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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar Civil Appeal No.485 of 2020 [Against the judgment dated 08.10.2018, passed by the Federal Service Tribunal, Lahore Bench Lahore in Appeal No.464(L)/2017] Secretary, Establishment Division, Government of Pakistan, Islamabad. …Appellant (s) Versus Imtiz Ahmad Malik, Director Anti-Corruption, Establishment Sahiwal and others. …Respondent(s) For the Appellant (s) : Mr. Ayaz Shaukat, Deputy Attorney General for Pakistan Sajid-ul-Hassan, Section Officer, Establishment Division For the Respondent(s) : Mr. Muhammad Yasin Bhatti, ASC Mian Liaqat Ali, AOR (Absent) Date of Hearing : 27.11.2020 O R D E R Gulzar Ahmed, CJ.— Respondent No.1 (the respondent) was working as Deputy Central Intelligence Officer (BPS-17) in the Intelligence Bureau, Government of Pakistan and vide office order dated 28.11.1989 his service was placed at the disposal of the Punjab Police on deputation for a period of three years. He was absorbed in the Punjab Police as DSP (BPS-17) vide order dated 13.05.1992 and this date was treated as the date of his fresh appointment in the rank of DSP (BPS-17). A seniority list of DSP was issued on 25.09.1997, wherein the name of the Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 2 - respondent was shown at Serial No.245. The respondent filed representation seeking that his seniority in the rank of DSP be counted from the date of his absorption and his name in the seniority list be fixed below Mr. Iftikhar Hussan Pirzada, whose name appeared at Serial No.3. Another seniority list dated 13.11.2001 was issued in which the name of the respondent appeared at Serial No.314. The respondent again filed representation. Yet again seniority list dated 18.05.2005 was issued in which the name of the respondent was shown at Serial No.426. The representation of the respondent was rejected vide order dated 04.11.2006. The respondent filed the service appeal in the Punjab Service Tribunal, Lahore, which came to be allowed vide judgment dated 30.06.2008, wherein the respondent was given seniority from the date of his induction in service as DSP i.e. 13.05.1992 and fixing his seniority at Serial No.3-A in the seniority list dated 25.09.1997. The civil petition filed by the Punjab Police before this Court was dismissed vide order dated 30.03.2012. Since the respondent got the relief of his seniority in the rank of DSP from 13.05.1992, he made another representation for granting him pro forma promotion in the rank of SP (BPS-18) on the analogy of Mr. Muhammad Riaz Maiken, SSP, who was granted pro forma promotion with effect from 31.05.1994. The Departmental Promotion Board granted pro forma promotion to the respondent as SP (BPS-18) with effect from 31.05.1994 vide Notification dated 10.07.2014. Having succeeded in obtaining pro forma promotion as SP (BPS-18), the respondent, who was encadred as PSP Officer vide Establishment Division Notification dated 11.10.2007 with effect Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 3 - from 02.06.2005 made a representation to have his seniority in PSP cadre re-fixed according to his seniority of SP (BPS-18). This representation of the respondent was declined by the appellant vide its order dated 10.04.2017, which is as follows: - “Government of Pakistan Cabinet Secretariat Establishment Division No.2-7/2015-CP-VII Islamabad the 10th April, 2017 From: M.Zubair Hayat Section Officer (CP-VII), Ph. No.051-9203198 To: Mr. Khawar Basheer Ahmad, Section Officer (Services-II), S&GAD, Government of Punjab, Lahore Subject: REPRESENTATION FOR MODIFICATION OF DATE OF ENCADREMENT (31.05.1994) AND GRANTING OF FURTHER CONSEQUENTIAL BENEFITS ACCORDINGLY. I am directed to refer to S&GAD, Government of the Punjab’s letter dated 15-09-2015 followed by 11-04-2017 on the subject noted above and to inform that the subject request of Mr.Imtiaz Ahmed Malik, PSP/BS-19 was examined in the Division as per Law/Rule /Policy and the same was regretted by the Competent Authority, in the light of Supreme Court of Pakistan’s Judgment dated 15-12-2014 passed in Civil Appeal Nos. 1122 & 1123 of 2011, 431 of 2013, 1343 of 2014 and Criminal Appeal No.436 of 2011, which categorically declared encadrement/ appointment into PSP with prospective effect and not retrospective effect. The officer may accordingly, be informed of the above stated position. Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 4 - Yours faithfully, -sd.- (M.Zubair Hayat)” 4. The respondent filed service appeal in the Federal Service Tribunal, Lahore Bench, Lahore (the Tribunal) in which he made the following prayer: - ““In view of foregoing reasons, it is humbly prayed that the order dated 10.04.2017 (ANNEX. A/18) conveyed vide letter dated 13.07.2017 (ANNEX. A/19), received by the appellant on 31.07.2017 passed by the respondent No.1 may kindly be set aside and the appellant may kindly be ordered to be granted seniority qua to his juniors in P.S.P. Cadre (In Punjab Province) i.e. Ghulam Muhammad Kalyar who was junior to Aslam Sahi and was inducted in P.S.P. Cadre amongst the provincial quota and all consequential service benefits be also awarded to the appellant so that the ends of justice are achieved.” Vide impugned judgment dated 08.10.2018, the Tribunal allowed the appeal granting the respondent the following relief: - “In view of what has been discussed above, we are of the opinion that PST’s judgment has attained finality and the notification dated 10.07.2014, is still in the field and there was nothing in the judgment of the August Supreme Court of Pakistan, dated 15.12.2014 which rendered the case of the appellant to be revisited. The appeal, therefore, is accepted and the impugned order is set aside.” 6. Mr. Ayaz Shaukat, learned Deputy Attorney General for Pakistan has contended that the Tribunal was not at all justified in distinguishing the judgment of this Court dated Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 5 - 15.12.2014, which was applicable on all fours to the case in hand and was binding on the Tribunal by virtue of Article 189 of the Constitution, in that, this Court has laid down the principle of law of encadrement in the Police Service of Pakistan (PSP) and no retrospective encadrement could be granted. 7. Mr. Muhammad Yasin Bhatti, learned counsel for the respondent, on the other hand, contends that once the respondent has been granted pro forma promotion as SP (BS-18) with effect from 31.05.1994 vide Notification dated 10.07.2014 his encadrement has to be made accordingly. 8. There is no dispute on facts between the parties and the only issue that has arisen before the Court is whether or not the judgment of this Court dated 15.12.2014 was applicable to the case in hand. We may note that the respondent was encadred as PSP Officer vide Notification dated 11.10.2007 with effect from 02.06.2005. After this Court has given its judgment dated 15.12.2014, this very Notification of encadrement of the respondent as PSP Officer was revised vide Notification dated 07.07.2015 and the date of encadrement of the respondent as a PSP Officer was changed from 02.06.2005 to that of 11.10.2007. This very Notification dated 07.07.2015, admittedly, was not challenged by the respondent. The judgment of this Court dated 15.12.2014 is reported as Muhammad Zafar Ali and others vs. Asim Gulzar and others (2015 SCMR 365). The operative part of which is reproduced as follows: - “13. It is common ground between the appellants Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 6 - and the respondents that Rule 11(2)(c) is not in conflict with either subsection (2), subsection (3) or for that matter subsection (4) of section 8 of the Act, 1973. The Rules, 1985 provide 3 modes of appointments to the PSP: initial appointment (Rule 5), appointment of officer of the Armed Forces (Rule 6) and appointment of members of the Provincial Police (Rule 7). The seniority amongst the police officers is regulated by Rule 11. Clause ‘a’ of sub-rule 2 of Rule 11 provides for seniority between the officers inducted into the Police Service of Pakistan through initial appointment. Clause 'b' regulates the seniority of those appointed in the Police Service of Pakistan from the Armed Forces, whereas clause ‘c’ deals with the seniority of the police official encadred from the Provinces. The said Rules do not make any provision for determining seniority in between the various groups except to a limited extent under proviso to clause ‘b’, between initial appointees and the officers coming from the Armed Forces appointed in the same year; that the latter shall rank senior to those appointed through the process of induction through initial appointment. However, there is no provision for regulating seniority between initial appointees and those encadred from the Provinces. Rule 11 therefore only provides criteria for determining seniority within each group. Rule 11(2)(c) is confined to determination of seniority amongst the encadred police officers. Thus, where a question of seniority arises either between those coming from the same Province or between officers encadred from different Provinces the same will be determined in accordance with Rule 11(2)(c). The said rule is thus to be restricted only to the determination of seniority in the encadred group and cannot be made applicable for determining their seniority vis-à-vis the other two groups. When it comes to deciding seniority between members of different groups the relevant date would be that of Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 7 - their regular appointment. For the purposes of determination of inter se seniority encadred provincial police officers cannot be considered initial appointees in view of the clear mode of appointment for each of the three groups stated in Rules 5, 6 and 7 where 'initial appointment' is confined to those appointed against a cadre post through competitive examination held by the Federal Public Service Commission. We therefore find no conflict of Rule 11(2)(c) with any provision of section 8 of the Act, 1973 and the two can exist in harmony. 14. Another aspect of the case is that Rule 11(2)(c) only provides for determination of seniority and not appointment. The appointments in the encadred group are made under Rule 7 which states that "Members of the Police cadre of a Province shall be appointed to the Service on the basis of selection made on the recommendation of the Governor". Had the intention of the legislation been to make provision for retrospective appointment of such officers from the date on which the vacancy arose in a Province it would have been specifically mentioned in Rule 7. The use of the words “shall be appointed to the service” indicates that the appointment is to be with prospective effect and not retrospective effect. The settled principle is that appointments are always prospective in nature notwithstanding a vacancy occurring earlier. This has been clearly held by this Court in the case of Khushi Muhammad (ibid) where it was held that "it would be against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. The ratio of 50:50 between the direct recruits and the departmental promotees merely related to the policy of their recruitment to the grade and is not to be extended to the fixation of Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 8 - their seniority or their confirmation inter se." The appointment of the encadred police officers from the Provinces is to be made with prospective effect and retrospective effect can be given to such appointments only for the limited purpose of determining their own inter se seniority in accordance with Rule 11(2)(c) of the Rules, 1985.” 9. In the face of the above observation of this Court, more particularly, setting at rest the question of law on the point of encadrement, this Court has held that “The appointment of the encadred police officer from the Provinces is to be made with prospective effect”. Only after encadrement as PSP Officer has been made of a police official from a Province, his inter se seniority among the encadred officers shall be determined under Rule 11(2)(c) of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 but the very encadrement has to be from the date when the encadrement as PSP Officer has actually been effected and counted as such. The case of the respondent is not that of inter se seniority of the police officers from the provinces, therefore, Rule 11(2)(c) ibid is not applicable in the instant case. 10. In view of the above state of law, we are mindful that the Tribunal in the impugned judgment has not adverted itself to the judgment of this Court noted above, and thus, committed grave illegality in not following the same, which had application to the case in hand and was binding on the Tribunal under Article 189 of the Constitution. The appeal is, therefore, allowed, the impugned judgment dated 08.10.2018 is set aside and the service appeal filed Civil Appeal No.485 of 2020(SRO 30.11.2020) updated.doc - 9 - by the respondent is dismissed. C.M.As No.7534 and 7535 of 2020 are also disposed of. CHIEF JUSTICE JUDGE Bench-I Islamabad 27.11.2020 APPROVED FOR REPORTING Rabbani*/ JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEAL NO.490 OF 2009 (Against the judgment dated 5.12.2008 of the High Court of Sindh, Karachi passed in Custom Reference Application No.404/2007) Collector of Customs, Custom House, Karachi …Appellant(s) VERSUS Syed Rehan Ahmed …Respondent(s) For the appellant(s): Raja Muhammad Iqbal, ASC For the respondent(s): Ex-parte Date of hearing: 10.11.2016 … ORDER MIAN SAQIB NISAR, J.- This appeal, by leave of the Court, involves the question as to whether a technical member of the Customs Appellate Tribunal (Tribunal), sitting singly, has the jurisdiction to decide matters involving questions of law. 2. The brief facts of the case are that the respondent imported goods from China consisting of 12 items at the invoiced value of US $ 21,994.75 (C&F) and under self-assessment determined the liabilities of taxes and duties at Rs.316,987/-. After examination, the authorities found that the respondent had misdeclared the description, classification and value of the goods causing a potential revenue loss of Rs.558,460/-. A show cause notice was issued to the respondent and subsequently an order in original dated 4.2.2006 was passed confiscating the goods but with an option of redemption upon payment of fine by the respondent. Civil Appeal No.490 of 2009 -: 2 :- The respondent availed the option but also filed an appeal against the said order before the Collector (Appeals) who dismissed the same vide order dated 30.5.2006. Aggrieved, the respondent appealed before the Tribunal which (appeal) was accepted vide order dated 23.8.2007. Aggrieved, the appellant filed a reference before the learned High Court of Sindh which dismissed the same vide the impugned judgment holding that a technical member of a Customs Appellate Bench, sitting singly, does not have the jurisdiction to pass orders on matters involving questions of law. Thereafter, the appellant approached this Court and leave was granted on 6.5.2009 in the following terms:- “This petition has been filed against the order dated 5-12- 2008 passed by the High Court of Sindh, Karachi. Relevant para therefrom is reproduced herein below:- “We are, therefore, of the considered opinion that the deletion of the explanation to subsection 3- A has empowered a Judicial Member sitting singly to hear a question of law but when the statute is interpreted as a whole the only interpretation which can be drawn is that the technical member sitting singly is not empowered to decide a matter involving a question of law. We would there, answer the common question in these reference applications in affirmative i.e. we hold that the member technical does not have the jurisdiction to adjudicate in matters involving questions of law.” 2. Leave to appeal is granted, inter alia, to examine as to whether the learned High Court has rightly interpreted subsection 3-A of section 194-C of the Customs Act.” Civil Appeal No.490 of 2009 -: 3 :- 3. The sole attack of the learned counsel against the impugned judgment was that a member of the Tribunal can only decide a matter singly if he was previously a member of a Bench to which the case had been entrusted. In support of his argument, he relied upon the case reported as Director, Intelligence and Investigation (Customs and Excise), Faisalabad and another Vs. Bagh Ali (2010 PTD 1024). 4. Heard. Before interpret Section 194-C of the Customs Act, 1969 (the Act) which (section) is germane to the instant matter, it may be useful to briefly discuss the Tribunal in general. The Tribunal consisting of both judicial and technical members is to be constituted by the Federal Government under Section 194 of the Act. The requirements of becoming a judicial or technical member is provided in sub-sections (2) and (3) of Section 194, and according to sub-section (4), one of the members shall be appointed by the Federal Government as a Chairman of the Tribunal. Section 194-A of the Act provides the types of orders against which an appeal shall lie before the Tribunal, while Section 194- B stipulates, inter alia, the power to pass orders as the Tribunal may think fit, the time period for deciding an appeal before it and the power to rectify or amend orders made by it. 5. Adverting to Section 194-C of the Act, it is pertinent to mention at the very outset that sub-section (3) thereof was amended by the Finance Act, 2009 (which received the Presidential assent on 30.6.2009) after the impugned order was passed. Therefore, the instant case will be decided on the basis of the relevant law in force at that point in time which reads as follows:- “194-C Procedure of Appellate Tribunal.– (1) The powers and functions of the Appellate Tribunal may be Civil Appeal No.490 of 2009 -: 4 :- exercised and discharged by Benches constituted by the Chairman from amongst the members thereof. (2) Subject to the provisions contained in sub-sections (3) and (4), a Bench shall consist of one judicial member and one technical member. (3) Every appeal against a decision or order deciding a case involving duty, tax, penalty or fine exceeding five million rupees shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member: Provided that the Chairman may, for reasons to be recorded in writing, constitute Benches including special Benches consisting of– (a) two or more technical members; or (b) two or more judicial members: Provided further that any Bench referred to in clause (a) shall not hear the matters involving questions of law.1 (3A) Notwithstanding anything contained in sub-sections (2) and (3), the Chairman may constitute as many Benches consisting of a single member as he may deem necessary to hear such cases or class of cases as the Federal Government may, by order in writing, specify. (4) The Chairman or any other member of the Appellate Tribunal authorised, in this behalf by the Chairman may, sitting singly, dispose of any case which has been allotted to the bench of which he is a member where– 1 Subsequently omitted by the Finance Act, 2009 (I of 2009). Civil Appeal No.490 of 2009 -: 5 :- (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or (b) [* * *] (c) in any disputed case, the difference in duty or tax involved or the duty or tax involved, or the amount of fine or penalty involved does not exceed five million rupees. (5) …………………………………………………………… (6) …………………………………………………………… (7) …………………………………………………………” Section 194-C(1) of the Act empowers the Chairman to constitute, from amongst the judicial and technical members, Benches which are to exercise and discharge the functions of the Tribunal. Section 194-C(2) of the Act provides that the Benches constituted by the Chairman are to consist of one judicial and one technical member, subject to sub-sections (3) and (4) of Section 194-C. According to Section 194-C(3) a Special Bench, consisting of at least two members of which one must be a judicial and the other a technical member, shall hear appeals against decisions or orders involving duty, tax, penalty or fine exceeding five million rupees. However the proviso to sub-section (3) stipulates that such Special Benches may consist of two or more technical or judicial members, the constitution of which (Bench) must be done by the Chairman with written reasons for doing so. Further, the second proviso to sub-section (3) (which existed at the time of the impugned judgment) states that if a Special Bench constituted under such sub-section consists of at least two technical members it shall not decide matters involving questions of law. Section 194-C(3A) then provides that in spite of sub-sections (2) and Civil Appeal No.490 of 2009 -: 6 :- (3), the Chairman may constitute Benches consisting of a single member to hear such cases or class or cases as the Federal Government may, by order in writing, specify. Finally, as per Section 194-C(4) the Chairman or any other member of the Tribunal authorized by the Chairman may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member, where the value of the goods confiscated without an option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 181 does not exceed five million rupees or in any disputed case, the difference in duty or tax, the duty or tax, or the amount of fine or penalty involved does not exceed five million rupees. In light of the above, there appears to be three types of Benches of the Tribunal that can decide appeals under Section 194-A of the Act:- (a) A Bench of two members, one judicial and one technical, constituted under Section 194-C(2) of the Act; (b) A Special Bench of at least two members constituted under Section 194-C(3) of the Act to decide every appeal against decisions or orders involving duty, tax, penalty or fine exceeding five million rupees. Such Benches may however consist of two more technical or judicial members if the Chairman so orders in writing [clauses (a) and (b) respectively of Section 194-C(2) of the Act]; (c) A Single Member Bench constituted under Section 194-C(3A) of the Act to hear cases or a class of cases as specified by the Federal Government in writing. Section 194-C(4) provides for an exception, where the Chairman or any other member of the Tribunal authorized by the Chairman, may sit singly and decide a case which has been allotted to the Bench of which he is a member. The pre- Civil Appeal No.490 of 2009 -: 7 :- such member (or Chairman) can only decide such cases sitting singly where: (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181 does not exceed five million rupees; or (b) in any disputed case, the difference in duty or tax or the duty or tax involved or the amount of fine or penalty involved does not exceed five million rupees. 6. We would like to observe at this stage that the phrase “any case which has been allotted to the bench of which he is a member” appearing in Section 194-C(4) of the Act is of immense importance which clearly suggests that there must have existed a Bench constituted under Section 194-C(2) of the Act consisting of two members (or Chairman and a member), out of which the Chairman or a member authorised by the Chairman, may sit singly and dispose of a case already allotted to such Bench. To hold otherwise would be to render the aforesaid phrase redundant and superfluous. This is precisely why sub-section (2) of Section 194-C has been made subject to sub-section (4), the latter of which purports to create an exception to the former. Further, such decision by the Chairman to allow himself or any other member of a Bench to sit singly to dispose cases falling within the ambit of Section 194-C(4) should not be as a matter of course or right, rather should be done upon proper application of mind by the Chairman who shall himself make such decision, and not delegate it to any other officer to undertake as an administrative action. The Chairman is obliged to examine the circumstances warranting the decision of letting him or another member of a Bench to dispose of a matter sitting singly before taking such step. This is precisely what has been held by the learned Lahore High Court in the case of Bagh Ali (supra) as relied upon by the learned counsel which to our mind is good law. Civil Appeal No.490 of 2009 -: 8 :- 7. Coming back to the proposition at hand, in order to answer the same, the legislative history of Section 194-C needs to be examined. Amongst other provisions, Section 194-C was introduced into the Act by the Finance Act, 1989 which read as follows:- “194-C. Procedure of Appellate Tribunal.—(1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the Chairman from amongst the members thereof. (2) Subject to the provisions contained in sub-sections (3) and (4), a Bench shall consist of one judicial member and one technical member. (3) Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment, shall be heard by a Special Bench constituted by the Chairman for hearing such appeals and such Bench shall consist of not less than two members and shall include at least one judicial member and one technical member. (4) The Chairman or any other member of the Appellate Tribunal authorised in this behalf by the Chairman may, sitting singly, dispose of any case which has been allotted to the bench of which he is a member where— (a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 181; or (b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the Civil Appeal No.490 of 2009 -: 9 :- value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (c) the amount of fine or penalty involved; does not exceed one hundred thousand rupees. (5) ……………………………………………………………. (6) …………………………………………………………… (7) …………………………………………………………….. (8) …………………………………………………………...” Thereafter the Tax Laws (Amendment) Ordinance, 2001 (Ordinance of 2001) was promulgated which introduced the two provisos to sub-section (3) of Section 194-C as reproduced in the earlier portion of this opinion and inserted sub-section (3A) of Section 194-C which read as follows:- “(3A) Notwithstanding anything contained in sub-sections (2) and (3), the Chairman may constitute as many Benches consisting of a single member as he may deem necessary to hear such cases or class of cases as the Federal Government may, by order in writing, specify. Explanation:--For the purpose of this sub-section, the expression “cases” means the matters involving decisions other than decisions in relation to a question of law under this Act or the Central Excises Act, 1944 (I of 1944) or as the case may be, the Sale Tax Act, 1990.” The effect of the amendments brought about by the Ordinance of 2001 and the intent of the legislature in doing so is clear from a bare reading of both amendments, in that the second proviso to Section 194-C(3) Civil Appeal No.490 of 2009 -: 10 :- prevented a Bench consisting of at least two technical members constituted under Section 194-C(3)(a) from hearing matters involving questions of law, and the explanation to Section 194-C(3A) clarified that Single Member Benches constituted under sub-section (3A) would not hear cases involving decisions relating to a question of law. In both the aforesaid situations, it appears that the legislature did not want questions of law to be decided by the respective Benches, i.e. either a Bench consisting of at least two technical members or a Single Member Bench. However the explanation to Section 194-C(3A) was subsequently omitted by the Finance Act, 20072 (assented on 30.6.2007), thereby leaving sub-section (3A) to stand alone. This amendment posed an interesting question, i.e. whether the presence of the second proviso to Section 194- C(3) barring a Special Bench consisting of at least two technical members from hearing cases involving a question of law meant that a Single Member Bench constituted under Section 194-C(3A) could not hear cases involving a question of law despite the omission of the explanation thereto? This was the precise conundrum faced by the learned High Court while passing the impugned judgment and the Court decided the aforementioned question in the affirmative by observing as follows:- “…When reading the statute as a whole we are of the opinion that although prima facie it is seen that the deletion of explanation will empower both judicial member and technical member to decide questions of law sitting singly but after considering the second proviso to subsection 2 and trying to arrive at a harmonious interpretation the only interpretation which follows is that the intent of the legislature is that if Special Bench comprising of two or more technical members cannot hear a matter involving 2 The Finance Act, 2007 also amended Section 194-C(3) to what it reads today, omitted clause (b) of Section 194-C(4) and substituted clause (c) of Section 194-C(4) to what it reads today. Civil Appeal No.490 of 2009 -: 11 :- question of law then it will be illogical and absurd to conclude that the legislature intended that a Technical Member sitting singly can hear a matter relating to a question of law and as the learned Amicus Curie has already opined that absurdity cannot be presumed in an interpretation.” We find ourselves in disagreement with the learned High Court of Sindh. While there is no cavil that a statute must be harmoniously interpreted, that is only needed to be done where there is a conflict and in this case we do not find there to be any conflict for the reason that the scheme of Section 194-C itself postulates for three different types of Benches to be constituted under three different sub-sections, i.e. (2), (3) and (3A), all of which have their separate and distinct features. Therefore, the amendment brought about by the Finance Act, 2007 which omitted only the explanation to Section 194-C(3A) and not the second proviso to Section 194-C(3) was a clear indication that the legislature no longer wanted the Single Member Benches constituted under Section 194-C(3A) to be prevented from hearing cases that involved decisions in relation to a question of law, and the second proviso to Section 194-C(3) was left intact. If we were to accept the interpretation of the learned High Court, that would mean that the amendment brought about by the Finance Act, 2007 which omitted only the explanation to Section 194-C(3A) would be rendered absolutely nugatory and redundant. This is not something we are willing to do. Furthermore, Section 194-C(3A) begins with the phrase “notwithstanding anything contained in sub-sections (2) and (3)…” and thus it is a non-obstante clause. This means that sub-section (3A) is independent of sub-sections (2) and (3), making the former prevail even if the latter provide anything to the contrary. It is worthy to note that as of Civil Appeal No.490 of 2009 -: 12 :- 30.6.2009, the second proviso to Section 194-C(3) stands omitted by virtue of the Finance Act, 2009. 8. Since the learned High Court only decided the question of law and fixed all the independent cases for katcha peshi to be decided on the facts of each case, we have refrained from expressing our opinion on the facts of the instant case. In light of the above, this appeal is allowed and the impugned judgment is set aside. JUDGE JUDGE JUDGE Announced in open Court on 23.11.2016 at Islamabad Approved For Reporting Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE QAZI MUHAMMAD AMIN AHMED MR. JUSTICE AMIN-UD-DIN KHAN CIVIL APPEAL NO. 491 OF 2012 AND (On appeal from the judgment/order dated 29.03.2012 passed by Islamabad High Court, Islamabad in W.P.1206/2011) CIVIL APPEALS NO.536-546,580/2012, 452,453,43/2013 AND (On appeal from the judgment/order dated 29.03.2012 passed by Islamabad High Court, Islamabad in W.P. 1206, 1433, 1604,1981/2011 and judgment/dated 24.10.2012 passed by High Court of Sindh, Karachi in Const.P.214-D/2011 and dated 13.09.2012 passed by Peshawar High Court, Abbottabad Bench, Abbottabad in W.P.813/2011) CIVIL PETITIONS NO.150-151/2013 AND (On appeal from the judgment/order dated 31.10.2012 passed by Peshawar High Court, Abbottabad Bench, Abbottabad in W.P.368, 770/2012) CIVIL APPEALS NO.1081,1084/2011,432/2013 AND (On appeal from the judgment/order dated 16.05.2011 passed by High Court of Sindh, Karachi in C.P.1107-D, 605-D/2010 judgment/order dated 22.11.2012 passed by Peshawar High Court, Bannu Bench, Bannu in W.P.150-B/2010) CRIMINAL PETITIONs NO.138-140/2014 AND (On appeal from the judgment/order dated 19.03.2014 passed by Islamabad High Court, Islamabad in I.C.A.143- 145/2014) CIVIL APPEALS NO.1151/2012,1026-1027/2013 AND (On appeal from the judgment/order dated 01.04.2011 passed by High Court of Sindh, Karachi in Const.P.3515-D/2010 and judgment/order dated 14.05.2013 passed by Peshawar High Court, Peshawar in W.P.2685/2011, W.P.363-P/2012) CIVIL PETITIONS NO.677-P/2014,1567/2015 AND (On appeal from the judgment/order dated 21.10.2014 passed by Peshawar High Court, Peshawar in W.P.3504/2012 and judgment/order dated 05.05.2015 passed by Federal Service Tribunal, Islamabad in A.3099(R)CS/2012) CIVIL APPEALS NO.637-651,660,/2015 AND (On appeal from the judgment/order dated 02.03.2015 passed by High Court of Sindh, Karachi in C.P.298, 304- 308,310-318/2014 and 10.12.2014 passed by High Court Of Sindh, Sukkar Bench in W.P.2756/2012) CIVIL PETITIONs NO.842/2015,3612/2015 AND (On appeal from the judgment/order dated 02.03.2015 passed by High Court of Sindh, Karachi in C.P.309/2014 and dated 14.10.2015 passed in Peshawar High Court, D.I. Khan Bench, D.I. Khan in W.P.177/2015) CIVIL APPEALS NO.101/2016,1106/2015 AND (On appeal from the judgment/order dated 06.10.2015 passed Peshawar High Court, Peshawar in W.P.3848/2014 and dated 12.12.2014 passed by High Court Of Sindh, Karachi in C.P.1905/2011) CIVIL PETITION NO.3366/2015 AND (On appeal from the judgment/order dated 12.12.2014 passed by High Court of Sindh, Karachi in C.P.1998/2011) C.R.P.231-236,256/2016 IN C.P.405-411/2016 AND CAs 491/12 etc -2- (review of the judgment/order of this Court dated 05.05.2016) CIVIL APPEALs NO.4-K & 5-K/2017 AND (On appeal from the judgment/order dated 07.09.2016 passed by High Court of Sindh, Karachi in C.P.D-4078/2011 and C.P.D-2841/2012) CIVIL PETITION NO.19-P/2016 AND (On appeal from the judgment/order dated 29.10.2015 passed by Peshawar High Court, Peshawar in W.P.2758-P/2015) CIVIL APPEAL NO.65-K/2013 AND (On appeal from the judgment/order dated 24.10.2012 passed by High Court of Sindh, Karachi in C.P.214-D/2011) CIVIL APPEAL NO.518 AND 519/2018 AND (On appeal from the judgment/order dated 27.10.2017 passed by High Court of Sindh, Karachi in C.P.6370- D/2016 and C.P.3411-D/2016) CIVIL PETITIONS NO.588-K, 589-K/2018 AND (On appeal from the judgment/order dated 14.03.2018 passed by Federal Service Tribunal, Camp At Karachi in Appeals 4(K)CS and 5(K)CS /2017) CIVIL APPEAL NO.1098/2018 AND (On appeal from the judgment/order dated 25.05.2018 passed by Islamabad High Court, Islamabad in W.P.1479/2012) CIVIL APPEAL NO.1921-1923/2019 (On appeal from the judgment/order dated 30.01.2019 passed by Federal Service Tribunal, Islamabad in Appeals No.156(R)CS to 158(R)CS /2017) AND C.M.A.4382/2016 in C.A.637/2015 AND C.M.A.7274/2017 in C.A.637/2015 AND (Impleadment applications) C.M.A.6842/2018 in C.A.1098/2018 (Stay) Muhammad Afzal & others (in CAs 491/12) D.G., IB Islamabad (in CAs 536- 539/12, CP 3612/15 ) Shahabuddin Ahmed Khan & another (in CA 540/12) Ahmed Raza & another (in CA 541/12) Waseem Ahmed & another (in CA 542/12) Muhammad Tahir Faisal & another (in CA 543/12) Syed Muhammad Saeed Ahmed Gillani & others (in CAs 544, 580/12) Ejaz Ahmed & others (in CA 545/12) Daulat Ali Khan & others (in CA 546/12) Javed Akhtar Arbab & others (in CA 452/13) Chairman National Highway Authority, Govt. of Sindh Karachi & others (in CA 453/13) Commissioner Afghan Refugee, KPK, Peshawar & others (in CA 43/13, CPs 150, 151/13, CA 101/16) PTCL thr. its President/CEO Islamabad (in CAs 1081, 1084/11) M/s Pakistan Telecommunication Company Ltd thr. its Director Islamabad & another (in CA 432/13) Pakistan Telecommunication Company Ltd (in CAs 4-K, 5- K/17) National Highway Authority thr. its Chairman, (in Crl.Ps. 138- CAs 491/12 etc -3- NHA & another 140/14) Overseas Pakistani Foundation Islamabad (O.P.F.) thr. its Director & others (in CA 1151/12) State Life Insurance Corporation of Pakistan thr, its Chairman (in CAs 1026, 1027/13, CRPs.231-236, 256/16) Naushad and others (in CP 677-P/14) Rai Muhammad Abbas (in CP 1567/15) Civil Aviation Authority thr. its D.G., Quaid-e- Azam International Airport, Karachi (in CAs 637-651, 842/15, 518, 519/18), WAPDA thr. its Chairman, WAPDA House, Lahore & another (in CA 660/15) Muhammad Riaz & others (in CA 1106/15) Abdul Rasheed & another (in CP 3366/15) Sari Had (in CP 19-P/16) Jawaid Akhter Arbab (in CA 65-K/13) Fazal Mehmood Mithani (in CA 588-K/18) Muhammad Arshad Khan (in CA 589-K/18) Chairman, Trading Corporation of Pakistan (Pvt) Ltd, Karachi (in CA 1098/18) Qamar ul Islam (in CA 1921/19) Tanveer Saeed (in CA 1922/19) Muhammad Nadeem Khan (in CA 1923/19) …Appellant(s) VERSUS The Secretary Establishment Division Islamabad & others (in CAs 491, 540, 545,546, 580/12, CPs 588-K, 589-K/18, CAs 1921-1923/19) Waqar Alam & others (in CA 536/12) Rafaqat Ali Goraya & others (in CA 537/12) Abdullah Khan & others (in CA 538/12) Muhammad Akram & others (in CA 539/12) D.G., I.B. Islamabad & others (in CAs 541- 544/12, CP 1567/15) Javed Hussain Langha & others (in CAs 452, 453/13) Syed Sabir Hussain Shah & others (in CA 43/13) Gohar Habib (in CP 150/13) Waheed Ahmed (in CP 151/13) Federation of Pakistan thr. Secy. M/O IT & Telecommunications & others (in CAs 1081, 1084/11) Usman Ghani & others (in CA 432/13) Shahid Zaheer (in Cr.P 138/14) Shoukat Hayat (in Cr.Ps 139, 140/14) Muhammad Nawaz Abbasi & others (in CA 1151/12) Mazullah Khan & others (in CA 1026/13) Muhammad Anwar Swati (in CA 1027/13) Commissioner Afghan Refugees, K.P Commissionerate of Afghan Refugees and others (in CP 677-P/14) Noor Alam & another (in CA 637/15) Muhammad Arif & another (in CA 638/15) Kamran & another (in CA 639/15) Sultan Sikandar & another (in CA 640/15) CAs 491/12 etc -4- Azimuddin & another (in CA 641/15) Maqsood Siddique & another (in CA 642/15) Rana Abdul Qayum & another (in CA 643/15) Khalil Ahmad & another (in CA 644/15) Muhammad Arif & another (in CA 645/15) Abdul Aziz & another (in CA 646/15) Tariq Mahmood & another (in CA 647/15) Manzoor & another (in CA 648/15) Azad Khan & another (in CA 649/15) Syed Fida Hussain Jafry & another (in CA 650/15) Muhammad Piral & another (in CA 651/15) The Federation of Pakistan thr. Secretary M/o Water & Power Development Authority, Islamabad & another (in CA 660/15) Syed Abdul Waheed & another (in CP 842/15) Kamran Iqbal Kundi & others (in CP 3612/15) Sher Bahadar Khan & others (in CA 101/16) M/o Petroleum & Natural Resources thr. its Secretary, Islamabad & others (in CA 1106/15, CP 3366/15) Rana Zulfiqar Ahmad & another (in CRPs 231/16) Abdul Majeed Klair & another (in CRPs 232/16) Nazar Muhammad Warraich & another (in CRPs 233/16) Muhammad Yasin Tariq & another (in CRPs 234/16) Muhammad Ayub Rizvi & another (in CRPs 235/16) Malik ABdul Ghafoor & another (in CRPs 236/16) M. Nawaz Bhatti & another (in CRPs 256/16) Ghulam Ali and others (in CA 4-K/17) Aijaz Ali Chachar and another (in CA 5-K/17) District Education Officer (Male) (E & S) Education, Buner & others (in CP 19-P/16) Federation of Pakistan & others (in CA 65-K/13) Syed Yawar Hussain Shigri & another (in CAs 518, 519/18) Akhtar Abbas Bharwana & others (in CA 1098/18) …Respondent(s) For the Appellants/ Petitioners: Mr. M. Shoaib Shaheen, ASC. Mr. M. Akram Sheikh, Sr. ASC. Mr. M. Asif Vardag, ASC. Rai M. Nawaz Kharral, ASC Mr. M. Tariq Tanoli, ASC. Mr.M. Munir Paracha, ASC. Hafiz S. A. Rehman, Sr. ASC. Hafiz Hifzur Rehman, ASC. Raja M. Ibrahim Satti, Sr. ASC. Mr. Haider Waheed, ASC. Mr. Altaf Ahmed, ASC. CAs 491/12 etc -5- Mr. Sanaullah Noor Ghauri, ASC. Raja Muqsat Nawaz Khan, ASC. Mian Shafaqat Jan, ASC. Mr. Zafar Iqbal Chaudhry, ASC. Mr.Zahid Yousaf Qureshi, Addl. AG, KPK. For the Federation: Mr. Sajid Ilyas Bhatti, Addl.AGP. Mr. Ishrat Bhatti, Director IB Mr. Amjad Iqbal, Asstt.Dir.(Lit.) For the Respondent(s): For intervenor: Mr. Sohail Mehmood, DAG. (in CAs 1081,1084/11,432/13) Mr. Tariq Asad, ASC. Mr. S. A. Mehmood Khan Sadozai, ASC. Qari Abdul Rashid, ASC/AOR. Mr. Pervaiz Rauf, ASC. Syed Wusat-ul-Hassan Taqvi, ASC. Mr. Fawad Saleh, ASC. Mian M. Hanif, ASC. Raja Abdul Ghafoor, AOR Mr. M. Ilyas Siddiqui, ASC. Mr. M. Yousaf Khan, ASC. Kh. M. Arif, ASC. Mr. Hazrat Said, ASC. Mr. Asim Iqbal, ASC. Mr. Fazal Shah Mohmand, ASC. Mr. Wasim ud Din Khattak, ASC Mr. Khalid Rehman, ASC. Mr. Kamran Murtaza, Sr. ASC. Syed Rifaqat Hussain Shah, AOR Mr. Fawad Saleh, ASC. Syed Zulfiqat Abbas Naqvi, ASC CAs 491/12 etc -6- In-person. Dr. Babar Awan, Sr. ASC. Khalil Javed, M. Nawaz Abbasi, Sari Had, Fazal Mehmood Methani, Arshad Khan, Waheed Ahmed, Ilyas, Date of Hearing: 16.12.2019 JUDGMENT MUSHIR ALAM, J.— Through this common judgment, this Court shall dispose of the above title cases in the following manner. 2. There are a number of groups of cases, in which appellants/petitioners have impugned the appointments/ promotions under the Sacked Employees (Reinstatement) Ordinance Act, 2010, (hereinafter referred as to ‘Act of 2010’). Those groups can be divided into two categories, i.e. (i) those employees who were the regular employees of the organizations/departments, whose seniority has been affected by the employees inducted under the Act of 2010; and (ii) those persons who have not been extended the benefit of the Act of 2010. 3. First group of cases pertains to the Intelligence Bureau (IB), in which there are two categories of cases. The first category of employees who filed Civil Appeals No.491, 540-546, 580/12, Civil Petitions No.1567/15, 588-K, 589- K/18 and Civil Appeals No.1921-1923/19 are the regular employees of the IB appointed in regular course through due process and are civil servants, whose seniority has been CAs 491/12 etc -7- affected by the Respondents, who have been inducted in IB in 1996 and 1997, were dispensed with service and were reinstated/restored in service and have been given benefit of one step above promotion under the provisions of the Act of 2010. The second category of the employees of IB, who have filed Civil Appeals No. 536-539/12, C.P. 3612/15, and are the employees, who have not been extended the benefit of the Act of 2010. Leave has been granted in these cases vide order dated 18.05.2012 in Civil Appeals No.491, 540-546, 580/12 in the following terms: “After hearing learned counsel for the petitioner, leave to appeal is granted, inter alia, to consider as to whether section 4 of the Sacked Employees (Reinstatement) Act, 2010 is ultra vires and repugnant to Article 48 and 25 of the Constitution of Islamic Republic pf Pakistan and as to whether without prejudice to the case the learned High Court had the jurisdiction to grant leave on the point noted above, in view of the bar under Article 212 of the Constitution” Leave has also been granted in Civil Appeals No.1921- 1923/19 vide order dated 20.11.2019 in the following terms: “Learned counsel for the petitioners contends that the petitioners were reinstated in service under the Sacked Employees (Reinstatement) Act, 2010. He contends that petitioners were employed as Sub-Inspector (BPS-14) and that pursuant to Section 4 of the said Act, they were required to be re-instated one scale higher than the post on which they were terminated. He contends that the Tribunal in the impugned judgment has omitted to consider this very aspect of the matter. 2. The submission made by the learned counsel for the petitioners requires consideration. Leave to appeal is granted to consider, inter alia, the same. As connected CAs 491/12 etc -8- cases i.e. C.A. No.491 of 2012 etc are already fixed before this Court on 25.11.2019, the appeals arising from these petitions be also fixed on the said date.” 4. Second group of cases pertains to the Commissioner Afghan Refugee, Khyber Pakhtunkhwa. In this group of cases, there are two categories of cases. The first category of employees who filed Civil Appeals No.43/13, Civil Petitions No.150,151/13 and Civil Petition No.677-P/14 are the former employees who have not been extended the benefit of the 2010 Act or the organization/department is not extending the benefits under the provisions of the Act of 2010 to such employees, whereas Civil Appeal No.101/16 have been filed by the Commissioner Afghan Refugee KPK challenging the order of the learned High Court, whereby the petitioners/appellants were directed to reinstate the respondents enforcing earlier decision of the learned High Court dated 22.11.2011 under the provisions of the Act of 2010. Leave has been granted in C.A. No.101/16 on 21.01.2016 on the basis of leave granting order dated 18.05.2012 in C.A.491/12, whereas in C.A. No.43/2013 on 02.01.2013 in the following terms: “By the impugned order of the learned Peshawar High Court, Abbottabad Bench, the petitioner have been directed to reinstate the respondents into service, pursuant to Section 4 of the Sacked Employees (Re-instatement) Act, 2010 (Act No.XXII of 2010). 2. In C.P. No.718 of 2012, in the case of Muhammad Afzal & others v. Secretary Establishment Division, Islamabad & others through order dated 18.05.2012, this Court CAs 491/12 etc -9- has already granted leave to appeal, inter alia, to consider as to whether Section 4 of the Sacked Employees (Re-instatement) Act, 2010, is ultra vires and repugnant to Article 25 and 48 of the Constitution of Islamic Republic pf Pakistan and as to whether without prejudice to the case the learned High Court had the jurisdiction to grant leave on the point noted herein above, in view of the bar contained in Article 212 of the Constitution. 3. This matter also give rise to similar question, as noted in the order dated 18.05.2012, passed in C.P. No.718 of 2012, with addition that vires of the Act may also be considered on the threshold of Article 3 of the Constitution of Islamic Republic of Pakistan, 1973, and thus leave to appeal is granted.” [emphasis provided] 5. Third group of cases belongs to the regular employees of National Highway Authority whose seniority has been affected by allowing benefits under the provisions of the Act of 2010 vide impugned judgment of the learned High Court and they have filed Civil Appeal No.452/13, whereas in Civil Appeal No.453/13, Civil Appeal No.65-K/13 and Criminal Petitions No.138 to 140/14 (arising out of contempt proceedings before the learned High Court) have been filed by the certain employees, wherein benefits under the Act of 2010 have not been extended to the appellants/petitioners or the department is not willing to extend the same. Leave was granted mainly vide order dated 23.04.2013 in the following terms: “Rai Muhammad Nawaz Kharal learned ASC for the petitioner in CPLA No.1978/2012 has brought to our notice a certificate of the learned AOR attached at the bottom of the petition which reads as under: CAs 491/12 etc -10- Certificate: i. That this is the first CPLA on behalf of Petitioners against impugned Judgment dated 24.10.2012 passed in CP No.D- 214/2011 by Sindh High Court, Karachi. ii. That the Respondents No.5 to 293 have filed a separate CPLA No.1949 of 2012 against the impugned judgment dtd. 24.10.2012 passed in CP No.D- 214/2011. iii. That on the same question of law this Apex Court was very much pleased to grant leave to Appeal vide Order dated 18.05.2012 passed in CPLA No.718/2012 and in CP 890/893/980/983/987 and 989 of 2012 regarding the same question of law. iv. That CPLA No.1949/2012 is also against the said impugned Judgment dtd. 24.10.2012 passed in CP No.D-214/2011. 2. In view of the above, leave to appeal is granted in this petition as well as other connected Civil Petition No.1949/12. Office is directed to fix the appeal arising out of this petition along with appeal arising out of other connected petition as detailed in paragraph-iii of the certificate.” 6. Fourth group of cases belongs to the employees of M/s Pakistan Telecommunication Company Ltd, who have not been extended certain benefits under the provisions of the Act of 2010 or the organization does not want to extend the benefits to such employees and as such they have filed Civil Appeals No.1081, 1084/2011, 432/13, 4-K and 5-K/2017. CAs 491/12 etc -11- Leave was granted in these cases based on main order dated 03.11.2011 in the following terms: “Counsel for the petitioner states that the learned Division Bench of the High Court of Sindh at Karachi has held that the services of the respondent employees were not governed under the statutory rules, thus a petition under Article 199 of the Constitution was not maintainable despite proceeded to grant relief to the respondents by holding that when the right is claimed in terms of the previsions contained in the Sacked Employees (Re- instatement) Act, 2010 and a right prayed to be enforced, is sought under statute, the petition was held maintainable thus there is contradiction in the impugned judgment. 2. In view of the above submission, this petition is allowed and converted into appeal which shall be heard on the basis of available paper books, subject to option to the parties to file additional documents.” 7. Civil Appeal No.1151/2012 has been filed by the Overseas Pakistani Foundation Islamabad, assailing the judgment of the learned High Court of Sindh whereby they were directed to extend the benefit of the Act of 2010 to the respondents. Leave was granted in this case on the basis of earlier order dated 08.05.2011 passed in CP 718/2012, which has been reproduced above. 8. Civil Review Petitions No. 231 to 236 and 256/2016 in Civil Petitions No.405 to 411/2016 have been filed by the State Life Insurance Corporation of Pakistan, seeking review of the judgment of this Court dated 05.05.2016, whereby the judgment of the learned High Court in favour of the respondents was maintained through which the respondents were extended certain benefits under the CAs 491/12 etc -12- provisions of the Act of 2010. Civil Appeals No.1026 & 1027/2013 have also been filed by the State Life Insurance Corporation of Pakistan, wherein leave was granted vide order dated 13.09.2013 in the following terms: “In order to consider the question, when the respondents services have been terminated by the competent authority on account of the poor performance and such termination order, when challenged by the respondents, has been upheld by this Court; whether on the promulgation of the Sacked Employees (Reinstatement) Act No.XXII of 2010, the respondents were entitled to the reinstatement; whether the respondents ipso jure were entitled to the reinstatement notwithstanding the judgments/verdicts passed against them, leave is granted. In the meantime, operation of the impugned judgment is suspended.” 9. Civil Appeals No.637 to 651/2015, 518, 519/2018 and Civil Petition No.842/2015 have been filed by the Civil Aviation Authority, assailing the judgment passed by learned High Court of Sindh, whereby Writ Petition filed by the Respondents, seeking reinstatement and regularization of service under the provisions of the Act of 2010, was allowed vide judgment dated 02.03.2015. Leave was granted vide order dated 17.06.2015 in the following terms: “Leave is granted, inter alia, to consider the following: 1. Whether Act No.XXII of 2010 titled Sacked Employees (Reinstatement) Act, 2010 (“Act”) is a valid piece of legislation being violative of law laid down by this august Court in cases reported as PLD 2010 SC 265 and PLD 2012 SC 923? 2. Whether Sacked Employees (Reinstatement) Act, 2010 can be legally extended to cover and apply to the kind of CAs 491/12 etc -13- employees like the Respondent No.1, i.e. daily wagers? 3. Whether the terms of engagement and the nature of duties performed by the Respondent No.1 can be legally considered as falling within the definition of a “sacked employee” under section 2(f) of the Act? 4. Whether employment of the respondent No.1 on daily wage basis for a term of 89 days and upon expiry of which a fresh and successive term of employment after a gap of one or two days may be legally regarded as a continuous term of employment by the Respondent No.1 with the Petitioner? 5. Whether the definition of “sacked employee” contained in section 2(f)(i) requires a continuous terms of employment or simply appointment to have been between 1st November 1993 till 30th November, 1996 and departure between 1st November, 1996 till 12th October, 1999?” 10. Civil Appeal No.660/2015 has been filed by WAPDA, challenging the order of the learned High Court of Sindh dated 10.12.2014 allowing the petition of the respondent No.2 for his reinstatement under the provisions of the Act of 2010. Leave was granted in this case vide order dated 06.07.2015 in line with the leave granting order dated 17.06.2015 passed in Civil Appeals No.637 to 651/2015, reproduced above. 11. Civil Appeal No.1106/2015 and Civil Petition No.3366/2015 have been filed by the former employees of the Sui Southern Gas Company Limited, who are seeking certain benefits under the provisions of the Act of 2010 and CAs 491/12 etc -14- settlement agreement dated 07.07.2003, which benefits, according to the appellants/petitioners, are not being extended to them. Leave was granted on 26.10.2015 in the following terms: “It is submitted that the petitioners were the employees of Sui Southern Gas Company Limited (company) since 1995 and their services were terminated in 1999. They challenged the termination order before the learned Federal Service Tribunal (as at the relevant time Section 2A of the Service Tribunals Act, 1973 was in vogue) and their appeals were accepted on account of which they were reinstated vide order dated 13.04.2001. The respondent-company did not challenge such order which had attained finality. Be that as it may, a settlement was arrived at between the petitioners and the Company on 07.07.2003 on account of which besides the reinstatement having been made per the order of the learned Tribunal certain other terms and conditions regarding seniority and further promotion were also settled. Subsequently, the Sacked Employees (Reinstatement) Act, 2010 (the Act) was enforced and according to the provisions of Section 16, the petitioners were entitled to certain back benefits which were denied to them compelling the petitioners to invoke the constitutional jurisdiction of the learned High Court. Moreover, the terms and conditions of the settlement were also not adhered to by the respondent and this also was a part of the cause of action for the petitioners. The learned High Court through the impugned judgment has dismissed the petition holding it to be not maintainable; that the petitioners are not entitled to the benefit of the provisions of Section 16 of the Act; that they have approached the court with inordinate delay and thus are hit by laches; and that contractual obligations cannot be enforced through invocation of the constitutional jurisdiction of the court in terms of Article 199 of the Constitution. It is argued that the provisions of Section 16 of the Act are clear and do not permit any doubt that all the sacked employees defined in Section 2(f) are CAs 491/12 etc -15- entitled to reinstatement benefits notwithstanding that they have been reinstated under the order of the court. The only condition is that they must fall within the purview of the law quoted above. it is also argued that since the respondent is an autonomous body, therefore, even the breach of a contractual obligation could be enforced against it as per the law down in the judgment reported as Pakistan Defence Officer’s Housing Authority vs. Javaid Ahmed (2013 SCMR 1707). Moreover, as there is recurring cause of action, consequently the rule of laches would not be attracted. Leave is granted to consider the above.” 12. In Civil Petition No.19-P/2016, the respondents (Education Department) had not reinstated the Petitioner but did reinstate his colleagues under the provisions of the Khyber Pakhtunkhwa Sacked Employees (Reinstatement) Act, 2012. Learned Peshawar High Court vide judgment dated 29.10.2015 has dismissed the petition of the petitioner. Hence the petitioner filed this petition for leave to appeal. However, vide our order 28.11.2019, we had de-clubbed certain cases (i.e. Civil Appeals No.1448/2016, 1483/2019, Civil Petitions No.288-P,372-P/2016, 43-P to 45-P/2018, 416- P,517-P/2017, 491-P,568-P,633-P,634-P/2018, 6-P,118- P/2019, 439-P, 485-P/2017, 147-P,541-P and 704-P/2019 and 2122/2018) relating to the Khyber Pakhtunkhwa Sacked Employees (Re-instatement) Act, 2012 but inadvertently this case could not be separated. Accordingly, office is directed to de-club this case from the titled cases and fix the same separately. CAs 491/12 etc -16- 13. Civil Appeal No.1098/18 has been filed Chairman, Trading Corporation of Pakistan (Pvt) Ltd, Karachi, challenging the impugned short order dated 25.05.18, passed by learned Islamabad High Court, allowing certain benefits to respondent No.1 under the provisions of the Act of 2010. However, the petitioner claims that they do not fall within the purview of the Act of 2010. Leave was granted in this case vide order dated 18.09.2018 in the following terms: “The point raised and noted in the order dated 29.08.2018 needs further consideration in the light of the law laid down by this Court in the judgment reported as WAPDA and 2 others vs. Mian Ghulam Bari (PLD 1991 SC 780). Leave is therefore, granted in this case to thoroughly consider the same.” 14. We have heard the learned counsel for the Petitioners and Respondents as well as perused the record. Issue 1: THE SCOPE OF THE NON-OBSTANTE CLAUSE: 15. The vires of he Sacked Employees (Re- instatement) Act 2010 has been challenged before us. Prior to addressing the merits of the case, we will first address the issue of the non-obstante clause present within the Act of 2010. 16. The Act of 2010 also mentions a non- obstante clause under S.4 as: “Notwithstanding contained in any law, for the time being in force, or any judgment of any tribunal or any court including the Supreme Court and a High Court or any terms and conditions of appointment on appointment basis or otherwise, all sacked employees shall be re-instated in service and CAs 491/12 etc -17- their services shall be regularized with effect from the date of enactment of this Act.” 17. The first issue that requires examination is what would be the effect of a non-obstante clause when this Court is examining the vires of a statute. Given that the constitutionality of The Act of 2010 has been challenged, the precise proposition that requires consideration is whether a non-obstante clause can override the provisions of the Constitution itself. 18. Article 240 of the Constitution is prefaced by the phrase ‘subject to the constitution’ that serves as a clear indicator that the drafters intended the Parliament and/or Provincial Assemblies to be subservient to it. This Court, in the case of Contempt Proceedings Against Chief Secretary, Sindh and Others,1 has held that: “Article 4(1) provides that all citizens are entitled to enjoy equal protection of law and have inalienable right to be treated in accordance with law. In this respect the Act of 1973 framed under the command of Articles 240 and 242 of the Constitution provides protection to all the Civil servants by assuring them that the law promulgated by the Parliament and/or Provincial Assemblies will be subject to the Constitution. The phrase "subject to the Constitution" has been used as prefex to Article 240 which imports that Assemblies cannot legislate law against service structure provided in Part XII of Chapter 1 of the Constitution.” 19. Furthermore, the legislation derives its power to legislate on matters pertaining to employees in service of Pakistan by virtue of the Constitution. It has been observed by this Court in the case of Fazlul Quader Chowdhry v. Muhammad Abdul Haque2 that the 1 2013 SCMR 1752 at Paragraph 117 2 PLD 1963 SC 486 CAs 491/12 etc -18- Constitution is at the pinnacle of legislative hierarchy compared to any other law and that each and every body acting under it must, in exercise of delegated authority, be subservient to the instrument by which the delegation is made. 20. The Constitutional framework under Article 240 and Article 242 clearly envisions that any appointments in the service of Pakistan shall be done so under the Act of Parliament for the Federation and under the Act of Provincial Assemblies in the case of services of a province. Pursuant to Article 240 of the Constitution, the Parliament enacted The Civil Servants Act, 1973, which was adopted by all Provinces with minor modifications. Article 240 of the Constitution is further supplemented by Article 242, which envisioned the creation of a Public Service Commission that is intended to be the supervisory body to oversee recruitments for the Province and the Federation. Any act of Parliament that attempts to evade the constitutional mandate and extend undue favor to a specific class of citizens could constitute a clear violation of the constitutional rights of the Civil Servants enumerated in Articles 4, 9, 25 as well as Articles 240 and 242 of the Constitution. 21. Therefore, given the fact that the legislature itself is subservient to the Constitution, a non-obstante clause cannot be deemed to override the provisions of the Constitution itself. 22. Interestingly, the non-obstante clause also excludes the application of the judgments of this Court or any High Court. The effect of the non-obstante clause, is, in essence, to nullify a judgment of this Court. However, it is a settled position in law that a legislature cannot destroy, annul, set aside, vacate, reverse, modify, or impair CAs 491/12 etc -19- a final judgment of a Court of competent jurisdiction as most recently been upheld by the decision of this Court in Contempt Proceedings Against Chief Secretary, Sindh and others:3 “With respect to legislative interference with a judgment, a distinction has been made between public and private rights under which distinction a statute may be valid even though it renders ineffective a judgment concerning a public right. Even after a public right has been established by the judgment of the court, it may be annulled by subsequent legislation." 166. This Court in the case of Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 SC 605) has held that when a legislature intends to validate the tax declared by a Court to be illegally collected under an individual law, the cause for ineffectiveness or invalidity must be removed before the validation can be said to have taken place effectively. It will not be sufficient merely to pronounce in the statute by means of a non- obstante clause that the decision of the Court shall not bind the authorities, because that will amount to reversing a judicial decision rendered in exercise of the judicial power which is not within the domain of the legislature. It is therefore necessary that the conditions on which the decision of the Court intended to be avoided is based, must be altered so fundamentally, that the decision would not any longer be applicable to the altered circumstances… 167. In order to nullify the judgment of the Court, unless basis for judgment in favour of a party is not removed, it could not affect the rights of a party in whose favour the same was passed. The issue of effect of nullification of judgment has already been discussed in the case of Mobashir Hassan reported in (PLD 2010 SC 265), Para-76 discusses the effect of nullification of a judgment by means of a legislation. In the said case, the view formed is identical to the one in the case of Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299) and Fecto Belarus Tractor Ltd. v. Government of Pakistan through Finance Economic Affairs and others (PLD 2005 SC 605) and it was observed that legislature cannot nullify the effect of the judgment and there are certain limitations placed on its 3 2013 SCMR 1752 CAs 491/12 etc -20- powers including the one i.e. by amending the law with retrospective effect on the basis of which the order or judgment has been passed thereby removing basis of the decision… 168. In the case in hand the Provincial Assembly has validated/regularized the absorptions and out of turn promotions by the Ordinance of 2011, Act XVII of 2011 and Act XXIV of 2013 without providing mechanism by which the absorptions and out of turn promotions with backdated seniority were given to the employees. The judgments on the issue of absorption were clear and in fact through impugned instruments, the Assembly validated the absorptions/out of turn promotions without noticing that while granting concessions to few blue eyed persons, rights of all the civil servants guaranteed under the Constitution and Civil Servant Act were impaired. In fact the impugned instruments are in the nature of legislative judgment as they purport to take away jurisdiction of the Superior Courts to abridge the writ and legality of the provisions by which Sindh Government has conferred undue favours on a select group of undeserving persons by way of deputation, posting, absorption out of turn promotions, ante-date seniority and re-hiring, hence they are violative of Article 175 of the Constitution. It goes without saying that a repugnancy to the Constitution declared by this Court or a High Court cannot be validated or condoned by a legislature unless the Constitution is itself amended.” 23. Therefore, the non-obstante clause has failed abysmally to provide unfettered protection to the Act of 2010 and is rendered ineffective through the very judicial pronouncement it sought to oust. Hence, we will now proceed to examine the constitutionality of The Act of 2010 in light of judicial pronouncements. ISSUE 2: THE VIRES AND CONSTITUTIONALITY OF THE ACT OF 2010: I. VIOLATION OF FUNDAMENTAL RIGHTS 24. The preamble of The Act of 2010 provides that this Act is to: CAs 491/12 etc -21- “provide relief to persons in corporations service or autonomous or semi-autonomous bodies or in a Government service who were dismissed, removed or terminated from service.” 