form time to time as he deems fit, constitute committees comprising officers of the NAB or other persons or organization from the private or public sectors to -- Criminal Appeal No. 140 of 2005, etc. 33 (a) educate and advise public authorities, holders of public office and the community at large on measures to combat corruption and corrupt practices; (b) develop, arrange, supervise, participate in or conduct educational programmes or media campaigns, and generally to disseminate information on the detrimental effects of corruption and corrupt practices and the importance of maintaining the integrity of public administration; (c) examine the laws in force, and also rules and regulations relating to the practice and procedure of various ministries, departments of the Federal Government or Provincial Government, statutory or other public corporations or bodies and the conduct of holders of public office and to recommend amendments in such laws, rules or regulations, as the case may be, in order to eliminate corruption and corrupt practices; (d) instruct, advise and assist any statutory or other public corporation or bodies or upon request, any organization in the private and public sector on measures for the reduction and elimination of corruption and corrupt practices; and (e) monitor the implementation of the instruction and advice as aforesaid and to assess and evaluate success or otherwise of such instructions and advice on the reduction and elimination of corruption and corrupt practices.” According to section 1(2) of the Ehtesab Act, 1997 the said Act was applicable only to “holders of public offices” whereas by virtue of section 4 of the National Accountability Ordinance, 1999 the said Ordinance applies to “all persons in Pakistan, all citizens of Pakistan and persons who are or have been in the service of Pakistan”. It is, thus, quite clear that the Ordinance of 1999 is not restricted in its applicability to “holders of public offices” only and the all-encompassing sway of the same covers all Pakistani citizens wherever they may be and even persons of other nationalities available, operating or transacting within Pakistan and it is in this context that the words “any other person” appearing in section 9(a) of the National Accountability Ordinance, 1999 must be understood. The Black’s Law Dictionary defines a “person” as “a human being” and that is why section 5(n) of that Ordinance clarifies that the word “person” used in the Ordinance includes the relevant persons of a company or a body corporate. Inclusion of a company or a body corporate in the definition of the word “person” is also an unmistakable indication that the said Ordinance was not restricted in its applicability to holders of public offices only. Apart from that section 3 of the Ehtesab Act, 1997 showed that the offence of corruption and corrupt practices triable under that Act was relatable only to holder of a public office whereas the Criminal Appeal No. 140 of 2005, etc. 34 provisions of section 9(a)(i) to 9(a)(xii) of the National Accountability Ordinance, 1999 show quite evidently that “any other person” not holding any public office and not aiding or abetting or conspiring with holder of a public office may also be tried independently for the offence of corruption and corrupt practices. The provisions of section 9(a)(viii), (ix), (x), (xi) and (xii) particularly make the intention of the legislature quite clear in this respect. It may be advantageous to reproduce sections 9(a)(xi) and 9(a)(xii) here which read as under: “(xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust as provided in Section 409 of the Pakistan Penal Code, 1860 (ACT XLV of 1860) in respect of property entrusted to him or over which he has domination; and (xii) if he aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).” (underlining has been supplied for emphasis) If we were to accept the contention that the National Accountability Ordinance, 1999, and particularly section 9(a) thereof, is applicable only to holder of a public office and a person aiding and abetting or conspiring with holder of a public office then the provisions of sections 9(a)(xi) and 9(a)(xii) reproduced above would be rendered partially or wholly redundant. It is trite that redundancy cannot or ought not to be attributed to the legislature. 13. The discussion made above leads us to an irresistible conclusion that the principle of ejusdem generis pressed by Mr. Wasim Sajjad does not apply to the words “any other person” appearing in section 9(a) of the National Accountability Ordinance, 1999 and that the words “A holder of a public office, or any other person,” used in that section are disjunctive as they refer to different classes of persons. In the context of the scheme and scope of that Ordinance the words “any other person” are to be given their ordinary meanings and are simply to be accepted as referring to any other person, nothing more and nothing less. On the subject of interpretation of such words appearing in a statute we may usefully refer to the following passages of the judgment rendered by this Court in the case of Justice Khurshid Anwar Criminal Appeal No. 140 of 2005, etc. 35 Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483): “A fundamental principle of constitutional construction has always been to give effect to the intent of the framers of the organic law and of the people adopting it. The pole star in the construction of a Constitution is the intention of its makers and adopters. When the language of the statute is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interpretation. Such language best declares, without more, the intention of the lawgivers, and is decisive of it. The rule of construction is "to intend the Legislature to have meant what they have actually expressed". It matters not, in such a case, what the consequences may be. Therefore if the meaning of the language used in a statute is unambiguous and is in accord with justice and convenience, the courts cannot busy themselves with supposed intentions, however admirable the same may be, because, in that event they would be travelling beyond their province and legislating for themselves. But if the context of the provision itself shows that the meaning intended was somewhat less than the words plainly seem to mean then the court must interpret that language in accordance with the indication of the intention of the legislature so plainly given. The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The essence of law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must, in general, take it absolutely for granted that the Legislature has said what it meant, and meant what it has said. Its scriptumest is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable. It is no doubt true that the felt necessities of the times must, in the last analysis, affect every judicial determination, for the law embodies the story of a nation's development through the centuries and it cannot be dealt with as if it contains only axioms and corollaries of a book of mathematics. A Judge cannot stand aloof on chill and distant heights. The great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judge by. But at the same time, the Judge must remember that his primary function is to interpret the law and to record what the law is. He cannot allow his zeal, say, for social or agrarian reform, to overrun his true function. He does not run a race with the Legislature for social or agrarian reform. His task is a more limited task; his ambition a more limited ambition. Of course in this process of interpretation he enjoys a large measure of latitude inherent in the very nature of judicial process. In the skeleton provided by the Legislature, he pours life and blood and creates an organism which is best suited to meet the needs of society and in this sense he makes and moulds the law in a creative effort. But he is tied by the basic structure provided by the Legislature which he cannot alter and to appeal to the spirit of the times or to the spirit of social or agrarian reforms or for the Criminal Appeal No. 140 of 2005, etc. 36 matter of that any other reform for the purpose of twisting the language of the Legislature is certainly a function which he must refuse to perform. The words of a statute must, prima facie, be given their ordinary meaning. Court must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then Court may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, court should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.” 14. Adverting to the argument that the provisions of the National Accountability Bureau allow the Chairman, National Accountability Bureau to pick and choose cases to be proceeded with under the National Accountability Ordinance, 1999 and such power to pick and choose is discriminatory besides being capable of abuse we may observe that during the course of his arguments Mr. K. K. Agha, the learned Prosecutor-General Accountability, has informed us that the National Accountability Bureau has framed and it follows a considered policy guiding the Bureau as to which kind of cases of private sector are to be picked up for proceeding with under the National Accountability Ordinance, 1999 and which kind of such cases are to be left to be proceeded with under the ordinary and normal laws of the land. He has also informed us that the National Accountability Bureau follows a mechanism of assessment and scrutiny of all such cases even during their inquiry and investigation and finally the Chairman of the Bureau, a person of highest caliber, experience and accomplishment as is evident from the qualifications of that office mentioned in section 6(ba) of the National Accountability Ordinance, 1999, applies his mind to the matter before filing a Reference before an Accountability Court. He has also pointed out that the Bureau’s and the Chairman’s decisions in such regards are justiciable before the superior judiciary. He has, thus, maintained that intelligible differentia exists in this respect and sufficient safeguards against Criminal Appeal No. 140 of 2005, etc. 37 mistakes and abuse are in place and, therefore, the assertion regarding discrimination does not hold water. It has also been pointed out by him that this aspect of the matter has already been attended to by the High Court of Sindh in the case of Rauf Bakhsh Kadri v. The State and others (2003 MLD 777) and a learned Division Bench of the said Court had observed in that case as under: “12. Against this background learned counsel argued that the unbridled discretion conferred upon the Chairman N.A.B. or an officer authorized by him to refer a matter involving commission of substantially the same offence which was triable by a Special Judge under the 1958 Act or the power to seek transfer of a pending case to an Accountability Court under section 16-A was ultra vires the fundamental right of equality and equal protection of laws guaranteed by Article 25 of the Constitution. In support to his contention learned counsel placed reliance inter alia upon two well known pronouncements of the Honourable Supreme Court in Waris Meah v. State (PLD 1957 SC 157) and Inamur Rehman v. Federation of Pakistan (1992 SCMR 563). 13. In Waris Meah's case, the validity of certain provisions of the Foreign Exchange Regulation Act providing three different modes of trial and punishment for offence under the Act were called in question. The law enabled the Central Government or the State Bank to proceed against a person accused of an offence under the Act either before a Sessions Court or a Magistrate under section 23, or before an Adjudicating Officer under section 23-A or before a Special Tribunal under section 23-B. Different procedures for trial of offence before different fora and different extent of punishments which could be imposed were laid down. Muhammad Munir, C.J, speaking for the Full Court held that, in the absence of any statutory guidelines to make a classification of persons required to be tried before a particular forum the provisions conferring such arbitrarily discretion to apply any of the three modes of trial upon any person without any classification was ex facie discriminatory and violative of Article 5(1) of the 1956 Constitution (which is in pari materia with Article 25 of the 1973 Constitution). 14. In the subsequent case of Inam-ur-Rehman Alvi v. Federation of Pakistan (1992 SCMR 563) the provisions of M.L.R. 104 stipulated that any person having any claim against a person repatriating foreign exchange could seek redress through an authorized officer was called in question. Their Lordships speaking through Zafar Hussain Mirza, J., held that, a provision denying the right to defend through judicial procedure in a Court to a person having repatriated foreign exchange against any claim which may have no nexus with the repatriation of foreign exchange could not satisfy the test of reasonable classification and therefore, the provision was hit by Article 25 of the Constitution. 15. In support of his contention Mr. Khalid Anwar also referred to the following observations of Ajmal Mian, CJ, in the recent case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504) decided by nine members Bench of the Honourable Supreme Court: "As regards the violation of Article 25 of the Constitution, it may be observed that the Criminal Appeal No. 140 of 2005, etc. 38 contention of the learned counsel for the petitioners was that the impugned Ordinance contravenes the above Article, inasmuch as it gives discretion to the Federal Government to pick and choose cases which may be referred to the Military Courts. On the other hand, the learned Attorney- General has urged that the offences triable under the impugned Ordinance are those which are mentioned in section 6 and the Schedule to the impugned Ordinance and that this Court has already held in more than one case that different laws can be enacted for different sexes, persons of different age group, persons having different financial standards and persons accused of heinous crimes. No doubt, that this Court inter alia in the case of I. A. Sherwani v. Government of Pakistan (1991 SCMR 1041) has held so, which has been reiterated in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra). However, in the present case the basic question is as to the vires of the impugned Ordinance on the ground of providing parallel judicial system, but at the same time the impugned Ordinance is also violative of Article 25 of the Constitution, inasmuch as it gives discretion to the Federal Government under section 3 thereof to pick and choose cases for referring to the Military Courts as has been held by this Court in the case of Brig. (Retd.) F. B. Ali (supra). There is no mandatory provision providing that all the offences mentioned in section 6 and the Schedule shall be triable by the Military Courts convened under section 3 of the impugned Ordinance." 16. Learned counsel candidly conceded that different laws could be enacted for different classes of people but it was well- settled that the classification must be rational and bear a reasonable nexus with the object of the legislation. He argued that possibly Ehtesab Act, 1997 could not be questioned on this score as its provisions were made applicable only to Government servants in BS-18 or above. The Ordinance in question however, did not create any classification or lay down any guideline but only enables the Chairman, N.A.B. to exercise absolute arbitrary discretion in filing a reference against any person triable under the 1958 Act or to apply for transfer of a pending case from a Special Court under to an Accountability Court. Conferment of such discretion according to Mr. Khalid Anwar was plainly violative of Article 25 of the Constitution in view of the abovementioned weighty pronouncements of the Honourable Supreme Court. -------------------------------------------- 30. For the foregoing reasons we are inclined to hold that the qualifications laid down in clause (ix) will also have to be read in the other clauses of section 9(a). In other words the discretion of the Chairman, N.A.B. or an officer authorized by him to file a reference before the Accountability Court is not absolute or arbitrary. Such reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining to the accused would be in the national interest. In the absence of such satisfaction a case could only be triable under the ordinary law. 31. As regards the new offences created by the Ordinance we are constrained to observe that strictly speaking, it is not possible Criminal Appeal No. 140 of 2005, etc. 39 for us to declare them ultra vires the Constitution. Nevertheless, it is expected that the Chairman, N.A.B. will keep in view the spirit of the law in accordance with the guidelines referred to in para. 29 and file references only when the amounts involved are large enough and it is worthwhile in the public interest and same mens rea on the part of the defaulter is involved. 32. Since filing of a reference is essentially the function of the Chairman, N.A.B (though it may be amenable to judicial review in proper cases) and since he in view of the experience of the Institution is in a better position to determine whether the amount involved in these cases could be classified as large or otherwise. We would remand these matters to the Chairman, N.A.B. to re-examine these cases from the above stand-point. In case he is satisfied that the amounts involved are large enough to justify proceedings under the Ordinance, they may continue before the Accountability Courts. In case he is not so satisfied the cases may be transferred to the appropriate Courts and such Courts may proceed with them from the stage they had reached without recalling witnesses. A definite decision is expected to be taken within one month from today and till such time the interim order passed earlier will continue. The petitions stand disposed of in the above terms.” We may add that the offence of cheating mentioned in section 9(a)(ix) of the National Accountability Ordinance, 1999 and the offence of criminal breach of trust referred to in section 9(a)(x) of that Ordinance can be dealt with under the said Ordinance only if such offences affect “the public at large”, as stipulated therein, and, thus, a reasonable classification exists in those provisions so as to ward off a criticism based upon discrimination. The question as to whether an alleged cheating or criminal breach of trust affects the public at large or not is a question which is initially to be determined by the National Accountability Bureau and its Chairman and subsequently such determination may, in an appropriate case, be amenable to judicial review. Apart from that the constitutional validity of the National Accountability Ordinance, 1999 and all its provisions has already been judicially determined by this Court in the case of Khan Asfandyar Wali (supra) and, therefore, there is hardly any occasion for us to re- examine the same at this stage. 15. In the end we may also advert to the submissions made before us regarding the provisions of the National Accountability Ordinance, 1999 being very stringent, harsh and oppressive in the matters of transfer/withdrawal of cases, bail, remissions, freezing of property, transfer of property, presumption of guilt, higher sentences and disqualifications, etc. We note that all such aspects Criminal Appeal No. 140 of 2005, etc. 40 of the said Ordinance had also been taken due notice of by this Court in the case of Khan Asfandyar Wali (supra) and constitutional validity of such provisions was affirmed. It may be pertinent to mention here that in the judgment delivered in that case this Court had prepared a detailed chart showing that the above mentioned stringent provisions were identical or similar to many such provisions already existing in many other statutes which included the Control of Narcotic Substances Act, 1997, the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, the Anti-Terrorism Act, 1997, the Banks (Nationalization) Act, 1974, the Offences in respect of Banks (Special Courts) Ordinance, 1984, the Anti-Narcotics Force Act, 1997, the Conciliation Courts Ordinance, 1961, the Criminal Procedure Code, 1898 and the Employment of Children Act, 1991. This Court had also found that such provisions of the National Accountability Ordinance, 1999 were quite justified in view of the gravity of the menace of rampant corruption the said Ordinance was meant to tackle. Dealing with such stringent provisions of the Control of Narcotic Substances Act, 1997 and their interpretation one of us (Asif Saeed Khan Khosa, J.) had observed as a Judge of the Lahore High Court in the case of Nazar Hussain v. The State (2002 P.Cr.L.J. 440) as under: “7. The learned counsel for the petitioner is quite right in pointing out that in the cases of Ghani-ur-Rehman v. The State 1996 PCr.LJ 347, Muhammad Afzal v. The State 1998 PCr.LJ 955 and Naveed Ahmad Khan v. The State 1999 PCr.LJ 63 it had been held that if the allegation levelled against an accused person attracts the provisions of section 9(b) of the Control of Narcotic Substances Act, 1997 as well as the provisions of Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 then in such a case of two penal provisions attracted to the same allegation against an accused person that penal provision is to be applied which carries a lesser punishment or attracts lesser rigours of the law, i.e. Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. However, we have noticed in this context that in all the abovementioned cases the provisions of section 76 of the Control of Narcotic Substances Act, 1997 had not been brought to the notice of the Honourable Judges deciding those cases. Section 76 of the said Act of 1997 provides for giving an overriding effect to the provisions of the Control of Narcotic Substances Act, 1997 over anything contained in any other law for the time being in force. The provisions of section 74 of the said Act may also be advantageously referred to in this context. The overriding effect of section 76 of the Act of 1997 was clearly noticed and expressly referred to in the case of Khalil-ur-Rehman. v. The State 1998 PCr.LJ 1625 for brushing aside an argument that the case of the accused person in that case may be considered to be one under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and not to be that under section 9 of the Control of Narcotic Criminal Appeal No. 140 of 2005, etc. 41 Substances Act, 1997 for the purposes of the said accused person’s bail. We respectfully subscribe to the view expressed in this regard in this precedent case. -------------------------------------------- 11. We are conscious that some of the views expressed by us above and some of the interpretations advanced by us vis-a-vis different provisions of the Control of Narcotic Substances Act, 1997 may appear to some to be somewhat harsh or stringent but we maintain that the same are in consonance with the spirit of the said law. The said law is not an ordinary law as the menace that it purports to curb is not commonplace and the criminals who indulge in it are not of the normal type. The mischief sought to be suppressed by this law is not just a crime against a human being but a crime against the humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative. It may be true that an individual subjected to the rigours of this law may sometimes suffer disproportionately but the greater good of the society emerging from stringent application of this law may make this approach worth its while.” The perils of corruption in a society are far greater than the hazards of narcotics and, thus, the observations made above in the context of the Control of Narcotic Substances Act, 1997 are attracted with a greater force in the context of the National Accountability Ordinance, 1999. It may not be forgotten that by virtue of section 3 of the National Accountability Ordinance, 1999 the provisions of the said Ordinance are to have an overriding effect over any other law for the time being in force. 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 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. 17. After settling the common legal controversy in the above mentioned regard we direct the Office of this Court to fix the titled appeals and petitions for hearing before appropriate Benches of the Criminal Appeal No. 140 of 2005, etc. 42 Court for their decision on the basis of their individual factual and legal merits. Judge Judge Judge Announced in open Court at Islamabad on 07.06.2013 Judge Approved for reporting.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Sajjad Ali Shah Criminal Appeal No. 141 of 2016 (Against the judgment dated 12.09.2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeals No. 271-J & 147 of 2008 and Murder Reference No. 37 of 2008) Nazir Ahmad …Appellant versus The State …Respondent For the appellant: Mr. Anis Muhammad Shahzad, ASC For the State: Mr. Muhammad Jaffar, Deputy Prosecutor-General, Punjab Date of hearing: 07.02.2018 JUDGMENT Asif Saeed Khan Khosa, J.: Nazir Ahmed appellant and another had allegedly murdered the appellant’s wife namely Mst. Anwar Bibi inside the appellant’s matrimonial home in Basti Haji Pura Dakhli, Chak No. 35/KB in the area of Police Station Sahuka, District Vehari at about 04.00 A.M. on 19.11.2006 in the backdrop of a motive based upon strained relations on account of exchange marriages. With the said allegations the appellant and his co- accused were booked in case FIR No. 339 registered at the above mentioned Police Station during the ensuing morning and after a regular trial the appellant was convicted by the trial court for an offence under section 302(b), PPC read with section 34, PPC and was sentenced to death and to pay compensation whereas the Criminal Appeal No. 141 of 2016 2 appellant’s co-accused namely Bashir Ahmed was also convicted and sentenced by the trial court for the same offence. The appellant and his co-convict challenged their convictions and sentences before the High Court through separate appeals, the appeal filed by Bashir Ahmed co-convict was allowed by the High Court and he was acquitted of the charge whereas the appeal filed by the appellant was dismissed to the extent of his conviction for the offence under section 302(b), PPC but the same was partly allowed to the extent of his sentence of death which was reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court granted on 18.03.2016. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. The occurrence in this case had taken place in the small hours of the fateful night, i.e. at 04.00 A.M. in the middle of November. The place of occurrence was inside the house of the appellant and according to the site-plan of the place of occurrence there was no other house or shop situated anywhere close to the house of occurrence. An FIR in respect of the incident in question had been lodged after about three hours and forty minutes and, thus, a possibility regarding deliberations before lodging of the FIR could not safely be ruled out of consideration. The eyewitnesses produced by the prosecution, i.e. Nausher Ali complainant (PW6) and Muhammad Fayyaz (PW7) were very closely related to Mst. Anwar Bibi deceased inasmuch as the complainant was a brother of the deceased whereas the other eyewitness was a brother-in-law of the complainant. Both the said eyewitnesses were also chance witnesses and they had claimed to have been attracted to the place of occurrence upon hue and cry of the deceased. As already mentioned above, there was no house or shop of any person situated anywhere close to the house of occurrence and, thus, it was not readily believable that the above mentioned eyewitnesses would be attracted to the place of occurrence upon hue and cry of Criminal Appeal No. 141 of 2016 3 the deceased. Instead of providing support to the ocular account the medical evidence produced by the prosecution had gone a long way in creating dents in the case of the prosecution. Post-mortem examination of the deadbody had been conducted after about 13 hours of the death of the deceased giving rise to an inference that time had been consumed by the complainant party and the local police in cooking up a story for the prosecution and in procuring and planting eyewitnesses. The time of death of the deceased stated by the eyewitnesses was materially different from that discernable from the medical evidence. Bashir Ahmed co-accused, attributed an active role during the incident in issue, had been acquitted by the High Court which established that the eyewitnesses produced by the prosecution were capable of falsehood. The High Court had categorically concluded that no independent proof of the alleged motive had been adduced by the prosecution. As if this were not enough, a son of the deceased and also of the appellant had appeared before the trial court as DW1 and he had categorically stated that it was Nausher Ali complainant (PW6) who had murdered his mother and that the said murder had not been committed by the present appellant. That son of the deceased was a natural witness being a resident of the house wherein the occurrence had taken place and the time of occurrence was such that the said son of the deceased was likely to be present inside that house at the relevant time. 4. It has been argued by the learned Deputy Prosecutor- General, Punjab appearing for the State that the deceased in this case was a vulnerable dependent of the appellant and, thus, by virtue of the law declared by this Court in the cases of Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) some part of the onus had shifted to the appellant to explain the circumstances in which his wife had died an unnatural death in his house during the fateful night which part of the onus had not been discharged by the appellant. We have attended to this aspect of the case with care and have found that when every other piece of evidence relied upon by the Criminal Appeal No. 141 of 2016 4 prosecution has been found by us to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition. The principle enunciated in the above mentioned cases of Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) was explained further in the cases of Nasrullah alias Nasro v. The State (2017 SCMR 724) and Asad Khan v. The State (PLD 2017 SC 681) wherein it had been clarified that the above mentioned shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. 5. For what has been discussed above a conclusion is irresistible and inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. Judge Judge Judge Islamabad 07.02.2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No. 145-L and 146-L of 2017 (Against the judgment dated 07.12.2010 passed by the Lahore High Court, Lahore in Criminal Appeals No. 672 & 908 of 2005 Murder Reference No. 416 of 2005) Ali Raza alias Peter, etc. (in Cr. A. 145-L of 2017) Muhammad Iqbal alias Balu, etc. (in Cr. A. 146-L of 2017) …Appellant(s) Versus The State, etc. …Respondent(s) For the appellants: Syed Zahid Hussain Bokhari, ASC Mr. Muhammad Ahsan Bhoon, ASC Ms. Khalida Parveen, ASC For the complainant: Mr. Iftikhar-Ul-Haq Khan Sherwani, ASC For the State: Mr. Muhammad Amjad Rafiq, Additional Prosecutor-General, Punjab Date of hearing: 18.09.2019. JUDGMENT Criminal Appeal No. 145-L of 2017 Qazi Muhammad Amin Ahmed, J. Ali Raza alias Peter, Muhammad Shafique, Rashid, Muhammad Iqbal alias Ballu, Jamil Jeela, Muhammad Amin, Muhammad Shafique alias Foji Muhammad Waris, Ateeb alias Nosha, Hassan Raza, Asghar Ali, Criminal Appeals No. 145-L and 146-L of 2017 2 Jamshaid alias Sheeda, and Sarfaraz Ahmad, appellants herein, are in receipt of a guilty verdict, returned by the learned Special Judge, Anti Terrorism Court-1, Gujranwala; they were indicted alongside fifteen others, since acquitted, for lynching Muneeb Sajjad and Mughees Sajjad, real brothers, on 15.8.2010 within the precincts of Police Station Saddar Sialkot. Of competing accounts, first in point of time is put forth by Shoukat Ali vide FIR No.437 of even date recorded at 7:05 a.m. wherein the deceased were portrayed as robbers who upon resistance, fatally shot Zeeshan and Bilal, with Muhammad Javed and Muhammad Imran, surviving the assault. It is alleged that, attracted to the scene, the neighborhood subdued the robbers who could not endure outrage of the mob. Police secured two .30 caliber pistols with ten live bullets alongside snatched articles, vide inventory. Forensic reports confirmed homicidal death of Zeeshan and Bilal as well as injuries to Muhammad Imran and Muhammad Javed, caused by fire shots and multiple blunt weapon injuries leading to the death of Muneeb Sajjad and Mughees Sajjad; their deaths foreclosed the case registered against them by Shoukat Ali, leaving cross version advanced by Zarar Butt, PW-25 recorded on 18.8.2010, in the field; upon cognizance by this Court, a new FIR i.e. No.449, was recorded on 20.8.2010; it was alleged that both the deceased used to play cricket in a ground located in village Buttar and had a brawl with the locals few days back and it is in this backdrop that on the fateful day while both of them left home for a walk after fajjar prayer on a motorbike, a mob comprising, amongst others, the appellants tortured them to death and attempted to hush up the crime by projecting them as robbers within the view of police officials who by that time arrived had at the scene; the second FIR conspicuously omits the details regarding first two deceased and the injured. As the investigation progressed, video streaming of the incident captured by a TV Reporter, Shahzad Ahmad, PW-15 as well as by onlookers in their cell phone cameras were secured by the investigating officer that generated stills through a DVD (Digital Versatile Disc) to identify the assailants. Hafiz Ibrahim, PW-23 and Muhammad Jamil Butt, PW-24 furnished the ocular account. Criminal Appeals No. 145-L and 146-L of 2017 3 On the strength of aforementioned evidence, the learned Trial Judge, barring five amongst the array, convicted all the accused alongside police officials on account of their criminal failure to rescue the deceased from the mob. The High Court acquitted police officials from the charge, however, maintained appellants’ convictions and sentences consequent thereupon vide the impugned judgment, being assailed by leave of the Court. 2. Arguments addressed for the appellants range from improbability of witnesses’ presence, inadmissibility of video clips and stills generated therefrom in evidence, with deceased’ antecedents and conduct, a primary factor behind public outrage. The learned Law Officer has faithfully defended the impugned judgment, highlighting brutality inflicted upon the deceased; he has prayed for confirmation of death penalty. 3. Appalling events of the fateful day comprised two episodes. According to Crime Report No.437, two unknown assailants, during the course of robbery targeted no less than four persons; of them, Bilal and Zeeshan, uncle and nephew on maternal side, succumbed to the injuries at different points of time, with bullets in the chest and neck respectively; Javed Iqbal and Muhammad Imran survived multiple fire shots, former joined the trial as a defense witness. It is under these circumstances that both the deceased of this case were overpowered by a mob including the appellants and mercilessly lynched; their bodies were shifted to the morgue with police papers that san their identity. Cross version of the incident was recorded on 18.8.2010 after three days of the occurrence, finally transformed into FIR No.449 on 20.8.2010. Divergent positions, notwithstanding, first part of the occurrence is precursor in continuity to the second and thus both are inseverably linked with each other, and therefore can be validly taken into consideration in view of the space provided under Article 20 of the Qanun-e-Shahadat Order, 1984. Such exercise unmistakably confirms that in the first part of the occurrence, Bilal died at the spot with a gunshot on his right shoulder; his autopsy is conducted at 6:50 a.m. same day, vide report Ex. DQ; he is not alone as three others namely Zeeshan, Muhammad Imran Criminal Appeals No. 145-L and 146-L of 2017 4 and Javed Iqbal received multiple fire shots and it is so established by medico legal certificates, Ex. DR, DS and DT of even date respectively; Zeeshan injured succumbed to the injuries on 11.9.2010, a fact confirmed by autopsy report of even date, Ex. DP. Seizure of two .30 caliber pistols with live munitions is part of inventory prepared at the spot. What is established beyond doubt in the first crime report, is massive violence suffered by four individuals, though with a reticent reference to the robbers, two in number, without details/identities of those who lynched them shortly thereafter. Prosecution’s complete silence on deaths and injuries as well as details collateral therewith occurring within same time and space, in the second First Information Report as well as during the trial, is most intriguing. Similarly, deceased’ armed detour for a morning walk, on a motorbike, with undigested food in their stomachs, to be confronted by a mob, is a story that may not find a buyer. In the absence of whole truth, “. . . . . the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances” Syed Ali Bepari versus Nibaran Mollah and others (PLD 1962 SC 502). Available evidence on the record does not allow any hypothesis to substitute anyone else, being responsible for the first incident other than the deceased of the present case, subsequently fallen prey to the wrath of a mob with the appellants being at the helm. Defense objection on the admission of forensic evidence, establishing appellants’ identity as well as participation in the crime does not hold much water. Technological innovations have opened up new avenues of proof to drive home charges. Article 164 of the Order ibid invests the Court with wide powers to make use of evidence generated by modern devices and techniques; Articles 46-A and 78-A of the Order ibid as well as provisions of Electronic Transactions Ordinance (LI of 2002) have smoothened the procedure to receive such evidence, subject to restrictions/limitations provided therein. This Court has undertaken an exhaustive survey of jurisprudence on the subject in the case of Ishtiaq Ahmed Mirza and two others versus the Federation of Pakistan and others rendered on 23.8.2019 in Criminal Appeals No. 145-L and 146-L of 2017 5 Constitution Petitions No.10, 11 and 12 of 2019 and authoritatively settled parameters to receive forensic evidence through modern devices. Evidence produced against the appellants qualifies the standards laid down in the supra case. Shahzad Ahmed, PW-15 is a Journalist; attracted to the spot, he captured the footages of crime scene, subsequently transmitted in a compact disc secured vide memo, Ex. PK. Dilawar Hussain, PW-20 is a professional photographer; he generated stills from the compact disc exhibited as P-9/1-35; these stills provide graphic details of the whole incident and establish identity of the appellants beyond doubt while they were belabouring the deceased. In the totality of circumstances, given appellants’ different backgrounds, in a limited time space, interpolation, substitution or editing of forensic material, seemingly immune from human interference, could not have been possibly manipulated and thus constitutes a piece of evidence too formidable to be shaken through a bald assertion alone, therefore we entertain no manner of doubt that the appellants are responsible for what befell upon the deceased and thus notwithstanding the enormity of their own conduct the appellants cannot be exonerated for their recourse to violence upon the deceased. Prosecution of offences, to the exclusion of all others, is a State prerogative and sentencing the offenders is a judicial province. Accused of most heinous or gruesome offence is entitled as of right, to a fair trial by a tribunal designated by law with a meaningful opportunity to vindicate and defend his position both before the prosecuting authority as well as the Court. Collective human wisdom, since times immemorial has not been able to evolve a better or more humane procedure to prosecute and convict offenders other than due process of law, with procedural safeguards under Constitutional guarantee of fair trial, to hand down sentences mandated thereunder on the preponderance of legal evidence, without compromising on the principle of inherent human dignity. Retributive torture, that too by mobs through street justice, would not only have most de-humanizing impact on our society but also triggers chaos and anarchy as is evident in the present case besides being violative of Constitutional mandate. Criminal Appeals No. 145-L and 146-L of 2017 6 Vendetta cannot equate itself with justice. It is devoid of solemnity inherent in the process of law, leaving an offender as a victim, an object of sympathy at the end of the day, without judicial certainty about his guilt, therefore the appellants cannot be allowed to go scot free without a tag. However, convictions and sentences recorded by the Trial Court and upheld by the High Court, in the facts and circumstances of the case, require a serious reconsideration. Peculiarity of the situation wherein the incident occurred, reasonably suggests that first part of the occurrence triggered the outrage, instantaneously swaying upon the appellants’ faculties, otherwise having no motive or axe to grind. It is this spontaneity whereunder the appellants resorted to violence seemingly without premeditation and choice weapons and thus consequences of their transgression, more aptly fall within the mischief of clause (c) of Section 302 of Pakistan Penal Code, 1860, a statutory substitute for erstwhile Section 304 of the Code ibid as held by this Court in the cases reported as Ali Muhammad versus Ali Muhammad and another (PLD 1996 SC 274), Muhammad Mumtaz Khan versus The State (1999 SCMR 837), Azmat Ullah versus The State (2014 SCMR 1178), Zahid Rehman versus The State (PLD 2015 SC 77), Muhammad Asif versus Muhammad Akhtar and others (2016 SCMR 2035) Abdul Nabi versus The State (2017 SCMR 335) and Muhammad Qasim versus The State (PLD 2018 SC 840). Consequently, appellants’ conviction under Section 302(b) of the Code ibid is converted into clause (c) thereof on both counts and they are sentenced to ten years R.I.; the sentences shall run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898; remaining convictions and sentences consequent thereupon as well as direction for payment of compensation are set aside. The appeal stands disposed of in the above terms. Criminal Appeal No. 146-L of 2017 This appeal is superfluous because the appellants in this case have already filed Criminal Appeal No. 145-L of 1017 before Criminal Appeals No. 145-L and 146-L of 2017 7 this Court which is also fixed for hearing today. Dismissed accordingly. Criminal Miscellaneous Applications No. 145-L & 149-L of 2015 in Criminal Appeal No. 145-L of 2017 2. These miscellaneous applications are allowed in the terms prayed for therein. Criminal Miscellaneous Application No. 146-L of 2015 in Criminal Appeal No. 145-L of 2017 As the main appeal has been dismissed by this Court, therefore, this miscellaneous application seeking interim relief has lost its relevance. Disposed of. Chief Justice Judge Judge Islamabad/Video Link at Lahore 18th September, 2019 Approved for reporting Ghulam Raza/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.148-L of 2017 (On appeal from the judgment dated 12.03.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.86-J of 2011 and C.S.R. No.22-T of 2010). Asad Rehmat …Appellant(s) VERSUS The State, etc …Respondent(s) For the Appellant(s) : Syed Zahid Hussain Bukhari, ASC Ms. Khalida Parveen, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General, Punjab Date of Hearing : 20.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Indicted on multiple counts by an Anti Terrorism Court, Asad Rehmat, appellant herein, was returned a guilty verdict; he stood convicted and sentenced on each vide judgment dated 13.5.2011. A learned division bench of Lahore High Court upheld convictions as well as sentences vide impugned judgment dated 12.3.2015, vires whereof are being assailed through leave of the Court. The appellant, was required by law in a criminal case as accused; on fateful day i.e. 29.3.2011, pursuant to a tip off, a contingent of Police Station Sillanwali, surprised the appellant in Chak No.136 SB to effect his arrest; he confronted the police party from the roof top with a .12 caliber repeater; from amongst the contingent, Muhammad Hayat, Sher Ahmed and Ahmed Bakhsh were fatally shot. Upon return of fire, the appellant moved to different places and in the process targeted Zafar Iqbal, Abdul Haq and Muhammad Sarwar, co-villagers; they too succumbed to their Criminal Appeal No.148-L of 2017. 2 injuries. Witnesses survived the attack when by snatching a motorbike, the appellant fled from the scene; he was arrested on 3.4.2011 with motorbike P-8; upon a disclosure, he led to the recovery of .12 caliber repeater P-1 on 10.4.2011. It was found wedded with 13 casings secured from the venue during spot inspection. The appellant claimed trial; confronted with the evidence, took the following position:- “Mst. Aasma daughter of Abdul Haq deceased married me without consent of her father. After the registration of Nikka she was residing with me as my wife happily. Abdul Haq had extended threats to me and I had taken my wife to Fort- Abbas. A false case of abduction was got registered against me in connivance with the police. On relevant day i.e. 29.3.2011 I was not present in my house at Chak No.136 SB and Abdul Haq complainant of case FIR No.709/10 along with three police officials intruded into my house in my absence without any warrants. Womenfolk present in the house raised alarm which attracted many persons of my family and that of family of Abdul Haq. There had been intensive and indiscriminate firing between the parties resulting in death of police officials as well as three persons from the public. The police officials also fired in confusion and their bullets also hit the deceased persons. The local police in order to cover up its inefficiency falsely lodged a case against me. No person from the public man has supported the prosecution version and two police officials have appeared as eye witnesses. The case is totally false. As all the police officials who have appeared before this Court are subordinate of complainant and Investigation Officer so they have deposed against me falsely. I am innocent.” 2. Huge loss of life and apparent preponderance of evidence notwithstanding, certain aspects of the prosecution case warrant a careful scrutiny. Occurrence, statedly, took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m. Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March, development of rigor mortis within such short span of time is mind boggling; occurrence does not appear to have taken place at the point of time mentioned in the crime report. A contingent, armed with sophisticated automatic weapons, reacting promptly Criminal Appeal No.148-L of 2017. 3 on a sudden information, moving an unusual quick response to arrest an accused in a run off criminal case. Single individual holding the police party at bay, escaping retaliatory fires, jumping from one roof top to another, snatching a motorbike, fleeing within the view and reach of a police party with a vehicle is a story that may not find a buyer. Motorbike allegedly snatched by appellant belonged to a co-villager, Imran Hussain; he was the best witness to prove the charge, conspicuously missing in the array; same goes for Hayat Bakhsh’s daughter, the alleged abductee in the criminal case wherein appellant’s arrest was required. Though the casings tallied with the gun, however, these were dispatched on a date subsequent to appellant’s arrest and thus this piece of evidence also lost its significance. The most intriguing aspect of the prosecution case is dimension of injuries received by the deceased. Zafar Iqbal, deceased had three wounds of entry on his person measuring 5 x 3.5 c.m., 2.5 x 2.5 c.m. and 3 x 3 c.m. Abdul Haq was noted with two entry wounds measuring 2.5 x 0.1 c.m. and .5 x .5 c.m. Muhammad Sarwar had two entry wounds measuring 2.5 x 2.5 c.m. and another with multiple entries within the radius of 8 x 8 c.m. Muhammad Hayat, deceased was noted with five entry wounds; injuries on left side of face and head were 14 inch x 10 c.m. it was a crush fire arm wound, destroying left eyeball completely. Next is an entry wound on left hand measuring 6 x 5 c.m. There are two wounds of entry each 1 x 1 c.m. while other 1½ x 1½. These apertures, vastly different, unambiguously rule out use of single weapon and ammunition. We are surprised by the police failure to secure casings ejected from their own weapons, statedly used against the appellant. Except the dead, all others miraculously survived the assault unscathed. These aspects of the case, in retrospect lend credence to the position taken by the appellant. The prosecution has not come up with the whole truth and thus its case cannot be viewed as beyond reasonable doubt, benefit whereof cannot be withheld merely on account of magnitude of violence and loss of lives consequent thereupon. Criminal Appeal 148-L/2017 is allowed, impugned judgment is set aside. The appellant shall be released forthwith, if not required in any other case. Above are the Criminal Appeal No.148-L of 2017. 4 reasons of our short order of even date which is reproduced as under:- “For detailed reasons to be recorded later, the instant criminal appeal is allowed. The convictions and sentences of the appellant Asad Rehmat are set aside. He is acquitted of the charges framed against him. He shall be released forthwith, if not required to be detained in any other criminal case.” JUDGE JUDGE Lahore, the 20th of May, 2019 Ghulam Raza/* JUDGE

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 Cr. Appeals No.149-L and 150-L of 2017 (On appeal from the judgment dated 4.3.2015 of the Lahore High Court, Lahore passed in Criminal Appeal No.305/2010 and CSR No.5-T/2010) Muhammad Zubair (in Criminal Appeal No.149-L/2017) Mst. Kalsoom alias Sonia (in Criminal Appeal No.150-L/2017) … Appellant(s) VERSUS The State and another (in Criminal Appeal No.149-L/2017) The State and another (in Criminal Appeal No.150-L/2017) …Respondent(s) For the Appellant(s): Dr. Khalid Ranjha, Sr. ASC Mr. Mazhar Ali Ghallu, ASC (in Criminal Appeal No.149-L/2017) Mr. Zafar Mehmood Ch., ASC (in Criminal Appeal No.150-L/2017) For the Complainant: Mr. Shaukat Rafiq Bajwa, ASC (in both cases) For the State : Ch. Muhammad Mustafa, DPG Date of Hearing: 01.7.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Zubair and his wife Mst. Kalsoom @ Sonia were tried by an Anti-Terrorism Court at Lahore; indicted for abduction of Muhammad Shahid for ransom, they were returned a guilty verdict vide judgment dated 29.1.2010; convicted under Sections 302(b), 365-A read with Section 34 of the Pakistan Penal Code, 1860 as well as under Section 7(a) and (e) of the Anti-Terrorism Act, 1997, they were sentenced to death and imprisonment for life respectively, upheld by the High Court vide impugned judgment dated 4.3.2015 vires whereof are being challenged through separate appeals by leave of the Cr. Appeals No.149-L and 150-L of 2017 - 2- Court; bound by a common thread, these are being decided through this single judgment. 2. Prosecution's case is structured on application, Ex-PC, by Muhammad Asif, PW-12 received on 7.1.2009, at Police Station A-Division, Okara. According to the complainant, his brother Muhammad Shahid, deceased, left home on 1.1.2009 to attend Urs of Sufi Barkat Ali; he was accompanied by some unknown friends and confirmed his presence at the mausoleum same day at 6:00 p.m.; it was during the same night that an unknown caller from his cell phone demanded ransom of Rs.50,00,000/-; he spoke himself to the family to confirm his custody; the captor set deadline for the payment of ransom as 6.1.2009. It is complainant's claim that he presented application, Ex.PC, on 2.1.2009. The captor remained in communication and the complainant, somehow, arranged a sum of Rs.30,00,000/- and as directed, went to Khanewal bypass in a car alongside Zulfiqar Ali and Muhammad Rafiq, PWs on 6.1.2009; they were diverted by the caller towards Chowk Kumharanwala near Jinnah Park to drop the amount at the designated point where, according to the witnesses, a person, supporting a beard with a girl carrying a kid took the amount; after a short while, the complainant again received a call to reach Khanewal Railway Crossing to receive the abductee, however, both of them vanished without releasing him. On 10.1.2009, from deceased's account, a cash of Rs.14,000/- was withdrawn from an ATM and it was subsequent thereto on 18.1.2009, the complainant once again received a call from the accused to pay Rs.2,50,000/- which he again paid to them near Sahiwal bypass. Both the appellants were arrested by Muhammad Rasheed Baig, SI, PW-13 and it is pursuant to a disclosure that they led to the recovery of a dead body on 29.1.2009, identified as that of the deceased; autopsy report suggested death by asphyxia. The appellants got recovered a sum of Rs.24,02,610/-, received by them as ransom as well as a kassi and pieces of string; they were put to a test identification parade before Muhammad Sarwar and Muhammad Rafiq, PWs, who failed to identify the appellants and seemingly for this reason they were not produced before Cr. Appeals No.149-L and 150-L of 2017 - 3- the Court, however, Zulfiqar Ali, PW-11, Muhammad Asif, PW-12 and Muhammad Imran, PW-15 identified the appellants. Muhammad Yaqoob, father of Muhammad Zubair, appellant, Manzoor Ahmad, father of Mst. Kalsoom, appellant and Imran @ Mani, her brother-in-law were arrayed as co-accused; they are still away from law. 3. Recovery of considerable amount accompanied by disclosure leading to the dead body from a premises statedly occupied by the appellants and the account furnished by the witnesses, supported by photo, Ex.P-5, generated by CCTV camera of an ATM, at first sight, are formidable pieces of evidence inexorably pointing towards the appellants, however, in the totality of circumstances, on a closer scrutiny, there are various intriguing aspects of the case, inescapably reflecting upon its fate. The very genesis of the case is suspect, as according to Muhammad Asif, he presented application, Ex.PC on 2.1.2009 whereas according to Sajjad Ahmad, ASI, PW-5, it was received on 7.1.2009 at 1:45 a.m. and it is so confirmed not only by an endorsement but also copy of First Information Report; it sans all the details, the complainant subsequently related in the witness box; prosecution has no explanation to reconcile the dichotomy. The manner in which the complainant, statedly, followed the appellants to pay ransom is far from being confidence inspiring; there does not appear any earthly reason as to why Muhammad Zubair, appellant would take his wife and minor son with him to accomplish a task that he could have singularly achieved; more surprising is his audacity to expose himself to the witnesses, particularly when he had planned to do away with the abductee. Subsequent demand of ransom and complainant's compliance therewith is yet another aspect that cannot be taken without a pinch of salt; otherwise conducting themselves surreptitiously, the appellants are not expected to be so reckless in execution of their plan. Test identification parade does not advance prosecution's case as well; two from amongst the witnesses failed to pick the appellants in test identification parade; both of them have been withheld. The entire exercise turns out as self destructive inasmuch as one set of witnesses cannot be Cr. Appeals No.149-L and 150-L of 2017 - 4- relied upon without excluding the other from consideration and vice versa. Photograph Ex.P-5, purportedly generated by CCTV camera of an ATM is entirely beside the mark for a variety of reasons; ATM card was never recovered; no one from the bank appeared to establish nexus between the deceased and the ATM card allegedly used by the appellant; there is no data to confirm the transaction. Ex.P-5 is a photograph simpliciter. Appellants' arrest on 29.1.2009, disclosures made by them and recovery of dead body pursuant thereto are the events coming about in a mind boggling quick succession. Rent deed produced by the prosecution as Ex.PJ on the face of it appears to be a fabricated instrument and as such does not constitute positive proof of appellants' occupancy of the premises. On the whole, prosecution case is fraught with doubts, deducible from the stated positions and thus it would be unsafe to maintain the convictions. Criminal Appeals are allowed, impugned judgment is set aside. The appellants are acquitted of the charge and shall be released forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 1st July, 2019 Not approved for reporting Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Jamal Khan Mandokhel Criminal Appeal Nos.15-Q & 16-Q of 2020 (Against the judgment dated 03.09.2018 passed by the High Court of Balochistan, Quetta in Cr. A. No.390 of 2016) Muhammad Iftikhar (in both cases) …Appellant(s) Versus The State (in both cases) …Respondent(s) For the Appellant(s): Syed Ayaz Zahoor, Sr.ASC Mr. Gohar Yaqoob Yousafzai, AOR For the State: Mr. Mushtaq Ahmed Qazi, Addl. A.G. Balochistan For the Complainant: Mr. Ahsan Rafique Rana, ASC Date of hearing: 01.11.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Syed Zulfiqar, 42, was shot dead during the night between 27/28-1-2015 within the precincts of Police Station Qaidabad, Quetta; the appellant conveyed information to deceased’s brother Jawad Hussain (PW-1) who attended the casualty in Civil Hospital Quetta. A solitary fire shot on the right side of face was opined as fatal. The complainant named the appellant as suspect without citing any motive for the crime. Indicted before the learned Addl. Sessions Judge-II Quetta, the appellant claimed trial, pursuant whereto, the prosecution produced a number of witnesses, complainant being the most prominent of them, who reiterated his case in the witness-box. The appellant confronted prosecution evidence with a denial, blaming the deceased, a drug addict, to have committed suicide, albeit in the premises they lived together. The learned trial Judge proceeded vide judgment dated 24.11.2016 to convict the appellant under clause (b) of section 302 of Criminal Appeal Nos.15-Q & 16-Q of 2020 2 the Pakistan Penal Code, 1860 and sentenced the appellant to imprisonment for life with a direction to pay compensation, upheld by a learned Judge-in-Chamber of the High Court of Balochistan vide impugned judgment dated 03.09.2018, being assailed through leave of the Court. 2. Learned counsel for the appellant contends that entire prosecution case is structured upon a misconceived and misplaced suspicion as there is no eye witness of the occurrence and no other than the appellant himself informed the complainant about the suicidal death of the deceased being his friend with whom he lived in the same premises; he has further argued that it was appellant himself who brought the deceased to the hospital in a bid to save his live; mere fact that the deceased lived with the appellant by itself is no proof that the appellant committed the crime. Contrarily, the learned Law Officer, assisted by counsel for the complainant, argued that the deceased resided with the appellant and it was within his exclusive knowledge as to what befell upon him as the story of suicide is negated by medical evidence whereunder the medical officer ruled out possibility of suicide pursuant to cross-examination conducted on behalf of the appellant; he adds that recovery of a .9 mm pistol wedded with the casing secured from the spot, in the totality of circumstances, constituted proof beyond doubt sufficient to sustain the conviction. 3. Heard. Record perused 4. Complainant is not an eye witness of the crime nor anyone else came forward to disclose the circumstances leading to the unnatural death of the deceased. It is also a common ground that the appellant not only took the deceased to the hospital but also informed the complainant at an odd hour of the night. Locale of injury being the face below the right eye with blackened margins is a possible choice for a person hell bent to take his own life. There is no positive opinion by the medical officer that ruled out the possibility of suicide; the conviction is based upon an indiscreet suggestion by defence lawyer with a grievous inaptitude and, thus, the appellant should not be allowed to be victim of a bad choice of his defence. Totality of circumstances fails to qualify to sustain the capital charge. Mystery of the occurrence is fraught with doubts and, thus, it would be unsafe to maintain the conviction. Criminal Appeal No.15-Q of 2020 is allowed; the impugned judgments of the courts below are set aside; the appellant Criminal Appeal Nos.15-Q & 16-Q of 2020 3 is acquitted of the charge; he has already been ordered to be released forthwith, if not required to be detained in any other case. Criminal Appeal No.16-Q of 2020 stands dismissed as not pressed. Judge Judge Judge Quetta, the 1st November, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.154-L of 2017 (On appeal from the judgment dated 10.2.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.463/2010 and CSR No.26-T/2010) Muhammad Yaqoob …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s) : Mr. Saqib Akram Gondal, ASC For the State : Ch. M. Mustafa, Deputy Prosecutor General Date of Hearing : 30.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Gohar Zaman, Muhammad Afzal, Muhammad Ashraf, Babar, Zulfiqar Ali, Shiraz Ahmed, Asad Abbas, Muhammad Suleman, Muhammad Bashir, Arshad Bhatti, Haji Mushtaq and Muhammad Amjad, accused in a case of homicide, appeared before a learned Additional Sessions Judge within the precincts of District Courts, Gujrawnwala on 11-7-2009; posted for recording of evidence, the case was, however, adjourned for 17-7-2009 and it was soon thereafter, inside the court-room, the appellant alongside Muhammad Mushtaq, Haji Muhammad Siddique, Qaisar Munir with two unknown persons, differently armed, emerged at the scene; they resorted to firing; the appellant, cited as a witness in the said case, with a .30 caliber pistol, fired upon Gohar Zaman and Arshad Bhatti followed by Muhammad Siddique who targeted Muhammad Ashraf, PW-14 while Muhammad Mushtaq and Qaisar Munir fired upon Muhammad Bashir, given up PW, and Muhammad Afzal, PW-12, respectively; they were joined by the unknown assailants; according to the crime report, lodged by Zeeshan Ilyas, PW-13, one Gogi was also shot during the occurrence. The assailants took Criminal Appeal No.154-L of 2017 2 to the heels except the appellant, apprehended at the spot and handed over to the police with two .30 caliber pistols, one found forensically wedded with three casings, secured during spot inspection. As the investigation progressed, Qaiser Munir and Haji Muhammad Siddique were let off; Muhammad Mushtaq, co-accused is still away from law. Prosecution is clueless about the unknown accused till date. The appellant alone was indicted before an Anti Terrorism Court; he was returned a guilty verdict with penalty of death on two counts, upheld by a learned Division Bench of Lahore High Court vide impugned judgment dated 10.02.2015 vires whereof are being assailed through leave of the Court. 2. Prosecution case, predominantly, is founded on common grounds; these include, enmity long raging between the two factions, hearing of the case, appearance of the deceased and the appellant being amongst the witnesses, on the fateful day, at the venue, a court-room as well as appellant’s arrest therefrom. Though with some reticence, nonetheless, the appellant has not denied his presence during the episode albeit with the story of a most uncalled for provocation offered by the deceased. Three casings secured by the Investigating Officer though incommensurate with the number of alleged fire shots, nonetheless, were opined to have been fired from the weapon carried by the appellant. Totality of circumstances does not space any hypothesis other than appellant’s guilt; he has rightly been convicted on the charge of homicide, however, quantum of sentence, notwithstanding the venue, warrants reconsideration. It is prosecution’s own case that the appellant attended the Court to record his statement as a witness; the case was adjourned without recording of evidence and it is subsequent thereto that as many as six accused started firing upon the deceased and the PWs; two from amongst them have since been exonerated, never tried even through private complaint; Muhammad Mushtaq alongwith two unknown accomplices is still away from law; appellant’s acquittal from the charge of attempted homicide has not been challenged. Appellant himself sustained injuries receipt whereof is denied by the prosecution witnesses. These circumstances cloud moments immediately preceding the Criminal Appeal No.154-L of 2017 3 occurrence into mystery, particularly when in the given background, the appellant had no exclusive motive, targeted upon the deceased. In this backdrop, as a cumulative impact, alteration of death penalty into imprisonment for life would not be unconscionable in circumstances. Consequently, penalty of death on both counts is altered into imprisonment for life; sentences shall run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898. Though the aftermaths far from being benign, nonetheless, having no nexus with the situations and effects thereof, contemplated by Section 6 of the Anti Terrorism Act, 1997, appellant’s conviction under section 7(a) thereof is not inconsonance with the law declared by this Court in the cases reported as Amjad Ali and others Vs. The State (PLD 2017 SC 661) and Farooq Ahmad Vs. The State and another (PLJ 2017 SC 408) and is, therefore, set aside. With the above modification, Criminal Appeal is dismissed. JUDGE JUDGE Lahore, the 30th of May, 2019 Azmat Ali/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.154 of 2020 (Against the judgment dated 26.01.2015 passed by the Peshawar High Court Peshawar in Cr. A. No.174-P of 2014) Afzul-ur-Rehman …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mrs. Kausar Iqbal Bhatti, ASC For the State: Mr. Rizwan Ibrahim Satti State counsel Date of hearing: 26.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- An explosive laden truck, with the appellant on the wheel, was intercepted by a police contingent within the precincts of Police Station Banda District Kark at 17:20 p.m. on 4.6.2013; he was accompanied by Niaz Muhammad, since acquitted. Cache, considerable in volume, was forensically confirmed as high intensity explosive; it also included detonators and an hand grenade, secured vide inventory of even date. As the investigation progressed, the appellant, purportedly desired to make his breast clean; he was brought before a Magistrate on 6.6.2013, who recorded his confessional statement, reproduced below: توف دارفا ھچ لک روا رڈنامک نامحر یلو ںیم سج اوہ ہلمح نورڈ ںیم ہاش ناریم ید دعب ےک سا ۔ےئوہ روا اھت اتلاچ یڑاگ ںیم ۔ےئگ ےرام ںیم ہڈناب یھب گول رگ ےریم ۔ںیہ رویئارڈ کرٹ پآ ہک اہک ےن فشاک ےھجم ۔اھت ہن لماش ںیم نیدہاجم ےن ںیم ۔ےئگ واج ےل ٹاہوک ینابوخ رپ یرودزم ہناہام رازہ سد غلبم ھتاس ہلاوح ےھجم ےک رک ڈول کرٹ رھپ ۔ےہ یرودزم فاص روا کاپ وت ہی ہکاہک اک توم یک نمحرلا یلو روا ںوہ یطوط اک تنج ںیم ہک ایگ اہک ےھجم رھپ ۔یئوہ وہ ہناور ےس ںاہو رھپ ۔ےگ ورک ہلمح شُک دوخ رپ لنٹ ٹاہوک ےیل ےک ےنیل ہلدب ےھجم ےن فشاک رھپ اوہ ٹنڈیسکیا اک کرٹ اریم ںیم دودح یک علض کرک رک ںوہ ہن ای ںوہ رایت ےیل ےک ہلمح شک دوخ ںیم ہک اہک اریم ہک اہک ےن ںیم وت ۔ فشاک رھپ ۔ےہ ایگ ایلا ےس یتسدربز روا روز وت ےھجم ےہ ہن نئمطم ریمض ےن پآ ہکاہک ایک نوف ےن ناریما ےھجم ۔ایک ےلاوح ےھجم کرٹ روا ایگ لاچ ںیم لٹوہ لگ یداب/نوم ینہ یڑاگ روا ۔ےہ ایگ گاھب فشاک ہک اہک ںیم وتشپ اہک رپ نوف ےھجم ۔ےہ ایک اڑھک رھپ ۔ںیہ ےتجیھب رنیلک/ ہدنب ارسود ںیہن انٹلپ ہک اہک روا ایگ اید روز ںاہو بج ںیمہ رھپ ۔ایگ ایلاُب ناتسریزو ںیم رھپ ۔ایآ دمحم دیس دوخ مہ روا ےئگآ ربہر رکآ سپاو رھپ ۔ےئآ ہن سپاو ہدنز ۔واڑُا ںیناج ینپا ہک ایگ ازاب یچلا ہو بج روا ۔ےئوہ ہناور لنٹ ےیل ےک ہلمح شُک یڑاگ یک ربہر ںیم ر وج جج ںیمہ ہک یک حلاص ںیم سپآ ےن دمحم دیس روا ےن ںیم وت ےئگ وہ ہابت ےھجم ےن دمحم دیس ۔ےترک ںیہن ہکامھد شُک دوخ رگم ےہ لوبق ںیمہ ےد ازس کرٹ مہ روا ایگ لاچ بناج یک ٹاہوک ربہر ۔ےہ یک تاب یھچا یڑب ےن پآ ہک اہک Criminal Appeal No.67-L of 2020 and Criminal Petition No.1133-L of 2014 2 ب رک وہ ہناور بناج یک کرک رک ےل بج دعب ےک سا ۔ ےگل ےنرک سپاو وک ںون ںیم وت اید ھتاہ ںیمہ ےن سیلوپ وت ےئوہ بیرق ےک ٹسوپ کیچ روا ےچنہپ ہڈناب ہن رئاف یئوک ہک وہک ےس ںولاو سیلوپ رک رتُا ےچین ہکاہک ےس دمحم دیس ےن ںیم ۔ یچنیھک ٹلُب ےن سیلوپ رھپ ۔ےئاج ہن ٹھپ ےہ دوراب ںیم کرٹ ہک ںید رک رتُا ےن ےن دمحم دیس روا ےیک ےڑھک ھتاہ رک اگل گنلاھچ ںیم یناپ ےچین رک ایابد ںیہن نٹب شک دوخ روا ید یراتفرگ دوخ ےن ںیم ۔ید یراتفرگ رپ عقوم اک یفاعم ںیم ایک راکنا ےس شک دوخ روا اھت ایگ رڈ ےس اللہ ںیم ہکنویک ۔ایک میلست تسرد رک نُس ۔ںوہ راگتساوخرد Upon indictment, however, the appellant claimed trial. The learned trial Judge vide judgment dated 20.3.2014 convicted and sentenced both the accused as under: (i) “U/s 5 of Exp Sub Act 1908 (Act OV of 1908) 14-years (R.I) (ii) U/s 7 ATA 1997 (Act No.XXVIII of 1997) 14-years (R.I) Forfeiture of whole property to the Government as envisaged u/s 5-A of Exp Sub Act 1908 (Act IV of 1908) Sentences to run consecutively with benefit of section 382-B Cr.P.C.” A learned Division Bench of the Peshawar High Court acquitted Niaz Muhammad co-accused, however, maintained appellant’s conviction and sentences consequent thereupon vide impugned judgment dated 26.01.2015 vires whereof are being assailed through leave of the Court on the grounds that retracted confession notwithstanding, appellant’s voluntary surrender before the police, by his own volition and will, is manifestly established on the record which in retrospect confirms that he saved the neighbourhood from an impending calamity by taking the unsuspecting police contingent into confidence and in this backdrop his role was more accessory to the State than to the crime; he contends that confessional statement, attributed to the appellant, being exculpatory, is of no avail to the prosecution and that acquittal of identically placed co-accused by the High Court raised the entire edifice to the ground. Alternately it is prayed that in the peculiar facts and circumstances of the case, referred to above, reduction in the sentence would meet the ends of justice, as although the case was triable by a Special Court constituted under the Anti Terrorism Act, 1997, however, in view of the law declared in the case of Ghulam Hussain Vs. The State (PLD 2020 SC 61), appellant’s conviction under section 7 of the Act ibid was not called for, concluded the learned counsel. The learned Law Officer contrarily defended the judgment; he argued that interception of truck loaded with explosive of awful lethality being transported by the appellant conclusively established his guilt and in the face of overwhelming evidence, retraction from judicial confession is nothing more than a belated attempt to hoodwink the process of law. Criminal Appeal No.67-L of 2020 and Criminal Petition No.1133-L of 2014 3 3. Heard. Record perused. 4. Prosecution with various pieces of evidence has successfully established interception of a truck that carried huge cache of explosive with devastating destructive potential. Appellant’s arrest is a factum above suspicion. Investigative details accompanied by forensic report clinched the charge. The appellant confessed his guilt before a Magistrate after he was already remitted into judicial custody. Contents of the confessional statement, purposely detailed in extenso, unmistakably suggest a change of mind whereunder the appellant appears to have deviated from the course, he was destined to charter; better sense that timely swayed the appellant not only saved him and his companion from being shattered beyond recognition; it also gave a new lease of life to a most valuable national communication link. The police contingent that intercepted the truck had no idea about the destructive capacity of the cargo that it carried; they also luckily remained unscathed. Appellant’s abstinence, seemingly actuated by a variety of possible factors, though a most fortunate choice, nonetheless, in the totality of circumstances, does not cast away culpability of his undertaking so as to make out a case for an unqualified reprieve without a tag; it, however, certainly extenuates, in no small measures, enormity of the charge and in retrospect entitles him to the premium of a charitable treatment, permissible by law, therefore, while maintaining his conviction under section 5 of the Explosive Substances Act, 1908, a course inescapable in circumstance, his sentence is reduced to the lowest mandated period of seven years R.I, pre-trial period inclusive. Directions regarding forfeiture of appellant’s property as well as case property, that obviously included the impounded truck, are kept intact, however, his conviction under section 7 of the Anti Terrorism Act, 1997 and sentence thereunder, are set aside. Criminal appeal is partly allowed. Judge Judge Judge Islamabad, the 26 October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Maqbool Baqar Mr. Justice Syed Mansoor Ali Shah Criminal Appeals No. 155 and 156 of 2018 (Against the judgment dated 21.12.2017 passed by the High Court of Balochistan, Sibi Bench at Quetta in Criminal Appeal No. (S) No. 53 of 2017 and Criminal Revision (S) No. 22 of 2017) Abdul Wahab, etc. (in Cr. A. 155 of 2018) Abdul Wahab (in Cr. A. 156 of 2018) …Appellants versus The State, etc. (in both cases) …Respondents For the appellants: Syed Ayaz Zahoor, ASC (in both cases) For the State: Syed Baqar Shah, State Counsel (in both cases) For the complainant: Mr. Zahoor-ul-Haq Chishti, ASC (in both cases) Date of hearing: 10.01.2019 JUDGMENT Asif Saeed Khan Khosa, J.: Criminal Appeal No. 155 of 2018 Abdul Wahab, Ghulam Ishaque, Abdul Jabbar and Muhammad Ismail appellants and another had allegedly chopped Criminal Appeals No. 155 and 156 of 2018 2 off the right ear of one Ahmed Ali in an incident taking place at about 10.00 A.M. on 06.02.2016 in Goth Muhammad Azam Magsi in the area of Police Station Shaheed Malik Muhammad Ali, District Jaffarabad regarding which FIR No. 8 was registered at the said Police Station during the same morning. After a regular trial the appellants were convicted by the trial court for an offence under section 334, PPC and were sentenced to rigorous imprisonment for five years and to pay Arsh equal to Diyat in equal shares to the victim. The appellants challenged their convictions and sentences before the High Court through an appeal and Nisar Ahmed complainant also filed a revision petition before the High Court seeking enhancement of the sentence of imprisonment passed against the appellants. Through the impugned judgment the High Court upheld the convictions and sentences of Ghulam Ishaque, Abdul Jabbar and Muhammad Ismail appellants recorded by the trial court whereas the said Court enhanced the sentence of imprisonment passed by the trial court against Abdul Wahab appellant to rigorous imprisonment for seven years while maintaining the remaining punishment imposed upon him. Hence, the present appeal by leave of this Court granted on 13.02.2018. 