25. The relief envisioned in The Act of 2010 is of reinstatement and then regularization into service for all sacked employees. The term ‘reinstatement’ has not been defined in The Act of 2010. Therefore, we will be relying on the jurisprudence of this Court to clarify on the meaning of the term ‘reinstatement’. In the case of Muhammad Sharif v. Inspector General of Police, Punjab,4 reinstatement was defined as: “Reinstate in service means to place again in a former state or position5 from which the person had been removed.6 Reinstatement is effected from the date of dismissal with back pay from that date.7 A reinstated employee is to be treated as if he had not been dismissed and is therefore entitled to recover any benefits (such as arrears of pay) that he has lost during his period of unemployment. However, pay in lieu of notice, ex gratia payments by the employer, or supplementary benefits, and other sums he has received because of his dismissal or any subsequent unemployment will be taken into account.8 26. This Court further went on to state that: “An employee, i.e. civil servant in this case, whose wrongful dismissal or removal has been set-aide goes back to his service as if he were never dismissed or removed from service. The restitution of employee, in this context, means that there has been no discontinuance in his service and for all purposes he had never left his post. He is therefore entitled to arrears of pay for the period he was kept out of service for no fault of his own. No different is the position where an employee has been served with a penalty 4 2021 SCMR 962 at Paragraph 8 5 Black’s Law Dictionary (10th Edition, Thomson Reuters, 2014) 1477 6 Black’s Law Dictionary, (6th Edition, St. Paul, MINN., West Publishing Co., 1990) 1287 7 Aiyar’s Judicial Dictionary (10th Edition, 1988) 871 8 Oxford Dictionary of Law (Fifth Edition, Reissued with new covers, 2003) 419- 420. CAs 491/12 etc -22- like reduction in rank or withholding of increment(s) or forfeiture of service, etc. and the penalty has been set-aside. The employee stands restored to his post with all his perks and benefits intact and will be entitled to arrears of pay as would have accrued to him had the penalty not been imposed on him. This general principle of restitution fully meets the constitutional requirements of fair trial and due process (Article 4 & 10A) besides the right to life (Article 9) which includes the right to livelihood ensuring all lawful economic benefits that come with the post. Reinstating an employee but not allowing him to enjoy the same terms and conditions of service as his colleagues is also discriminatory (Article 25). All this snowballs into offending the right to dignity (Article 14) of an employee for being treated as a lesser employee inspite of being reinstated or restored into service.”9 27. Interestingly, this Court has also held that the term ‘reinstatement’ and ‘absorption’ are synonymous in nature. This was held in the case of Dr. Anwar Ali Sahto v. Federation of Pakistan,10 wherein this Court observed that: “we are of then view that ‘reinstatement' and 'absorption' for all intents and purposes, are synonymous expressions, in that, ‘reinstatement’ in service involves an element of 'absorption', therefore, the expression 'absorbed' used its Abdul Samad (supra) by this Court is to be construed accordingly and to that extent the case of Abdul Samad (supra) also stands revisited.” 28. The aforementioned principle can be distinguished on the facts. While the intent of the legislature, through the enactment of the Sacked Employees (Re-instatement) Act 2010, is to reinstate “sacked employees”,11 the constitutionality of such a blanket legislation extending relief to a specific class of citizens requires examination. 9 2021 SCMR 962 at Paragraph 9 10 PLD 2002 SC 101 11 S.2(f) of the Sacked Employees (Re-instatement) Act, 2010 CAs 491/12 etc -23- 29. We will now proceed to examine the constitutionality of The Act of 2010 on the touchstone of Article 8 of the Constitution which provide for laws inconsistent with or in derogation of fundamental rights to be void. The fundamental rights that are under consideration before us are Article 4, 9 and Article 25 of the Constitution which reads as follows: “4. 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 9. Security of person.- No person shall be deprived of life or liberty saves in accordance with law. 25. Equality of citizens.- (1) All citizens are equal before law and are entitled to equal protection of law.” 30. The principles for adjudging the constitutionality of legislation have been enumerated time and again by this court. It was stated in the case of Shahid Pervaiz v. Ejaz Ahmad12 that: “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.” 31. Therefore, the proposition then becomes whether the law has placed the regular employees, who remained in 12 2017 SCMR 206 CAs 491/12 etc -24- service, at a disadvantageous position in terms of seniority and other benefits to reinstated employees. If so, then The Act of 2010 would be violative of right enshrined under Article 9 and Article 25 of the Constitution of the regular employees. 32. A similar matter was addressed by this Court Contempt Proceedings Against Chief Secretary, Sindh and Others13 where the vires of the legislative instruments known as the Sindh Civil Servants (Regularization of Absorption) Ordinance, 2011 and the Sindh Civil Servants (Regularization of Absorption) Act, 2011 were examined. Through the operation of these legislative instruments, the employees of the Federal Government, Corporation, Council, statutory body, or any other authority absorbed in the Sindh Civil servants on or before the commencement of the aforementioned ordinance were granted backdated seniority from the date of their absorptions. Therefore, the question before the court was whether such regularization, among other legislative instruments, could be validated through statutes? In holding that the statute was ultra- vires, this Court held that: “118. Article 9 of the Constitution provides protection to every citizen of life and liberty. The term "life and liberty", used in this Article is very significant as it covers all facets of human existence. The term "life" has not been defined in the Constitution, but it does not mean nor it can be restricted only to the vegetative or animal life or mere existence from conception to death. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The term "life" includes 'reputation' 'status' and all other ancillary privileges which the law confers on the citizen. A civil servant is fully protected under Article 9 and cannot be deprived of his right of reputation and status. Under the impugned instruments a person, 13 2013 SCMR 1752 at Paragraph 117 CAs 491/12 etc -25- who without competing through the recruitment process is conferred status of a civil servant. The impugned legislation has amended service laws in a manner to deprive the civil servants from their rights to status and reputation under Article 9 of the Constitution. 119. A civil servant, who after passing the competitive exam in terms of the recruitment rules, is appointed on merits, loses his right to be considered for promotion, when an employee from any other organization is absorbed under the impugned legislative instruments, without competing or undertaking competitive process with the backdated seniority and is conferred the status of a civil servant in complete disregard of recruitment rules. Under the impugned enactments, it is the sole discretion of the Chief Minister to absorb any employee serving in any other organization in Pakistan to any cadre in the Sindh Government. The discretion of the Chief Minister to absorb any employee from any part of Pakistan to any cadre with backdated seniority directly affects the fundamental rights of all the civil servants in Sindh being violative of the Article 4 which provides equal protection of law to every citizen to be treated in accordance with law, which is inalienable right of a citizen. The impugned legislative instruments have been promulgated to extend undue favour to few individuals for political consideration and are against the mandate of the Civil Servant Act and recruitment rules framed thereunder. The impugned instruments are discriminatory and prejudicial to public interest as such enactments would be instrumental in affecting the Civil servants' tenurial limitations and their legitimate expectancy of future advancement. The provision of absorption on the plain reading reveals that this provision has been promulgated to circumvent and obviate the very framework of the Provincial civil structure, as envisaged by the Constitution and law. By such impugned instruments, a parallel system based on discrimination and favoritism has been CAs 491/12 etc -26- imposed to supersede the existing law, Rules and Regulations governing the important matters of civil servants like 'absorption', therefore, it can be safely held that the impugned instruments being discriminatory are violative of Article 25 of the Constitution, as it is not based on intelligible differentia not relatable to the lawful object. 120. The impugned Ordinance and Act of 2011 validating absorption by the Sindh Government are ultra vires of Articles 240 and 242 of the Constitution, as these instruments, in the first place, have been promulgated without amending the Act of 1973, and the rules framed there-under. Moreover, the impugned validation instruments are multiple legislation and do not provide mechanism by which absorption of different employees took place in complete disregard of the parent statute and the rules framed there under. By these impugned validating instruments restriction placed by Articles 240 and 242 of the Constitution has been done away. The validating instruments allowed absorption of a non Civil Servant conferring on him status of a Civil Servant and likewise absorption of a Civil Servant from non-cadre post to cadre post without undertaking the competitive process under the recruitment rules. We may further observe that the Provincial Assembly can promulgate law relating to service matters pursuant to the parameters defined under Articles 240 and 242 of the Constitution read with Act of 1973 but, in no way, the Provincial Assembly can introduce any validation Act in the nature of multiple or parallel legislation on the subject of service law.” 33. Finally, in the aforementioned case, the Court concluded that: “The impugned legislation on absorption is persons/class specific as it extends favours to specific persons infringing the rights guaranteed to all the civil servants under the service structure provided under Articles 240 and 242 of the Constitution. This Court in the CAs 491/12 etc -27- case of Baz Muhammad Kakar and others v. Federation of Pakistan and others (PLD 2012 SC 870) has held that the legislature cannot promulgate laws which are person/class specific as such legislation instead of promoting the administration of justice caused injustice in the society amongst the citizens, who were being governed under the Constitution. In the case in hand the impugned legislation, prima facie, has been made to protect, promote and select specific persons who are close to centre of power, and has altered the terms and conditions of service of the civil servants to their disadvantage in violation of Article 25 of the Constitution.” 34. The matter before us bears a similar nexus to the aforementioned case. The legislature has, through the operation of The Act of 2010, attempted to extend undue benefit to a limited class of employees. This legislation has a direct correlation to the right enshrined under Article 9 of the Constitution for employees currently serving in the departments falling under section 2(d) of The Act of 2010. Under Article 9 of the Constitution, a civil servant has been extended the right to ‘status’ and ‘reputation’. The right to ‘status’ and ‘reputation’ are not mutually exclusive and are encompassed by the wider umbrella of Article 9 of the Constitution. Upon the ‘reinstatement’ of the ‘sacked employees’, the ‘status’ of the employees currently in service is violated as the reinstated employees are granted seniority over them. This is an absurd proposition to consider as the legislature has, through legal fiction, deemed that employees from a certain time period are reinstated and regularized without due consideration to how the fundamental rights of the people currently serving would be affected. 35. There exists a regulatory framework of each organization which was created to ensure parity among the CAs 491/12 etc -28- employees in service of Pakistan. There exists a meritorious process that ensures completion of all codal formalities through which civil servants are inducted into the service of Pakistan. The rights of the people who have completed such formalities and complied with the mandatory requirements laid down by the regulatory framework cannot be allowed to be placed at a disadvantageous position through no fault of their own. 36. Similarly, this Act is also in violation of the right enshrined under Article 4 of the Constitution, that provides that citizens equal protection before law, as backdated seniority is granted to the ‘sacked employees’ who, out of their own volition, did not challenge their termination or removal under their respective regulatory frameworks. Therefore, by doing so, the legislature has granted undue favors through circumvention and obviation of the very framework of the civil structure envisaged by the Constitution and law. 37. Given that none of the ‘sacked employees’ opted for the remedy available under law upon termination during the limitation period, the transaction has essentially become one that is past and closed. They had foregone their right to be reinstated by availing the due process of law that was available to them due to which they had foregone their right to challenge their orders of termination or removal. The ‘sacked employees’, upon termination or removal, were entitled to the legal remedy to challenge such orders and their inaction has closed the doors for such remedy. ISSUE 3: THE REPUGNANCY OF THE ACT OF 2010 WITH ARTICLE 240 AND ARTICLE 242 OF THE CONSTITUTION OF PAKISTAN: CAs 491/12 etc -29- 38. Needless to mention that even in the absence of violation of fundamental rights, this Court may examine the vires of a legislation by assessing whether it can be reconciled with the Constitution of Pakistan. In the case of Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan,14 a full court has held that: “so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law which comes for examination before the superior Courts. " 39. This Court, as protector and defender of the Constitution, has an inherent duty to ensure that the provisions of the constitution are enforced in any case coming before us and declare any enactments invalid that abrogate the Constitution.15 40. Therefore, as discussed above, notwithstanding the non-obstante clause in The Act of 2010, there is no cavil to the proposition that this Court may examine the legislative competence to enact statutes. Therefore, the second limb of the proposition orbits around the legislative competence of the legislature to enact 2010 Act as it circumvents the constitutional process envisioned under Article 240 and Article 242 of the Constitution. 41. Another important distinction is the difference of the terms ‘civil servant’ and employees in ‘Service of Pakistan’. This is a crucial distinction as the proposition that requires examination is whether a person can be declared by the legislature, on the basis of legal fiction, a Civil Servants, for the purposes of section 2(b) of the Civil Servants Act, and a person serving ‘in service of Pakistan’, 14 PLD 2000 SC 869 15 PLD 1963 SC 486. PLD 1967 Lahore 227. 1989 PTD 42. PLD 1983 SC 457. PLD 1999 SC 54. 1999 SCMR 1402. 2002 SCMR 312. 2004 SCMR 1903. PLD 2006 SC 602. CAs 491/12 etc -30- under Article 260 of the Constitution. A civil servant is defined as: “(b) "civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does include- (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is "worker" or "workman" as defined in the Factories Act, (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923) 42. The term ‘service of Pakistan’ is defined under Article 260 of the Constitution as: “Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis- e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly” 43. A ‘sacked employee’ has been defined under The Act of 2010 under S.2(f). The employer for such organizations has been defined under s.2(f) as: “employer means the Federal Government or any Ministry or Division or department of the Federal Government or a corporation or organization or autonomous or semi- CAs 491/12 etc -31- autonomous body established by or under a Federal law or owned or controlled by the Federal Government.” 44. A bare perusal of the aforementioned definition reveals that the ‘sacked employees’ fall into either the definition of a ‘civil servant’ or employees ‘in the service of Pakistan’. This Court, in the case of Syed Abida Hussain v. Tribunal for N.A 69,16 has held that the two terms are not synonymous. The relevant extract is reproduced below: “6. It is difficult to subscribe to the contention of the learned counsel. The expression `service of Pakistan' has been defined in Article 260(1) of the Constitution… Learned counsel for the petitioner rightly concedes that the post of an Ambassador is a post in connection with the affairs of the Federation. It will be seen that the definition does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled. Thus so far as the inclusion of the post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act: consequently, the mere fact that a person is not a civil servant within the meaning of the Civil Servants Act would not put him beyond the pale of the said Constitutional definition. The contention that the case of the petitioner was covered by sub- clause (n) ibid, is entirely misconceived as ex facie it does not apply to situations where the relationship of master and servant exists between the parties. Here the petitioner was a wholetime employee of the Government and except for matters, which were specifically provided in the letter of appointment she was governed by the ordinary rules of service applicable to the civil servants. It may perhaps be of interest to mention here that these rules were framed in pursuance of the provision of Article 240 ibid. Thus the assertion on her behalf that while serving as an Ambassador she could not be treated as one in the service of Pakistan merely because her appointment to the post owed its origin to 16 PLD 1994 SC 60 CAs 491/12 etc -32- a special contract cannot be accepted. Admittedly, a period of two years has not passed since she relinquished charge of the said post. Therefore, she has been rightly held to be suffering from the disqualification laid down in clause (k) ibid. We find no merit in this petition. It is hereby dismissed. For the above discussion, it is quite clear that a person may be in the service of Pakistan but for that reason he cannot be classed as a `Civil Servant ` as well, as defined in the Civil Servants Act. The Service Tribunal established in pursuance of Article 212 of the Constitution has been conferred exclusive jurisdiction only in respect of the dispute relating to terms and conditions of the service of a `Civil Servant' as defined under the Civil Servants Act, 1973 and as such the jurisdiction of the Tribunal could not be extended to any other category." 45. This reasoning was upheld in the case of Registrar, Supreme Court of Pakistan v. Wali Muhammad,17 wherein it was held that: “We would like to mention here that from the trend of arguments at the bar it appeared that two expressions `service of Pakistan' and `Civil servants' were treated as synonymous. This in our opinion is not so. Service of Pakistan is defined in Article 260 of the Constitution as meaning, any service, post or office in connection with the affairs of Federation or a Province. This expression also includes an All Pakistan Service and service in the Armed Forces or any other service declared under an Act of the Parliament or a Provincial Assembly as Service of Pakistan. The terms `Civil Servant' is defined in the Civil Servants Act 1973 as a person, who is a member of an All Pakistan Service or of a civil service of the Federation or a person holding a civil post in connection with the affairs of Federation, including a civil post connected with the defence. However, a person on deputation to the Federation from any Province or other authority, a person who is employed on a contract or on work-charge basis who is paid from contingencies and a person who is `worker' or `workman' as 17 1997 SCMR 141 CAs 491/12 etc -33- defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923, are expressly excluded from the category of `Civil Servant'. On a careful examination of the definitions of `Service of Pakistan' as given in Article 260 of the Constitution and the `Civil Servant' as mentioned in Civil Servants Act, 1973, it would 'appear that the two expressions are not synonymous. The expression `Service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the term `Civil Servant' employed in the Civil Servants Act. While a `Civil Servant' is included in the expression `Service of Pakistan', the vice versa is not true. `Civil Servant' as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the Constitution. To illustrate the point, we may mention here that members of Armed Forces though fall in the category of `Service of Pakistan' but they are not civil servants within the meaning of Civil Servants Act and the Service Tribunals Act. The scope of expression `Service of Pakistan' and `Civil Servants' came up for consideration before this Court in the case of Syeda Abida Hussain v. Tribunal for N.A. 69 (PLD 1994 SC 60). In that case the petitioner was disqualified from contesting the general elections of 1993 on the ground that she was a person who held the office of profit in the Service of Pakistan. It was contended by the petitioner in that case that she was appointed as an Ambassador on contract for two years and as a person employed on contract was specifically excluded from the definition of civil servant the petitioner could not be disqualified.” 46. This rationale was finally upheld in the case of Mubeen-Us-Salam v. Federation of Pakistan18 wherein it was stated that: “From perusal of the definition of `civil servant' in section 2(1)(b) of the CSA, 1973, it emerges that in order to attain the status of a `civil servant' it is necessary that the person should be member of All Pakistan Service or of a civil service of the Federation, or who 18 PLD 2006 SC 602 at Paragraph 35 CAs 491/12 etc -34- holds a civil post in connection with the affairs of the Federation. There may be some employees who fall within the definition of `civil servant' for the purpose of STA, 1973 but do not enjoy the status of All Pakistan Service or of a civil service of the Federation.” 47. When assessing when the legislature can, through legal fiction, by a deeming clause, declare a person to be a person in the service of Pakistan for the purposes of Article 260, we find solace in the case of Federation of Pakistan v. Muhammad Azam Chattha,19 wherein it was stated that: “In this behalf it may be noted that according to Article 260 of the Constitution, the Legislature is empowered to declare any service to be service of Pakistan by or under an Act of Majlis-e-Shoora [Parliament]. This constitutional provision nevertheless does not empower the Legislature to declare any person to be in the service of Pakistan, on the basis of a legal fiction. The Legislature by using the expression "shall be deemed" has allowed to enjoy the status of civil servant, even to those persons who were excluded from its definition in terms of section 2(I)(b) of the CSA, 1973, which also includes a person, who is a contract employee as interpreted by this Court…” 48. Further support to the proposition that the Legislature cannot, by deeming clause, confer the status of a ‘civil servant’ upon employees of corporation can be found in the case of Mubeen-us-Salam v. Federation of Pakistan,20 wherein, after an elaborate discussion, it was held that that: “71. In view of above position, we are of the opinion that Article 260 of the Constitution does not mandate to Legislature to declare any person to be in the service of Pakistan, and by deeming clause to be a civil servant for the purpose of STA, 1973. We have minutely examined the earlier judgments on the point, particularly the cases of WAPDA 19 2013 SCMR 120 20 PLD 2006 SC 602 CAs 491/12 etc -35- employees, discussed above, as well as the judgment in the case of Qazi Wali Muhammad (ibid), to come to the conclusion that a person can be declared to be in service of Pakistan but not necessarily a civil servant, in terms of CSA, 1973. 75. This Court had an occasion to examine the effect of a deeming clause in the case of Mehreen Zaibun Nisa (PLD 1975 SC 397), wherein the effect of a deeming clause in light of the earlier judgments was summed up as follows: --- ‘(i) When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. (ii) Where a statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. (iii) At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction. (iv) When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, this Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.’ 76. As pointed out herein above that on promulgation of section 2-A of the STA, 1973, the persons employed in the Government controlled Corporations, were never treated to be in the service of Pakistan, therefore, they were not allowed to enjoy the status of a civil servant. But now, by means of a legal fiction, such status has been conferred upon them notwithstanding the fact that statedly their cases are not covered by the definition of "civil servant" and on account of this legal fiction a CAs 491/12 etc -36- discrimination has been created between the persons, who have been excluded from the definition of civil servant as per section 2(1)(b) of the CSA, 1973 whereas the persons in the employment of Government controlled Corporations, either created by or under a statute, most of them incorporated under the Companies Ordinance 1984, have been declared to be in the service of Pakistan and deemed to be civil servants. Thus, it has created a classification which does not seem to be reasonable. As per the second principle, noted hereinabove, a deeming clause only permits to imagine a particular state of affairs but it does not mean that such imagination can be allowed to be overwhelmed, when it comes to the inevitable corollaries of that state of affairs, therefore, merely on the basis of imagination, status of a person cannot be converted, without ensuring compliance of the basic requirements. As in the case in hand, merely on the basis of a deeming clause, if a person is treated to be a civil servant, it has also to be examined whether remaining conditions, provided under the CSA, 1973 have been fulfilled, particularly, as to whether, while making appointments, provisions of section 5 of the CSA, 1973 have been complied with or not, according to which the appointments to an All-Pakistan Service or, to a civil service of the Federation or to a civil post in connection with, the affairs of the Federation, including any civil post connected with the defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. Inevitable corollary consequent upon this provision of law and the conclusion would be that those persons, who are working in the Government controlled Corporations etc. and have been appointed in a prescribed manner, would be deemed to be in the service of Pakistan and if their status is declared to be a civil servant, only then they would be entitled to enjoy the benefits of Section 2-A of the STA, 1973, whereas the persons other than those, like persons employed on contract basis, deputationist, worker or workman, under different statutes, whose appointment has not taken place in the prescribed manner, shall not be deemed to be civil servants and merely on the basis of CAs 491/12 etc -37- fiction their status cannot be enhanced essentially, in majority of cases, they have not been appointed under any statutory provision and it is also not clear as to whether their appointment had taken place under lawful authority and such Authority had exercised its discretion fairly and in good faith or there was any mala fide etc.” 49. Furthermore, S.2(f)(i) and S.2(f)(ii) clearly envisions that reinstatement and regularization21 should be extended to not only regular employees who were either dismissed, removed, or terminated, but to ad-hoc and contract basis employees as well. When S.2 is read holistically, the overall effect of the enactment is that the overall recruitment process is overlooked and non-civil servants are ‘reinstated’ into civil service thereby deeming them to be members of civil service through a deeming clause. 50. Therefore, given the fact that it is settled law that the legislature cannot, through deeming clause, confer the status of a civil servant,22 it has overlooked the relevant framework for employees in the service of Pakistan in clear violation of Article 240 and Article 242 of the Constitution. 51. This is particularly troubling as each of the ‘sacked employees’ had appropriate remedies available under Article 212 read with the Service Tribunals Act, 1973 before the appropriate Service Tribunal. Given that the employees did not elect for such a remedy upon termination of services, they have foregone their right to be reinstated. 52. In conclusion, while The Act of 2010 intends for reinstatement, the jurisprudence of this Court has clearly laid down the nuances entailed by the term ‘reinstatement’. The Act of 2010 does not fulfill the criteria laid down by 21 Under S.4 of The Act of 2010 22 2015 SCMR 456 at Paragraph 203 CAs 491/12 etc -38- this Court in numerous cases. The Act has extended undue advantage to a certain class of citizens thereby violating the fundamental rights under Article 4, 9, and 25 of the employees in the Service of Pakistan and being void under Article 8 of the Constitution. 53. The Legislature also lacked the legislative competence to enact The Act of 2010 as it has wrongfully attempted to circumvent the jurisprudence of this Court and Article 240 and Article 242 of the Constitution for which reason we are inclined to hold the Act to be ultra vires of the Constitution. II. THE EFFECT OF DECLARING A LAW ULTRA VIRES: 54. The final point of contention becomes the effect of the judgment declaring the law to be ultra vires of the Constitution. It is settled law that the effect of a declaration of this Court deeming a statute to be ultra-vires of the Constitution has been aptly described in the case of Ali Azhar Khan Baloch v. Province of Sindh23 that: “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… In the present proceedings, this Court has struck down the 23 2015 SCMR 456 CAs 491/12 etc -39- 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 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.” 55. Furthermore, it was stated that in the case of Shahid Pervaiz v. Ejaz Ahmad24: “111. … 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.” 24 2017 SCMR 206 CAs 491/12 etc -40- 56. It was also mentioned in Shahid Pervaiz v. Ejaz Ahmad (supra) that: “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 v. Federation of Pakistan (PLD 2010 SC 265). 57. The only cavil to such a proposition is if a vested right was created, however, that can only be generated through a valid enactment. Furthermore, neither are the benefits accrued under the Act of 2010 neither a past and closed transaction as the rights created were through a non est legislation from its inception. Therefore, given the nature of the Act of 2010, and its blatant unconstitutional mechanism, a vested right could not have been created, let alone the vested right be protected under the doctrine of a past and closed transaction. CAs 491/12 etc -41- 58. It is the duty of this Court to safeguard the rights and interests of the citizens and such application cannot be maintained as the constitutional rights of employees who have invested decades of their lifetime into the service of the country are outrightly violated. They continue to be disadvantageously placed in comparison to their peers who reap the benefits of their own inaction. 59. Therefore, in light of the discussion above, the Act of 2010 is hereby declared to be ultra vires of the Constitution. The effect of such a declaration is that any/all the benefits accrued to the beneficiaries are to be ceased with immediate effect. 60. This Court, in light of Shahid Pervaiz (supra), is empowered/mandated to examine the benefits accruing to each recipient and undo the same if it is not a past and closed transaction. Therefore, the cases of employees who have retired and/or passed away are past and closed transactions as we do not find it appropriate to interfere in their cases as it will be an exercise in futility. 61. Whereas, the beneficiaries of the Act of 2010, who are still in service, will go back to their previous positions, i.e. to the date when the operation of the Act of 2010 has taken effect. However, it would be inequitable to reverse any monetary benefits received by them under the Act of 2010 for the period they have served and those shall remain intact as they were granted against service. However, the lump sum received by such ‘sacked employees’ upon reinstatement shall be reversed. CAs 491/12 etc -42- 62. In the light of above, all the Petitions, Appeals, Review Petitions and Applications are disposed of as per list below: CPLAs converted & Allowed/CRPs allowed/CAs Allowed Dismissed Disposed of CAs 491, 540-546, 580/12, CA 1151/12, CA 452/13, CAs 1026 & 1027/13, CAs 637-651/15, CAs 660/15, CA 101/16, CAs 518, 519/18 CA 1098/18 CAs 1921-1923/19, CP 842/15, CPs.1567/15, CPs 588-K, 589-K/18, CRPs 231-236, 256/16 CAs 1081,1084/11 CAs 536-539/12, CA 43/13, CAs 432/13, CAs 453/13, CA 65-K/13, CA 1106/15, CAs 4-K & 5-K/17, CPs 150, 151/13, CP 677-P/14, Cr.PLA 138-140/14, CPs 3612/15, CP 3366/15, All listed CMAs are disposed of. Judge Judge ANNOUNCED IN OPEN COURT At ISLAMABAD on 17.08.2021. Judge Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.49 OF 2015 (Against the judgment dated 4.9.2014 of the Peshawar High Court, Peshawar passed in RFA No.217/2014) Haji Farman Ullah …Appellant(s) VERSUS Latif-ur-Rehman …Respondent(s) For the appellant(s): Ghulam Mohy-ud-Din Malik, Sr. ASC For the respondent(s): Mr. Khalid Mahmood, ASC Date of hearing: 06.05.2015 … ORDER MIAN SAQIB NISAR, J.- This appeal with leave of the Court dated 20.1.2015 entails the facts, in that, the appellant brought a suit for specific performance against the respondent and procured a decree dated 30.6.2012 (which was ex-parte). The respondent moved an application not under Order 9 Rule 13 CPC, rather the provisions of Section 12(2) CPC claiming that the decree has been procured through fraud and misrepresentation. This application was contested by the appellant and on the basis of the pleadings (application and reply), the learned trial court was pleased to frame the following issues:- “1. Whether the Petitioner has got a cause of action? 2. Whether the impugned decree was obtained through fraud, deceit and misrepresentation? C.A.49 of 2015 -: 2 :- 3. Whether all the necessary parties have been impleaded, its effect? 4. Whether the petitioner is entitled to the relief as prayed for? 5. Relief.” The parties on account of the above issues led evidence. The learned Civil Judge seized of the matter vide order dated 19.5.2014 accepted the application (under Section 12(2) CPC) and set aside the decree under challenge, however, held that the suit cannot be revived. In this context the court adjudged “It is further held that in addition to the acceptance of this application there is no need of reviving of the suit No.118/1 by the titled Farmanullah....Vs....Latifur Rehman instituted on 07.06.2012 decided on 30.06.2012. In this respect reliance is placed on PLD 1995 LHR 76 Citation-D, relevant portion is hereby reproduced as under:- (d) Specific Relief Act (1 of 1877). Setting aside decree on ground of fraud----Specific concurrent findings recorded by Courts below that decree in previous suit against present plaintiff was result of fraud as he was not served and that he received no consideration for the land in question-- --controversy between parties thus, stood effectively resolved by concurrent findings of court below----Revival and re-hearing of previous suits would be futile, therefore, previous suits in which fraudulent decree had been passed against present plaintiff stood dismissed”. This order of the Civil Judge was challenged by the appellant in RFA (note:- as the suit was also dismissed and the decree was drawn as well) which has been dismissed through the impugned judgment. Leave in this case primarily was granted to consider if after the acceptance of the application under Section 12(2) CPC filed by the respondent, the suit of the appellant should have been revived or it was rightly dismissed by the fora below. 2. Learned counsel for the appellant by relying upon the judgment of this Court reported as Falak Khurshid Vs. Fakhar C.A.49 of 2015 -: 3 :- Khurshid and others (2006 SCMR 595) has submitted that the only jurisdiction vested with the trial court, as also the learned High Court was to set aside the ex-parte decree and revive the suit of the appellant enabling the respondent to contest the same on merits and get a decision accordingly (on merits). 3. Learned counsel for the respondent has argued to the contrary and has relied upon the judgments reported as Sheikh Muhammad Sadiq Vs. Illahi Bakhsh and 2 others (2006 SCMR 12), Nirsan Singh Vs. Kishuni Singh (AIR 1931 Patna 204), Chandi Charan Pandit and others Vs. Sarat Chandra Sarma and others (AIR 1955 Assam 231) and Allah Ditta and another Vs. Bashir Ahmed alias Faqiria (PLD 1995 Lah 76) to submit that in certain circumstances where sufficient material/evidence has come on record, the court while deciding an application under Section 12(2) CPC could also dismiss the main suit. 4. Heard. Prior to the Ordinance X of 1980, if a person was aggrieved of any judgment and decree etc. which according to him affected his rights and was the result of fraud and misrepresentation etc., he, in order to challenge the same, had to initiate a separate suit for the annulment thereof. However, by virtue of the above Ordinance, amendment was brought by way of Section 12(2) whereby the following was added to the Code of Civil Procedure (CPC):- “Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis- representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.” Thus after the insertion of this new provision, the validity of a judgment and decree etc. obtained or alleged to have been obtained C.A.49 of 2015 -: 4 :- on the basis of fraud and mis-representation or from a court having no jurisdiction could only be challenged by moving an application to the same court which passed the final decree etc. and not by a separate suit. Obviously if such application is straightaway conceded to by the plaintiff/decree holder, the judgment, decree/order assailed shall be set aside and the suit of the plaintiff shall automatically stand revived; however if the application is resisted/contested by the decree holder, the court may frame the issues (note: if need be, because on all such applications it is not imperative to do so; or to hold the trial, as the application under section 12(2) CPC can be dismissed on the basis of pleadings of the parties simpliciter as the facts of the case may warrant) on the basis of the pleadings before it, which issues ordinarily and particularly in this case are restricted to and are primarily meant for the purposes of adjudication and determination of the application under Section 12(2) CPC. The issues so framed do not even cover the main controversy between the parties, which controversy may ultimately arise between them once the decree is set aside, the suit is revived and the defendant of the case (the appellant under Section 12(2) CPC) files his written statement and joins issue on the merits of the case. It may be pertinent to mention here that the purpose of framing issues in a civil litigation is that the parties must know the crucial and critical factual and legal aspects of the case which they are required in law to prove or disprove through evidence in order to succeed in the matter on facts and also the points of law. 5. If after the contest of the application under Section 12(2) CPC, the court comes to the conclusion that the decree did suffer from vice as is stipulated by the section, it shall accept the same and as a general and ordinary rule and matter of course, the suit of the plaintiff shall stand revived and thereby give a chance to the defendant (the applicant under Section 12(2)) to file his written statement, for C.A.49 of 2015 -: 5 :- the purposes of setting up his defence in the main suit. Thereafter, the case shall be tried and decided on its own merits per the law prescribed for a suit (after the revival thereof). It is in very exceptional, special and extra-ordinary circumstances where e.g. the plaint does not disclose a cause of action or is barred under the law, that while accepting the application (under the provisions of Section 12(2) CPC), the court may also reject the plaint or even dismiss the suit for want of jurisdiction, where the jurisdiction of the court is clearly and undoubtedly barred under the law and there is no valid reason to revive and try the suit which the court otherwise has no jurisdiction to entertain and adjudicate upon. In this context, it may be pertinent to mention that in appropriate cases of want of jurisdiction, the court while accepting the application under Section 12(2) CPC may order for the return of the plaint under Order 7 Rule 10 CPC so that the matter is tried by a court of competent jurisdiction. But where there is a controversy of facts or of law between the parties in the main lis, while accepting the application (under Section 12(2) CPC), the suit cannot and should not be dismissed. It can even not be dismissed in those cases where for the determination and resolution of the said application, either one of the parties or both have brought some evidence on record which has or may have nexus to the merits of the suit as well, if and when it goes to the trial. For example, if in a suit for specific performance, a decree has been procured by the plaintiff, which vide an application (under Section 12(2) CPC) is challenged by defendant or any other person and it is the case of the applicant that he did not execute an agreement to sell, or when the applicant is a third party (not party to the suit) has taken his own defence and asserted right to the suit property which fact(s) is/are rebutted by the decree holder/plaintiff in reply thereto, however, the court does not frame C.A.49 of 2015 -: 6 :- any issue about the valid execution of the agreement to sell or other factual aspect of the matter on the main suit, rather the issues framed are restricted to the pleadings of the proceedings on the said application .e.g. where the decree has been obtained through fraud etc., if the plaintiff in order to disprove the element of fraud etc. and to establish his honesty and bona fide of his claim in the suit, brings some evidence on the record, which is not found by the court to be credible and good enough for the proof of the agreement to sell or his claim for specific performance, only for the reason that the evidence which has been brought on record lacks quality and standard of proof, the suit shall not be dismissed by the court while allowing the application under Section 12(2) CPC. The reason for this is that because the pleadings of the party were not yet complete in the main matter, and the issues in relation to the merits of the case were even not yet framed, the plaintiff could not be said to have the awareness and knowledge to prove his suit or to have been put to notice that his suit shall be dismissed in the eventuality he does not prove his case on merits. The suit thus in such a situation cannot be dismissed as mentioned above rather has to be revived. In support of the above, reliance can be placed on the judgment of this Court reported as Falak Khurshid Vs. Fakhar Khurshid and others (2006 SCMR 595) which enunciates the law to the effect “In fact in case the trial Court found after recoding of evidence that the judgment and decree were obtained by fraud and misrepresentation he would have only allowed the said application and would have reversed/set aside the judgment and decree passed by him earlier and allowed the parties affording opportunity to the parties to adduce evidence if so desired after filing of written statement by the appellant and to dispose of the suit in accordance with provisions of the Code of Civil Procedure”. As regards the judgment cited by the respondent’s counsel reported as Sheikh C.A.49 of 2015 -: 7 :- Muhammad Sadiq Vs. Illahi Bakhsh and 2 others (2006 SCMR 12), the same is distinguishable on its own facts. The main feature of the case is that the trial as also the appellate court had rejected the application under Section 12(2) CPC. However in its constitutional jurisdiction, when invoked by the appellant under Section 12(2), the High Court had concluded on certain legal aspects of the matter, and had allowed the writ petition, set aside the order of dismissal of application under section 12(2), C.P.C. and also rejected the plaint in the suit. It is thus in the context of the above that this Court had come to the conclusion “This is correct that in the normal circumstances if a decree is set aside under section 12(2), C.P.C., the case is remanded to the trial Court for decision of the suit on merits in accordance with law but in the facts and circumstances of the present case and the evidence brought on record by the parties in the proceedings under section 12(2), C.P.C., no useful purpose would be served in remanding the case to the trial Court”. In any case this is a leave refusing order and as is clear from the law laid down in Muhammad Tariq Badr and another Vs. National Bank of Pakistan and others (2013 SCMR 314), such an order by this Court refusing leave or granting the same is not the law enunciated by the court. Even otherwise as is clear from the reproduced paragraph, no law is being enunciated by the court and in the very special circumstances of that particular case the order of the High Court was not interfered with. Otherwise the court in very clear and unequivocal terms has avowed to the correct exposition of law i.e. when it expressed i.e. “This is correct that in the normal circumstances if a decree is set aside under section 12(2), C.P.C., the case is remanded to the trial Court for decision of the suit on merits in accordance with law”. This is an acknowledgment that only in very rare and special circumstances can the suit also be dismissed by the court while it C.A.49 of 2015 -: 8 :- accepts an application under Section 12(2) ibid. This exception was resorted to in the judgment of the Lahore High Court reported as Allah Ditta and another Vs. Bashir Ahmed alias Faqiria (PLD 1995 Lah 76). The validity of this judgment shall be examined in some appropriate case as it is absolutely inapplicable to the facts and circumstances of this case, as especially in that case, though the matter had the genesis in the application under Section 12(2) CPC, but subsequently a suit was filed and it is in the suit that the following issues were framed:- “(1) Whether the ex parte decree in Suit No.73 dated 23-4-1966 was obtained fraudulently and collusively and by giving the wrong address of the plaintiff ? OPP. (2) Whether the sale of suit land took place for consideration and with the knowledge of the plaintiff ? OPD (onus objected to). (3) Whether the transaction in dispute is against Martial Law Regulation? If so, its effect? OPD. (4) Relief.” It is on the basis of such issues that the parties led evidence and the court came to the conclusion that when sufficient evidence has come on the record and the parties were cognizant of the real controversy, it was not necessary to revive the suit. Here the position is altogether different. As regards the judgment reported as Nirsan Singh Vs. Kishuni Singh (AIR 1931 Patna 204), the court did not give a definitive opinion that in all circumstances the suit should be dismissed when a decree having been obtained on the basis of fraud and mis-representation is set aside. The only exception again created thereto is that where the parties were aware of the controversy vis-à- vis the merits of the case and had accordingly produced evidence to C.A.49 of 2015 -: 9 :- that effect, in special situations, the court might dismiss the suit as well but here as is clear from the issues pointed out earlier, the parties were not cognizant of leading evidence vis-à-vis merits of the case, rather the pleadings of the parties were yet incomplete because no written statement had been filed by the respondent as yet, therefore, even if any evidence has been brought on the record by the decree holder/plaintiff to resist the application under Section 12(2) CPC to establish that an agreement to sell was executed in his favour, the defendant would not be precluded from getting the suit revived. It is postulated in the CPC that in normal course for the determination of a civil lis, after the plaint has been filed, the written statement must be called for, issues should be framed on the basis of the pleadings of the parties and the parties must be enabled to lead evidence according to the onus placed upon them and it is only thereafter while hearing the argument in terms of Section 20 Rule 1 that judgment should be pronounced by the courts (note:- however this part of the judgment may not be construed to apply where plaint can be rejected under the law or summary dismissal of suit is permissible under any special law or CPC). All these aspects are conspicuously missing in the present case. Resultantly we allow this appeal and set aside the judgments of the courts below. The suit of the appellant is revived and the matter is remanded to the trial court for decision in accordance with law after requiring the written statement from the respondent. JUDGE JUDGE Islamabad, the JUDGE 6th May, 2015 Approved For Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 5-Q OF 2014 (On appeal against the judgment dated 18.03.2014 passed by the Election Tribunal-II, Quetta in Election Petition No. 261/2013) Mir Saleem Ahmed Khosa … Appellant VERSUS Zafarullah Khan Jamali and others …Respondents For the Appellant: Mr. Kamran Murtaza, Sr. ASC For the Respondents: Mr. Ahmed Raza Qasuri, Sr. ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing: 22.02.2017 JUDGMENT FAISAL ARAB, J.-In the General Elections held on 11.05.2013, the appellant and respondent No. 1 were one of the several contesting candidates from National Assembly seat NA-266, Nasirabad-cum-Jaffarabad. The appellant secured 35703 votes whereas the respondent No. 1 secured highest number of votes i.e. 41706. Leading with a margin of 6003 votes, the respondent No. 1 was declared returned candidate. The appellant was not satisfied with the result and filed Election Petition before the Election Tribunal-II, Quetta under Section 52 of the Representation of the People Act, 1976 alleging that respondent No.1 committed corrupt and illegal practices. The Election Tribunal dismissed the election petition after holding that the allegations made in the election CIVIL APPEAL NO. 5-Q OF 2014 2 petition were of general nature not substantiated by evidence. Being unsatisfied with such decision, the appellant preferred this appeal. 2. It was argued by learned counsel for the appellant that out of 380 polling stations that were setup in the constituency, rigging took place in 104 polling stations. He submitted that on most of these challenged polling stations, the appellant’s polling agents were not allowed to enter by respondent No. 1’s men; an atmosphere of fear was created and bogus votes were cast in favour of respondent No. 1. The learned counsel further submitted that during the pendency of the election petition, the appellant filed two applications before the Election Tribunal, one for verification of the counterfoils of 104 polling stations through biometric system of NADRA and the other for recounting of 24775 rejected votes which on the face of it was an unusual number but both these applications were dismissed by the Tribunal vide separate orders dated 06.01.2014 and 11.03.2014. He contended that had such applications been allowed, the extent of rigging as stated in the election petition would have been ascertained. 3. The main allegation of the appellant was that many of appellant’s polling agents were harassed, some of them were denied entry in their respective polling stations and then bogus voting took place. Out of 104 polling station where rigging was alleged the appellant examined polling agents of 26 polling stations. No evidence was led with regard to the corrupt practices allegedly committed at the remaining 78 polling stations. Those polling agents who were examined had admitted in their cross- CIVIL APPEAL NO. 5-Q OF 2014 3 examination that they did not file any written complaint either with the police or the Election Commission with regard to their expulsion, harassment or casting of bogus votes. The polling agents who stated that they witnessed casting of bogus votes also admitted in their cross-examination that they did not challenge a single vote at the time of polling. One polling agent in his cross- examination even acknowledged that during polling hours, the Returning Officer visited the polling station but he did not lodge written complaint with him about the alleged illegal practices that were being committed at the behest of respondent No. 1. Even after the polling was over, the appellant did not approach the Provincial Election Commission to report the alleged corrupt practices. There were 6 to 7 polling agents of other contesting candidates who obtained substantial number of votes but none were cited as witness to the alleged corrupt practices. No attempt was made to even call anyone as court witness in order to establish that polling took place in absence of appellant’s polling agents or bogus votes were cast. 4. Apart from the failure to bring substantiated evidence of rigging on record, the appellant did not even place before the Election Tribunal a comparative table of 104 disputed polling stations and the remaining 276 undisputed polling stations in order to point out any phenomenal difference between the two sets of polling stations with regard to the voting pattern or voter turnout, which might have prevailed with the Tribunal to order either recount of votes or seek verification of counterfoils from NADRA. Merely on unsubstantiated allegations of rigging, the CIVIL APPEAL NO. 5-Q OF 2014 4 Court cannot reach the conclusion that respondent No. 1 indulged in illegal and corrupt practices. 5. We on our part examined the election data of NA-266 available on website of Election Commission. It had 409664 registered voters out of which 161,162 votes were polled. Thus the turnout was only 39.34%. The respondent procured 41706 votes, which comes to 25.88% of the total votes polled. From these figures, what generally comes out is that neither unusual turnout of voters is reflected nor excessive polling in favour of the respondent No. 1 is apparent as was noticed by this Court in the case of Khalid Hussain Magsi Vs. Mir Abdul Rahim Rind (2016 SCMR 900), which led this Court to nullify the entire election result. No doubt the number of rejected votes in the present case were unusually high i.e. 24775. However, it has been pointed out by respondent No. 1’s counsel that one Mr. Fateh Ali Khan Umrani was a contesting candidate from the same constituency and his name was already printed on the ballot papers but due to a decision of the Balochistan High Court he stood disqualified from contesting election and, therefore, votes cast in his favour had to be added to the list of rejected votes. This fact of belated disqualification of Mr. Umrani is acknowledged by the appellant himself in his cross examination. Hence the votes that were cast in favour of Mr. Umrani must have been added to the tally of rejected votes and thus the number of rejected votes swelled to 24775 votes. CIVIL APPEAL NO. 5-Q OF 2014 5 6. Learned counsel also referred to a document to demonstrate that seals of several bags containing election material were found to be broken in order to support his plea of rigging. In our view, any careless or deliberate act on the part of any functionary of the Election Commission whereby the election record could not be adequately preserved and seals were broken would not result in nullifying the election result. There has to be some reliable material on record to reach the conclusion that the winning candidate indulged in illegal and corrupt practices otherwise every losing candidate after managing to get the seals of the bags containing election material broken would seek re-polling or re-election. 7. It was also argued by learned counsel for the appellant that the respondent was a defaulter of a bank, which fact was concealed by him in his nomination form, therefore, he stood disqualified from contesting the elections on this score alone. Suffice it to state that no doubt this plea was raised in the election petition but after the issue was decided by the Election Tribunal against him, no ground to challenge such finding was taken in the present appeal. Same is the position with regard to the other plea that appellant was an accused in the criminal case which fact was not disclosed by respondent No.1 in the nomination form. No ground on this issue either was taken in the memo of appeal. Mere reproduction of the issues framed by the Election Tribunal in the memo of appeal was not sufficient. As the findings given by the Election Tribunal on both these issues were not specifically made grounds of attack in the memo of appeal and only raised at the CIVIL APPEAL NO. 5-Q OF 2014 6 argument stage before us, the same cannot be considered by this Court. 8. In order to prove a plea of rigging there has to be material on record to establish corrupt practices committed on behalf of the returned candidate. Section 55 of the Representation of the People Act, 1976, therefore, requires that precise statement of facts should be stated in the election petition with all material particulars with regard to the corrupt and illegal practices. In the present case however, only general allegations as to rigging were made. The evidence that was led was so deficient that it was not enough to establish prevalence of corrupt or illegal practices. We, therefore, do not find any legal error in the impugned judgment, which could warrant interference by this Court. This appeal is, therefore, dismissed with no order as to costs. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 22ndof February, 2017 Approved For Reporting Khurram