2. Leave to appeal had been granted in this case in order to examine as to whether the provisions of section 337-N(2), PPC stood attracted to the facts of this case or not and if the said provisions were applicable to the case in hand then whether the punishments of imprisonment could have been passed against the appellants by way of Ta’zir or not. We have noticed that according to the provisions of section 337-N(2), PPC a punishment of imprisonment by way of Ta’zir can be passed against a convict only if the convict is “previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour”. It is pertinent to notice that the trial court as well as the High Court did not observe anything about such credentials of the appellants. It had been held in the cases of Ali Muhammad v. The State (PLD 2009 Lahore 312), Mazhar Hussain v. The State and another (2012 SCMR 887) and Criminal Appeals No. 155 and 156 of 2018 3 Haji Maa Din and another v. The State and another (1998 SCMR 1528) that in a case pertaining to causing of hurt unless the provisions of section 337-N(2), PPC are attracted to the case of the convict he cannot be awarded a sentence of imprisonment by way of Ta’zir. In the present case the appellants had initially resorted to ineffective firing and no firearm injury had been received by any of the members of the complainant party. It was alleged that Abdul Wahab appellant had then cut the right ear of Ahmed Ali (PW2) with the use of a knife and there was some doubt available on the record as to whether the ear was cut off through the use of a knife or it was bitten off by the said appellant. Be that as it may, there was no serious motive on the part of the appellants and the asserted motive had never been proved through any independent evidence. Admittedly the appellants were not previous convicts and there was no evidence of previous involvement of the appellants in any criminal case. It is not denied that no issue of honour was involved in commission of the relevant offence by the appellants. In this view of the matter in terms of section 337-N(2) the appellants could not have been punished with imprisonment by way of Ta’zir. 3. For what has been discussed above this appeal is partly allowed, the convictions of the appellants for the offence under section 334, PPC recorded and upheld by the courts below are maintained, the order passed by the trial court regarding payment of Arsh equal to Diyat by the appellants in equal shares is modified in terms of the provisions of section 337R, PPC, the appellants are held to be liable to pay Arsh equal to one half of Diyat in equal shares and the sentences of imprisonment by way of Ta’zir passed against the appellants are set aside. The appellants had been admitted to bail by this Court upon suspension of their sentences during the pendency of this appeal through the order dated 13.02.2018. They are ordered to deposit Arsh equal to one half of Diyat in equal shares with the trial court within the next six months from today failing which they shall be taken into custody and shall be dealt with in accordance with the law. This appeal is disposed of in these terms. Criminal Appeals No. 155 and 156 of 2018 4 Criminal Miscellaneous Application No. 6-Q of 2018 in Criminal Appeal No 156 of 2018 4. This miscellaneous application is allowed in the terms prayed for therein. Disposed of. Criminal Appeal No.156 of 2018 5. In view of the judgment passed by this Court in the connected Criminal Appeal No. 155 of 2018 this appeal has lost its relevance and the same is disposed of. Judge Judge Judge Islamabad 10.01.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.157-L of 2017 (On appeal from the judgment dated 27.11.2013 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.164-J of 2008 and C.S.R. No.69-T of 2007). Muhammad Faisal Abbas …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s) : Mr. Tayyab Ramzan Ch., ASC Ms. Tasneem Amin, AoR For the State : Ch. Mustafa, Deputy Prosecutor General, Punjab along with Complainant M. Ashraf Date of Hearing : 21.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Through leave of the Court, Muhammad Faisal Abbas, appellant has assailed, confirmation of his conviction and sentence returned by an Anti Terrorism Court, by the Lahore High Court vide impugned judgment dated 27.11.2013. The appellant was tried alongside Muhammad Shahid, acquitted co-accused in the wake of incident dated 28.9.2006 within remit of Police Station Naseerabad, Lahore. It was alleged that the appellant and the co-accused, armed with pistols, committed robbery in a shop run by Muhammad Ashraf, PW; on gun point they snatched Rs.25,000/- with a cell phone hand set; upon resistance, one of them resorted to firing; complainant’s brother, Arshad Ali, succumbed to the injury, however, his second brother, Asghar Ali survived the assault; they were arrested on 6.2.2007. The appellant was identified in test identification parade as the one who fired upon the deceased and Criminal Appeal No.157-L of 2017. 2 the injured; pistol recovered on his disclosure was found wedded with one of the casings secured from the spot. Upon conclusion of trial, the appellant confronted prosecution evidence; he blamed previous enmity as the factor behind his false implication, however without furnishing details or evidence in support thereof. The learned trial Judge acquitted Muhammad Shahid, co-accused, however proceeded to convict the appellant on six counts, ranging from murder, attempted murder, robbery and terrorism; on principal counts, he was sentenced to death; appeal met with no better fate and a learned division bench of Lahore High Court upheld the convictions and sentences consequent thereupon vide impugned judgment. For safe administration of criminal justice, we have re-apprised the entire evidence. 2. Homicidal death of Arshad Ali and firearm injuries endured by Asghar Ali, PW-7 constitute a common ground; occurrence took place inside the shop, a family business, is also not disputed. Appellant’s plea that he has been implicated in the crime on account of previous enmity does not hold water; he has not been named in the report, an opportune course to engage him in the crime, if the complainant at all, had an axe to grind. Test identification parade, under magisterial supervision, is another formidable piece of evidence, exorably pointed upon appellant’s culpability. Witnesses are in a comfortable unison. In this backdrop, we find no occasion to take any legitimate exception to the findings returned by the learned trial Judge, upheld by the High Court. We have also carefully examined the impact of acquittal of co-accused upon appellant’s fate. Former has seemingly been acquitted on account of a different role assigned to him by the witnesses on the basis of a supplementary statement; he was blamed to have architected the crime; his acquittal out of abundant caution, a recognized juridical principle by now well entrenched in our jurisprudence does not adversely impact upon the prosecution case. Given dissimilarity of roles assigned to the appellant and the acquitted co-accused, prosecution’s partial failure, in the facts and circumstances of the case, would not rescue the appellant, assigned shots to the deceased as well as the witness, independently corroborated by forensic evidence; the Criminal Appeal No.157-L of 2017. 3 prosecution case to his extent is structured upon independent foundations and would not cast away with co-accused’s departure. In so far as appellant’s conviction under Section 7(a) of Anti Terrorism Act, 1997, it warrants reconsideration. We have noted predominant purpose behind the crime as robbery, no doubt on gunpoint; a situation cropped up wherein the venture went violent, certainly un-condonable, nonetheless having no nexus with the situations enumerated in Section 6 of the Act ibid. Occurrence took place inside the shop impact whereof though grievously devastating for the witnesses, however cannot be said to have spilled over to the public at large. Therefore, in the peculiar facts and circumstances of the case, appellant’s conviction under Section 7 of the Act ibid is not sustainable and set aside accordingly. Similarly, in our view, that in the totality of the circumstances, alternate penalty of imprisonment for life would meet the ends of justice. Consequently, penalty of death is altered into imprisonment for life; these shall run concurrently with benefit under Section 382-B of the Code of Criminal Procedure, 1898. With the above modification, Criminal Appeal is dismissed. JUDGE JUDGE Lahore, the 21st of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.158-L of 2017 (On appeal from the judgment dated 09.04.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.81-J of 2013 and C.S.R. No.5-T of 2013). Muhammad Azad alias Javaid alias Jodi …Appellant(s) VERSUS The State, etc. …Respondent(s) For the Appellant(s) : Ms. Nighat Saeed Mughal, ASC Complainant(s) : In person (Hidayat Ali) For the State : Ch. Mustafa, Deputy Prosecutor General, Punjab Date of Hearing : 22.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Azad alias Javaid alias Jodi s/o Niamat Ali was tried by an Anti Terrorism Court for committing qatal-e-Amd of Ali Sher, 7/8; the child was kidnapped for ransom; upon conclusion of trial, he was convicted on four counts and sentenced to death on each vide judgment dated 6.3.2013; his appeal failed in the High Court with Capital Sentence Reference, returned in the affirmative vide judgment dated 9.4.2015 vires whereof are being impugned through leave of the Court. 2. On the fateful day, the child left home with his sister Nabeela to fetch eateries; the girl returned, however he vanished and could not be located despite research; at 6:15 p.m. same day, his father, Hadayat Ali, PW received a call on his cell phone bearing No.0341-4975035, it originated from 0347-4106895; the caller Criminal Appeal No.158-L of 2017. 2 demanded ransom of Rs.200,000/- by 9/10 a.m. following day at a designated place; the complainant along with other PWs arranged the amount and thumb marked some of the bills; they came across the appellant wearing helmet on a motorbike, identified by the witnesses as the appellant, one of the relatives; as per his command, they dropped the amount in a nearby cane field; the witnesses promptly obliged, however, the child did not return. It is in this backdrop that the incident was reported on 29.9.2012 at 12.20 p.m. Muhammad Aslam, Inspector, PW-15 arrested the appellant alongside two cell phone handsets; pursuant to disclosure, the appellant led the investigating officer to the child, lying dead inside sugarcane crop; asphyxia was cited as cause of death. During custody, the appellant led to the recovery of last worn items as well as a sum of Rs.100,000/- including bills with thumb impressions. 3. Statements of Hadayat Ali and his brother Walayat Ali constitute prosecution’s mainstay. In a rural neighborhood, they are distantly related with the appellant and despite an apparent camouflage they were able to identify him beyond doubt, when he came across them in the wake of child’s disappearance and it was soon thereafter that they informed the police as the child did not return as promised by the appellant; events, though few, however taking place in quick succession, inexorably, revolve around the appellant’s culpability; most important being disclosure within the contemplation of Article 40 of the Qanun-e-Shahadat Order, 1984 pursuant whereto he led to the discovery the corpse on the basis of his exclusive knowledge; given the briefest timeframe, to the exclusion of any other hypothesis, it can be safely inferred, without being conjectural, that he alone knew what befell upon the child and where he was dumped. Cell phone data, generated through automated system, operating beyond human interference confirmed conversation between the appellant and the complainant. There was hardly any time or occasion for the family to concoct or cook up a story on suspicions or consultations. Investigative conclusions point towards the appellant as well. Complainant and his brother, with no axe to grind, cross examined at length, left the witness box unscathed; recoveries have been proved by the witnesses, equally steadfast. There is no earthly reason to suspect appellant’s identity or entertain theory Criminal Appeal No.158-L of 2017. 3 of substitution. Appellant’s guilt is proved to the hilt on the basis of chain of circumstances though few in number, nonetheless, well synchronized with one another, intrinsically confidence inspiring; he has rightly been convicted; given the brutality, inflicted upon the hapless child, last agnate of the family before his death, wage settled by the learned trial Court and upheld by the High Court has not been found by us as unconscionable. Criminal Appeal 158-L/2017 fails. Appeal dismissed. JUDGE JUDGE Lahore, the 22nd of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.16-P/2013 (against the judgment dated 17.6.2004 passed by Peshawar High Court, Abbottabad Bench passed in Criminal Appeal No.198/2003). State thr. ANF Peshawar …Appellant(s) VERSUS Olufemi …Respondent(s) For the Appellant(s) : Mr.Muhammad Tariq Khan, ASC For the Respondent(s) : N.R. Date of Hearing : 29.04.2019 Judgment Olufemi, a Nigerian national, respondent herein was surprised by contingent of Anti Narcotics Force, Haripur; he was found with 25 kilograms of heroine and sent to face trial before a learned Judge, Special Court (CNS), Peshawar, camp at Abbottabad; returned a guilty verdict; he was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life along side to the tune of rupees one million or five year S.I. in default thereof with benefit under Section 382-B of the Code of Criminal Procedure the learned Peshawar High Court vide impugned judgment dated 17.6.2004, however proceeded to acquit him from the charge primarily on the ground that, contraband allegedly recovered was destroyed in violation of procedure provided under Section 516 A of the Code ibid, vires whereof are being disputed with considerable vehemence on the ground that destruction of the contraband under magisterial supervision ruled out possibility of any foul play and thus strict non-compliance with the suggested procedure would not vitiate respondent’s culpability, otherwise firmly established Criminal Appeal No.16-P/2013 2 through massive evidence, it is concluded by the learned standing counsel. We would abstain to examine the vires of arguments raised before us in absence of the respondent, a Nigerian national, reported to have left Pakistan as in his absence the exercise would be merely an academic discussion without consequential impact; for yet another reason we find it inexpedient to interfere with the impugned judgment as in the event of reversal of the impugned view, a cumbersome procedure of respondent’s extradition would be a process far from convenient. Much water has flown under the bridge; the contraband has since been destroyed with respondent no longer within the Realm. Appeal is dismissed. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

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 Cr. Appeal No.160-L/2017 & Cr. Petition 641-L/2016 (Against the judgment dated 28.9.2015 of the Lahore High Court, Lahore passed in Criminal Appeal No.1084/2013 and CSR No.16-T/2013) Muhammad Sharif and another (in Criminal Appeal No.160-L/2017) Ahmed Abbas Khan (in Criminal Petition No.641-L/2016) … Appellant/Petitioner(s) VERSUS The State and another (in Criminal Appeal No.160-L/2017) The State and another (in Criminal Petition No.641-L/2016) …Respondent(s) For the Appellant(s): Malik Ejaz Hussain Gorchha, ASC (in Criminal Appeal No.160-L/2017) For the Petitioner (s): Malik Matee Ullah, ASC (in Criminal Petition No.641-L/2016) For the State : Ch. Muhammad Mustafa, DPG Date of Hearing: 1.7.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- The appellants alongside co-accused, armed with Kalashnikovs, confronted a contingent of Police Station Kalabagh District Mianwali, set out to arrest accused in a case of homicide, hiding themselves in an Afghan Refugee Camp on 11.4.2012; the camp was encircled at 11:45 a.m. when the appellants and co-accused opened fire, in consequence whereof, Ahmed Nawaz/C came in the line of fire; he was fatally shot and his official SMG was snatched by the accused; Muhammad Iqbal, appellant sustained injuries during the indiscriminate firing. Besides the appellants, Hazrat Gul, Ghulam Sarwar and Izat Ullah alongside three unknown were arrayed in the crime report; Hazrat Gul was extended benefit of doubt by the trial Court Cr. Appeal No.160-L/2017 & Cr. Petition 641-L/2016 - 2- whereas Ghulam Sarwar and Izat Ullah stayed away from law. Prosecution is clueless about the unknown till date. Spot inspection includes seizure of blood and 17 casings of Kalashnikovs; Muhammad Iqbal, appellant, subdued in injured condition, was shifted to the hospital whereas Muhammad Sharif and Hazrat Gul were arrested on 22.4.2012; upon disclosure, Muhammad Sharif led to the recovery of Kalashnikov, P-9, as well as snatched SMG, P-8; Hazrat Gul got recovered Kalashnikov, P-11. The appellants were returned a guilty verdict on different counts with penalty of death by an Anti Terrorism Court at Sargodha vide judgment dated 13.8.2013; their appeal was dismissed in the High Court; maintaining Muhammad Sharif's sentence, however, death penalty awarded to Muhammad Iqbal was altered into imprisonment for life vide impugned judgment dated 28.9.2015 vires whereof are being assailed through leave of the Court; complainant seeks enhancement of sentence; both the issues, with a common thread, are being decided through this single judgment. 2. Hot pursuit by the police contingent for the arrest of accused in a case of homicide is a circumstance antedated in point of time, therefore, beyond doubt; pursuant to information, police officials came face-to-face with the appellants. It was during the search that one of the members of the police party, though clad in civvies, was fatally shot; receipt of injuries by Muhammad Iqbal appellant, his arrest at the spot and admission in the hospital, under a police docket, are also circumstances hard to deny. In this backdrop, presence of police officials, for a purpose mandated by law, at the crime scene, stands fully established. Subsequent recoveries squarely corroborate the ocular account. Examined in the above framework, the witnesses furnished accounts, confidence inspiring by all means, for being intrinsically sound in the face of inconsequential cross-examination, by and large, based upon denied suggestions. Acquittal of Hazrat Gul, seemingly out of abundant caution, does not adversely reflect upon the case qua the appellants; he is assigned a general role and a positive forensic report based upon empties, dispatched Cr. Appeal No.160-L/2017 & Cr. Petition 641-L/2016 - 3- subsequent to arrest, would not qualify to the required standard of proof so as to view his presence in the community of intention beyond reasonable doubt; the appellants assigned effective roles qua the deceased are placed in a vastly different position; they have been rightly convicted, however insofar as quantum of sentence to be exacted from Muhammad Sharif appellant is concerned, he is identically placed; as the casings found wedded with gun P/9 were also dispatched subsequent to his arrest, a factor received by the High Court as a mitigating circumstance qua Muhammad Iqbal, appellant, the same goes squarely for Muhammad Sharif. Consequently, penalty of death awarded to Muhammad Sharif is also altered into imprisonment for life; remainder of convictions as well as sentences consequent thereupon are kept intact; sentences shall run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898. Resultantly, Criminal Appeal is dismissed. As a natural corollary, Criminal Petition is also dismissed. JUDGE JUDGE Lahore, the 1st July, 2019 Not approved for reporting Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Faisal Arab Mr. Justice Yahya Afridi Criminal Appeals No. 160, 161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018, Criminal Petition No. 27-Q of 2011 and Criminal Miscellaneous Application No. 554 of 2018 in Criminal Appeals No. 161 to 164 of 2010 (Against the judgment dated 02.03.2010, 01.06.2011, 11.09.2017 & 232.01.2013 passed by the High Court of Balochistan, Quetta in Criminal Ehtesab Appeals No. 01 of 2013, 04 of 2006, 04 of 2007, 08 of 2012 and 07 of 2009, Civil Petitions No. 536 of 2006, 201 of 2008 and Contempt Application No. 11 of 2010 in Criminal Ehtesab Appeal No. 07 of 2009) The State (in Cr. As. 160, 161, 162, 163 and 164 of 2010) Qazi Siraj Ahmed (in Cr. A. 235 of 2014) Chairman National Accountability Bureau through Prosecutor-General Accountability, Islamabad (in Cr. A. 38 of 2018) Muhammad Kaleem Bhatti (in Cr. P. 27-Q of 2011) …Appellants/Petitioner versus Muhammad Kaleem Bhatti (in Cr. A. 160 of 2010) Nisar Ahmed, etc. (in Cr. A. 161 of 2010) Mst. Ambreen, etc. (in Cr. A. 162 of 2010) Abdul Mateen (in Cr. A. 163 of 2010) Sher Ali (in Cr. A. 164 of 2010) The State, etc. (in Cr. A. 235 of 2014) Farooq Chaudrhy, etc. (in Cr. A. 38 of 2018) Rooman Zaheer, etc. (in Cr. P. 27-Q of 2010) …Respondents For the appellants: Mr. Haider Ali, Special Prosecutor- General, Accountability (in Cr. A. 160, 161, 162, 163 and 164 of 2010) Mr. Imran-ul-Haq, Special Prosecutor-General, Accountability (in Cr. A. 38 of 2018) Mr. Hadi Shakeel Ahmed, Sr. ASC (in Cr. A. 235 of 2014) Criminal Appeals No. 160, 161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018, Criminal Petition No. 27-Q of 2011 2 For the petitioner/applicant: In person. (in Cr. P. 27-Q of 2011 and Cr.M.A.554 of 2018) For the respondents: Mr. Haider Ali, Special Prosecutor- General, Accountability (in Cr. P. 27-Q of 2011 and Cr.M.A.554 of 2018) Ashfaq Ahmed son of Nisar Ahmed in person (in Cr. A. 161 of 2010) Mr. Jehanzeb Khan Jadoon, ASC (in Cr. A. 162 & 164 of 2010) Nemo. (Cr. As. 163 of 2010 & 38 of 2010) Date of hearing: 02.07.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: Criminal Miscellaneous Application No. 554 of 2018 in Criminal Appeals No. 161 to 164 of 2010 Through this miscellaneous application the applicant wanted an opportunity to be heard in the subject appeals and we have heard him in person at some length. This miscellaneous application is, therefore, disposed of. Criminal Appeals No. 160, 161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018 and Criminal Petition No. 27-Q of 2011 2. These appeals and petition pertain to different References filed by the National Accountability Bureau against different persons and in such cases the trial court had convicted and sentenced the relevant accused persons and had passed an order regarding a term of imprisonment to be served by the convicts and a fine was also imposed. It was also ordered by the trial court that “the assets/properties of accused are forfeited as set off against the amount of fine, however, in case of non-recovery/non-payment of the amount/fine accused shall undergo further term of two (2) Criminal Appeals No. 160, 161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018, Criminal Petition No. 27-Q of 2011 3 years R.I.” The said convictions and sentences of the convicts were subsequently upheld by the High Court and even by this Court with slight reduction in the sentence of imprisonment. This Court had clearly and expressly upheld the above quoted portion of the order passed by the trial court regarding payment of fine, forfeiture of assets and properties and the sentence of imprisonment in default of payment of fine. Subsequently an issue arose as to whether after the convicts had undergone the sentence of imprisonment in default of payment of fine the National Accountability Bureau could proceed with forfeiture of the relevant assets and properties as a set off for fine or not and it was maintained by the convicts that after serving out the sentence of imprisonment in default of payment of fine neither the amount of fine could be recovered nor the assets or properties could be forfeited. The High Court had held through the impugned judgments passed by it that the stand of the convicts was correct and after serving out the sentence of imprisonment in default of payment of fine the amount of fine could not be recovered nor could the assets and properties be forfeited. The High Court was also of the opinion that ordering otherwise would amount to double jeopardy. Hence, the present appeals and petition before this Court. 3. We have heard the learned counsel as well as the parties appearing in person and have perused the record of the case with their assistance. 4. It appears that the judgment rendered by this Court in the case of Ahmad Ali Siddiqui v Sargodha Central Cooperative Bank Limited and another (1989 SCMR 824) was not brought to the notice of the High Court at the time of passage of the impugned judgments. It had been held by this Court in that case in very clear and categorical terms that a sentence of imprisonment in default of payment of fine is not a substitute for payment of fine but as a matter of fact the said sentence of imprisonment is a punishment for non-payment of fine. It had also been made clear by this Court Criminal Appeals No. 160, 161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018, Criminal Petition No. 27-Q of 2011 4 in that case that even if such sentence of imprisonment in default of payment of fine is undergone by a convict the amount of fine is still to be recovered from him. In this view of the matter we have entertained no manner of doubt that the High Court had misdirected itself upon the law as declared by this Court in the above mentioned case of Ahmad Ali Siddiqui. 5. In some of the present cases an issue had also arisen as to whether by virtue of the provisions of section 70, PPC the amount of fine imposed upon a convict can be recovered after a period of six years after passage of the sentence or fine or not. We note that in section 33-E of the National Accountability Ordinance, 1999 it has categorically been provided that a fine imposed upon a convict is to be recovered by way of arrears of land revenue and the said provision is not controlled by or subject to the provisions of section 70, PPC. It appears that in the relevant present cases the High Court had again misdirected itself upon the law and had relied upon the provisions of section 70, PPC without appreciating that the provisions of the National Accountability Ordinance, 1999 were to prevail in the matter as that was the special law catering for the situation at hand. 6. In one of the present cases, i.e. Criminal Petition No. 27-Q of 2011 a petition seeking initiation of contempt proceedings against the relevant respondents had been dismissed by the High Court. If the High Court had felt satisfied that no occasion had arisen for proceeding against the respondents for committing contempt of court then there is hardly any occasion for us to interfere with such exercise of jurisdiction and discretion in the matter by the High Court. 7. For what has been discussed above Criminal Appeals No. 160, 161, 162, 163 and 164 of 2010 and Criminal Appeal No. 38 of 2018 are allowed, the impugned judgments passed by the High Court are set aside and it is clarified that by undergoing a sentence of imprisonment in default of payment of fine a convict is not Criminal Appeals No. 160, 161, 162, 163, 164 of 2010, 235 of 2014, 38 of 2018, Criminal Petition No. 27-Q of 2011 5 absolved of his liability to pay fine and the amount of fine can still be recovered from him despite undergoing the sentence of imprisonment in default of payment of fine because a sentence of imprisonment in default of payment of fine is only a punishment for non-payment of fine and is not a substitute for the sentence of fine. Criminal Appeal No. 235 of 2014 is dismissed. It is also clarified that in the matter of recovery of fine in cases under the National Accountability Ordinance, 1999 the relevant provisions are those of section 33-E of the National Accountability Ordinance, 1999 and not those of section 70, PPC. Criminal Petition No. 27-Q of 2011 is dismissed. It is further clarified in the context of the present cases that if the convicts pay the requisite fine then their assets and properties shall not be forfeited as a set off for fine. Criminal Miscellaneous Applications No. 23-Q of 2010, 327 of 2010, 632 of 2018, 25-Q of 2010, 27-Q of 2010, 29-Q of 2010 and 31-Q of 2010 8. As the main appeals and petition have been disposed of by this Court today, therefore, these miscellaneous applications have lost their relevance. Disposed of. Chief Justice Judge Judge Islamabad 02.07.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Shakirullah Jan Mr. Justice Nasir-ul-Mulk Mr. Justice Mian Saqib Nisar Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 (On appeal from the judgment dated 3.3.2005, passed by Lahore High Court, Multan Bench in Cr.A. No.60, 61, 65, 66, 67, 60, 61, 62, 63, 60/2002 respectively) The State (in Crl.As.No.163 to166/05) Mukhtar Mai (in Crl.As.No.167 to170/05) Abdul Khaliq (in Crl.A.No.171/05) Mst. Mukhtar Mai (in S.M.Case No.5/2005) Appellant (s) Versus Abdul Khaliq and others (in Crl.As.No.163 to170/05) The State (in Crl.A.No.171/05) Respondent (s) * * * * * For the State (appellant): Ch. Zubair Ahmed Farooq, Addl.P.G. Pb. (in Cr.As.163 to 166/2005) Mr. Ahmed Raza Gillani, Addl. P.G. Pb. For the Respondent (s): Malik Muhammad Saleem, ASC. (in Cr.As.163 to 166/2005) Mr. Faiz-ur-Rehman, AOR For the Complainant (appellant): Mr. Aitzaz Ahsan, Sr. ASC (in Cr.As.167 to 170/2005) Mr. Gohar Ali Khan, ASC For the Respondent (s): Malik Muhammad Saleem, ASC (in Cr.As.167 to 170/2005) Mr. Faiz-ur-Rehman, AOR For the State: Ch. Zubair Ahmed Farooq, Addl.P.G. Pb. (in Cr.As.167 to 170/2005) Mr. Ahmed Raza Gillani, Addl. P.G. Pb. For the Accused (Abdul Khaliq): Malik Muhammad Saleem, ASC (in Cr.A.171/2005) Mr. Faiz-ur-Rehman, AOR For the State (respondent): Ch. Zubair Ahmed Farooq, Addl.P.G. Pb. (in Cr.A.171/2005) Mr. Ahmed Raza Gillani, Addl. P.G. Pb. For the Petitioner (Mukhtar Mai): In person (in S.M. Case 5/2005) Date of Hearing: 30/11, 01/12, 02/12, 07 to 09/12, 14/12 of 2010, 03 to 06/01, 10 to 12/01, 17/01 to 20/01 & 25 to 27/01 of 2011. Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 2 J U D G M E N T Mian Saqib Nisar, J.- In all, these are ten matters arising out of the impugned judgment of the Lahore High Court dated 03.03.2005; eight are the appeals (four each) against the acquittal of the accused having been initiated by the complainant and the State; one appeal has been filed by the convict and the last is the suo moto action espoused by this Court. 2. These matters have genesis in a criminal case, which has emanated from an FIR (Ex.P1) dated 30.6.2002, got registered by Mst. Mukhtar Mai, the complainant, with the Police Station Jatoi, District Muzzafargarh initially under Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (the Ordinance) read with Section 109 PPC, but thereafter offences under Section 19 of the Ordinance, Sections 354-A, 217, 119 & 342 PPC and Section 7 of Anti Terrorism Act, 1997 were also added thereto. It was reported by the complainant that on 22.6.2002, due to suspicion that her brother, Abdul Shakoor, has illicit relations with Mst. Naseem alias Salma, the girl, of Mastoi Baradari (accused party); the boy was confined by them in their house; in order to resolve the issue an ‘Akhat’ ‘Panchayat’ was held the same day, in which Faiz Mastoi, Ramzan Pachar and Ghulam Fareed (all accused) acted as the Arbitrators (Salis) for the Mastois, while Maulvi Abdul Razzak (PW-11) and Manzoor Hussain (not produced) were the arbitrators (Salis) for the complainant, besides Altaf Hussain (PW-12) and Ghulam Nabi (not produced) were also present. It was decided by the ‘Panchayat’ that by exchange marriages of the complainant with Abdul Khaliq, the accused (brother of Salma) and Abdul Shakoor with Salma the dispute be settled, but Ramzan Pachar and Ghulam Fareed did Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 3 not agree to this arrangement, therefore, the arbitrators for the complainant left the Panchayat. However, subsequently on the promise of the accused party, that if Mst. Mukhtar Mai came to the ‘Panchayat’ and sought forgiveness for her brother, he shall be pardoned according to Baloch customs and the issue stand resolved, Mst. Mukhtar Mai went to the ‘Panchayat’, ‘Akhat’ of the Mastois, which was outside the house of Abdul Khaliq (accused), but instead of upholding their word as promised, he caught hold of her when Faiz Mastoi said that Fareed (the father of complainant) be forgiven, but Abdul Khaliq, his brother Allah Ditta, Fayyaz, Ghulam Fareed S/o Mahmood, all dragged her into the room of Khaliq’s house, where zina- bil-jabbar was committed with her by all of them. After one hour she was turned out of the room in a nude condition, with a torn shirt on her body, Fayyaz threw her shalwar and duppta towards her. It is specifically mentioned that due to fear/threats of the accused party and moral onslaught and retribution of the public, the case could not be initiated earlier. Mst. Mukhtar Mai at the time of the initiation of complaint was accompanied by her father Ghulam Fareed; Maulvi Abdul Razzak (PW-11), Altaf Hussain (PW- 12), Sabir Hussain (PW-13), her maternal uncle, and one Ghulam Nabi (not produced), all of them were said to have either seen the occurrence or participated in the proceeding, or were present at the time of ‘Panchayat’. 3. Before proceeding further, it may be pertinent to signify, that being a blatant, heinous and untoward incident it attracted the media, both electronic and the print, and on account of an atrocious, pernicious and shameful act, it generated both grief and rage in the public at large. The higher-ups of the Government including some Ministers at the Federal and Provincial levels condemned the deplorable act; they, as well as, the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 4 Governor of Punjab visited the complainant to pacify her with promises and avowing that justice shall be provided to her forthwith. The Governor also announced some fiscal compensation for the aggrieved victim. The incident also drew the attention of the Apex Court and accordingly, a suo moto action was initiated, in which the progress of the investigation was monitored and directions were given for the submission of challan within a specific period. The Anti Terrorism Court was also directed to decide the matter within a time frame, by even proceeding on day-to-day basis. 4. On account of the investigation, in all 14 persons were indicted in the matter; they were arrested and challaned by the police and charged by the Anti Terrorism Court (the Court) with the offences under Sections 19 (4), 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with Section 149 PPC and under Section 354-A read with Section 109 PPC and under Sections 10 and 7 (c) of the Anti-Terrorism Act, 1997. During the course of trial, the prosecution examined 17 witnesses out of which the rather important ones are: Maulvi Abdul Razzak (PW-11) who stated to be one of the arbitrators for the complainant party, but left the Panchayat when Ramzan and Fareed declined the proposal of exchange marriages; Altaf Hussain (PW-12) the brother of PW-11, who states to be present during the ‘Panchayat’ confabulations and is also the witness of the alleged occurrence; Sabir Hussain (PW-13) who has also deposed in similar vein; Abdul Shakoor (PW-10), in whose context the issue triggered off; he denied of having any illicit relations with Salma, rather claimed that, in fact, he was sodomized by Manzoor, Jamil and Punno (the later is the brother of Salma). It is alleged that the said culprits after fulfilling their lust asked him not to disclose the incident to anyone, but on his refusal, he was locked up with Salma and with Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 5 an object to cover up their misdeed, a false allegory of an illicit relationship was concocted. PW-2, Dr. Shahida Safdar examined Mst. Mukhtar Mai and proved a positive report of sexual intercourse with her as Ex.P-E. PW-7 is the Magistrate, who recorded the statements of the prosecution witnesses under Section 164 Cr.P.C. and proved those as, Ghulam Fareed (Ex.P-L), Ghulam Nabi (Ex.P-M), Abdul Razzak (Ex.P-N) and Sabir Hussain (Ex.P-O). Six persons including the councilors of the area were examined as the court witnesses; while the Defence also produced six witnesses to support its version. 5. On the conclusion of the trial vide judgment dated 31.8.2002 eight out of the fourteen accused (originally) namely Aslam, Allah Ditta (S/o Jan Muhammad), Khalil Ahmed, Ghulam Hussain, Hazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were acquitted by the Court, while all others were found guilty of the following offences and sentenced as under:- “Taking into consideration all the aforesaid facts and the circumstances of the case, I find that Abdul Khaliq, Allah Ditta sons of Imam Bakhsh, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar, Faiz Muhammad alias Faiza (accused of column No.3 of the challan) along with others, in prosecution of their common design, convened Panchayat, mostly of their Mastoi Baluch tribe of the area, on 22.6.2002 in Mauza Meerwala P.S. Jatoi and coerced, intimidated, overawed the complainant party, and the community; created a sense of fear and insecurity in society; and thereby committed the offences u/s 11, 10(4) of Ordinance VII of 1979 read with Section 149/109 PPC and 21-I ATA 1997, and Section 6(1) (a) & (b) and sub-section 2(b) ATA 1997, punishable u/s 7(c) read with 21-I ATA 1997 and Section 149/109 PPC; and are, therefore, convicted under all the aforesaid provisions of the law. Actions of the aforesaid convicts were cruel which overawed and harassed the society at large and therefore, they are not entitled to any leniency. U/s 7(c) read with 21-I ATA 1997 and 149/109 PPC each of the six accused persons, namely Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar and Faiz Muhammad alias Faiza accused are sentenced to imprisonment for life, plus fine Rs.20,000/-, and in default to further undergo six months R.I. Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 6 Under Section 11 Ordinance VII of 1979 read with 149 PPC, each of the four accused namely Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz convicts are sentenced to undergo imprisonment for life, plus thirty stripes each and fine Rs.20,000/- each, and in default to further undergo six months R.I each Under Section 10(4) Ord. VII 1979 (liable to Taazir) read with 149 PPC, each one of them is sentenced to death, subject to confirmation by the Hon’ble High Court. Under Section 11 Ordinance VII 1979 read with section 21-I and section 109/149 PPC, Ramzan Pachar and Faiz Muhammad alias Faiza (convicts) are sentenced to undergo imprisonment for life, plus thirty stripes, and fine Rs.20,000/- and in default to further undergo six months R.I. Under Section 10(4) Ordinance VII 1979 read with section 21-I ATA 1997 and section 109/149 PPC, Muhammad Ramzan Pachar and Faiz Muhammad alias Faiza (both accused) are sentenced to death, (subject to confirmation by the Hon’ble Lahore High Court. However, all the accused were acquitted of the charge under Section 354-A P.P.C. 6. Aggrieved, the complainant/State filed appeals against the acquittals, while the judgment was, accordingly, challenged by the convicts, before the Lahore High Court. On hearing, the acquittal appeals were dismissed and by accepting the appeals of all others in toto, they were exonerated from all the charges, except Abdul Khaliq, whose appeal was partly allowed, in that his conviction was converted from Section 10 (4) of the Ordinance to Section 10 (3) thereof and his capital punishment was reduced to imprisonment for life, while the fine imposed by the Trial Court was maintained. The benefit of Section 382-B Cr.P.C. was also extended to him. It seems significant to mention here, that while rendering its decision, the following (main) reasons/factors have prevailed with the Court: that the version of the prosecution is not proved beyond doubt, as its evidence is not confidence inspiring, thus, the benefit must go to the accused; delay in the lodging of the FIR has not been sufficiently and plausibly explained, the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 7 complainant party was reluctant to initiate the case, but influence in this behalf was exerted by Maulvi Abdul Razzak (PW-11), who is the mastermind thereof; the FIR was registered after due consultations and deliberations; sole testimony of the prosecutrix to prove the occurrence, no one else had seen it and hence is insufficient to establish the guilt of the accused; the DNA and SEMEN tests were not conducted to prove the gang rape; there are contradictions and inconsistencies in the statements of the witnesses inter se and also with their previous statements; there are improvements in their statements made before the Court; the occurrence has not taken place in the manner as is stated by the PWs; there are no significant marks or injuries on the body of the prosecutrix, which is very unusual in such kind of a case; no duration of the heeled marks on the body of the victim has been given by PW-2, thus, it is not possible to ascertain, if those were sustained during the occurrence; adverse inferences have been drawn for the non-production of Ghulam Nabi and Ghulam Fareed in the witness box as they, in their statements under Section 164 Cr.P.C. recorded by the Magistrate, have not fully supported the version of the prosecution, the former’s stance that on the given date/day he was not in the village and thus not a witness to the incident and/or modus operandi of the offence. The learned High Court has also considered the prosecution evidence regarding each of the accused, the individual role imputed to them and has found that the prosecution has failed to prove its case to their extent, except Abdul Khaliq for which reasons have been duly assigned in the impugned judgment. 7. This is how, the noted appeals have reached this Court, besides vide order dated 14.3.2005 this Court took suo moto cognizance of the matter, because soon after the impugned judgment, a learned Single Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 8 Member of the Federal Shariat Court, while exercising the suo moto jurisdiction suspended the impugned judgment, thus it was inevitable for the Court to interfere in order to avoid a ludicrous situation from arising and to prevent a conflict between two constitutional institutions of the State. 8. Anyhow, the leave, in these matters, was granted on 28.6.2005 and the important points in this behalf are: the jurisdiction of the Anti- Terrorism Court to try the case; effect of delay in lodging the FIR; whether the sole testimony of the victim in rape case is sufficient for the purpose of conviction; whether the marks of injuries on the body of the victim are superfluous to secure conviction; whether the High Court has passed the judgment on surmises and conjectures in violation of/or ignoring the mandate of law; with reference to the above, some case law has also been cited in the LGO. Simultaneously, this Court was also pleased to suspend the impugned judgment and non-bailable warrants of arrest were issued of all the accused who were acquitted, even those by the trial Court; since then they are all behind the bars (emphasis supplied). 9. Ch. Aitzaz Ahsan, learned Sr. ASC, has opened arguments in these cases and has divided his submissions into two main heads: THE LAW and THE EVIDENCE. Under the first, he has dilated upon the point of jurisdiction and it is submitted that rape is a grievous bodily harm and injury to a person, thus the offence is duly covered by Section 6(1) (a & b) read with Sections 6 (2) (b) and 7 (c) of the Anti Terrorism Act, 1997 (the Act). To elucidate the above, the learned counsel has cited the dictums reported as Bhupinder Sharma vs. Himachal Pradesh (AIR 2003 SC 4684), Hyam vs. DPP, HL [1974] 2 All ER 73, R vs. Miller [1954] 2 All ER 529 and R vs. Robinson [1993] 1 WLR 168. He has also relied upon the judgment Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 9 reported as Shakil and 5 others vs. The State (PLD 2010 SC 47) to argue, that in a gang rape case the conviction awarded by the Anti Terrorism Court was upheld by this Court, primarily on the reasoning that no prejudice was caused to either side and none (in that case) had objected to the jurisdiction at any stage of the proceeding. The case, according to the learned counsel, is apt for settling the jurisdictional question and should be followed in this matter. In order to show, that the incident (gang rape) created terror in the area, thus attracting the provision of the Act, on account of which the residents thereof even thought of migration, he has referred to the statements of the court witnesses. 10. Malik Muhammad Saleem, the learned counsel for the defence has not joined issue with Ch. Aitzaz Ahsan, learned Sr. ASC on jurisdiction, rather has supported him by adding certain facts; that vide order dated 24.7.2002, the trial Court before commencing the proceeding decided that it has the jurisdiction, none assailed it; the Supreme Court also, as mentioned above, in the first suo moto action required the challan to be submitted before the Anti-Terrorism Court, and set out a time frame for the decision of the case by that Court. Be that as it may, during the hearing of the case, learned Attorney General was personally summoned and was put to notice on the issue, but the Deputy Attorney General who from time to time has been attending the proceeding(s), has not controverted the jurisdictional aspect. The State counsel has also not questioned it. 11. In view of the above, we find that the issue of jurisdiction in these matters has lost efficacy; it emerged on account of the specific situation (indicated above) which has ceased; no one at the relevant time raised any objection thereto; all the concerned are in agreement that the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 10 Anti-Terrorism Court had the jurisdiction; appeals before the learned High Court were, accordingly, filed by both the sides and decided without there being any such objection; more than eight years have elapsed since the incident took place and those who have been acquitted, obviously have acquired a right of defending their acquittal and the one who is convicted seeks his acquittal and the State and the complainant are pressing to set aside the acquittal(s) and are urging to maintain the conviction of Khaliq. It is not established if any prejudice has been caused to the parties in any manner whatsoever and therefore now, if at this stage any interference on the basis of jurisdiction is made, justice, rather than being promoted shall stand defeated, and serious prejudice shall be caused to either side. Therefore, keeping in view the peculiar circumstances of the case and by following the ratio of the judgment reported as Shakil and 5 others (supra), we would not like to hold against the jurisdiction of the Anti-Terrorism Court and leave it an open question to be decided in some appropriate case, in which it is a live issue. 12. Adverting to the other submissions of Ch. Aitzaz Ahsan, Sr. ASC/the learned counsel, under the first head (The Law), he has argued that the impugned judgment is against the law and it cannot sustain; in this respect, he urged that previous statements of the PWs have been invalidly and illegally used by the learned High Court for impeaching their credibility, in particular, when the PWs had denied the making of certain statements, in the fact finding inquiry, conducted by the SP Crimes Range as per orders of the Government. Thus, without proving the statements in accordance with law, those could not be used for the purpose of confronting PWs in their cross examination. Besides, those were allegedly signed by the PWs, this is Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 11 prohibited by Section 162 Cr.P.C and therefore these statements were illegal and could not be used in terms of Article 140 of the Qanun-e-Shahadat Order, 1984 (QSO, 1984). In this context, the learned counsel has also submitted that Section 161 Cr.P.C. and Article 140 of the QSO, 1984 are governed by Section 162 Cr.P.C which prohibits the signing of these statements. Likewise, serious criticism has been made that the learned High Court has used and relied upon the statements under Section 164 Cr.P.C. of those persons, who were not produced by the prosecution in evidence; in this respect, it is stated that such statements are not substantive piece of evidence and have a limited use of confronting a PW, who appears in the Court and for no other purpose whatsoever, reliance is placed on 1969 P.Cr.LJ 1580: Yaru alias Yar Muhammad vs. The State, 1995 MLD 515: Nasrullah vs. The State,1985 P.Cr.LJ 428: Amjad Ali alias Kaloo vs. The State , 1984 SCMR 979: Nadir Khan and another vs. The State, 1974 P.Cr.LJ 224: Salehon vs. The State, AIR (33) 1946 PC 38: Brij Bhushan Singh vs. Emperor; it is stated that holding the sole testimony of the prosecutrix insufficient to award conviction is against the law laid down in judgments reported as NLR 1991 SD 458: Mst. Nasreen vs. Fayyaz Khan and State, PLD 2003 SC 863: Muhammad Abbas vs. The State, 2002 SCMR 303: Rana Shahbaz Ahmad vs. The State, 1992 P.Cr.LJ 1944: Muhammad Amir Khan vs. The State, 2001 P.Cr.LJ 503(FSC): Saleem Khan and others vs. The State and others, NLR 1994 SD 242 (FSC): Muhammad Boota vs. The State, 1993 P.Cr. LJ 1839 (FSC): Muhammad Boota vs. The State. He has further argued that the victim in rape cases does not require corroboration and has drawn support from PLD 1989 SC 742: Muhammad Akram vs. The State, 2002 SCMR 1009: Shahzad alias Shaddu and others vs. The State, 1999 Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 12 SCMR 1102 Mehbood Ahmad vs. The State, 1975 SCMR 69: Haji Ahmad vs. The State, PLD 1984 SC 218 (SAB): Ghulam Sarwar vs. The State. Reference in the above context is also made to the cases from the Indian jurisdiction: (1995) 5 SCC 518: Karnel Singh vs. M.P, AIR 1996 SC 1393:State of Punjab vs. Gurmit Singh , AIR 2003 SC 4684: Bhupinder Sharma vs. Himachel Pardesh, AIR 1988 SC 753: Bharwada Bhogiawal vs. Gujerat; the view of the Court that DNA etc. tests were not conducted due to any weakness of the prosecution case and the omission/lapse should effect the veracity of the prosecutrix is conjectural and is against the law declared by the superior Courts, even otherwise due to the lapse on part of the investigator, the prosecutrix should not suffer, besides, such omission is not fatal to the case of the prosecution, see 2002 SCMR 1009: Shahzad vs. The State ; he submits along similar lines vis-à-vis the view of the Court qua the absence of marks of violence or the inquiries on the body of the victim; learned counsel has referred to cases 1999 SCMR 1102: Mehboob Ahmed vs. The State, 1975 SCMR 69: Haji Ahmed vs. The State, PLD 1984 SC 218 (SAB): Ghulam Sarwar vs. The State; the learned counsel has further pointed out that in this case while making statements under Section 342 Cr.P.C., the accused have not propounded their defence, rather in this behalf have solely relied upon their cross examination; however, in the cross examination vital suggestions have been given through which the case of the prosecution in material aspect has been admitted. In this context, Ch. Aitzaz Ahsan, Sr. ASC has made reference to certain portions of the cross- examination, such as about sodomy with Abdul Shakoor, he mentioned that PW-14 stated “Incorrect to suggest that Abdul Khaliq accused stated that as his brother Punno had been accused of committing Sodomy with Abdul Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 13 Shakoor, therefore, he could not give Salma in marriage to Abdul Shakoor”…………. Like-wise PW-11 while replying a suggestion, “it is false to suggest that in BADLA of Mst. Mukhtar Mai, Salma was proposed to be taken and for sodomy another woman plus land was demanded by the complainant”…………. Again PW-14 responded “incorrect to suggest that upto 26.6.2002, Abdul Razzaq PW and my father tried to compound the matter in terms of their demands or for the same reasons the sodomy case was also not got registered”. On his contention that the incident of Zina with the prosecutrix and her nudity incident is also admitted, reference has been made by the learned counsel to the suggestions “I did not state to the Inspector/SP/RC on their query “whether after Zina-bil-jabr the accused persons turned me out in quite naked condition”? replied “no I had worn shirt and my private part was covered with duppta as the Azarband of my shalwar had been broked; shalwar was in my hand”……………… “incorrect that she was handed over the shalwar inside the room after the rape”…..……………. Further in response to a suggestion PW-13 stated “incorrect that as we went there, we saw Mst. Mukhtar Mai holding Shalwar in her hand”. Moreover in the cross-examination of Mst. Mukhtar Mai, the suggestions culminate into the following replies “I recorded in the complaint that I had come out of the room in nude condition”…………. “I stated to the police that after the accused person committed Zina, I came out in nude condition and called out my father Ghulam Fareed. I had not put on the shalwar as it was without string, nor I covered the same on my body, and my father had arrived just then”. According to the learned counsel, this is a confession of the fact that she did come out of the room without shalwar on her body. The suggestion is only that the accused, (who had thus admittedly taken the shalwar off her body in Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 14 the first instance) were not responsible for her venturing out naked. But this is an admission that she did come out naked. It is also pointed out that responding to a suggestion in relation to Abdul Khaliq, PW-14 replied “incorrect to suggest that he performed conjugal duties as my husband in the said night”, furthermore; “incorrect to suggest that upto 28.6.2002, Maulvi Abdul Razzak PW and my father tried to compound the matter in terms of their demands or for the same reason the sodomy case was, also not got registered”. It is explained that the suggestions, in the cross-examination have the effect of a defence plea, is an implied admission, an indirect admission and to support his point of view, reliance has been placed on the cases reported as 2010 SCMR 1009: Muhammad Shah vs. The State, 2000 YLR 1406: Khalid Pervaiz vs. The State, 2003 CLD 80:Mian Sajidur Rehman vs. Messrs Granulars (Private) limited through Manager Commercial Lahore, 2005 P.Cr.L.J.729: Ibrar Hussain vs. The State, 2004 MLD 1062: Muhammad Inayat alias Inayatoo vs. The State , 2006 SCMR 577: Muhammad Tashfeen and others vs. The State. 13. Under the caption of ‘THE EVIDENCE’ on the factual premise, it has been urged by the learned counsel that glaring and patent errors of misreading and non-reading of evidence have been committed by the learned High Court; erroneous conclusions of facts and law have been drawn; the findings of facts are based on conjectures and surmises; the view that the prosecutrix has not been corroborated, is incorrect, rather the PWs and the medical evidence has duly supported her version; the witnesses of the prosecution were credible and trustworthy, but to hold them otherwise is a serious factual error, which is apparently against the record; in this regard, special reference has been made that even according to DW-1, the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 15 prosecutrix has declined the cash compensation given to her by the Governor, rather has used that money for an educational institution established by her after the incident and it is a publicly known fact that now hundreds of girls of humble background of a backward area are receiving education due to the noble efforts of the lady; moreover her credibility is also established from the fact that she has not implicated the sodomizers of Shakoor, who in case of a false claim were the obvious targets; the convening of the Panchayat with the ‘common intention’ to take BADLA and such a decision being made therein was duly proved on the record; the conclusion that the victim was not dragged, as there are no marks or injuries on her body, is a misconception, as it is not necessary that if such marks/injuries should always occur; besides; dragging has many shades which may not even sustain any injury at all; the learned High Court has gravely and seriously erred in drawing an adverse conclusion against the prosecution for the non-examination of Ghulam Nabi and Ghulam Fareed. It is also argued that the view set out by the Court that there are discrepancies and inconsistencies in the statements of the prosecution witnesses about the nude condition of the prosecutrix, again are the result of mis-reading and non-reading because the statements in this behalf are consistent; the Court has erred to hold that PW-11, Maulvi Abdul Razzak is the mastermind and has influenced the complainant party for the registration of the case. The gentleman had no ulterior motives to falsely implicate the accused, rather as a conscientious person performed his moral duty to help the oppressed and aggrieved persons. It is also submitted that sufficient explanation was provided by the prosecution for the delay in lodging the FIR and even otherwise on account of social, religious and cultural restraints, people are Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 16 hesitant to report such incidents and some time is taken to glean and gather the courage of going public. In this connection, he has referred to the judgments reported as: 1999 SCMR 1102: Mehboob Ahmed vs. The State, NLR 1994 SD 106: Maqsood Ahmad alias Mooda vs. The State, 1999 P.Cr.LJ 699 (FSC): Muhammad Umar vs. The State, 2001 P.Cr.LJ 503: Saleem Khan vs. The State, PLD 2003 SC 863: Muhammad Abbas and others vs. The State, PLD 1991 SC 412: Mst. Nasreen vs. Fayyaz Khan and another; Moreover, in this case, the complainant side was overawed/threatened and was in the state of both shock and fear, thus it could not approach the police immediately. As regards the view of the learned High Court that Mst. Mukhtar Mai was not abducted because of the short distance of a few paces, it is argued that distance is absolutely inconsequential for such an act/offence and reference is made to the case reported as Nadeem Iqbal vs. The State (1994 MLD 1405). On the question, as to what extent the acquittal judgment can be interfered with by this Court, it is argued that such is possible, where there is a misapplication of law Barkat Ali vs. Shaukat Ali (2004 SCMR 249); misreading and non-appraisal of evidence or is speculative, artificial and arbitrary Amal Shirin vs. State (PLD 2004 SC 371); non-reading and non-appraisal of evidence Barkat Ali vs. Shaukat Ali (2004 SCMR 249); Abdul Mateen vs. Sahib Khan (PLD 2006 SC 538); the findings of acquittal recorded by the trial Court are not supported by the evidence on record and in fact are based on gross misreading and misconstruction of evidence Amal Shirin vs. State (PLD 2004 SC 371); the decision turned upon inadmissible evidence: 2006 SCMR 1550: Sana-ur-Rehman vs. Nayyar; whether there is any piece of evidence which has not been considered or the evidence brought has been discarded for Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 17 reasons which are not recognized under the law Barkat Ali vs. Shaukat Ali (2004 SCMR 249); there is an error apparent on the face of record Abdul Mateen vs. Sahib Khan (PLD 2006 SC 538); and to reappraise the evidence in its true perspective Gul Sabdar vs. Malikuddin (2007 SCMR 714). He has also made reference to the case of Muhammad Ashraf vs. Tahir (2005 SCMR 383) in which, according to him, the Apex Court comprehensively reappraised the evidence and while taking into account the ocular testimonies, the medical evidence and other factors and also considering the explanation of the delay in lodging of FIR, the acquittal judgment was reversed. It is submitted that the instant case is squarely covered by this pronouncement. 14. Towards the conclusion, Mr. Aitzaz Ahsan, Sr. ASC has argued that the prosecution has proved its case against the accused beyond reasonable doubt and upto the hilt and specific roles performed by each of the accused which are duly established on the record through credible evidence; it is a clear and square case of ‘common intention’. Anyhow, before leaving the rostrum, the learned counsel in very clear, unequivocal and unambiguous words stated that while accepting the appeals, instead of resort to the provisions of Section 10(4) of the Act, Section 10 (3) be invoked and all the accused must be sentenced thereunder. When specifically asked by the court for Abdul Khaliq, it is stated that he is not pressing for the enhancement of his sentence to death, but seeking to maintain the same. He states that though it is a gang rape case, but life imprisonments are permissible and reliance in this regard has been placed upon Shakil and five others vs. The State (PLD 2010 SC 47). Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 18 15. Malik Muhammad Saleem, Advocate appearing for all the acquitted accused and also for the convict, Abdul Khaliq (appellant in Crl.A.No.171/2005), has forcefully submitted that the High Court was justified in relying upon the statements of the prosecution witnesses recorded in the fact finding enquiry by the S.P Range Crimes, as those for all intents and purposes are the previous statements of such witnesses and, therefore, could validly be used for confronting them in their cross-examinations in terms of Article 140 of QSO, 1984. It is further argued that such statements were also relevant under Article 153(3) for impeaching the credibility of the prosecution witnesses. He has submitted that these are not the statements under Section 161 Cr.P.C. to be read subject to Section 162 Cr.P.C. and, therefore, for the reason that these have been signed by the witnesses, should not be a bar for using them independently for the object of confrontation and for impeaching the credibility as aforesaid. Learned counsel for the respondents/accused has vehemently defended the judgment of the trial court regarding the acquittal of the eight accused, which decision has been affirmed by the High Court. While supporting the impugned judgment of the High Court regarding acquittal of the accused, he has argued that the conclusions of facts drawn by the Court are based upon proper reading and appraisal of the evidence and it is not a case of surmises and conjectures; the contradictions in the testimonies pointed out by the High Court have been reiterated by the learned counsel to assert that on account of such weaknesses in the ocular deposition of the PWs, their evidence/testimonies cannot be believed. He however has argued that on the basis of such quality of evidence produced and the conclusions drawn by the High Court, the case of Abdul Khaliq accused was at par with the others and Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 19 thus he too was/is entitled to the acquittal. The learned counsel has forcefully argued that the parameters and the rules for interference in acquittal decisions are altogether different from those pertaining to appeals against conviction. In this respect, the learned counsel has relied upon Syed Saeed Muhammad Shah and another vs. The State (1993 SCMR 550) and Ghulam Sikandar and another vs. Mamaraz Khan and others (PLD 1985 SC 11). 16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Court about the rules which should be followed in such cases; the dicta are:- Bashir Ahmad vs. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan vs. Mir shah Jehan and another (2005 P Cr. L J 352), Imtiaz Asad vs. Zain-ul-Abidin and another (2005 P Cr. L J 393), Rashid Ahmed vs. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali vs. Shaukat Ali and others (2004 SCMR 249) , Mulazim Hussain vs. the State and another (2010 P Cr. L J 926), Muhammad Tasweer vs. Hafiz Zulkarnain and 2 others (PLJ 2009 SC 164), Farhat Azeem vs. Asmat ullah and 6 others Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 20 (2008 SCMR 1285), Rehmat Shah and 2 others vs. Amir Gul and 3 others (1995 SCMR 139), The State vs. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another vs. Dr. Nazir Ahmed and another (2003 P Cr. L J 1935), Muhammad Aslam vs Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another vs. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem vs Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others vs. The State and others (2005 SCMR 1175), Muhammad Zafar Iqbal vs. Assistant Chief Ordnance and others (1994 SCMR 2311), Rahimullah Jan vs. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan vs. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad vs. Muhammad Ramzan and another (1995 SCMR 855), The State vs. Abdul Ghaffar (1996 SCMR 678) & Mst. Saira Bibi vs. Muhammad Asif and others (2009 SCMR 946). From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 21 and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State vs. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad vs. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals. 17. Anyhow, before proceeding further with the matter, it may be observed with emphasis, that violating the sanctity and chastity of a woman is a sordid, despicable, squalid act, which is considered abhorrent in any civilized society; any language falls short of vocabulary to condemn such heinous act and cases of this taxonomy must be strictly construed and dealt with. However, at the same time under criminal jurisprudence for the safe administration of criminal justice, the courts are required to follow certain settled principles, such as the innocence of the accused must be presumed, till he is proved to be guilty; sifting “the grain out of the chaff”; the defence may take a number of pleas and even if all are shown to be false, yet it is the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 22 duty of the prosecution to prove its case to the hilt; “better that ten guilty persons escape than that one innocent suffer” (William Black Stone – English Jurist). In this context it may be mentioned that the above principle is engraved and embedded in the American Constitution and Criminal Jurisprudence as has been put forth by Michael G. Trachtman in his Book The Supremes’ Greatest Hits in the following words:- “Our Founding Fathers were mindful of the penchant of monarchs to charge persons with false crimes as a means of political oppression and social control. Consequently, they built copious protections for those accused of criminal offences into the foundations of the Constitution. It was acknowledged that giving all benefits of the doubt to the accused would result in some guilty persons being set free, and yet they freely accepted this necessary evil as a price of freedom. The story is told of a Chinese law professor who was advised of our belief that it was better that a thousand guilty men go free than one innocent man be executed. The Chinese professor thought for a bit and asked, “Better for whom?” The Founding Fathers’ answer to that question was this: better for all, because as history has proven, if anyone can be unlawfully jailed, everyone can be unlawfully jailed”. These are certain salutary principles of the criminal justice system which should be adhered to by the Courts, in letter and spirit and there is no exemption to these rules, even in gang rape cases for otherwise, due to departure therefrom, the innocent person may suffer. However, at the same time the Courts should keep in view that in such a class of cases, usually independent ocular evidence is not available, therefore due weight should be attributed to the statement of the victim buttressed by medical evidence, and strong attending circumstances, shall suffice to warrant the conviction. 18. Having referred to certain principles, we would now proceed to consider the merits of the case; and following the sequence we would first Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 23 deal with the (acquittal) appeals of the eight accused persons, who were acquitted by the trial court and the decision affirmed by the High Court as well. The important features in this behalf are: their names do not appear in the FIR; in the statements under Sections 161 and 164 of Cr.P.C of the PWs (except PW-14) and even in the statements of the prosecution witnesses in the court (except PW-14); no particular role has been assigned to them in the commission of the alleged offence, except their presence only in the ‘Akath’ ‘Panchayat’ which has been alleged by the prosecutrix alone. The accused, Khalil Ahmad is the one, who got married to Salma on 26th of June, 2002, where-after this case was ignited. In this group of the accused, Ghulam Hussain is the real father of Khalil Ahmad (bridegroom of Salma), Qasim, Rasool and Hazoor are his real paternal uncles, and Nazar Hussain is his maternal uncle. According to the trial Court, they are placed in column No. two of the challan. These facts have not been controverted by the complainant’s learned counsel. It seems that they have been implicated in the matter, because the complainant side felt annoyed and unhappy on account of the above marriage, because till then there is a complete lull, but thereafter everything suddenly sparked visibly and there is an element of vengeance in their involvement, as all the close relatives of Khalil were booked in the case; it is not a mere incident or an honest implication. The decision of the trial Court as earlier stated has been affirmed by the appellate court, however, the learned counsel for the complainant by resorting to the rule of ‘common intention’ under Section 109 PPC has urged that their mere presence in the ‘Akhat’ ‘Panchayat’ where the decision for ‘Badla’ was taken and the object was achieved, is good enough to haul them up in the case. We are not impressed, if the rule of ‘common intention’ in this case can be Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 24 stretched to an extent that any person who was present at the time of the alleged occurrence should be involved in the matter and convicted. In her statement, PW-14 states that there were about 200/250 persons present at the place of occurrence, can all of them be held responsible for the alleged incident on the basis of the said rule, when no specific role has been assigned or performed by them in furtherance of any alleged common intention; they are not implicated by any PW at any stage in any manner whatsoever. Moreover, there is absolutely no evidence that Mastois’ ‘Akhat’ as a whole decided to commit the offence, in fact there were two ‘Akhat’ of the Baradaris at distinct places and it is not established by any PW that he was present in the mastoi gathering where such an alleged decision was taken and shared by all those present. Besides, the village has no electricity, no PW has given the time of occurrence, but even if gathered by joining the scattered pieces of evidence, it was somewhere after midnight on 22.6.2002; the prosecutrix remained outside Khaliq’s house for a short while, so how could she in the darkness identify these eight persons by name and parentage. By now, they have acquired a triple presumption of innocence, which cannot be dispelled by the complainant’s counsel on any score whatsoever. In view of the foregoing, we do not find that a case has been made against them for interference, therefore, the appeals relating to these accused are liable to be dismissed. While parting with their subject, it may be relevant to point out that in order to constitute and apply ‘common intention’ rule it is necessary to prove that the intention of each one of the accused was known to the rest of them and accordingly shared, see PLD 2007 SC 93: Shaukat Ali vs. The State; however, this is not established from the evidence Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 25 of the prosecution. Therefore, the said rule for the aforesaid accused or for any other (accused) in this case cannot be pressed into service. 19. Before attending to the various pleas raised by Ch. Aitzaz Ahsan, learned Sr. ASC, we take up the prosecution’s case regarding the incident as put forth by it, and endeavour to ascertain its veracity on the rules of common sense, ordinary prudence and logic; the chronological order of the incident, for the above is quite important; and it may be mentioned that the incident dated 22.6.2002 erupted from some obscure happening in a sugar field regarding which there is no direct and accurate evidence on the record; any how:- a) Taking the prosecution version on its face value as correct, it does not appeal to reason that Salma’s brother, who alongwith two others when committed sodomy with Shakoor, was so naïve to understand that Shakoor would not disclose their misdeed to anyone, and on his unexpected refusal they took the extreme measure of confining him in his own house alongwith Salma; risking, endangering and putting at stake, the virtue, the sanctity and respect of a young unmarried sister. It is incomprehensible that his other family members including the mother, other brothers, sister would allow this nefarious design to be carried out and would all become a party with him to do away with sacredness of their innocent daughter. This is absolutely not done or conceivable in our rural society, where people are very sensitive about the chastity of their womenfolk, especially young and virgin. b) If the intention of the Mastois was to take BADLA, on learning about the confinement of Shakoor, Mst. Mukhtar Mai etc. had gone to the house of Khaliq, without the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 26 company and protection of their menfolk, this was a good opportunity for Khaliq or for that matter any other male of the family to settle the score, but no harm was caused to anyone. c) It is strange that when Maulvi Abdul Razzak (PW-11), Hazoor Bakhsh (brother of Shakoor) alongwith the police arrived and rescued the boy, he did not apprise them that he is not the culprit, rather is a victim of sodomy; the explanation of the prosecution that it was due to shame that he refrained from the disclosure, does not go with the earlier prosecution’s version, when he had refused not to declare being sodomised and was thus confined with Salma. It is unbelievable that the boy for ‘shame’ would not tell the true story, lose the chance of liberty and the sympathies when Maulvi Razzak alongwith the police had reached the spot for rescuing him, rather would go to the police station instead of securing his liberation and exoneration from the charge of rape. Strangely even in the police station did not reveal his sodomy to any one. d) Maulvi Abdul Razzak was a very important person to the complainant party, as he was the first one to be approached by them for rescuing Shakoor; he was the Salis for Gujjars (complainant) and had been to and fro for resolving the matter, he approached Faiz Mastoi the so- called head of the Mastoi Baradari, and persuaded him to agree to the proposal of exchange marriages, but on refusal of Ramzan Pachar and Ghulam Fareed Mastoi walked out of the ‘Akhat’, leaving behind the people who were depending upon him; trusted him the most at the mercy of the alleged mighty Mastois. It is improbable and unbelievable that he did not come to know of the subsequent event of ziadti (rape) with the complainant for Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 27 five days and during this period himself made no effort to find out as to what happened to such a burning issue after his return. Rather he discovered about it on 28.6.2002 from some individual whose name he does not remember, and that person too was not the witness of the incident himself, rather he learnt about the occurrence from the vagabonds of the Mastois in a hotel, that “BADLA” had been taken. It is strange and incomprehensible that being an Imam of the mosque, a mature, responsible, educated person, he would act in a way, that without even verifying the occurrence from any authentic source; not from the immediate relations of the complainant side as to whether the story is true or otherwise or they would like for it to be announced in the mosque or not, he disclosed it in his juma speech, without even the permission of the complainant side. It is afterward that he approached Ghulam Fareed (complainant’s father), who according to him would not acknowledge the incident at all; the reason given for this, that it was due to fear of Mastois, might have been possible in respect of approaching the police, but what fear did Ghulam Fareed harbour in revealing the incident to a man, who he always looked upon, who was a friend, a confidant and who already knew about the incident and to whom the disclosure would not have caused any embarrassment . e) There is another very important fact that PW-12 Altaf Hussain is the real brother of PW-11 and they admittedly live in the same house. PW-12 claims to be the witness of the ‘Akhat’ proceedings and also the incident, so how come can it be possible that till 30.6.2006, neither PW-11 inquired as to what happened after he had left nor PW-11 disclosed to his brother, for in his statement, PW-12 has categorically mentioned that the incident was not divulged Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 28 by him to his brother even till 28.6.2002 or 30.6.2002. This is one of the most ridiculous aspect of the prosecution’s case which knock the bottom out of its version. f) Anyhow, having failed in his first attempt to know from Ghulam Fareed on 28.6.2002 about the incident of which earlier he was not eager or bothered to know, after leaving the Akhat; now he became proactive and in utter exuberance, he again approached Ghulam Fareed on 29.6.2002, but this time with the power of media, as the ‘pressmen’ were with him; even then, it is not spelt out from the prosecution evidence that any disclosure was made to them. However, all of a sudden in the early hours of the day on 30.6.2002 the complainant, her father and Sabir (PW-13) approached PW-11 and thereafter he takes charge of the matter; he calls all the witnesses and usher them alongwith for reporting the matter to the police. Be that as it may, it is the categorical stance of the prosecution that the contact with the police for the first time with reference to the incident was made on 30.6.2002, but it is quite important to note that in his statement under Section 164 Cr.P.C. Maulvi Abdul Razzak has mentioned that the report was made on 29.6.2002. This was confronted to him, but he failed to offer any explanation. This man is not the witness of the incident, rather very conveniently drops out of the scene on the pretext of the refusal of Watta Satta marriage, but leaving behind his brother PW-12 to make up his deficiency who throughout remains attached to the events to witness those, till the drop scene thereof, however as a silent spectator only. It may be pertinent to mention here that in the FIR there is no mention of Shakoor’s sodomy, surprisingly Maulvi Abdul Razzak says that he was not aware of it till reporting the matter, but PW-14 deposed Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 29 that the disclosure was made to the police officer, who advised that the matter shall be dealt with separately. However, this incident too perhaps later in the day was reported through the courtesy of Razzak; the man, who also collected the clothes of the prosecutrix for handing those over to the police. His role throughout remains conspicuous and of a vanguard. g) It is also noticeable that a serious incident, allegedly has occurred in the area, it was almost known to about 300 people who were present in both the ‘Akhats’ and if their family members are added to whom they would ordinarily pass on or share the information, number of people who would be aware of the occurrence would be exponentially increased but neither the Lumberdar/Chowkidar of the village nor councilor of the area or any respectable got to know of it on the same/following day, or soon thereafter; the police from its own sources, which (sources) it has and is a publicly known fact, never got any clue about the occurrence till 30.6.2002 thus for the incident remained hidden from all and sundry. h) Furthermore, in the context of Maulvi Abdul Razzak (PW- 11)’s statement and his conduct, he has deposed in unequivocal terms that Faiz Mastoi agreed to the exchange marriages “Watta Satta” but Ramzan and Ghulam Fareed rejected the proposal and thus he and Manzoor left the ‘Akhat’; Faiz Mastoi allegedly was the head of Mastoi people, now if he had agreed, the rejection of the proposal by Ramzan, who was not even a member of the accused family/tribe, rather was a friend of Hazoor Bakhsh, the brother of the complainant comes across as rather convoluted and a ridiculous excuse for the walkout. Likewise, Ghulam Fareed too is an unimportant character Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 30 in the scenario, he is not a close relative of Abdul Khaliq and even is not shown to have any influence in the Baradari, but obviously is the son-in-law of Karam Hussain, with whom Maulvi Abdul Razzak was in litigation and had to give up some land; Razzak for reasons best known to him in his cross examination has tried to be evasive when asked about such relationship; but his brother PW-12 has admitted that Ghulam Fareed was so related to Karam Hussain. Be that as it may, it is hard to believe and does not behove of a person who has been portrayed as a conscientious man; who was discharging his moral obligation by helping the oppressed against the Mastoi atrocity as argued throughout, on the alleged refusal of the two unconnected men would absquatulate and shed his above virtue at the hour of the need and would not yearn to learn from anyone of those present in the ‘Akhat’ (about 300 people of both sides) that when he came back what happened thereafter. He is the imam of the mosque and runs a madrasa, but surprisingly never came across someone who could reveal the deplorable incident of the beleaguered Mukhtar Mai; what an apathy on his part. To us, as put by Shakespeare, in Hamlet, the role of Maulvi Abdul Razzak (PW-11) is “like Hamlet without the Prince” (Hamlet). i) It transpires from the record that the alleged recovery of the pistol from Abdul Khaliq was on the last date of his remand. According to the statement of PW-9, the I.O., throughout the remand period, Khaliq denied about the pistol, rather would not answer on the pretext that he does not remember, I.O. unequivocally stated that Khaliq was not tortured; it is indiscernible that why all of a sudden Khaliq would agree to get the pistol recovered from his house. Besides, in such a high profile case, no independent witness was associated with the recovery Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 31 process; neither the Lumberdar nor Chowkidar of village or any other respectable such as Councilors etc. were taken alongwith. We are not persuaded that Hazoor Bakhsh and Ghulam Hussain recovery witnesses, who are close relatives of the complainant would pass the test of independent witness in this respect. j) PW-10 Shakoor stated, that when he reached home he discovered that Ziadati had been committed with his sister, it is then he disclosed the Ziadati was committed with him too. It is not plausible that neither at the police station, nor while coming alongwith PW-13, he mentioned about his Ziadati. PW-14 in her statement mentioned that PW-10 revealed about his Ziadati in the presence of PW-13 at (Fareed’s) house when he returned from the police station, but from the statement of PW-13 it can be reasonably spelt out, that after leaving Shakoor (PW-10) at the house of Fareed, he immediately left, for his house and did not stay back. From the above, it can be concluded that the version of the prosecutrix in this respect is not correct. k) According to the prosecution, Ramzan Pachar and Faiz Mastoi are responsible for the ziadati, it is unbelievable that after the incident, they still would accompany, Sabir Hussain (PW-13) for the release of Shakoor from the police station. l) It is against the human conduct if a daughter is being raped a father and maternal uncles would stand dormant and would not strive to get help from the Baradari or the police; at that time even Khaliq had left for the alleged rape; if they were earlier scared of his pistol, but when he was gone, no other person is alleged to be carrying any weapon; this was the opportunity to call for the help, the house of Khaliq and Ghulam Fareed is not at much Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 32 distance, even Hazoor Bakhsh, a young man, also never turned up to safe the honour of his sister. There is no material evidence even of threats on the record, none of the Mastois after the alleged incident is stated to have ever came in contact with the complainant side to extend any threat which could preclude the complainant from taking recourse to a legal action. The submission that threats were extended on the scene of occurrence to our understanding were nothing more than rhetoric and would not be the reason for their silence. 20. Afore-noted are the foundational facts of the case which have a serious reflection on the version of the prosecution, which put together, make the prosecution version implausible, flimsy and un-canny as set forth, and if, on account of, inter alia, the above, the learned High Court has drawn certain conclusion such as, that the complainant side was reluctant to report the matter and was influenced by Maulvi Abdul Razzak or that he is the mastermind of the entire episode, or the prosecution evidence is not confidence inspiring and the delay in lodging the FIR has not been plausibly explained. Such a conclusion, in our view, cannot be said to be unjustified. 21. PW-12, Altaf Hussain, as stated earlier, is the real brother of Maulvi Abdul Razzak. His statement has not been given much credence by the learned High Court, inter alia, for the obvious reasons of the inconsistencies and improvements in his statement in the Court, when compared with his previous statements under Section 161 Cr.P.C. (leaving apart those allegedly compared with the fact finding inquiry). Besides, it emanates from the prosecution evidence that the case has been orchestrated by Maulvi Abdul Razzak, and he being his brother, has to support the prosecution version. As far as PW-13 is concerned, the learned High Court Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 33 has duly and extensively analyzed his evidence; he is the maternal uncle of the prosecutrix; the court has drawn certain factual conclusions from the reading of his statement. Our own reading thereof does not take us to form a view different from that of the High Court; this witness has tried to improve the version of the prosecution and also the statement admittedly made by him before the police under Section 161 Cr.P.C and that under Section 164 Cr.P.C. and such contradictions have been duly highlighted in the cross examination; particularly his statement before the Magistrate under Section 164 Cr.P.C. to the effect “I stated to the Magistrate that the decision of the panchayat re: Watta Satta was not agreed to by Faiz Mastoi, Ramzan Pachar and Ghulam Fareed accused (confronted with Ex-PO where not so recorded). Moreover, PW-13 stated that Faiz Mastoi at the time when the victim came before the panchayat commanded that ziadati be committed with her, but this is not so stated in his previous statements, recorded under Sections 161 & 164 Cr.P.C; even this portion of his statement, which is quite important, is against the contents of the FIR, where it is recorded that Ghulam Fareed (the complainant’s father be forgiven). PW-14 in her statement has also not supported PW-13 in this context when she deposed that Faiz did assert for the pardon, but was it siasi dunyavi, besides he has stated that when Mst. Mukhtar Mai was pushed in the Panchayat she fell down on the ground and was dragged, this has not been so stated by PW-12 or even the prosecutrix herself; there are some more contradictions in his previous statement under Section 164 Cr.P.C. and that made before the Court, such as, who declined the “Watta Satta” proposal etc. In the previous statement, he stated the man was Khair Muhammad Mastoi, but in Court he named Faiz. As regards nudity incident, this PW has been confronted with Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 34 his statement before the Magistrate and his replies are that “I stated to the Magistrate that Fayyaz accused had thrown the clothes to Mst. Muthkar Mai as she came out of Kotha (confronted with PO where not so recorded) I stated to the Magistrate that clothes of Mst. Mukhtar Mai were torn as she came out. I stated to the Magistrate that shirt of Mukhtar Mai was torn from the front and sides (confronted with PO where not so recorded). I stated to the Magistrate that coming out Mukhtar Mai called out her father and the latter picked up those clothes and put on her (confronted with PO where not so recorded)”, therefore, if on the basis of appreciation of his statement the learned High Court has disbelieved him, it cannot be said to be the result of any improper reading of the evidence. 22. As far as PW-14, the prosecutrix herself is concerned, though she has stated about the facts pertaining to the holding of the ‘panchayat’, but she being not a witness to these proceedings herself therefore, all such evidence is hearsay thus, inadmissible. However, when she came to the ‘Panchayat’, it is categorically stated by her that, Faiz Mastoi stated that the girl be forgiven, but according to her it was “politically and wordily”. It is only an impression of the witness which has not been shared by any other PW; besides, this is not her version in the FIR or the statements given under Sections 161 & 164 Cr.P.C. In this regard, the relevant confronted portions of her statement are, “I stated to the Thanedar at Chowk Jhuggiwala that accused Faiz Mastoi proclaimed dunyavi (siasi) and to show to the people that girl has reached and be forgiven (confronted with Ex.P1 where not so recorded) except that Ghulam Fareed be forgiven . . . . . . “Further I did not state to the Thanedar that Faiz Bakhsh Mastoi stated that Ghulam Fareed be forgiven (confronted with Ex-P1 where so recorded). . . . . . . . . “I stated to Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 35 the Magistrate that Faiz Mastoi stated dunyavi (siasi) that Ghulam Fareed be forgiven” (confronted with Ex.PK where words dunyavi (siasi) are not recorded), this clearly depict improvements and inconsistencies. There is another vital contradiction in her statement made before the Magistrate from that in the Court “I did not said to the Magistrate when we went back home, Ghulam Nabi and Altaf were present there (confronted with Ex.PK/6-7 where so recorded). She in her statement further admitted Allah Ditta accused lived in the house alongwith Abdul Khaliq, his wife and children, mother, six sisters and five brothers; in the situation it is improbable if such a despicable act was to be committed by the accused there, particularly by the two real brothers together, that too in the presence of the entire family living in the same house. If therefore, factual conclusions on that account have been drawn by the learned High Court, those cannot be held to be against the evidence on the record or perverse etc. About her nudity and clothes in reply to a question PW-14 stated, “I do not remember to have stated to the Thanedar that as I came out of room my shirt was torn from the front and the sides and Fayyaz threw clothes at her (confronted with Ex-P1 where not so recorded). I had come out of the room in nude condition I stated that Fayyaz had thrown duppta and shalwar at me (confronted with Ex.PK where not so recorded), but duppta and shalwar were in the hands of Fayyaz”. About the nudity aspect and the clothes and how allegedly those were thrown, the learned High Court has pointed out the inconsistencies in the statements of the witnesses and has again arrived at a factual conclusion, which to our mind does not suffer from any factual or legal vice. The learned High Court on account of extensive reading of the evidence has given its findings, which are covered by the rules (about appeal against acquittal) laid down in the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 36 aforementioned judgments and we are not convinced, that if any error of reading of the evidence or any misapplication or violation of law has been committed by the Court while delivering the impugned judgment. Only for the reason that on account of the re-appraisal of evidence a different conclusion can be arrived at by the court of appeal, in an acquittal case is not permissible under the law and this standard should not be resorted to at all. In view of the foregoing, we do not find it to be a fit case for interference. Before parting with this aspect of the case, it may be mentioned that prior to their examination in the Court, all the witnesses were taken by the police to a house in Muzzafargarh, there they were together for some good time, on account of which the learned High court has drawn the inference of tutoring the witnesses; however, the complainant’s counsel states, it was for their safety; but we are not impressed because almost all the concerned were behind the bar, then from whom the witnesses had a threat, is a question mark. 23. Now attending to certain legal and factual pleas raised by the learned counsel for the complainant which according to him also have nexus to the law, such as, the inferences drawn against the prosecution regarding delay in lodging the FIR is against the settled law, because in cases pertaining to the present nature it is understandable that the victim or her family is/are hesitant to report the matter and in certain cases delay of even upto a month has not been considered fatal to the prosecution. In our view, the above is not an absolute or universal rule and the delay in each case has to be explained in a plausible manner and should be assessed by the Court on its own merits; in a case of an unmarried virgin victim of a young age, whose future may get stigmatized, if such a disclosure is made, if some Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 37 time is taken by the family to ponder over the matter that situation cannot be held at par with a grownup lady, who is a divorcee for the last many years; the element of delaying the matter to avoid Badnami may also be not relevant in this case because the incident according to the prosecution’s own stance was known to a large number of people and there was no point in keeping it a secret from everyone. We are also not convinced if any threats were flung to the complainant side as has been alleged and to us it seems to be an abortive attempt to cover up the delay, otherwise there is no substantial cogent proof that after the incident, in between the 8 days anyone from the accused side threatened and/or harassed the complainant or her family; likewise the reason of fear is also self-assumed. It seems to be a case where, the delay is not on account of the facts mentioned by the prosecution, but for some other reasons, which may be those as has been propounded by the defence version i.e. the marriage of Salma and Khalil, because the marriage took place on 26.6.2002 soon thereafter the case was registered and it is not a mere co-incident, rather conspicuously strange, that whole family of Khalil has been roped into the matter. It seems that on account of this marriage the possibility of (Watta Satta) marriage extinguished and the complainant felt betrayed and deceived. The view of the learned High Court that the FIR was registered after due care and deliberation and all the witnesses of the prosecution were called and then under the leadership of Maulvi Abdul Razzak they all approached the police, therefore, the delay in the registration of the case is a factor which tilts against the prosecution, suffers from no vice and looks to be a proper perception and conclusion drawn by the Court from the record of the case. Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 38 24. As far as the argument that the alleged previous statements of the witnesses before the fact finding were illegally allowed to be used by the defence, for the purpose of confronting the prosecution witnesses, we hold that such statements should have been proved by the defence as those were denied by the PWs, when put to them; the SP Range Crime, DW-6 has categorically stated not to have recorded the statements and, therefore, it was expedient for the defence to have been proved by either examining the inspector or his reader, in whose handwriting these are alleged to be; though the defence made an application for summoning the inspector, but that was turned down by the trial Court, however no challenge was thrown to this order at the appropriate stage. In this context, it may be held that the prosecution while confronting a PW under Article 140 of QSO, 1984 with his previous statement may use any of his previous statement not necessarily those recorded under Sections 161 & 164 Cr.P.C. without the proof of those at that time. If the witnesses admits of having made such statement there is no need for the proof, but if it is denied, then though the process of confronting him and recording the inconsistency may be completed by the court, whereas such material cannot be used against the prosecution, until and unless the confronted statement is subsequently proved by the defence, as any disputed instrument. However, in this case even excluding the confronted portion of the PWs with such statements (fact finding inquiry), we are of the view that the factual conclusion arrived at by the learned High Court, does not suffer in any material aspect and can sustain independently. 25. About the argument that statements under Section 161 Cr.P.C. should be strictly construed in consonance with section 162 Cr.P.C. and if those are signed by the witnesses, such is an incurable defect and an Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 39 illegality which vitiates the statement and it shall not be that previous statement which is contemplated by the above provision, available for confrontation in terms of Article 140 of the Qanun-e-Shahadat Order, 1984 (QSO, 1984). To this extent, we agree with the learned counsel, however, we cannot subscribe to the submissions, that Article 140 of the QSO, 1984 in a criminal matter is totally and conclusively governed and regulated by the provisions of Section 162 Cr.P.C. It may be so, when the statement to be confronted has been recorded under Section 161 Cr.P.C. that the rider of Section 162 Cr.P.C shall apply, but Article 140 of QSO, 1984 being a part of general law of evidence, has its own independent legal efficacy and application and any previous statement of the witness, which may have been made by him in some other judicial, qusai judicial, administrative, executive proceedings or inquiries or before such of the forums or even privately made through some instrument i.e. agreement or an affidavit, can be confronted to him, if relevant, in any criminal case, however, subject to its proof as stated earlier. Such statements can always be used by the defence for impeaching the credibility of a witness under Article 153 (3) of the QSO, 1984 as well. 26. As regards the other submission of Ch. Aitzaz Ahsan, learned Sr. ASC, that the statement under Section 164 Cr.P.C. of those witnesses who have not been examined by the prosecution is not a substantive piece of evidence and cannot be used for any purpose in the case, including to support the plea of the defence, suffice it to say that admittedly in this case the Magistrate before whom the statements were recorded has appeared as a witness and has produced in evidence, inter alia, the statements of Ghulam Fareed, father of the complainant and Ghulam Nabi which were duly exhibited. In an answer to a question by the defence counsel, the Magistrate Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 40 in unequivocal terms stated that Ghulam Nabi appeared before him and stated that on the day of occurrence he was not in the village, rather had gone to meet the relatives at Dera Ismail Khan and returned after two days when he learnt about the incident; these statements have been produced by the prosecution in the evidence itself as aforestated, the contents are also proved by the Magistrate, who recorded it; though ordinarily the opposite side can use such a document to its advantage which has been produced by the other side and the party producing it in evidence is bound by the fall out thereof; however, when the statement is under Section 164 Cr.P.C. of a person, who is not produced, it cannot be considered as a substantive piece of evidence, but at the same time the criminal court in order to administer safe justice, in consonance and in letter and spirit of Section 172(2) Cr.P.C, may use such statement not as evidence, but to aid it; the said statement thus can be looked into, for drawing the presumption under Article 129 (g) of QSO, 1984, because Ghulam Nabi was the star witness of the prosecution, who throughout remained in touch with the alleged events; he was allegedly present at the time of Panchayat, the occurrence and even went alongwith the prosecutrix to register the case in which he is specifically named, as a witness, but was given up by the prosecution, not being won over, but as unnecessary. The Court, thus, for the purpose (s) of drawing a presumption for withholding the best evidence under the said Article could examine the statement and make up its mind in this context. Had Ghulam Nabi been examined by the prosecution, the defence would have validly confronted him with his statement to create a vital dent in the prosecution version; and it seems that in order to avoid the repercussions and consequences thereof, he Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 41 was given up. Adverse presumption of withholding the father of the prosecutrix could likewise be validly drawn. 27. As far as the question about the sole testimony of the prosecutrix and believing her without any corroboration is concerned, suffice it to say that this too, is not an absolute (emphasis supplied) rule. It depends upon the facts and circumstances of each case and has to be assessed by the Court on the basis of the entire evidence on the record whether the sole testimony of the victim should be believed or not, particularly in the light of her cross examination, and the other evidence produced by the prosecution; if on account of totality of facts the Court is of the view that such a statement should not be believed and for that good reasons are assigned it cannot be said that any illegality has been committed by the Court in this behalf. Thus, rule pressed into service by the learned counsel shall not apply to each and every case of rape, as a matter of routine and course, because it is not the command of any law/statute, that in deviation of the general principles of jurisprudence mentioned above, the accused must be put to the test of strict liability and should be asked to prove his innocence because the prosecutrix’s version under all circumstances should be taken as correct; the sole testimony view, should be applied with due care and caution in the cases where there is backdrop of grudge, rift and tiff between the parties, as has emerged in instant case. The possibility in this matter cannot be ruled out that the complainant side was trapped by Khaliq; Mst. Mukhtar Mai deceptively in the garb of exchange marriage was subjected to sexual intercourse by him, who in this manner took revenge for Shakoor’s act and, thereafter, Salma was secretly married to Khalil, which embittered and betrayed the complainant and provoked her to initiate the present case. Be Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 42 that as it may, if not the ocular evidence, the prosecutrix in the case should have been corroborated by medical evidence, which in the required quality is missing. What is the basis of the lady doctor’s opinion that she was raped, yes-she was subjected to sexual intercourse, but the question is whether by one person or forcibly four as the prosecution has set out. 28. The absence of injures and marks on the body of a prosecutrix should not be the only factor to disbelieve her version in an ordinary rape case, but where a woman has been forcibly raped for full one hour, by four young individuals on the bare floor, it is not expected that she would not struggle and in the course would sustain no marks or injury. This, of course, is not a conclusive proof or disproof of rape and the learned High Court has rightly held it to be unusual; we have no reasons to differ with it. The omission of DNA and group semen test, which would have been strong supporting evidence to the testimony of the victim, has not been done. To the argument of the learned counsel for the complainant, that on account of the lapse of investigating authorities, the prosecutrix should not suffer; suffice it to say that it should also be true for the defence, rather with more vigour and force. The semen in the vagina were available till the date of her examination and we are at a loss to see what prevented the prosecution to seek the chemical examiner’s opinion to confirm, whether the sexual intercourse was by one individual or more. It is especially required in gang rape cases, as it is a matter of life and death of a person and the life of an accused, who might be innocent in a such case and should not be put to danger, only because the prosecutrix has said so, and in any case he should not suffer for the omissions of the prosecution. If the view of the sole testimony of the prosecutrix as sufficient evidence, is accepted, as absolute without any Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 43 exception thereto, what shall be the outcome of a case, where a lady claims being raped or gang raped, but the medical evidence negates it, what/who should be believed then, the point is, that it is not in every gang rape case, that the sole testimony should be accepted and relied upon, but each case as earlier stated should be assessed and adjudged on its own facts. The DNA and/or group semen test in this case was of immense importance which could have scientifically determined as to whether the intercourse with the prosecutrix was committed only by Khaliq or by a group of person. Therefore, in our considered view, the benefit of this omission should go to the accused, rather the prosecution. 29. Responding to the argument about the credibility and trustworthiness of PW-14, it may be held that only for the reason, she declined the money awarded to her by the Governor and has established the school would not mean that whatever she stated should be accepted as true; in our view nothing much turns on it and the case of such a nature cannot be decided on these trivial factors, rather on the basis of tenable evidence, about the proof of the crime. For, the non-involvement of Shakoor’s sodomizers is concerned, in our view this is by design and quite a deliberate and clever move on part of the prosecution, these two incidents were kept aloof with an obvious object and we are told that convictions of the accused in that case have been achieved, the purpose seems to have been served. 30. Regarding the argument that the version of the prosecution has been admitted and proved through the suggestions put forth by the defence counsel to the prosecution witnesses, during the course of cross examination, particularly in view of the fact that the accused in their statements under Section 342 Cr.P.C. has relied for their defence on the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 44 cross examination; it may be pointed out that the purpose and object of cross-examination is two fold; one to extract truth i.e. to unfold the truth, second to challenge the veracity of a witness. During the course of cross examination to achieve the aforesaid objectives or any one of the two, the defence counsel at time put questions to the witness in form of suggestions - suggestions not necessarily are always the defence plea or the admission. They can be so taken or assumed if through suggestion, any statutory plea is set up. Like for example, if a witness is suggested that the act or commission by an accused person had to be done in exercise of right of self defence by suggestion in a cross examination, the attempt is to take the case to fall within the mischief of Section 302 (e) instead of 302 (a) or (b)or where suggestion is made regarding plea of the accused as to his “alibi”. Other suggestions are intended to dislodge the witness statement made by him during his examination-in-chief, like in the instant case the complainant-lady was suggested to which she replied “incorrect to suggest after commission of zina, the shalwar was given to me in the room”. The suggestion that the Shalwar was not thrown upon her, rather was with her in the room does not mean that defence is accepting the occurrence of rape or accepting what the witness has stated in the examination-in-chief, but it is a challenge to a statement of fact as alleged. Secondly, it may be in the mind of the cross- examiner that he has already or at a later stage to come from some other witness has to extract that the Shalwar was not thrown outside the room, rather all this happened inside. For the suggestions to be construed as the admissions in any form (implied or otherwise) those should be unambiguous, clear, incapable of any other inference and where no two interpretations are possible. But from those to which reference has been made by the learned counsel, we do not find that these are adequate enough to be interpreted as Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 45 the admission of the alleged occurrence; these may at the most be said to be the result of an inarticulate, or inapt art of cross examination, which is not of much importance in this hotly contested case and cannot be given that much importance especially, when the case of the prosecution from its own evidence is not proved to the hilt, as it was put forth. It may, however, be observed that in the case of Abdul Khaliq the suggestion of his intercourse with the prosecutrix obviously is very clear, definite and qualifies the test of being an admission as described by the learned counsel for the complainant, however, his case shall be discussed separately. 