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Dost Muhammad Khan Mr. Justice Umar Ata Bandial Civil Appeal No.503 of 2006 (On appeal from judgment of Peshawar High Court, Peshawar dated 20.2.2006 passed in R.F.A. No.177/2003) Dr. Pir Muhammad Khan Appellant Versus Khuda Bukhsh etc. Respondents For the appellant: Qazi Muhammad Anwar, Sr. ASC Mr. Sher Muhammad Khan, ASC Mr. M. S. Khattak, AOR For respondents No.1-5: Mr. Wasim Sajjad, Sr. ASC Syed Rifaqat Hussain Shah, AOR Respondents No.6-7: Ex-parte Date of hearing: 24.3.2015 Judgment Anwar Zaheer Jamali, J – The relevant facts of the case leading to this litigation are summarized as under:- 2. On 13.3.1991, the respondents No.1 to 5 (in short ‘the respondents’) filed a suit for possession through pre-emption against the appellant, in respect of land admeasuring 12 kanals 6 marlas, situated in village Balogram, Tehsil Babozai, District Swat (in short ‘the suit land’), before the Court of Assistant Commissioner Swat, empowered under the PATA Regulations 1975, to entertain C.A. No.503 of 2006 2 such proceedings. The plaint in this suit was rejected by the Court on 8.6.1991, on the ground that the sale of suit land had not been completed as yet, therefore, such proceedings were premature and incompetent. The appeal and the revision petition filed by the respondents against such order were also dismissed/rejected, vide orders dated 5.1.1992 and 22.7.1992 passed by the Additional Commissioner Malakand and Home Secretary, NWFP, respectively. 3. After the execution and registration of sale deed in respect of suit land in favour of appellant on 26.1.1992, the respondents filed another civil suit for the same relief on 25.2.1992, with the averments that in order to defeat their right of pre-emption an exorbitant sum of Rs.15,00,000/- was shown as sale consideration of the suit land instead of its actual market value of Rs.1,92,000/-. In this suit, on an application dated 1.10.1992, filed by the appellant/vendee, vide order dated 9.6.1993, the respondents were directed to deposit 1/3rd of the sale price and furnish bank guarantee for the remaining 2/3rd, which order they challenged before the Additional Commissioner Malakand for reduction of the sum to be deposited as 1/3rd of the sale price. The appellate Court reduced the sum from 1/3rd to 1/5th vide order dated 18.12.1993, which order was upheld in revision petition before the Home Secretary C.A. No.503 of 2006 3 (NWFP), vide order dated 19.1.1994, with directions to the respondents to deposit the amount within two months. Instead of making compliance of such order, on 19.3.1994, the respondents filed an application for extension of time to deposit the pre-emption money, whereas in the meantime, by operation of law, on 14.5.1994, the suit was transferred from the Court of Assistant Commissioner to the Court of Senior Civil Judge/Aala Ilaqa Qazi, Swat, where, in terms of the Court order dated 17.5.1994, they were allowed to deposit 1/5th of the sale consideration at their own risk, which they accordingly deposited on 18.5.1994. 4. During the further proceedings in the suit, issues were framed by the Court on 25.5.1994. However, on 9.6.1994, the vendee/appellant filed another application for dismissal of the suit on the ground that respondents failed to deposit 1/5th of the pre-emption money within two months, as directed by the appellate Court in its order dated 19.1.1994. The Court of Senior Civil Judge, Swat, vide its order dated 7.7.1994, allowed the said application and accordingly dismissed the suit on this ground. This order was challenged by the respondents before the Court of District Judge by putting notional valuation of the appeal at Rs.200/-, though plaint in the suit was admittedly valued at Rs.1,92,000/- and at the relevant time the District Judge, C.A. No.503 of 2006 4 Swat, by virtue of section 18 of the Civil Courts Ordinance 1962, lacked pecuniary jurisdiction to hear any appeal valuing more than Rs.50,000/-. This appeal, upon such objection raised by the appellant was, therefore, dismissed as withdrawn on 22.9.1994. Later on, these two orders were upheld by the Peshawar High Court, vide order dated 11.3.1997, passed in R.F.A. No.60 of 1994, against which C.P.L.A. No.932 of 1997 was filed by the respondents before the Supreme Court of Pakistan, which was converted into appeal and accepted vide order dated 27.11.2002, and the case was remanded to the Court of Senior Civil Judge/Aala Ilaqa Qazi, Swat, to decide it afresh on merits, in terms of the following observations:- “i) Both the parties be permitted to lead evidence in support of their respective contentions and thereafter, the matter be decided on all the points including legal pleas, which may be raised on the basis of pleading of the parties. ii) The matter shall be decided, as early as possible, preferably within six months from receipt of this order.”. 5. In the post remand proceedings, parties evidence was recorded, other procedural formalities were completed and finally the suit of the respondents was dismissed by the Court of Senior Civil Judge/Aala Ilaqa Qazi, Swat, vide its judgment and decree dated 5.11.2003. C.A. No.503 of 2006 5 On 17.12.2003, this judgment was challenged by the respondents before the Peshawar High Court, Peshawar in R.F.A. No.177 of 2003, which was allowed vide impugned judgment dated 20.2.2006 and consequently, their suit was decreed. It is against this judgment that the present appeal has been preferred by the appellant/vendee. 6. We have heard the arguments of Qazi Muhammad Anwar and Mr. Wasim Sajjad, learned Sr. ASCs for the appellant and respondents respectively. In his submissions, learned Sr. ASC for the appellant made two fold submissions. In the first place, he challenged the maintainability of the appeal instituted before the Peshawar High Court, Peshawar on 17.12.2003, for the reason that looking to the valuation of the suit in the plaint, which was Rs.1,92,000/-, it should have been preferred before the concerned Court of District Judge, having enhanced pecuniary jurisdiction from Rs.50,000/- to Rs.5,00,000/- by virtue of amendment in the Civil Courts Ordinance by Act No.IV of 1994, dated 19.8.1994, extended to PATA w.e.f. 6.8.1995. Thus, the proceedings in appeal before the Peshawar High Court were incompetent and not maintainable in law. As to the merits of the case, his submission was that during the intervening period, before the application of NWFP Pre-emption Act 1987 to PATA C.A. No.503 of 2006 6 w.e.f. 25.9.1994, the claim of respondents was regulated under the general provisions of Muhammadan Law, which provided strict conditions for compliance regarding making demands of ‘talb-i-muwathibat’ and ‘talb-i-ishhad’ in conformity with it, which, in the present case were not fulfilled by the respondents, but this important legal aspect of the case was not at all attended to by the High Court in its impugned judgment, while extending relief to them. For this purpose, he also referred to the pleadings of the respondents as per averments made in the plaint, and contended that such averments lacked material facts and particulars, which were necessary and required to be disclosed by the respondents for effectively exercising their right of pre-emption. Even the names of two attesting witnesses of talb-i-ishhad were not disclosed in the plaint or the purported notice dated 18.2.1992, which in the given circumstances of the case, were extremely necessary besides disclosure of other material facts such as time, date, month, year and place where talb-i-muwathibat and talb-i-ishhad were made by the respondents. For this purpose, he also invited our attention to the two lists of witnesses; one submitted by the respondents on 9.6.1994 after the framing of issues on 25.5.1994 and the other on 6.3.2003 submitted during post remand proceedings in the suit, which contained the names of two different sets of witnesses. His C.A. No.503 of 2006 7 further submission was that this material flaw in the case of respondents that the two witnesses of talb-i-ishhhad now examined by them were not cited in the earlier list of witnesses submitted by them in the year 1994, was sufficient to falsify their claim of pre-emption. He also argued that delay in making talb-i-muwathibat and talb-i- ishhad in contravention to the requirements of the principles of Muhammadan Law was yet an additional factor, which was apparent upon perusal of evidence of the respondents and their witnesses. Thus, overlooking all these important legal aspects of the case, the High Court was not justified in passing its impugned judgment in favour of the respondents in a superficial manner. He further made reference to the judgment of the trial Court of learned Senior Civil Judge/Aala Ilaqa Qazi, Swat dated 5.11.2003, wherein, according to him, some material aspects of the case were duly considered by the Court, which resulted in the dismissal of the suit of the respondents. In support of his contentions, learned Sr. ASC, Qazi Muhammad Anwar, placed reliance upon the following cases:- i) Government of NWFP versus Said Kamal Shah(PLD 1986 S.C. 360); ii) Sardar Ali versus Muhammad Ali(PLD 1988 S.C. 287); iii) Safida Begum versus Ibrahim (PLD 1989 S.C. 314); iv) Muhammad Hanif versus Sultan (1994 SCMR 279); C.A. No.503 of 2006 8 v) Abdul Hameed versus Muzamil Haq(2005 SCMR 895); vi) Pir Muhammad versus Faqir Muhammad (PLD 2007 S.C. 302); vii) Muhammad Ismail versus Muhammad Yousaf (2012 SCMR 911) and viii) Muhammad Ali versus Humera Fatima (2013 SCMR 178). 7. Conversely, Mr. Wasim Sajjad, learned Sr. ASC for the respondents, in his arguments contended that it was not at all the requirement of law that each and every minute detail about the mode and manner of exercise of right of pre-emption by the respondents in support of their claim was to be unfolded in the plaint or the names of their witnesses of talb-i-ishhad were to be disclosed in the plaint. Thus, such arguments have no legal force. He further argued that indeed the proceedings in the case in hand, having been instituted on 26.2.1992, during the intervening period when no statutory law of pre-emption was in force in PATA, are to be regulated under the principles of Muhammadan Law of pre-emption, as held by the Supreme Court in the cases of Sardar Ali and others versus Additional Secretary Home and TA Department & others (1996 SCMR 1480) and Muhammad Siddique versus Muhammad Ashraf (2005 SCMR 1231). However, for this purpose, the respondents, in order to prove their case, have met all the legal requirements of making talb-i-muwathebat and talb-i- C.A. No.503 of 2006 9 ishhad, as per Muhammadan Law, which fact has been duly appreciated by the High Court in its impugned judgment. Thus, such findings of fact recorded by the appellate Court are not open to interference in this appeal. Responding to the arguments on behalf of the appellant about two lists of the witnesses filed by the respondents, he did not dispute that names of both the witnesses of talb-i-ishhad i.e. Sher Bacha son of Amir Bacha and Abdul Khaliq son of Yaray did not find place in the first list of witnesses filed by the respondents in the year 1994. However, regarding this aspect, he argued that it is not an issue of such a serious magnitude which could prove fatal to their case, as it can be considered as an instance of oversight or mistake at the time of submission of earlier list of witnesses on behalf of the respondents. Stressing upon the genuineness of the claim of respondents, learned Sr. ASC also made detailed reference to the proceedings in their earlier suit for pre-emption filed by them before the registration of sale deed on 26.1.1992, which reflected the clear stance of the respondents in setting up their adverse claim of pre-emption over the suit land, and tempted the appellant for showing exorbitant sale consideration of Rs.15,00,000/- in the registered sale deed to defeat their claim. Replying to other arguments of the learned Sr. ASC for the appellant, as regard the forum of appeal availed by the respondents against the judgment of C.A. No.503 of 2006 10 the Senior Civil Judge dated 5.11.2003, he contended that as per the provisions of Suit Valuation Act and the provisions of Civil Court Ordinance 1962 read with Amendment Act IV of 1994, at the time of filing the appeal on 17.12.2003, the remedy was rightly availed by the respondents before the Peshawar High Court, thus no exception could be taken regarding this legal position. For this purpose, he also made reference to the contents of the plaint in the suit and the memo of appeal filed before the High Court, showing flexibility in the stance of the respondents regarding valuation of the suit and leaving it open for adjudication by the Court itself. Summing up his arguments, learned Sr. ASC contended that right of pre-emption under the Muhammadan law is a substantive right, which shall not be allowed to succumb at the alter of technicalities of law, particularly, in an Islamic State, as in the present case from no stretch of imagination it could be said that the respondents ever defaulted in fulfilling their legal obligations in this regard. In support of his submissions, learned Sr. ASC placed reliance upon the following cases:- i) Sher Muhammad versus Ahmad (AIR 1924 Lahore 380); ii) Ghulam Hussain Shah versus Hidayatullah Khan (1981S.C.(AJK&K) 55); iii) Ditta Khan versus Muhammad Zaman (1993 MLD 2105); C.A. No.503 of 2006 11 iv) Fazal-ur-Rehman versus Zavedi Jan (2005 CLC 1415); v) Daud Shah versus Waris Shah (2014 SCMR 852) and vi) Muhammad Hanif versus Tariq Mehmood (2014 SCMR 941). 8. We have carefully considered the submissions made before us by the learned ASCs and scanned the case record of the proceedings in the suit before the Court of Senior Civil Judge/Aala Ilaqa Qazi, Swat, as well as the appellate Court. For the just disposal of this appeal on merits, there is no dispute between the parties that the suit for possession through pre-emption having been instituted by the respondents on 25.2.1992, when there was no statutory law of pre-emption inforce in KPK and PATA, its proceedings are to be regulated under the general principles of Muhammadan Law of pre-emption. Moreover, at this stage, only the post remand proceedings in terms of the order dated 27.11.2002, passed in Civil Appeal No.744 of 1998, as reproduced above, are relevant and material for this purpose. 9. The instant suit for possession through pre- emption was instituted by the respondents before the Court of Assistant Commissioner, Saidu Sharif on 25.2.1992, with the assertions that after their failure in getting the requisite relief of pre-emption in the first round of litigation for the C.A. No.503 of 2006 12 technical reason that sale deed in respect of suit land in favour of appellant Dr. Pir Muhammad Khan was not registered by that time, when they got such information from the office of Sub-Registrar on 15.2.1992, they immediately made talb-i-muwathibat and talb-i-ishhad and thus became entitled for a decree for pre-emption in their favour. In reply to these assertions, written statement was filed by the appellant on 26.07.1992, wherein, besides, denial of facts regarding exercise of right of pre-emption by the respondents by making talb-i-muwathibat and talb-i- ishhad in accordance with the principles of Muhammadan Law, maintainability of the suit was also challenged on various legal grounds. 10. At the stage of evidence, the respondents/ pre-emptors had in total examined seven witnesses out of whom PW-1 Hidayatullah Khan was one of the pre-emptor. He firstly deposed that it was the time of Zuhr prayer in the year 1991 and month of March, when Aziz-ur-Rehman alias Lali Gul reached at their (pre-emptors) hujra and informed them about the sale of the suit land. Soon thereafter, he for self and on behalf of his brother Karim and other brother Adalat Khan exercised their right of pre-emption by making talb-i-muwathibat and talb-i-ishhad. However, after their failure in the first round of litigation, when they again acquired the knowledge of sale on 15.2.1992 from the office C.A. No.503 of 2006 13 of Sub-registrar, that sale of suit land had taken place through registered sale deed on 26.1.1992, they made talb-i- muwathibat and then talb-i-ishhad in presence of PWs Sher Bacha and Abdul Khaliq. He further stated that it happened at 10:00 a.m. on the same day, which was Saturday. Later on they also went to the suit land and again made talb-i- ishhad, in presence of witness Mian Gul Bashir Bacha, who had also reached there. In addition to it, the other witnesses examined on behalf of respondents are PW-2 Aziz-ur- Rehman alias Lali Gul, PW-3 Mian Gul Bashir, PW-4 Abdul Khaliq, PW-5 Sher Bacha, PW-6 Moosa Muhammad (Postmaster), and PW-7 Sher Akbar (Patwari). From the deposition of these witnesses, we have noticed that the respondents have examined PW-4 Abdul Khaliq and PW-5 Sher Bacha as witnesses, in whose presence PW-1 acquired knowledge about the execution of registered sale deed dated 16.1.1992, in respect of the suit land in favour of the appellant and he for self and on behalf of other respondents exercised their right of pre-emption by making talb-i- muwathibat and talb-i-ishhad. Surprisingly, name of none of these two witnesses of talb-i-ishhad had appeared in the first list of witnesses dated 09.6.1994, while the name of only one witness Sher Bacha had appeared in the second list of witnesses dated 19.3.2003, which contained names of other witnesses Shah Rawan son of Totkey, Gul Zamin Khan son C.A. No.503 of 2006 14 of Gojer, Shah Sefyan son of Muhammad Akber, Sarbuland Khan son of Sober, Safor son of Katuza and Razi Mund son of Wazir. Thus, even in the second list of witnesses the name of other witness of talb-i-ishhad PW-4 Abdul Khaliq was missing, which surfaced only when he appeared in the witness box to depose. This fact alone is sufficient to show that introduction of their name as witnesses of two talbs was an afterthought and for this reason alone names of these two witnesses of talb-i-muwathibat and talb-i-ishhad were also withheld by the respondents in their pleadings. This admitted fact from the case record, thus, seems to be fatal to the claim of the respondents as regards their right of pre- emption under the general principles of Muhammadan Law, which cannot be overlooked or condoned for the reason that it may be due to oversight or some mistake that names of these witnesses, except PW-5 Sher Bacha, remained uncited in the two lists of witnesses. Not only this, but from the careful reading of evidence, adduced on behalf of the respondents, we have also seen that there are also material contradictions as regards their claim of acquiring knowledge of sale on 15.2.1992 qua making talb-i-muwathibat and talb- i-ishhad, which shortcomings cannot be lightly brushed aside, particularly in a case of pre-emption where strict adherence to the requirements of law for making talb-i- muwathibat and talb-i-ishhad is necessary. C.A. No.503 of 2006 15 11. Apart from it, when we look at the pleadings of the respondents in their suit, we find that undoubtedly it lacked material particulars, which were required to be disclosed/unfolded in the plaint to give a fair chance to the appellant to put up his defence. For ease of reference paragraph No.3, which is the only paragraph of the plaint relating to making of talbs by the respondents is reproduced as under:- 12. Indeed, the provisions of Order VI, CPC are to be kept in mind for the purpose of drafting a plaint, Rule-2, whereof provides that pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures. But, this rule, providing some guidelines regarding the contents of a plaint, cannot be read in isolation to, inter alia, Rule-4, which provides that in all cases in which the party pleading relies C.A. No.503 of 2006 16 on any misrepresentation, fraud, breach of trust, default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items necessary) shall be stated in the pleading. 13. By now, much case law regulating the principles of pleadings in a suit for pre-emption has developed, which provide necessary guidelines for this purpose. Here a reference to the case of Muhammad Ali v. Mst. Humera Fatima and two others (2013 SCMR 178) will be useful, wherein after making reference to plethora of other case law on the subject of pleadings in a suit for pre- emption, this Court observed as under:- “7. With regards to the necessity of pleading the requisite details of Talb-i-Muwathibat, the matter recently yet again came up before this Court. After noting and quoting the previous judgments of this Court on the point including, Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), Bashiran Begum v. Nazar Hussain (PLD 2008 SC 559), Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) and Ghafoor Khan v. Israr Ahmed (2011 SCMR 1545), this Court in its judgment, reported as Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911), held as follows:-- "4. Having heard learned counsel for the petitioner at some length, we find that a bare reading of para 2 of the plaint in the suit filed by the petitioners/pre-emptor indicates that petitioner did C.A. No.503 of 2006 17 mention that he came to know about the impugned sale on 5-3-1996 and immediately declared that he would preempt but neither mentioned the place where he acquired knowledge of the sale nor the time or the witnesses in whose presence he performed Talb-i-Muwathibat." 8. We have examined the plaint in the instant case in the light of the requirement of pleading Talb-i-Muwathibat with the necessary details and particulars and find that the same does not fulfill the criterion laid down by this Court quoted above. The absence of the necessary details with regard to time, date and place and the witnesses in whose presence Talb-i-Muwathibat was made was fatal to the suit, as was correctly held by the trial Court and the First Appellate Court. 9. Furthermore, not only Talb-i-Muwathibat has to be pleaded in the plaint with the requisite details and particulars, but also has to be proved through cogent evidence. After appraisal of the evidence of the record, the trial Court returned a finding that the Talb-i-Muwathibat has not been proved. The said finding was affirmed by the First Appellate Court. This concurrent finding of fact has been upset in the limited jurisdiction of a Second Appeal without any legal or factual basis. In the impugned judgment no misreading or non-reading of evidence or misapplication of law, pertaining to evidence has been mentioned. Consequently, there was no occasion to set aside the concurrent findings of fact.” 14. Besides, following further discussion in the above judgment is equally apt for amplifying the legal position about the application of principles of Muhammadan Law regarding exercise of right of pre-emption and making talb-i-muwathibat and talb-i-ishhad at the relevant time C.A. No.503 of 2006 18 when no statutory law pertaining to pre-emption existed in Swat (PATA):- “5. On the date of the filing of the suit in the instant case i.e. 17-12-1989, no statutory law pertaining to pre-emption existed in the Province of the Punjab and the suit was to be filed and maintained in accordance with the Classical Islamic Law of Pre-emption wherein Talb-i- Muwathibat is a sine qua non for exercising a right of pre-- emption. During the pendency of the suit before the trial Court, the Act of 1991, was promulgated. Section 35, refers to Talb-i-Ishhad, while dispensing with notice thereof. The various provisions of the Act of 1991 (including, section 35 thereof), were challenged on the ground of being repugnant to the Injunctions of the Islam. The matter was adjudicated upon by the Shariat Appellate Bench of this Court in its judgment, reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1). In the said judgment, with reference to section 35, it was held as follows:-- "57. It is, therefore, held that section 35(2) of the Act 1991 is repugnant to the Injunctions of Islam in so far as it exempts the cases pending or instituted during the period from Ist of August, 1986 to 28th of March, 1990 from the requirements of Talb-i-Muwathibat, and extends the right of limitation for them up to one year. However, the provision of sending a notice to the vendee, as contemplated in section 13 of the Act 1991, can be dispensed with in relation to these suits, because as mentioned earlier, sending of notice is not a substantive requirement in the Shari'ah to affect the Talb-i-Ishhad. On the contrary, it is procedural provision enacted by the legislature on the basis of expediency. Therefore, it is open for the legislature to dispense with this requirement altogether or with respect to certain cases." C.A. No.503 of 2006 19 6. The aforesaid judgment took effect on 31-12-1993, while the suit in the instant case was still pending before the trial Court. Thus, in the instant matter however, which way the lis is examined, there can be no escape from the fact that the Talb-i-Muwathibat was required to be pleaded and proved in order to obtain a decree of pre-emption, both in terms of Classical Islamic Law and the Act of 1991.” 15. To gain further support to the principles of pleadings to be adhered to by a pre-emptor in his pleadings, reference to the case of Mian Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), will also be useful, which had approved earlier view in the case of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan v. Mst. Sahib Jamala (PLD 2005 SC 977), that furnishing the date, time and place in the plaint is necessary to establish performance of talb-i-muwathibat and talb-i- ishhad. 16. In our opinion, principles of Muhammadan Law of pre-emption, which is the original source of statutory law on this subject, set out equally high standard for making talb-i-muwathibat and talb-i-ishhad, as prescribed under the statutory law, except that written notice of talb-i- ishhad is not required for this purpose. Therefore, mere bald assertion by the respondents in their pleadings coupled with sketchy evidence adduced by them is of no help to their C.A. No.503 of 2006 20 case. As a matter of fact, unless the names of the two witnesses of talb-i-ishhad and informer of pre-empted sale were disclosed by the pre-emptors in their pleadings, how the vendee of the pre-empted sale could be in a position to assess the veracity of their claim or credibility of such witnesses, if they were for the first time introduced to him in the witness box. In the present case, apart from non- disclosure of the time, date and place of making talb-i- muwathibat and talb-ishhad, the names of the two witnesses of talb-i-ishhad were also not disclosed by the respondents in their pleadings. Even the witnesses cited in the first list of witnesses filed in Court on 09.6.1994, did not contain their names, as the witnesses of talbs-i-ishhad, which, according to the respondents own case, were for the first time mentioned in the second list of witnesses during the post remand proceedings, that too to the extent of only one witness. It is pertinent to mention here that even in the purported notice of talb-i-ishhad dated 18.2.1992, which was otherwise not required under the Muhammadan Law of pre-emption, but got issued by the respondents through their lawyer, they did not bother to disclose either the time, date or place of making the two talbs or the names of two witnesses of talb-i-ishhad. All these facts are sufficient to conclude that non-disclosure of these material particulars at different stages of the proceedings was not mere mistake or C.A. No.503 of 2006 21 oversight but a deliberate act of the respondents with some ulterior motive, which was fatal to their claim of pre- emption. Some of these aspects seem to have been discussed by the Court of Senior Civil Judge in its judgment dated 05.11.2003, but the appellate Court in its impugned judgment did not care to consider the reasons assigned by the trial Court for dismissal of the suit, what to talk of discarding them for any cogent reason. 17. Another aspect of the case, which has negative impact over the claim of the respondents in exercising their right of pre-emption over the suit land in a lawful manner is the fact that as per averments made in the plaint and the deposition of PW-1 Hidayatullah, only he made the requisite talbs alongwith his brother Adalat Khan, who also exercised such right on behalf of his other three brothers, Khuda Bakshsh, Sardar Ali Khan and Karim Bakhsh, all sons of Mustajab Khan on the basis of power of attorney dated 02.6.1987 in his favour. Admittedly, the said document, typed on a twenty-five Rupees stamp paper, is special power of attorney, which is to be construed strictly as per its contents. The contents of this power of attorney reveal that it was executed by Khuda Bakhsh, Karim Bakshsh, Sardar Ali and Hidayatullah Khan in favour of Adalat Khan, but it contained no specific delegation of power in his favour for C.A. No.503 of 2006 22 exercising the right of pre-emption over the suit land on behalf of its executants. Thus, for all intent and purposes, no right of pre-emption was legally exercised on behalf of respondents Khuda Bux, Karim Bux and Sardar Ali. Moreover, the said attorney, Adalat Khan, also did not bother to appear in the witness box to offer himself to the test of cross examination as regards his purported authority to exercise right of pre-emption on their behalf. Withholding of such evidence by the respondents has not been explained anywhere, which gives an adverse presumption as regards the merits of their claim of making talb-i-muwathibat and talb-i-ishhad, strictly as mandated under the provisions of Muhammadan Law. 18. Another legal aspect of the case, which needs due consideration is the definition of talb-i-muwathibat and talb-i-ishhad under the general principles of Muhammadan Law qua the statutory law applicable in the province KPK and PATA, which are parimateria. Mere comparative reading of these two provisions of law on the same subject reveals that for making valid demands of talb-i-muwathibat and talb- i-ishhad the language and legal requirements are substantially one and the same, except that under the statutory law condition of written notice of talb-i-ishhad, has been added, which of course is not the requirement under C.A. No.503 of 2006 23 the Muhammadan Law of pre-emption. Moreover, use of word ‘immediate’ in the context of making talb-i-muwathibat and words ‘the least practicable delay’ in making talb-i- ishhad have their own connotation and significance, which has burdened the pre-emptor with some extra liability of showing complete promptness in making such demands rather than making talb-i-muwathibat in a casual manner and talb-i-ishhad in presence of two witnesses simplicitor. Keeping in view these aspects, when we revert to the facts of the present case, we find that the two talbs were not made by the respondents in the required manner of vigilance and promptness. 19. The legal objections as regards the maintainability of the appeal filed by the respondents before the Peshawar High Court despite the fact that at the relevant time admittedly pecuniary jurisdiction of the District Court, Swat was upto Rs.5,00,000/-, has also much force, as, for the purpose of ascertaining the pecuniary jurisdiction, it will be the valuation shown in the plaint which will be material for this purpose. The perusal of copy of plaint, available in the Court file, reveals that the suit for possession through pre-emption instituted by the respondents was specifically valued by them at Rs.1,92,000/-, therefore, the remedy of appeal available to C.A. No.503 of 2006 24 them on 17.12.2003 was before the concerned District Court at Swat and not before the Peshawar High Court. This important legal aspect of the case, however, did not receive much attention of the Peshawar High Court in its impugned judgment and was discarded for flimsy reasons having no legal force. 20. We have carefully examined the cases cited at the bar by both the learned ASCs. There is no cavil to the principles propounded therein, but looking to the facts and circumstances of the case in hand, as discussed above, the judgment cited on behalf of the respondents are distinguishable, having no relevancy or applicability to the facts of the present case. 21. The upshot of above discussion is that the impugned judgment of the High Court is liable to be set aside and the suit for pre-emption filed by the respondents is also liable to be dismissed. 22. Foregoing are the reasons for our short order dated 24.3.2015. Islamabad the 24th March, 2015 Approved for reporting. Riaz Judge Judge Judge C.A. No.503 of 2006 25

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE QAZI MUHAMMAD AMIN AHMED CIVIL APPEAL NO.507 OF 2020. (Against the judgment dated 30.08.2019 passed by the Balochistan Service Tribunal, Quetta in Service Appeal No.611 of 2018). Chief Secretary, Government of Balochistan, Quetta and others. …Appellant(s) Versus Asmatullah Kakar. …Respondent(s) For the Appellant(s): Mr. Arbab Muhammad Tahir, A. G. Balochistan. (via video link from Quetta) Mr. Ayaz Khan Swati, Addl. A. G. Balochistan (from Islamabad) For the Respondent(s): Mr. M. Akram Shah, ASC. (via video link from Quetta) (appeared without filing of enter appearance) Date of Hearing: 18.08.2020. JUDGMENT IJAZ UL AHSAN, J.- The Appellants challenged the judgment of the Balochistan Service Tribunal, Quetta dated 30.08.2019. Through the impugned judgment, a notification dated 18.10.2018 and letter dated 12.12.2018 issued by the Secretary S&GAD, Government of Balochistan to the extent of retirement of the Respondent was set aside with the result that date of birth of the Respondent was accepted as 25.12.1961 instead of 08.01.1959. The later date was recorded in the relevant service records of Respondent. CIVIL APPEALS NO.507 & 604 OF 2020. 2 2. Briefly stated the facts of the case are that the Respondent claimed that he was born on 25.12.1961 in Kuchlak District, Quetta. However, at the time of joining service, his date of birth was mentioned as 08.01.1959. He claimed that his date of birth was not correctly mentioned in his service record. Therefore, in order to insert his correct date of birth in his service and other relevant records he filed an application with department. On the refusal of the department to do so, he filed a suit of declaration and permanent injunction before the Civil Court. In the said suit, he impleaded Chairman, Board of Intermediate and Secondary Education, Balochistan and the Headmaster of Government High School, Kuchlak. The suit was decreed because neither party seriously contested it and the evidence produced by the Respondent remained un-rebutted. Through the said judgment and decree it was declared that the correct date of birth of Respondent No.1 was 25.12.1961. The Court directed the Chairman Board of Intermediate and Secondary Education, Balochistan and the Headmaster, Government High School, Kuchlak to correct the record by entering the date of birth of the Respondent as 25.12.1961 instead of 08.01.1959. It appears that on the basis of the said decree, the Respondent got his secondary school certificate changed to reflect his corrected date of birth. He also got the school record amended on the basis of the judgment and decree dated 07.09.1989. Interestingly enough, he appears to have moved an application with the Secretary, Services and CIVIL APPEALS NO.507 & 604 OF 2020. 3 General Administration Department, Government of Balochistan seeking correction of his date of birth. Vide order dated 07.04.1991, the application was rejected by the competent authority on the ground that the relevant rules did not allow alteration in the date of birth once recorded on the basis of matriculation certificate. The Respondent did not agitate the matter any further till notification dated 18.10.2018 was issued by the Secretary, Services and General Administration Department, Quetta on the basis of which the Respondent was retired having attained the age of superannuation with effect from 07.01.2019. The date of superannuation was calculated on the basis of date of birth being 08.01.1959 as was originally recorded in his service record. 3. The Respondent made a fresh representation before the Secretary, Services and General Administration Department for correction of his date of birth and hence extension of his services for a period more than two years. This request was again declined. The Respondent No.1 therefore approached the Balochistan Service Tribunal with a service appeal. This appeal was allowed by the Tribunal through the impugned judgment. 4. Leave to appeal was granted by this Court on 08.05.2020 in the following terms: “The learned Advocate General, Balochistan contends that the Respondent was employed in 1984. In the CIVIL APPEALS NO.507 & 604 OF 2020. 4 year 1991, he had applied for change of his date of birth, which was rejected vide order dated 07.04.1991 that was accepted by the Respondent, as he did not challenge the same further rather in the year 2018 when he was at the verge of retirement he filed a service appeal before the Balochistan Service Tribunal. This appeal was hopelessly time barred and was not maintainable. He submits that once the date of birth is recorded in service record at the time of joining Government service, the same could not be changed as per settled law more particularly, in terms of Section 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009. 2. The learned Law Officer has further contended that the Respondent had filed a suit in the year 1989 for correction of his date of birth in which he managed to obtain an ex-parte decree dated 07.08.1989. He contends that as the petitioners-Respondent department were not party in the said suit, therefore, the judgment passed therein has no binding effect on the petitioners. He adds that even otherwise the said judgment obtained by the petitioner was altogether illegal, as such the same has not been approved by the superior Courts. In support of his contentions the learned Law Officer has relied upon judgments of this Court reported as Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456) and Muhammad Aslam Baloch v. Government of Balochistan (2014 SCMR 1723). 3. The submissions made by the learned Advocate General Balochistan need consideration. Leave to appeal is therefore granted to consider inter alia the same. Appeal stage paper books be prepared on the available record. However, the parties are at liberty to file additional documents, if any within a period of one month. As the matter relates to service, the Office is directed to fix the same for hearing in Court expeditiously, preferably after three months. 4. In the meantime, operation of the impugned judgment dated 30.08.2019 shall remain suspended.” CIVIL APPEALS NO.507 & 604 OF 2020. 5 5. The learned Advocate General, Balochistan has argued that the Balochistan Service Tribunal failed to take into consideration the fact that the actual date of birth of Respondent No.1 was 08.01.1959 which was mentioned by him in his forms filed before the Balochistan Public Service Commission. The form is in his own handwriting. Further, the date of birth mentioned in the form was also mentioned in the matriculation certificate which was made part of the service record of the Respondent. He submits that the Balochistan Service Tribunal failed to notice that the question of change of date of birth had been agitated even earlier in 1981 when the Respondent filed an application for correction of his date of birth after obtaining a decree of the Court. However, such application was rejected. The Respondent did not agitate the matter any further and remained silent till 2018 when the notification for his retirement was issued. On issuance of the notification, he filed a fresh application, the same was rejected and he used such rejection as a cause of action to file a service appeal which was patently barred by time and without cause of action. He further maintains that his silence of over 20 years operates as an estoppel and the Respondent was barred from approaching the Balochistan Service Tribunal. 6. The learned Advocate General, Balochistan further submits that the Balochistan Service Tribunal failed to notice or consider the impact of Rule 3(6) of the Balochistan Government Initial Appointment to the Civil Service post (age CIVIL APPEALS NO.507 & 604 OF 2020. 6 and relaxation of upper age limit) Rules, 2012 which provides that the date of birth of a civil servant once recorded at the time of joining Government service shall be final and no alteration therein shall be permissible except where a clerical mistake occurs in recording the date of birth in the service record. The learned Advocate General further maintains that the Balochistan Service Tribunal has failed to take into consideration the dictum of this Court in respect of change of date of birth under the provision of Rule 12-A of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 as well as the ratio of the law laid down in various judgments of this Court including Qamaruddin. v. Pakistan through Secretary, Establishment Division, Islamabad and another (2007 SCMR 66), Dr. Muhammad Aslam Baloch v. Government of Balochistan through Secretary, Health Department and others (2014 SCMR 1723), Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456) and Dr. Zulfiqat Ahmed Malik v. Federation of Pakistan through Secretary Revenue Division, Chairman FBR, Islamabad and others (2019 SCMR 1973). 7. The learned counsel for the Respondent, on the other hand, has defended the impugned judgment. He has vehemently argued that the date of birth of the Respondent was wrongly recorded in the forms of the Public Service Commission as well as his matriculation certificate. He had accordingly approached a Court of competent jurisdiction and got his correct date of birth declared through a declaratory CIVIL APPEALS NO.507 & 604 OF 2020. 7 decree. Such decree has remained unchallenged and the Government of Balochistan had no option except to implement the judgment and decree which had attained finality. He further maintains that in a number of subsequent ACRs which also constitute a part of his service record, his correct date of birth i.e. 25.12.1961 has been recorded. He therefore maintains that the Government of Balochistan has acquiesced in the matter, the judgment and decree have attained finality and the Balochistan Service Tribunal was within its powers and legally justified in implementing the judgment of the Additional District Judge-II, Quetta dated 07.09.1989. 8. We have heard the learned counsel for the parties and carefully examined the record. 9. It is clear and obvious to us that before joining service the Respondent filed an application form in order to sit for the civil service examination. In the said form which the Respondent filled in his own hand and was duly signed by him, he mentioned his date of birth as 08.01.1959. The form was accompanied by his Secondary school certificate which also reflected the same date of birth. Likewise, the same date of birth was entered in his service record from the day he joined service and was not changed within the timeframe provided by law. It is by now well settled that date of birth of a civil servant once recorded in his service book and other service record at the time of his entry into the Government CIVIL APPEALS NO.507 & 604 OF 2020. 8 service cannot be changed, except where an error occurred in recording the correct date of birth on account of a clerical error. 10. Further, all relevant service rules including the Rule 3(6) of the Balochistan Government Initial Appointment to the Civil Service post (age and relaxation of upper age limit) Rules, 2012 as well as the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 are clear and categorical in this respect and deviation from the same is neither permissible nor desirable. We find that the Balochistan Service Tribunal altogether ignored the rules for reasons best known to it. 11. We also note that the Respondent filed a declaratory suit in 1988 and obtained a judgment and decree dated 07.09.1989. It is however significant to note that he only impleaded Chairman, Board of Intermediate and Secondary Education, Balochistan Quetta and the Headmaster, Government High School, Kuchlak in his suit. He did not implead his employer namely, the Government of Balochistan which was the most material and necessary party in the suit in question. Further, armed with the said judgment and decree, he filed an application for alteration in his date of birth which was rightly declined vide letter dated 07.04.1991 issued by the Government of Balochistan, Services and General Administration Department. He did not agitate this matter any further which became past and closed CIVIL APPEALS NO.507 & 604 OF 2020. 9 transaction. Thereafter, the Respondent kept quiet for the next 17 years. It was only on the eve of his retirement when the notification for his retirement was issued, that he moved an application agitating the matter again knowing that the request had already been declined in 1991, and thereafter filed the service appeal. This in our opinion was a malafide and seemingly clever attempt to hoodwink the system and extend his date of retirement by a few years. 12. The argument of the learned counsel for the Respondent that Government of Balochistan did not challenge the judgment and decree which had attained finality and it was bound to implement it is misconceived and without substance. In the first place, even the maintainability of the suit was questionable on account of clear and elaborate rules available in the Service Rules. Further, the Government of Balochistan which was a necessary party was not impleaded and the judgment in question was neither binding nor executable against the Government of Balochistan. We also find that the service appeal filed by the Respondent was patently barred by time and the said fact unfortunately escaped the notice of the Balochistan Service Tribunal. We also find it surprising that the Balochistan Service Tribunal not only ignored and failed to take notice of clear and unambiguous service rules including the Rule 3(6) of the Balochistan Government Initial Appointment to the Civil Service post (age and relaxation of upper age limit) Rules, 2012 but also the provisions of the Balochistan Civil Servants CIVIL APPEALS NO.507 & 604 OF 2020. 10 (Appointments, Promotions and Transfers) Rules, 1973. Most significantly the Tribunal totally failed to consider, appreciate and follow the dicta of this Court recorded in Qamaruddin. v. Pakistan through Secretary, Establishment Division, Islamabad and another, Dr. Muhammad Aslam Baloch v. Government of Balochistan through Secretary, Health Department and others, Ali Azhar Khan Baloch and others v. Province of Sindh and others and Dr. Zulfiqat Ahmed Malik v. Federation of Pakistan through Secretary Revenue Division, Chairman FBR, Islamabad and others (supra) where it has repeatedly been held that the date of birth once recorded in the service record of a civil servant cannot be altered or changed except in accordance with the exceptions provided in the rules itself. It was never the case of the Respondent that his case fell within any of the exceptions or that his date of birth was wrongly recorded on account of a clerical error. 13. The Balochistan Service Tribunal also failed to take notice into consideration that in the year 1991 the competent authority had already rejected the representation of the Respondent and the Respondent had remained silent for 18 years before agitating the matter before the Balochistan Service Tribunal. The Balochistan Service Tribunal did not consider it necessary to record any reasons for entertaining the service appeal, condoning the delay, ignoring the clear, unambiguous and unequivocal language of the rules and consistent dicta on the question of law settled by this Court in the various judgments cited above. It may be noted that in CIVIL APPEALS NO.507 & 604 OF 2020. 11 terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, any decision of this Court to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan. On this yardstick, the judgment of the Tribunal is per incuriam. 14. For reasons recorded above, we allow this appeal. We find the judgment of the Balochistan Service Tribunal, Quetta dated 30.08.2019 to be unsustainable. It is accordingly set aside. 15. The Registrar shall communicate a copy of this judgment to the Balochistan Service Tribunal, Quetta. Chief Justice Judge Judge ISLAMABAD. 18.08.2020. Zubair/* ‘Not Approved For Reporting’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEALS NO.508 AND 681 OF 2017 AND CIVIL PETITION NO.1640 OF 2017 (Against the judgments all dated 6.4.2017, of the Peshawar High Court, Peshawar passed in Election Appeals No.1-A/2016, 1-A/2015 and 2-P/2015 respectively) 1. Sardar Sher Bahadar Khan etc. Vs. Election Commission of Pakistan through Secretary, Election Commission, Islamabad etc. In C.A.508/2017 2. Asghar Ali etc. Vs. Election Commission of Pakistan through Chief Election Commission, Islamabad etc. In C.A.681/2017 3. Mst. Noor Jehan Vs. Election Commission of Pakistan through Secretary, Election Commission of Pakistan, Islamabad etc. In C.P.1640/2017 For the appellant(s)/ petitioner(s): Sardar Muhammad Aslam, ASC Ch. Akhtar Ali, AOR (In C.A.508/2017) Qazi Muhammad Anwar, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In C.A.681/2017) Mr. M. S. Khattak, AOR (In C.P.1640/2017) For the respondent(s): Ch. Aitzaz Ahsan, Sr. ASC Mr. Gohar Ali Khan, ASC (In C.A.508/2017) Mr. Kamran Murtaza, Sr. ASC (In C.A.681/2017) Not represented (In C.P.1640/2017) Date of hearing: 22.9.2017 … Civil Appeal No.508 of 2017 etc. -: 2 :- JUDGMENT MIAN SAQIB NISAR, CJ.- These Civil Appeals with leave of the Court and the Civil Petition entail a common question of law, therefore, are being disposed of together. However, wherever there is some difference with regard to the facts or any subtle question relating to a legal proposition the same shall be accordingly highlighted. 2. Leave in these appeals has been primarily granted (vide orders dated 18.4.2017 and 4.5.2017) to consider the following: - (1) what is the effect and application of Section 78A of the Khyber Pakhtunkhwa Local Government Act, 2013 (the Act of 2013) inserted vide Khyber Pakhtunkhwa Local Government (Third Amendment) Act, 2015, (the Amendment Act 2015) and whether it (Section 78A) shall apply retrospectively or prospectively; (2) whether M/s Ali Khan Jadoon and Sadar Waqar Nabi (in C.A. No. 508 of 2017) and Salahuddin and Samiullah (in C.A. No. 681 of 2017) and Fahim Khan (in CPLA. No. 1640 of 2017) were nominated by their respected party/party heads to contest the election for the Nazim and Naib Nazim of the concerned District Councils; (3) whether in the situation the appellants were bound to vote for the party-nominated candidates; (4) whether the appellants, who instead of voting on the direction of the party head, have contested the election themselves or have voted against party- nominated candidates, have in effect defected in terms of the above noted provision of law; (5) whether the respective show cause notices, issued to the appellants/petitioners, were issued by the party/party head in accordance with the relevant provisions of law; and Civil Appeal No.508 of 2017 etc. -: 3 :- (6) whether the Election Commission of Pakistan (ECP) was not properly constituted when it passed the impugned orders, as the ECP compromises of the Chief Election Commissioner of Pakistan (Chairman) and four Members while the impugned orders dated 25.01.2016 (in C.A. No. 508/2017) and 29.10.2015 (in C.P. No.1640/2017) were passed by three Member Bench of ECP in which the Chairman and one of the Members did not participate. 3. The brief facts of the case in relation to Civil Appeal No.508/2017 are that Sardar Sher Bahadur Khan (appellant No.1) was elected as a Member of Union Council Kehal (Urban), District Abbottabad as an independent candidate, while Shaukat Ali Tanoli (appellant No.2) was elected as Member of District Council on the ticket of Pakistan Tehreek-e-Insaaf (PTI). The next phase of the Local Bodies elections was the election of District Nazim and District Naib Nazim. After the elections, appellant No.1 joined PTI on 25.06.2015 and thus, at the relevant point of time, when the schedule for the election of the Nazim and Naib Nazim was notified on 19.08.2015, both the appellants were the members of PTI. On 24.08.2015, an amendment was introduced in the Act of 2013 through the Amendment Act of 2015 whereby Section 78A was inserted therein, which provided the consequences of violation of party direction in the shape of defection. M/s Ali Khan Jadoon and Sadar Waqar Nabi were nominated by PTI as their candidates for Nazim and Naib Nazim; however, appellants No.1 and 2 contested the elections of District Nazim and Naib Nazim as independent candidates instead of casting their vote in favour of the party nominated candidates. Appellants No.3 to 21, who were also belonged to PTI, cast their votes in favour of appellants No.1 and Civil Appeal No.508 of 2017 etc. -: 4 :- 2 against the party direction. Resultantly, appellants No.1 and 2 won the election. All the appellants were issued show cause notices on 03.09.2015, to which they submitted their respective replies. However, all of them were declared to have defected by invoking the provision of Section 78A ibid vide letters dated 14.9.2015 and the matter was sent to the ECP for confirmation. The ECP affirmed the defection of all the appellants vide order dated 25.1.2016. The said order was challenged by the appellants before the learned Peshawar High Court through an Election Appeal, which was dismissed on 6.4.2017 by means of the impugned judgment. 4. In Civil Appeal No.681/2017, the facts are that appellants No.1 to 4 were elected on general seat as Member of District Council Laki Marwat, whereas appellant No.5 was elected on reserved seat on the party ticket of Jamiat-e-Ullema Islam Fazal ur Rehman Group (JUI (F)). In the next round of election for District Nazim/Naib Nazim from the said District, there was adjustment between JUI(F) and ANP, however, the appellants cast their vote in favour of candidates of opposite coalition (PPP and PTI) which resulted in the defeat of candidates nominated by JUI(F). Resultantly, respective show cause notices were issued to the appellants on 07.09.2015 for having defected in terms of Section 78A ibid. Respective replies to the show cause notices were submitted by the appellants; however, the declaration of defection was made against them on 16.9.2015 and the matter was referred to the ECP for confirmation. The ECP confirmed said declarations vide order dated 03.11.2015 (Note: in this case the full strength of ECP has rendered the decision, therefore, the question of its composition is not in issue). Be that as it may, the appellants challenged the order of ECP before the learned High Court Civil Appeal No.508 of 2017 etc. -: 5 :- through an Election Appeal, which was dismissed vide the impugned judgment. 5. The facts of Civil Petition No.1640 of 2017 are that the petitioner was elected as Female Councilor of Tehsil Council Lahor, District Swabi on the party ticket of PML(N). In the next phase of elections for the seat of Tehsil and District Nazim/Naib Nazim, statedly there was an adjustment between PML(N), JUI(F) and ANP; as such, one Faheem Khan (belonging to PML(N)) and one Muhammad Asad (belonging to ANP) were nominated by PML(N) for the seat of Tehsil Nazim and Naib Nazim. However, the petitioner in violation of party direction cast her vote in favour of rival candidate belonging to PTI, instead of her own party candidate. Thus, a show cause notice was served upon the petitioner, but she did not make any reply thereto; resultantly, the declaration of defection was issued by the nominee of the party head vide letter dated 11.9.2012 and the copy whereof was transmitted to ECP for confirmation. The ECP confirmed the declaration of defection of the petitioner. The said decision was challenged by the petitioner before the learned High court through an Election Appeal which was dismissed vide the impugned judgment. 6. First of all we shall take up the question of applicability of section 78A ibid, retrospectively or prospectively, and its effect on the elections in issue. In this regard it is to be noted that under the provisions of the Act, 2013, election schedule was announced on 19.8.2015 for the elections to be held on 30.8.2015. In the meantime, on 24.08.2015, Section 78A ibid, was introduced in the Act of 2013 vide the Amendment Act, 2015, which reads as under:- Civil Appeal No.508 of 2017 etc. -: 6 :- “78A. Disqualification on grounds defection.---- (1) If a member of a party composed of a single political party in a Council- (a) resigns from membership of his political party or joins another party in a Council; or (b) votes or abstains from voting in a Council contrary to any direction issued by the political party to which he is a member, in the Council, in relation to- (i) election of the Nazim or Naib Nazim in a Council; or (ii) a vote of confidence or a vote of no- confidence ; or (iii) approval of annual budget,- He may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer of the concerned Council and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him. Explanation: For the purpose of this section,- (i) “Council” means the Town Council, Tehsil Council or the District Council, as the case may be; Civil Appeal No.508 of 2017 etc. -: 7 :- (ii) “Party Head” means any person, by whatever name called or declared as such by the Party and included the nominee of the Party Head ; and (iii) “Presiding Officer” means the Naib Nazim of the concerned Council. (2) A member of a Council shall be deemed to be a member of a political party if he, having been elected as a candidate or nominee of a political party which constitutes the party in the concerned Council or has become a member of such political party as per provision of clause (a) of sub-section (7) of section 74 of this Act. (3) Upon receipt of the declaration under sub- section (1), the concerned Presiding Officer, shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner, who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner. (4) Where the Election Commission confirms the declaration, the member referred to in sub-section (1) shall cease to be a member of the concerned Council and his seat shall become vacant. (5) Any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the High Court which shall decide the matter within sixty days from the date of the filing of the appeal. (6) Nothing contained in this section shall apply to the Nazim or Naib Nazim of the Council.” Civil Appeal No.508 of 2017 etc. -: 8 :- 7. It is the stance of the appellants that the said amendment would not have any retrospective effect, as nothing in this regard has been specifically mention therein; and therefore, it is not applicable to the elections in issue. It has been argued that the process of election had commenced with the notification dated 19.8.2015, when the electorates were called upon to elect their Nazim and Naib Nazim and therefore, the law applicable to the process of election, which was in force at the relevant point of time, shall be attracted. In support of the said arguments, reliance has been placed to the cases of Adnan Afzal Vs. Capt. Sher Afzal (PLD 1969 SC 187), Muhammad Ishaq Vs. The State (PLD 1956 SC 256 at 257), Commissioner of Income-Tax Karachi Vs. Eastern Federal Union Insurance Co. (PLD 1982 SC 247 at 251, para 7), Senior Member BOR and others Vs. Sardar Bakhsh Bhutta and another (2012 SCMR 864 at 866), Mst. Sarwar Jan and others Vs. Mukhtar Ahmad and others (PLD 2012 SC 217 at 221B) and the Province of Sindh through Chief Secretary, etc. Vs. Muttahida Qaumi Movement, etc. (Civil Appeals No.760 to 765/2016). 8. Conversely, it has been argued on behalf of the respondents that Section 78A ibid was added as a measure for preventing horse-trading and to enforce political discipline. Thus, the objective of the insertion of Section 78A ibid is based upon public and national interest. The said amendment, thus, would operate prospectively covering the elections on 30.08.2015. By referring to Article 63A of the Constitution, parity has been drawn to the facts and circumstances of the present case. In this regard reliance has been placed to the judgments of this Court reported as Pir Sabir Shah Vs. Shad Muhammad Khan, Member Provincial Assembly, Civil Appeal No.508 of 2017 etc. -: 9 :- N.F.W.P. and another (PLD 1995 SC 66, para 109, pages 24 to 38), Wuklala Mahaz Barai Tahafaz Dastoor and another Vs. Federation of Pakistan and others (PLD 1998 SC 1263), District Bar Association, Rawalpindi and others Vs. Federation of Pakistan and others (PLD 2015 SC 401, paras 164 to 173). 9. We have considered the respective submissions made and the case-law referred to by both the sides and are of the view that in the facts and circumstances of the instant case, the issuance of schedule has nothing to do with the law pertaining to casting or abstaining from casting a vote in terms of Section 78A ibid because the election had to take place on 30.8.2015 and on the same day nomination papers had to be filed. There was no situation that the nomination papers were filed before the said date or even before the amendment, introducing Section 78A ibid. It is well settled that a statute or any amendment thereto ordinarily operates prospectively unless, by express enactment or necessary intendment, retrospective operation has been given to it. Reference in this behalf may be made to the case reported as Gul Hasan & Co. and 5 others Vs. Allied Bank of Pakistan (1996 SCMR 237), Pakistan Steel Mills Corporation Vs. Muhammad Azam Katper and others (2002 SCMR 1023), Zakaria H.A. Sattar Bilwani and another Vs. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi (2003 SCMR 271), Zila Council, Sialkot through Administrator Vs. Abdul Ghani Proprietor Iqbal Brothers, Sialkot and others (PLD 2004 SC 425) and Muhammad Tariq Badr and another Vs. National Bank of Pakistan and others (2013 SCMR 314). Considering the purpose and object of the above said amendment, namely, to curb the mischief of horse-trading and Civil Appeal No.508 of 2017 etc. -: 10 :- defection, it is clear that the law was amended and the said section was introduced just few days prior to election with the clear intention to apply it to the future elections to be held after 30.8.2015, and a necessary intendment of the legislature can be validly drawn that it was meant to apply to the forthcoming elections to be held on 30.8.2015. Moreover, by virtue of the said amendment, no substantive rights of the appellants have been infringed, because not only the voting had to take place on 30.8.2015 but also the nomination papers were to be filed on the said date. It is not the case of the appellants that pursuant to the schedule they had already announced their candidature by filing the nomination papers. 10. Now we shall consider the question with regard to the validity of the orders dated 25.01.2016 (in C.A. No. 508/2017) and 29.10.2015 (in C.P. No.1640/2017) which have been passed by a three Member Bench of ECP, in which the Chairman and one of the Members did not participate. It has been argued on behalf of the appellants (in Civil Appeal No.508/2017) that when the order for defection of the appellants was passed, the ECP was not properly constituted in terms of Article 218 of the Constitution, in that, the ECP comprises of five members (the Chairman and four Members) while instead of the full strength the references in question were heard and decided by three Members. It has been further argued that a somewhat similar situation, when the ECP was not properly constituted at the time of conducting election to the Senate, this Court declared such elections to be void. Reliance in support of his contention is placed upon a judgment reported as Imran Khan and others Vs. Election Commission of Pakistan and others (2012 SCMR 448 at 452, para 2). Civil Appeal No.508 of 2017 etc. -: 11 :- 11. On the other hand it was argued on behalf of the respondents that as per Section 8(2) of the Election Commission Order, 2002 (Order, 2002) there is no bar or prohibition to the effect that a matter cannot be heard by a lesser number of Members of ECP, if the Chairman/Member(s) either recuses himself from participation or is otherwise on leave. In this case (C.A. No.508/2017) the Chairman of ECP was from the same Zila, therefore, he recused; whereas, the one of the Members, namely, Mr. Roshan Esani, was unwell and thus could not sit on the Bench at the time of hearing. 12. Before deciding the fate of the orders of the ECP impugned herein, it is appreciate to consider the constitutional and legal provisions which deal with the constitution and functioning of the ECP. In this regard, Article 218(2) of the Constitution is relevant which provides, inter alia, that the Election Commission of Pakistan shall consist of the Commissioner, who shall be the Chairman of the Commission, and four members, each of whom has been a Judge of a High Court from each province. Though Article 219 of the Constitution prescribes the duties of the ECP and Article 220 of the Constitution mandates the executive authorities to assist the ECP in the discharge of its functions; however, mode and procedure to be adopted by the ECP has not been elaborated in the Constitution, which has been prescribed in the Order, 2002. In this regard, Section 8 of the Order, 2002 is relevant, sub-Section (1) whereof provides that all decisions of the ECP shall be expressed in terms of the opinion of the majority of its members, including the Chairman, and sub- Section (2) thereof provides that no election conducted, or other action taken or thing done, by the ECP shall be invalid or called in question only on the ground of the existence of a vacancy therein or Civil Appeal No.508 of 2017 etc. -: 12 :- of the absence of any member from any meeting thereof. From the perusal of the above provisions, it is clear that the ECP is comprised of five members but at nowhere it has been provided that any decision of the ECP shall be taken by all of its five members. Contrary to it, in section 8(2) of the Order, 2002 any order passed by the ECP by lesser members of its total strength has been protected by specifically proving that no action taken or thing done by the ECP shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. The ratio of the case reported as Imran Khan’s case (supra) is not applicable upon the instant case, because at the time of holding of election to Senate challenged therein, the ECP was not properly constituted and this Court though pointed out such defect but restrained itself from declaring such election to be null and void, rather provided an opportunity to the Parliament to cure that defect, which was thereafter cured by virtue of the 21st Amendment in the Constitution. Thus, we hold that the orders of the ECP dated 25.01.2016 (in C.A. No. 508/2017) and 29.10.2015 (in C.P. No.1640/2017), passed by three of its members, whereby the declaration of defection of appellants/petitioner was confirmed, were validly passed. 13. Other question which requires consideration is that who has the authority, within a political party, to nominate a candidate for the seats of Nazim/Naib Nazim and issue direction to its members to cast votes in favour of that candidate, and in case of violation of such direction, can issue a show cause notice and then pass the declaration of defection against such member. The answer to those question has to be found in Section 78A ibid, wherein it has been provided inter alia that if a member of a party votes or abstains from Civil Appeal No.508 of 2017 etc. -: 13 :- voting in a Council contrary to any direction issued by the political party to which he is a member, in relation to election of the Nazim or Naib Nazim in a Council; he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer of the concerned Council and the Chief Election Commissioner. It is also provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him. However, as per definition clause, the “Party Head” means any person, by whatever name called or declared as such by the Party and included the nominee of the Party Head. Thus, the authority to issue show cause notice, to consider the reply thereto and to declare a member to have defected, lies with the Party Head; however, the said authority may also be vested with the nominee of the Party Head. It is also evident from the above provision that every member of a political party is bound to follow the directions issued by the political party/Party Head, not only with regard to casting the vote or to abstain from voting in the election of the Nazim or Naib Nazim, but also regarding vote of confidence or no-confidence and the approval of annual budget. 14. Having decided the questions of law involved in the matter, now we shall take up each case independently and decide it according to its own facts. 15. In Civil Appeal No.508/2017 at the time of issuance of schedule for the election of Nazim and Naib Nazim which was notified on 19.08.2015, both the appellants were the members of PTI. As per schedule, the election was to be held on 30.8.2015, however, in the Civil Appeal No.508 of 2017 etc. -: 14 :- meantime, on 24.08.2015, Section 78A ibid was added. As per relevant rules, the election was to be conducted “by open division”. Appellants No.1 and 2 contested the elections of District Nazim and Naib Nazim as independent candidates against M/s Ali Khan Jadoon (Nazim) and Sadar Waqar Nabi (Naib Nazim), who had been awarded party ticket by PTI. In the elections, appellants No.1 and 2 succeeded having secured 41 votes, whereas, the nominated candidates of PTI lost having secured 33 votes. It may be relevant to state that the complete house comprised of 77 members, out of which three members for certain reasons could not cast their vote, as such, only 74 members of the electorate voted in the election. On 02.09.2015, respondent No.2 was nominated by Imran Khan, Chairman of PTI to take action against all the twenty-one appellants under the provisions of Section 78A ibid. On 03.09.2015, respondent No.2 being the nominee of the Party Head issued show cause notices not only to appellants No.1 and 2, who contested the election of District Nazim/Naib Nazim but also to appellants No.3 to 21, who voted for appellants No.1 and 2 against the party direction, despite admittedly being elected as members of the Union Council on PTI ticket or becoming members of PTI prior to the issuance of the election schedule. Appellant No.1 in his reply has stated that he was an elected President of PTI from District Abbottabad but was not awarded party ticket to contest the elections of Member Union Council and thus, contested election as an independent candidate; in the election of Zila Nazim Abbottabad, when PTI announced the names of M/s Ali Khan Jadoon and Sardar Waqar Nabi, but most of the PTI members did not want to cast their votes in favour of party nominated candidates, therefore, he and respondent No.2 decided to Civil Appeal No.508 of 2017 etc. -: 15 :- contest election against the candidates of PTI. Somewhat similar reply was submitted by other appellants. However, their replies were not accepted and vide letter dated 14.9.2015, all the 21 appellants were declared by the nominee of the party head to have defected under section 78A ibid and a reference was filed with the ECP. The ECP vide order dated 25.1.2016 affirmed the declaration of defection of all the appellants. 16. It is argued on behalf of the appellants that no specific direction, as is required under the noted section, was ever issued to the appellants to vote for the nominated candidates of PTI or to abstain the appellants No.1 and 2 from contesting the election against the candidates nominated by the party i.e. PTI. It is further argued that merely on account of the nomination of candidates by the party, it cannot be assumed that a party direction has been issued to the appellants No.1 and 2 not to contest the elections and to appellants No.3 to 21 not to vote in favour of appellants No. 1 and 2, who were also members of PTI. It is submitted that the mere issuance of a ticket to other candidates would not be tantamount to a direction within the purview of Section 78A (ibid). 17. Responding to the above, Mr. Aitzaz Ahsan, learned counsel for the respondents has submitted that the nomination papers were to be filed on the election day i.e. 30.8.2015 and on the said date M/s Ali Khan Jadoon and Sadar Waqar Nabi had not been nominated by PTI as the party candidates, as is clear from the ticket issued to them, which is available on record. In this regard reference has also been made to the reply to the show cause notice submitted by the appellants, wherein they categorically admitted that the party ticket was granted to M/s Ali Khan Jadoon and Sadar Waqar Nabi Civil Appeal No.508 of 2017 etc. -: 16 :- but their case is that it had been done by political maneuvering and without consultation with the local leadership of PTI. It is also argued that the defection of the appellants is justified on the basis of the allegations leveled against them because appellants no.1 and 2 contested had contested the election as independent candidates against the candidates nominated by the party and other appellants cast their vote in their favour, which was not only against the interest of the party but also the party directions. According to him the show cause notice was validly issued by Mr. Fazal Muhammad Khan, Provincial Organizer KPK as he was a nominee of the Party Head (Imran Khan) vide notification dated 02.9.2015. 18. We have considered the documentary evidence available on record as also the respective contentions of the parties. The elections of Nazim/Naib Nazim were scheduled to be held on 30.8.2015 and on the same date the nomination papers were to be filed. However, prior to that date, the party ticket was issued to M/s Ali Khan Jadoon and Sadar Waqar Nabi and this fact was in the knowledge of all the members of PTI and there is no dispute between the parties to that effect. Even in the reply to the show cause notice, appellant No.1 has admitted that the party ticket was issued to one Ali Khan Jadoon for the seat of Nazim, however, his defence was that the past conduct of the said person was not appreciable therefore appellant No.1 informed the party leadership that the said person should not be given party ticket, but despite that the ticket was maneuvered by the local leadership in his favour; as such, many of the PTI members were not willing to vote for him, thus, appellant No.1 opted to contest election against him (party nominated candidate). The nominee of the party head issued the declaration of defection of Civil Appeal No.508 of 2017 etc. -: 17 :- appellant No.1 vide letter dated 14.9.2015 on the ground that in sheer disobedience and violation of PTI’s decision and direction to support, assist and vote for PTI’s ticket holder and candidate for the office of District Nazim and Naib Nazim appellant No.1 himself submitted the nomination papers as an independent candidate against the candidate nominated by the party and also cast his vote in favour of rival candidate for the seat of Naib Nazim. The other appellants also did not deny the fact that M/s Ali Khan Jadoon and Sadar Waqar Nabi were nominated by the party and despite that they cast their vote in favour of rival candidates i.e. respondents No.1 and 2. Considering the contentions of both the sides as well as the available record we are convinced that M/s Ali Khan Jadoon and Sadar Waqar Nabi were duly nominated by the PTI for the seats of Nazim and Naib Nazim and this fact was well in the knowledge of all the appellants; therefore, in terms of Section 78A ibid were bound to cast their vote in favour of the party nominated candidates. When they failed to follow the party directions, to cast vote in favour of party nominated candidates, they have to suffer the consequences of Section 78A ibid to be declared to have defected from the party. As we have already held in the preceding paragraphs that any order passed by a bench of ECP comprising lesser number of members shall not be void on this score alone, it is therefore held that the order dated 25.1.2016 passed by three members of ECP whereby declaration of defection of all the appellants was upheld, was validly passed. Thus, Civil Appeal No. 508 of 2017 is dismissed. 