31. Now considering the cases of each accused who has been acquitted, but before that, it is expedient to mention even at the cost of repetition that there was not one Panchayat as the impression sometimes emerge from the prosecution evidence; in fact there were two ‘Akhats’ ‘Panchayats’ of the two Baradaris, the Gujjar gathered in the Mosque of Meeranwala (presumably in which Maulvi Abdul Razzak is the Imam) and that of the Mastois, was outside the house of Abdul Khaliq. It is not the case of the prosecution if any collective decision of all those who were present in such a ‘Akhats’ was ever made, however, the so-called Salis (the arbitrator) of one side have been commuting to the other. It is not spelt out through any independent evidence that the Mastois’ ‘Akhat’ collectively took the decision of taking BADLA from Mst. Mukhtar Mai. a) Be that as it may, firstly the role of Faiz Mastoi should be examined. In the FIR it is mentioned that Shakoor was liberated by Abdul Khaliq etc. on his intervention; he according to PW.11 proposed the exchange marriages, however, when again approached by (PW.11) he affirmed the proposal in this behalf. In the FIR the complainant stated that Faiz avowed that Fareed (father of the complainant) be forgiven. PW.11 while appearing has not Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 46 stated that Faiz had ever declared to take BADLA. This is not even the statement of PW-12. Only PW-13 (Sabir Hussain) at two occasions has imputed and insinuated that Faiz disagreed with the marriage proposal and also when Mst. Mukhtar Mai was brought to the ‘Panchayat’ he asked for committing Ziadati with her. But this is directly in contradiction with the statement of Mst. Mukhtar Mai when she appeared as PW.14 and stated, that Faiz said the girl has come and should be forgiven, however, she further stated that it was “politically” or “wordily” which may be only her perception, as what has been stated, is not reflected on account of his conduct or words that he was party to any decision or act of Zina; no other witnesses have said anything about Faiz Mastoi having played any part which could be held to be pursuant to any ‘common intention’. He according to PW-13 also accompanied him to the police station for the release of Shakoor at about 3 a.m. on 23.6.2002. b) As far as Ramzan Pachar is concerned, he admittedly is the friend of Hazoor Bakhsh, the brother of the complainant, he is not a Mastoi by caste, it transpires from the record that he accompanied Sabir (PW-13) for the release of Shakoor, but demanded some money for further payment to the police. Though it is alleged that he declined the proposal of exchange marriages, but it seems strange that why would a person who does not belong to Mastoi tribe and has relations only with the brother of the complainant would become hostile and would insist raping his friend’s sister, even by overruling Faiz Muhammad Mastoi, who is projected by the prosecution as a ‘Sarbrah’ of Mastoi Baradari, and who had agreed to the proposal. To our mind, his status and capacity at the best was not more than a messenger. c) About Ghulam Fareed, it is apparent from the record that his parentage was wrongly mentioned in the FIR. The FIR was duly read over to the lady, she signed it in token of its correctness and she at that time was accompanied by all the male witnesses, who knew well all the people in the area, her father as well as Mamoon were also present, but Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 47 no one pointed if the name of Fareed’s father was wrong. The complainant does not mention in any of her statement under section 161 and 164 Cr.P.C. about this error, rather for the correction a supplementary statement was recorded, however, there are no police proceedings, in the context of the supplementary statement, as has been held by the learned High Court. He too is neither a stalwart of the Mastoi Baradari nor is a close relative of Salma and his role has been inflated in the matter because he is the son-in-law of Karam Hussain Mastoi with whom PW-11 as mentioned earlier had litigation and as a result whereof he lost some land. d) As far as Fayyaz accused is concerned, he is not the resident of Meeranwala as was alleged by the prosecution, he has produced evidence to that effect; besides he was taken into custody from jail, because actual Fayyaz who was the first cousin of Khaliq and Salma, could not be apprehended, therefore, his name was put in the matter, because the investigators as stated earlier where under immense pressure to complete investigation and submit the challan. Moreover, he has produced DW-2 Nadeem Saeed correspondent “DAWN” who has stated that Hazoor Bakhsh the brother of the complainant told him that he is not the real culprit, in this regard the news item has also been brought on the record. He is an independent witness and no effective cross examination to his testimony to shatter the same has been conducted; the argument of the learned counsel for the complainant that he was duly identified by the witnesses, particularly by PW-14 in the Court; it may be held that such was unavoidable at that stage in order to safe the disastrous damage to the prosecution’s case. The High Court in the impugned judgment has made comprehensive discussion about him and we do not find that any of the factual conclusions drawn by the said Court in this behalf being erroneous for any reason whatsoever. e) Allah Ditta is the brother of Abdul Khaliq, he is married, living in the same house where the alleged incident took place, with his whole family including wife, mother, six Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 48 sisters and five brothers and his children. It is improbable that he in the presence of all particularly his wife and children and young sisters would commit Zina alongwith his real brother. The High Court, in his case, too has given valid reasons, which calls for no interference on any account. 32. However the High Court has distinguished the case of Abdul Khaliq primarily for the reasons that he has remotely admitted the intercourse with the prosecutrix; he took up the defence of Nikkah, but has failed to prove it. It is argued by his counsel that it is available to the defence to take as many pleas as it wants, and even if all such pleas are found to be incorrect yet the prosecution is not absolved of its primary duty to prove its case and, therefore, when on account of the reasons given by the High Court it is found that the case as set out by the prosecution is not true, he should have also been exonerated by giving benefit of doubt alongwith other accused. We are afraid that his case is not at par with the other accused for additional reasons that the version of the complainant of sexual intercourse with her has been duly corroborated by the medical evidence, notwithstanding the omission of DNA/SEMEN test, which may in our view would have been relevant for gang rape, to determine if the act is by one person or more, but in the instant case the suggestion given by his counsel to the prosecutrix is very clear, unambiguous and leads to no other interpretation. When in reply thereto PW-14 stated as under:- “It is incorrect to suggest that pursuant to the decision of my family members my Shari Nikkah was performed in the house of Abdul Khaliq in the presence of Ramzan Pachar, my father and Sabir PWs. It is incorrect to suggest that compromise was reached and thereafter my maternal uncle Sabir Hussain PW, Ramzan Pachar and Abdul Khaliq accused went to the police station and brought Abdul Shakoor back with whom Nikkah of Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 49 Salma was to be performed. Incorrect to suggest that at 3/4 a.m. Abdul Khaliq came to room where I was present as his bride. In correct to suggest that he performed conjugal duties as my husband in the said night.” In the light of the above, it was incumbent for the defence to prove the Nikkah and being conscience of this requirement, that some DWs were also examined by the defence, however through such evidence the Nikkah could not be proved, the obvious result, would be that he committed sexual intercourse with the prosecutrix, but without a valid NiKkah. 33. While concluding we share the view of the Courts that no case for abduction was made out by the prosecution, notwithstanding the distance; we are not convinced that prosecutrix was taken to the room as has been alleged by her. 34. In the light of the above, we do not find any merits in these appeals, which are hereby dismissed. The suo moto action, initiated by this Court in the matter is also discharged. Sd/- Judge Sd/ I have added my own note. Judge Sd/- Judge Announced in open Court on at APPROVED FOR REPORTNG Ghulam Raza/* Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 50 I have had the benefit of reading the lucid judgment authored by my Lord Mr. Justice Mian Saqib Nisar and concurred by my Lord Mr. Justice Mian Shakirullah Jan, upholding the final conclusions drawn by the High Court in the impugned judgment and its findings on various questions raised before it. While agreeing with some of the findings in the proposed judgment, with humility and utmost respect, I have formed a different opinion on other aspects of the case. 2. The prosecution case in a nutshell is that the complainant, Mukhtar Mai, was subjected to gang rape by four persons of Mastoi Tribe, including Abdul Khaliq and Allah Ditta, brothers of Mst. Salma, with the sanction of the Panchayat of the Tribe, as retaliation and in order to vindicate the honour of the Tribe and the family of Mst. Salma, who is alleged to have indulged in an affair with Abdul Shakoor, brother of the complaint. 3. The accused charged and tried for the crime can be conveniently divided into two groups. The four accused of rape are, Abdul Khaliq, Allah Ditta, Ghulam Fareed and Muhammad Fayyaz. The remaining eight were members of the Panchayat sanctioning the rape. Out of these, Faiz Muhammad (Faiza Mastoi) and Muhammad Ramzan (Ramzan Pachar) as well as Ghulam Fareed were stated to have represented the Panchayat and taking active part in its proceedings, while the rest were simply its members. 4. The Anti Terrorism Court, Dera Ghazi Khan trying the accused convicted and sentenced six of the accused, namely, Abdul Khaliq, Allah Ditta, Muhammad Fayyaz, Ghulam Fareed, Muhammad Ramzan Pachar and Faiz Muhammad alias Faiza Mastoi, awarding them various sentences under Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 51 Sections 10(4) and 11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and 7(c) of the Anti Terrorism Act, 1997, including sentence of death. As details of the convictions and sentences of the convicts have been stated in Para 5 of the majority judgment, to avoid repetition, the same are not reproduced. The convicts were, however, acquitted on the charge under Section 354-A PPC. The remaining eight accused were acquitted of all the charges for lack of evidence. The High Court in its judgment dated 3.3.2005 acquitted all the convicts except Abdul Khaliq, whose conviction was recorded under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979, as the charge of gang rape under Section 10(4) of the Ordinance could not be maintained in view of the acquittal of other the three accused of rape. 5. The judgment of the High Court was impugned before this Court by the complainant, Mukhtar Mai, the State as well as Abdul Khaliq, the latter challenging his conviction and sentence. Simultaneously, this Court also took suo motu notice of the case when an Hon’ble Judge of the Federal Shariat Court took suo motu of the judgment of the High Court and suspended the same. Leave to appeals was granted in all the matters on 28.6.2005 in the following terms:- “Listed petitions for leave to appeal have been filed against the judgment of Lahore High Court Multan Bench, Multan, dated 3.3.2005 passed in Criminal appeals Nos. 60 to 63, 65 and 66 of 2002. 2. Precisely stating facts of the case are that an occurrence took place on 22nd June 2002 in the area of Mauza Meerwala District Muzaffargarh, situated at a distance of 13 kilometers from the Police Station Jatoi towards South. Matter was reported to the SHO Police Station Jatoi on 30th June 2002 at 7.30 a.m. He Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 52 recorded statement of Mst. Mukhtar Mai on the basis of which formal FIR was recorded. Prosecution story as narrated by petitioner Mst. Mukhtar Mai in the complaint (Exb.P1) is that on 22nd June 2002 her brother Abdul Shakoor was suspected of having illicit liaison with Mst. Naseem daughter of Imam Bakhsh resident of the same village. To resolve the dispute a Panchayat (meeting) was convened on that very day. Muhammad Ramzan son of Karim Bakhsh, Ghulam farid son of Mahmood, faiz Bakhsh Khan son of Sher Muhammad were appointed as arbitrators on behalf of Abdul Khaliq (accused) whereas Maulvi Abdul Razzaq son of Bahadur, Manzoor Hussain son of Noor Muhammad were appointed as arbitrator on behalf of Ghulam Farid-father of complainant. The arbitrators of both the sides proposed that Mst. Naseem should be wedded to Abdul Shakoor son of Ghulam Farid and likewise Mukhtar Mai be married to the son of Imam Bakhsh. But Abdul Khaliq, Muhammad Ramzan and Ghulam Farid opposed the proposal and allegedly demanded that they would commit Zina with Mukhtar Mai with a view to equalize the incident and then they would compromise the matter. The demand was opposed by the members of the Panchayat. On this some of the respectable persons namely Maulvi Abdul Razzaq and Manzoor Hussain left the Punchayat. Thereafter on coercion and pressure of accused party complainant-Mukhtar Mai was brought to the Punchayat by her maternal uncle Sabir Hussain to pray for forgiveness according to the customs of Baloch. Later on she was caught hold by Abdul Khaliq from her right hand which she got released by force. Faiz Bakhsh also sought forgiveness for Ghulam Farid, but she was taken into a nearby Kotha forcibly by the accused persons namely Abdul Khaliq, being armed with 30 bore pistol, Allah Ditta (both sons of Imam Bakhsh), Fayyaz Hussain son of Karim Bakhsh and Ghulam Farid son of Mahmood and was subjected to Zina-bil- Jabr by all the four persons turn by turn during course of which complainant-Mukhtar Mai remained crying. Later on she came out of the said Kotha in a nude condition and called her father Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 53 Ghulam Farid. Statedly the incident was witnessed by Ghulam Nabi son of Bahar Khan and Altaf Hussain son of Bahadur Ali as well as her father. After recording of statement of complainant- Mukhtar Mai FIR was recorded at 8.00 a.m. on 30th June 2002 at Police Station Jatoi. On completion of investigations accused were arrested and sent up to face trial. As they did not plead guilty to the charge, thus, prosecution led evidence to substantiate accusation by producing as many as 17 PWs. On completion of trial learned Judge, Anti Terrorism Court, Dera Ghazi Khan convicted/sentenced them as follows:- U/s 7© read with Sec.21(1) ATA 1997 and 149/109 PPC Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam Farid, Ramzan Pachar and Faiz Muhammad Life Imprisonment with fine of Rs.20,000/- each and in default whereof to further undergo six months R.I. each. Us 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sec.149 PPC Abdul Khaliq, Allah Ditta, ghulam Farid and Muhammad Fiaz Life imprisonment plus 30 stripes each with fine of Rs.20,000/- each and in default whereof to further undergo six months R.I. each. U/s 10(4) of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sec.149 PPC Abdul Khaliq, Allah Ditta, Ghulam Farid and Muhammad Fiaz Sentence of death U/s 11 of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sec. 21(1) of ATA and Ss. 109/149 PPC Ramzan Pachar and Faiz Muhammad Muhammad ramzan Pachar and Faiz Muhammad. Life imprisonment plus 30 stripes each with fine of Rs. 20,000/- each and in default whereof to further undergo six months R.I. each U/s 10(4) of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 21(1) of ATA and Ss.109/149 PPC Muhammad Ramzan Pachar and Faiz Muhammad Sentence of death. Above convicts, however, were acquitted from the charge under Section 354-A Cr. P. C., whereas, remaining accused namely Muhammad Aslam, Allah Ditta son of Jan Muhammad, Khalil Ahmed, Ghulam Hussain, Hazoor Bakhsh, Rasool Bakhsh, Qasim and Nazar Hussain were found not guilty for all the charges. 3. Learned High Court in appeal, vide impugned judgment dated 3rd March 2005 concluded as under:- Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 54 i) Sentence of Abdul Khaliq appellant is covered by Section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 {herein after referred to “Ordinance, 1979}, as gang rap is not proved under Section 10(4) of the Ordinance 1979. He is sentenced to 25 years R.I. The sentence of fine awarded by the learned Trial Court is maintained. Benefit of Section 382-B Cr. P.C. was also extended to him. However, he was acquitted of the charge under Section 11 of the Ordinance 1979 and 7(c) read with Section 21(1) of the Anti Terrorism Act, 1997 and 149/109 PPC. ii) All other convicts were acquitted on setting aside the sentences awarded to them by the Trial Court. iii) Appeal filed by the complainant and the State to challenge the acquittal of some of the accused mentioned above was also dismissed. 4. Learned Attorney General who was asked to assist the Court, during hearing of the petitions, particularly in view of question, which has arisen relating to jurisdiction of the High Court, and Federal Shariat Court, as appeals have arisen out of the judgment passed by the Anti Terrorism Court under Section 10(4) of the Ordinance, 1979. It may be noted that State as well as complainant in memo of their respective petitions for leave to appeal had also highlighted the jurisdictional question of the learned High Court as well as learned Shariat Court. 5. Learned Attorney General categorically contended that as the original judgment was passed by the Anti Terrorism Court, therefore, appeal under Section 27-A of the Anti Terrorism Act, 1997 was competent before the High Court. 6. From the arguments so raised by him, following questions emerge for consideration:- i) Was the case competently brought before the Anti Terrorism Court? Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 55 ii) Could Anti Terrorism Court try offences other than the scheduled offences, which may otherwise fall exclusively in the domain of other Courts? iii) Were the appeals of the convicts before the High Court competent? iv) Could the Federal Shariat Court under Article 203 (dd) of the Constitution interfere in the appellate order of the High Court? 7. When called upon to address arguments on merits he stated that impugned judgment is indefensible for the following reasons:- (i) Delay in lodging FIR constitute no ground for acquittal of accused particularly in the cases pertaining to rape/gang rape, in view of the social conditions of society. [Harpal Singh v. State of Himachal Pradesh (AIR 1981 SC 361), Mst. Nasreen v. Payyaz Khan (PLD 1991 SC 412), Muhammad Abbas v. State (PLD 2003 SC 863)] (ii) Sole testimony of a victim in rape/gang rape cases is sufficient for the purposes of conviction. [Mst. Nasreen (ibid), Shahzad @ Shaddu v. State (2002 SCMR 1009), Muhammad Abbas (ibid) (iii) Marks of injuries on the person of prosecutrix are not necessary to secure conviction of an accused, where there is allegation of gang rape. [Shahzad @ Shaddu (ibid)]. (iv) Expert evidence is of confirmatory nature, therefore, non obtaining report of expert, to ascertain as to whether clothes of the victim were stained with semen, is not fatal to the prosecution’s case. [Muhammad Abbas (ibid)]. Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 56 (v) Impugned judgment has proceeded mainly on conjectural consideration as is evident from perusal of the impugned judgment. 8. He also pointed out that there are so many other questions, which are required to be examined in depth if leave is granted to the State. It was also prayed by him that in presence of overwhelming, direct and indirect incriminating evidence, the respondents have been acquitted of the charge, therefore, he prayed for suspension of their acquittal, in exercise of powers under Order XXXIII Rule 9 of the Supreme Court Rules, 1980. 9. Learned Advocate General (Punjab) adopted the arguments advanced by the Attorney General for Pakistan. However, he added that considerations prevailed upon the learned High Court are not sufficient to sustain the judgment. 10. Ch. Mushtaq Ahmed Khan, learned Sr. ASC also appeared on behalf of the State and contended that:- i) Learned High Court had no jurisdiction to accept the appeal filed by respondents under Section 27-A of the Anti Terrorism Act, 1997, in view of the provisions of Article 203 DD of the Constitution read with Section 20 of the Ordinance, 1979. ii) The evidence produced by the prosecution has not been appraised by the learned High Court, at the touchstone of the principles pronounced by this Court, from time to time, for the safe administration of justice in criminal cases, as the evidence of prosecutrix and other witnesses has been disbelieved on the basis of technicalities, rendering the impugned judgment not tenable in the ye of law. Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 57 11. Ch. Aitezaz Ahsan, learned Sr. ASC appearing for the complainant argued that:- i) The evidence produced by the prosecution to establish guilt had not been appreciated by the learned High Court in its real perspective, due to which serious injustice has been caused to the compliant, who not only gang raped by four persons but she was also forced to parade without clothes in presence of her close relatives i.e. father, uncles and the members of the Punchayat. On the role of Punchayat, he stated that they had also facilitated the commission of the offence. ii) The conclusion drawn by the learned High Court is not tenable, thus cannot sustain in the eye of law. iii) The prosecution had proved the act of terrorism/gang rape by the respondents i.e. Abdul Khaliq, etc. with the assistance of others, therefore, following observation from the judgment goes to show that the appeal has not been disposed of according to facts on record:- “Hence we are satisfied that the allegation of committing sexual intercourse with the complainant (PW-14) is only proved against Abdul Khaliq appellant, which is covered by Section 10(3) Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Since the allegation of gang rape is not proved, his conviction under Section 10(4) is converted to 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and he is sentenced to 25 years R.I. However, the sentence of fine awarded by the learned trial Court is maintained and he shall be given the benefit to Section 382-B Cr. P. C. So far as his conviction under Sections 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 7(c) read with section 21(1), ATA 1997 and 149/109 Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 58 PPC is concerned, it is admitted fact that there was no purpose of the said appellant to abduct the complainant, who according to the allegation itself, was taken to a few paces and then returned immediately after commission of sexual intercourse. Moreover, the act of Abdul Khaliq appellant was not to intimidate and overawe the community and to create a sense of fear and insecurity in society as in spite of commission of the said occurrence none had reported the matter to the police for about nine days. Therefore, Abdul Khaliq appellant is acquitted of the charges under sections 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 7(c) read with Section 21(1), ATA, 1997 and 149/109 PPC. Cr. Appeal No. 60/2002 to his extent stands disposed of and impugned judgment of conviction and sentence is set aside.” 12. Learned counsel appearing for accused contended that:- i) Learned High Court had jurisdiction to dispose of appeal as the respondents were allegedly charged for the gang rape as well as for the offence under Section 7(c) read with 21(1) of the Anti Terrorism Act, 1997 and the Federal Shariat Court had no jurisdiction to entertain the appeals filed by the convicts. ii) The petitioner Abdul Khaliq has been convicted contrary to evidence available on record. Story put forward by the prosecutrix Mst. Kukhtar Mai is full of improbabilities, therefore, he was entitled for the acquittal from the charge under Section 10(3) of the Ordinance, 1979 as well. iii) Learned High Court had not believed the same set of evidence against the remaining accused persons but without seeking any corroboration, it has been believed against the petitioner, contrary to the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 59 principles of consistency. Similarly, against the remaining respondents, no evidence is available, therefore, High Court on having evaluated the same rightly acquitted them of the charge. iv) As now there is double presumption of innocence in their favour, as such acquittal order may not be interfered with, unless the case is made out in view of the principle laid down in Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11). 13. We have heard learned counsel for the parties and have also gone through the relevant record carefully. Leave to appeal is granted in all the petitions, inter alia, to examine contentions of parties’ counsel noted above. Keeping in view the facts and circumstances of the case, operation of the impugned judgment of Lahore High Court, Multan Bench dated 3rd March 2005 is suspended. Non-bailable warrants of arrest of the respondents in Criminal Petition No. 96 to 99, 114 to 116 & 161 of 2005, except Abdul Khaliq, who is already in custody, be issued. Inspector General Police, Punjab is directed to cause their arrest and keep them in judicial custody pending final disposal of the appeals. They shall be treated as under trial prisoners.” 6. One of the points formulated for determination in the leave granting order related to the assumption and exercise of jurisdiction by the Anti Terrorism Court. In the majority judgment, this question has been examined and without proceeding to determine whether or not the incident created terror justifying trial by the Judge Anti Terrorism Court, it has been considered appropriate not to undertake the exercise in the light of the concurrence of all the counsel before us not to reopen the issue at this stage, more so when the objection by the defence to the jurisdiction of the Court was given up during Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 60 the trial. I agree that it is too late in the day to reopen the question. I also find myself in agreement with the findings regarding the eight accused who allegedly were members of the Panchayat but were neither attributed any active role in its proceedings nor nominated in the First Information Report. They were acquitted by the Trial Court and that acquittal was upheld by the High Court. For the reasons mentioned in Para 18 of the majority judgment I agree that their acquittal is to be maintained. 7. Adverting to the impugned judgment, the High Court has disbelieved the prosecution version of the incident except to the extent of Abdul Khaliq, whose culpability was found of a far lesser degree than that alleged by the prosecution. The Court found a host of weaknesses in the prosecution case. It held that the delay of 8 days in reporting the incident to the police was inordinate and not sufficiently explained; that it was due to the persuasion and undue influence of Maulvi Abdul Razzaq (P.W.11) that the unwilling complainant and her father were made to make the report; that Maulvi Abdul Razzaq was the instigator and the mastermind of the entire plan; that the accused were nominated after deliberation and consultation with him. On merits of the prosecution evidence, the Court found contradictions in the statements of the witnesses. It found hard to believe that the complainant’s father and maternal uncle present at the Panchayat of the Mastoies would make no effort to intervene while the complainant was being raped in the nearby house. The Court was doubtful if the complainant was at all raped as it found no supportive evidence of her testimony, holding that the healed bruises on her buttocks and back did not furnish any corroboration. On the defence plea that Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 61 on the evening of the incident nikah, followed by sexual intercourse, was performed between Abdul Khaliq and Mukhtar Mai, the learned Judges of the High Court, neither held the nikah proved, nor gave clear finding on the culpability of the said accused, though, convicted him under Section 10(3) of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. 8. Taking up first the question of delay in lodging the report. Admittedly, it was made after eight days of the incident. There are no hard and fast rules for assessing the effect on the prosecution case of delay in reporting the crime to the police. Every case is to be examined on its own facts and the nature of the crime committed. The Courts are generally inclined not to attach much importance to delay in reporting rape, considering that the victim and her family would take time to recover from shock and to be in a position to decide whether or not report the crime, in view of the social taboos and the stigma it attaches not only to the victim but the entire family. Mr. Aitzaz Ahsan, learned counsel for the complainant, provided us with a long list of case law from our own as well as Indian jurisdiction where delay in reporting rape was not considered fatal to the prosecution case. Reference may be made to some of them. In Mehboob Ahmad v The State (1999 SCMR 1102), the Court observed, “We cannot be unmindful of the prevailing taboos in our society. Even in modern day advanced societies, for and on account of the prevalent predilections, many cases of rape go unreported. A victim of rape should not be penalized on account of ostensible delay in reporting what she has undergone. On the contrary, kindness, encouragement and understanding are the requirements to approbate a victim’s difficult decision to purge the society Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 62 of perpetrators of such heinous offences.” Brushing aside the defence argument of the delay in lodging the F.I.R. two months after the rape, the Federal Shariat Court in Muhammad Umar v The State (1999 P Cr. L.J. 699) declared that “delay in reporting occurrence of such nature to police was not uncommon, particularly in tribal society where people were normally hesitant to report to police matters concerning womenfolk and involving their honour.” In Nasreen v Fayyaz Khan and the State (PLD 1991 SC 412) this Court accepted the explanation furnished by the prosecutrix, victim of the rape, of delay of several months in lodging the F.I.R. In Azhar Iqbal v The State (1997 P.Cr.L.J. 1500), the Federal Shariat Court dealing with the delay in registration of a rape case observed that it was the natural result of the socio- ethnic situations coupled with painful mental condition of the victim and her close relatives; that such delay in rape cases is a universal phenomenon and can be brushed aside unless the very commission of offence itself is clearly dubious. 9. It follows that it is quite normal that crimes of rape are not reported promptly. The devastating effects of rape on the victim and her family itself furnish explanation for delay in its reporting. Delay per se would not cast any reflection on the truthfulness of the allegations made in the report. There is another compelling reason that discourages a rape victim to prosecute the accused. She is deterred by the embarrassment and humiliation she would have to suffer in narrating the incident to strangers, more so, to the police recording the F.I.R., followed by probes during investigation into matters personal to her. She would further have to bear the agony of narrating the story in the open Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 63 court in the presence of men and face searching and harassing questions from the cross-examiner. It is said that a rape victim relives the trauma every time she narrates the incident. 10. Furthermore, in our society rape victims, particularly, from rural areas, are not free agents. To bring the rapist to justice, they invariably require permission and approval of their men-folk. This is amply demonstrated by the facts of this case. P. W. Maulvi Abdul Razzaq claims that when he learnt about the incident, he approached the father of the complainant, Ghulam Fareed. It was only after he managed to persuade the father that the complainant was taken to lodge the report. 11. The record of the present case however reveals that there were a number of other factors that prevented the complainant party to make the report to the police. The complainant party was under a continuous threat from the accused not to disclose the incident. The threat was real in view of the social disparity between the two parties, as will be discussed latter. Without the moral support of P.W. Maulvi Abdul Razzaq and the publicity given to the incident, perhaps, it may never have seen light of the day. 12. Despite such odds, the complainant, an illiterate woman of rural humble background, mustered tremendous courage to stand up against powerful influential culprits to bring them to justice. Thus, in my view, the delay of eight days in reporting the incident to the police by the complainant in the afore-mentioned circumstances will not be fatal to the prosecution case. 13. The High Court, it appears, has placed the entire blame on P.W. Maulvi Abdul Razzaq for planning to prosecute the accused and in the words Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 64 of the High Court he was “the mastermind who got this case registered. He appears to have involved them by influencing and pressurizing the complainant and her father Ghulam Fareed who were playing in his hands, according to his own statement.” Maulvi Abdul Razzaq was Imam of a local mosque, who was one of the two arbitrators (salis) selected by the Panchayat of the Gujjars (complainant party) to negotiate with the representatives of the Panchayat of the Mastoi Tribe for a settlement of the dispute arising out of the affair between Abdul Shakoor and Mst. Salma. According to him, when the proposal of the Gujjars, that Abdul Shakoor be married to Salma and a girl from the Gujjars to a man from Mastoies, was not accepted by the latter, who insisted upon revenge (badla), he withdrew from the negotiations. That when he learnt about the rape, he made it public in the congregation of the Juma prayer and that is how the incident received wide publicity in the national and international media. Maulvi Abdul Razzaq, being an ‘Imam’ had some social standing and influence in the society and it was on account of his intervention and moral support that encouraged the complainant’s father to take the accused to task. The witness is not, in any way, related to the complainant party. It is hard to believe that the complainant, or her father would, in order to please Maulvi Abdul Razzaq, make out a false case of rape against the accused and face and endure its serious repercussions. The High Court had misconstrued the role of this witness, which in my opinion was positive and well intentioned, rather than mala-fide. His civil litigation with Karam Hussain, father-in-law of the accused Ghulam Fareed would not render him un-credible. Had he been ill motivated on that account he would have implicated Karam Hussain, or Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 65 member of his immediate family, rather than son-in-law. No ill will of this witness against the other accused has been shown by the defence. 14. In order to examine and appreciate the prosecution evidence in its proper perspective one has to keep in mind the disparity in the levels of the social status of the complainant and the accused party and the influence of the latter. The accused belonged to influential Mastoi Tribe and the complainant to a humble family of Gujjars. The influence of the Mastoi Tribe was vividly portrayed in a news report published in the Daily Dawn by a journalist, Nadeem Saeed, who was produced by the defence as D. W. 2 in support of the report (Ex.DK), to prove that the complainant had implicated the wrong Fayyaz as accused. Whether his reference to the statement of P.W. Abdul Shakoor about the error is admissible evidence is another issue, his personal observations reported in the news item titled “POLICE, FEUDALS TRYING TO SAVE CHIEF JUROR”, demonstrating the influence of Faiz Mastoi is admissible. The Correspondent visited the police station where the accused were detained. He observed that Faiz Mastoi was being treated by the officer in charge of the police station as a special guest and was trying to help out the accused by giving a different twist to the incident. The record further shows that due to influence of the Mastoi Tribe, without the intervention of its head (sarbara) Faiz Mastoi, the police did not dare release of Abdul Shakoor when he was detained by Abdul Khaliq in his house. It was on account of this clout that the police had refused to register the case of sodomy committed upon Abdul Shakoor. The very act of bringing the complainant to the Panchayat of the Mastoies to seek forgiveness for her brother but instead subjected to rape Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 66 while her near and dear ones stood by helpless, demonstrates the power of Mastoies as against the complainant. For further evidence of the Mastoies arrogance, aggression and highhandedness, one may refer to the statement of some of the witnesses. Altaf Hussain (P.W.12), who was one of the persons present at the Panchayat of the Mastoies, disclosed that after the complainant was raped the accused threatened the complainant party to teach them a lesson in case the matter was disclosed (Hashar Kar dengey). Sabir Hussain, P.W., the maternal uncle of the complainant, who had taken her to the Panchayat to seek forgiveness, when questioned in cross-examination about his failure to intervene to save the complainant from being raped, responded “I saved my life not respect” Mukhtar Mai, responding to a question volunteered, “after the rape we were not in our senses and everybody was weeping”. Sabir Hussain and Mukhtar Mai, during their testimonies had referred to the threats held out to the complainant party after the incident to prevent them from reporting to the police. The accused party not only raped the complainant but sodomized her brother, who out of fear and shame desisted from reporting both the incidents. 