19. In Civil Appeal No.681/2017, all the appellants were elected as Members of Union Council on the party ticket of JUI (F), but in the next round of election for District Nazim/Naib Nazim for Civil Appeal No.508 of 2017 etc. -: 18 :- the said District, they cast their vote in favour of candidates of opposite coalition (PPP and PTI) which resulted in the defeat of candidates nominated by JUI(F). The show cause notices were issued to the appellants on 07.09.2015 by Moulana Fazal-ur-Rehman, the party head of JUI(F), asserting therein that instead of voting for the candidates by the party, they (the appellants) in fact voted for the candidate of opposite coalition and, therefore, have defected in terms of Section 78A ibid. Reply to the show cause notices was submitted by the appellants. Thereafter, the declaration of defection was made by the Party head (Moulana Fazal-ur-Rehman), the head of the JUI(F) on 16.9.2015 and the matter was referred to the ECP through a reference which (ECP) allowed the same vide impugned judgment dated 03.11.2015 (Note: in this case the full strength of ECP has rendered the decision, therefore, the question of its composition is not in issue). Be that as it may, the appellants filed an Election Appeal against that order before the learned High Court which was dismissed through the impugned judgment. 20. Qazi Muhammad Anwar, learned ASC appearing for the appellants, while referring to paragraph No.6 of the impugned judgment of the learned High Court, has argued that the learned High Court has admitted that the appellants have not voted for the candidate of the other side; besides, it is not established on the record whether the JUI(F) had in fact boycotted the election and whether any direction was issued in terms of Section 78A ibid directing the appellants to refrain from voting for any other candidate. According to him there was an adjustment between JUI(F), ANP and PPP in the entire province of KPK and the Provincial President of JUI(F) had appealed all the members to support the Civil Appeal No.508 of 2017 etc. -: 19 :- candidate of PPP. Further, on the election day, M/s Salahuddin Khan and Samiullah, the candidates nominated by JUI(F) for the seats of Nazim and Naib Nazim announced boycott from the election, as such, the appellants had no other option except to cast their vote in favour of candidate of coalition partner, i.e., PPP. It is also argued that the show cause notice did not meet the requirement of Section 78A ibid for the reason that when the declaration was made by Moulana Fazal-ur-Rehman on 16.9.2015, allegedly he was on Hajj and therefore, such declaration is not valid in law (in lukewarm manner it is alleged to be a forged document). 21. In response, Mr. Kamran Murtaza, learned ASC for respondent No.3 has submitted that there is no force in the allegation that the declaration of defection of the appellants was a forged document or not signed by the party head as he had proceeded to perform Hajj, inasmuch as, the letters were signed on 16.9.2015 by the party head and on the same day after signing the same (letters) he proceeded for Hajj. He further submitted that Salahuddin Khan (Nazim) and Samiullah (Naib Nazim) were nominated candidates of JUI(F) and when they announced boycott the appellants should have refrained from casting their vote in favour of any other candidate. He has further submitted that the party had nominated M/s Salahuddin Khan and Samiullah as its candidates for the seats of Nazim and Naib Nazim, therefore, the appellants were bound to follow the party direction to cast vote in their favour. Inasmuch as, when the nominated candidates had boycotted the election, the appellants were bound to abstain from voting in favour of rival candidate. 22. Learned counsel has also made reference to Chapter VIII of the KPK Local Councils (Conduct of Elections) Rules, 2014 Civil Appeal No.508 of 2017 etc. -: 20 :- (hereinafter referred to as “the Rules, 2014”). At this stage, it is appropriate to consider the scope of the Rules, 2014 with regard to the conduct of the election of Local Government. As per Rule 67 of the Rules, 2014, the elections of the Nazim/Naib Nazim shall be conducted in the first meeting of the Tehsil Council, Town Council or District Council, as the case may be, without any debate. For that purpose, the procedure has been provided in sub-Rule (2) thereof, in that, any member may propose or second the name of any member who, in his opinion, commands the confidence of the majority of the members of the council, on a nomination paper in Form XXXI; and every nomination paper shall be delivered by the candidate or his proposer or seconder to the secretary of the Local Council by 1300 hours, on the day fixed for the ascertainment. Thereafter, the election of Nazim is to be conducted as per Rule 70 thereof, by an open division, and the candidate who secures the support of the majority of the members of the Local Council shall be declared to be the member commanding the confidence of the majority of the members of the Local Council and administer him oath of office in the manner provided in the Schedule-II thereof. As per Rule 71 thereof, the election of Naib Nazim shall be conducted in the like manner. However, there is no requirement that the election of Nazim/Naib Nazim shall be conducted on party basis or a party ticket shall be attached with the nomination Paper. The same is also evident from the nomination papers of M/s Salahuddin Khan (Nazim) and Samiullah (Naib Nazim) produced in Court, wherein neither the party affiliation has been mentioned nor is there any column for that purpose. 23. Coming to the facts of instant appeal, it is to be noted that though the candidates were nominated by the party head of Civil Appeal No.508 of 2017 etc. -: 21 :- JUI(F) but at the relevant point of time i.e. on the election day, they declared boycott from the election. Therefore, notwithstanding the fact that whether there was any specific or implied direction issued by the party head to cast the vote in favour of party nominated candidate or not, the same (direction) even if issued became redundant when the party nominated candidates boycotted the election. In the show cause notice it was alleged that the appellants cast their votes against the party candidates as such have defected in terms of Section 78A ibid. In the reply thereto, it was specifically mentioned by appellant No.1 has stated that the future plan and the party policy regarding the election of Nazim/Naib Nazim was not clear, even certain meeting in that regard were also conducted; at the time of voting only five votes were cast be the members of JUI(F) and then at once they left the house; in those circumstances, in absence of direction from the party leadership, they cast their votes in favour of PPP candidate to avoid the dissolution of the house. It was further stated that appellant No.1 was ready to take oath that no member of party issue directions or information regarding casting the vote. The similar stance was taken by the other appellants in their respective replies. In the circumstances, when the appellants had specifically denied the issuance of party instructions, especially when the party nominated candidates had boycotted the election, it was incumbent upon the respondent to prove through sound evidence that the necessary direction was issued by the party head or his nominee to vote in favour of certain candidate or to refrain from casting their vote. When we asked the learned counsel for respondent No.3 to provide any credible evidence to establish that fact, he could not produce any letter issued in this regard except producing copy of the Civil Appeal No.508 of 2017 etc. -: 22 :- nomination forms of Salahuddin Khan (Nazim) and Samiullah (Naib Nazim) to contend that they were nominated candidates of JUI(F). However, as noted above, neither the nomination papers contained any column for mentioning the party affiliation nor this has been mentioned in the nomination forms produced by the learned counsel. When confronted with this situation, the learned counsel candidly conceded that there is no written proof that the direction was issued, however, submitted that such direction was communicated verbally to the appellants. Even no a single affidavit has been produced by the party leadership to produce that when, how and who communicated the verbal direction to the appellants. We are therefore not persuaded to accept the stance of the learned counsel. Thus, it is held that, in absence of specific direction of the party head with regard to abstaining from casting the vote, the appellants have not defected the party, as such, the impugned order dated 6.4.2017 is not sustainable. Resultantly, declaration of their defection dated 16.9.2015, upheld by ECP vide order dated 3.11.2015, is declared void. Civil Appeal No.681 of 2017 is therefore allowed. 24. In Civil Petition No.1640 of 2017, the petitioner was elected as Female Councilor on the party ticket of PML(N), but in the elections for the seat of Tehsil and District Nazim/Naib Nazim for the said District, she in violation of party direction cast her vote in favour of rival candidate belonging to PTI instead of her own party candidate. Thus, a show cause notice was served upon the petitioner by the nominee of PML(N). It was categorically stated in the show cause notice that specific directions were issued to the petitioner to cast her vote in favour of candidate of PML(N) for the seat of Tehsil Nazim and candidate of coalition party (ANP) for the seat of Tehsil Civil Appeal No.508 of 2017 etc. -: 23 :- Naib Nazim; in this regard she was served with a notice to follow the party directions and take oath in this regard, but she remained absent on 29.8.2015 at the time of taking oath, and ultimately, she cast her vote in favour of PTI candidate for the seat of Tehsil Nazim and disloyal candidate of JUI(F) for the seat of Tehsil Naib Nazim. The show cause notice was served upon the petitioner through registered AD but she did not make any reply thereto; resultantly, the declaration of defection was issued vide letter dated 11.9.2012 by the nominee of the party head and the copy whereof was transmitted to ECP for confirmation. A three member Bench of ECP, after providing the opportunity of hearing to the petitioner, vide order dated 29.10.2015, confirmed the declaration of defection of the petitioner. It is to be noted that ECP in the said order specifically mentioned that the petitioner appeared in person and admitted all the facts narrated in the letter dated 11.9.2015; she candidly admitted having voted for the candidate of PTI, which was also confirmed from the register for maintaining record of support extended to the respective candidates. There is no dispute that there was no party direction by the party head or his nominee to vote in favour of party nominated candidate; rather, it is clear from the contents of show cause notice, which were not denied by the petitioner through reply or before the ECP, that directions were issued to the petitioner to cast her vote in favour of party nominated candidate and was also served with a notice to follow the party directions and take oath in this regard. But despite all that, she cast her vote in favour of in favour of rival candidate, which clearly entails the consequences entailed in Section 78A ibid of defection. Thus, no case is made out to interfere in the Civil Appeal No.508 of 2017 etc. -: 24 :- judgment impugned in the instant petition. The petition is therefore dismissed. 25. For the foregoing, Civil Appeal No. 508 of 2017 and Civil Petition No. 1640 of 2017 are dismissed; whereas, Civil Appeal No. 681 of 2017 is allowed. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 20.12.2017 at Lahore Approved For Reporting Waqas Naseer/* CHIEF JUSTICE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 508 OF 2020 (On appeal against the judgment dated 25.08.2018 passed by the High Court of Balochistan, Quetta, in C.P. No. 136/2014) Divisional Superintendent, Quetta Postal Division and others …Appellants VERSUS Muhammad Ibrahim and others …Respondent(s) For the Appellants: Moulvi Ejaz ul Haq, DAG Syed Rifaqat Hussain Shah, AOR Mr. Hamid ul Haseeb, Asst. Director (Investigation), Quetta For the Respondent (1): Ms. Sarwat Mukhtar, ASC (Through video link from Quetta) Amicus curiae: Hafiz Muhammad Tariq Nasim, ASC Date of Hearing: 10.06.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- The appellants through this appeal by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, have called in question the judgment dated 25.09.2018 passed by the High Court of Balochistan, Quetta, whereby the Constitution Petition assailed by the appellants was dismissed and the orders of Labour Court maintained by Labour Appellate Court were upheld. 2. Briefly stated the facts of the matter are that respondent No. 1 was appointed as Postman on 04.07.1987. During the service tenure, he was assigned as officiating postmaster at Killa Abdulah, District Quetta. During the subsistence of the said assignment, the respondent was alleged to Civil Appeal No. 508/2020 2 have misappropriated public money belonging to exchequer while making bogus payments in Benazir Income Support Program especially designed to help the poor people as a gesture of goodwill by the Government. There was a mechanism designed to make payments through money orders. However, the requisite formalities were ignored intentionally with ill design and as such fake vouchers were prepared to show payments resulting into misappropriation of an amount to the tune of Rs.5,78,232/-. The respondent was proceeded against the said accusation resulting into registration of a case bearing FIR No. 14/2011 under Sections 409, 468, 471, 477-A PPC read with Section 5(2) of Prevention of Corruption Act, 1947. He was also proceeded against by the department by way of issuing a charge sheet on 20.06.2011 wherein the charges of misappropriation, corruption and inefficiency were leveled. The department appointed Assistant Superintendent (Field), Post Office, Loralai as Inquiry Officer to probe into the allegations contained in the charge sheet. The respondent did not join inquiry proceeding, hence, it was carried on ex-parte. The Inquiry Officer while attending to all facts and circumstances and all other material placed before him found the allegations against the respondent as correct and held him guilty of the charge. The competent authority i.e. Divisional Superintendent, Postal Service, Quetta while relying upon the inquiry report coupled with the conduct of the respondent imposed penalty of dismissal from service upon the respondent vide order dated 14.07.2012. On the other hand on completion of the investigation, challan was submitted in the Court of Special Judge, Anti Corruption who after completion of the trial found the accusation against the respondent to be correct and as such he was convicted and sentenced vide judgment dated 28.02.2014 to suffer two years RI in each Section and to pay fine of various amounts under different sections. The respondent assailed the order of conviction before the High Court of Balochistan through Criminal Appeal No. 10/2014, which was allowed and the respondent was acquitted vide judgment dated 24.09.2018. In the meantime, the respondent served grievance notice upon the appellants and thereafter filed grievance petition on 13.08.2012 Civil Appeal No. 508/2020 3 before the Labour Court-I, Balochistan, Quetta. The appellants did not join proceedings before the Labour Court, hence, the grievance petition was accepted vide judgment dated 20.11.2012 and the respondent was reinstated into service. The judgment of the Labour Court was upheld by the Labour Appellate Tribunal vide judgment dated 02.01.2014. Being aggrieved, the appellants filed Constitution Petition No. 136/2014 before the High Court of Balochistan against the concurrent findings but the same was dismissed vide impugned judgment dated 25.09.2018. The appellants then filed CPLA 4630/2018 before this Court wherein leave to appeal was granted by this Court vide order dated 08.05.2020, out of which the present appeal has arisen. The appeal was heard on 18.12.2020 and it was ordered to be allowed. However, before the order could be signed, it was found that certain aspects of the matter were not properly assisted, therefore, the matter was fixed for re-hearing to address the following law points for determination:- “(a) Whether a postman is a civil servant in terms of Section 2(b) of the Civil Servants Act, 1973, entitling him to avail remedy before the Service Tribunal? (b) Whether the respondent is a workman, if so, under which law he will have remedy i.e. the Balochistan Industrial Relations Act, 2010 or the Industrial Relations Act, 2012, which provides for its application to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province? (c) Whether the respondent had any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force, for violation of which the grievance petition could be filed by him in the Labour forum? (d) Whether the Industrial Relations Act, 2012, where it has been applied to workmen employed in Postal Service will override the provisions of the Balochistan Industrial Relations Act, 2010 or even Section 1(4)(b) of the Act of 2010? And Civil Appeal No. 508/2020 4 (e) Whether Section 1(4)(b) ibid in so for as it deals with the workmen of Pakistan Post, has become ultra vires the Constitution and the Act of 2012?” 3. To assist on the above noted questions of law raised, we had appointed Hafiz Muhammad Tariq Nasim, learned ASC, as amicus curiae. While opening his arguments, learned amicus curiae read various provisions of law including Section 2(1)(n) and clause ‘xiii’ of Schedule-II of the Workmen’s Compensation Act, 1923 and also Section 2(1)(b)(iii) of the Civil Servants Act, 1973 to contend that the postman does not fall within the definition of ‘civil servant’ as he is ousted from the definition of civil servant, rather keeping in view the nature of duties performed by the postman in view of the definition of ‘workman’, he fully qualifies to be considered as workman; that the Pakistan Post is a trans- provincial department having its offices in each Province and also in the Federal Capital, therefore, the provisions of Industrial Relations Act, 2012, will be applicable on the respondent postman and for redressal of any grievance, the right forum would be National Industrial Relations Commission (NIRC) as per the domain of the said Act of 2012; that being a trans-provincial authority, the workmen of Pakistan Post are to be dealt with by the Industrial Relations Act, 2012 and Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010 is subservient to the provisions of Industrial Relations Act, 2012, as far as the workmen of Pakistan Post are concerned and the same is ultra vires of the Constitution of Islamic Republic of Pakistan; that according to proviso to Section 1(4)(c) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it shall not apply to Industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government where statutory rules of service are applicable to the workmen but as the postman is not subject of Civil Servants Act, therefore, the Standing Orders Ordinance, 1968, is applicable to the respondent postman. 4. Learned Deputy Attorney General adopted the arguments of learned amicus curiae so far as the applicability of law is concerned, however, differed on sole point that the postman Civil Appeal No. 508/2020 5 is a workman. He added that after the exclusion of the Telegraph department from the definition of the workman in Schedule-II of the Workmen’s Compensation Act, 1923 since its abolition, the respondent is no more a workman. He also added that the job description of a postman is multi dimensional and he can be transferred to an indoor job, working in a room etc, therefore, on this score alone he cannot be considered a workman. 5. Learned counsel for the respondent No.1 mainly contended that the respondent is not a civil servant and the Civil Servant (Efficiency & Discipline) Rules, 1973 are not applicable to him, rather the Standing Orders Ordinance, 1968 applies to him, therefore, the respondent was fully justified to file grievance petition before the Labour Court. She further argued that this aspect of the case was fully attended to by the courts below and there are concurrent findings on this aspect, which makes it as a close transaction. 6. We have heard the arguments of the learned amicus curiae, learned Law Officer and the learned counsel for the respondent at length and have perused the relevant law. 7. Before proceeding with the case, it would be in order to discuss as to what is the job description of a postman. The main job duty of a postman is to sort mail on a sorting frame, getting it into address order, operate automated equipment, deliver mail on foot, by a bicycle/motorcycle or by van, get customer signatures for registered post and recorded deliveries, pick up mail from post boxes, post offices and businesses and deal with wrongly addressed or returned mail. Although, a postman performs indoor work but the main work of a postman relates to outdoor. Now we will deal with the question of foremost importance, whether the respondent is a civil servant in terms of Section 2(1)(b) of the Civil Servants Act, 1973 entitling him to avail remedy before the Service Tribunal, if falls within the ambit of a civil servant as contained in the Act. It is not disputed that the Service Tribunals Act, 1973, applies to all “civil servants” wherever they may be and it has exclusive jurisdiction in respect of matters relating to the terms and conditions of service of ‘civil servants’ including disciplinary matters. The term “civil servant” includes a person who is or has Civil Appeal No. 508/2020 6 been a civil servant within the meaning of the Civil Servants Act, 1973, so we will have to see as to what the term ‘civil servant’ means under the Civil Servants Act, 1973. It reads as under: - 2. Definitions.-(1)(b) "civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include– (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charge basis or who is paid from contingencies; or (iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923); 8. The plain reading of the above-referred definition of ‘civil servant’ brings us to the conclusion that a civil servant is one whose characteristics/qualifications are given in sub clause (b) above and the Civil Servants Act, 1973 applies to all “civil servants” wherever they may be but sub clause ‘iii’ excludes a person who is a "worker" as defined in the Factories Act, 1934 or "workman" as defined in the Workman’s Compensation Act, 1923. In the instant case sub-clauses (i)(ii) are not relevant as the respondent postman is neither a contract employee nor on deputation and, therefore, sub-clause ‘iii’ would be applicable. Now, we would find out as to whether the respondent postman is a ‘worker’ or a ‘workman’. The term “worker” as defined in the Factories Act, 1934 is as under: - “2. Definitions.- (h) "worker" means a person employed directly or through an agency whether for wages or not in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on"; Civil Appeal No. 508/2020 7 8. From the above definition, it is clear that the postman does not fall within the definition of “worker” as defined in Section 2(h) of the Factories Act, 1934. Now we will consider the term “workman” as defined in the in the Workman’s Compensation Act, 1923, which reads as under: - 2. (1)(n) “workman” means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer’s trade or business) who is– (i) … … , or (ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of naval, military or air forces; and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them. The relevant portions of Schedule II thereof read as under: - SCHEDULE II [See section 2(1)(n)] LIST OF PERSONS WHO, SUBJECT TO THE PROVISIONS OF SECTION 2(1)(n), ARE INCLUDED IN THE DEFINITION OF WORKMEN The following persons are workmen within the meaning of section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is– (xiii) employed as an inspector, mail guard, sorter or van peon in the Railway Mail Service, or employed in any occupation ordinarily involving outdoor work in the Posts and Telegraphs Department; 9. The term “workman”, as defined in Section 2(1)(n) read with Second Schedule of the Workman’s Compensation Act, 1923, includes any person who is employed in any occupation ordinarily involving outdoor work in the ‘Posts and Telegraphs Department’, meaning thereby that such person will be excluded Civil Appeal No. 508/2020 8 from the definition of “civil servant” and the Service Tribunal shall not have jurisdiction in respect of such person. It is important to consider the evolution of the Post and Telegraphs Department. The Post Office Department is one of the oldest departments of the Sub-Continent working under the Post Office Act, 1898. After the independence of Pakistan in 1947, the Post Office started functioning as the Department of Posts & Telegraph in the Ministry of Communications. In 1962, the Pakistan Post was separated from the Pakistan Telephone & Telegraph Department and started working as an independent attached department under the Ministry of Communications. Later on, the Pakistan Post was separated from the Ministry of Communications and was made an independent Corporation under the Ministry of Postal Services. As a result of reforms introduced in Civil Services structure in the year 1972, the Postal Group was formed. The Post Office Department provides postal and financial services to the people. It also performs other functions which inter-alia include (1) Post Office Savings Bank, (2) Postal Life Insurance, (3) Civil & Military Pension Payments, (4) Collection of Utility Bills, (5) Renewal of Driving and Arms Licences, (6) Issuing PTV Licence, etc. Later, an autonomous High Powered Postal Services Management Board was established through Pakistan Postal Services Management Board Ordinance, 2002. Under the Rules of Business, 1973, as per Serial No.27 of list of Ministries and Divisions provided in the Schedule under Rule 3(1) thereof, ‘the Postal Service Division’ falls under ‘the Ministry of Postal Service’. As per Entry No.31A of the Schedule II under Rule 3(3) thereof, which provides ‘Distribution of Business among the Divisions’, the Postal Service Division has been mandated to deal with the business of ‘Posts, including Saving Bank and Postal Life Insurance’ and ‘Agency functions on behalf of other Divisions such as military pensions, etc.’. As per Entry No.70 of the Schedule III under the Rule 4(4) thereof, ‘Pakistan Post Office Department’ has been declared as an attached Department of ‘Postal Services Division’. Now the question remains whether, in view of the changed status of ‘Posts and Telegraphs Department’, a person employed in any occupation ordinarily involving outdoor work in Civil Appeal No. 508/2020 9 the Posts would be excluded from the definition of “civil servant” provided in Section 2(1)(b)(iii) of the Civil Servants Act, 1973, bringing such person out of the jurisdiction of the Service Tribunal in terms of the Civil Servants Act, 1973, or in the changed circumstances, a person involving outdoor work (which includes a postman) working in the Pakistan Post Office under the Postal Services Division, which is an attached Division of Ministry of Postal Services, is still subject to the jurisdiction of the Service Tribunal. In this regard, it would be appropriate to consider the objects and purposes of the Civil Servants Act, 1973 as well as the Workmen’s Compensation Act, 1923. The object of the Civil Servants Act, 1973 as mentioned therein is “to regulate the appointment of persons to, and the terms and conditions of Service of persons in, the service of Pakistan”. The preamble thereto provides that “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, and to provide for matters connected therewith or ancillary thereto”. Whereas, the object of the Workmen’s Compensation Act, 1923, as provided therein, is to “provide for the payment by certain classes of employers to their workmen of compensation for injury by accident”. Likewise, the preamble of the Workmen’s Compensation Act, 1923 provides that “Whereas it is expedient to provide for the payment by certain classes of employers to their workmen of compensation for injury by accident”. In the ‘Statement of Objects and Reasons’ given at the time of enacting the Workman’s Compensation Act, 1923 it was stated, inter alia, that “the growing complexity of industry in this country, with the increasing use of machinery and consequent danger to workmen, along with the comparative poverty of the workmen themselves, renders it advisable that they should be protected, as far as possible from hardship arising from accidents. The general principle is that the compensation should ordinarily be given to workmen who sustained personal injuries by accidents arising out of and in the course of their employment, which directly relates to nature eof job assigned to them. Compensation will also be given in certain limited circumstances for disease. The actual rates of Civil Appeal No. 508/2020 10 compensation payable are based on the unanimous recommendation of the committee …”. Thus, the objects of both the laws are different, in that, the object of the Civil Servants Act, 1973 is to regulate the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan and the object of the Workmen’s Compensation Act, 1923, is to protect the workman, as far as possible, from hardship arising from accidents and provide for the payment by certain classes of employers to their workmen of compensation for injury by accident as they are exposed due to description of job. The definition of one law may not be relevant for the purpose of other law but as the definition of workman has been borrowed by the Civil Servants Act, 1973 from the Workmen’s Compensation Act, 1923, it would have same meaning as given in the Workmen’s Compensation Act, 1923. As mentioned above, the Postal Department was established under the Post Office Act, 1898. Later, an autonomous High Powered Postal Services Management Board was established through Pakistan Postal Services Management Board Ordinance, 2002. However, Section 29 of the Pakistan Postal Services Management Board Ordinance, 2002 provides, inter alia, that nothing in the said Ordinance shall derogate/affect the provision of the Post Office Act, 1898. The Post Office Act, 1898 having remained in force and the Pakistan Post Office being functioning under the Act of 1898, notwithstanding the fact that the Post Office is an attached Department of Postal Service Division working under the Ministry of Postal Services, the employees of Post Office employed in any occupation ordinarily involving outdoor work shall remain included in the term “workman” as defined in the Workman’s Compensation Act, 1923 and are excluded from the term “civil servant” as defined in the Civil Servants Act, 1973. It would be in fitness of things to refer to a judgment of this Court in the case of Muhammad Mubeen-us- Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602) wherein it has been held as under: - “37. Thus, in view of ratio decidendi of the above judgments, it can be held that a worker or a workman Civil Appeal No. 508/2020 11 as defined in Factories Act, 1934 or the Workmen's Compensation Act, 1923, notwithstanding the fact that the controlling share in the industry vests in the Federal Government, shall not be treated as civil servant. Similarly, persons on contract, even though discharging their functions in connection with the affairs of the Federation and likewise, as well as the deputationists from the Provinces to the Federal Government have not been granted protection of CSA, 1973, therefore, they were excluded from the definition of `civil servant' and as per terms and conditions of the person of later category, laid down in CSA, 1973 they shall not be entitled to approach the Service Tribunal, established under Article 212 of the Constitution. It may be noted that this Court in the case of Qazi With Muhammad (ibid), has crystallized the proposition, leaving no ambiguity in respect of `civil servant' or other persons, as per section 2(1)(b)(i), (ii) and (iii) of the CSA, 1973 to avail remedy before the Service Tribunal in respect of their terms and conditions, being in the service of Pakistan, including disciplinary matters, as per the mandate of Article 212(1) of the Constitution. (Underlined to lay emphasis) 10. Now, we will advert to the questions (i) whether the respondent is a workman, if so, under which law he will have remedy, i.e., the Balochistan Industrial Relations Act, 2010 or the Industrial Relations Act, 2012, (ii) whether the Industrial Relations Act, 2012, where it has been applied to workmen employed in Postal Service will override the provisions of the Balochistan Industrial Relations Act, 2010 or even Section 1(4)(b) of the Act of 2010, and (iii) Whether Section 1(4)(b) of Balochistan Industrial Relations Act, 2010 in so far as it deals with the workmen of Pakistan Post has become ultra vires of the Constitution and the Industrial Relations Act, 2012. To resolve these questions, we will firstly examine Section 1 of the Industrial Relations Act, 2012, which reads as under: - “1. Short title, extent, application and commencement.—(1) This Act may be called the Industrial Relations Act, 2012. (2) Subject to sub-section (3), it extends to the whole of Pakistan. (3) It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Civil Appeal No. 508/2020 12 Territory or carrying on business in more than one province, but shall not apply to any person employed,-- (a) in the Police or any of the Defence Services of Pakistan or any services or installations exclusively connected with the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government; (b) in the administration of the State other than those employed as workmen; (c) as a member of the Security Staff of the Pakistan International Airlines Corporation or drawing wages in pay group not lower than Group V in the establishment of that Corporation as the Federal Government may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf; (d) by the Pakistan Security Printing Corporation or the Security Papers Limited; and (e) by an establishment or institution for the treatment or care of sick, infirm, destitute or mentally unfit persons excluding those run on commercial basis. (4) It shall come into force at once. 11. From the perusal of above provision, it is clear that the Industrial Relations Act, 2012 is applicable to all persons employed in any ‘establishment’ or ‘industry’, in the Islamabad Capital Territory or any trans-provincial authority carrying on business ‘in more than one province’ but shall not apply to any person inter alia employed in the administration of the State, other than those employed as ‘workmen’. Prior to Industrial Relations Act, 2012, Section 1(3)(b) of the Industrial Relations Ordinance, 2008, provided that it shall not apply to any person employed “in the administration of the State other than those employed as workmen by the Railway and Pakistan Post”. In Section 1(3)(b) of the Industrial Relations Act, 2012, the words “by the Railway and Pakistan Post” have been deleted, therefore, now all the persons in the administration of the State employed as workmen have Civil Appeal No. 508/2020 13 been made subject to Industrial Relations Act, 2012, instead of only workmen of Railway and Pakistan Post. The terms “establishment” and “industry” as defined in Industrial Relations Act, 2012 read as under: - 2. (x) “establishment” means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places and except in Section 62 includes a collective bargaining unit, if any, constituted by any establishment or group of establishments; (xvii) “industry” includes any business, trade, calling, employment or occupation for production of goods or provisions of services in the Islamabad Capital Territory and falling in more than province, and excluding those set up exclusively for charitable purposes; 12. The “Pakistan Post Office Department” is an Attached Department of “Postal Services Division” which falls under the “Ministry of Postal Services” in terms of the Rules of Business, 1973, therefore, the employees of Pakistan Post Office Department, being employed in the administration of the State are excluded from the operation of Industrial Relations Act, 2012. However, only those employees of Post Office are subject to the Industrial Relations Act, 2012 who are employed as workmen. The term ‘workman’ has been defined in Industrial Relations Act, 2012, as under: - (xxxiii) “worker” and “workman” mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment are express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is Civil Appeal No. 508/2020 14 employed mainly in managerial or administrative capacity. 13. Thus a “workman” means a person not falling within the definition of employer who is employed in an establishment or industry for hire or reward either directly or through a contractor. The Postman does not fall within the definition of employer, therefore, it is included in the definition of workman and is subject to the Industrial Relations Act, 2012. As per Section 33 of the Industrial Relations Act, 2012 a ‘worker’ may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises. Under Section 54(h) of the Industrial Relations Act, 2012, the functions of the Commission include, to deal with cases of individual grievance in the manners prescribed in Section 33. Now we shall consider the relevant provisions of the Balochistan Industrial Relations Act, 2010. Section 1 thereof reads as under: - 1. Short title, extent, application and commencement.- (1) This Bill may be called the Balochistan Industrial Relations Act, 2010. (2) It extends to the whole of Balochistan excluding tribal areas. (3) It shall come into force at once. (4) It shall apply to all persons employed in any establishment or industry to the extent of Balochistan, but shall not apply to any person employed- (a) in the Police or any of the Defense Services of Pakistan or any services or installations exclusively connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government except those run on commercial basis; (b) in the administration of the State other than those employed as workmen by the Railway and Pakistan Post; (c) …………… Civil Appeal No. 508/2020 15 (d) …………… 14. From the perusal of Section 1(4) above, it is clear that the Balochistan Industrial Relations Act, 2010 shall apply to all persons employed in any establishment or industry to the extent of Balochistan only, but shall not apply to any person employed in the administration of the State other than those employed as workmen by the Railway and Pakistan Post. Under Section 2(dd) of the Balochistan Industrial Relations Act, 2010, “worker” and “workman” have been defined in almost similar terms as defined in the Industrial Relations Act, 2012. As noted above, Industrial Relations Act, 2012 is applicable to all persons employed in any establishment or industry, in the Islamabad Capital Territory or to any other establishment or industry, which being trans-provincial is carrying on business in more than one province, whereas, the Balochistan Industrial Relations Act, 2010 shall apply to all persons employed in any establishment or industry to the extent of province of Balochistan. The Pakistan Post Office Department is managed by the Pakistan Postal Services Management Board established under the Pakistan Postal Services Management Board Ordinance, 2002, and rendering services not only in the Islamabad Capital Territory but also in all the four Provinces, therefore, it is squarely covered by Section 1(3) of the Industrial Relations Act, 2012. Section 54(i) of the Industrial Relations Act, 2012, specifically provides that it shall be the function of the Commission “to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial”. As by virtue of Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, applicability of provincial statute extends to trans-provincial department i.e. Post Office, therefore, it is inconsistent with the Federal Legislation i.e. Industrial Relations Act, 2012, wherein the Preamble, Section 2(xxxiii) as well as Section 54(i) deals with the trans-provincial matters. Entry No. 13 of Part II of Federal Legislative List empowers the Parliament to enact on any matter which is related to inter-provincial matters and co-ordination, however, while enacting Section 1(4)(b) of the Balochistan Civil Appeal No. 508/2020 16 Industrial Relations Act, 2010, the Provincial Legislature went beyond its competence/power to enact. Article 142 of the Constitution is very important, which commands that “Majilis-e- Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List”. This Court in the case of Sui Southern Gas Company Vs. Federation of Pakistan (2018 SCMR 802) has candidly held that “under the command of Entry No. 13 in Part-II of the Federal Legislative List, the Federation has competence to enact laws relating to inter- provincial matters, Entry No. 18 thereof further enlarges the scope of said entry, therefore, the Federal Legislature has legislative competence to legislate in this regard.” In such a situation, Article 143 of the Constitution of Islamic Republic of Pakistan, 1973, also becomes relevant. For the ease of reference, it reads as under:- “143. If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.” 15. Article 143 of the Constitution envisages that in the event of provision of a statute being repugnant to Federal Statute, provision contained in the latter would prevail and provision of Provincial Statute to the extent of repugnancy would be void. From the combined reading of Section 1(3) of the Industrial Relations Act, 2012, Section 1(4) of the Balochistan Industrial Relations Act, 2010 and Article 143 of the Constitution, it is clear that Section 1(3) of the Industrial Relations Act, 2012, where it has been applied to workmen employed in the administration of the State (which includes the Postal Service Department) will override the provisions of Section 1(4)(b) the Balochistan Industrial Relations Act, 2010. This Court in the case of PTCL Vs. Member NIRC (2014 SCMR 535) has held that provisions of Industrial Relations Act, 2012, have overriding effect on all provincial labours laws. It would be in order to reproduce the relevant portion of the judgment, which reads as under:- Civil Appeal No. 508/2020 17 “13. Even otherwise under the provision of Article 143 of the Constitution of Pakistan, 1973, laws enacted by the Parliament have been given overriding and superimposing effects over the laws enacted by a Provincial Assembly of any of the Provinces and in case of any clash or repugnancy between the two, the laws enacted by the Parliament shall prevail. Thus, on the touchstone of the provision of Article 143 of the Constitution, the Act of Parliament has been placed on the high pedestal and any Provincial Law enacted by the Provincial Assembly shall give way to the Federal Law, enacted by the Parliament, if the former is inconsistent or repugnant to the latter. Therefore, it is held that the provision of Act X of 2012 (the IRA 2012) has overriding effect on all Provincial Labour Laws. Judged from this angle, we are of the firm view that in the present case, the learned Judge in Chamber of the Lahore High Court, Lahore while drawing the impugned judgment dated 26-11-2012 could not properly comprehend the intents and objects of the above provisions of law, rather misconstrued and misinterpreted the same, resulting into miscarriage of justice, the impugned judgment being not sustainable in the eye of law is liable to be set at naught.” (Underlined to lay emphasis) 16. This Court in the case of Federal Government Employees Housing Foundation Vs. Ghulam Mustafa (2021 SCMR 201) while dealing with the similar question candidly held that “where legislative instruments in competition, one promulgated by the Federal and the other by the Provincial legislature, or any provisions contained therein, are pitched against each other, the test to determine the legislative supremacy or dominance is comparatively simple and provided by Article 141 and Article 142 of the Constitution, 1973 which clearly demarcates the legislative edges, competency and supremacy test. In case of conflict between Federal and Provincial enactments, privilege of overriding supremacy is conceded to the Parliament/Federal legislature under Article 143.” Thus, we have no doubt in holding that the workmen of the Post Office Department are subject to the Industrial Relations Act, 2012 and not the Balochistan Industrial Relations Act, 2010. In view of the above finding, Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, insofar as it deals Civil Appeal No. 508/2020 18 with the workmen of Pakistan Post, is repugnant and void in terms of Article 143 of the Constitution and the Industrial Relations Act, 2012. 17. Finally, the question which remains to be seen is whether the respondent had any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force for violation of which the grievance petition could be filed by him in the labour court. A broad survey of the Industrial Relations Act, 2012, reveals that it specifically lays down a condition to agitate grievance before the labour court if a guaranteed or secured right of a workman under law or any award or settlement is violated. The first proviso to Section 1 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, specifically bars its application to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government where statutory rules of service, conduct or discipline are applicable to the workmen employed therein. Undeniably, the Postal Services Department is an attached department of Postal Services Division, which falls under the Ministry of Postal Services in terms of the Rules of Business, 1973, and is managed and controlled by the Federal Government and as such the employees of the Post Office are governed by Civil Servants (Efficiency and Discipline) Rules. Though the respondent postman was proceeded under the said Civil Servants (Efficiency and Discipline) Rules, which are statutory in nature, however, it would not be hit by the above-said proviso of Standing Orders Ordinance, 1968, as the said Rules are promulgated under Section 25(1) of the Civil Servants Act, 1973, which authorizes the President or any other person authorized by him in this behalf to make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act and we have already held in the preceding paragraphs that the postman being a workman, he is excluded from the definition of a civil servant. Hence, the Rules framed under the Civil Servants Act, 1973, would not be applicable to workman/postman and the Standing Orders Ordinance, 1968 is applicable on the workman/postman. Reliance is placed on Civil Appeal No. 508/2020 19 Pakistan Post Office Vs. Nadeem Ahmed Khan (1995 PLC (Labour) 205). 18. For what has been discussed above, the appeal is allowed and the impugned judgment dated 25.08.2018 is accordingly set aside by holding and declaring as under:- (i) The postman is not a civil servant rather he is a workman and remedy for redressal of his grievance lies before the National Industrial Relations Commission; (ii) The postman has a guaranteed right under Standing Orders Ordinance, 1968; (iii) The Industrial Relations Act, 2012, will override Balochistan Industrial Relations Act, 2010, therefore, Section 1(4)(b) of the Balochistan Industrial Relations Act, 2010, to the extent as it deals with the workmen/employees of Pakistan Post, being a trans-provincial subject/entity is declared repugnant and void in terms of Article 143 of the Constitution of the Islamic Republic of Pakistan, 1973, being the sole and exclusive prerogative of the Federal Legislature to enact laws falling in the Federal Legislative List. CHIEF JUSTICE JUDGE JUDGE Islamabad, Announced on 07.12.2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HACJ MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE KHILJI ARIF HUSSAIN Civil Appeals No. 510, 934/2012, 1247/2014 & 509/2006 (Against the judgment dated 9.2.2005, 23.10.2009, 9.3.2012 and 1.9.2014 of the Lahore High Court Lahore, Lahore High Court Rawalpindi Bench, Peshawar High Court Peshawar and Lahore High Court Lahore passed in C.R. Nos.1274/1998, 87/1998, 91/2000 and 405/2000, respectively) Ghulam Qadir, etc. (in C.A. 510/2012) Ayas Khan. (in C.A. 934/2012) Akhtar Pervez Sethi, etc. (in C.A. 1247/2014) Jan Muhammad through Attorney Muhammad Khan. (in C.A. 509/2006) Appellant(s) Versus Sh. Abdul Wadood, etc. (in C.A. 510/2012) Muslim Khan (decd.) through L.Rs., etc. (in C.A. 934/2012) Abdul Shakoor, etc. (in C.A. 1247/2014) Ghulam Ali (decd.) through L.Rs., etc. (in C.A. 509/2006) Respondent(s) For the Appellant(s): In C.A. 510/2012: Mr. Mujeeb ur Rehman, ASC In C.A. 934/2012: Mr. Niaz Wali Khan, ASC In C.A. 1247/2014: Mr. Gulzarin Kiyani, Sr. ASC In C.A. 509/2006: Nemo For the Respondent(s): In C.A. 510/2012: Mr. Gulzarin Kiyani, Sr. ASC Mr. Muhammad Munir Peracha, ASC In C.A. 934/2012: Nemo In C.A. 1247/2014: Mr. Muhammad Bashir Malik, ASC In C.A. 509/2006: Ex-parte Amicus Curiae: Syed Najam-ul-Hassan Kazmi, Sr. ASC Date of Hearing: 28.04.2016. … Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 2 - JUDGMENT MIAN SAQIB NISAR, ACJ.- These appeals, by leave of the Court, are being disposed of together as they involve the same legal question as to whether a civil revision filed under Section 115 of the Code of Civil Procedure, 1908 (CPC) once admitted to regular hearing can be dismissed for non-prosecution or not. Since the above proposition is common to all the matters, we intend to resolve the same before deciding the individual cases on their own merits. 2. The learned counsel for the parties have argued extensively for and against the proposition; their arguments and law cited in support thereof are summarized herein below. Their pleas/counter-pleas and the submissions of the learned amicus curiae are reflected in the reasons of this opinion. The learned counsels who are against dismissal of a civil revision once it has been admitted to regular hearing have argued that the jurisdiction of the revisional court is supervisory in nature and when the court has once taken cognizance of an error of jurisdiction or material irregularity or illegality in the decision challenged in revision it becomes the beholden duty of the court to decide the matter on merits in order to correct such error. Reliance was placed upon the judgments reported as Muhammad Sadiq Vs. Mst. Bashiran and 9 others (PLD 2000 SC 820), Muhammad Yousaf and others Vs. Mst. Najma Bibi and others (PLD 2006 SC 512), Rasheed Hussain Malik and another Vs. Mst. Hanifa Bai and others (2008 SCMR 1027) and Mandi Hassan alias Mehdi Hussain and another Vs. Muhammad Arif (PLD 2015 SC 137). Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 3 - 3. The contentions of the learned counsel in favour of dismissal of a civil revision for non-prosecution even after it has been admitted regular hearing may be summarized as :- (i) A civil revision is dismissed for non-prosecution and/or restored under the inherent power of the court and not under a specific rule of the CPC; (ii) When the revisional jurisdiction is exercised at the behest of a party, the revisional proceedings are akin to any other adversarial litigation between the parties and when the instigator fails to pursue the matter, it has to be dismissed for non-prosecution. But where the court itself calls for the record to examine any error contemplated by Section 115 of the CPC the matter should be disposed of on merits and not on account of the non-appearance of the party(ies); (iii) The revisional court cannot be saddled with the duty to decide the matter on merits despite non-appearance of instigating party. An indolent/delinquent party should not be allowed a premium for his own acts/omissions to the prejudice of the other side. In support of the above, reliance was placed upon Abdul Rashid Vs. Mst. Saeeda Begum and another (1994 SCMR 1888), V.R. Mall Vs. Sh. Muhammad Yusuf and another (PLD 1975 Lah 825), Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat (AIR 1970 SC 1) and Dhondiba Appasaheb and another Vs. Wasudeo Anant Sherlekar and another (AIR 1957 Nag 83). 4. The crux of the arguments of the learned amicus curiae was that there cannot be an absolute rule that a revision petition can or cannot be dismissed for non-prosecution, instead it would depend on the facts and circumstances of each case. He argued that as there is no Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 4 - corresponding provision to Order 41 Rule 9 of the CPC (admission of an appeal) in terms of admission of a civil revision, therefore mere admission does not necessarily imply that the revisional court has decided to examine and rectify an error in the impugned judgment/order. But where the court after examining the record opines in its admitting note that there is a prima facie case for exercise of revisional powers then the court should decide the case on merits rather than disposing of the same for non- prosecution. He relied upon the cases reported as Jan Muhammad Vs. Muhammad Asghar (PLD 1981 SC 513), Babii Vs. Mst. Niaz Bibi (PLD 1982 Lah 192), Umar Khan Vs. Nasim Raza and others (1990 MLD 1062), British India Navigation Company and another Vs. National Security Insurance Company Ltd. (1985 CLC 1799), Muhammad Arab and 2 others Vs. Jaffery Muhammad Hassan (1983 CLC 335), Farman Ali Vs. Muhammad Yousuf Ali (1990 CLC 1936), Muhammad Suleman Vs. Wilayatullah Khan and 2 others (1990 CLC 110), S. M. Abdullah & Sons Vs. Pakistan Mercantile Corporation Ltd. & another (PLJ 1977 Kar 190), Musharraf Sultana Vs. Fazal Hussain and 9 others (1992 CLC 1394), Abdul Rashid’s case (supra), Province of Punjab through District Officer Revenue, Rawalpindi and others Vs. Muhammad Sarwar (2014 SCMR 1358), Hafeez Ahmad and others Vs. Civil Judge, Lahore and others (PLD 2012 SC 400), Mandi Hassan’s case (supra), Federal Government of Pakistan and another Vs. Khurshid Zaman Khan and others (1999 SCMR 1007), Muhammad Swaleh and another Vs. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97), Khan Bahadur’s case (supra), Muhammad Sadiq’s case (supra), Mst. Rabia Bibi and others Vs. Ghulam Rasool and others (2004 SCMR 394), Farzand Ali and another Vs. Muhammad Rafique (2013 CLC 976), Government of NWFP through Chief Secretary and 3 others Vs. Abdul Malik (1994 Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 5 - SCMR 833), Noor Akbar through Sardaran Mai and others Vs. Mst. Gullan Bibi (2005 SCMR 733), Hakeem Abdul Wahab Shirazi Vs. Tariq Hussain and 2 others (1989 SCMR 699), Hisaria Plastic Products, Kanpur Vs. Commissioner of Sales Tax, U.P., Lucknow (AIR 1982 All 185) and Jaswinder Kaur and others Vs. Jatinder Pal Singh etc. (58 (1995) DLT 155). 5. Before proceeding further to examine the proposition we find it expedient to reproduce the provisions of Section 115 of the CPC which read as follows:- “115. Revision.—(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court, Provided that such application shall be made within ninety days of the decision of the Subordinate Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 6 - Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months. (2) The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under sub- section (2) by the District Court.” 6. A comparison of appeals and revisions will serve to show why civil revisions can be dismissed for non-prosecution even after being admitted to regular hearing. They are simply two types of remedies available to persons aggrieved of a judgment/order. An appeal is the recourse adopted by a person to a superior court vested with the jurisdiction to reconsider a decision of a subordinate court, with the aim of attaining a reversal/modification of such decision. An appeal is not merely a matter of procedure but a substantive right. It is the continuation of a suit and during appellate proceedings the entire matter stands reopened. The jurisdiction of an appellate court can be invoked by a person who believes that the subordinate court has erred in law or in fact whilst passing the judgment/order under appeal. On the other hand a Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 7 - revision also involves an exercise of reconsideration/re-examination of the judgment/order of a subordinate court but only to the extent that it falls squarely within the parameters of Section 115 of the CPC. Although the matter of revision is not a mere privilege afforded to the aggrieved person but also a right this revisional power remains discretionary. The function of the revisional court is to ensure the proper administration of justice through the proper exercise of jurisdiction, procedural accuracy, correctness of the decision and legality thereof by the subordinate court. If the revisional court is satisfied that the subordinate court has not erred in this regard and the decision is sound in law, then it will not reverse or modify the decision solely on the basis that the subordinate court could have reached a different conclusion on merits. 7. The scope of an appeal is much wider and being available as of right, it stands on a higher pedestal than a revision petition. How then is it conceivable that an appeal can be dismissed for non-prosecution even after being admitted to regular hearing, but not a revision, as contended by the learned counsels advocating against such dismissal(s) of revision petitions? We are not persuaded by the argument that because the jurisdiction exercised under Section 115 of the CPC is supervisory, therefore once the (revision) petitioner has brought the matter to the notice of the court and it has been admitted to regular hearing, it is thereafter between the superior court and the subordinate court, and the petitioner has no role to play whatsoever. In fact, the admission of a civil revision petition is analogous to a leave granting order of this Court which means that there is a point(s) which needs consideration and if the appellant does not appear after leave is granted, it (appeal) can be dismissed for non- prosecution and not necessarily on merits. The same reasoning applies to civil revisions. Supervisory jurisdiction does not mean that the revisional Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 8 - court cannot dismiss a civil revision for non-prosecution. For that matter, the appellate jurisdiction also forms part of the supervisory jurisdiction of the court but it is not the case that appeals cannot be dismissed for non- prosecution. Order XLI Rule 17 allows the appellate court to dismiss an appeal for non-prosecution and Rule 19 of the same order provides for re- admission of an appeal dismissed under Rule 17 ibid subject to the appellant showing “sufficient cause” for non-appearance. There are no corresponding provisions regarding civil revisions. Nonetheless there is no bar whatsoever contained in the positive law, i.e. CPC, preventing the revisional court from dismissing a civil revision for non-prosecution. The revisional court can regulate admission, dismissal for non-prosecution and restoration thereof in the same manner as the trial (see Order IX Rules 8 and 9 of the CPC which provides for dismissal for non-prosecution and restoration thereof, respectively) and appellate courts do, by virtue of its (revisional court) inherent powers under Section 151 of the CPC, as has been held by this Court in numerous judgments, including Mandi Hassan’s case (supra) and Karamat Hussain and others Vs. Muhammad Zaman and others (PLD 1987 SC 139). Even otherwise, as held in Abdul Rashid’s case (supra), as per Section 141 of the CPC which provides that “the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction”, the revisional court can follow the procedure(s) provided in Order IX, Rules 8 and 9 ibid which pertain to (dismissal for non-prosecution and restoration of) suits, for the regulation of its own revisional jurisdiction. 8. As held in various judgments of this Court, there are two aspects to the jurisdiction of the revisional court, firstly, where the revisional court itself takes cognizance of a matter while exercising its suo motu powers under Section 115(1) of the CPC, and secondly, where a Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 9 - person brings the matter to the notice of the revisional court under the first proviso to Section 115(1) ibid. This bifurcation is significant. The matter is only between the revisional court and the subordinate court when the court itself invokes its revisional jurisdiction. However in the second instance, it is essentially adversarial litigation and in that eventuality, although the court is still acting in its supervisory jurisdiction, the revision can certainly be dismissed for non-prosecution. To hold otherwise would be incorrect for several reasons. Firstly, it would lead to the absurd situation where a person having once invoked the revisional jurisdiction of the court by filing a civil revision subsequently admitted to regular hearing, would be unable to withdraw such revision. Besides, it would negate the very purpose and mandate of the first proviso to Section 115(1) of the CPC under which any person can file a revision application. On the basis of this reasoning, revisional courts would not be able to dismiss revision petitions rendered infructuous in light of a compromise entered into between the parties. Secondly, such an interpretation presumes the provisions of Section 115 of the CPC, which employ the word “may”, are mandatory thereby reading into the statute something which is not there which (exercise) in turn is impermissible. Thirdly, it would render superfluous the centuries-tested legal maxim vigilantibus non dormientibus subvenit lex, meaning that law aids the vigilant, not the indolent. The revisional court should only exercise its discretion in favour of those who conscientiously pursue their rights and not those who sleep over them which conduct would indubitably disentitle such persons to discretionary relief. The revisional court should not be compelled to decide a civil revision on merits in the absence of either party(ies) just because it has been admitted to regular hearing. The court should not be rendered a slave to a person who files a revision petition Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 10 - and subsequently chooses not to appear before the revisional court due to disinterest or ignorance/indolence, and neither should such person be awarded a premium/privilege in this regard, as this would result in (possible) injustice to the contesting party. Adopting such a course would inevitably result in an undesirable increase in the caseload of the (overburdened) courts as numerous revision petitions would remain pending. The courts must consider the competing interests of both parties in the light of the principles of proportionality and balancing. Dismissing a revision petition due to non-appearance of the petitioner(s) is a clear manifestation of the act of balancing by the revisional court in performance of its judicial and discretionary functions. The dismissal can always be challenged by the petitioner subject to him establishing “sufficient cause” for his (or his counsel’s) non-appearance on the date his case was dismissed for non-prosecution. The revisional court in exercise of its inherent jurisdiction may restore the petition. 9. We now attend to the case law which the learned counsel stated to be directly on point. In Muhammad Sadiq’s case (supra) while refusing leave to appeal this Court held as under:- “5. At the very outset it may be observed that dismissal of a civil revision after its admission by the Court seized with it for non-prosecution is not legally well-recognized for the reason that jurisdiction of a revisional Court under section 115, C.P.C. is invoked by an aggrieved person to point out illegalities or irregularities or the jurisdictional defects in the proceedings and the orders passed by the subordinate forums. Therefore, on entertaining a revision petition, Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly and whether proceedings Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 11 - of the subordinate Courts do suffer or not from any illegality or irregularity. In other words, after filing a revision, matter rests between the revisional and subordinate Courts. To substantiate this argument reference may be made to Naoomal Tourmal v. Tarachand Sobharaj and another AIR 1933 Sindh 200. Thus is advised that the Court after having entertained a civil revision instead of dismissing it in default, may make efforts to dispose it of in accordance with the parameters laid down by section 115, C.P.C.” (Emphasis supplied) Muhammad Yousaf’s case (supra) happens to be the leave granting order dated 29.3.2006 in Civil Appeal No.509/2006. The case of Rasheed Hussain (supra) is also a leave granting order. In light of the dictum laid down in the judgments reported as Muhammad Tariq Badr and another Vs. National Bank of Pakistan and others (2013 SCMR 314) and Haji Farman Ullah Vs. Latif-ur-Rehman (2015 SCMR 1708), the noted cases [Muhammad Sadiq (supra), Muhammad Yousaf (supra) and Rasheed Hussain (supra)] are not the law enunciated by this Court and hence do not serve as precedent. Nevertheless, in light of our findings in the earlier part of this opinion, we do not find Muhammad Sadiq’s case to be good law to the extent that it holds that a civil revision cannot be dismissed for non-prosecution and should instead be decided on merit, as it leaves absolutely no room for the revisional court to exercise its discretionary powers rendering them (discretionary powers) nugatory and redundant. 