15. The episode culminating into the complainant’s rape began with the detention of Abdul Shakoor by Abdul Khaliq, brother of Mst. Salma, in his house on the allegation that he was having an affair with his sister. The members of Abdul Shakoor’s family made abortive efforts to get him released. Even the police initially failed and it was only when Faiz Mastoi gave clearance, Abdul Shakoor was handed over to the police, who took him to the police station. Abdul Shakoor’s family realizing that he would not be freed by Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 67 the police without the approval of the Mastoies, started making efforts to have the matter settled through compromise. On the other hand, the Mastoies were reluctant to any term of compromise without vindicating the honour of Mst. Salma’s family and for that matter, the Mastoi Tribe as a whole. To resolve the issue two separate Panchayats/Akaths were held, one by the Mastoies, comprising 200/250 members and the other by the Gujjars, each proposing its own terms of settlement. These were not the customary Panchayats convened to resolve disputes between two parties; each Panchayat was convened to decide its own terms for settlement. For the Gujjars, Maulvi Abdul Razzaq and one, Mansoor Jatoi, neither of them Gujjars, were nominated to negotiate with the Mastoies, who were represented by Faiz Mastoi, Ramzan Pachar and Ghulam Fareed. The Gujjars proposed that the hand of Mst. Salma be given to Abdul Shakoor and in return the complainant be wedded to Abdul Khaliq. The Mastoies rejected this proposal and demanded that a compromise could not be reached without badla (revenge), demanding that a woman of the complainant’s family be allowed to be subjected to zina. This demand was not acceptable to the Gujjars and as the negotiations failed they dispersed and their salis withdrew. Later on, Ramzan Pachar and Ghulam Fareed came with a fresh proposal from Faiz Mastoi that the complainant family would be forgiven and the matter compromised if Mukhtar Mai would seek pardon from the Mastoies. It was in these circumstances that Sabir Hussain P.W.13, maternal uncle of the complainant, accompanied by Haji Altaf P.W., Ghulam Nabi and Ghulam Fareed, father of the complainant took Mukhtar Mai to the Mastoi Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 68 Panchayat. However, according to the prosecution, instead of being forgiven, she was subjected to multiple rape. 16. There are two phases of the proceedings of the Panchayats and the negotiations between them through their representatives. The first is up to the stage of failure of negotiations and the second is the happenings thereafter. To prove the first, the prosecution has produced P. W. Maulvi Abdul Razzaq and P. W. Sabir Hussain; the former being one of the salis and the latter maternal uncle of the complainant, was part of the Gujjars akath assembled in the mosque. Besides the complainant, Sabir Hussain and Haji Altaf Hussain are witnesses of the second phase. The prosecution did not produce Ghulam Fareed, father of the complainant and Ghulam Nabi, who were also stated to be present when Mukhtar Mai was taken to the Panchayat. The prosecution is not obliged to produce all its witnesses, so long as it can bring on record sufficient credible evidence to sustain conviction of the accused on trial. In any event non appearance of the complainant’s father in the witness box is understandable. He was a timid and broken man who was neither able to prevent the rape of his daughter nor had the courage and nerves to go to the police. Perhaps, he was in no position to further endure the pain and embarrassment that he would suffer narrating the episode in open Court. The High Court, while disbelieving the prosecution case as a whole, found weaknesses in the testimony of these witnesses. However, due weight was not given to the testimony of the complainant, the victim of the crime and mainstay of the prosecution case. Her testimony provided foundation, while, the testimony of other witnesses furnished corroboration. Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 69 17. Both the Courts, the Trial as well as the High Court found that the Panchayats were held. Though, the High Court was suspicious of Maulvi Abdul Razzaq’s role in getting the case registered, his role in the negotiations between the two tribes was not seriously doubted. According to his testimony, he was associated by the Gujjars from the stage Abdul Shakoor was taken to the police station. Being Imam of the local mosque, his involvement by the Gujjars was quite natural. The Gujjars were of a lower social status and at the receiving end. They needed the intervention and support of men of some influence as they were not in a position to have the issue settled on their own. P. W. Sabir Hussain, being maternal uncle of Abdul Shakoor, no exception can be taken to his presence in the Gujjars’ akath and, thus, was well aware of all the negotiations that were going on. In fact, he is the witness of both the phases. Even the defence in their confirmatory suggestions to the prosecution witnesses, conceded the holding of Panchayats. For example, P.W. Maulvi Abdul Razzaq, in cross examination, admitted correct that Haji Altaf Hussain and Ghulam Nabi were present in the akath. It was argued by the defence counsel, Malik Muhammad Saleem, that suggestion by the defence to a prosecution witness in cross examination, does not amount to admission on behalf of the accused. Mr. Aitzaz Ahsan, however, referred to a number of judgments including two of this Court “Shehzad v The State (2002 SCMR 1009) and Muhammad Tashfeen v the State (2006 SCMR 577)” in support of his contention that such suggestion can be considered by the Courts. In the present case, suggestions by the defence to the witnesses have assumed greater importance as all the accused in their statements recorded under Section 342 Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 70 Cr. P. C., instead of taking any specific defence plea, stated “their defence is the same as taken in the cross-examination by the counsel”. Thus it stands proved that each camp held its own Panchayat/Akath, and entered into negotiations for a settlement, that eventually failed. 18. About the second phase of which the complainant was a witness, she had alleged that when she was taken to the Mastoies Panchayat, she was handed over to Abdul Khaliq accused. That inspite her hue and cry for help, no one came forward to her rescue. Abdul Khaliq armed with a pistol caught her by the arm, Fayyaz, Ghulam Fareed and Allah Ditta pushed and dragged her into the room of the house of Abdul Khaliq where the four subjected her to rape. 19. The roles of Faiza Mastoi, Ramzan Pachar and allegations made against each of the four accused of rape will be discussed later. The primary question is whether the complainant was subjected to rape. The fundamental and crucial testimony in any rape case is always that of the victim. Being victim of the crime she is the most informed and credible witness of the incident. The High Court found that the testimony of the complainant lacked corroboration. On the question as to whether in the absence of corroboration, conviction on a charge of rape can be based on the sole testimony of the victim, Mr. Aitzaz Ahsan cited a number of judgments where the Courts in Pakistan as well as in India have held that no corroboration was required. Reference may be made to “Muhammad Abbas v The State (PLD 2003 SC 863), Rana Shahbaz Ahmad v the State (2002 SCMR 303, 306), Shahzad v The State (2002 SCMR 1009), Mehboob Ahmad v The State (1999 SCMR 1102, 1103), Haji ahmad v The State (1975 Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 71 SCMR 69), In the last two cases it was held that absence of marks of violation on the body of the prosecutrix does not imply non-commission of rape. Ghulam Sarwar v The state (PLD 1984 SC 218 [SAB]) and Bhupinder Sharma v Himachal Pradesh (AIR 2003 SC 4684)”. In Bhupinder Sharma’s (ibid) case it was observed “when Indian woman in tradition bound society makes a complaint of rape there is an inbuilt assurance that the charge is genuine. To insist on corroboration is to add insult to injury.” 20. In most of the reported cases where conviction was based on the sole testimony of the victim, there was absence of corroboration. That is not so in the present case. When medically examined eight days after the incident, the doctor found healed bruises on the complainant’s buttocks and back. The locale of the bruises indicates physical struggle by the complainant and there healed condition coincide roughly with the timing of the incident. Unlike most other cases of reported rape, the present one was not committed in complete privacy and not for the satisfaction of the lust of the rapist. In the presence and within the view of the members of Panchayat and the witnesses the complainant was forcibly taken away by the accused to the house of Abdul Khaliq and freed with clothes in her hand and body half naked. 21. The complainant’s allegation of rape receives some support from the defence plea, admitting sexual intercourse between Abdul Khaliq and the complainant, albeit after performance of nikah. The defence in this respect made positive suggestion to P. W. Maulvi Abdul Razzaq and the complainant that nikah between the two was performed by the former. The suggestion was rejected by both the witnesses. The defence also produced Ghulam Hussain Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 72 (D.W.5) in support of the plea. This witness is father of one of the accused, Jamil. His testimony was not believed by either of the Courts. No other witness was produced to prove nikah. Maulvi Abdul Razzaq was conveniently introduced by the defence as nikah khawn in order to preempt any objection by the prosecution for not producing nikah khawn in support of the nikah. Had the nikah been performed between the two and Abdul Khaliq and the complainant pronounced husband and wife it does not stand to reason that the complainant would straightway leave the husband’s house for her own, for it is nobody’s case that they ever lived together. Whereas the Trial Court did not accept the plea of nikah, the High Court neither held the same proved, nor ruled out the possibility of its truth. With respect, the burden was on the accused to prove the nikah, though a lighter one. Once the burden was not discharged the plea had to be excluded from consideration for all purposes. Perhaps it was on account of some confusion in the mind of the learned Judges on the issue that led them to give inconsistent findings on the plea as the following passage of the impugned judgment would show. “The possibility cannot be ruled out that since Abdul Shakoor brother of the complainant was in police custody on the allegation of committing ziyadti with Salma sister of Abdul Khaliq to save him from the legal action she had agreed to perform marriage with Abdul Khaliq and was sent with him immediately as was suggested to the PWS during cross-examination, who performed sexual intercourse with her and at about 2.00 a.m. the same night Abdul Shakoor was taken back from the Police Station. But the intention of Abdul Khaliq is borne out from the record that he only Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 73 wanted to take revenge of ziyadti committed with his sister Salma and, therefore, on 27.6.2002 the marriage of Salma sister of Abdul Khaliq appellant was performed with Khalil co-accused thereby backing out from their commitment of marrying Salma with Abdul Shakoor. The complainant was also taken back to the house of her parents but no case was got registered till 30.6.2002. An inference can be drawn that if marriage of Salma was performed with Abdul Shakoor, then this case might have not been got registered in such circumstances, Abdul Khaliq in so many words has admitted the commission of sexual intercourse with the complainant and even otherwise to the extent of Abdul Khaliq there is consistent stand of the PWs that he was active to take revenge for the disrespect of his sister Salma.” 22. If the plea of nikah is accepted, the complainant would still be the lawful wedded wife of Abdul Khaliq, as it is not the case of the defence that the complainant was divorced. One wonders why would she bring a charge of rape against her husband even if the accused party had backed out of their commitment of marrying Mst. Salma with Abdul Shakoor. 23. Mr. Malik Muhammad Saleem, learned counsel for the defence referred to a number of aspects of the prosecution case in order to persuade us that the entire story set up was concocted. The learned counsel argued that it is unbelievable that PW Sabir Hussain, maternal uncle of the complainant would take her to the Mastoies Panchayat who had already vowed to take badla (revenge). This argument fails to take note that when the Mastoies rejected the Gujjars’ proposal for settlement, the negotiations failed and the Gujjars aktah dispersed. It was thereafter that Muhammad Ramzan Pachar and Ghulam Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 74 Fareed approached the complainant’s family with a new proposal from the Mastoies that led the complainant party to seek pardon from the Mastoies. The complainant’s family, hard pressed for the release of Abdul Shakoor from the police custody, took their chance and presented the complainant to the Panchayat. Reference may be made to the statements of P.Ws. Altaf Hussain, Sabir Hussain and the complainant. They were unaware of the actual decision and design of the Panchayat. The dispersal of the Gujjars’ Akath also furnishes answer to the defence argument as to why the Gujjars did not intervene to save the complainant. Additionally the Gujjars’ Akath, even otherwise was weak, comprised of 15/20 members as against the 200/250 members of the powerful Mastoi Tribe. The learned defence counsel had further argued that it was not possible that rape would be committed in the house of Abdul Khaliq when the complainant admitted that the accused Allah Ditta lived in that house along with his wife and children. This argument fails in the absence of any evidence, or even suggestion by the defence, that Allah Ditta’s family was present in the house at the time of the occurrence. The learned defence counsel next contended that had the complainant been subjected to rape, members of her family would never have accompanied Faiza Mastoi and Ramzan Pachar to the police station to obtain the release of Abdul Shakoor. This argument loses sight of the fact that the negotiations between the two parties were held with the object of the Gujjars to get Abdul Shakoor’s release. The Mastoies forced their own terms on the Gujjars. The Mastoies were thereafter no more desirous of Abdul Shakoor’s detention. For the release, the Gujjars were compelled to take Faiza Mastoie to the police station, without whose permission, as noted above, Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 75 the police would not release Abdul Shakoor. It made sense for the complainant’s family to get Abdul shakoor released even with the help of their tormentors when they had already suffered in the process. 24. There is another aspect of the case. Upon receipt of certain complaints regarding negligence and corruption by the police during investigation of the case, the Deputy Inspector General of Police, Dera Ghazi Khan Range ordered a fact finding inquiry to be conducted by Mr. Mirza Muhammad Abbas, Superintendent of Police, Crimes Range. During this inquiry certain statements were recorded, apparently also of all the prosecution witnesses. After the prosecution closed its evidence the defence examined the said Mirza Muhammad Abbas as D.W.6 and on the basis of his statement the prosecution witnesses, Mukhtar Mai and others were recalled and subjected to another round of cross-examination in order to confront them with their statements recorded in the said inquiry. For the purpose of highlighting the contradictions in the prosecution evidence, the High Court had extensively referred to these statements. Mr. Ch. Aitzaz Ehsan, objected to reference to such statements, as according to him they carried the signatures of the witnesses and thus could not be treated as statements under Section 161 and therefore, the witnesses could not have been confronted with them under Section 162 Cr. P. C. It was argued that admittedly these statements were not part of the investigation but recorded during the fact finding inquiry into the allegation of corruption and negligence of the local police investigating the case. On the factual aspect, the learned counsel submitted that the statements of the main prosecution witnesses were not even proved, in that Mirza Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 76 Muhammad Abbas (D.W.6) admitted that the statements of Mukhtar Mai, Maulvi Abdul Razzaq and Ghulam Fareed were not recorded by Inspector Riaz in his presence; that Inspector Riaz was not produced to prove the statements. Responding to this contention Malik Muhammad Saleem, learned ASC, argued that the witness gave concessions to the prosecution due to pressures of the Government and the Media on those involved with the investigation and that is why the Court declared the witness hostile. That in any case, photo copies of the statements recorded by him were brought on record. He pointed out that the witness admitted that the statement of P. W. Sabir Hussain was recorded in his presence. 25. Leaving aside the controversy about the status of the statements recorded during the fact finding inquiry, those of Mukhtar Mai, Maulvi Abdul Razzaq and Ghulam Fareed do not stand proved. They had denied making them. Inspector Riaz, who is alleged to have recorded the statements, was not produced to prove the same. As for the statement of P.W. Sabir Hussain (Ex.DR/2), D. W. 6, admits that it was recorded in his presence. Even if the same could be legally used for confronting the witness I found that the statement supports the prosecution case on all material aspects and that the cross-examiner confronting him with such statement was unable to elicit any material contradiction with his previous statement in Court or the prosecution case as a whole. The High Court had even taken into account the statement of Ghulam Fareed, father of the complainant, made during the said fact finding inquiry, even though he was not produced as a prosecution witness. The Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 77 previous statement made by a person can only be referred to when he testifies in court. 26. There is some controversy between prosecution and the defence about the cause of detention of Abdul Shakoor by Abdul Khaliq in his house leading to the holding of the two Panchayats. The prosecution alleges that Abdul Shakoor was sodomised by Punoo, another brother of Mst. Salma, and his two accomplices, in the sugarcane field of the village and to save themselves from criminal prosecution, locked up him on the false allegation of intimacy with Mst. Salma. The defence version, on the other hand, as gathered from the trend of cross examination and the statement of their witness, Ghulam Hussain D. W. 5, is that Abdul Shakoor was detained after he was caught with Mst. Salma in the sugarcane field. There is no direct evidence of any sexual intercourse between the two except for the verbal assertion by D.W.5. Whether or not such intimacy did exist is not material here so long as the accused party believed in it, which they did. The sodomy on Abdul Shakoor has been denied by the defence but the same stands proved not only by the statement of Dr. Fazal Hussain, P. W. 17, who upon his medical examination on 13.7.2002, confirmed that he was subjected to sodomy, but the matter has now been judicially determined as all the three accused were convicted under Section 377 PPC and their appeal was dismissed by the Federal Shariat Court. Copy of the judgment of the Shariat Court was produced by the learned counsel for the complainant. 27. The prosecution version does not appeal to reason. In any society, much less rural or tribal, would brothers falsely scandalize their unmarried Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 78 sister to save their own skin from a criminal charge of sodomy. The facts of the present case show that the accused party did not need any protection as according to the testimony of Abdul Shakoor, because of fear and shame he had refrained from reporting the sodomy to the police. Considering the complainant being a weaker party the accused did not had to worry about any criminal charge of sodomy. As stated earlier, they almost managed to keep the complainant family silent about the rape. 28. Though the sodomy on Abdul Shakoor stands proved but the reason advanced by the prosecution for his detention by Abdul Khaliq is found preposterous. Though it may sound speculative, it seems that Abdul Shakoor and Mst. Salma were found together in the sugarcane field; taking this as an insult, her brother, Punoo, and his two accomplices first sodomized Abdul Shakoor and thereafter locked him up, leading to the present incident. Having said that, the incident of sodomy only provides a background to the present occurrence but does not have any substantial bearing on the merits of the case. 29. The second phase of the episode, in the Mastoies Panchayat, is proved by the testimony of the complainant, P.W. Sabir Hussain and Haji Altaf Hussain. The complainant had successfully withstood the test long cross examination, twice, spreading over sixteen pages. At one point, she broke down, which was noted by the Trial Court. Her testimony supported by the healed bruises on her body was sufficient to prove the charge of rape. Nevertheless her testimony receives further corroboration from the statement of her maternal uncle P.W. Sabir Hussain, whose presence in both the panchayats cannot be doubted. As earlier observed, the defence had failed to Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 79 make any dent in his testimony. The High Court, with respect, was not right in discarding his testimony on the ground that he was not witness to the actual rape. He had taken the complainant to the Mastoies Panchayat and had witnessed her being dragged to the house and then saw her half naked after the rape. It is a rare phenomena to find a eyewitness of the very act of rape. As far as the presence of P.W. Altaf Hussain is concerned, the High Court has disbelieved his testimony on the ground that he being the brother of Maulvi Abdul Razzaq, labeled as ‘mastermind’ of the case, was interested in the prosecution of the accused. I have already disagreed with the High Court’s observations regarding P.W. Maulvi Abdul Razzaq, but even if the testimony of Altaf Hussain is excluded, the testimonies of the complainant and P.W. Sabir Hussain, together with the circumstances of the case, sufficiently prove the prosecution case. The contradictions of the prosecution case mentioned in the impugned judgment and also highlighted by the learned defence counsel are not so significant as to render the entire prosecution case false. Some of the contradictions between statements of the prosecution witnesses about minute details of the various stages of the episode, from the detention of Abdul Shakoor right up to the commission of rape, spreading over several hours can be attributed to the hectic activities and tension between the two groups, particularly in the complainant’s camp. Even otherwise the contradictions taken into consideration by the High Court were mainly with reference to the statements made by the witnesses to the fact finding enquiry, which were never proved. Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 80 30. In the light of the foregoing appraisal of the prosecution evidence, it stands established that Abdul Shakoor was detained by Abdul Khaliq, accused, on the accusation that he had developed an illicit liaison with his sister and that eventually he was taken into custody by the police; that two Panchayats, one of the Mastoies and the other of the Gujjars, were separately held; that when the negotiations between them failed for the release of Abdul Shakoor, Mukhtar Mai was taken to the Mastoies’ Panchayat for seeking pardon but was instead subjected to zina-bil-jabr. To this extent, the prosecution has succeeded in proving its case. 31. The next question to be determined is whether the rape was committed with sanction of the Mastoies Panchayat. The High Court had answered this question in negative on the ground that there was no direct evidence that the Panchayat had taken decision to take revenge by zina for zina. No one from the Panchayat would have been ready to come forward and testify for the prosecution. Its stand can only be gathered from the circumstances. The two prosecution witnesses, Maulvi Abdul Razzaq and Sabir Hussain, testified that the Gujjars’ proposal of swap marriages between members of the two groups was not accepted by the Mastoies Panchayat, who insisted upon revenge. This assertion is corroborated by the Panchayat’s conduct when the complainant was brought before it. Its sanction was evident when its 200/250 members remained unmoved when the complainant begged for help while she was being dragged by Abdul Khaliq and others to the house. The presence of such a large number of members of Panchayat also scared the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 81 persons accompanying the complainant from making any attempt to save her. The Panchayat thus approved and facilitated the commission of zina-bil-jabr. 32. I have already agreed with the majority view that eight accused members of the Panchayat, not named in the F.I.R., were entitled to acquittal. The role of Faiz Mastoi, Ramzan Pachar and Ghulam Fareed, however, stands on a different footing. They were nominated in the F.I.R. and also by the witnesses in their testimony as representative of the Mastoies and taking active part in the negotiations. The complainant had stated that when she was brought to the Panchayat, Faiz Mastoi addressed Abdul Khaliq, accused, that as the complainant had been brought her family be forgiven. She however added that this was said in a Siasi/Dunyavi (politically/worldly) manner. The learned defence counsel, taking advantage of the statement, contended that the same shall be taken on its face value that Faiz Mastoi did not approve of the revenge and was rather inclined to forgive the complainant party. The statement has to be seen in its context. Faiz Mastoi was the sarbrah (head) of the Mastoie Tribe. In that capacity he headed the Panchayat deciding the terms of settlement. His statement of forgiveness may have been his personal view but he felt bound by the decision of the Panchayat and allowed its implementation when despite being in a position of influence did not intervene when Abdul Khaliq took the complainant to his house. The other two, Ramzan Pachar and Ghulam Fareed, actively participated in the Panchayat’s proceedings and represented it. According to Maulvi Abdul Razzaq and Sabir Hussain these two had out rightly rejected the Gujjars terms for settlement and insisted upon zina for zina. Ghulam Fareed is additionally charged for participating in gang rape. His that Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 82 role would be discussed later. Faiz Mastoi, Ramzan Pachar and Ghulam Fareed, thus facilitated, aided and abetted the commission of zina-bil-jabr. 33. The complainant had charged four accused for gang rape; Abdul Khaliq, his brother, Allah Ditta, Faiz Muhammad and Ghulam Fareed. All the four were convicted by the Trial Court under Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and each of them sentenced to death. For the reasons afore-stated, rape by Abdul Khaliq stands proved beyond shadow of doubt. He was the main figure in the entire episode, playing the lead role from locking up of Abdul Shakoor to dragging the complainant to his house. As regards Fayyaz accused, undisputedly a resident of Rampur, and not a mastoi, the defence case has been that he was mistaken for another Muhammad Fayyaz, resident of Mirwali, a mastoi and cousin of Abdul Khaliq. To prove the error, the defence produced Nadeem Saeed, D.W.2 of the Daily Dawn, whose testimony has been discussed earlier in a different context. He had quoted Hazoor Baksh, brother of the complainant, that the police got hold of the wrong Fayyaz. This may amount to hearsay evidence but similar complaints about the error were made to the Governor as well as other police officer. The question of identity of Muhammad Fayyaz has been discussed in the majority judgment and on a charge of serious offence of gang rape, I would agree with the findings that he would be entitled to the benefit of doubt on the ground of mistaken identity. This leaves us with Allah Ditta and Ghulam Fareed. The complainant was subjected to rape in a room in the house of Abdul Khaliq at around mid night. The prosecution evidence is completely silent about the source of light in the room. The site plan carries a note by the Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 83 investigating officer that he was informed that it was a moon lit night, thereby tacitly confirming the absence of electric light in the room. The complainant had charged four accused for the rape. The only sentence for gang rape under Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 is death. The complainant’s allegation of being gang raped may not be false but in such a situation where one of the accused, Fayyaz, is being given benefit of doubt and acquitted of the charge of rape, and there was no light in the room where the incident took place, it may be unsafe to convict the other two accused of offence under Section 10(4) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979. Having said that, Ghulam Fareed and Allah Ditta were the ones who had physically helped Abdul Khaliq in forcibly taking the complainant to the room. Ghulam Fareed had already been found guilty for facilitating and abetting the commission of rape. Allah Ditta is held similarly guilty. 34. The learned defence counsel opposed the appeals against acquittal on the legal plane that a verdict of acquittal is not liable to be converted into that of conviction unless the appellants (complainant and the State) could show that the judgment of acquittal suffers from some material irregularities or has resulted in grave miscarriage of justice. He contended that all the points now being taken up by the prosecution were examined and adjudicated upon by the High Court. That though the High Court had drawn correct conclusions from the evidence, but such findings cannot be reversed even if this Court comes to different conclusions on the same evidence. He placed relied upon Relied upon, Ghulam Sikandar v Mamaraz Khan (PLD 1985 SC 11), Ch. Aitzaz Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 84 Ahsan, on the other hand, referred to certain aspects of the case and the impugned judgment, which according to him, warrants interference by this Court. With the help of case law, he argued that the judgment of acquittal based on misapplication of law, conclusion drawn by taking into consideration inadmissible evidence the reversal of the findings of acquittal. In support, he cited “Barkat Ali v Shaukat Ali (2004 SCMR 249), Amal Shirin v The State (PLD 2004 SC 371) and Mohammad Ashraf v Tahir (2005 SCMR 383)”. In the latter case, a full bench of this Court convicted the accused whose acquittal by the Trial Court was upheld by the High Court, after the entire evidence was comprehensively reappraised. 35. The following errors pointed out by the learned counsel for the complainant, in my view, call for interference with the impugned judgment. The High Court, as observed above, erred in holding that the delay in lodging of F.I.R. is fatal to the prosecution case; that the testimony of a rape victim requires corroboration. The Court had overlooked that there was corroboration of the complainant’s testimony. The Court failed to give due attention and weight to the testimony of the victim of the rape and its findings were considerably influenced by its erroneous view about the role of P.W. Maulvi Abdul Razzaq. The High Court was not entitled to use, and that too extensively, for the purpose of highlighting inconsistencies in the prosecution case, the statements recorded by Mirza Muhammad Abbas (P.W.6), during the facts finding inquiry, more so, treating such a statement of Ghulam Fareed, father of the complainant, as substantive evidence without his appearance in Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 85 the witness box. The High Court had failed to give any clear finding on the culpability of Abdul Khaliq. 36. For the foregoing reasons Criminal Appeal No. 171 of 2005, filed by Abdul Khaliq, is dismissed, Criminal Appeal Nos. 163 to 166 of 2005, filed by the State and 167 to 170 of 2005, filed by Mst. Mukhtar Mai are partially allowed. The impugned judgment to the extent of acquittal of Allah Ditta, Ghulam Fareed, Faiz Mastoi and Muhammad Ramzan Pachar, is set aside and they are convicted under Section 10(3) of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with Section 19 of the Ordinance and Section 109 PPC for abetment of zina-bil-jabr and under Section 7(c) of the Anti Terrorism Act, 1997 and on each count sentenced to imprisonment for ten years. The sentences shall run concurrently. Sd/- NASIR-UL-MULK JUDGE 19.4.2011 Criminal Appeals No.163 to 171 and S.M. Case No.5/2005 86 Order of the Court In view of the majority decision, all the noted appeals are hereby dismissed. The suo moto action initiated by this Court vide order dated 14.3.2005 in the matter is also discharged. Therefore, all those who were arrested pursuant to the order of this Court dated 28.6.2005 if not required in any other case be released forthwith. Abdul Khaliq, however shall be released after serving his sentence as awarded to him by the learned High Court, the benefit of Section 382 Criminal Procedure Code extended to him by that Court is also maintained. Sd/- Judge Sd/ Judge Sd/- Judge Announced in open Court on 21.4.2011 at Islamabad APPROVED FOR REPORTNG