10. In Khan Bahadur’s case (supra) cited by the learned amicus, this Court held as under:- “The mention of Khan Bahadur who was allegedly dead at the time of institution of revision but admittedly Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 12 - alive at the time of the announcement of the judgment of the appellate Court, impugned before the High Court, was apparently a bona fide mistake and unless the rigour of procedural law had prevented it, the High Court was required to dispose of the same on merits. There is no dearth of authorities on this proposition that law requires decision of disputes on merits and technicalities have to be avoided which hamper justice so far as possible.” (Emphasis supplied) The issue involved in the judgment ibid was that a revision petition filed against a deceased person (who was alive at the time of the decision of the appellate court) was a bona fide mistake and thus, with no procedural law standing in the way of the revisional court, the court should have disposed of the revision petition on merits. However the precise proposition as to whether a civil revision can be dismissed for non- prosecution once it has been admitted to regular hearing was neither an issue nor a moot point in Khan Bahadur’s case (supra), and it is not the ratio of the said judgment that all of the procedural law under the CPC should not be followed in letter and spirit. Be that as it may, delinquent and indolent persons are in any eventuality disentitled to any favourable discretion to the prejudice and detriment of the opposite party. Therefore we do not find that the said judgment comes in the way of the proposition involved in the instant matter. 11. If the admission of a revision petition for regular hearing is not reason enough to save it from dismissal for non-prosecution then the question that arises is, where is the line in the sand to be drawn? In our candid view, the revisional court is not to dismiss a revision petition for non-prosecution but to decide it on merits only where the court has taken cognizance of the matter of its own, generally called its suo motu powers. Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 13 - When the revisional court decides to take up a matter suo motu, it should have necessarily done so by a conscious application of judicial mind and a thorough examination of the record. Where the revisional court has taken up the matter at the behest of a person, the court has the power to dismiss the civil revision for non-prosecution even after it has been admitted to regular hearing, and is not bound to decide the same on merits. 12. Having resolved the proposition at hand, we proceed to decide each case on its own merits. Civil Appeal No.510/2012 13. The relevant facts are that the appellants filed a civil revision petition before the learned High Court in terms of Section 115 of the CPC which was admitted to regular hearing on 21.1.2000. The revision petition was dismissed for non-prosecution on 9.6.2000. The appellants filed an application for restoration (C.M. No.1212-C/2000) and the civil revision was restored on 11.4.2001. The civil revision was again dismissed for non- prosecution on 23.9.2003. The appellants moved another application for restoration (C.M. No.588/C/2003) on 26.9.2003 which was also dismissed for non-prosecution on 16.6.2004. Thereafter the appellants filed an application for restoration of the noted application for restoration (C.M. No.489/2007) along with an application under Section 5 of the Limitation Act, 1908 (Limitation Act) read with Section 151 of the CPC for condonation of delay (C.M. No.490/2007) on 15.11.2007, which were both initially allowed and C.M. No.588/C/2003 was restored vide order dated 1.4.2008 which was challenged by the respondents before his Court (through Civil Appeal No.1514/2008). This Court vide order dated 18.6.2009 set aside the order dated 1.4.2008 and remanded the matter back to the High Court for Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 14 - decision afresh on C.Ms. No.489 and 490/2007. The learned High Court vide impugned judgment dismissed the two applications on the grounds that C.M. No.588/C/2003 for restoration of the civil revision was rightly dismissed for non-prosecution due to the negligence/indolence of the revision petitioners (instant appellants), and that C.M. No.489/2007 for restoration of the restoration application (C.M. No.588/C/2003) was moved beyond the limitation period of three years prescribed by Article 181 of the Limitation Act and that C.M. No.490/2007 did not establish any sufficient cause for condonation of delay. Aggrieved, the appellants challenged the order of the revisional court before this Court and leave was granted vide order dated 30.5.2012 in the following terms:- “i) whether a revision petition could be dismissed for non-prosecution once it has been admitted for regular hearing ? ii) whether a revision petition dismissed for non-prosecution could be restored by invoking inherent powers of the Court ? iii) whether exercise of inherent powers of the Court could be circumscribed by the provisions of the Limitation Act ? iv) whether an application seeking restoration of a revision petition would also be regulated by inherent powers of the Court and not Article 181 of the Limitation Act, if and when is dismissed non- prosecution ? v) whether dismissal of a revision petition and that of an application for its restoration can be treated alike under any interpretation of law and procedure ? vi) whether limitation in such cases can be considered as a technicality of mere form ?” Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 15 - 14. Heard. After being admitted to regular hearing, the revision petition of the appellants was dismissed twice for non-prosecution once on 9.6.2000 and then on 23.9.2003. Despite the fact that the name of the counsel of the revision petitioners (instant appellants) appeared in the cause list of the court, he did not appear, and neither did the appellants nor anyone on their behalf and to this extent the learned High Court committed no illegality in dismissing the civil revision for non-prosecution. Furthermore, C.M. No.588/C/2003 for restoration of the civil revision (after it was dismissed for non-prosecution for the second time on 23.9.2003) was also dismissed for non-prosecution. Not only that, C.M. No.489/2007 for restoration of C.M. No.588/C/2003 was barred by about 152 days as it was filed beyond the limitation period of three years prescribed by Article 181 of the Limitation Act, and no ground except that the delay was unintentional has been pleaded in the application for condonation of delay which as per the settled law does not constitute a “sufficient cause” within the purview of Section 5 of the Limitation Act. The above facts clearly reflect the appellants’ conduct which smacks of sheer negligence/indolence, disentitling him to any discretionary relief. Therefore, the learned High Court rightly dismissed the civil revision for non-prosecution and thereafter through the impugned judgment has rightly dismissed the application for condonation of delay and the application for restoration of the application for restoration of the civil revision. In light of the above, this appeal is dismissed. Though the learned counsel has only confined himself to the first point and not pressed the other points on which leave was granted, we find it appropriate to briefly express our views on such points as well. In this context we find that as there are no specific provisions in the CPC for the dismissal and for the restoration of a civil revision, therefore, the same (civil revision) can both be dismissed and Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 16 - restored by the court while exercising its inherent powers and resort may also be made to Section 107 of the CPC. As there is no specific article of the Limitation Act which would prescribe the limitation period for the exercise of such inherent power of the court, therefore the residuary Article 181 of the Limitation Act shall be attracted. And this is the ratio of Mandi Hassan’s case (supra) as far as the limitation for an application for the restoration of a civil revision (dismissed for non-prosecution) is concerned. This Article also applies to the application filed for the restoration of the application for restoration of a civil revision. It may be added here that for allowing or refusing both the said applications the rule of “sufficient cause” as envisaged by Section 5 of the Limitation Act and its principles shall be attracted, regardless of whether such section is applicable or not. Regarding the last point (leave granting), it is categorically held that limitation is a part of positive law, which has to be construed and applied as per the settled principles which are provided in numerous dicta of the Supreme Court; it has to be given due effect as per the mandate of law, therefore it is held that “limitation is not a mere technicality of form”. Civil Appeal No.934/2012 15. None appeared on behalf of the respondents, who are proceeded against ex-parte. 16. This appeal entails the following facts; the suit for possession, mandatory injunction etc. filed by the predecessor-in-interest of the respondents against the appellant was dismissed on 10.1.1998. The respondents’ appeal was allowed on 13.1.2000 and the suit was decreed. Aggrieved, the appellant filed a civil revision before the learned High Court on 2.3.2000 which was admitted to regular hearing on 27.3.2000 and Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 17 - finally dismissed for non-prosecution on 3.8.2006. The appellant filed an application for restoration of the civil revision along with an application for condonation of delay on 29.4.2011. The learned High Court through the impugned judgment dismissed the applications for restoration and condonation on the ground that the appellant was unable to establish sufficient cause for condonation of delay in filing of the application for restoration of the civil revision. Hence, the instant appeal by the leave of the Court dated 9.10.2012 which reads as under:- “The main contention of the leaned counsel for the petitioner was that though the petitioner filed an application for restoration of revision petition after a year or so, none the less, it being regulated by Article 181 of the Limitation Act cannot be held to be barred. The learned counsel relies on the case of “Muhammad Sadiq. Vs. Mst. Bashir and 9 others” (PLD 2000 Supreme Court 820). He next contended that where decision on merits is more cherished goal of law and party at fault can be adequately punished by imposition of cost, dismissal for non-prosecution would be too harsh a measure in the circumstances of the case. 2. Points raised need consideration. We, therefore grant leave to appeal, inter-alia, to consider the same. It be clubbed with Civil Appeal No.510 of 2012 in Civil Petition No.436 of 2010 titled as “Ghulam Qadir and others. Vs. Sh. Abdul Wadood and others”.” 17. Heard. After the civil revision was admitted to regular hearing, it was dismissed for non-prosecution on 3.8.2006, which the learned High Court was amply empowered to do in light of our view expressed in the earlier part of this opinion. After such dismissal, the appellant filed an Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 18 - application for restoration of the civil revision on 29.4.2011, i.e. 629 days beyond the three year limitation period stipulated in Article 181 of the Limitation Act. With respect to the ground propounded in the application for condonation of delay in filing of the restoration application viz. that the appellant was not aware of the dismissal of the revision petition, suffice it to say that it is unfathomable and frankly beyond our comprehension as to how a litigant (or his counsel) would be unaware of the dismissal of his case for approximately five years, or 1724 days to be precise. Furthermore, regarding the plea submitted in the application for restoration that the appellant’s default in appearance was not wilful rather was due to non-service, we may observe that the appellant’s counsel had been appearing in the past when the civil revision was fixed for hearing, and there is no requirement of law that the parties have to be served for every date of hearing. It is not the case of the appellant that the matter was not notified in the cause list issued by the court or that the name of their counsel was either omitted or there was any other error in this context. On the contrary it would appear that a notice was specifically sent by the office to the appellant’s counsel which was served upon him. The order of dismissal of the revision petition dated 3.8.2006 clearly postulates “inspite (sic in spite) of service of the counsel for the petitioner, no body (sic nobody) is present on his behalf. Dismissed for non-prosecution”. Moreover, we are not persuaded that the appellant is entitled to discretionary relief after hibernating for so many years and finally waking up to belatedly claim restoration of his civil revision. In light of the above, we find that the learned High Court was correct in dismissing the civil revision for non- prosecution and refusing to condone the delay and refusing to restore the civil revision. This appeal is hereby dismissed. Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 19 - Civil Appeal No.1247/2014 18. The facts of this case are that the civil revision filed by the respondents was admitted to regular hearing by the learned High Court on 9.3.2000, which was dismissed for non-prosecution on 19.11.2004. The respondents moved an application for restoration of the same on 10.5.2010 along with an application of condonation of delay, which (applications) were dismissed on 11.5.2010. Aggrieved, the respondents challenged this order before this Court by filing Civil Appeal No.529- L/2013 which (appeal) was allowed vide judgment dated 7.11.2010 because the application for restoration filed by the respondents which was accompanied by an affidavit was dismissed in limine without seeking a reply from the appellant (who was a respondent in the said civil revision) and the matter was remanded to the learned High Court to decide the matter afresh after the reply of the respondent. The learned High Court through the impugned judgment has accepted the said application holding that as the revision was admitted to regular hearing it could not, in the light of the law laid down in Muhammad Sadiq’s case (supra), be dismissed for non-prosecution; besides it was within time as the respondents learnt about the dismissal on 14.4.2010 through the patwari and the limitation would start from the date of knowledge; it is also held that a sufficient cause has been made out because the counsel for the respondents did not receive the cause list. The impugned judgment was challenged before this Court, and leave was granted vide order dated 29.9.2014 to consider the following: “Learned counsel for the petitioner contends that the Civil Revision was admitted for regular hearing on 9.3.2000; that it was dismissed for non-prosecution on 19.11.2004; that an application for restoration was Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 20 - filed on 10.5.2010 after about 5 years 6 months and 11 days along with an application under Section 5 of the Limitation Act; that the Limitation Act is not applicable as it has been held by a larger Bench of this Court in Hafeez Ahmed Vs. Civil Judge (PLD 2012 SC 400); that no valid ground was given for condonation of delay; that each and every day was to be explained by the respondents for delay in filing the application for restoration. Learned counsel further contended that leave has already been granted in Civil Appeal No. 510/2012 on the same point and the matter has been referred to the larger Bench and other cases involving similar controversy are also directed to be clubbed with. In view of the above, leave to appeal is also granted in this petition. The main appeal shall be listed along with Civil Appeal No. 510/2012 and other cases of similar nature. In the meanwhile, the proceedings before the learned High Court shall remain suspended.” 19. Heard. As we have held in the earlier part of this opinion, the revisional court can dismiss a revision petition for non-prosecution despite its admission for regular hearing when the jurisdiction of the revisional court was invoked by a party, therefore the order of dismissal dated 19.11.2004 was valid and the reliance placed upon Muhammad Sadiq’s case (supra) by the learned High Court in the impugned order is misplaced. As regards the reasons for non-appearance of the respondents or their counsel on 19.11.2004, it is their case that the counsel shifted his office and did not receive the cause list (the affidavit of the counsel has not been filed by the respondents but that of a clerk); it is not the case of the respondents that the name of the counsel was misprinted or not mentioned at all in such list; there is no mention as to when the office was allegedly changed; it is also not established or stated that during the long period the respondents got Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 21 - in touch to find out the fate of their case. It is baldly alleged that they learnt about the dismissal from the patwari but there is no affidavit of the patwari in this regard. These aspects have not been considered by the learned High Court and an application time barred by 871 days has been allowed predominantly on the basis of Mohammad Sadiq’s case (supra) which we have declared is not the correct enunciation of law. The non- appearance of the respondents for no justifiable reason, along with the immense delay in filing the application on account of the alleged ignorance of the respondents which has not been so proved on the record does not warrant exercise of discretion in their favour. The learned High Court has seriously erred in restoring the respondents’ civil revision by allowing the application for condonation of delay and the application restoration of the civil revision, in light whereof, this appeal is allowed and the impugned judgment is hereby set aside. Civil Appeal No.509/2006 20. The facts of this appeal in brief are that the appellant’s civil revision before the learned High Court was dismissed for non-prosecution on 13.9.2002. He moved an application for its restoration on 7.2.2003 which was dismissed by the learned High Court vide the impugned judgment on the ground that the application was filed after 4 months and 23 days after the date of dismissal of the revision petition. The application was returned by the office with some objections and was re-filed on 12.5.2004 after a lapse of 1 year 2 months and 21 days, which is beyond the period of limitation as per the law laid down in the cases reported as Said Ali Vs. Safdar Ali and others (2004 SCMR 387) and Allah Bachai and others Vs. Fida Hussain and others (2004 SCMR 615) wherein it was held that Article 181 of the Limitation Act would not apply. Leave was Civil Appeals No.510/2012, 934/2012, 1247/2014 & 509/2006 - 22 - granted in this case to consider whether the provisions of Article 181 ibid are attracted or not. This appeal was tagged with the other cases seemingly on the proposition as to whether a civil revision once admitted for regular hearing cannot be dismissed for non-prosecution. We have already settled the issue though this opinion however the issue regarding the application of Article 181 of the Limitation Act stands finally settled in the law declared by this Court in Mandi Hassan’s case (supra). The case of Allah Bachai (supra) has been declared per incuriam while the decision in Said Ali’s case (supra) is a leave refusing order which is not the enunciation of law by this Court. In light of the above, we could have thought of hearing the matter, but as none represents the appellant we have no other option except to dismiss this appeal for non-prosecution. 21. To summarize, Civil Appeals No.510/2012 and 934/2012 are dismissed, Civil Appeal No.1247/2014 is allowed and Civil Appeal No.509/2006 is dismissed for non-prosecution. JUDGE JUDGE JUDGE Announced in open Court On 8.6.2016 at Lahore Approved for Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SARMAD JALAL OSMANY CIVIL APPEAL NO.514 OF 2008 (Against the judgment dated 25.3.2008 of the Lahore High Court, Lahore passed in Writ Petition No.9530/1998) Nasir Fahimuddin and others …Appellant(s) VERSUS Charles Philips Mills son of Patrick Mills, resident of 4/2-A, Habib Ullah Road, Lahore and others …Respondent(s) For the appellant(s): Ch. Khurshid Ahmed, Sr. ASC For respondent No.1: Mr. Amir Alam Khan, Sr. ASC For respondent No.2: Ch. Ihsan-ul-Haq, ASC Date of hearing: 01.10.2014 … JUDGMENT MIAN SAQIB NISAR, J.- This appeal with leave of the Court dated 13.5.2008 entails the following facts:- property bearing No.S-XX-25-S-22, Canal Park, Lahore measuring 02 kanals 01 marla (suit property) admittedly was owned in the year 1940 by Katherine Helen Patinger. According to the respondents (respondent No.1 is her son, hereafter referred to as the respondent) she remained the owner throughout, while the appellants avow that the lady sold the suit property to Dr. Dewan Chand in 1940 and that on the partition of sub-continent the property was treated as an evacuee property. The appellants claimed that being displaced person from India they occupied the said property after the partition, and on account of C.A.514 of 2008.doc -: 2 :- such occupation, and the property being an evacuee property, they moved to the Settlement Department for the transfer thereof. As the property had two portions, and two occupants, one (portion) was transferred to Mufti Nasir Fahimuddin (the predecessor-in-interest of appellants No. 1 to 11) while the other was transferred to Muhammad Akhtar Mohsin (the predecessor-in-interest of appellants No. 12 to 16). The PTDs of the said property were issued to the two above named on 1.2.1962 and 27.3.1965 (Ex.P7 and Ex.P8) respectively; and throughout the appellants have been in occupation of the said property. Further relevant facts of the case are:- that after the death of Katherine Helen Patinger on 19.12.1978, her son Charles Philips Mills, the respondent filed a suit against his father (the husband of the above-named lady) on 3.4.1979, as also impleading the public at large, averring that his father has abandoned and relinquished his right of inheritance in the said property in his favour and thus he now is the exclusive owner thereof. The father appeared in the matter, conceded to the suit of the respondent and, therefore, a consent decree dated 10.6.1979 was passed in favour of the respondent and against the father. It may be pertinent to mention here that the respondent, thereafter sold the property to Muhammad Akram (the predecessor-in-interest of other respondents) for a consideration of Rs.1,00,000/- (rupees one lac only), who was able to obtain an eviction order vide an ejectment petition against the appellants. However, this eviction order could not be executed for the reason that in the meantime, the appellants had filed a civil suit seeking the setting aside of the consent decree while asserting themselves to be the owners of the suit property on the basis of noted PTDs. The defendants of the case, namely, C.A.514 of 2008.doc -: 3 :- Charles Philip Mills and Muhammad Akram filed separate written statements. In the written statement of the respondent, the defense set out was that the property was owned by his late mother (named above). She was a saintly woman who had inducted the appellants in possession of the property for providing them shelter on compassionate grounds and that they (plaintiffs) are thus the licensees under the lady and this status of the appellants remain unchanged. It was also asserted that the suit property was never an evacuee property; it was not a part of the compensation pool which could validly be transferred to the appellants; besides setting out the same defense, Muhammad Akram also took up the plea of being the bona fide purchaser of the suit property. It may not be out of context to mention that the ejectment petition which was filed by Muhammad Akram and in which the order of eviction had been obtained by him, was withdrawn on the pretext that now the matter about the title is sub-judice before the Civil Court. Issues were framed; parties were put to trial, the learned Civil Judge seized of the matter and dismissed the suit not only on merits, finding that the appellants have failed to prove a valid transfer of the property by the Settlement Department in their favour as an evacuee property, but also on the score that the suit challenging the consent decree dated 10.6.1979 in favour of the respondent is not maintainable because of the bar contained in Section 12(2) CPC. Aggrieved, the appellants filed an appeal which was disallowed on 18.12.1988. The appellants challenged both these decisions in revision before the learned High Court which was accepted. The suit was held to be incompetent, the same was treated as an application, under Section 12(2) CPC and the matter C.A.514 of 2008.doc -: 4 :- was remanded to the learned Appellate Court to decide it accordingly. On remand, the learned Revisional Court (as now the suit had been treated to be under Section 12(2) and revision could only lie against the order of the trial court dated 20.2.1988, therefore, this was treated to be a revision) dismissed the application (under Section 12(2)) on merits, holding that the appellants have not proved the property to be an evacuee property in nature, which could validly be transferred in their favour by the settlement department. The appellants challenged the above decisions vide constitution petition before the learned High Court, which has been dismissed through the impugned judgment. While dismissing the petition, it has been held by the learned High Court that admittedly the property was owned by the above-named lady before partition and there is no evidence on the record if she ever, before partition of the sub-continent, had sold the same (the property) to an evacuee owner, namely, Dr. Dewan Chand. No sale deed in this regard has been produced; from the appellants’ own evidence except for the PTO or the PTDs there is no record available with the Settlement Department to establish if the property in question was ever treated to be an evacuee property and transferred as such. The order passed by the Deputy Settlement Commissioner (on the basis of which PTO & PTD were issued) transferring the property to the appellants has also not been provided by them; it was also held that the allotment in favour of the appellants has not been established/proven by them. Thus the crux of the verdict of the learned High Court is that as the property was never established to be an evacuee property, it did not form part of the compensation pool and thus could not be transferred as an evacuee property to C.A.514 of 2008.doc -: 5 :- the appellants. Leave in this case was granted to consider the following:- “The contention of Mr. Khursheed Ahmed, learned ASC for the petitioner is that the impugned order being in conflict with the expressed provisions of Section 12(2) of the CPC with principle reference to the jurisdiction of Court as envisaged by Section 42 of the Pakistan Administration of Evacuee Properties Act, 1957 and the nature of the proceedings instituted by way of suit No.484/1/1979, wherein the consent decree was obtained by the son against his father as well as general public prima facie appeared to be collusive. In view of the above contentions of the learned counsel and the point of law involved therein, leave to appeal is granted to consider the, inter alia, above contentions.” 2. Learned counsel for the appellants has submitted that the property in question once having been treated and transferred as an evacuee property, even if it was erroneously so treated or transferred, the appellants could not be disentitled from the ownership thereof. Reliance in this behalf is placed on Muhammad Din and 8 others Vs. Province of the Punjab through Collector and others (PLD 2003 Lah. 441), Azizuddin Vs. Muhammad Ismail and others (1985 SCMR 666), Sher Bahadar Khan Vs. Qazi Islamuddin and another (PLD 1984 SC 213), Sardar and others Vs. Shaukat Ali and others (1990 SCMR 951) and Siraj Din and 5 others Vs. Custodian, Evacuee Property, Punjab, Lahore and 4 others (PLD 1975 Lah. 1270). It is also submitted that the consent decree which is collusive in nature and was/is meant to cause prejudice and/or deprive a 3rd party, such as the appellant, from their lawful right to property, is of no legal effect C.A.514 of 2008.doc -: 6 :- and a nullity in the eyes of law. In any case, the suit was filed by the son against his father, who had consented to the decree and thus when the appellants were not a party thereto, such decree would have no binding effect upon them, in view of Section 43 of the Specific Relief Act. Reliance in this behalf is placed upon Muhammad Iqbal and others Vs. Khair Din through L.Rs. and others (2014 SCMR 33). It is further submitted that Katherine Helen Patinger even though was alive till 1978, she never claimed ownership of the property in question or ever challenged the PTDs in favour of the appellants or took any legal action to seek declaration of her title or obtain the possession of the property. Resultantly on account of the above, the respondent who is her successor would have no locus standi to challenge the title/ownership/PTDs in favour of the appellants. Reliance in this regard is placed upon Abdul Haq and another Vs. Mst. Surrya Begum and others (2002 SCMR 1330) and Noor Din and another Vs. Additional District Judge, Lahore and others (2014 SCMR 513). It is also argued that the suit of the appellants was converted by the learned High Court in the earlier round of litigation, as an application under Section 12(2) CPC and the matter was remanded to the learned Additional District Judge for treating it to be a revision petition (instead of appeal) to decide the same and because the allegation of fraud and misrepresentation had been proved in the matter by the appellants, the only course open for the courts was to allow the application by setting aside the consent decree dated 10.6.1979 and to remand the matter to the learned trial court to revive the suit enabling the parties to prove their title. It is also argued that all the courts below, particularly C.A.514 of 2008.doc -: 7 :- the learned High Court has misread the evidence on the record. In this regard not only the statements of other witnesses produced by the appellants have been ignored and misread but particular reference in this context has been made to the statement of PW-2 who in categorical and unequivocal terms has mentioned that both the predecessors-in-interest of the appellants have been making payment of property tax. Furthermore in his cross-examination PW-2 on a suggestion given by the respondent has mentioned that the PTD/PTO was issued to the appellants after treating the property to be an evacuee property. This part of the evidence has not been taken into account at all by all the courts below. It is submitted that after having withdrawn the ejectment petition on the pretext that now the question of title is sub-judice before the Civil Court, the respondents never filed any suit challenging the PTDs; it is also argued that in the facts and circumstances of the case, Civil Court has no jurisdiction in the matter for the purposes of determination of the validity of PTDs/PTO or the transfer of the property as an evacuee property to the appellants. 3. Controverting the above, learned counsel for the respondents have stated that it is an admitted fact that Mst. Katherine Helen Patinger was the owner of the property; she was not an evacuee, thus her property cannot be treated as an evacuee property and could, therefore, not form part of the compensation pool for further transfer in favour of the appellants. There is no evidence on the record whatsoever that the lady had ever sold the property in favour of Dr. Dewan Chand by any registered instrument, because the property in question was situated in the city of Lahore and the only legal and valid mechanism to transfer C.A.514 of 2008.doc -: 8 :- the same was through a registered sale instrument, but this is conspicuously missing in the present case. The record of the Lahore Municipal Corporation, in which some proposals depict the name of Dr. Dewan Chand as owner/transferee of the property has been made without inviting objection in that context, thus such fact recorded is absolutely baseless for the reason that there is no registered instrument of transfer supporting either the proposal of change of ownership or even to establish that the property was validly transferred to Dr. Dewan Chand. Once this was not established, undoubtedly, the property could neither be treated to be an evacuee property nor could be validly transferred onto the appellants. It is also argued that the property was never treated to be an evacuee property before the target date i.e. 1.1.1957 in terms of the Pakistan (Administration of Evacuee Property) Act, 1957; the decree in favour of the respondent even if is a consent decree was a valid decree; there was no need for the respondents to file a separate suit challenging the PTDs in favour of the appellants as in the suit filed by the appellants, the question of ownership was an issue between the parties and as it has already been decided by the court of competent jurisdiction that such PTDs are not an adequate proof of transfer, the omission on part of the respondents in terms of challenging these PTDs by independent civil action has no adverse consequence or bearing on their rights. It is also argued that the lady had died in the year 1978 and since it was never brought to her notice that the appellants had procured PTDs in their favour, failure on her part in challenging those PTDs and not taking any action would not operate as estoppel against the respondent who, therefore, could not be precluded from C.A.514 of 2008.doc -: 9 :- challenging these PTDs at a later stage on the basis that no locus standi had passed on to the respondent in light of the judgments reported as Abdul Haq and another Vs. Mst. Surrya Begum and others (2002 SCMR 1330) and Noor Din and another Vs. Additional District Judge, Lahore and others (2014 SCMR 513). Above all, respondent No.2 was the bona fide purchaser for valuable consideration, therefore, his rights are duly protected in terms of Section 41 of the Transfer of Property Act. 4. Heard. One of the important questions involved in this matter is whether the property in question was an evacuee property, had formed part of the compensation pool and has been validly transferred by the Settlement Department in favour of the appellants. In context of the above, certain facts are of considerable importance and thus need to be mentioned here. Admittedly the property was owned by Ms. Patinger in the year 1940 according to the record of the Municipal Corporation which has been produced by the respondents as Ex.P1 to Ex.P5, which clearly depicts that some change in the ownership took place in 1940 and per the same Ms. Patinger sold out the property to Dr. Dewan Chand. Ex.P1 is a copy of the notice dated 18.11.1940 issued to Ms. Patinger under the provisions of Section 65 of the Punjab Municipal Act, 1911 which postulates as follows:-“please take notice that the assessment list is being completed and published as required by section 64 of the Punjab Municipal Act 1911, and that the Administrator will proceed to revise the valuation and assessments on the 20th day of December 1940”. There is no record of the lady responding to the above. Ex.P2 which is the report of the concerned Municipal Corporation dated 26.9.1946 approved by the Secretary, Municipal Corporation clearly proves that the property C.A.514 of 2008.doc -: 10 :- in question had been sold in favour of Dr. Dewan Chand. In this context the contents of the requisite documents are relevant which read as:- “I have verified at site and find that the property in question has been sold to Dr. Dewan Chand c/o Mr. Devraj Anand tenant house No.22 street No.25 Canal Park, Lahore. The ownership may therefore be changed accordingly”. This document is supported by a notice under Section 122 of the City of Lahore Corporation Act, 1941 which is addressed to Dr. Dewan Chand which reads as:- “Please take notice that I propose to make the amendments given below in the assessment list in respect of land-building S x x 25 & 22 (Canal Park). The relative entries may be inspected at _______. Objection in writing to the proposed amendment may be delivered at the Municipal Office on or before 17.01.1966”. The proposed amendment in this case was substitution of the name of Dr. Diwan Chand as the owner of the property and Ms. Patinger was notified of the above fact. The subsequent record of the Municipal Corporation, Lahore clearly indicates that the change in the ownership of Dr. Dewan Chand had been duly incorporated in the relevant record and it is Dr. Dewan Chand who has been not only mentioned as the owner of the property, but was required to make the payment of the requisite property tax. In this context, Ex.P5 is a challan pertaining to the year ending 1940 in which the value for the purposes of tax has been mentioned as Rs.540/-, the property is shown to be vacant, but the record C.A.514 of 2008.doc -: 11 :- reflects that the ownership rests with Dr. Dewan Chand. In Ex.P11 which is form No.24 i.e. Survey List of Rent of Urban Properties, Dr. Dewan Chand is again shown to be the owner of the property. All this record has been produced and proved through the concerned official of the Municipal Corporation and such record is the one which has been maintained under the law i.e. under the Municipal Corporation Act, 1911. Therefore according to the provisions of Article 92 of the Qanoon-e-Shahadat Order, 1984 it carries presumption of correctness. No evidence at all has been lead by respondents to dispel this presumption or to even mention, if these documents and the record has been forged and fabricated by the appellants. On the basis of the above documentary evidence, a valid conclusion can be drawn that in the year 1940 lady Patinger had sold the suit property to Dr. Dewan Chand and the process of change of ownership commenced straightaway and it continued till 1946 when per the report presented as Ex.P2 it was confirmed that Dr. Dewan Chand is owner of the property and this report is founded upon inspection by the authorized and competent official and finally approved by the Secretary. It may be pertinent to mention here that the conclusion about the veracity of the above record needs to be examined in light of the conduct of lady Patinger also. From the year 1940 onwards, Ms. Patinger is not claimed or proved to have ever paid any property tax; she is not shown to be in possession of the property either directly or indirectly. It is the case of the respondents that Ms. Patinger had inducted the present appellants in possession who were immigrants from India, but there is no evidence at all on the record except the bare statement of Charles Patinger, father of the respondent who even fails to C.A.514 of 2008.doc -: 12 :- mention which month, year etc., as to when, how, and in whose presence appellants were inducted in the property. The onus to prove that the appellants were the licensees in the property was upon the respondent but this onus has not been discharged at all. Furthermore according to the written statement of the respondent No.1, Ms. Patinger had been alive till 19.12.1980 (otherwise the record reflects that she died in the year 1978) which is about 33 years after the creation of Pakistan but during all this period she never ever paid any property tax to the concerned property tax department; never asked the appellants to vacate the property; never ever initiated any proceedings, meaning thereby that she herself knew and acknowledged through her conduct and silence that the property had already been sold by her in favour of Dr. Dewan Chand and, therefore, had no connection, right or interest in the property. After her death, all of a sudden, the respondent in a surreptitious manner filed a suit against his father claiming that his father had relinquished his share in favour of the respondent, obtained a decree to that effect and sold the property onto respondent No.2. Question that agitates our mind is why, if the appellants were licensees of Ms. Patinger, which interest had devolved upon the respondent, did they never ask the appellants to vacate the property, rather in a covert manner the respondent filed a suit and obtained a decree in his favor. The object of the decree in fact, as the subsequent events reveal, was to have a declaration by a court to the title of the property which otherwise, the respondent could not prove on the basis of the record of the Municipal Corporation which vividly was against him and once the decree was obtained, it is then that the property was sold to respondent No.2 in such a C.A.514 of 2008.doc -: 13 :- strange and improbable manner. Otherwise, excepting the consent decree itself, there was no record to prove that Ms. Patinger or the respondent were the owners of the property. The very fact of filing of the suit by itself is sufficient to establish that the respondent knew that the property had been sold by his mother in favour of Dr. Dewan Chand who was an evacuee. The property had been declared to be an evacuee property and had been accordingly transferred in favour of the present appellants in whose favour the PTDs had been issued in the years 1962 and 1965 and for seeking the possession of the property from the appellants, the respondent had to cross the hurdle of challenging the said documents first. It is for this reason that the respondent never ever approached the appellants or ever made any attempt to terminate their license; asked for the restoration of possession, but in a secretive manner filed the suit mentioned above, which undoubtedly is kind of a cover given to ultimately dispossessing the appellants without ever having to prove his title in the property; it seems to be a device. Even in the Court we repeatedly asked the learned counsel for the respondents, if after 1940 the property had ever been assessed by the property tax department or remained in name of Ms. Patinger to which the learned counsel did not have a positive reply. We have questioned if lady Patinger even after the creation of Pakistan had ever paid property tax of the property in question, to which again we received no response. Likewise we did not receive an answer with regards to whether the lady ever interacted with the property or the appellants in her capacity as the alleged owner of the suit property during the time period of 33 years. Obviously the reason for non-payment of property tax was that Ms. Patinger was no- C.A.514 of 2008.doc -: 14 :- longer the owner, because in the relevant record the change of ownership had taken place in the name of Dr. Dewan Chand and she, on account of not having any connection with the property, as mentioned above, had not paid any property tax and never dealt with the property or the appellants. Otherwise it is most improbable that an owner would be so negligent and stay aloof and oblivious of his/her property. Even the respondent or his father (husband of the lady) are not shown to have ever dealt with the property on her behalf. Again this is most unlikely and improbable. The argument repeatedly made by the respondents has been that there is no record of a registered sale deed. In this context, it is true that in the urban areas a sale has to be made per a registered document in terms of Section 17 of the Registration Act, 1908 which if not complied with attracts the consequences prescribed by Section 49 of the Registration Act, 1908. However, in the instant case, why should it be presumed that the sale was not conducted per the law. The possibility cannot and should not be ruled out that it was not possible for the respondents to find out the exact date of the sale deed, when the same was not on the record of the Municipal Corporation. In any case, since the property had been treated as an evacuee property, it was the duty of the respondents to challenge the PTDs in favour of the appellants instead of filing a suit for declaration against his father. The initial onus to disprove the said sale to Dr. Dewan Chand, in light of the Lahore Municipal Corporation record and on account of the PTDs, was on the respondent. It is settled law that once a property is treated to be an evacuee property even erroneously, then the same cannot be held to be otherwise and the Civil Court in this behalf would have no C.A.514 of 2008.doc -: 15 :- jurisdiction, specifically where no attempt had been made to challenge the PTDs before the concerned Settlement Authorities before the repeal of the evacuee law or even conceding for a moment that the Civil Court has jurisdiction in this matter, before the Civil Court directly. In this context, the judgment reported as Muhammad Din and 8 others Vs. Province of the Punjab through Collector and others (PLD 2003 Lah. 441) is of importance, the relevant portion thereof reads as follows:- “From the above, it stands settled that when there is a question about the evacuee nature and treatment of a property as such, the civil courts have no jurisdiction in the matter. In the instant case, not only that the property was treated as an evacuee property, but, the same had also been transferred and permanently settled in favour of the predecessor-in-interest of the petitioners, Noor Muhammad, predecessor-in-interest of respondent No.3, and Nazim-ud-Din. The Civil Courts in the suit, filed by the respondents, seeking declaration of their title on the basis of PTD, issued in their favour, had no jurisdiction to hold such transfer as void, because the property was non-evacuee and, therefore, its treatment and transfer to the petitioners could not be made……………Even if the property had been erroneously treated and transferred as evacuee, their right in the property, stood extinguished and they had no legitimate title, which could be passed onto Abdul Rashid by way of gift, from whom, respondents No.2 and 3 could acquired a lawful title, by stepping into the shoes of the original owners…………It has been settled till now that, where the property had been treated and transferred as an evacuee property, even if erroneously, and the non-evacuee owners did not seek their remedy under the law in force at the relevant time, their title to such property stood extinguished and they could not assert their right of ownership before the C.A.514 of 2008.doc -: 16 :- Civil Court, after the repeal of the evacuee/settlement law, on account of lack of jurisdiction.” As regards the question raised by the learned counsel for the appellants that Ms. Patinger had not challenged the PTDs in favour of the appellant during her lifetime, therefore, no locus standi shall pass on, the judgments reported as Abdul Haq and another Vs. Mst. Surrya Begum and others (2002 SCMR 1330) and Noor Din and another Vs. Additional District Judge, Lahore and others (2014 SCMR 513) are relevant. This aspect of the matter has to be viewed in light of the conduct of lady Patinger because she had lived for about 33 years and despite that had never ever asserted herself to be the owner of the suit property. Obviously in such circumstances her conduct would prove that she was not claiming the ownership of the property and, therefore, was estopped in terms of Article 114 of the Qanoon-e-Shahadat Order, 1984. Consequently, no valid locus standi would pass on to her son for claiming ownership and thus son could not have passed a valid title in favour of respondent No.2. As far as the effect of the consent decree dated 10.6.1979 is concerned, suffice it to say that such decree in terms of Section 43 of the Specific Relief Act would only be binding inter se the parties i.e. the respondent and his father and would have no legal significance to affect and prejudice the rights of a third person. In the above context, the judgment reported as Muhammad Iqbal and others Vs. Khair Din through L.Rs. and others (2014 SCMR 33) is of relevance. These aspects have not been taken into account by the courts below who have only decided the matter on the basis that the sale deed by Ms. Patinger in favour of Dr. Dewan Chand has not been produced. C.A.514 of 2008.doc -: 17 :- Suffice it to say that per the PTDs issued in favour of appellants, and the order passed by Iqbal Ahmed Khan dated 20.12.1959, the property was transferred to the appellants. 5. It may not be out of place to mention here that with regard to whether the sale was made by lady Patinger in favour Dr. Dewan Chand, the following was admitted by PW-1 when questioned by the respondents’ side:- ہﯾ" ﮯﺳ مﮨ ںﯾﻣ ﯽﮔدﻧز ﯽﻧﭘا ﮯﻧ نﺋاﺮﺗﮫﮐ نﻠﯾﮨ ہﮐ ﮯﮨ تﺳرد سﭨوﻧ ﯽﺋوﮐ ﯽﮨ ہﻧ روا ﺎﮫﺗ ﺎﯾﮐ ہﻧ مﯾﻠﮐ وﮐ ہﻋزﺎﻧﺗﻣ دادﺋﺎﺟ ﯽﮫﺑﮐ "ﺎﮫﺗ ﺎﯾد هﺮﯾﻏو Further when father of respondent No.1 appeared as DW-1, he in categorical terms mentioned that he was out of the sub-continent for a considerable period and has no knowledge about the dealing of the property. He unequivocally mentioned that دادﯾﺋﺎﺟ تﻻﺎﺣ ﮯﮫﺟﻣ" ہﯾوﻋدﺗﻣ1940 ﺮﮐ ﮯﻟ ﮯﺳ1946 "ﺎﮫﺗ ﺮﮨﺎﺑ ںﯾﻣ ہﮐﻧوﯾﮐ ﺎﮫﺗ ہﻧ مﻠﻋ ﺎﮐ کﺗ. As far as respondent No.1 is concerned, he also could not have any knowledge regarding whatever had happened during 1940 to 1946 because according to him he was born on 21.7.1945 and was too young to know. It is not his case that his mother had ever apprised him that she had inducted the appellants as licensees in the property, however, it is also significant to mention that in his cross-examination he has deposed as under:- ہﻧ موﻠﻌﻣ مﺎﻧ ہﯾﻘﺑ هوﻼﻋ ﮯﮐ نا ﮯﮫﺗ ضﺑﺎﻗ هﺮﯾﻏو ﺮﺗﺧا روا نﯾدﻟا مﯾﮩﻓ" دﻌﺑ ﮯﮐ یﺮﭨﺳﺟر ںﯾﮨ5 ﺎﮫﺗ ﻼﭼ ہﺗﭘ ﺎﮐ نﯾﺿﺑﺎﻗ نا ﮯﮫﺟﻣ دﻌﺑ ﮯﮐ هﺎﻣ فﺮﺻ ﮯﻧ مﮨ ۔ﮯﮫﺗ ضﺑﺎﻗ ﮯﺳ تﯾﺛﯾﺣ سﮐ ہﮐ ﮯﮨ ہﻧ مﻠﻋ ﯽﺋوﮐ ﮯﮫﺟﻣ ہﯾ ﮯﻧ ںﯾﻣ ﯽﮫﺗ ﯽﮐ ﺮﺋاد ﯽﻠﺧد ﮯﺑ تﺳاوﺧرد فﻼﺧ ﮯﮐ نﯾد مﯾﮩﻓ ﺳﮐ ﯽﻠﺧد ﮯﺑ تﺳاوﺧرد وﮐ ﯽ یوﺮﯾﭘ دوﺧ ںﯾﻣ ﯽﮫﺗ ید ہﻧ ﺮﭘ contract ﺎﮐﭼ ﺮﻣ نﯾدﻟا مﯾﮩﻓ با ﯽﮫﺗ ﯽﺋوﮨ تﻟادﻋ ہﻌﯾرذﺑ نﯾدﻟا مﯾﮩﻓ لﯾﻣﻌﺗ ﺎﮫﺗ ﺎﺗﺮﮐ ﯽﺋوﮨ ںﯾﻣ ﯽﻠﺧد ﮯﺑ لﯾﻣﻌﺗ بﺟ ﮯﮨ طﻠﻏ ہﻧ ﮯﮨ ہﻧ مﻠﻋ اوﮨ توﻓ بﮐ ﮯﮨ "ﺎﮫﺗ ﺎﮐﭼ ﺮﻣ نﯾد مﯾﮩﻓ وﺗ C.A.514 of 2008.doc -: 18 :- We are not persuaded that on account of non-production of said sale deed or any other record from the Settlement Department except PTDs which have been proved to have been genuinely issued, the appellants are not able to prove their ownership, because the respondents had never challenged the genuineness of the PTDs and therefore, the same have not been in dispute. It is not the case of the respondent that those are forged and fabricated documents. If the other record is not available with the Settlement Department, no prejudice can be caused to the appellants. Thus from the totality of the facts, we are of the view that the property in question was sold by Ms. Patinger in favour of Dr. Dewan Chand; the name of the purchaser was duly reflected in the record of the Municipal Corporation; lady Patinger never paid property tax till the date she remained alive; she never even contacted the appellants for the purposes of seeking the possession of the property or asserting herself to be the owner; she had also not been registered as an owner with the relevant tax authorities; she in her lifetime had never challenged the PTDs in favour of the appellants or sought the eviction of the appellants from the property and it is not expected of a property owner to allow strangers to use or reside in his/her property without any compensation for such a long period of time and not seek their eviction or assert his/her rights over the property; consent decree was procured by respondent No.1 in a strange and surreptitious manner which otherwise is not binding upon the present appellants; immediately after the decree having been obtained, the property was allegedly sold to respondent No.2 and he in a dubious manner procured the eviction order against the appellants and C.A.514 of 2008.doc -: 19 :- tried to take over the possession of the property but having failed in that regard subsequently withdrew the eviction application as well. 6. Thus we find that since the learned courts below failed to consider these aspects of the matter, the judgments impugned cannot be sustained, which are hereby set aside and by allowing the application of the appellants under Section 12(2) CPC, the suit of the respondent is dismissed, as there shall be no fruitful purpose served to allow revival of the suit and order for the retrial as all the issues between the parties have been settled in the proceedings under Section 12(2) CPC. Besides, as the decree dated 10.6.1979 in favour of respondent is being set aside, the sale deed made by him on the basis of above in favour of respondent No.2 has lost is validity and efficacy as well. In terms of the above, this appeal is allowed and the impugned orders/judgments are set aside. JUDGE JUDGE Islamabad, the 1st October, 2014 Not Approved For Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMAD CIVIL APPEAL NO. 51 OF 2011 (Against the judgment dated 11.05.2010 of the Lahore High Court, Lahore passed in RFA No.592 of 2006) Muhammad Mansha … Appellant Vs. Industrial Development Bank of Pakistan and others … Respondents For the appellant : Ch.M.Amin Javed, ASC For respondent No.1 : Mr.M.Almas, ASC. Date of Hearing 19.2.2020 ORDER MAQBOOL BAQAR, J.- A property bearing House No.861, Akbari Gate, Lahore, (the property), was being sought by the respondent-bank to be attached and sold before Banking Court IV, Lahore, in the execution proceedings initiated by the respondent bank for enforcement of a judgment and a decree obtained by it for recovery of Rs.32,04,620/- against respondent No.2 and 3. The move was resisted by the appellant through an application. However the appellant’s application was dismissed and attachment as sought was ordered by the Banking Court. The appeal filed by the appellant against the said order has been dismissed by a learned Division Bench of the Lahore High Court through judgment now impugned before us. 2. The judgement and decree sought to be enforced by the respondent bank, was passed by a Banking Court, under Banking CA 51/2011 2 Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (the repealed Act), on 11.5.2001 (the judgment and decree). 3. The attachment and sale of the property, as noted above, was sought on the ground that the same, at the time the above judgment and decree was pronounced, belonged to the respondent No.3, who is a judgment debtor in terms of the aforesaid judgment and decree, and the sale of the property by the respondent No.3, after the said judgment, through a sale deed registered on 18.8.2001, being violative of the restriction placed by the Sub-section (2) of Section 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the 2001 Ordinance), was/is, as prescribed by the said provision, void and of no legal effect, and the property is thus available and liable to be sold towards the satisfaction of the respondent No.3’s liability under the judgement and decree. 4. Heard the learned counsel for the parties and perused the record with their assistance. 5. Indeed in terms of sub-section 2 of Section 23 of the 2001 ordinance, sale/disposition by the judgment debtor, of his property, after pronouncement of a judgment and decree by the Banking Court, without a written permission of the Banking Court is void. The text of the above provision runs as follows: “(2) After pronouncement of judgment and decree by the Banking Court, including an interim decree under section 11, no judgment- debtor shall without the prior written permission of the Banking Court transfer, alienate, encumber or part with possession of any assets or properties and any such transfer, alienation, CA 51/2011 3 encumbrance or other disposition by a judgment-debtor in violation of this sub-section shall be void and of no legal effect.” 6. Now, the essential prerequisite for a sale of the nature as described by the above provision, to attract the restriction and to suffer the consequences as prescribed thereby, is the pronouncement of a judgment and decree by “the Banking Court”, such being the Court as described thereby, and therefore the judgment and decree that meets the requirement, is the one that is rendered by the Banking Court and of no other Court. Whereas “Banking Court”, in respect of a case, (i) in which the claim does not exceed hundred million rupees, (as in the present case), and for the trial of offences under the 2001 Ordinance, in terms of section 2(b) (i), (ii) means, a court established under section 5 of the 2001 Ordinance, and in respect of any other case, the High Court. While section 5 of the 2001 Ordinance, enables the Federal Government to establish Banking Courts to exercise jurisdiction under the said Ordinance. Therefore ‘The Banking Court” in the context of section 23(2) of the 2001 Ordinance, is the Court established by virtue of section 5 of the 2001 Ordinance, and the thus the judgment and decree required to invoke the provisions of section 23(2) of the 2001 Ordinance, is the judgment and decree passed by a Banking Court established as above, and not any other Court and, for that matter, not a Banking Court that was established under the repealed Act. However, in the present case the judgment and decree sought to be enforced and on the basis whereof the respondent-bank has invoked section 23(2) of the 2001 Ordinance, was rendered under the repealed Act and was pronounced by a Banking Court established under the said Act, the same is therefore wholly irrelevant for the purposes of section 23(2) of CA 51/2011 4 the 2001 Ordinance, and cannot be of any help to the respondent No.1 in invoking the said provision. 7. Even otherwise the sale deed in respect of the property was executed by respondent No.3, in favour of the appellant on 18.8.2001, prior to the 2001 Ordinance, that was promulgated on 30.8.2001, and whereby the 1979 Act was repealed and replaced by a new law as such, and upon registration of the sale deed on 11.4.2002, whereupon the property came to be invested in the appellant, vesting its title in the appellant exclusively, from the date the sale deed was executed, i.e. 18.8.2001, from which date the respondent No.3 ceased to have any right or interest in/or over the property at all. The sale/transfer of the property in favour of the appellant on 18.8.2001, thus became a past and closed transaction and could not have been put into jeopardy through an application purportedly seeking to invoke the provision of section 23(2) of the 2001 Ordinance, on 23.8.2004. The 2001 Ordinance does not, either expressly or impliedly, provide for any retrospective application of the provision of section 23(2) thereof, the same cannot therefore operate to reverse or undo a transaction which took effect from 18.8.2001, prior to the date the said provision and the law containing the same, i.e. 2001 Ordinance, came into existence. 8. It is now well settled that when the legislator alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them1. It is the general rule of the common law that the statute changing the law ought not, unless the intention appears with reasonably certainty to be understood as applied to facts, or events that have already occurred in such a way as to confer or 1 PLD 1969 SC 187 CA 51/2011 5 impose or otherwise effect rights or liabilities which the law had defined with references to past events. 2 9. Indeed it is true that in terms of section 54 of the Transfer of Property Act, 1882, the transfer of immoveable property of the value of hundred rupees and upwards can be made only by registered instrument, whereas in terms of section 49 of the Registration Act, 1908, a document, which is required to be registered under the said Act, can operate to create any right, title or interest in any immoveable property, only if it is so registered. However, section 47 of the Registration Act, clearly lays down that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.3 10. In view of the foregoing, we have found the order of the Banking Court not to be in consonance with law and would therefore allow this appeal and set-aside the impugned judgment. Judge Judge Judge Islamabad, the Announced in open Court on _______________ at __________________ Judge ‘APPROVED FOR REPORTING’ (Aamir Sh.) ( 2 (1957) 96 CLR 261, 267 3PLD 2003 SC 818

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar, HCJ Mr. Justice Sh. Azmat Saeed Mr. Justice Umar Ata Bandial Mr. Justice Ijaz ul Ahsan Mr. Justice Sajjad Ali Shah CIVIL APPEALS NO.521 OF 2015 & 2387, 2388, 2552-2553 OF 2016 & CIVIL PETITIONS NO.3875 OF 2016 & 2418, 2879 OF 2017 & CIVIL PETITIONS NO. 2937-2940 & 4287 OF 2017. (On appeal from the judgment/order of Peshawar High Court, Peshawar dated 28.05.2001 passed in W.P. No.597-P/2013 & judgment dated 02.12.2015 passed in W.Ps. No.2256-P/2013, 604-P/2014 & judgment dated 09.06.2015 passed in W.P.1736-P & 3016-P of 2013 & judgment dated 01.11.2016 passed in W.P.2808 of 2010 & judgment dated 11.05.2017 passed in W.P.1512 of 2016 & judgment dated 13.06.2017 passed in W.P. 1666 of 2014 & judgment dated 21.03.2017 passed in W.P. No.1477-P, 1611-P/2016, 118-P/2017 & judgment dated 28.09.2017 passed in W.P.1746-P of 2016) Commandant, Frontier Constabulary, Khyber Pakhtoonkhwa, Peshawar & others … Appellant/ Petitioner (in all cases) VERSUS Gul Raqib Khan …Respondent (in CA.521 of 2015) Javed Khan & others …Respondents (in CA.2387 of 2016) Fayyaz & others …Respondents (in CA.2388 of 2016) Ex-Havaldar Iza Gul …Respondent (in CA.2552 of 2016) Niaz Meen Bad Shah …Respondent (in CA.2553 of 2016) Sep. Irfan Ullah and others …Respondents (in CP.3875 of 2016) Rehmatullah and others …Respondents (in CP.2418 of 2017) Subedar Aslam Khan Afraidi …Respondents (in CP.2879 of 2017) CA.521/2015, etc. 2 Sarad Khan & others …Respondents (in CP.2937 of 2017) Khaliq Rehman & another …Respondents (in CP.2938 of 2017) Nasir Shah & others …Respondents (in CP.2939 of 2017) Khalil Khan & others …Respondents (in CP.2940 of 2017) Dilawar Shah and another …Respondents (in CP.4287 of 2017) For the appellant(s)/ Petitioner(s) (in all cases) Mian Shafaqat Jan, ASC. Mr. Tariq Aziz, AOR. (in CA.521/2015) Syed Rifaqat Hussain Shah, AOR, AOR. (in all other cases). Mr. Naveed Ahmed, Asstt. Dir. FC. For the respondent (in CA.521 of 2015) Malik Ghulam Mustafa Kandwal, ASC. For the respondent (in CA.2387-2388/2016) Mr. Shaukat Ali Yousafzai, ASC. For the respondent (in CA.2552-2553/2016) Mr. M. Ijaz Khan Sabi, ASC. Respondent No.22 (in CA.3875 of 2016) In-person. Respondent (in CP.2418/2017) Not represented. For respondents (in CA.2879 of 2017) Mr. Muhammad Asif, ASC. For the respondents (in CP.2937& 2939 of 2017) Mr.Dil Muhammad Khan Alizai, ASC. For the respondents (in CP.2938 & 2940 of 2017) Nemo. Respondents (in CP.4287of 2017) Not represented. Date of hearing 29.01.2018. * * * * * * * CA.521/2015, etc. 3 O R D E R UMAR ATA BANDIAL, J. – We intend to decide these connected appeals and petitions by this judgment as a common question of law is involved therein. 2. Civil Appeal No. 521 of 2015 & Civil Appeals No. 2387, 2388, 2552 & 2553 of 2016. – Leave was granted in these appeals in order to consider whether the respondents being employees of the Frontier Constabulary (“FC”) were civil servants; and therefore, the Writ Petitions filed by them before the learned Peshawar High Court in relation to the terms and conditions of their service were not maintainable on account of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan (“Constitution”). 3. The facts of each case differ and so does the nature of the service grievance of each respondent. However, their common feature is that the respondent in each case had ultimately approached the Peshawar High Court in its Constitutional jurisdiction for the redressal of his grievance. 4. The learned counsel for the parties agree that the pivotal judgment of this Court on the subject of the competent remedy available to employees of the FC in relation to their service grievances is reported as Commandant, Khyber Pakhtunkhwa Constabulary vs. Muhammad Nasir (2015 SCMR 1040). In that judgment, this Court has held as follows: CA.521/2015, etc. 4 “8. We have heard the learned counsel for the parties at length and have perused the record. The appellants are not Civil Servants as their terms and conditions of service are regulated by the provisions of the North West Frontier Constabulary Rules of 1958. The case-law cited by the learned Counsel for the appellant is not relevant after the judgment of this court in the case of Muhammad Mubeen-us-Salam and others vs. Federation of Pakistan (PLD 2006 SC 602), where this Court has held that the status of a Civil Servant cannot be conferred on an employee of the organization by a deeming clause which has its own statutory service Rules. The terms and conditions of service of the respondents are regulated by the Act of 1915 which authorizes the appellants to frame Rules. The Rules were framed in 1958 and are duly notified which regulates the terms and conditions of service of the respondents. The plea of the appellants that the Respondents are Civil Servants is without force in view of the judgment in the case of Muhammad Mubeen-us-Salam and others (supra). [emphasis supplied]. 5. The learned counsel for the appellants have urged that the ratio decidendi of the judgment pronounced by a larger Bench of this Court comprising nine learned Judges in Muhammad Mubeen- us-Salam and others vs. Federation of Pakistan (PLD 2006 SC 602) lays down certain tests to ascertain whether an employee of the Federation is a civil servant. These have been misapplied in the quoted passage to hold that the persons in the employment of the FC are not civil servants. Reference has been made to parts of the judgment in Muhammad Mubeen-us-Salam’s case ibid wherein the jurisdiction of the Federal Service Tribunal is determined on the touchstone of three crucial provisions of the Constitution. These are Article 212(1)(a), Article 240(a) and Article 260 of the Constitution. CA.521/2015, etc. 5 The definition of the term ‘civil servant’ in Section 2(b) of the Civil Servants Act, 1973 (“Act”) has accordingly been interpreted pursuant to the said Constitutional provisions. The said Articles of the Constitution and the definition given in the Act are reproduced hereinbelow: Article 212(1)(a) of the Constitution: 212.(1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of: (a) matters relating to the terms and conditions of persons 2 [who are or have been] in the service of Pakistan, including disciplinary matters; Article 240(a) of the Constitution: 240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined − (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and (b) … Article 260 of the Constitution: 260.(1) In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say,− ... ”service of Pakistan” means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e- Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or CA.521/2015, etc. 6 member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly;” Section 2(1)(b) of the Civil Servant Act, 1973: “2. Definitions.- (1) In this Act, unless there is anything repugnant in the subject or context,-- (a) … (b) “civil servant” means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does include: (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is "worker" or "workman" as defined in the Factories Act, (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923): 6. Three broad tests for establishing the status and character of a civil servant emerge from the Constitutional mandate of the afore-going Articles. Firstly, under Article 240(a) of the Constitution, appointments to and the terms and conditions of service of the persons in the “service of Pakistan” are be determined by or under Act of Parliament. Secondly, by virtue of Article 260 of the Constitution, ‘service of Pakistan’ means any service, post or office in connection with the affairs of the Federation. Thirdly, under Article 212(1)(a) of the Constitution, the exclusive jurisdiction to adjudicate disputes relating to the terms and conditions of persons, who are in the service of Pakistan vests in an Administrative CA.521/2015, etc. 7 Tribunal, namely, the Federal Service Tribunal. These tests are mentioned in the Muhammad Mubeen-us-Salam case ibid (at pp.686-689 of the law report). The definition of the term ‘civil servant’ in the Act adopts the Constitutional criteria given in Article 260 noted above to reiterate that a person who, inter alia, holds a civil post “in connection with the affairs of the Federation” including any such post connected with defence, to be a civil servant. The larger Bench has in this respect taken the logical step to incorporate the requirements under Articles 240(a) and 260 of the Constitution as the definitional criteria of the term “civil servant” (at p.682 of the law report). 7. Having noticed the qualifying criteria of a civil servant under the law, it is appropriate now to examine the factual matrix of the present controversy. The FC was established by the NWFP Constabulary Act, (Act-XIII) of 1915 (“Constabulary Act”). Section 3 of the Constabulary Act empowers the Federal Government to maintain the FC as a force “for the better protection and administration of the external frontiers of Pakistan within the limits of or adjoining North-West Frontier or any part thereof.” Section 3-A of the Constabulary Act authorises the Federal Government to employ the FC outside the limits of or adjoining the North-West Frontier Province in other parts of Pakistan for the better protection and administration of those parts. Section 5(1) of the Act ibid vests the Federal Government with power to appoint the Commandant and other persons including the District Constabulary Officers or CA.521/2015, etc. 8 Assistant Constabulary Officers of the force in one or more districts. Section 6 delegates to the Commandant and District Constabulary Officer the power to appoint subordinate officers in the manner prescribed by Rules made under the Act. The Federal Government exercised its power conferred by Section 21 of the Constabulary Act, to frame the NWFP Constabulary Rules, 1958 (“Constabulary Rules”), in order to provide the terms and conditions of service of the officers and men in the FC. 8. It will be observed that the matter of terms and conditions of service of the respondent-employees of the FC, are in the first place regulated by the Constabulary Act and elaborated pursuant thereto by the FC Rules. The provisions made by the Constabulary Rules are in furtherance of and in exercise of the power conferred by the Constabulary Act. Therefore, the terms and conditions of service of the employees of the FC are prescribed in the Act and the Rules. The test laid down in Article 240(a) of the Constitution requires that the appointment to and the terms and conditions of service of posts in connection with the affairs of the Federation and of a service of Pakistan shall be determined “by or under an Act of” Parliament. The expression “by or under” in Article 240(a) of the Constitution authorizes the terms and conditions of service of a civil servant to be provided both by statute or by statutory rules. The provision made in the Constabulary Act and the Constabulary Rules, therefore, satisfy the Article 240(a) test. The CA.521/2015, etc. 9 judgment in the Muhammad Mubeen-us-Salam case ibid endorses this point of view: “86. …The terms and conditions of service of those employees, however, are required to be specified under Article 240 of the Constitution by or under Act of the Parliament. Thus, the conclusion would be that only those persons, who are in the service of Pakistan, as discussed hereinabove, and if their terms and conditions are governed either by a statute or statutory rules, in terms of Article 240 of the Constitution, can seek remedy before the Service Tribunals. …” 9. The second crucial test of the rule laid down in the Mubeen-us-Salam case ibid for a person to qualify as the member of a service of Pakistan and therefore as a civil servant, is that the civil post he holds must bear connection with the affairs of the Federation, including any such post connected with the Defence. The respondents were appointed in service pursuant to the provisions of the Constabulary Act of 1915 and the Constabulary Rules, 1958 framed thereunder. Under Section 3 and Section 3A of the Constabulary Act, the respondents, inter alia, perform functions for the better protection and administration of the frontiers of Pakistan. The performance of such duties and functions is clearly in connection with the affairs of the Federation of Pakistan because these are rendered to protect the solidarity, integrity and law and order in Pakistan. 10. A helpful discourse on this aspect of the matter is rendered by a judgment reported as Federation of Pakistan vs. CA.521/2015, etc. 10 Muhammad Nazir (1998 SCMR 1081). In that case, the question in issue was whether the employees of Pakistan Rangers fell within the definition of “civil servant” and whether the Federal Service Tribunal had jurisdiction to entertain appeals from orders passed by the Pakistan Rangers Authorities. It was observed by the Court that: “7. … Perusal of these rules clearly shows that they are all embracing, and therefore, under the amendment of section 1 of the Pakistan Rangers Ordinance, these rules would prevail over the Rules of 1973. The Pakistan Rangers Ordinance was promulgated to constitute a force called the Pakistan Rangers for the protection of and maintenance of order in the border areas. Since with regard to the status of the members of the force the Pakistan Rangers Ordinance is silent, therefore, it can be safely said that the employees of the Pakistan Rangers will be deemed to be civil servants as they are performing duties in connection with affairs of the Federation and hence under the Service Tribunals Act, 1973, an appeal by a member of the Pakistan Rangers regarding a matter relating to terms and conditions of his service is competent before the Federal Service Tribunal. …” [emphasis supplied] 11. It follows from the dicta laid down above that the protection of the border areas is a sovereign function belonging to and performed by the Federation. The same duty is performed equally in the present case by the FC not only on the frontiers of KPK Province but also by maintaining order in other parts of Pakistan. For discharging such functions, the services rendered by the FC have direct nexus with the affairs of the Federation. Therefore, the reasons given in the Muhammad Nazir case (supra) CA.521/2015, etc. 11 fully apply here as well and we hold that the employees of FC are civil servants. Insofar as the question of competent remedy in respect of service disputes of FC men is concerned, we hold that in a matter relating to the terms and conditions of service of the respondent-employees of the FC, an appeal before the Federal Service Tribunal is available to them as the exclusive remedy under the law. Accordingly, this remedy may be availed by them within the statutory period of limitation commencing from the date of issuance of certified copy of this judgment. All these appeals filed by the appellant-Commandant, FC are accordingly allowed in above terms. 12. CIVIL PETITIONS NO.3875 OF 2016 & 2418, 2879 OF 2017 & CIVIL PETITIONS NO.2937 & 4287 OF 2017.– Since all these petitions involve the same question of law as discussed above, therefore, the same are converted into appeals and allowed in above terms. 13. CIVIL PETITIONS NO.2938-2940 OF 2017. - These three petitions are barred by 58 days. As the substantial question of law raised in these petitions is the same as the one raised in the above noted appeals which have been allowed; therefore, following the dictum laid down by this Court in Mehreen Zaibun Nisa vs. Land Commissioner, Multan (PLD 1975 SC 397), we condone the delay occasioned in the filing of these petitions. Consequently, we CA.521/2015, etc. 12 also convert these petitions into appeals and allow the same in the terms noted in para-11 above. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Islamabad, 29.01.2018. Irshad Hussain /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE MANZOOR AHMAD MALIK Civil Appeal No.525 of 2013 (On appeal from the judgment dated 15.04.2013 passed by the Peshawar High Court, Abbottabad Bench in C.R. No.315 of 2005) Ghulam Farid and another …Appellant VERSUS Sher Rehman (decd.) through his LRs. ..Respondents For the appellants: Mr. Nazakat Baig, ASC Syed Rifaqat Hussain Shah, AOR For the respondent: Mr. Muhammad Afzal Janjua, ASC Date of hearing: 27.1.2016 JUDGMENT Dost Muhammad Khan, J.— Through this appeal, the appellants have impugned the judgment and decree of the learned Single Judge of the Peshawar High Court, Bench at Abbottabad dated 15.04.2003, who reversed the judgment and decree of the District Appeal Court, Haripur dated 07.05.2005 and restored the judgment and decree of the Civil Judge, Haripur, who had dismissed the suit of the appellants. We have heard the learned ASC for the appellants and learned ASC for the respondent and have carefully gone through the record. 2. The epitomestic history of the controversy is that, the appellants including two illiterate ladies are stated to have transferred the suit land, consisting of different “Khataz” and “Khasras” number, through disputed mutation No.44, allegedly attested on 07.06.1969. The case of the appellants is that, they were neither present nor were CA 525/13 2 having knowledge of the mutation because appellants including Ghulam Farid were living in Sindh Province and after coming back to the village, when he demanded the share of produce, the defendant refused to pay the same, rather claimed that he had already purchased the suit property through the above mutation thus, paddling up the appellants to file the suit for decree of declaration, possession and permanent injunction. The respondent, namely Sher Rehman (deceased), now represented by LRs., filed written statement and contested the suit. 3. After holding trial, the learned Trial Judge dismissed the suit mainly on the point of limitation, however, the learned Additional District Judge, Haripur reversed the findings of the Trial Court and after setting aside the judgment & decree so passed, decreed the suit in favour of the appellants for cogent reasons, attending to each and every material aspect and also the issue of limitation. 4. The learned Single Judge in the High Court, in revisional jurisdiction set aside the judgment & decree of the learned Additional District Judge on the issue of limitation alone and further held that the attestation of mutation in another “Mauza”, other than where the suit property situates, was not an illegality while placing reliance on the view held by this Court. 5. The learned Judge further relied on the view taken in the case of LAL KHAN v. Muhammad Yousaf (PLD 2011 SC 657) however, the reliance placed on this judgment is entirely misconceived one because the view held in the said case supports the case of the appellants. 6. It is a century old principle of law that mutation entry and its attestation is not a document of title and the transaction of sale CA 525/13 3 must be proved independently through cogent evidence where passing of sale consideration to the vendors is fully established. This principle shall apply more stringently without any pause and stop where such transaction is between the male beneficiary/purchaser and “Parda Nasheen lady” as in this case two of the plaintiffs were ladies. 7. The plea of appellant No.1 that, he had gone to Sindh Province for earning livelihood before the year 1961-62, was not seriously challenged by the defendant in the course of cross- examination. This plea is amply supported by the statement of Shahzada (PW-4), admitting that he was appointed as a caretaker by appellant No.1, of the suit property through a letter, which the appellant had sent to him from Sindh Province and that, the land was given on rent/tenancy basis to the defendant who had paid the share of produce to him in the first instance. He further stated that at the time of attestation of the disputed mutation, Ghulam Farid appellant was not in the village being away to Sindh Province. 8. The contention of appellant No.1 is further supported by Dilshad Khan (PW-5) who stated that he was retired from the Sindh Police after serving there for 30/40 years and; that at the time of attestation of the impugned mutation, the appellant and his mother were residing with him because plaintiff No.2, Mst. Afroz Begum was his wife. Both the statements of above PWs were not challenged by the defendant during cross-examination. The suit was filed on 21.11.2001 when appellant No.1 returned from Sindh Province to his village and defendant claimed hostile title to the suit and possession over it. On verification of the revenue record, appellant No.1 came to know about the attestation of the impugned mutation No.44 dated 07.06.1969. CA 525/13 4 9. Under the law and principle of justice, when mutation is never held to be a document of title and when a negligible presumption is attached to it, provided it is proved fairly and its entry and attestation is conducted in the laid down manner, the mere incorporation of it into the “Jama Bandi” and its repetition periodically, would not confer title on the purchaser unless the transaction of sale is independently established, through cogent and convincing evidence. In the case of transaction with illiterate village lady this principle assumes the status of rule of law as in that case the onus of the beneficiary of it becomes manifold. To discharge the burden of proof he has to satisfy the court of law that the entire transaction was completed in a transparent manner and all the required precautions were faithfully and honestly observed before the attestation of mutation, dispelling every suspicion that it was tainted with fraud and misrepresentation. 10. In the present case, it is admitted fact that none of the vendors have thumb impressed the disputed mutation as has been stated by Malik Muhammad Taj, Halqa Patwari (PW-1) and Shakeel Ahmad, Qanoon-go (PW-2). Even the daily diary, maintained by the ‘Patwari’ was not produced as it was destroyed after 12 years however, the defendant did not obtain a certified copy of the same, while u/s. 42 of the West Pakistan Land Revenue Act, 1967 it is essentially provided to the informer. 11. Neither the two attesting witnesses to the mutation, namely,(i) Muhammad Asif Khan and (ii) Malik Mir Haider Zaman, Lambardar, nor the then Halqa Patwari who made entries in the daily diary, were produced to substantiate the claim of the defendant/purchaser. Even the Revenue Officer, who attested the mutation, was not produced. CA 525/13 5 12. To avoid the commission of fraud, misrepresentation or foul play, the provision of sub-s.(8) of S.42 of the Act, has made it mandatory that an inquiry under sub-s.(6) of the said provision shall be made and the mutation, the subject matter, should be attested in the common assembly in the estate to which the mutation relates. In this case, admittedly the mutation was attested entirely in a different “Mouza” situated 3/4 miles away from the “Mouza” where the property situates. The maxim, “Expressio Unis Est Exclusio Alterius” commanding that when law requires that a thing be done in particular manner then, it should be done in that manner as anything done in conflict of the command of law shall be unlawful being prohibited. 13. As discussed in the earlier para of this judgment that transaction of sale shall be independently established through convincing, reliable and cogent evidence, which is absolutely missing in this case. In whose presence, where, on what date and time the transaction of sale took place and how the sale consideration was paid to the vendors including the two illiterate and rustic village ladies, are all such begging questions, which have not been answered in any manner. 14. The inflexible, hard and fast rule is, that when any transaction is made by anyone where “Parda Nasheen” lady’s vital interest is involved then, the following conditions are to be invariably and essentially fu - CA 525/13 6 (iii) in the case of “Parda Nasheen” rustic village ladies, at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and; (iv) that at the time of transaction, the ladies were having access to independent advice of their nearer and dearer, who have no hostile interest to them.” None of these conditions was in any manner fulfilled or complied with. 15. The plea that in those days, getting thumb impression or signatures of the vendors was not mandatory, is absolutely fallacious because the West Pakistan Land Revenue Act, 1967 was enacted two years earlier to the transaction where-under, the presence of the vendors before the Revenue Officer at the time of attestation of mutation and after getting their consent, explaining the nature of the transaction to them and thereafter getting their thumb impressions, was mandatory. After careful scrutiny we find that the evidence furnished by the respondent/defendant is absolutely silent, as to what was the reason when the vendors to the transaction did not appear nor they thumb impressed the mutation, thus, the attestation of mutation by the Revenue Officer and that too, in another “Mouza” much away from the property, was surely against the mandatory provision of law. This fact by itself speaks volumes of mala fide, misrepresentation and fraud, having been committed in the course of attestation of mutation. 16. As discussed above, not a single word has been stated by the attorney of the defendant or his witnesses that on what date, place and time the transaction of sale took place, thus, when the basic transaction, on the basis of which the mutation was entered and attested, has not been established then, the impugned mutation CA 525/13 7 absolutely loses even the little worth attached to it, nor it can be held to be a valid document, duly executed. Mere incorporation of such invalid mutation in the periodical record and its subsequent repetition, is of no legal benefit to the respondent/defendant because the same was invalid for having no sanction of law. The circumstances surrounding it, have rendered it the most suspect document. 17. In the case of “Parda Nasheen” ladies, under the rules it is a consistent practice that before the attestation of mutation by the Revenue Officer, a Local Commission is invariably appointed, accompanied by two attesting witnesses, preferably the close relatives of the ladies, to identify them before the Local Commission and also to become attesting witnesses to the statements, given to the Commission to dispel any apprehension of fraud or misrepresentation because “Parda Nasheen” ladies, keeping in view the traditions and culture of the society, do not appear in the common assembly. The Local Commission and the two witnesses must establish that the ladies gave statements with their free will, full understanding about the nature of the transaction and also admitting of having received the sale consideration for the land sold and that, at the relevant time, they were having free and full advice of the close relatives. The departure, made by the Revenue Officer in this case, from the well prescribed procedure, strongly suggests that foul play was committed and everything was arranged in a concerted manner. It was for this reason that, the two attesting witnesses to the mutation were also not produced as they were not supporting the transaction. The fact that the mutation was attested in the absence of all the three vendors, as none of them have thumb impressed the same, is a blatant violation of the mandatory provision of sub-s.(7) of s.42 of the Land Revenue Act. CA 525/13 8 18. Albiet, the mutation in the present form cannot be held to be a document, duly executed, even then, the evidence of the two attesting witnesses was very much necessary, as required under Article 17 read with Article 79 of the Qanoon-e-Shahadat Order, 1984. This was so essential in the peculiar facts and circumstances of the case, where the entire onus of proof did lay on the defendant/respondent. The contention that the mutation is a 30 years old document, therefore, under Article 100 of the Order, 1984 it was admissible in evidence, is equally misconceived one. There is a sky high difference between admissibility of document and its evidentiary value. Moreover, when registered document is subject to proof and production of two attesting witnesses becomes essential when its execution is denied by the executants, as required by the proviso to Article 79 of the Order, 1984 then, presumption attached to 30 years old document under Article 100 of the Oder, 1984, cannot be placed on better pedestal than a registered document, which under the Registration Act, 1908 is considered to be a notice to the public at large and carries much more sanctity under the law and when this mutation is not thumb impressed by the executants then, it is not protected under the provision of Article 100 of the Order, 1984, nor the relevant presumption is attached to it. 19. The learned Single Judge and the Trial Court have conveniently ignored all the above facts, which are vital and fundamental in nature, while giving the verdict on the issue of limitation. In the first instance it may be pointed out, without any fear of denial, that fraud vitiates every solemn transaction and Court of law CA 525/13 9 shall, in no eventuality, endorse and perpetuate a fraud once it is proved to have been committed. Any transaction, which is the result of misrepresentation, is not protected on the ground of period of limitation. It is a settled principle of law that whenever such transaction is pressed into service or is pleaded, the Court of Law has to refuse to give effect to the same, much less to execute the same or endorse and acknowledge it. In the present case, appellant No.1 has given ample explanation that on return from Sindh province, he came to know about the fraudulent transaction i.e. the attestation of mutation and without any delay all of them including the two ladies instituted the suit within a month from the date of knowledge, therefore, the learned High Court fell into grave error by knocking out the appellants/plaintiffs on the misconceived notion with regard to the period of limitation. The findings recorded and the conclusion drawn in this regard, are absolutely untenable in law. 20. Before concluding this judgment, it is deemed essential to point out that the High Court has a very limited revisional jurisdiction, the parameters of which have been well defined by S.115, CPC. In the case of PATHANA v. Mst. WASAI (PLD 1965 SC 134) this Court has held that where a sentence is capable of two equal interpretations, even then the one preferred by the District Appeal Court cannot be said to have misdirected himself by adopting one of them, rather a due weight shall be given to the same. On re-appraisal of evidence, the High Court in its limited revisional jurisdiction cannot substitute its own opinion for that of the District Appeal Court even if it is possible, unless and until the interpretation adopted by the District Appeal Court has caused serious and grave miscarriage of justice. In the present case, there was no occasion for the High Court to indulge in such exercise and that too in a limited and confined revisional jurisdiction. CA 525/13 10 21. For the reasons stated above, this appeal is allowed, the impugned judgment dated 15.04.2013 of the learned Single Judge of the Peshawar High Court, Abbottabad Bench, Abbottabad is set aside, while the judgment and decree of the learned Additional District Judge, Haripur dated 7.5.2005 is restored and the suit of the plaintiffs/appellants is decreed as prayed for, with no order as to costs. Judge Judge Islamabad, the 27th January, 2016 Nisar /* ‘Approved For Reporting’

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Civil Appeal No.527 of 2020 [Against the judgment dated 18.06.2019, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.785 of 2014] The Controller Military Accounts (Pension) Lahore Cantonment and others. …Appellants (s) Versus Muhammad Sabir (deceased) through L.Rs. and others. …Respondent(s) For the Appellant(s) : Mr. Ayaz Shaukat, Deputy Attorney General for Pakistan Imtiaz Ahmed, Assistant Accounts Officer For the Respondent(s) (Legal Heirs) : Malik Muhammad Asghar (son of Muhammad Sabir, deceased) Date of Hearing : 03.12.2020 O R D E R Gulzar Ahmed, CJ.— Respondent No.1, Muhammad Sabir (the Respondent), was a reservist in the Pakistan Army and was discharged. He was being paid special pension payable to reservists as per the Pension Regulations of Armed Forces. The Federal Government issued Office Memorandum dated 01.07.1988, by which the minimum pension was fixed at Rs.300/- per month. Through a further Office Memorandums dated 02.07.2008, the minimum pension was increased to Rs.2,000/- per month, then to Rs.3,000/- per month from 05.07.2010 and to Rs.5,000/- per month from 16.07.2013. The minimum pension was not allowed to the respondent, who then filed a writ petition in the Lahore High Civil Appeal No.527 of 2020 (Approved for Reporting) - 2 - Court, Rawalpindi Bench (the High Court) claiming that he was entitled to be paid the minimum pension. The High Court, by the impugned judgment dated 18.06.2019, allowed the writ petition and directed the appellants to pay the minimum pension to the respondent and set aside the Notifications dated 27.05.1989, 14.11.2008 and 09.07.2009 denying the minimum pension to the respondent. 2. We have heard the learned Deputy Attorney General for Pakistan (the DAG) so also Malik Muhammad Asghar, son of Muhammad Sabir, the deceased respondent. 3. The learned DAG has contended that the respondent, being a reservist, was not entitled to payment of the minimum pension for the reason that a reservist is not a regular Armed Forces Personnel, rather is a reserve whose service can be called upon by the Army if and when required. During the period a reservist’s service is not required, he is entitled to engage himself in any service for his monetary gain. He has further contended that the reservists are persons, who do not have active qualifying service for pension and are therefore, granted special pension at a fixed rate provided in the Pension Regulations. 4. On the other hand, Malik Muhammad Asghar, son of the deceased respondent, has supported the impugned judgment. 5. It is noted that the Federal Government, under Section 176-A of the Pakistan Army Act 1952, has issued the Pension Regulations for Armed Forces and such Pension Regulations have been updated, corrected and amended from time to time. 6. The respondent was discharged as a reservist in or about 1973. He was issued a Pension Book, where the class of Civil Appeal No.527 of 2020 (Approved for Reporting) - 3 - pension was noted as “Proportionate SPR”. The respondent continuously received such pension along with increases granted by the Federal Government from time to time. Through Office Memorandum dated 01.07.1988, the Federal Government directed that with effect from 01.07.1988 no gross pension of a retired government employee, including those paid from Defence Services Estimates as sanctioned under the Rules would be less than Rs.300/- per month. The Federal Government also issued Office Memorandums dated 02.07.2008, 05.07.2010 and 16.07.2013 by which the minimum pension of the government employees and those paid from Defence Services Estimates were increased to Rs.2,000/-, Rs.3,000/-, Rs.5,000/-per month respectively. 7. The Controller Military Pensions addressed a letter dated 03.12.2013 to the Chief Postmaster (Pension), Rawalpindi, GPO that a special pensioner cannot be granted the minimum pension announced by the Government from time to time as per the clarification issued by the Military Accountant General’s letters dated 27.05.1989, 14.11.2008 and 09.07.2009. A perusal of the above mentioned letters of the Controller Military Pensions shows that special reservist pensioners drawing a special pension have been excluded from being paid the minimum pension as sanctioned by the Federal Government. Not much of a reason has been given as to why such minimum pension is not admissible to the special reservist pensioners drawing special pension. The Controller of Military Accounts in his report filed in the High Court has given the following reason for non-payment of the minimum pension to the reservists:- “It is submitted that Special Pension is granted to those individuals who do not complete the service limit prescribed Civil Appeal No.527 of 2020 (Approved for Reporting) - 4 - for the rank and discharge from service before completing the 15 years colour service. Such individuals are placed on reserve liability and discharged on completion of reserve period. As per para 5 of the New Pension Code such individuals are entitled for grant of fixed rates of Special Pension when they are discharged on completion of more than 15 years, colour + Reserve Service. Copies of page No. 29 and 30 of New Pension Code are enclosed as per Annexure “B”. The same rules have been incorporated in Pension Regulation Vol-I 1986, 1999 and 2010. Copy of rule 65 of pension Regulation Vol-1 2010 is enclosed as per Annexure "C. It is submitted that the minimum pension is admissible to those pensioners who complete the service limit prescribed for the rank, therefore, the reservist pensioners are not at par, hence not entitled for minimum pension as per clarification of the MAG Rawalpindi issued vide letter No. AT/Pen/3336-VI dated 27-05-1989 (page 26 of the writ petition). It is further submitted that the claim for grant of Special Pension is submitted by the executive i.e. commandant of concerned Record Wing duly signed by the individual, wherein he requests for grant of Special Pension.” 8. A copy of the Pension Code has been attached with the report as Annexure ‘B’ and Item 5 thereof provides for Service Qualifying for Pension. Clauses (d) & (e) thereof deal with the reserve service, which are as follows: - (d) One-half of a reserve service will count as pensionable service in the case of persons recalled to colours or called up for Active Service. (e) A person discharged from the Reserve, after a prescribed period at combined Colour/Active and Reserve qualifying service of not less than 15 years, will be eligible for a special pension at the following rates: (i) Those who are recalled [released] from Reserve without having drawn pay in the revised scales effective from 1-12- 1962. Sepoy Naik ) ) & equivalent ranks in the Navy and Air Force =Rs.10/- P.M. =Rs.13/- Hav ) =Rs.15/- J.C.O ) =Rs.25/- (ii) Those who are released from Reserve after having drawn pay in the revised scales of pay effective from 1-12-62. Sepoy Naik ) ) & equivalent ranks in the Navy and Air Force =Rs.20/- P.M. =Rs.25/- Hav ) =Rs.30/- J.C.O ) =Rs.50/- NOTE: Para 5 (d) & (e) modified vide Ministry of Defence No. F. 383/D.45/69 dated 10-9-1969. Civil Appeal No.527 of 2020 (Approved for Reporting) - 5 - When the qualifying service is 10 years or more but less than 15 years, a proportionate pension based on the above rates will be admissible. NOTE: (i) Reserve Service not involving periodical training will not reckon as pensionable service. (ii) Reserve Service not preceded by Colour Service without a break will not reckon as pensionable.” 9. The above portion of the Pension Code shows that reservists are paid a special pension, the rate of which has been fixed in the Code itself. It also provides that where qualifying service is 10 years or more but less than 15 years, a proportionate pension based on the rates will be admissible. 10. The High Court, in the impugned judgment, has proceeded to consider the case on the basis that the Office Memorandums issued by the Federal Government does not distinguish the class of pensioners, who are to be granted minimum pension and noted that the sanction of the Federal Government of minimum pension is for all classes of pensioners, without any discrimination. The High Court also noted that the appellants were not competent to vary or modify the decision of the Federal Government by interpretation or clarification. In the case of I.A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), a five member bench of this Court on the question of reasonable classification held that “equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike”. The Court further held that “in order to make a classification reasonable, it should be based upon an intelligible differentia, which Civil Appeal No.527 of 2020 (Approved for Reporting) - 6 - distinguishes persons or things that are grouped together from those who have been left out; that the differentia must have rationale nexus to the object sought to be achieved by such classification”. 11. On the basis of this authority, we note that the very Pension Regulations of the Armed Forces has created a class of reservist pensioners and this class of reservist pensioners has been created on the basis that one-half of a reserve service will be counted as pensionable service in case of a person recalled to the colours or called up for active service and a person discharged from the reserve after a prescribed period of combined colour/active and reserve qualifying service of not less than 15 [10] years will be eligible for a special pension at the rates mentioned therein. 12. The Pakistan (Army and Air Force) Reserves Act, 1950, provides for the creation of a Division of reserve force in the Pakistan Army. By Section 6, the Federal Government has been given the power to make rules to carry out the purposes of the said Act, including providing for the constitution of, and the appointment or transfer of any person as a reservist to the reserves, to regulate the pay and allowances of a reservist, and to provide for and regulate the gratuities or compensation, if any, to be paid to reservists or any category of reservists or to any dependents of reservists. Pursuant to the said Act, the Pakistan Army Reserves Rules, 1974 were made. Rule 3 of the rules provides that all the reservists other than Junior Commissioned Officer shall be subject to the Pakistan Army Act, 1952 and the rules and regulations made thereunder only when called up by the competent authority for service in the Army or for training. Rule 11 Civil Appeal No.527 of 2020 (Approved for Reporting) - 7 - thereof deals with the pay and allowance during training and recalled Army service and provides that pay and allowances to which a reservist is entitled shall be admissible from the date on which he leaves his place of residence or employment for the place of training or duty up-to the date of his return to his residence or place of employment on completion of duty or training, provided that he has no entitlement of pay and allowances for the period of the journey from the other source, Government or Semi- Government. 13. The Pension Book of the respondent, a copy of which is filed with the writ petition, shows the class of pension of the respondent as “proportionate SPR” and having the rank of sepoy, he was paid proportionate pension of the rate fixed in the above Code. Now, a pensioner whose class is that of a fixed rate and that too proportionate of a fixed rate will at all admit of a class of pensioners, who are allowed minimum pension. The law does allow classification of pensioners into different groups with different amounts of pensions admissible to the respective groups. The condition, as in respect of government employee, is that it should be so determined by statute, rules or regulations duly made by the competent forum. We see from the Army Pension Code, which is admittedly made as Regulations under Section 176-A of the Army Act, 1952 that the reservist is a separate class or group of Army Pensioners. The main reason for this classification is that the reservists are paid fixed rated pension as fixed by the Army Pension Code, whereas the remaining classifications are of those, who are Retiring Pensioners, Invalid Pensioners, Superannuation Pensioners and Compensatory Pensioners and their pensions are Civil Appeal No.527 of 2020 (Approved for Reporting) - 8 - not provided for in the Army Pension Code to be fixed rated, rather their pensions are counted on their having qualifying period of service and last pay drawn etc.. Thus, the classification of reservist pensioners is quite distinct from other classes of pensioners in the Army. 14. Now, we come to deal with the question of whether reservist pensioners of Army could be allowed minimum pension. As noted above in the Army Pension Code, reservists are fixed rated pensioners. The word “rate” is used in Item 5 of the Code and the rates of pensioners are also mentioned against the ranks. The Four Office Memorandums issued by the Federal Government providing for minimum pensions are as follows: - “Finance Division O.M. No.F-9(12) Reg.(6)/88(A) dated 01.07.1988 “The President has been pleased to direct that with effect from 01.07.1988 no gross pension of a retired government employee, including those paid from Defence Services Estimates as sanctioned under the Rules would be less than Rs.300/- per month. Finance Division O.M. No. F.15(1)-Reg.6/2008 dated 02.07.2008 “The undersigned is directed to refer to Finance Division’s O.M. No.9(12)-Reg.6/88-(A) dated 01.07.1988 on the subject cited above and to state that the President has been pleased to sanction with effect from 1st July, 2008 the increase in minimum pension from Rs.300/- p.m. to Rs.2000/- p.m. to civil pensioners of the Federal Government including civilians paid from Defence Estimates as well as Armed Forces Personnel.” Finance Division O.M. No. F.15(1)-Reg.6/2010/777 dated 05.07.2010 “The undersigned is directed to refer to Finance Division’s O.M. No.15(1)-Reg.6/2008 dated 02.07.2008 on the subject cited above and to state that the President has been pleased to sanction with effect from 1st July, 2010 the increase in minimum pension from Rs.2000/- p.m. to Rs.3000/- to civil pensioners of the Federal government including civilians paid from Defence Estimates as well as Armed Forces Personnel.” Finance Division O.M. No. F.15(1)-Reg.6/2010-1375 dated 16.07.2013 “The undersigned is directed to refer to Finance Division’s O.M. No.15(1)-Reg.6/2010 dated 05.07.2010 on the subject cited above and to state that the President has been pleased Civil Appeal No.527 of 2020 (Approved for Reporting) - 9 - to sanction with effect from 1st July, 2013 the increase in minimum pension from Rs.3000/- p.m. to Rs.5000/- to civil pensioners of the Federal government including civilians paid from Defence Estimates as well as Armed Forces Personnel.” The first of the above quoted Office Memorandum dated 01.07.1988, specifically provides that “no gross pension of a retired government employee, including those paid from Defence Services Estimates as sanctioned under the Rules would be less than Rs.300/- per month”. The remaining three Office Memorandums dated 02.07.2008, 05.07.2010 and 16.07.2013, as they read, have been issued in continuation of the first Office Memorandum because they specifically and respectively make reference to the earlier Office Memorandum. This means that the condition or conditions mentioned in the first Office Memorandum have to be read in the remaining three Office Memorandums. This is also so because the subject of the first Office Memorandum was “minimum pension” and the remaining three Office Memorandums also deal with the same subject i.e. “minimum pension”. This interpretation is in accord with the principle of interpretation of statutes in pari materia and in Crawford: the Construction of Statutes (1940) at pages 433-434 has dealt with it as follows: - “The rule which thus allows the Court to resort to statutes in pari materia finds its justification in the assumption that statutes relating to the same subject matter were enacted in accord with the same legislative policy; that together they constitute a harmonious or uniform system of law; and that, therefore, in order to maintain this harmony, every statute treating the same subject matter should be considered. As a result, statutes in pari materia should not only be considered but also construed to be in harmony with each other in order that each may be fully effective. They are to be construed together as if they constituted one act.” Read on this established rule of interpretation, the foremost thing that catches our attention is that the first Office Memorandum has its application to a retired government Civil Appeal No.527 of 2020 (Approved for Reporting) - 10 - employee, including those paid from Defence Services Estimates. The words “including those” in this Office Memorandum cannot be given any extended meaning but to be construed ejusdem generis i.e., those paid from Defence Services Estimates will not be anyone but a retired employee paid from Defence Services Estimates. Thus, the first Office Memorandum has its application to retired government employees and retired employees paid from Defence Services Estimates and same is the effect of the remaining three Office Memorandums. The respondent, in para-4 of the writ petition, has admitted that he was discharged as a reservist and that he was granted special pension of Rs.40/- per month. The respondent has nowhere alleged that he was a retired employee paid from Defence Services Estimates. Being not a retired employee, the four Office Memorandums have no application to the respondent and the respondent is not entitled to the grant of a minimum pension as prescribed by the said four Office Memorandums and subsequent Office Memorandums issued on the same subject. 15. We also note that the respondent, being a fixed rated pensioner, was not entitled to the minimum pension, for that, the scheme of minimum pension does not fit, in the scheme of fix rated pension. We also note while announcing minimum pension by the Office Memorandums, the Federal Government did not change or alter the fixed rates of pensions of reservists as prescribed by the Army Pension Code. As from time to time the Army Pension Code has been amended by the Federal Government and the last mentioned amendment appears to have been made in 2010, where Civil Appeal No.527 of 2020 (Approved for Reporting) - 11 - Army Reservists are shown to be entitled to fix rate of special pension. 16. We also note that reservists comprise of reserve forces created by the Pakistan (Army and Air Force) Reserves Act, 1950 with their rules of service by the name of the Pakistan Army Reserve Rules, 1974. The Reserve Force of the Pakistan Army is a distinct force from the regular Pakistan Army Force created under the Pakistan Army Act, 1952. This narration itself shows that a reservist or Reserve Force is a distinct class of force from that of a regular Pakistan Army Force. 17. The High Court in the impugned judgment has not considered the matter in the light of the above mentioned applicable facts and laws and thus, passed the judgment, which is not sustainable in law. Consequently, the appeal is allowed and the impugned judgment is set aside. The writ petition filed by the respondent is dismissed. Bench-I Islamabad CHIEF JUSTICE 03.12.2020 APPROVED FOR REPORTING Rabbani*/ JUDGE Announced in open Court on 1st April, 2021 CHIEF JUSTICE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE FAISAL ARAB MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL APPEAL NO.528-L OF 2012 (Against the judgment dated 17.09.2009 of the Lahore High Court, Lahore passed in RSA No.58/2008) Muhammad Afzal (decd.) through L.Rs. etc. …Appellant(s) VERSUS Muhammad Bashir and another …Respondent(s) … For the appellant(s): Maulvi Anwar-ul-Haq, ASC Syed Rifaqat Hussain Shah, AOR For respondent No.1: Malik Noor Muhammad Awan, ASC Date of hearing: 20.11.2019 … ORDER FAISAL ARAB, J.- The case of respondent No.1 in his suit for specific performance of contract was that the predecessor-in- interest of the appellant No.1 entered into an agreement to sell with him with regard to his property comprising of 29 kanals. In this regard the appellant No.1 executed a sale agreement on 23.01.1992 which admittedly was signed by him and on the same day a registered power of attorney was also executed in favour of his brother entrusting all the powers of sale and transfer etc. to him. At that time the property was mortgaged therefore could not be transferred and when the mortgage was redeemed on 18.01.1994, the respondent No.1 filed the suit for specific performance of the contract on 30.04.1994. Both the documents were produced in evidence, however, out of the two attesting witnesses of the sale agreement only one Civil Appeal No.528-L of 2012 -: 2 :- appeared as witness. On the basis of the admission of the executant of both the documents the suit was decreed. The appeal filed by the appellants failed and so was their second appeal. Against the concurrent findings of the three courts below, leave was granted on the ground that though the execution of the sale agreement has been admitted but its contents have been denied. 2. Learned counsel for the appellants contends that the requirements of Article 17 of the Qanun-e-Shahadat Order, 1984 were not met and only one attesting witness out of two was examined. He further submits that though the execution of sale agreement is admitted but its contents were denied, therefore the sale agreement ought not to have been allowed to be admitted in evidence and resultantly the suit ought to have been dismissed. In support of his contention, he has relied upon the judgments reported as Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241), Mt. Hira Bibi and others Vs. Ram Hari Lal and others (AIR 1925 Privy Council 203) and Sheik Kachu Vs. Muhammad Ali Mahmud (AIR 1927 Calutta 926). 3. In rebuttal, learned counsel for the respondent relied upon a judgment of this Court reported as Abbas Ali Vs. Liaqat Ali and another (2013 SCMR 1600) wherein it has been held that the documents are required to be attested by two witnesses but where the executant admits the execution of the document, then in terms of Article 81 of the Qanun-e-Shahadat Order, 1984, such document can be used against him though it was required by law to be attested. 4. We have heard the learned counsel for the parties and find that the sale agreement has been attested by two witnesses and Civil Appeal No.528-L of 2012 -: 3 :- the omission to produce one attesting witness is of no legal consequence in terms of Article 81 of the Qanun-e-Shahadat Order, 1984. The said Article reads as under:- “81. Admission of execution by party to attested document.-- The admission of a party to an attesting document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.” Article 81 is an exception to the general rule that where a document is required by law to be attested the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution. The simple reading of Article 81 shows that where the execution of a document is admitted by the executant himself, the examination of attesting witnesses is not necessary. The case law cited by the appellants’ counsel has no application as Article 81 is attracted in this case. Furthermore, the execution of power of attorney has not been denied which also contains the power to sell. When sale agreement is considered in the light of the contents of the power of attorney, clearly both the documents depict that the sale transaction has taken place. We are, therefore, not inclined to interfere with the concurrent findings of three courts below. This appeal is, therefore, dismissed. JUDGE JUDGE Islamabad, the 20th of November, 2019 Approved for reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, CJ Mr. Justice Sh. Azmat Saeed Mr. Justice Umar Ata Bandial CIVIL APPEAL NO. 532 OF 2015 (On appeal from the judgment/order dated 12.05.2015 passed by learned Election Tribunal, Multan in Election Petition No.44/2013-ECP & 5/2013-ETM) Rai Hassan Nawaz … … Appellant. Versus Haji Muhammad Ayub & others … … Respondents. For the appellant : Mr. Uzair Karamat Bhandari, ASC. Mr. M.A. Sheikh, AOR. For respondent No.1 : Sardar Muhammad Aslam, ASC Mr. Mughees Aslam Malik, ASC. Ch. Akhtar Ali, AOR. Date of hearing : 25.05.2016. JUDGMENT: UMAR ATA BANDIAL, J. – This direct appeal is filed under Section 67(3) of the Representation of the People Act, 1976 (“ROPA”) against the judgment dated 12.05.2015 of the learned Election Tribunal, Multan whereby the election of the appellant as returned candidate from the National Assembly constituency NA-162 Sahiwal-III was declared void for his failure to possess the qualities specified in Article 62(1)(f) of the Constitution of Islamic C.A.532/2015 2 Republic of Pakistan and for the commission of corrupt practice falling within the mischief of Section 78(3)(d) of the ROPA. 2. As grounds to unseat the appellant the impugned judgment of the learned Election Tribunal gives several adverse findings of facts against the appellant. However, after hearing the learned counsel for the parties and upon a reading of the impugned judgment we notice that the appellant’s false statement or incorrect declaration about his assets in his nomination papers constitute the essential basis of the learned Election Tribunal’s findings. Section 78(3)(d) of the ROPA provides the underlying substantive law in this respect: “78. Corrupt practice.–- A person is guilty of corrupt practice if he -- (1) … (2) … (3) makes or publishes a false statement or submits false or incorrect declaration in any particular material -- (a) … (b) … (c) … (d) in respect of his educational qualifications, assets and liabilities, or any liability with regard to payment of loans or adherence to party affiliation specified in sub-section (2) of section 12. 4) …” (emphasis supplied). Section 12(2) of the ROPA which is mentioned in the above said provision imposes a duty of disclosure on every contesting candidate in the following terms: “12. Nomination for election.– (1) ... (2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany C.A.532/2015 3 (a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member; (b) [Omitted]. (c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off; (d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers; (e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, alongwith attested copies thereof; and (f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June;” The attack upon the impugned judgment by the appellant before us centers on the validity of the finding about the concealment of assets by the appellant in his nomination papers and the jurisdictional competence of the learned Election Tribunal to entertain the election petition in the form that it was filed. 3. The relevant facts of the case in relation to the allegation of false or incorrect statement of assets by the appellant under Section 12(2) of the ROPA are that in his nomination papers (Exb.P-70) he describes his sole vocation to be agriculture. To comply with the duty cast by Section 12(2) of the ROPA, he attached a statement of his assets and liabilities along with his nomination C.A.532/2015 4 papers. This includes a detail of the agricultural land owned by him in different revenue estates of District Sahiwal and District Vehari. However, this detailed account fails to mention land measuring 39 Kanals 19 Marlas situate in Qasba Chichawatni, Tehsil Chichawatni, District Sahiwal. The extract from the Jamabandi of 1997-98 and 2009-10 for the said piece of land shows its ownership to vest in the appellant. These extracts are exhibited on the record of the learned Election Tribunal as Exb.P-26/1 and Exb.P-32 (available at pages 561 & 566 of the appeal file). 4. In his statement recorded as RW-2 by the learned Election Tribunal, the appellant has stated that the said land belongs to Rai Cotton Factory (Pvt.) Ltd., a company that is owned by his family. Nevertheless, the appellant admits that in the revenue record the ownership of 22 Kanals of the said land are recorded in his name and the rest in names of his family members. Also that there is no mutation of transfer of ownership of the said land in favour of Rai Cotton Factory (Pvt.) Ltd. He accepts that although the land is described as agricultural land, however, it has been put to commercial and residential use by construction of buildings thereon. These comprise, inter alia, 22 shops that have been rented out to tenants including seven banks. The buildings also include 25 quarters and one Petrol/CNG pump depicted in the aks shajra (Exb.P-31) of the said land (available at page 564 of the appeal file). The appellant admits that the rent agreements of all the properties C.A.532/2015 5 are made in his name and he receives a total annual rent of Rs.3.778 million from the properties located in the said Qasba Chichawatni land. He conceded that neither the said land nor any of its superstructures that accommodate banks, shops, quarters and Petrol/CNG pump are mentioned in the statement of assets made and filed by the appellant with his nomination papers (Exb.P-70). It is clear that the appellant has in his own statement as RW-2 before the learned Tribunal admitted and accepted that in his nomination papers he did not disclose the Qasba Chichawatni properties belonging to him. His justification is fanciful; being based on a misplaced presumption that the said land and properties somehow belong to the Rai Cotton Factory (Pvt.) Ltd. because the income derived from these properties is statedly declared in the income tax return of the said company. 5. The explanation given by the appellant was rightly rejected by the learned Election Tribunal as being futile and meaningless. When the recorded owner of the Qasba Chichawatni properties is the appellant then merely by the declaration of its rental and other income in the income tax return filed by a family company cannot make that company the owner of such properties. Accordingly, the said arrangement does not discharge the obligation of the appellant to make a full and truthful disclosure of the Qasba Chichawatni properties in the declaration of his assets made in his nomination papers. Consequently, to our minds, the finding of C.A.532/2015 6 concealment of assets given by the Election Tribunal against the appellant is fully warranted on the merits and record of the case. 6. Learned counsel for the appellant has tried to demolish that finding on the basis of law declared by different High Courts in Illahi Bux Soomro vs. Aijaz Hussain Jakhrani (2004 CLC 1060), Umar Ayub Khan vs. Returning Officer, NA-19 (2003 MLD 222) and Ghazanfar Ali vs. Noor Muhammad (PLD 2011 Lahore 11). These judgments treat a plausible explanation given by a contesting candidate for non-disclosure of assets in his nomination papers to be an exonerating factor. It is held that an element of deliberation by such candidate should be the cause of incomplete or non-disclosure of his assets or liabilities. We agree that a trifling error induced by reliance placed upon information furnished by a government functionary would not fall within the pale of Section 78(3)(d) of the ROPA. Rather this Section constitutes a false statement or incorrect declaration made by a contesting candidate in respect of a ‘material’ particular, inter alia, about his assets and liabilities, to be a corrupt practice. Indeed an error or omission that is neither intentional nor pertains to a material particular in relation to the assets or liabilities of a contesting candidate would not constitute a corrupt practice. In the present case, the facts are, however, different. Several valuable urban properties yielding income running into millions of rupees have under a conscious tax scheme, affirmed and defended by the appellant before the learned Election Tribunal, been parked in the C.A.532/2015 7 income tax return of a family company. With rights of ownership thereof including title, control and profits being vested in and enjoyed by the appellant, the conditions of a plausible explanation here are altogether absent. 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 bona fides 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 vs. Peer Ghulam (PLD 2016 SC 689). 8. We, therefore, observe that any plausible explanation that exonerates, inter alia, mis-declaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an C.A.532/2015 8 elected or contesting candidate. Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for a learned Election Tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under Section 12(2) of the ROPA is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in Section 12(2) of the ROPA. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators. The said purpose and object comes across clearly in Muhammad Yousaf Kaselia vs. Peer Ghulam (PLD 2016 SC 689): “5. It is of utmost importance, that a contesting candidate must disclose the assets that he owns and the liabilities that he owes in his nomination form. The disclosure of liabilities is more important that disclosure of assets. It is important for the reason that while holding public office, in case the liability incurred prior to the election is liquidated, he could be called upon to explain the source from which the liability was liquidated; that is, whether the same was liquidated from his personal sources of income or that he had misused the authority of the public office in any manner that contributed to the liquidation of the liability. C.A.532/2015 9 Therefore, non-disclosure of any liability is to be met with penal action in the same manner as non-disclosure of any asset. …” It is for that reason that in a number of recent judgments, this Court has treated inaccurate disclosure of proprietary and financial resources to be fatal to the election of a returned candidate. In Muhammad Ahmad Chatta vs. Iftikhar Ahmad Cheema (2016 SCMR 763), the failure by a returned candidate to disclose a presumed inactive bank account and in Shamuna Badshah Qaisarani vs. Muhammad Dawood (2016 SCMR 1420) the omission by a lady returned candidate to disclose her agricultural land claimed to be transferred to her brothers without evidence of the mutation were held to annul their elections. 9. Considering the recorded evidence of the appellant’s conscious knowledge of his recorded ownership of the Qasba Chichawatni properties, his learned counsel has forcefully argued his jurisdictional challenge to the impugned judgment. It transpires that the person who verified the election petition and annexures thereto at the time of its filing in the year 2013 did not actually possess a Notary Public/ Oath Commissioner’s licence. Actually his licence had been terminated by the Lahore High Court in the year 2005 but he continued to deceive the public and allegedly also the respondent, election petitioner. 10. This fact was highlighted by the appellant on 12.08.2013 through an application under Section 63 of the ROPA calling for the dismissal of the respondent’s election petition for its failure to C.A.532/2015 10 comply with the mandatory requirement of Section 55(3) of the ROPA. This provision, inter alia, envisages that every election petition and annexure thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Section 63 of the ROPA mandates that a petition, which fails to, inter alia, comply with the requirements of Section 55 shall be dismissed. Since the attestation and verification done by a charlatan has no legal sanctity, therefore, the fatal defect in the election petition filed by the respondent is apparent on the face of the record. 11. Upon learning about the foregoing defect of non- verification of the contents of his election petition, the respondent on 27.03.2014 filed an application seeking permission for the re- verification of its contents. On 24.04.2014, the learned Election Tribunal dismissed the appellant’s application under Section 63 of the ROPA and permitted the respondent to re-verify the relevant pages of and the documents attached to his election petition. Section 52(2) of the ROPA prescribes a limitation period of 45 days for filing an election petition duly compliant with the mandatory procedural requirements. However, both the filing date of application seeking re-verification of the election petition and the date of the enabling order passed thereon occurred long after the expiry of the prescribed limitation period. The learned Election Tribunal, however, held that fraud was committed by the fake Notary Public/Oath C.A.532/2015 11 Commissioner and, without citing any authority, concluded that in such a case limitation did not run. 12. Learned counsel for the appellant has strenuously argued that the amendments made in an election petition beyond the prescribed period of limitation are illegal and void. He has relied upon the cases of Umar Aslam vs. Sumera Malik (PLD 2007 SC 362), Zia ur Rehman vs. Ahmed Hussain (2014 SCMR 1015) and Hina Manzoor vs. Ibrar Ahmed (PLD 2015 SC 396). 13. We find that the law referred by the learned counsel for the appellant is clear and emphatic in making the bar of limitation in the given facts of the case to be inflexible. The exception of fraud vitiating the most solemn proceedings invoked by the learned Election Tribunal cannot arrest the limitation from running altogether. In such cases convincing evidence of fraud combined with evidence of timely reaction from the date of knowledge of such fraud must be established by the affected election petitioner. Here the application by the respondent for re-verification of the election petition was filed on 27.03.2014 more than seven months after receipt of notice of the defect on 12.08.2013. On the other hand, the prescribed limitation period under Section 52(2) of the ROPA for filing an election petition and therefore an amendment thereto is 45 days. From the record we do not find convincing proof either of commission of fraud against the respondent or of the sufficient cause inducing the delay by him. We consider the application by the C.A.532/2015 12 respondent for amendment through re-verification of the election petition to be time barred and liable to dismissal as held in the cases of Umar Aslam (PLD 2007 SC 362) and Zia ur Rehman (2014 SCMR 1015). 14. Be that as it may, notwithstanding the bar of limitation it must be observed that the matter does not end here. By the incorporation of Section 76A in the ROPA, the Legislature has invested an extra-ordinary jurisdiction in the Election Tribunal, inter alia, in matters pertaining to financial statements, declarations and disclosures made by returned candidates in their nomination forms. The said provision is reproduced hereunder: 76A. Additional powers of Election Tribunal.-(1) If an Election Tribunal, on the basis of any material coming to its knowledge from any source or information laid before it, is of the opinion that a returned candidate was a defaulter of loan, taxes, government dues or utility charges, or has submitted a false or incorrect declaration regarding payment of loans, taxes, government dues or utility charges, or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents under section 12, it may, on its own motion or otherwise, call upon such candidate to show cause why his election should not be declared void and, if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration or statement, as aforesaid, it may, without prejudice to any order that may be, or has been made on an election petition, or any other punishment, penalty or liability which such candidate may have incurred under this Act or under any other law for the time being in force, make an order - (a) declaring the election of the returned candidate to be void; and (b) declaring any other contesting candidate to have been duly elected. C.A.532/2015 13 (2) If on examining the material or information referred to in sub-section (1), an Election Tribunal finds that there appear reasonable grounds for believing that a returned candidate is a defaulter or has submitted a false or incorrect declaration referred to in sub-section (1) it may, pending decision of the motion under subsection (1), direct that the result of the returned candidate shall not be published in the official Gazette. (3) No order under sub-section (1) or sub-section (2) shall be made unless the returned candidate is provided an opportunity of being heard. (emphasis supplied) It is clear from a plain reading of Section 76A of the ROPA that the power conferred on the Election Tribunal is exercisable on its own motion on the basis of material brought to its knowledge from any source. The Election Tribunal is therefore vested with a suo moto power to scrutinize, inter alia, false or incorrect statements made by a returned candidate in respect of his own assets and liabilities and those of his spouse or his dependents. These attributes dispense with any locus standi requirement for the informant, excludes any constraint of a prescribed limitation period, empowers the Election Tribunal to adopt a summary procedure initiated from a show cause notice. Section 76A ibid does not envisage opposing parties in its proceedings which are therefore not adversarial in nature. It is also clear that to obtain its satisfaction an Election Tribunal can summon requisite evidence on its own motion. 