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE GULZAR AHMED MR. JUSTICE DOST MUHAMMAD KHAN Criminal Appeal No.163/2013 and Criminal Appeal No.164/2013 (On appeal from the judgment dated 16.5.2013 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in Criminal Appeal No.333/2010). 1. Taimoor Khan …Appellant (In Crl.A.163/2013 2. Taj Muhammad …Appellant (In Crl.A.164/2013 Versus The State and another ..Respondents in both cases In Crl.A.No.163/2013 For the appellant: Mr. Basharatullah Khan, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Muhammad Waheed Khan, Addl. PG. Pb In Crl.A.No.164/2013 For the appellant: Malik Abdul Haq, ASC For the State: Mr. Muhammad Waheed Khan, Addl. PG. Pb Date of hearing: 4.2.2015 JUDGMENT Dost Muhammad Khan, J-. This single judgment shall also decide Criminal Appeal No.164/2013 filed from Jail by Taj Muhammad as both are against the same judgment of Lahore High Court Rawalpindi Bench, Rawalpindi dated 16.5.2013 and because both are out come of the same crime FIR No.174 dated 17.7.2007 registered by Police Station, Hasan Abdal district Attock under Section 9(c) of Control of Narcotic Substances Act, 1997. Crl.As.163-64/2013 2 Arguments of the learned counsel for the appellants and learned counsel on behalf of State heard and record carefully perused. 2. On the above date, at 7.00 am truck No.P-3388/Peshawar was intercepted by Shakeel Ahmed, Inspector/SHO/I.O., Police Station, Hasan Abdal alongwith his police party. After a brief chase, the same was brought to halt. The present appellant was found on the front seat, while Taj Muhammad appellant of the connected appeal, was occupying the driver seat. On search of the body/deck of the truck, 160 bags ground poppy, each weighing 50 kilograms, total weight 8000 kilograms was recovered. Allegedly, small quantity from each bag, total weighing 500 grams was separated for examination by the Chemical Examiner for his opinion and report, while bulk of stuff was separately taken into possession. Both the appellants were arrested. 3. The Chemical Examiner report Ex-PD dated 25.7.2007 reveals as follows:- “The sample was examined and I was led to conclude that it was poppy head. Test on back page. The above packet contains crushed poppy heads which can be used to cause intoxication” 4. On the reverse page of the report, for his own convenience, the Chemical Examiner has put a rubber stamp and only the blanks have been filled without showing the percentage of Meconnic Acid, Sulphuric Acid, Porphyroxin, Alkaloids, Morphine and Codeine. According to chemical and physiological formula, the combination of these acids and alkaloids of required percentage would constitute narcotics substance of a prohibited degree. 5. Today when the case was taken up for hearing, the learned State counsel simply relied on the definition given in Section 2, clause (t) which is reproduced below:- Crl.As.163-64/2013 3 “(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;” 6. He also referred to Clause (w) of Section--2 defining poppy straw which is as follows:- “(w) “poppy straw” means all the parts, except the seeds of the opium poppy after mowing;” 7. In view of the legal controversy, we have carefully attended to this aspect of the matter and found that the report of Chemical Examiner as is common to all experts on the subject is a rough work not upto the mark. We have noticed with great concern that Chemical Examiners are taking this important task very lightly, conveniently ignoring the fact that their report alone would render the substance to be a particular narcotic substance because under the provision of Section 34 of Control of Narcotic Substances Act, 1997, the Federal Government has been authorized to set up Narcotic Testing Laboratories and such other Institutes and Narcotics Testing Research Laboratories or notify any other laboratory or institute to be a Federal Narcotics Testing Laboratory for carrying out the purpose of the Act. Under the provisions of Sub-section-2 thereof, the Provincial Governments have also been vested with the same and the similar authority. 8. With few exceptions, both the Federal and Provincial Governments have almost notified the existing Narcotics Testing Laboratories for the purpose of section 34 of the Narcotics Substance Control Act, 1997 and did not establish modern laboratories, well equipped with the modern techniques, managed and headed by the experts of required qualifications and experience, essential for Crl.As.163-64/2013 4 chemical analysis of narcotics. In this way, both the governments have not fulfilled their statutory obligation under the provision of section law. This kind of uncaring attitude on the part of the Executive fully exposes the degree of interest it has taken, to assist in the administration of justice on the matters relating to narcotics substance. For this very reason, the raw hands so-called experts and ill-equipped laboratories are forwarding reports to the Courts, bereft of sound reasons, the chemical and physiological formula and percentage of each alkaloid found in the substance is conspicuously omitted essential to form a fair conclusive opinion regarding its potency of causing intoxication. 9. Opium or opium derivatives are obtained from opium poppies (papaver somniferum), the most popular and attractive garden plants. The opium latex inside the pod is obtained through indigenous process. Sharp cuts/incision is given puncturing the pod, the liquid/latex starts leaking out and coagulates around the pod and after many hours when it changes the colour, the dried latex is scrapped. The same is then transformed into baked or consumable opium through indigenous process of light heating. 10. The baked/dried opium contains two main groups of Alkaloids. The first group is morphine, codeine and thebaine. The other group is Isoquinolines, such as papaverine and Noscapine. The First group falls within the definition of dangerous drugs (narcotics substance) as the same significantly effects the central nerve system. If the opium is chemically processed then, synthetic morphine, heroin and codeine are procured therefrom. Amongst the first category morphine is placed in the most dangerous drug like heroin. The first category of alkaloids in opium contains 10% to 16% morphine having dangerous/harmful effects causing lungs edema, respiratory conjunction, ultimately leading to collapse of cardiac and respiratory system. Although under a proper licensing system, it is also used for medicinal purpose but the Crl.As.163-64/2013 5 smugglers involved in illegal business, supply the same to the drug edicts throughout the world. 11. Under the provision of section 34 (ibid) read with the relevant rules, the opinion of the notified expert alone is admissible in evidence and the person found in possession of narcotics substance is invariably punished on the opinion of the expert because the Investigating Officer, the Prosecutor or the Judges being not expert on the subject cannot give legally acceptable opinion to this effect. In this way, very heavy responsibility is placed on the qualified Chemical Examiner by the law to give well reasoned, authoritative and detailed opinion about a particular narcotics substance. 12. Keeping in view the provisions of the Act, Rules, vide SRO No.810(I)/2001 dated November 28, 2001 were published in the Gazette of Pakistan, Extraordinary Part-II for the guidance of the Chemical Examiners and about their qualification. Under rule 3 thereof, the chemical analysts shall be a person who has a degree in Pharmacy or Pharmaceutical Chemistry or Medicine from a recognized University or of any other institution recognized by the Federal Government for this purpose and has not less than three years postgraduate experience in the test and analysis of drugs. While, under rule 4 the Investigating Agency is required to send a sample in a reasonable quantity taken from each bag/slab/packet to the Testing Laboratory by insured post or through special messenger duly authorized for the purpose. Rule 6 of the ibid Rules requires that after test or analysis, the result thereof, together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II, which shall be signed and stamped by the officer authorized and notified by the Federal Government in the Official Gazette. 13. The above legal requirements are obligatory/mandatory in nature, therefore, chemical analysis if carried/conducted in derogation of or in disregard Crl.As.163-64/2013 6 of the required procedure, the report of the Chemical Examiner would lose its sanctity and cannot be acted upon for the purpose of convicting a person on absurd, meager, cryptic, insufficient and inconclusive report. It is a high time for the prosecution and all the government departments dealing with this subject, to realize the sensitivity of the matter because under the provisions of S. 9(c) of the Act, 1997, the punishment for possessing, transporting or trafficking and smuggling narcotics substance is death sentence or life imprisonment with a fine of no limit. No one can be deprived of his lifelong liberty or sent to gallows unless and until the Chemical Examiner possesses the required qualification and experience, duly notified by the Federal Government and his report contains elaborate reasons giving percentage of each alkaloid contained in the narcotics substance and giving a conclusive opinion as to whether the required percentage of alkaloid is sufficient to cause intoxication and the substance so analyzed clearly falls within the definition of narcotics substance or not. 14. As earlier noted, in the present case on the second page of the report of Chemical Examiner (Ex-PD) it is mentioned that the sample was consisting of crushed poppy heads of brownish colour. The Chemical Examiner has put a rubber stamp on the same page, which is as follows:- The above rubber stamped chart does not convey any sense much less a meaning as to what actually the Chemical Examiner has written and conveyed to the Court or to the sender, in his report. Certainly it is a gross negligence on his part. He has violated the rules and mandatory procedure and is liable to be proceeded against under the E&D Rules to make it a lesson for the others. CHEMICAL TESTS FOR OPIUM CONTENTS Test For Meconic Acid ____________ Test for Sulphuric Acid____________ Test for Porphyroxin_______________ Test Alkaloids____________________ 1 Morphine_______________________ 2 Codein_________________________ Crl.As.163-64/2013 7 15. During the course of hearing, we were also confronted with the correct and true definition of narcotics substance/drug, particularly, opium and its alkaloids and that what percentage of the same on consumption would cause intoxication to bring it within the definition of narcotics substance. This issue was also the subject of discussion and debate before the Lahore High Court in the case of Khalil-ur- Rehman v. The State (PLD 2005 Lhr. “F.B” 440). 16. After combined study of the various provisions of the definition clauses i.e. sections 2 and 3 of the Act, one is left to the guesswork due to incomplete and absurd definition of ‘opium’ given in clause (t) of section 2 of the Act. The same is reproduced below:- (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 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 include any preparation containing not more than 0.2 per cent of morphine.” Similarly, under clause (w) “poppy straw” means all the parts, except the seeds of the opium poppy after mowing, while under clause (x) “poppy straw concentrate” means the material obtained after the poppy straw has been subjected to a process for the concentration of its alkaloids. In the judgment (ibid) the Lahore High Court has noted down the defects, flaws and omissions in the definition clauses however after holding such view, no directions were issued to the Legislature/Government to make good the deficiency in the relevant provisions of law. 17. Now it is deemed imperative to draw a fair inference from the definition clauses of section 2 of the Act and if it is not so possible then to recommend and advise the remedial measures. Crl.As.163-64/2013 8 18. The definition of the ‘poppy straw’ although does not expressly mention the latex in liquid or dried form but the deducible inference would be that it speaks about the entire plant including the poppy pods containing latex/milky liquid, from which opium is obtained because the intended exclusion therefrom is the seeds inside the pod. Thus, fair conclusion would be that it does not speak with clarity about the opium as well, which is part of the poppy straw. The next question thus, arises is that, primarily it is the percentage of particular alkaloids in a particular substance, which would render the substance a narcotics substance because the universal conventions too lay emphasis to that effect. However, the vagueness and absurdity in the relevant definition clauses leave behind much for debate and discussion. There is no cavil to the proposition that once it is described that the latex/liquid inside the pod of poppy plant, obtained through the above indigenous procedure, is the principal narcotics substance, the most precious one for those who indulge in illegal business of opium then empty capsules/pods, out of which the seeds and remnants/micro particulars are removed/scrapped, still would have intoxicating effect, is definitely a matter of high presumption and drawing conclusion in that way would be highly unsafe unless research based opinion, both of international and national level is incorporated in the true and correct definition of poppy straw, clearly drawing a distinction between pure opium, pods and straws including the latex of the poppy plants to categorize which one is potential narcotics substance and others of minimum degree not causing intoxication like pure opium as presently, the definition of poppy straw u/s 2(t) is misleading being vague and absurd. 19. This clarification in the definition clause is required to be made because not only the sentence u/s 9(c) of the Act is death or life imprisonment if Crl.As.163-64/2013 9 the quantity is of the nature mentioned therein but also for the reasons that this grave menace of drug trafficking is increasing day by day because of the poppy cultivation at massive level in the neighbouring country, so that the serious mischief posing threat to human life and dignity is suppressed in an effective manner. The Government and the Legislature may take guidance from the international conventions beside the research oriented opinions of the experts on the subject while making amendments in, addition or omitting something from the definition clauses so that the meaning of opium with regard to poppy straw is clearly provided and present confusion in the definition clauses is adequately removed/done away. Therefore, we direct the Government to make an early effort for doing the needful as discussed above. Similarly, the learned Attorney General for Pakistan and the Secretary Narcotics Division are required to issue clear directions to all the Laboratories, headed by the Chemical Examiners requiring them to comply with the above guidelines contained in the rules mentioned above, otherwise such cryptic, absurd, meager and inconclusive report would be of no benefit to the prosecution in future. The required qualification and experience of each expert shall also be checked and properly verified without any undue delay. 20. Now looking at the facts of the present case, we have found on record an application of the accused submitted to the trial Court with a request to send a reasonable quantity of the preserved sample for re-examination through any other Laboratory however, at a subsequent stage, the defence did not press the application rather abandoned this plea and it was dismissed by the trial Court through a short order. This conduct of the accused/defence raises a strong presumption against them as they were apprehending another result adverse to them, otherwise there was no impediment in their way to have taken the matter to a logical conclusion getting clearance from the charge. Crl.As.163-64/2013 10 21. Accordingly, we do not find legal merits in both the appeals, which are dismissed. Judge Judge Judge Islamabad, the 4th February, 2015 Sarfraz /- ‘Approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No.17-P & 18-P/2013 (against the judgment dated 24.7.2007 passed by the Peshawar High Court, Peshawar in Crl.As.599/2006). The State (in both cases) …Appellant(s) VERSUS Imran Nazir Muhammad Yousaf (Crl.A.17-P/2013) (Crl.A.18-P/2013) …Respondent(s) For the Appellant(s) : Mr.Muhammad Tariq Khan, ASC For the Respondent(s) : N.R Date of Hearing : 29.04.2019 Judgment Qazi Muhammad Amin Ahmed, J.- Arisen out of the same backdrop with a common thread, the captioned appeals are being decided through this single judgment. Way back on 30.6.2004, Anti Narcotics Force, Peshawar on a tip off intercepted a Punjab bound truck bearing registration No.PRC-6168. Upon search, 2800 kilograms of charas was recovered from secret cavities of the vehicle; the respondents were apprehended and sent to face trial before the learned Judge, Special Court (CNS), Peshawar; they were returned a guilty verdict under Section 9 (c) of the Control of Narcotics Substances Act, 1997 and sentenced to imprisonment for life along side fine of Rs.500,000/- or to undergo five years S.I. in the event of default with benefit of Section 382-B of the Code of Criminal Procedure. The vehicle was forfeited in favour of the State. A learned division bench of the Peshawar High Court vide impugned judgment dated 24.7.2007 acquitted the respondents from the charge vires whereof are being challenged through leave of the Court on the ground that there was no occasion for the learned High Court to acquit the respondents Criminal Appeals No.17-P & 18-P/2013 2 merely on the ground that the prosecution witnesses failed to point out as to who was on the wheel when ANF contingent surprised them. 2. A huge quantity of contraband notwithstanding we have not been able to take exception to the view taken by the learned High Court inasmuch as in the presence of two individuals in the cabin it was incumbent upon the witnesses to unambiguously point out the person on the vehicle in order to establish conscious possession of the seized stuff and in the face of wavering positions taken by the prosecution itself, respondents cannot be denied the benefit of the doubt, a golden thread in our criminal jurisprudence. We do not feel inclined to interfere with the impugned judgment, however the forfeiture of vehicle impounded by the ANF is kept intact. Appeals are dismissed. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB Criminal Appeal No.176/2012 (On appeal from the judgment dated 12.3.2010 passed by the Lahore High Court, Lahore in Crl.A.No.174-J/2004 and MR.639/2004). Muhammad Asif …Appellant VERSUS The State ...Respondent For the appellant: Mr. Muhammad Akram Gondal, ASC Syed Rifaqat Hussain Shah, AOR For the State: Ch. Muhammad Waheed Khan, Addl.PG. Pb. Date of hearing: 18.1.2017 ORDER Dost Muhammad Khan, J-. Leave to appeal was granted vide order dated 6.2.2012 to make reappraisal of the entire evidence including unnatural conduct of the eye witnesses and when two co- accused (real brothers) of the appellant have been acquitted by the trial court, disbelieving the prosecution witnesses, whether the same evidence without independent corroboratory evidence could be acted upon awarding capital punishment to the present appellant. We have heard learned ASC for the appellant and Ch. Muhammad Waheed Khan, learned Additional Prosecutor General, Punjab. Crl. A. 176 / 2012 2 2. The trial court at the conclusion of the trial vide judgment dated 31.5.2004 acquitted the two co-accused (real brothers) of the appellant while he was awarded death sentence and to pay Rs.200,000/- (two lac) to the legal heirs of the deceased. 3. On appeal and Murder Reference sent by the trial court, the Judges of the learned Lahore High Court, Lahore held that the FIR was promptly lodged and two eye witnesses have given a consistent statement on material aspects of the case; they are truthful witnesses and corroborated by the medical evidence and that the parties are closely related thus, there was no reason to falsely implicate the appellant. However, due to single stab wound attributed to the appellant and because the motive was not established, therefore, the death sentence was converted into life imprisonment and murder reference was answered in negative. 4. The case set up by the prosecution in the FIR lodged by Mst. Sughran Bibi aged 50/51 years was to the effect that on 2.6.2003 at about 8.30 pm she along with her husband Nazar Hussain and other sons and daughters were present in their house when Iftikhar son of Abdul Sattar and Tajammal Shah son of Mehmood Shah, the friends of her son i.e. deceased namely Muhammad Akram came there (house) and took him out to go for a round and chitchat. The complainant claimed that she alongwith her husband followed them and when the deceased and his companions reached ‘metal road near (Aara)-saw machine’ of one Aazan Sain, she saw that the appellant-Muhammad Asif armed with a dagger, Ashiq Hussain and Muhammad Abbas empty handed. The latter two caught hold of the deceased while Muhammad Crl. A. 176 / 2012 3 Asif inflicted a single dagger blow on the chest of the deceased after a brief brawl. Motive for the crime was that prior to the occurrence the deceased and Muhammad Asif quarreled with each other in the house of her daughter at Narowal, however, the matter was compromised and settled once for all. 5. During the course of investigation, the two co-accused, mentioned above were found innocent and were not recommended for trial, however, they were put to trial but at the conclusion they were acquitted on the basis of same set of evidence. However, the appellant was convicted and sentenced as above which was modified by the learned High Court. 6. In this case we are entertaining considerable amount of doubt about the presence of the alleged two eye witnesses namely Mst. Sughran Bibi (PW-8) and Nazar Hussain/her husband (PW-9) at the crime spot on the fateful day of occurrence. We deem it appropriate to mention that the appellant and acquitted two co- accused were real brothers. 7. At the trial the complainant admitted that she had two adult daughters who were present in the house when the deceased was taken out, however, this fact was neither disclosed before the police in the course of investigation nor they were produced to corroborate her version. This lady was aged about 50/51 years, while her husband was 70 years of age and when the two eye witnesses not produced at the trial namely Iftikhar and Tajammal, were close friends of the deceased then why she being an aged lady and her husband, who was at the advanced age of his life followed them. If they were Crl. A. 176 / 2012 4 apprehending something abnormal, they would have conveniently told the above two friends of the deceased that being late dark night time, it was not advisable to take the deceased outside. No convincing and plausible reason has been advanced as to why they both followed the deceased and his two friends and what was the object behind it. The conduct of both these alleged eye witnesses runs counter to normal human behaviour and habit in the given circumstances and in the absence of plausible explanation, no prudent mind would believe such fantastic story which appears to be the hand-Art of the local police because in a night occurrence of this nature, remaining un-witnessed, the police imprudently indulges in such like tactics to mislead the court of law and justice. 8. The two independent witnesses who were close friends of the deceased and were on frequent visiting terms were not produced at the trial. The note appearing on the relevant page with regard to not producing them as PWs is that both are un-necessary. 9. In our considered opinion, these two independent witnesses could provide the first degree of evidence of reliable nature, thus, adverse inference has been drawn that because they were not supporting the prosecution case so set up, therefore, they were dropped at the trial. In this way, the best evidence, independent in nature, was withheld from the court for obvious reasons. This fact by itself is sufficient to discard the evidence of the interested and related witnesses because their evidence is not only of the second degree but also for the reason given above due to their unnatural conduct. Crl. A. 176 / 2012 5 10. We fail to understand that in the presence of the two close friends accompanying the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far away as shown in the site plan. 11. Both these two eye witnesses have been disbelieved by the investigating agency qua the acquitted two co-accused/the real brothers of the appellant. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co accused then, they cannot be relied upon with regard to the other co accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. In this regard reference can be made to case of Ghulam Sikandar and another Vs. Mamaraz Khan and others (PLD 1985 S.C.11). The view held in the above case/reference is reproduced below:- “Appreciation of evidence-----Principle of indivisibility of credibility----- --Maxim: Falsus in uno falsus in omnibus—Application of principle---Witness found false with regard to implication of one accused about whose participation he had deposed on oath---Credibility of such witness regarding involvement of other accused in same occurrence when shaken---Where it was found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to other accused in same transaction but if testimony of such witness was corroborated by very strong and independent circumstances regarding each one of other accused, reliance might then be placed on such witness for convicting other accused when principle of indivisibility of credibility as laid down in Muhammad Faiz Bakhsh v. The Queen is to be ignored”. Crl. A. 176 / 2012 6 12. According to the FIR the occurrence allegedly took place at 8.30 pm in the dark night. Masood Ahmad Bhatti, Draftsman, (PW-1) has confirmed all the distances and points given in the scaled site plan. According to the same the distance shown between the deceased and the accused is twenty feet. How, in a dark night the witnesses were able to identify a dagger in the hands of the appellant and the appellant from such a distance. This site plan was prepared on the pointation of the alleged eye witnesses which has been tendered in evidence as Ex-PQ and has never been denied by the prosecution. 13. Yet there is another glaring aspect of the case, the autopsy on the dead body was conducted at 11.15 am on 3.6.2003, the following day while the duration between death and postmortem examination is given 12-18 hours, thus, if the maximum time is taken into consideration, the one favourable to the accused, the time of occurrence would be round about 7.00 pm, thus, the medical evidence does not support in any manner the time of death of the deceased or to say the time of occurrence. The Medico Legal Officer (MLO) has further stated that the dead body was forwarded on 3.6.2003, while on the other hand, the Investigating Officer has falsely shown the forwarding of the dead body to the mortuary on 2.6.2003 14. In column No.8-of the inquest report, the eyes and mouth of the deceased were found open, thus, if the parents, witnesses, and the two close friends were present then, at least after the death as is a consistent practice of such close relatives, they would have closed eyes and mouth of the deceased on his expiry. This fact by itself Crl. A. 176 / 2012 7 indicates that none was present with the deceased till his death and why his eyes and mouth remained open and were not set right by any one and his dead body was discovered late in the night. 15. In a case of close relationship between the complainant party/ deceased and the accused, motive for murder crime assumes considerable importance because no nearer and dearer would like to kill his close relative without strong impulse by taking him into a boiling point wherefrom, the retraction is impossible but in the case in hand the motive set up was not only weak and feeble but also not established because the girl (daughter) of the complainant in whose presence the quarrel took place between the deceased and the appellant, was not produced at the trial. Again there is another doubtful aspect of the case because Nazar Hussain (PW-9), the father of the deceased who according to the FIR was stated to be guarding the dead body, on arrival of the local police to the spot, however, in the very examination in chief at page/20 of the paper book he has squarely stated that he joined the investigation after one month and one day after the occurrence. There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye witnesses would be fatal and testimony of such witnesses cannot be safely relied upon. 16. The recovery of the crime knife/dagger speaks volumes about the true nature of the same because no evidence has been brought on record that the shop, wherefrom, it was recovered, was in an exclusive possession and ownership of the appellant. Again there is Crl. A. 176 / 2012 8 another intriguing aspect of the case that the shop was locked, nothing has been brought on record that who was in possession of the key and who unlocked the same. 17. It is, normal practice and conduct of culprits that when they select night time for commission of such crime, their first anxiety is to conceal their identity so that they may go scot free unidentified and in that course they try their level best to conceal or destroy each piece of evidence incriminating in nature which, might be used against them in the future thus, human faculty of prudence would not accept the present story rather, after committing crime with the dagger, the appellant could throw it away anywhere in any field, water canals, well or other place and no circumstances would have chosen to preserve it in his own shop if believed so because that was susceptible to recovery by the police. 18. Before parting with this judgment, we deem it essential to point out that, mere sending the crime weapons, blood stand to the chemical examiner and serologist would not serve the purpose of the prosecution nor it will provide any evidence to inter link different articles. 19. We have noticed that the Punjab Police invariably indulge in such a practice which is highly improper because unless the blood stained earth or cotton and blood stained clothes of the victim are not sent with the same for opinion of serologist to the effect that it was human blood on the crime weapons and was of the same group which was available on the clothes of the victim and the blood stained earth/cotton, such inconclusive opinion cannot be used as a piece of Crl. A. 176 / 2012 9 corroboratory evidence. Therefore, copy of this judgment be sent to the Prosecutor General, Punjab, and Chief- Incharge of Investigation, Punjab Provincial Police to issue instructions to the investigating agencies in this regard. Accordingly, for the above reasons this appeal is allowed and the appellant is acquitted. These are the detailed reasons for our short order dated 18.1.2017, which is reproduced below:- “For reasons to be recorded later, this appeal is allowed, the conviction and sentence awarded by the learned High Court through the impugned judgment dated 12.03.2010 are set aside and the appellant is acquitted of all the charges. He be set free forthwith, if not required in any other case. “ Judge Judge Judge Islamabad, the 18th January, 2017 Sarfraz /-‘ ‘Approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR, JUSTICE MUNIB AKHTAR MR. JUSTICE SAYVED MAZAHAR ALl AKBAR NAQVI CRIMINAL APPEAL NO. 177 OF 2022 (Against judgment dated 29.06.2018 of the High Court of Sindh, Sukkur Bench, Sukkur passed in Cr.J.A.No.D-85/2013) Zafar Iqbal Appellant(s) VERSUS The State Respondent(s) For the Appellant(s): Mr. Muhammad Amjad Iqbal Qureshi, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Zafar Ahmed Khan, Addl. P.G. Sindh Date of Hearing: 27.05.2022 JUDGMENT Sawed Mazahar Ali Akbar Napvi.- The appellant was tried by the Special Judge (CNSA), Ghotki, pursuant to a case registered vide Crime No. 03/2012 under Section 9 (c) of the Control of Narcotic Substances Act, 1997, at Police Station Excise Ubauro Circle. The learned Trial Court vide its judgment dated 09.10,2013 convicted the appellant under Section 9 (c) of the CNSA, 1997, and sentenced him to imprisonment for life. He was also directed to pay fine of Rs.500,000/- or in default whereof to further suffer six months SI. Benefit of Section 382-B CrP.C. was also extended to him. The learned High Court vide impugned judgment maintained the conviction and sentence recorded by the learned Trial Court. Being aggrieved by the impugned judgment, the appellant filed Jail Petition No. 529/2018 before this Court wherein leave was granted on 17.03.2022 and the present Criminal Appeal has arisen thereafter. CRIMINAL APPEAL NO, 177 0F2022 -: 2 2. The facts of the case as given in the impugned judgment, read as under:- "2 concisely, the facts aggregated from the FIR, lodged on 0307.2012 by the complainant Excise Inspector Hussain Bux Lank, are that in the night time preceding to that date, at about 11.30 pm, a party of Excise Police, headed by him, found appellant/accused in possession of 1650 kilograms of "poppy straw" (post-ji-dodi). The said contraband aritices were being transported by him through a truck bearing No. KUT/587 in shape of 55 'bortas' at National Highway near Sindh-Punjab border. The appellant was arrested in the said FIR as accused and sample was drawn from recovered case property for chemical examination in presence of official marginal witnesses of the memo of arrest and recovery." 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 two witnesses. When examined under Section 342 Cr.PC., the appellant stated that he is innocent and has been falsely implicated in the case. However, he neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor produced any defence evidence. 4. At the very outset, learned counsel for the appellant contended that the appellant 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 appellant in a busy thoroughfare but none from the public was associated in the case to depose against the appellant. While relying on the judgment reported as Zulfigar P Zulfa Vs. The State (2021 SCMR 531), he contended that the allegedly recovered poppy straw is largely used for fodder of animals, therefore, it should not be considered as narcotics substance. Contends that Chemical Examiner's report indicated that sample taken from recovered articles was in "grinded and crushed" form but in recovery memo there was no mention that recovered items from 55 plastic bags were grinded or mixed. Lastly contends that it is only the sack/pouch/doda of a poppy plant which contains narcotics substance and the same would only be CRIMINAL APPEAL NO. 177 OF 2022 -: 3 considered narcotic substance if the same contains 0.2 percent of morphine. 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the appellant was caught red handed while transporting a huge quantity of narcotics and the Police officials had no enmity to falsely involve him in the present case. Contends that mere technicalities could not absolve the appellant of his criminal liability when the prosecution has proved its case against the appellant beyond any shadow of doubt by producing cogent and confidence inspiring evidence. 6. We have heard learned counsel for the parties and have perused the case record with their able assistance. 7. The appellant was caught red handed by the Police while he was driving a truck and from the secret cavities of the truck, 55 plastic gunny bags containing poppy straw were recovered. Each bag was weighing 30 kilograms, therefore, the total weight became 1650 kilogram. One kilogram of poppy from each bag was taken out for chemical examination. The same was sealed up in separate envelops and sent to the office of Chemical Examiner. To bring home the guilt of the appellant, the prosecution relied upon the statements of Hussain Bux, Excise Inspector (PW-1) and Farhan All (PW-2). 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 appellant to falsely implicate him in the present case. Even otherwise a huge quantity of 1650 kilograms of poppy straw 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 official witnesses is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the appellant in this case. This Court has time and again held that reluctance of general public to become witness in such like cases has become 1 - CRIMINAL APPEAL NO, 177 OF 2022 -: 4 judicially recognized fact and there is no way out to consider statement of official witnesses, as no legal bar or restriction has been imposed on such regard. police/official witnesses are as good witnesses and could be relied Upon, if their testimonies remain un-shattered during cross-examination. In this view of the matter, the statements of the official witnesses are sufficient enough to sustain conviction of the appellant. However, so far as quantum of punishment is concerned, we note that this is a case of lesser punishment and for this we will firstly examine as to what actually is the 'poast'/Opium. In Zulfiga Zulfa Vs. The State (2021 SCMR 531) this Court while relying on earlier judgments of this Court has defined as to what actually is the poast/opiurn. It would be in order to reproduce the relevant portion of the judgment, which reads as under:- "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 (popover somniferurn or any other species of Popover) after mowing, other than the seeds, (ii) the spontaneously coagulated juice of capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii) any minute, 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 'Dada') excluding the seeds, which contains narcotic substance and that all poppy straw may not necessarily be 'poast'fdoda 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 counselfor all the parties and it is also borne out from the authoritative works - I • CRIMINAL APPEAL NO. 177 OF 2022 -: 5 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 port 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 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. 8. From the above, it is clear that 'Poost' is the name given to that part of a poppy plant which has the shape of a basket, sock or pouch and it contains the seeds of such plant." 8. From the above, it is clear that it is only sack/pouch/basket of the whole poppy plant, which is called poast and the same is the only part of the poppy plant excluding its seeds, which contains morphine. In the Zulfiqar supra case, the Court further observed that 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). The poppy plant is a spontaneous plant and is often seen grown on roadsides. 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 II CRIMINAL APPEAL NO. t77 OF 2022 -: 6 used for making various varnishes, paints and soaps etc. Therefore, every cultivation of poppy straw unless it is proved that it is made for the sole purpose of extracting narcotics after a proper method cannot be considered a criminal act. We have noted that in the FIR as well as in the recovery memo it has been mentioned that poast/poppy straw was recovered in 55 plastic gunny bags but there is no mention that recovered items were got grinded or mixed and then sent to the Chemical Examiner. On the other hand, contents of the report of Chemical Examiner indicate that samples sent to it were in grinded form i.e. grinded material of black and yellow coloured straws, seeds and stalks, which means that whole poppy plant would have been recovered from the appellant. From a bare perusal of Section 2(t)(iii) of the Control of Narcotic Substances Act, 1997, referred above, it is manifest that 'poast' in the mixture form would only be considered a narcotics substance within the meaning of the Act if the same contains 0.2 percent of morphine. However, the report of the Chemical Examiner reveals no such percentage. It has also not been brought on record as to whether from the 1650 kilograms of poast, which was in the shape of whole poppy plants, how much quantity was the sack/pouch/doda as it is only the sack/pouch/doda which contains narcotic substance. Therefore, in absence of such report, it is difficult to determine as to whether the case against the appellant falls within the purview of section 9(A), 9(B) or 9(C) of the Act. While dealing with the question as to whether ascertainment by a Chemical Examiner regarding the actual quantity of morphine in the recovered substance is necessary in a case of recovery of poast, this Court in the case of Muhammad lmran v. The State (2011 SCMR 1954) has held that "the question of percentage of morphine is relevant only to the case of a mixture referred to in clause (t)(iui) of section 2 of the said Act and such a question has no relevance to opium in the form of ports of the poppy plant or in the form of juice of the capsules of poppy. Section 3 of the said Act is confined to 'liquid preparations' only and refers to calculation of percentages only in the context of such liquid preparations Poast or Dodo by itself cannot be termed as a 'mixture' or is I CRIMINAL APPEAL NO. 177 OF 2022 -: 7 'liquid preparation'for the purposes of section 2(t) (iii) or section 3 and, therefore, in a case of recovery of Poast or Dodo no ascertainment by a Chemical Examiner is required regarding quantity of morphine, etc., available in such Poost or Dada." As discussed above, the report of the Chemical Examiner, leaves no doubt that the recovered poast from the possession of the appellant was in grinded/mixed shape, therefore, the report of the Chemical Examiner ought to have mentioned the percentage of morphine in the whole mixture. While examining the whole record of the matter pertaining to recovery of contraband poast, we deem it appropriate that the prosecution branch must consider all aspects of the case narrated above prior to sending a person for trial in the court of law as the shortcomings pointed out might hamper the liberty of a person which in other words is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. 9. For what has been discussed above, we while maintaining the conviction of the appellant, reduce the sentence of imprisonment for life into what he has already undergone. The appellant shall be released from jail forthwith, unless detained/required in any other case. This criminal appeal is accordingly partly allowed and the impugned judgment is modified accordingly. Islamabad, the 27th of May, 2022 Approved For Reporting K4.1.k tifli