15. The object of Section 76A ibid is clearly meant to promote public interest by ensuring that elected public representatives have untainted financial credentials of integrity, probity and good faith. The Election Tribunal can summon evidence C.A.532/2015 14 on a matter in issue to the point of its satisfaction as to whether the allegation under scrutiny is justified or not. In this background the power vested by Section 76A ibid in an Election Tribunal is therefore inquisitorial rather than adversarial in nature. This principle finds recognition in Watan Party vs. Federation of Pakistan (PLD 2011 SC 997) as under: “49. The proceedings, which are initiated as public interest litigation in civil or criminal matters cannot be treated as adversarial because of the definition of nature of the proceedings where without contest between the parties a final finding has to be recorded, as it has so been held in the case of Tobacco Board v. Tahir Raza (2007 SCMR 97). In this judgment, matter relating to maintainability of writ of quo warranto was considered and it was held that such writ is to inquire from a person the authority of law under which he purports to hold public office and it is primarily inquisitorial and not adversarial, for the reason that a relater need not be a person aggrieved; such exercise can be done suo motu, even if attention of High Court is not drawn by the parties concerned. The same principle has been followed by the Court in Ch. Muneer Ahmad vs. Malik Nawab Sher (PLD 2010 Lahore 625).” The aforesaid rule has been reiterated in Riaz-ul-Haq vs. Federation of Pakistan (PLD 2013 SC 501) with reference to suo moto matters involving public interest. 16. Indeed, honesty, integrity, probity and bona fide dealings of a returned candidate are matters of public interest because these standards of rectitude and propriety are made the touchstones in the constitutional qualifications of legislators laid down in Articles 62 and 63 of the Constitution of Islamic Republic of C.A.532/2015 15 Pakistan. In the present case, the delay in obtaining verification of the election petition and its annexures by the respondent becomes immaterial because the allegation under scrutiny is covered by Section 76A of the ROPA. As already noted above, for triggering the remedy under Section 76A of the ROPA there is no requirement of an election petition to be filed let alone for its contents to be verified. The learned counsel for the appellant was invited to comment upon as to why proceedings undertaken by the learned Election Tribunal in relation to the allegation of false and incorrect statement by the appellant of his assets and liabilities should not be treated as having been conducted under Section 76A of the ROPA. He pointed out that the learned Election Tribunal had not done so. That is inconsequential; appellate proceedings are a continuation of the original proceedings. Sitting in appeal we can and do order so. Thereafter learned counsel has but merely emphasized that the disclosure of the property of the appellant in the income tax return of Rai Cotton Factory (Pvt) Ltd. constituted a plausible defence and in this behalf he referred the case law from the learned High Court that has already been mentioned above. 17. We consider that said plea taken by the learned counsel for the appellant acknowledges that the proceedings of the learned Election Tribunal against the appellant complied the requirements of due process; indeed the appellant was provided a right of written and oral defence, of cross-examining the election petitioner’s C.A.532/2015 16 witnesses and of producing his own documentary as well as oral evidence on the matter in issue. These safeguards are the requisities of a regular trial and were adopted by the learned Election Tribunal. The show cause notice procedure envisaged by Section 76A ibid is more than sufficiently satisfied by the same. Therefore, the only conclusion that can be drawn from arguments rendered by the learned counsel for the appellant is that the property owned by the appellant from which he regularly derives substantial income is disclosed and declared with his knowledge in the income tax returns of a private limited company owned by the appellant and his family. This plea is totally irrelevant, facile and meritless to rebut the allegation under Section 78(3) ROPA regarding the false statement with respect to the concealment of ownership of urban commercial property by the appellant. Further more, it is apparent that the disguised ownership of the said properties is aimed at avoiding the personal scrutiny and accountability of the appellant under the Income Tax Ordinance, 2001. At the level of income derived by the appellant that process also requires the disclosure of wealth of an assessee and a reconciliation of his total means and total expenditures. The statement of assets and liabilities made by the appellant in his nomination papers is, therefore, intentional and not a bona fide or an innocuous omission made without design or purpose. It does not exonerate the appellant. C.A.532/2015 17 18. For the foregoing reasons, we do not find any defect in the findings given by the learned Election Tribunal in its judgment dated 12.05.2015 against the appellant and therefore, affirm the declarations made therein in relation to the person and the election of the appellant from the National Assembly constituency NA-162 Sahiwal-III. Consequently, this appeal is dismissed with no order as to costs. 19. Herein above are the reasons of our short order of even date which reads as under: “We have heard arguments of the learned ASCs. For the reasons to be recorded separately, this appeal is dismissed.” Chief Justice Judge Judge Islamabad, 25.05.2016. Irshad Hussain /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE SARMAD JALAL OSMANY MR. JUSTICE DOST MUHAMMAD KHAN Civil Appeal No.535/2015 (On appeal from the judgment dated 13.6.2014 passed by the Peshawar High Court, Peshawar in Civil Revision No.509-P/2013). Wasal Khan etc …Appellants VERSUS Dr. Niaz Ali Khan ..Respondent For the appellants: Mr. Ahsan Hameed Lilla, ASC Syed Rifaqat Hussain Shah, AOR For the respondent: Mr.Mohsin Akhtar Kiyani, ASC Date of hearing: 30.9.2015 JUDGMENT Dost Muhammad Khan, J-. With the leave of the Court, through this appeal, the appellants have challenged the legality of the judgment dated 13.6.2014 of the learned Judge of the Peshawar High Court, Peshawar passed in Civil Revision No.509-P/2013. Arguments of the learned ASC for the appellants as well as respondent heard and available record carefully perused. 2. The epitome of the controversy is that respondent/plaintiff instituted a suit claiming right of preemption over the suit property described in the plaint measuring 11 Marla 4 Sarsahi. 3. In the plaint, as it appears, respondent/preemptor inadvertently mentioned the sale consideration allegedly paid by the vendee to the vendor as Rs.14,00,000/- (fourteen lac) while in fact the sale consideration mentioned in the mutation was Rs.14,40,000/-. CA.535/15 2 4. The trial Judge without fulfilling its legal obligation in a proper and fair manner passed an order under the provision of Section 24 of the NWFP Preemption Act, 1987 (now KPK) which reads as follows:- “ORDER#1 09.06.2012 1. The instant suit file submitted today during the MOD. Entrusted to the Court of the learned Civil Judge-III, Lahor and plaintiff to attend the proceedings therein while he is directed to deposit 1/3rd of the pre-emption amount within three days starting from today. 2. On submission of summon forms the defendants be summoned for 20-06-2012. Sd/- (Arbab Sohail Hamid) MOD/Civil Judge-II, Lahor” 5. The respondent/pre-emptor deposited 1/3rd of the preemption amount i.e. of the total amount shown in the plaint as Rs.1400,000/- (fourteen lac) within the time given by the Court. 6. The appellants/vendees with an attempt to get benefit of this bonafide error, took a plea of short deposit of 1/3rd of total amount both in the written statement as well as in the application submitted in the trial Court and prayed for dismissal of the suit because an amount of Rs.13330/-was the deferential amount which was less than the 1/3rd of the total amount of the sale consideration of Rs.14,40,000/- and because Section 24 of the Act leave no discretion with the Court but to dismiss the suit. The learned trial Judge dismissed the suit on 14.2.2013 for non-compliance with the Court order with regard to the deposit of 1/3rd of the preemption money, however, on appeal filed by the respondent/preemptor, the learned Additional District Judge, Lahor, District Swabi, for cogent reasons set aside the judgment and allowed the preemptor to make good the deficiency by depositing the remaining amount of Rs.13330/- and remanded the case to the lower Court for trial. CA.535/15 3 7. Aggrieved from this judgment, the appellant filed Revision Petition No.509-P/2013 in the Peshawar High Court, Peshawar which was dismissed through the impugned judgment. 8. It is unfortunate that the statutory words i.e. sale consideration has been given a misnomer describing the same preemption money and it is invariably used in the trial court and even in the District Appellate Court which is a wrong practice being misleading one and because it is distortion of the statutory phrase employed in the provision of section 24 of the Preemption Act “sale consideration”. The same is thus, misconceived practice. 9. In the instant the case, due to mistake of fact the draftsman/lawyer inadvertently without any malafide intent has mentioned the sale consideration as Rs.14,00,000/- (fourteen lac), instead of Rs.14,40,000/-. For the correction of the same, the respondent/preemptor has also applied to the trial court for amendment of the plaint to rectify the same which fact would show his bonafide intention. The respondent/preemptor has not gained any undue benefit because he has sincerely and faithfully complied with the initial court order by depositing a huge amount of Rs.466670/- thus by not depositing the additional amount of Rs.13330/- could not be held to be a deliberate non-compliance with the court order. More so, when the trial Judge had not specifically directed him to deposit 1/3rd of the sale consideration mentioned in the mutation. 10. Courts are under obligation to facilitate the litigant to a maximum extent by passing a clear order, giving direction without any ambiguity to the litigant to act in a certain way and in a particular manner and when it comes to calculation of an exact amount requires to be deposited thus, it must be clearly laid down/shown in the order and the litigant should not be pushed into realm of guess work, where in a uncertain situation, he is unable how to proceed and in what manner to comply with the order of the court. Therefore, it is the duty of the court to tell the plaintiff/preemptor the exact amount he is required to CA.535/15 4 deposit i.e. 1/3rd of the sale consideration. The word preemption money as stated earlier has been misconstrued in some cases by rustic villagers and when the provision of Section 24 of the Preemption Act, 1987 clearly contains the word sale consideration, then giving it another description like preemption money is patently wrong construction on the Statute. This practice invariably prevalent and always pressed into service must be stopped henceforth. It is also the duty of the court to clearly tell the plaintiff/preemptor that he is required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc. moreover, for the deposit of the said 1/3rd of the sale consideration a reasonable time must be given because in the instant case the learned Civil Judge was acting as MOD and was not a trial Judge, thus, the respondent/preemptor was required to apply to the trial court getting permission to deposit the amount in the court. Therefore, giving three days time was absolutely marginal and harsh. The discretion vested in the court to give the time has not been exercised in a just and fair manner. This is no way of performing a judicial obligation in a judicious manner. The order for the deposit of the amount was passed in great haste and also in entire vacuum which certainly led the respondent/preemptor to a wrong conclusion. Once it is established that initial error was committed by the learned Civil Judge then the blame cannot be shifted to the respondent/preemptor, in view of the well embedded principle that an act of the court shall prejudice none. 11. From the facts and circumstances, and the subsequent conduct of preemptor by quickly moving an application for amendment of the plaint to show the correct amount of Rs.14,40,000/- instead of Rs.14,00,000/- (fourteen lac) and willing to deposit the balance amount of 1/3rd at any time loudly speaks about his bonafide and once a wrong was committed by the trial court causing prejudice to the respondent/preemptor on the subject issue then, the respondent/preemptor could not be visited with penalty much less the harsh one by dismissing his suit on this account. CA.535/15 5 12. To avoid such unnecessary litigation on petty matters, it is directed that in future the trial court shall calculate the sale consideration mentioned in the registered sale deed or mutation or any other document and if these documents are not available then through other reliable source it has to calculate the same and then to direct the vendee/preemptor to deposit a specific amount within a stipulated period, however, the period for deposit must be reasonable. In future, the sale consideration given a misnomer as preemption money should not be used but the statutory phrase/words 1/3rd of the sale consideration should be invariably employed so that the responsibility of the vendee/preemptor is to be made more specific and clearer. 13. The new dispensation of justice in matter of preemption requiring the preemptor to deposit 1/3rd of the sale consideration in cash in the court and for the rest he has to furnish surety bond is with the object to ensure that the suit instituted by the preemptor is neither frivolous nor it is intended to exploit the vendee through the machinery of the court and the court has to satisfy itself about the bonafide of the preemptor that his case being genuine. Therefore, if a penalty like dismissal of suit on account of deposit of deficient amount is to be imposed then it should be clearly established that it was the preemptor who deliberately committed the default and not due to bonafide mistake. Similarly the trial court shall perform its legal obligation in a proper and fair manner by passing a clear order about the deposit of calculated amount of 1/3rd of the total sale consideration mentioned in the sale deed, mutation etc. In any case if the court commits a default in this regard, then the preemptor cannot be visited with such a penalty like dismissal of suit because the fault in such a case would lay with the court for which the preemptor in no manner can be blamed for depositing less amount. 14. Keeping in view the above facts and circumstances, we do not find any error much less a legal infirmity in the impugned judgment of the High Court CA.535/15 6 and that of the learned Additional District Judge, therefore, this appeal is found devoid of all legal merits and is dismissed. If due to the dismissal of the suit the preemptor/respondent has not deposited so far the remaining amount of Rs.13330/- as worked out on the basis of total sale consideration of Rs.14,40,000/-, then he is given a time of twenty days to deposit the remaining amount with the trial court from the date of receiving copy of this judgment to make good the deficiency and the trial of the case be held on merits. Appeal dismissed. Judge Judge Islamabad, the 30th September, 2015 Sarfraz /- ‘APPROVED FOR REPORTING’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO. 539 OF 2003 AND CIVIL APPEAL NO. 1773 OF 2016 (on appeal against the judgments dated 19.03.2003 and 08.04.2016 of the High Court Of Sindh, Karachi passed in J.M.A.22-A/99 and H.C.A.239/1999) Gerry’s International (Pvt.) Ltd …Appellant(s) VERSUS Aeroflot Russian International Airlines …Respondent(s) For the Appellant(s): Khawaja Muhammad Farooq, Sr. ASC Mr. Mehr Khan Malik, AOR For the Respondent(s): Mr. Khalid A. Rehman, ASC Date of Hearing: 01.01.2018 ORDER MIAN SAQIB NISAR, CJ.— The facts of these appeals are intertwined and the questions of law arising therefrom are also intrinsically connected, thus the same are being disposed of together. 2. The facts of Civil Appeal No. 1773/2016 shall enable us, for the most part, to decide the other appeal as well. In this context the brief facts of the case are that the respondent is an international airline incorporated in Russia, conducting its business with its office in Karachi. Vide a General Sales Agreement (GSA) dated 22.02.1993 entered into between the parties, the respondent conferred upon the appellant rights as a sales agent, for sale of its tickets, which GSA was subsequently cancelled by it (the respondent) on 19.10.1994. The aggrieved appellant filed a suit CAs 539/03 etc -: 2 :- bearing No.252/1995 before the learned High Court of Sindh, Karachi, challenging such termination and seeking enforcement of the GSA. In this suit the respondent moved an application under Section 34 of the Arbitration Act, 1940 (the Arbitration Act) which was allowed vide order dated 17.12.1995. The other suit bearing No.569/1995 was initiated by the respondent against the appellant for recovery of Rs.97,585,085/60 on account of amounts outstanding against the appellant under the GSA, wherein an application for stay of the proceedings under Section 34 of the Arbitration Act was moved, which was allowed vide order dated 11.1.1996 and the proceedings in the said suit were also stayed. The respondent appointed Mr. Justice (R) Abdur Rehim Kazi, as an arbitrator on 12.2.1996, but the appellant refused to agree to his appointment as the sole arbitrator. Since the appellant failed to appoint an arbitrator, on 11.3.1996, pursuant to Clause 14.4 of the GSA, the respondent requested the International Air Transport Association (IATA) to appoint the same. IATA initially required the appellant to appoint an arbitrator itself, but on its failure to do so, appointed Dr. Parvez Hasan, Senior Advocate as an arbitrator on behalf of the appellant. Subsequently, the arbitrators unanimously appointed Mr. Justice (R) Shafi-ur-Rehman as the Umpire. The appellant participated in the arbitration proceedings. As the arbitration proceedings could not be concluded within the stipulated period, the respondent filed an application for extension of time period for making the award by two months, which (application) was allowed vide order dated 8.5.1997. Ultimately a unanimous award (award) was made on 25.08.1997, which was filed in Court on 17.3.1998, wherein the respondent was awarded CAs 539/03 etc -: 3 :- Rs.35,356,171.60. The appellant filed objections thereto, which were rejected and the award was made the rule of Court vide order/decree dated 17.11.1998. The detailed judgment in this regard was released on 19.4.1999. The appellant challenged the said judgment and decree before the learned High Court through H.C.A. No.239/1999, which was dismissed vide judgment dated 8.4.2016 (impugned in CA No.1773/2016). 3. After having obtained the decree, the respondent applied for the winding up of appellant company (J.M. No.22-A/1999) under the provisions of Section 306 of the Companies Ordinance, 1984 (the Companies Ordinance). The appellant resisted the winding up petition on various grounds. However, the learned Judge in Chambers dismissed the petition of the respondent vide order dated 2.5.2000. On appeal filed by the respondent, vide judgment dated 6.8.2002, the matter was remanded back to the learned single Judge for deciding the case afresh. After the remand, the application for winding up was allowed vide judgment dated 19.03.2003 (impugned in CA No.539/2003). 4. For brevity, the respective arguments of the parties are not separately set out, but shall find mention later in our opinion. The questions which emerged from the record and require consideration are: what is the true scope, import and application of Sections 30 & 33 of the Arbitration Act; what is the jurisdiction of the Court while making an award rule of the Court; whether the Court can sit in appeal over the decision of the arbitrators; whether the Court can make a roving inquiry and look for latent or patent errors of law and facts in the award; which flaws and shortcomings, if allowed to remain shall cause failure of justice CAs 539/03 etc -: 4 :- and vitiate the proceedings before the arbitrator and the award; what are the questions for determination of arbitration agreement; and what are the grounds/basis on which an arbitrator should be held to have misconducted himself? 5. In order to ascertain the answers to the above questions, it is imperative to consider the relevant provisions of the Arbitration Act as well as the case-law concerning the powers and authority of the arbitrators in arbitration proceedings viz. the jurisdiction of the Court while determining the validity of the award. The relevant provisions of the Arbitration Act read as under: - 2.(a) “arbitration agreement” means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not”. 13. Powers of arbitrator. The arbitrators or umpire shall, unless a different intention is expressed in the agreement, have power to: (a) administer oath to the parties and witnesses appearing; (b) state a special case for the opinion of the Court on any question of law involved, or state the award, wholly or in part, in the form of a special case of such question for the opinion of the Court; (c) make the award conditional or in the alternative; (d) correct in an award any clerical mistake or error arising from any accidental slip or omission; (e) administer to any party to the arbitration such interrogatories as may, in the opinion of the arbitrators or umpire, be necessary. 15. Power of Court to modify award. The Court may by order modify or correct an award: (a) Where it appears that a part of the award is upon a matter not referred to arbitration and such part can be separated CAs 539/03 etc -: 5 :- from the other part and does not affect the decision on the matter referred; or (b) Where the award is imperfect in form, or contains any obvious error which can be amended without effecting such decision; or (c) Where the award contains clerical mistake or an error arising from an accidental slip or omission. 26-A. Award to set out reasons: (1) The arbitrators or umpire shall state in the award the reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award. (2) Where the award does not state the reasons in sufficient detail, the Court shall remit the award to the arbitrators or umpire and fix the time within which the arbitrator or umpire shall submit the award together with the reasons in sufficient detail: Provided that any time so fixed may be extended by subsequent order of the Court. (3) An award remitted under sub-section (2) shall become void on the failure of the arbitrators or umpire to submit it in accordance with the direction of the Court. 30. Grounds for setting aside award. An award shall not be set aside except on one or more of the following grounds, namely: (a) that an arbitrator or umpire has misconducted himself or the proceedings; (b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35; (c) that an award has been improperly procured or is otherwise invalid. 36. Power of Court, to order that a provision making an award a condition precedent to an action shall not apply to a particular difference. Where it is provided (whether in the arbitration agreement or otherwise) that an award under an arbitration agreement shall be a condition precedent to the bringing of an action with respect to any matter to which the agreement applies, the Court, if it orders (whether under this Act or any other law) that the agreement shall cease to have effect as regards any CAs 539/03 etc -: 6 :- particular difference, may further order that the said provision shall also cease to have effect as regards that difference. 6. In order to ascertain the principles set out by the Courts on the questions cited above, firstly we shall consider the case-law from the foreign jurisdictions. In the case of Hodgkinson v. Fernie [(1857) 3 C.B. (N.S.) 189] = (140 Er 712) Williams, J. held that where a cause or matters in difference are referred to an arbitrator, he is the sole and final Judge of all questions, both of law and of fact. However, the only exceptions to that rule are cases where the award is the result of corruption or fraud, and where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award. In Anchor Marine Ins. Co. v. Corbett. [(1882) 9 SCR 73] the Supreme Court of Canada held as under: - “The award of the arbitrators is conclusive, and the appellants cannot go behind it. Russell on Arbitration (P. 476); Hodgkinson v. Fernie et al. (3 C. B. N. S. 189); Cummings v. Heard (L. R. 4 Q. B. 668). In order to entitle the appellants to impeach the award, they should have made the submission a rule of court and moved to set aside the award, and not having done so, the court cannot in this suit review the award, nor entertain any question as to whether the arbitrators decided properly or not in point of law or otherwise. Delver v. Barnes (1 Taunt. 48).” In Champsey Bhara Company v. The Jivraj Ballo Spinning and Weaving Co. Ltd. (AIR 1923 PC 66), it was held that an error in law on the face of the award means that you can find in the award or a document actually incorporated thereto, some legal proposition which is the basis of the award and which you can then say is erroneous. In the cases of Government of Kelantan v. Duff Development Company Ltd. (1923 A.C. 395) and F. R. CAs 539/03 etc -: 7 :- Absalom Ltd. v. Great Western (London) Garden Village Society Ltd. (1933 A.C. 592) it was held that if it is evident that the parties desire to have a decision from the arbitrator rather than from the Court on a question of law, then the Courts will not interfere. However, in cases where the question of law is incidentally material in order to decide the question actually referred to the arbitrators it is open to the Court to set aside the award if an error of law is found patent on the face of the record. In Heyman v. Darwins Ltd. [(1942) A.C. 356], it was held that if a party has to have recourse to the contract in a dispute, that dispute is a dispute under the contract. In Durga Prasad Chamria v. Sewkishendas Bhattar (AIR 1949 PC 334) the Privy Council applied the above English view to Indian cases and upheld the award on the ground that the error of law was committed on points of law which were specifically referred to the arbitrator. In A.M. Mair & Co v. Gordhandass Sagarmull (AIR 1951 SC 9) it was held that a dispute, the determination of which turns on the true construction of the contract, would be a dispute, under or arising out of or concerning the contract. Here, the respondents must have recourse to the contract to establish their case and therefore it is a dispute falling within the arbitration clause. In Ruby General Insurance Co. Ltd Vs. Pearey Lal Kumar and another (AIR 1952 SC 119) the Court observed that the test is whether recourse to the contract by which the parties are bound is necessary for the purpose of determining the matter in dispute between them. If such recourse to the contract is necessary, then the matter must come within the scope of the arbitrator's jurisdiction. In M/s. Alopi Parshad v. Union of India (AIR 1960 SC 588) it was CAs 539/03 etc -: 8 :- observed that a contract is not frustrated merely because the circumstances in which the contract was made are altered. In Jivarajbhai ah 41 Ujamshi Sheth and others Vs. Chintamanrao Balaji and others [(1964) 5 S.C.R. 481] it was held as under: “The Court in dealing with an application to set aside an award has not to consider whether the view of the arbitrator on the evidence is justified. The arbitrator's adjudication is generally considered binding between the parties, for he is a tribunal selected by the parties and the power of the Court to set aside the award is restricted to cases set out in S.30. It is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. On the assumption that the arbitrator must have arrived at his conclusion by a certain process of reasoning, the Court cannot proceed to determine whether the conclusion is right or wrong. It is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of his award. … The primary duty of the arbitrator under the deed of reference in which was incorporated the partnership agreement, was to value the net assets of the firm and to award to the retiring partners a share therein. In making the "valuation of the firm" his jurisdiction was restricted in the manner provided by paragraph 13 of the partnership agreement.” (Emphasis supplied) In Tarapore & Company vs Cochin Shipyard Ltd. Cochin & anr (AIR 1984 SC 1072) = [1984 SCR (3) 118] while considering the question whether the claim made by the contractor and disputed by the respondent would be covered by the arbitration clause, it was held that if it becomes necessary to have recourse to the contract to settle the dispute one way or the other then certainly it can be said that it is a dispute arising out of the contract. The test is whether it is necessary to have recourse to the contract to settle the dispute that has arisen. In Continental Construction Co. Ltd v. State Of Madhya Pradesh (AIR 1988 SC 1166) = [1988 SCR (3) 103] it was held that if no specific question of law is referred, CAs 539/03 etc -: 9 :- the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The arbitrator is a tribunal selected by the parties to decide their disputes according to law and so he is bound to follow and apply the law, and if he does not the award can be set right by the Court provided the error appears on the face of the award. The arbitrator misconducted himself in not deciding the specific objection raised by the State regarding the legality of extra claim of the contractor. In Indian Oil Corporation vs Indian Carbon Ltd (AIR 1988 SC 1340) it was held that when the arbitration clause requires the arbitrator to give a reasoned award and the arbitrator does give his reasons in the award, the sufficiency of the reasons depends upon the facts of the particular case. He is not bound to give detailed reasons. The Court does not sit in appeal over the award and review the reasons. The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is erroneous. In Sudarsan Trading Co Vs. Govt. Of Kerala & anr (AIR 1989 SC 890) = [1989 SCR (1) 665] the questions for consideration before the Court were that as to how the Court should examine an award to find out whether it was a speaking award or not; and if it be a non- speaking award, how and to what extent the Court could go to determine whether there was any error apparent on the face of the award so as to be liable for interference by the court; and to what extent can the Court examine the contract though not incorporated CAs 539/03 etc -: 10 :- or referred to in the award. It was held in the said judgment that there are two different and distinct grounds involved in many of the cases. One is the error apparent on the face of the award, and the other is that the arbitrator exceeded his jurisdiction. In the latter case, the Courts can look into the arbitration agreement but in the former, it can not, unless the agreement was incorporated or recited in the award. One of the grounds of misconduct is that the decision by the arbitrator is on a matter which is not included in the agreement or reference. But in such a case one has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. In Puri Construction Pvt. Ltd. vs Union Of India (UoI) (AIR 1989 SC 777) it was held as under: - “When a court is called upon to decide the objections raised by a party against an arbitration award, the jurisdiction of the court is limited, as expressly indicated in the Arbitration Act, and it has no jurisdiction to sit in appeal and examine the correctness of the award on merits. However, so far as the present case is concerned, the decision of the arbitrator is supported by the evidence led before him including the evidence of the Union of India, and appears to be correct on merits also. ………….. Mr. Sibal, therefore, appears to be right that apart from the fact that the award is not vulnerable to any objection which can be entertained under the Arbitration Act, it is a fair one. But this does not lead to the conclusion that for upholding an award the court has to examine the merits of the award with reference to the materials produced before the arbitrator. The court cannot sit in appeal over the views of the arbitrator by re-examining and re-assessing the materials. The scope for setting aside an award is limited to the grounds available under the Arbitration Act, which have been well defined by a long line of decided cases, and none of them is available here. For this reason the decision of the Division Bench of the High Court has to be set aside.” In Associated Engineering Co. Vs. Government of Andhra Pradesh and Another [1991] 4 SCC 93 the Court set aside the CAs 539/03 etc -: 11 :- award by holding that the conclusion is reached not by construction of the contract but by merely looking at the contract. The authority of an arbitrator is derived from the contract and is governed by the Arbitration Act which embodies principles derived from a specialized branch of the law of agency. A conscious disregard of the law or the provisions of the contract from which he has derived his authority vitiates the award. In Hindustan Construction Co. Ltd. Vs. State of Jammu & Kashmir (AIR 1992 SC 2192) = [(1992) 4 SCC 217] the Court observed that where the award was a non-speaking one and contained no reasoning which could be declared to be faulty; the scope of the Court’s jurisdiction in interfering with the non-speaking award is extremely limited. It was further observed that even if, in fact, the arbitrators had interpreted the relevant clauses of the contract in making their award on the impugned items and even if the interpretation is erroneous, the Court cannot touch the award as it is within the jurisdiction of the arbitrators to interpret the contract. … The clauses are not so clear or unambiguous as to warrant an inference that the interpretation placed on them by the arbitrators is totally unsustainable. This is purely a technical matter and we have no material to hold that the arbitrators' interpretation was erroneous. It is difficult to say that the arbitrator's interpretation is erroneous on the face of it. In The Superintending Engineer Vs. B. Subba Reddy [1993 (2) ALT 687] the Andhra High Court while explaining the concept of "misconduct" by an arbitrator highlighted some of the examples of the term, which reads as under: CAs 539/03 etc -: 12 :- (i) if the arbitrator or umpire fails to decide all the matters which were referred to him; (ii) if by his award the arbitrator or umpire purports to decide matters which have not in fact been included in the agreement or reference; … (iii) if the award is inconsistent, or is uncertain or ambiguous; or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least clear beyond any reasonable doubt; (iv) if there has been irregularity in the proceedings, as, for example, where the arbitrator failed to give the parties notice of the time and place of meeting, or where the agreement required the evidence to be taken orally and the arbitrator received affidavits, or where the arbitrator refused to hear the evidence of a material witness, or where the examination of witnesses was taken out of the parties' hands, or where the arbitrator failed to have foreign documents translated, or where, the reference being to two or more arbitrators, they did not act together, or where the umpire, after hearing evidence from both arbitrators, received further evidence from one without informing or hearing the other, or where the umpire attended the deliberations of the appeal board reviewing his award. In State Of Rahjasthan Vs. Puti Construction Co. Ltd [(1994) 6 SCC 485] it was observed as under: - “The arbitrators have given the award by referring to various documents and statements available on record and indicating the reasons for basing the findings. Even if it is assumed that on the materials on record, a different view could have been taken and the arbitrators have failed to consider the documents and materials on record in their proper perspective, the award is not liable to be struck down in view of judicial decisions referred to hereinbefore. Error apparent on the face of the record does not mean that on closer scrutiny of the import of documents and materials on record, the finding made by the arbitrator may be held to be erroneous. Judicial decisions over the decades have indicated that an error of law or fact committed by an arbitrator by itself does not constitute misconduct warranting interference with the award.” In The Punjab State Through ... Vs. Amar Nath Aggarwal [(1993) 105 PLR 1] Punjab-Haryana High Court summed up the legal principles as under: - CAs 539/03 etc -: 13 :- (1) The arbitrator is the final Judge of all questions, both of law and of fact. The only exceptions to this rule are cases of corruption or fraud or where the basis of the award is a proposition of law which is erroneous. (Champsey Bhara and Company v. Jivraj Balloo Spinning and Weaving Company Ltd.,5 A.I.R. 1923 P.C. 66). (2) The arbitrator is the sole judge of quality as well as quantity of evidence. (M/s Sudarshan ah 41 Trading Co. v. The Govt. of Kerala and Anr.,6 A.I.R. 1989 S.C. 890 and Municipal Corporation of Delhi v. M/s. Jagan Nath Ashok Kumar, A.I.R. 1987 S.C. 2316). It is not open to the Court to re- examine and reappraise the evidence considered by the arbitrator to hold that the conclusion reached by the arbitrator is wrong. (Union of India v. Kalinga Construction Co. (Private) Limited), A.I.R. 1971 S.C. 1646). (3) The Court cannot sit in appeal over the view of the arbitrator by re-examining and reappraising the materials. (Puri Construction Pvt. Limited v. Union of India,16 A.I.R. 1989 S.C. 777). (4) Where two views are possible, the Court is not justified in interfering with the award by adopting its own interpretation. (M/s Hind Builders v. Union of India,19 A.I.R. 1990 S.C 1340). (5) An award is not invalid if by a process of reasoning it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion. (Subhash Chandra Das Mushib v. Ganga Prosad Das Mushib and Ors.,20 A.I.R. 1967 S.C. 878 and M/s. Hindustan Tea Co. v. K. Sashikant and Co. and Anr., 19 A.I.R. 1987 S.C. 81). (6) Though it is not possible to give an exhaustive definition as to what may amount to misconduct, it is not a misconduct on the part of the arbitrator to come to an erroneous decision, whether his error is one of fact or law and whether or not his findings of fact are supported by evidence. (Food Corporation of India v. Joginderpal Mohinderpal and Anr.,17 A.I.R. 1989 S.C. 1263). (7) Assuming that there is an error of construction of the agreement by the arbitrator, it is not amenable to correction even in a reasoned award. (UP. Hotels etc. v. U.P. State Electricity Board,21 A.I.R. 1989 S.C. 268). (8) Even in cases where the arbitrator is required to give his reason, it is not obligatory to give a CAs 539/03 etc -: 14 :- detailed Judgment. (Indian Oil Corporation Ltd. v. Indian Carbon Ltd.,14 A.I.R. 1988 S.C. 1340). (9) Reasonableness of an award is not a matter for the Court to consider unless the award is preposterous or absurd (Gujarat Water Supply A Sewerage Board v. Unique Electors (G) (P) Ltd.,15 A.I.R. 1989 S.C. 973). The amount awarded being quite high does not per se vitiate the award. (State of Orissa v. Dandasi Sahu,22 A.I.R. 1988 S.C. 1791 (para 30). (10) It is necessary to bear in mind that the arbitrator was a highly qualified engineer, fully conversant with the nature of work and should be presumed to correctly evaluate the additional work done. (Puri Construction Pvt. Ltd. v. Union of India,16 A.I.R. 1988 S.C 777). (11) Where additional work is done under a building contract, Section 70 of the Contract Act applies. (V.R. Subramanyam v. B. Thayappa (deceased) and Ors.,23 A.I.R. 1966 S.C. 1034, P. Hanumanthiah & Co. v. Union of India,24 U J. (S.C.) 134 (69). In Rajasthan State Mines & Minerals ... vs Eastern Engineering Enterprises (AIR 1999 SC 3627) after discussing the case-law in detail, principles enunciated thereunder were summarized as under: - (a) it is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled arbitrator to arrive at his conclusion. (b) It is not open to the Court to admit to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of the award. (c) If the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication then the Court cannot interfere. (d) If no specific question of law is referred, the decision of the Arbitrator on that question is not final, however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. In a case where specific question of law touching upon the jurisdiction of the arbitrator was referred for the decision of the arbitrator by the parties, then the CAs 539/03 etc -: 15 :- finding of the arbitrator on the said question between the parties may be binding. (e) In a case of non-speaking award, the jurisdiction of the Court is limited. The award can be set aside if the arbitrator acts beyond his jurisdiction. (f) To find out whether the arbitrator has travelled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. Arbitrator acting beyond his jurisdiction is a different ground from the error apparent on the face of the award. (g) In order to determine whether arbitrator has acted in excess of his jurisdiction what has to be seen is whether the claimant could raise a particular claim before the arbitrator. If there is a specific term in the contract or the law which does not permit or give the arbitrator the power to decide the dispute raised by the claimant or there is a specific bar in the contract to the raising of the particular claim then the award passed by the arbitrator in respect thereof would be in excess of jurisdiction. (h) The award made by the Arbitrator disregarding the terms of the reference or the arbitration agreement or the terms of the contract would be a jurisdictional error which requires ultimately to be decided by the Court. He cannot award an amount which is ruled out or prohibited by the terms of the agreement. Because of specific bar stipulated by the parties in the agreement, that claim could not be raised. Even if it is raised and referred to arbitration because of wider arbitration clause such claim amount cannot be awarded as agreement is binding between the parties and the arbitrator has to adjudicate as per the agreement. This aspect is absolutely made clear in Continental Construction Co. Ltd.(supra) by relying upon the following passage from M/s. Alopi Parshad Vs. Union of India [1960] 2 SCR 703 which is to the following effect: - There it was observed that a contract is not frustrated merely because the circumstances in which the contract was made, altered. The Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of event which they did not at all anticipate, a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an CAs 539/03 etc -: 16 :- unexpected obstacle to execution, or the like. There is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous. (i) The arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract. A deliberate departure or conscious disregard of the contract not only manifests the disregard of his authority or misconduct on his part but it may tantamount to mala fide action. (j) The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable; the arbitrator is a tribunal selected by the parties to decide the disputes according to law. The same principles were reiterated in the case of Bhagawati Oxygen Ltd vs Hindustan Coper Ltd [2005 (6) SCC 462] 7. Coming to cases from our own jurisdiction, in the case of Abdul Ghani Vs. Inayat Karim and others (PLD 1960 SC (Pak) 98), wherein one arbitrator remained absent on one or two sittings with the consent of the other arbitrators and nothing of a disputed nature was done in those sittings and the decision was made by all the arbitrators; it was held by this Court that neither the arbitrator absenting himself or the remaining arbitrators continuing the work, could be said to constitute misconduct. In A. Z. Company v. S. Maula Bukhsh Muhammad Bashir (PLD 1965 SC 505) it was held that the expression “error” on the face of the award as described in Champesy Bhara’s case (supra) has been accepted as a general rule since the decision in Hodgkinson’s case (supra), however, later an exception was engrafted onto this rule to the effect that when a specific point of law is referred to the arbitrator the award cannot be set aside if the arbitrator wrongly decides the CAs 539/03 etc -: 17 :- point of law. In the case of Messrs Badri Narayan Agarwala Vs. Messrs Pak Jute Balers Ltd (PLD 1970 SC 43), where the appellant therein wanted the award to be set aside on the ground that he did not execute the agreement which contained the arbitration clause, the Court while interpreting sections 30 and 33 of the Arbitration Act held that “Section 33, no doubt, uses the word "challenge" as compared to the words "set aside" in section 30 but that in my view does not make any difference. Section 33 says also that when the existence of the agreement is challenged "the Court shall decide the question". Since the agreement in question was challenged by the appellant after the award had been made there was no bar for him to do so in the present suit.” Resultantly, the case was remitted to the trial Court to determine whether the appellant had executed the contract. In the case of Haji Mushtaq Ahmad Vs. Mst. Hajra Bi and others (1980 SCMR 394), it was observed that the arbitrator has not given any reasons whatsoever for the payments ordered by him. As his silence about the reasons for his decision are like that of the sphinx, could any Court have read an error in the award much less an error on the face of the award? The question is of the meaning of the words “an error apparent on the face of the award”, the petitioner can succeed only by showing that the award itself or a note attached to it contained some legal propositions which were erroneous. But, as the arbitrator has not given any reasons whatever for his findings it follows that this sphinx like award could not possibly be set aside on the ground of an error apparent. In the case of Province of Punjab Vs. Habib Ullah (1982 SCMR 243), it was held that the decision of the Arbitrator must be based upon evidence produced CAs 539/03 etc -: 18 :- before him and law applicable thereto. If the Arbitrator had not done so the award was liable to be set-aside. In the case of National Construction Company Vs. West Pakistan Water and Power Development Authority (PLD 1987 SC 461), it was observed that where the arbitrator himself did not wish to give a decision on an item, as the parties had agreed that the said question did not fall within the reference, the award in respect of that item was a mistake or accidental error which somehow crept in the body of the award made by the arbitrator. Such an error was incidental to all actions performed by human agency and could not be made the basis for reaching a finding of misconduct. In the case of Joint Venture KG/RIST Vs. Federation of Pakistan (PLD 1996 SC 108), where the scope of a certain clause of an agreement was the main bone of contention between the parties, it was held by this Court that even if the parties had not specifically referred the question of interpretation of the said clause, its interpretation fell within the scope of reference, for without interpreting the said clause the dispute referred to the arbitration could not be resolved. In the case of Hitachi Limited Vs. Rupali Polyester (1998 SCMR 1618), it was observed by this Court that Section 33 of the Arbitration Act not only covers the question as to the existence or validity of an arbitration agreement but also of an award, and also to have the effect of either determined. In the case of Trading Corporation of Pakistan Pvt. Limited, Karachi Vs. Messrs Nidera Handelscompagnie B.V and another (2001 SCMR 646), it was observed that under Section 32 of the Arbitration Act no suit for a decision upon the existence, effect or validity of an arbitration agreement or award could be filed; however, a party could in terms CAs 539/03 etc -: 19 :- of Section 33 (ibid) file an application in the Court for challenging the existence or validity of arbitration agreement or an award, or to have the effect of either determined. In the case of Pakistan Steel Mills Corporation, Karachi Vs. Messrs Mustafa Sons (Pvt.) Ltd (PLD 2003 SC 301), while interpreting the word “misconduct” with reference to arbitration proceedings it was held that it (misconduct) is not akin to fraud, but it means neglect of duties and responsibilities of the Arbitrator. In the case of President of the Islamic Republic of Pakistan Vs. Syed Tasneem Hussain Naqvi and others (2004 SCMR 590), this Court observed that the award could be challenged only on the grounds mentioned in section 30 of the Arbitration Act i.e. if the Arbitrator had misconducted himself in the proceedings and not on merits. The Court while hearing objections against the award could not sit as a Court of appeal against the award and interfere with it on merits. In the case of Sh. Saleem Ali Vs. Sh. Akhtar Ali (PLD 2004 Lahore 404), the “misconduct” in terms of Arbitration Act was described to be of two kinds i.e. ‘legal misconduct’ and ‘moral misconduct’. The detail of this was observed by the Court in the following words: Legal misconduct: 14. "Legal misconduct" means misconduct in the judicial sense of the word,, for example, some honest, though erroneous, breach of duty causing miscarriage of justice; failure to perform the essential duties which are cast on an arbitrator; and any irregularity of action which is not consistent with general principles of equity and good conscience. … To sum up, an arbitrator misconducts the proceedings when (i) there is a defect in the procedure followed by him; (ii) commits breach and neglect of duty and responsibility (iii) acts contrary to the principles of equity and good conscience; (iv) acts without jurisdiction or exceeds it; (v) acts beyond the reference; (vi) proceeds on extraneous circumstances; (vii) ignores material documents; and (viii) bases the award on no evidence. CAs 539/03 etc -: 20 :- These are some of the omissions and commissions which constitute legal misconduct or, in other words, that an arbitrator has mis-conducted the proceedings within meaning of clause (a) of section 30 of the Arbitration Act, 1940. Moral Misconduct: 15. It is difficult to define exhaustively and exactly what amounts to "misconduct" on the part of an arbitrator. … it is essential that there must be abundant good faith, and the arbitrator must be absolutely disinterested and impartial, as he is bound to act with scrupulous regard to the ends of justice. An arbitrator must be a person who stands indifferent between the parties. … An arbitrator should in no sense consider himself to be the advocate of the cause of party appointing him, nor is such party deemed to be his client.” In the case of Province of Punjab Vs. Messrs Sufi Construction Company (2005 SCMR 1724), the award was upheld when the allegations against the arbitrators were vague and nebulous. In the case of Mian Brothers Vs. Lever Brothers of Pakistan Ltd (PLD 2006 SC 169) it was observed that the arbitrator acts in a quasi- judicial manner and his decision is entitled to the utmost respect and weight, unless the misconduct is not only alleged, but also proved against him to the satisfaction of the Court. While examining the award, the Court does not sit in appeal over the award and has to satisfy itself that the award does not run counter to the settled principles of law and the material available on record. An award cannot be lawfully disturbed on the premise that a different view was possible, if the facts were appreciated from a different angle. In fact the Court cannot undertake the reappraisal of evidence recorded by an arbitrator in order to discover the error or infirmity in the award. In the case of Allah Din & Company Vs. Trading Corporation of Pakistan (2006 SCMR 614) this Court held that it is true that the trial Court does not sit in appeal upon CAs 539/03 etc -: 21 :- the finding of the arbitrator but at the same time the Court is empowered to reverse the finding of the arbitrator on any issue if it does not find support from the evidence. The very incorporation of Section 26-A of the Arbitration Act requiring the arbitrator to furnish reasons for his finding was to enable the Court to examine the soundness of the reasons. In the case of Muhammad Farooq Shah Vs. Shakirullah (2006 SCMR 1657), this Court observed that where an Umpire has applied his mind honestly and arrived at a decision to the best of his ability, the fact that a Judge might take a different view is not a ground for holding the award illegal. In the case of Premier Insurance Company and others Vs. Attock Textile Mills Ltd. (PLD 2006 Lahore 534), it was observed by the Court that the Court while considering the validity of the award should not sit as a Court of appeal; trying to fish or dig out the latent errors in the proceedings or the award, but should only confine itself to examining the award by ascertaining, if there is any error, factual or legal, which floats on the surface of the award or the record and further, if such an error is allowed to remain, grave injustice would be done to the aggrieved party. The award of an arbitrator, who is the Judge selected by the parties themselves, should not be lightly interfered with until and unless as earlier held that it is established that the error committed by him is so glaring that if it is overlooked, it would lead to miscarriage of justice. But certainly the award cannot be intercepted on the ground that on the reading of the evidence, a conclusion other than that arrived at by the arbitrator, is/was possible. In the case of Federation of Pakistan Vs. Joint Venture Kocks K.G / Rist (PLD 2011 SC 506) it was observed that while CAs 539/03 etc -: 22 :- considering the objections under Sections 30 and 33 of the Arbitration Act the court is not supposed to sit as a court of appeal and fish for the latent errors in the arbitration proceedings or the award. In the case of A. Qutubuddin Khan Vs. CHEC Mill Wala Dredging Co. Pvt. Ltd. (2014 SCMR 1268), in the unanimous opinion given by Mr. Justice Sh. Azmat Saeed, J. it was observed that even in the absence of objections, the award may be set aside and not made a Rule of the Court if it is a nullity or is prima facie illegal or for any other reason, not fit to be maintained; or suffers from an invalidity which is self-evident or apparent on the face of the record. The adjudicatory process is limited to the aforesaid extent only. Mr. Justice Khilji Arif Hussain, in his separate opinion observed that while hearing the objections and examining the award, the Court cannot sit as a Court of appeal on the award rendered by the arbitrator and substitute its own view for the one taken by the arbitrator. It is a settled principle of law that the award of the arbitrator who is chosen as Judge of facts and of law, between the parties, cannot be set aside unless the error is apparent on the face of the award or from the award it can be inferred that the arbitrator has misconducted himself under Sections 30 and 33 of the Arbitration Act. While making an award the Rule of the Court, in case parties have not filed objections, the Court is not supposed to act in a mechanical manner, like the post office and put its seal on it but has to look into the award and if it finds patent illegality on the face of the award, it can remit the award or any of the matter(s) referred to arbitrator for reconsideration or set aside the same. However, while doing so, the Court will not try to find out patent irregularity, and only if any CAs 539/03 etc -: 23 :- patent irregularities can be seen on the face of award/arbitration proceedings like the award is beyond the scope of the reference or the agreement of arbitration was a void agreement, or the arbitrator awarded damages on black market price, which is prohibited by law, or the award was given after superseding of the arbitration, etc., can the same be set aside. 8. The principles which emerge from the analysis of above case-law can be summarized as under: - (1) When a claim or matters in dispute are referred to an arbitrator, he is the sole and final Judge of all questions, both of law and of fact. (2) The arbitrator alone is the judge of the quality as well as the quantity of evidence. (3) The very incorporation of section 26-A of the Arbitration Act requiring the arbitrator to furnish reasons for his finding was to enable the Court to examine that the reasons are not inconsistent and contradictory to the material on the record. Although mere brevity of reasons shall not be ground for interference in the award by the Court. (4) A dispute, the determination of which turns on the true construction of the contract, would be a dispute, under or arising out of or concerning the contract. Such dispute would fall within the arbitration clause. (5) The test is whether recourse to the contract, by which the parties are bound, is necessary for the purpose of determining the matter in dispute between them. If such recourse to the contract is CAs 539/03 etc -: 24 :- necessary, then the matter must come within the scope of the arbitrator's jurisdiction. (6) The arbitrator could not act arbitrarily, irrationally, capriciously or independently of the contract. (7) The authority of an arbitrator is derived from the contract and is governed by the Arbitration Act. A deliberate departure or conscious disregard of the contract not only manifests a disregard of his authority or misconduct on his part but it may tantamount to mala fide action and vitiate the award. (8) If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. (9) To find out whether the arbitrator has travelled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. An arbitrator acting beyond his jurisdiction is a different ground from an error apparent on the face of the award. (10) The Court cannot review the award, nor entertain any question as to whether the arbitrators decided properly or not in point of law or otherwise. (11) It is not open to the Court to re-examine and reappraise the evidence considered by the arbitrator to hold that the conclusion reached by the arbitrator is wrong. CAs 539/03 etc -: 25 :- (12) Where two views are possible, the Court cannot interfere with the award by adopting its own interpretation. (13) Reasonableness of an award is not a matter for the Court to consider unless the award is preposterous or absurd. (14) An award is not invalid if by a process of reasoning it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion. (15) The only exceptions to the above rule are those cases where the award is the result of corruption or fraud, and where the question of law necessarily arises on the face of the award, which one can say is erroneous. (16) It is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. (17) It is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of his award. (18) The Court does not sit in appeal over the award and should not try to fish or dig out the latent errors in the proceedings or the award. It can set aside the award only if it is apparent from the award that there is no evidence to support the conclusions or if the award is based upon any legal proposition which is incorrect. (19) The Court can set aside the award if there is any error, factual or legal, which floats on the surface of the award or the record. CAs 539/03 etc -: 26 :- (20) The arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. The arbitrator is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not do so he can be set right by the Court provided the error committed by him appears on the face of the award. (21) There are two different and distinct grounds; one is the error apparent on the face of the award, and the other is that the arbitrator exceeded his jurisdiction. In the latter case, the Courts can look into the arbitration agreement but in the former, it cannot, unless the agreement was incorporated or recited in the award. (22) An error in law on the face of the award means that one can find in the award some legal proposition which is the basis of the award and which you can then say is erroneous. (23) A contract is not frustrated merely because the circumstances in which the contract was made are altered. (24) Even in the absence of objections, the Award may be set aside and not made a Rule of the Court if it is a nullity or is prima facie illegal or for any other reason, not fit to be maintained; or suffers from an invalidity which is self-evident or apparent on the face of the record. The adjudicatory process is limited to the aforesaid extent only. (25) While making an award rule of the Court, in case parties have not filed objections, the Court is not supposed to act in a mechanical manner, CAs 539/03 etc -: 27 :- like a post office but must subject the award to its judicial scrutiny. (26) Though it is not possible to give an exhaustive definition as to what may amount to misconduct, it is not misconduct on the part of the arbitrator to come to an erroneous decision, whether his error is one of fact or law and whether or not his findings of fact are supported by evidence. (27) Misconduct is of two types: “legal misconduct" and “moral misconduct”. Legal misconduct means misconduct in the judicial sense of the word, for example, some honest, though erroneous, breach of duty causing miscarriage of justice; failure to perform the essential duties which are cast on an arbitrator; and any irregularity of action which is not consistent with general principles of equity and good conscience. Regarding moral misconduct; it is essential that there must be lack of good faith, and the arbitrator must be shown to be neither disinterested nor impartial, and proved to have acted without scrupulous regard for the ends of justice. (28) The arbitrator is said to have misconducted himself in not deciding a specific objection raised by a party regarding the legality of extra claim of the other party. (29) some of the examples of the term "misconduct" are: (i) if the arbitrator or umpire fails to decide all the matters which were referred to him; (ii) if by his award the arbitrator or umpire purports to decide matters which have not CAs 539/03 etc -: 28 :- in fact been included in the agreement or reference; (iii) if the award is inconsistent, or is uncertain or ambiguous; or even if there is some mistake of fact, although in that case the mistake must be either admitted or at least clear beyond any reasonable doubt; and (iv) if there has been irregularity in the proceedings. (30) Misconduct is not akin to fraud, but it means neglect of duties and responsibilities of the Arbitrator. 9. Now we shall consider the facts of the instant case. The challenge has been thrown by the learned counsel for the appellant to the decree of the Court making the award the rule of the Court, mainly on the ground that it is vitiated because the GSA had been procured by the respondent through fraud, misrepresentation and concealment of facts. According to the learned counsel, in Clause 2 of the GSA, it is unequivocally mentioned that the appellant would be the exclusive general sales agent for inter alia the sale of the tickets on behalf of the respondent but it was not disclosed that the earlier bilateral agreement (dated 13.12.1963) executed between the respondent and the Pakistan International Airline (PIA) had not been terminated and hence, PIA was already working in the same capacity at the relevant point of time. In contrast, learned counsel for the respondent submitted that the GSA was unquestionably a valid agreement between the parties and the PIA was already an earlier agent of the appellant, thus to hold that the respondent had misrepresented this fact to the appellant is absolutely misconceived, even otherwise this issue was not taken up in CAs 539/03 etc -: 29 :- defence by the appellant before the arbitration tribunal or if it was raised as a defence the same had been accurately and validly considered and discarded by the learned arbitrators. In order to decide this issue, recourse has to be made to Article 2 of GSA, which provides that “unless otherwise agreed between the parties, the principal shall not appoint any third party to carry out on its behalf service similar to those described in this agreement in the territory in which the General Sales Agent has undertaken the service”. From the language of above Article, it is abundantly clear that the respondent had bound down itself not to appoint any other person as its agent to carry out the same functions as were being done by the appellant, which commitment must be for the future and this is evident from the word “shall” used therein. At the time of entering into the agreement, it was the duty of the appellant to enquire and ensure that no other person had been granted such authority. It is the stance of the appellant before this Court that the GSA was a result of fraud and misrepresentation, as such, the award as well as the decree is vitiated on this score, however, the appellant itself filed a suit for specific performance not only relying upon the GSA but also for its specific performance and recovery of certain amounts thereunder. It is settled law that no one can be allowed to blow hot and cold in the same breath. Both the stances taken by the appellant are not just contradictory, rather they are self-destructive. 10. It was also argued that the Court while considering the validity of the award is not supposed to go into the latent errors of the award but must simply confine itself to the patent illegalities on account of which merely by looking at the award it can be said CAs 539/03 etc -: 30 :- that the same is vitiated or that there exist patent errors in the appreciation of the evidence or the arbitrators have gone wrong in the application of law. These factors were not involved in the present matter. Resultantly, the learned Courts below have rightly passed the impugned decree. 11. It is submitted on behalf of the appellant that as no arbitrator had been appointed by the appellant, one should have been appointed by the learned Court as per the provisions of Sections 20 and 8 of the Arbitration Act, because according to the Article 15 of GSA the governing laws of the agreement were the laws of Pakistan, and thus, the IATA had no power in this regard. The learned counsel for the respondent has argued that the award has been passed by a competent arbitral forum which was appointed as per the terms of the GSA. We have considered the relevant provisions of GSA as well as the Arbitration Act. Undoubtedly, under Sections 8 and 20 of the Arbitration Act, in certain cases, the Court has the authority to appoint one or more arbitrators. However, with regard to the applicability of said provisions recourse has to be made to the relevant provisions of GSA. In this regard reliance has been placed by the learned counsel for the appellant on Article 15 of GSA, which provides that the agreement shall be interpreted and governed in all respects with the laws of the principle place of business of the agent. There is another Article i.e. 14.4, which deals with the appointment of the arbitrator in case of failure of a party to do so. It provides that “if a Party has notified the other Party of its appointment of an Arbitrator and the other Party fails to appoint an Arbitrator within fifteen/15 days of such notification the First Party may apply to the CAs 539/03 etc -: 31 :- Director General of IATA who shall appoint the arbitrator on behalf of the Party which has failed to do so”. It is to be noted that Article 15 of GSA is a general provision which deals with the interpretation of the GSA as a whole, whereas, Article 14.4 is a specific provision which deals explicitly with the appointment of the arbitrator. Thus, in the circumstances, the special provision shall take effect to the exclusion of the general provision. Further, the appellant did not take up any objection regarding the constitution of the arbitration tribunal and participated in the proceedings voluntarily. Consequently, we are inclined to hold that the arbitrator was validly appointed and the award cannot be vitiated on this score. 12. It is also submitted that the appellant was not afforded sufficient opportunity to participate in the arbitration proceedings, inasmuch as, the witnesses of the respondent had not been permitted to be cross-examined by the appellant although in contrast the opportunity of cross-examination had been provided to the respondent. Reliance in this regard has been placed on the judgments reported as Khardah Company Ltd. Vs. Raymon & Co. (India) Private Ltd. (AIR 1962 SC 1810) and Waverly Jute Mills Co. Ltd. Vs. Rayfrom and Co. (India) Private Ltd. (AIR 1963 SC 90). It was submitted by the learned counsel for the respondent that the appellant was provided full opportunity to participate in the arbitration proceedings, to cross-examine the witnesses produced by the respondent and to provide evidence in rebuttal. In this regard it is to be noted that in the award, the summary of proceedings before the arbitration tribunal has been provided, from the perusal whereof it is evident that the appellant CAs 539/03 etc -: 32 :- was notified about each date of hearing and his counsel was present on almost all the dates but most of the time the appellant sought adjournment(s). The appellant was also provided opportunity to provide a list of its witnesses but not only did it fail to provide the same but also remained absent on many occasions, and as such was proceeded ex-parte. Another objection was raised to the validity of the award by claiming that heavy costs have been imposed by the arbitrators in the award which is absolutely unjustified. Besides, the fee of Dr. Parvez Hassan has been unilaterally and arbitrarily fixed. 13. After considering the material available on record, we are of the view that no illegality has been committed in the arbitration proceedings. It is only on the basis of the factual conclusions drawn by the arbitrators on the basis of the material available on the record that the award has been pronounced. The award does not suffer from any illegality, either in law or fact, nor is there any misreading or non-reading of evidence. In view of the law highlighted above the Court considering the validity of the award could not sit in appeal; it had no power to re-examine and reappraise the evidence considered by the arbitrator to hold that the conclusion reached by the arbitrator was wrong or substitute its own view for the one taken by the arbitrator for the reason that another view was possible. It could only confine itself to find an error apparent on the face of the award, or determine the misconduct of the arbitrators in the course of the arbitration proceedings. In the instant case, we are of the view, that none of the said conditions existed. As such, the learned Trial Court rightly declined to interfere in the award and made the same Rule of the CAs 539/03 etc -: 33 :- Court, which decision was rightly upheld by the learned Division Bench of the High Court in appeal. 14. It was also argued by the learned counsel for the appellant that the suit filed by the respondent was not maintainable as the provisions of Sections 451 and 456 of the Companies Ordinance were not complied with. According to him, the respondent being a foreign company was not registered in Pakistan as required under the law, therefore, it was precluded and prohibited from initiating any legal proceedings against the appellant. It was further argued that this was an incurable defect, which could not be cured by the Court. Reliance in this regard has been placed on the judgments reported as Hala Spinning Mills Ltd. Vs. International Finance Corporation (2002 SCMR 450 at page 458), Maulana Abdul Haque Baloch Vs. Government of Balochistan through Secretary Industries and Mineral Development and others (PLD 2013 SC 641 at 714 and 715). The case of the appellant is that for the purpose of having a foreign company registered in terms of the Sections mentioned above, the limitation period is only 30 days from the date of establishment of place of business. When we questioned the learned counsel for the appellant whether the respondent had any office established in Pakistan and as to what was the time frame in this regard, he was not been able to provide any assistance on this point, because there is no material available on the record, except relying upon the plaint filed by the respondent wherein the address of the respondent is given as “Holiday Inn Crown Plaza Hotel, Shahrae Faisal, Karachi”. CAs 539/03 etc -: 34 :- 15. Subsection (1) of Section 451 of the Companies Ordinance requires that every foreign company which establishes a place of business in Pakistan shall, within thirty days of the establishment of the place of business, deliver to the registrar certain documents. Section 456 ibid which is a remedial clause, provides that any failure by a foreign company to comply with any of the requirements of Sections 451 or 452 ibid shall not affect the validity of any contract, dealing or transaction entered into by the company or its liability to be sued in respect thereof; but the company shall not be entitled to bring any suit, claim any set-off, make any counter-claim or institute any legal proceeding in respect of any such contract, dealing or transaction, until it has complied with the provisions of section 451 and section 452 ibid. Thus, the defect, of non-registration under Section 451 ibid, is not a fatal defect, rather, it is curable. The material was duly placed before the learned Judge to justify that valid registration of the respondent-company had taken place. This fact, thus, was taken into consideration, and was prudently and reasonably decided by the learned Judge. 16. It is also submitted by the learned counsel for the appellant that the decree on the basis of which the winding up proceedings have been founded by the respondent, had not been executed by the respondent within the prescribed period of limitation, resultantly, such decree, now having been rendered inexecutable, could not be made the basis of the winding up proceedings. It is also submitted that the winding up proceedings cannot be used to coerce the company to make the payment to the creditors. There is a difference between a company in a running CAs 539/03 etc -: 35 :- condition and a company not in a running condition, and the spirit of law is to save the institutions rather to destroy them by winding up. According to him, because the object of winding up is to determine the solvency or insolvency of the company, only a company which is found to be insolvent could be wound up. Reliance in this behalf has been made on the judgments reported as Hala Spinning Mills Ltd. (supra), M/s Metito Arabia Industries Limited Vs. M/s Gammon (Pakistan) Limited (1997 CLC 230) and M/s Khyber Textile Mills Ltd. Vs. M/s Allied Textile Mills Ltd. (PLJ 1979 Kar 295). It was however, submitted by the learned counsel for the respondent that as the appellant was unable to pay its debt on the basis of the decree which, after notice to the appellant under Section 305 of the Companies Ordinance, remained outstanding, therefore it should be presumed that the appellant-company is unable to pay its debt and therefore, the order for winding up was justified. Considering the submissions made by the learned counsel for the appellant, notwithstanding the merits of the case, we are inclined to provide an opportunity to the appellant to pay the decretal amount along with costs to the respondent. 17. These are the reasons of our short order of even date, which reads as under: - “For the reasons to be recorded later, Civil Appeal No.1773/2016 is dismissed with costs of Rs.500,000/- (rupees five hundred thousand). However, as regards Civil Appeal No.539/2003 is concerned, which has been filed against the winding up order dated 19.3.2003 passed by the learned Single Judge of the Sindh High Court, an opportunity is provided to the appellant to pay the decretal amount involved in Civil Appeal No.1773/2016 along with CAs 539/03 etc -: 36 :- the costs of Rs.500,000/- to the respondent within two months from today in order to avoid the winding up of the company. The learned counsel for the respondent has consented to the above order and stated that he would not press the winding up petition if the abovestated decretal amount and the costs are paid accordingly. Needless to observe that if such amount is not paid within the said period, this appeal shall also be deemed to have been dismissed.” CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 1st January 2018. Approved for reporting Mudassar/ 

IN THE SUPREME COURT OF PAKISTAN Appellate Jurisdiction) PRESENT: Mr. Justice Sajjad All Shah Mr. Justice Amin ud Din Khan Civil Appeals No. 53 As 54 of 2015. sitairic the order dated 26A2 2000 passed by the Peshawar High Court in CX No, 41 of 1995) Abdul Khaliq (decall thr. LRs. Appellants On both) Versus Fazalur Rebman and others. For the Appellant (5) (In both) For the Respondents Nos, In CA 53/15: Iici—iii, 5Irs), 6 I. J2(Lre(. 19(Lrs(, 20.23. 33(Lrs), 3SfIrs)J: For the Respondents Nos. In CA 54/I5: [ 1. 12. 19.13, 34.361: Other respondents: Date of Hearing Respondents (Sri both) Mr. Tariq Mahinood, Sr. ASC Syed Rifaqat Hussain Shah, AOR Mr. Muhammad Munir Paracha, ASC A LO NO WITH Mr. Zulfiqar Khatid Maluka, ASC. Mr. Muham!r.ad Munir Paracha, ASU ALONOWITH Mr. Zulflqar Khald Maluka ASC. No mo 08.02.2022 Judgment Sailad All Shah, J. Leave was granted in these cases vide our order dated 21. I .20'S to consider whether the impugned judgment of the Peshawar High Court was inconsonance with the evidence led by the parties and the applicable law to the case. 2. The litigation in these cases is not only very old but has a any chequcred background. The facts as pleaded and evident from the record are that the property/ subject matter admittedly was owned by one Naaju who died somewhere around 1906 leaving beh:nd one son by the name of Abdul Ohafoor and a daughter Mst. Poshnac. In accordance with the CA 53 & 54 f2015 2 prevalent custom, the entire property went to Abdul Ohafoor as the only son to the exclusion of Mst. Roshnae, the daughter. Abdul Ghafoor died issueless in the year 1921 and again, in accordance with the customary law prevalent at the relevant time, the entire property went to Mst, Roshnae. It appears that Mst. Roshnae was a spinster and on 28-4.1964 gifted the entire property in favour of Abdul Khaliq etc., the appellants. The record further discloses that alter the death of Mst. Roshnae, the respondents herein on 23.12.1978 claiming to be collaterals, filed a suit for possession to claim their Sharal share of inheritance by asserting that Mst. Roshnae was a limited owner and could not have alienated the whole property through the registered gift deed being against the principles of Shadah. 3, The appellants after having been served, filed their contesting written statement and the trial Court after allowing the parties to adduce their respective evidence, dismissed the suit on merits as well as being barred by time. The respondents being aggrieved with the judgment of the trial Court filed an appeal before the District Judge Mandan who, after hearing the parties, vide its judgment and decree dated 8.11,1994 held that the respondents were entitled as collaterais to the extent of 1/3rd share in the subject property. The judgment of the appellate Court was again challenged by both the parties before the Peshawar High Court by filing two separate revision petitions and the High Court, after hearing the parties, dismissed the revision filed by the appellants and partially allowed the revision filed by the respondents by modifying the judgment of the appellate Court and holding that the respondents were entitled to 3/4th share instead of 1/31d as was held by the appellate Court, giving rise to the instant appeals. 4. The matter does not end here, these appeals were earlier decided by this Court vide its judgment dated 12.12.2002 modifying the judgment of the High Court by holding both the appellant and respondents 3 entitled to equal shares in the property left by Abdul Ghafoor. The appellants against such judgment sought a review which was allowed by this Court vide its order dated 197.2004 and the suit of the respondents was dismissed. The record further reflects that some of the legal heirs/collaterals filed an application under Section 12(2) CPC which was ultimately allowed vide order dated 309.2011 and while setting aside all the orders, the review petitions were directed to be heard afresh. The review petitions were taken up for hearing on 13.3.2014 and vide order of the same day, were allowed by setting aside the judgment dated 12,12.2002 directing the re-hethng of the petitioner which ultimately were converted into appeals by this Court vide order dated 21.1.2015 and are being decided through this judgment. 5. Learned counsel for the appellants made two-fold submissions; firstly, that the respondents are distant kindred and in presence of Mst. Rcshnae the full sister of Abdul G}iafoor are not entitled to inheritance and; secondly, that if they are collaterals and are held as residuaries still they are not entitled to any share as the sister being a superior residuary would eliminate the inferior. To support his submissions, reference was made to the Table of Residuaries annexed to para 65 of Principles of Mohammedan Law' by D.F. Mullah 10 show that the full sister stands at Serial No.6 of the Table whereas descendants cliche grandfather how-high-- so ever stand at Serial No. 13 and consequently, submitted that the full sister would exclude descendants of the true grandfather. Reliance was also placed on the judgments of this Court in the cases of Saaduliah and others vs. .Mst. Gulbanda and others (2014 SCMR 1205) and Muhammad Sharif vs. Niamat Thl,i (2021 SCMR 1355). It was next contended that even if they are held as collaterals having a superior right as residuaries than the full sister, still they would be entitled only to 1/3- 1 share in the property because on demise of Naaju, Mat. Roshnae would have got 1/3"' share as CA 53 &5l a 2Dt5 4 daughter whereas Abdul Ghafoor would have gotten 2/31d of inheritance as son and upon the demise of Abdul Ohafoor, Mst. Roshnac again as the only sister would have received a share making her share as 2/3rd leaving 1/31d for the collaterals. To support his submission, it was contended that The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 hereinafter referred to as the 'Act of 1962") had a retrospective application and would have application from the date Nanju died, reliance was placed on the judgment of this Court in the case of Muzaftar Khan us. Roshwt Jan (PLD 1984 SC 394) and Fagir Ahmed Khan vs. Riaz Ahmad (2020 SCMR 346). 6. On the other hand, the learned counsel for the respondents argued that Mst. Roshnae held the estats as limited owner' under customary law and after termination of said estate the property was to devolve upon the legal heirs of the last full owner i.e. Abdul Grafter in accordance with Shariah, which included the plaintiffs/respondents as his collaterals. it was argued that section 7 of the Act of 1962 repealed The NWFP Personal Law (Shariat) Application Act, 1935 (hereinafter referred to as the "NWIP Act of 1935") and through section 2 of The West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964 (hereinafter referred to as the "Amendment Act of 1964); sub-section (2) of section 7 of the Act of 1962 was repealed by virtue of which the Act of 1962 would be applicable to cases even where the death of the last full owner had occurred before the commencement of the Act of 1962. Therefore, the Act of 1962 would be applicable to the case at hand and consequently, through the application of section 3, limited estates in respect of immovable property held by Muslim females under customary law would stand terminated and by virtue of section 5, Muslim Personal Law (Shariah) would be applicable and the estate would devolve upon such persons who would have been entitled to succeed upon the death of the last 5 fujI owner. Hence, it was argued that upon the death of Abdul Ghafoor, the respondents/plaintiffs would be entitled to a share in his estate under Muslim Personal Law (Shariai4 as residuaries being descendants of the time grandfather how-high-so-ever. Reliance was placed on para 65 Mohammedan Law by D.F. Mulls and the judgment of this Court in the case of WarisAli and others vs. Rasoolan Th'bt(PLD 2014 SC 779). 7, We have heard the learned counsel for the parties and have minutely perused the record. It appears from the record that after the death of Naaju, the property devolved upon Abdul Ghafoor, his son, to the exclusion of his daughter according to the customary law prevalent at that time. After the death of Abdul Choicer, who died issueless, the property devolved upon Mat. Roslrnae i.e. his sister as limited owner' also in accordance with customary law. The NWFP Act of 1935 did not terminate the limited estates of Muslim females and even though through section 7 of the Act of 1962 the NWFP Act of 1935 was repealed, nonetheless, sub- section (2) of section 7 of the Act of 1962 provided that in such cases where the death of the last full owner had occurred before the commencement of the Act of 1962 the Act of 1962 will not apply and the cases will be governed by the Acts repealed in sub-section (1) of section 7 of the Act of 1962. For reference, section 7 of the Act of 1962 is produced below: 7. Repeal and Savings.- (1) The following enactments are hereby repealed: (a) . -. (b) (C) (ci) The NWFP Muslim Personal Law (Shariat) Application Act, 1935; (C) 112 (g) (h) (Q) This Act shall not apply to cases where the death of the lasifull owner or the termination of the life estate or the death of the legatee-n- - enjoyment, as the case nay be, has occurred cA$3&4r1oI5 before the commencement thereof, and all such cases shrill be governed by the Acts repealed in subsection (1) according to the territories in which they were operative. 8. However, thereafter, through section 2 of the Amendment Act of 1964 which was enacted on 15.4.1964, sub-section (2) of section 7 of the Act of 1962 was repealed meaning thereby that even if the last full owner had died before the commencement of the Act of 1962, the Act of 1962 would still apply to such cases. For reference, section 2 of the Amendment Act of 1964 is reproduced below: 2. Amendment of Section 7 of Act V of 1962.. In Section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act) 1962, Sub-Section (2) shall be omitted. 9. In such view of the matter and through the cumulative effect of sections 3 and S of the Act of 1962, even where the last full owner had died prior to the commencement of the Act of 1962, the limited estate held by a Muslim female in relation to the said estate would now be terminated and upon such termination, those persons would be entitled to the estate as would have been entitled under Muslim Personal Law (Shariali) upon the death of the last full owner and if any such heir had died in the meantime, his/her share would devolve in accordance with Shariah on such persons who would have succeeded him/her if he/she had died immediately after the termination of the life estate. It was further stipulated in the proviso to section 5 of the Act of 1962 that the Muslim female holding the limited estate under customary law shall be deemed to be entitled to her share under Muslim Personal Law Shariah) in the eutate of the last full owner and the same shall devolve on her. For re 1ercncc, sections 2 and 5 of the Act of 1962 are reproduced below: - Termination of Limited Estates under Customary Law.- The limited estates in respect of immovable property held by Muslim females under e Customanj Law are hereby terminated: Provided that nothing herein contained shall apply to any such estate saved by any enactment, repealed by this Act, and the estates so excepted shall continue to be governed by that enactment, not withstanding its repeal by this Act. S. Devolution of Property on the Termination of Life Estate and Certain Wills.- The life estate terminated under section 3 or the property in respect of which the further operation of will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law(Shared) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him, if he had died immediately after the termination of the life estate or the death of the said legatee: Provided that the share to which a Muslim female holding limited estate under Customary Law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her 10. In order to provide certainty, the last full owner' as provided in section 5 of the Act of 1962, to our minds, appears to he the full owner wherealter the property did not devolve through inheritance, which in this case would be Abdul Ghafoor. Any other meaning to the word last full owner would not only he against the spirit of section 5 but would also result in uncertainty by delving into an uncertain period in the past. In the instant case, it is an admitted position that Abdul Ghafoor, the last full owner, died issueless in the year 1921 and the property devolved on Mst. Roshnac as limited owner in accordance with customary law. Therefore, upon the application of the Act of 1962 pursuant to the Amendment Act of 1964, the limited estate held by Mst. Roshnac would be deemed to he terminated and those persons would be entitled to succeed who were entitled to inherit from the estate of the last full owner i.e. Abdul Ghafoor in accordance with Muslim Personal Law Shariah). Hence, the inheritance of CA&4I1UJ5 Abdul Ghafoor would be deemed to have opened at that time and was to devolve amongst such persons entitled to inherit from his estate under Shañ&t 11. In such view of the matter and upon the opening of the inheritance of the deceased Abdul Ohafoor, Mat. Roshnae would inherit 1/2 share in the estate of Abdul Ghafoor as a Quranic sharer, being his full sister. This has been ordained by the Holy Quran in Surah An-Nisa, Verse 176 wherein it has been explicitly ordained that in the absence of a child, a full sister is entitled to inherit 1/2 share in the property of the deceased Muslim. Reference may also be made to Saaduflah's case supra). 12. Now the only question that remains to be decided is whether Mat. Roshnae would also inherit the remaining half share as a residuary or would the same be inherited by the plaintiffs/ respondents who also claim to be residuaries of Abdul Ghafoor as descendants of the true grandfather how-high-so-ever. In this regard, we have gone through the case law cited by the learned counsel for the parties and have perused para 65 of Principles of Mohammadan Law' by D.F. Mullah and the Table of Residuaries annexed thereto, as relied upon by both the parties. In our view, Mst. Roshnae would also inherit the remaining 1/2 share in the estate of Abdul Ohafoor as a residuary because a full sister is placed higher in the Table of Residuaries at serial No.6, whereas, descendants of the true grandfather how-high-so-ever are placed at serial No. 13 and below and thus, would not be entitled to inherit after being excluded by the full sister placed higher to them. For convenience, the Table of Residuaries annexed to Para 65 has been reproduced below: T..BLE OF RESIDIJARIES IN ORDER OF SUCCESSION - Sunni Law t.ESCENDANTS: ON, LA 5j& 54etiffiI) Daughter takes as a residuary with the son, the son taking a double portion. (2) SON'S SON hIs-the nearer in degree excluding the more remote. Two or more Sons Sons inherit in equal shares. Sons daughter his, takes as a residuary with an equal sons Son ....... II. ASCENDANTS: (3) FATHER. (4) TRUE GRANDFATHER h.h.s.- the nearer in degree excluding the more remote. Ill. DESCENDANTS OF FATHER: (5) FULL BROTHER. FULL SISTER- takes as a residuary with full brother, the brother taking a double portion. (6) FULL SISTER- In default of full brother and the other residuaries above named, the full sister takes the residue if any..... (7) CONSANGUINE BROTHERS. CONSANGUINE SISTER.- takes a residuary with consanguine brother, the brother, taking a double portion. (8) CONSANGUINE SISTER.- In default of consailguine brother and the other residuaries above-named, the consanguine sister takes the residue ............. (9) FULL BROTHERS SON. (10) CONSANGUINE BROTHERS SON. 11) FULL BROTHERS SON'S SON. (12) CONSANGUINE BROTHERS SONS SON. Then come remoter male descendants of No. 11 and No. 12, that is, the son of No. 11, then the son of No. 12, then the sons son of No. 11, then the son's son of No. 12 and so on in like order. IV. DESCENDANTS OF TRUE GRANDFATHER h.h.s. (13) FULL PATERNAL UNCLE. CA 53 & 5401 aL5 1() (14) CONSANGUINE PATERNAL UNCLE. (15) FULL PATERNAL UNCLE'S SON. (16) CONSANGUINE PATERNAL UNCLES SON. (17)FULL PATERNAL UNCLES SONS SON. (18)CONSANGUINE PATERNAL UNCLES SONS SON. Then come remoter male descendants of Nos. 17 and 18, in like order and manner as descendants of Nos.11 and 12. MALE DESCENDANTS OF MORE REMOTE TRUE GRANDFATHERS - in like order and manner as the deceased's paternal uncles and their Sons and sons sans. 13. After minutely examining the Table of Residuaries, the submission of Mr. Porsche, learned ASC for the plaintiffs/respondents that since the sister is a sharer in the estate of Abdul Ghafoor, therefore, she would not inherit as a residuary, does not appeal to us for the reason that the Table of Residuaries at serial No.6 provides that in default of a Ml brother and the other residuaries above named, the fiifl sister takes the residuary if any ...'. The words above named' are of great significance and negate the submission of the learned counsel by entitling a full sister to inherit as a residuary in absence of the residuaries detailed in serial No .1 to serial No.5, meaning thereby, that the residuaries placed below serial No. 6 would not inherit anything in the presence of full sister. Admittedly, the plaintiffs/respondents are placed much below i.e. under sub-heading No. IV as DESCENDANTS OF TRUE GRANDFATHER h.h.s' and therefore, would be excluded from inheriting the property as residuaries by the full sister which is placed above them. This was the view taken by this Court in a judgment delivered by a two-member Bench in Saadullah's case (supra). On the other hand, the plaintiffs/ respondents rely on Wares All's case (supra) which was also rendered by a two-member Bench of this Court and wherein seemingly an opposite view from Saadullah's case was taken. CAj&4vf2OL5 II However, notably, the judgment in Saaduilah's case was prior in time and the view rendered by the learned Bench in Wails A/is case had neither taken into account the judgment rendered in Saadullah's case and - nor distinguished it. Furthermore, the view taken by this Court in Saaduilahs case has also been followed by this Court in its recent judgment in Muhammad Sharit's case (supra). 14, Therefore, in view of the above, Mid. Roshnae was entitled to inherit the entire estate of Abdul Ohafoor, being his full sister. Notably, the Amendment Act of 1964 was enacted on 15.4.1964 and came into force at once, therefore pursuant to the Amendment Act of 1964 through which the Act of 1962 was made applicable to cases even where the full owner had died prior to the commencement of the Act of 1962, the limited estate held by Mat. Roshnae was terminated and she inherited the complete estate of Abdul Ohafoor in her personal capacity as per Muslim Personal Law Shariah). Therefore, the gift made by Mst. Roshnae to the appellants on 28.4.1964, i.e. after the enactment of the Amendment Act of 1964, was valid as she was no longer holding the estate as a limited owner but had inherited the entire suit property according to Shariah. It is a settled proposition of law that at the time the inheritance of a deceased Muslim opens, all the entitled legal heirs become owners to the extent of their shares there and then, therefore, sanction of mutation, issuance of succession certificate etc. are procedural matters regulated by procedural laws just to make records and for fiscal purposes. Reference is made to the cases of Khan Muhammad tb', LRs and Others vs. Mst. Khatoon Bibi and Others (2017 SCMR 1476) and Mahmood Shah vs. Khalid Hussain Shah (2015 SCMR 869). Therefore, Mst. Roshnae was competent to gift the entire suit property to the appellants and consequently, the gift would be valid. 15. In view of what has been discussed above, these appeals are allowed, the impugned judgment and decree of the High Court is set-aside Ok 53& 54of2015 and the judgment and decree passed by the trial Court dismissing the suit of the plaintiffs/ respondents is restored. No order as to costs, Islamabad, Announced on Approved

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MANZOOR AHMAD MALIK CIVIL APPEAL NO.540-L OF 2009 (Against the judgment dated 8.9.2004 of the Lahore High Court, Lahore passed in C.R.No.727/2003) Meraj Din and another …Appellant(s) VERSUS Muhammad Sharif and another …Respondent(s) For the appellant(s): Ch. Mushtaq Ahmed Khan, Sr. ASC For the respondent(s): Mr. Abdul Wahid Chaudhry, ASC Date of hearing: 06.12.2016 … JUDGMENT MIAN SAQIB NISAR, J.- The sole legal question involved in this appeal, with the leave of the Court, is whether the period of limitation for filing a suit for pre-emption under the Punjab Pre- emption Act, 1913 (the Pre-emption Act) is one year from the date of execution of the sale deed or from the date of its registration? 2. The relevant facts in this regard are that the respondents purchased the suit property vide sale deed executed in their favour on 8.5.1975 but registered on 26.5.1975. The appellants brought a suit for pre-emption on 25.5.1976 which was resisted by the respondents, inter alia, on the ground that it was barred by time and therefore issue No.4 was framed to decide if it was so. The learned Trial Court decreed the suit on merits and also resolved the issue of limitation in favour of the pre-emptors which judgment was upheld in Civil Appeal No.540-L of 2009 -: 2 :- appeal. However, the learned High Court in its revisional jurisdiction overturned the findings on the issue of limitation and concluded that the suit was barred by time, holding that the period of limitation started from 8.5.1975, the date of execution and not from 26.5.1975, the date of registration. In this regard the provisions of Section 47 of the Registration Act, 1908 (Registration Act) and the judgment of this Court reported as Naseer Ahmed and another Vs. Asghar Ali (1992 SCMR 2300) were relied upon. The learned High Court did not dilate upon any other issue. Leave was granted on 29.6.2009 to consider the proposition ibid by making reference to Section 47 of the Registration Act and Section 30 of the Pre-emption Act. 3. Learned counsel for the appellants argued that with regard to pre-emption suits, two provisions of law are relevant for the purposes of limitation. The first is Article 10 of the Limitation Act, 1908 (Limitation Act) which clearly prescribes a limitation period of one year for a pre-emption suit in cases where the sale is effected through a registered deed, from the date of its registration. The second is Section 30 of the Pre-emption Act which is a residual provision for suits that do not fall within the purview of the Article ibid. He argued that following the procedure set out in Sections 59 and 60 of the Registration Act an instrument is registered when the competent authority certifies and endorses the same: and it is only then that the document takes effect and serves as a notice to those who have a right to pre-empt. Further, Section 47 of the Registration Act is not relevant for the purposes of Article 10 of the Limitation Act, because it (Section 47) only applies to the parties to the transaction itself (or any person claiming through them or any other person who has some right or interest in the Civil Appeal No.540-L of 2009 -: 3 :- property which is effected on account of the registered document) and it (Section 47) would not abridge the period of limitation of a pre-emptor, which would only commence from the date he is put to notice of the sale. In this regard he highlighted the object and purpose of a registered sale deed which, according to him, is to put the prospective pre-emptor to notice that the sale has taken place in order that the pre-emptor may exercise his right(s) under the law. The putative pre-emptor would be deemed to have been put to notice only once the document had been registered even though such documents may be registered a week, month or more (but less than four months) after the date of execution (note:- a document has to be presented for registration within four months of its execution according to Section 23 of the Registration Act). In support of his arguments, learned counsel relied upon the judgments reported as Ghulam Mustafa Vs. Dilawar and others (1984 CLC 401), Ch. Shafaat Mahmood Vs. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (2001 CLC 751) and Fazal Din Vs. Abdul Hamid and another (PLD 1967 Lahore 378). Whilst relying upon the judgment reported as Qazi Muhammad Daud and another Vs. Muhammad Ayub and others (1985 SCMR 1966), learned counsel argued that even though it was not the case of the respondents, yet mere reference in the sale deed that possession of the pre-empted property had been delivered would have no relevance, rather it had to be proved independently that possession was so delivered. Reliance was also placed on Muhammad Sarwar Vs. Feroze Khan and another (PLD 1951 Lahore 169). 4. Controverting the above, learned counsel for the respondents stated that in paragraph No.2 of the plaint, the appellants (plaintiffs) mentioned in categorical terms that the sale was Civil Appeal No.540-L of 2009 -: 4 :- effected on 8.5.1975 and thus their cause of action would be based on the said date, therefore the period of limitation would commence from the date of execution of the sale deed; it was never the case of the appellants that the period of limitation would commence from the date of registration i.e. 26.5.1975, therefore the appellants cannot go beyond the scope of their own pleadings. He also argued that possession of the property was delivered to the respondents even prior to the date of execution and this is so mentioned in the sale deed, thus the period of limitation would begin from the date of delivery of possession and not from either execution of the sale deed (Article 10 of the Limitation Act) or registration thereof. He strenuously relied upon Section 47 of the Pre-emption Act to submit that the operation of a registered document (such as a sale deed) would take effect from the date of execution and not the date of registration, and the latter would have no nexus to the starting point of limitation for a pre- emption suit. He relied upon the judgments reported as Muhammad Ali Vs. Muhammad Irshad etc. (PLJ 2002 Lahore 743), Naseer Ahmed’s case (supra) (1992 SCMR 2300), Muhammad Hayat Vs. Mst. Surraya Begum and another (1981 CLC 293), Muhammad Sharif Vs. Muhammad Safdar etc. (NLR 1994 Civil 688), Sher Muhammad Vs. Rajada and another (1981 Law Notes (S.C.) 859), Allah Yar and another Vs. Raja and another (1989 SCMR 802) and Hakim Muhammad Buta and another Vs. Habib Ahmad and others (PLD 1985 SC 153). 5. Heard. To resolve the proposition at hand, it is expedient to reproduce the relevant provisions of law. Article 10 of the Limitation Act reads as under:- Civil Appeal No.540-L of 2009 -: 5 :- Description of suit Period of limitation Time from which period beings to run 10. To enforce a right of pre-emption whether the right is founded on law, or general usage, or on special contract One year When the purchaser tah25kes, under the sale sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. [emphasis supplied] Section 30 of the Pre-emption Act reads as under:- “30. Limitation.—In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act shall, notwithstanding anything in the Article 120 of the said Schedule, be one year-- (1) in the case of a sale of agricultural land or of village immovable property; from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887; or from the date on which the vendee takes under the sale physical possession of any part of such land or property; whichever date shall be the earlier; Civil Appeal No.540-L of 2009 -: 6 :- (2) in the case of a foreclosure of the right to redeem village immovable property or urban immovable property; from the date on which the title of the mortgagee to the property becomes absolute; (3) in the case of a sale of urban immovable property; from the date on which the vendee takes under the sale physical possession of any part of the property.” Sections 47, 59 and 60 of the Registration Act are as follows:- “47. Time from which registered document operates.— A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. 59. Endorsements to be dated and signed by registering officer. The registering officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day. 60. Certificate of registration.-(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word “registered”, together with the number and page of the book in which the document has been copied. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been Civil Appeal No.540-L of 2009 -: 7 :- duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned.” The use of the word “or” in the 3rd column of Article 10 of the Limitation Act is significant. It essentially bifurcates the said article into two parts: (i) where the purchaser takes physical possession of the property or (ii) where the instrument of sale has been registered. We would like to mention that this bifurcation of Article 10 of the Limitation Act has been recognized by the learned High Courts in Muhammad Sarwar’s case (supra) and Fazal Din’s case (supra) which, in our opinion, is the correct view. The object of either delivery of possession to the vendee or registration of the sale deed is to put the prospective pre-emptor to notice of the sale in order for him to exercise his right within the prescribed period of limitation. The first part of Article 10 of the Limitation Act deals with cases where the sale has taken place and possession of the sold property has been delivered to the vendee pursuant thereto. No doubt in such a situation the period of limitation would start from the date of delivery of physical possession; but in order to successfully defend a suit for pre-emption falling in this category on the point of limitation (if it is beyond one year from the date of delivery of possession) the defendant-vendee would be obliged to prove that physical possession was delivered prior to the date of execution of the registered sale deed. Why is it so? The obvious object behind this is that the prospective pre-emptor must have notice that the sale has taken place and possession of the property has been delivered or that there is a change of possession. This factum of possession, in the wisdom of the law, is thus Civil Appeal No.540-L of 2009 -: 8 :- considered to be adequate notice of sale of the property, enabling the pre-emptor to file a suit. Positive evidence has to be led by the vendee where the date of delivery of physical possession is different from the date of registration of the sale deed. Mere mention of delivery of possession in the sale instrument will not be a positive proof of the fact, which has to be independently established by the vendee when his defence of limitation is founded upon this fact. In the judgments reported as Qazi Muhammad Daud’s case (supra) and the judgments reported as Khushi Muhammad Vs. Abdul Shakoor (1987 SCMR 1473) and Muhammad Abid and 2 others Vs. Nisar Ahmed (2000 SCMR 780) this Court has held that a mere recital in the sale deed of delivery of possession is not by itself effective proof of such delivery. In those cases where possession has not been delivered and/or the sale deed has been executed but not registered as yet, obviously a pre-emptor would have no notice that sale had taken place, thereby enabling him to exercise his right. In those cases the first part of Article 10 of the Limitation Act would have no application, rather the case(s) would fall within the second part thereof beginning from the word OR “where the subject of the sale does not admit of physical possession, when the instrument of sale is registered.” It is instructive to remember that a document required to be registered can be presented to the registrar within four months from the date of its execution as per Section 23 of the Registration Act. Thus for example, if a document is executed on 1.1.2000 and is presented for registration on the last date of the four months allowed for the presentation thereof and it takes a further one month to be registered according to the law, in this manner about five months may be lost and yet the pre-emptor would have no notice of the sale; the right of the prospective pre- Civil Appeal No.540-L of 2009 -: 9 :- emptor to file a suit within a period of one year cannot thus be curtailed by excluding this whole period from the calculation which is what would happen if we took the date of execution of the sale deed to be the starting point for purposes of limitation; further the provisions of Section 47 of the Registration Act cannot be read into the clear language of Article 10 of the Limitation Act which specifically mandates “when the instrument of sale is registered” meaning thereby that limitation begins to run from the date of the registration. 6. Before expressing our opinion on the true import, meaning and effect of the afore-quoted expression of Article 10 of the Limitation Act, we would like to briefly deal with Section 30 of the Pre-emption Act. The Limitation Act has provided a period of limitation for every suit and if the limitation is not prescribed by any particular provision, then the residuary Article 120 is applicable. However, a special law can also prescribe the period of limitation for particular types of suits which could be instituted under such law. A bare reading of Section 30 of the Pre-emption Act, particularly the phrase “In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908”, makes it clear that this section acknowledges the application of the period of limitation for the class of cases falling within Article 10 of the Limitation Act, meaning thereby that for all those suits which fall within the purview of Article 10 ibid, Section 30 supra would not apply. In this regard a three member bench of this Court has held in the judgment reported as Chaudhry Khan Vs. Major Khan Alam (PLD 2009 SC 399) that:- “Article 10 of the First Schedule of Limitation Act, 1908 provides for a limitation period of one year to Civil Appeal No.540-L of 2009 -: 10 :- enforce a right of pre-emption commencing from the date when the purchaser takes, under the sale, sought to be impeached, physical possession of the whole of the property sold, or, where the subject of the sale does not admit to physical possession, when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act, 1913 also takes care of limitation period in a case not provided for by Article 10 of the Limitation Act. It provides a period of limitation of one year for instituting a suit for pre- emption from the date on which a vendee takes under the sale physical possession of any part of such land or property whichever is earlier. Now the question arises as to terminus a quo for a limitation period. In the present case, the registered sale-deed was executed and registered on 21-2-1978 as required by section 54 of the Transfer of Property Act, 1882. Therefore, the period of limitation would be computed from the date of registration of the sale-deed as the physical possession of the suit property under the sale could not take place earlier thereto. The delivery of possession even if earlier made pursuant to an agreement to sell would not serve the purpose for non-suiting a pre-emptor on that ground.” In any case, there is no discord between the parties that the present case squarely falls within ambit of Article 10 of the Limitation Act and that Section 30 of the Pre-emption Act is not attracted thereto. Regardless of the fact that the counsel for the parties have not raised such issue, our candid opinion is that Section 30 ibid is not applicable to the present case. 7. Reverting to the proposition in hand, in the context of Article 10 of the Limitation Act, a plain reading of the said article Civil Appeal No.540-L of 2009 -: 11 :- establishes that the period of limitation for the cases falling in the second part of the said article will be one year from when the sale instrument is registered and not the date of execution. This was also the view of the learned High Courts in Ch. Shafaat Mahmood’s case (supra) and the judgment reported as Chaudhry Muhammad Yusuf Vs. Ghulam Muhammad and 3 others (2000 YLR 2178). For the purposes of this second part of Article 10 of the Limitation Act, delivery of possession is not relevant. It may be pertinent to mention here that in the present case it is not even the defence of the vendees/respondents that they had taken over possession of the suit property either prior to the date of the execution of the sale deed or on the date of execution of the sale deed or even during the period between the date of execution and registration. Their defence primarily has been that because the sale deed was executed on 8.5.1975, resultantly, registration of the deed on 26.5.1975 is not relevant. Seemingly this was on the basis of the provisions of Section 47 of the Registration Act, which stipulate that a registered sale deed shall take effect from the date of execution. This is also the view which has prevailed with the learned High Court in its impugned judgment whilst relying upon Naseer Ahmed’s case (supra). The question of limitation was not in issue in the said case, rather the vendee in that case built up his defence on the basis of a purchase made vide document executed on 8.9.1974 and registered on 10.9.1974 in his favour, thus he claimed that being an owner in the estate w.e.f. 8.9.1974, the sale having been made in his favour on such date could not be pre-empted. It is in this context that this Court held as under:- Civil Appeal No.540-L of 2009 -: 12 :- “There is no controversy that the sale-deed in respect of this land was executed in appellants' favour on 8-9-1974 i.e. a day before the institution of the suit. It was presented for registration on 9-9-1974, but registered on 10-9-1974. In the opinion of the High Court, as the document was registered after the institution of the suit, the transaction was of no avail to the appellants. The view taken by the High Court is untenable. Section 47 of the Registration Act seemingly escaped notice of the learned Judges of the High Court, which provides that a document registered on a date subsequent to the date of its execution operates from the date of the execution. Obviously, therefore, the title to the land had passed on to the appellants on 8-9-1974, and they could justifiably bank on it to oppose the suit filed by the respondent.” Section 47 of the Registration Act, which provides that a document registered on a date subsequent to the date of its execution would operate from the date of execution and not registration, was referred to in the context of passing of title of the property unto the vendee for the purposes of resisting the suit for pre-emption, having become the owner of the property prior to the institution of the suit. Hence, reliance upon such case by the learned counsel for the respondents and by the learned High Court in its impugned judgment is misplaced. Besides, Section 47 of the Registration Act applies inter se the parties to a transaction, anyone claiming through them or anyone who has some right or interest in the property on account of the registered document. The said section has no relevance to the rights of persons who are not a party to such document therefore it would not operate to curtail the period of limitation available to a pre- Civil Appeal No.540-L of 2009 -: 13 :- emptor under Article 10 of the Limitation Act, for the purposes of which limitation would begin from the date he is put to the notice of the sale. This was also the view of the learned High Court in Ch. Shafaat Mahmood’s case (supra) which to our mind is correct. 8. In light of the above, the instant appeal is allowed and the impugned judgment is set aside. JUDGE JUDGE Announced in open Court on 5.1.2017 at Islamabad Approved For Reporting Waqas Naseer/*

1 IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal Nos.540 to 542 of 2021 (Against the judgment dated 04.02.2021 passed by the Peshawar High Court Peshawar in W.P. Nos.2835-P/2020, 856-A/2020, 2971- P/2020) Rehman Medical College & another (in C.A.540/2021) Women Medical and Dental College & another (in C.A.542/2021) Pak International Medical College through its Principal, Phase-V, Hayatabad & another (in C.A.541/2021) …Appellant(s) Versus Wafa Gul & others (in C.A.540/2021) Dr. Wafa Javed & others (in C.A.541/2021) Dr. Muhammad Ayaz & others (in C.A.542/2021) …Respondent(s) For the Appellant(s): Qazi Jawad Ehsanullah, ASC (in C.A.540,541/2021) Syed Haziq Ali Shah, ASC Mr. Muhammad Sharif Janjua, AOR (in C.A.542/2021) For Respondent No.76: Mr. Faisal Fareed, ASC For Respondent No.32: Syed Rifaqat Hussain Shah (in C.A.540-542/2021) For Respondent No.1,8,9, Mr. Muhammad Ijaz Khan Sabi, ASC 36,69: (in C.A.540-542/2021) Remaining Respondent(s) Nemo For the Department Zia Ullah, Deputy Secretary Health, KP. Date of hearing: 09.11.2021. JUDGMENT Qazi Muhammad Amin Ahmed, J.- A controversy arisen out of common judgment dated 04.02.2021 by a learned Division Bench of the Peshawar High Court relating to the quantum of stipend to be Civil Appeal Nos.540 to 542 of 2021 2 paid to the graduates/internees from private medical colleges, doing house jobs, is being assailed through leave of the Court dated 08.06.2021. The High Court directed the petitioners to pay the internees stipend in accordance with paragraph 21 of the MBBS and BDS (Admissions, House Job & Internship) Regulations, 2018 (the Regulations) that mandatorily requires the amount of stipend not less than the highest amount paid in any public sector of the province. It was in the backdrop of violation of this Regulation that brought the internees to the High Court to successfully claim equal treatment. 2. Qazi Jawad Ehsan Ullah, learned ASC, as a lead counsel, argued that reliance by the Peshawar High Court on the Regulations ibid is misconceived inasmuch as after repeal of the parent Statutes i.e. the Pakistan Medical and Dental Council Ordinance, 1962 as well as Pakistan Medical and Dental Council Ordinance, 2019, subordinate arrangements thereunder were also cast away and, thus, it was for the appellants to settle a conscionable amount for the internees having regard to their numbers, commensurate with the services rendered by them; it is next argued that the learned High Court misdirected itself by requiring enforcement of Regulations, no longer in the field and, thus, it was not open for it to purportedly enforce a right that did not exist; it is further argued that the internees signed contract with the medical colleges prior to the enactment of Pakistan Medical Commission Act, 2020 (the Act) and, thus, they cannot claim a past benefit accrued under section 27 (2) of the Act as no one can unilaterally alter or amend the terms and conditions of an agreement; it is last argued that no determination has yet been made by the Provincial Government with regard to fixation of honorarium for house job officers as envisaged under section 27 ibid and, thus, the impugned judgment is not sustainable. Syed Hafiz Ali Shah, learned ASC, has adopted the submissions made at the bar. Respondents defended the impugned judgment maintaining that a well reasoned judgment merited no interference. 2. Heard. Record perused. 3. Though ingeniously articulated, nonetheless, we are not impressed by the submissions made at the bar. Completion of house job is a sine qua non for a medical graduate to embark upon his/her career. After payment of hefty fees in a long drawn academic session spanned over half a decade; it is the time he/she legitimately aspires hard work to bear fruit. A reasonable stipend, commensurate the nature/status of Civil Appeal Nos.540 to 542 of 2021 3 assignment is an equitable due, denial whereof contravenes the command provided under Article 3 of the Constitution of Islamic Republic of Pakistan, 1973. For the convenience of reference, it is reproduced below: “The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principles, from each according to his ability to each according to his work.” Similarly, disparity in payment of stipend to the graduates/internees of private medical colleges constitutes discrimination as it cannot be classified either reasonable or sustainable on the touchstone of any intelligible differentia. Reference to the mutually settled agreement cannot override statutory arrangements extending benefit to the respondents. The High Court has rightly taken care of these aspects of the case by clearly referring to the statutory arrangements holding the field. Reference may be made to section 27(2) of the Act which unambiguously provides that “…….public colleges and private colleges shall pay a stipend or salary not being less than the amounts applicable to the public colleges”. Argument that Government has not yet made any such determination and as such the private colleges are within their remit to determine the amount of stipend as per their own choice is entirely beside the mark. Appeals fail with no order as to costs. Dismissed. Chief Justice Judge Judge Islamabad, the 9th November, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO.542-L AND 543-L OF 2012 (Against the judgment dated 29.10.2010 of the Lahore High Court, Lahore passed in C.Rs.No.349 & 350/2004) Al-Haj Deewan Bakhtiyar Syed Muhammad In C.A.542-L/2012 Diwan Azmat Said Muhammad In C.A.543-L/2012 … Appellant(s) VERSUS Deewan Maudood Masood In C.A.542-L/2012 Maudood Masood and another In C.A.543-L/2012 … Respondent(s) For the appellant(s): Sardar Muhammad Aslam, ASC Ch. Akhtar Ali, AOR (In C.A.542-L/2012) Rana Ijaz Ahmed Khan, ASC (In C.A.543-L/2012) For the respondent(s): Syed Iftikhar Hussain Gillani, Sr. ASC (In both cases) Date of Hearing: 22.1.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- The dispute in these appeals with leave of the Court between the parties is primarily about the appointment of the 26th sajjadanashin of the famous shrine of Baba Farid Ganj Shakkar (RA). Baba Farid Ganj Shakkar (RA) is one of the most prominent Sufi mystic figures of the Chishti Order of Sufis who came to the Subcontinent in the twelfth century and on account of his piety was considered to be one of the most outstanding sufi saints of his times, being revered across the Subcontinent for his spiritual guidance. During his lifetime he had a large number of mureeds, and his Khannakah was soon home to many travelers in search of spiritual/Sufi guidance. Many people Civil Appeals No.542-L and 543-L of 2012 -: 2 :- accepted Islam at his hands and till today countless individuals turn towards the shrine for the rejuvenation of their faith. Unfortunately, like all Sufi mystic personalities, his stay in this world was for a limited period and he left for his eternal abode on the 5th of Moharrum, 661 A.H., at the age of 92. At the time of his demise, he appointed his sajjadanashin and this remains the practice till date: that before the passing away of each sajjadanashin he nominates an agnate who is also a mureed as the next sajjadanashin or on account of any inability of the incumbent to act as such a new sajjadanashin is appointed for the shrine. This is also apparent from the earlier judgments with regards to the sajjadanashin of the same shrine in Sayad Muhammad v. Fatteh Muhammad (22 ILR 24 [Calcutta]) and Deewan Ghlam Rasul v. Ghualn Qutab-ud-Din (AIR (29) 1942 Lah. 142). The significance of the gaddi nashin/sajjadanashin has been explained in paragraph 220 of the principles of Muhammadan’s Law by D.F. Mullah; the sajjadanashin of a shrine is a spiritual guide, distinct from a mutawali who is the manager or administrator of the same. A sajjadanashin may not necessarily be a mutawali which latter post is an exclusively secular post limited to the matters of management of the shrine alone, whereas on the shoulders of the sajjadanashin rests the responsibility of the spiritual functions of guidance of the mureeds and the performance of rasoomaat etc, which require a person of outstanding character and one capable of leading the community and inspiring the mureeds. Thus this post and the nomination for the same carries immense importance in the hearts of a substantial section of the pubic and their spiritual guidance/rejuvenation/beliefs rest in the customs and rituals of this shrine, the person who guides these in his capacity Civil Appeals No.542-L and 543-L of 2012 -: 3 :- as sajjadanashin must therefore be one who is rightfully entitled to the same on the basis of the express declaration/nomination of the Dewan/ sajjadanashin who preceded him. It may be pertinent to mention here that we have been apprised by the learned counsel for the appellant that the usual practice of succession/appointment of the sajjadanashin is that he holds the gaddi nominates his successor himself, and such successor must be an agnate and a mureed. The Dewan Ghulam Qutab-ud-Din, son of Dewan Said Muhammad who was sajjadanashin of the shrine, breathed his last breath on 19.8.1986. During his lifetime he had appointed his son, the respondent, as a successor/sajjadanashin and in this regard a press publication was also made which appeared on 14.11.1980 in Daily Mashriq (Exh.D.1 on pg 318 of CA 542-l/2012). However, subsequently vide another publication dated 13.9.1981 appearing in Daily Nawa-i-Waqt and Daily Mashriq (Exh.P.2 on pg 307-310 in CA 542-L/2012), Dewan Qutab-ud- Din revoked the earlier announcement of sajjadanashin and declared that the new sajjadanashin would be appointed by him from amongst his sons, whom he deemed to be competent to hold the gaddi/ sajjadanashinship. Be that as it may, Dewan Qutab-ud- Din passed away on 19.8.1986 and on 17.10.1986 the appellant (in Civil Appeal No. 542-L of 2012) who is the real paternal uncle of the respondent (in Civil Appeal No. 542-L of 2012 and respondent No.1 in Civil Appeal 543-L of 2012) filed a suit for declaration that the appointment of the respondent as sajjadanashin was invalid and that he should be restrained from acting as such. He asserted that the cancellation of the sajjadanashinship of the respondent, published vide advertisement dated 13.09.1981 was still intact and that thereafter Dewan Qutab-ud-Din had never appointed or nominated the Civil Appeals No.542-L and 543-L of 2012 -: 4 :- respondent as sajjadanashin. In support of his assertions he got 16 witnesses examined, PW-1 to PW-16 including his own statement as PW-6, while also submitting documentary evidence, Exh.P1 to Exh.P.13. The respondent on the other hand, contested the appellant’s claim, getting 21 witnesses examined, DW-1 to DW- 21 including his own witness statement as DW-19. In the written statement filed by the respondent it was mentioned that the late Dewan Qutab-ud-Din during his lifetime, but close to his death, had orally nominated him as sajjadanashin. Be that as it may, after framing of the relevant issues the said suit was decreed in favor of the appellant by the learned Trial Court on 19.7.1993 (pages 113 to 147). However the respondent filed Civil Appeal No.95/ADJ of 1996 whereby the learned Appellate Court overturned the above decision on 8.5.1996 (pages 91 to 107) and decreed the suit in favor of the respondent, setting aside the findings of the learned Trial Court. On the other hand, during these proceedings the appellant in Civil Appeal No. 543-L/2012 (respondent No.2 in CA No.542-L/2012) who is the real brother of the respondent, had filed an application under Order 1 Rule 10, Section 151 and Section 107 of the CPC for being impleaded as party in the proceedings in Civil Appeal No.95/ADJ of 1996, which application had been dismissed. Thereafter, the appellant (in CA 542-L/2012 and paternal uncle of the respondent) assailed the judgment of the learned Appellate Court which revision petition was allowed vide judgment dated 29.5.2006 whereby the judgment of the Trial Court was restored. When the respondent filed Civil Petition No.1037-L/2006 (and the brother of the respondent, Dewan Azmat Said Muhammad filed CP No. 687/2006 against the dismissal of his impleadment application) against the same before this Court, it was observed that an alarmingly long period of one year had been Civil Appeals No.542-L and 543-L of 2012 -: 5 :- consumed in the writing of the judgment dated 29.5.2006 which was heard on 15.6.2005. Thus by order of this Court dated 15.01.2007 the said judgment was set-aside and the matter was remanded to the learned High Court for expeditious disposal as far as possible within a period of three months. Resultantly, in compliance with the said order, the matter was heard by the learned High Court on 25.9.2007 and a decision was given on 25.10.2007 decreeing the suit in favor of the respondent (dismissing the application of impleadment of the Dewan Azmat Said Muhammad). This judgement has been impugned before us. 2. The learned counsel has attacked the judgment of the learned Appellate Court as also the learned High Court on the grounds of four findings which he claims are absolutely misconceived and a result of misreading of evidence; (i) that the Auqaf department had no authority to appoint sajjadanashin; (ii) Exh.P.1 was found by the learned Single Judge to be an ‘isolated incident’; (iii) that the appellant had produced no cogent evidence to support his claim that he was performing all rasoomats/ceremonies/rituals alongside with the Dewan Qutab-ud-Din, in effect being second in command to him; (iv) that DW-20, Ghulam Fareed Chishti had not been cross- examined with regards to the material particulars and therefore DW-20’s statement remains unrebutted; therefore, the declaration of the appointment as sajjadanashin of the respondent stands established. It is argued that the learned High Court has failed to consider the effect of Exh.P.1 and Exh.P.2 and that in the facts and circumstances the learned High Court Civil Appeals No.542-L and 543-L of 2012 -: 6 :- should have remanded the matter back to the learned Appellate Court for the decision, rather than reappraising the evidence on the record. Reliance in this regard is placed upon the judgments reported as Adamjee Jute Mills Ltd. Vs. The Province of East Pakistan and others (PLD 1959 SC 272) and Asadullah Khan Vs. Abdul Karim (2000 SCJ 441). 3. We considered the judgment challenged before us in light of the leave granting order which is reproduced below:- “We have heard learned counsel for the parties at some length. Learned counsel for the petitioner (in C.P. No. 51-L of 2008) who also challenged the proprietary and vires of this Court’s judgment dated 15.1.2007 passed in Civil Petition No. 687 of 2006 and C.P. No. 1037-L of 2006 which was allowed and the case was remanded to the learned High Court to decide Civil Revision No. 349 and 350 of 2004 afresh, on a second thought, elected not to press this point but confined his submissions on the merits of the impugned judgment of the learned High Court dated 29.10.2007. 2. Leave is granted, inter alia, to consider whether there was any custom relatable to succession of “Sajjada Nasheen” of the shrine of “Baba Farid Ganj Shakkar (R.A.)”; whether the respondent was appointed as “Sajjada Nasheen” in terms of the said custom; whether the declaration published in two national Dailies dated 13.9.1981 on behalf of the then “Sajjada Nasheen” to the effect that he had cancelled the appointment of respondent as “Sajjada Nasheen” during his life time was ever rescinded during the life time of the said declarant; whether the finding of the learned High Court in Para 16 of the impugned judgment to the effect that the testimony of Ghulam Fareed Chishti (DW-20) remained unrebutted notwithstanding the lengthy cross- examination to which he was subjected to is tenable in law; and whether the petitioner has any justifiable claim to be “Sajjada Nasheen” with reference to any custom, usage or practice.” Civil Appeals No.542-L and 543-L of 2012 -: 7 :- In light of the above, we find that extensive evidence has been led by both the parties in support of their respective claims. Reliance of the appellant is exclusively founded upon Exh.P.1 and Exh.P.2 i.e. a letter by the Auqaf Department and the revocation of the nomination of the respondent as the “sajjadanashin”, respectively. It is submitted that during the time when the Dewan Qutab-ud- Din had gone for Hajj it was the appellant who had been appointed as sajjadanashin and, therefore, it is he who was competent and capable of holding the post of sajjadanashin as evidenced in Exh.P1. It further mentioned that in Exh.P.2 it is clearly and unequivocally stated by the respondent’s own father that he is not capable of holding the sacred office and, therefore, he is being removed. We are afraid that from the findings of the Appellate as also the learned High Court it is clear that the relationship between Dewan Qutab-ud-Din and the appellant was sour and they also had some litigation dispute going on during the lifetime of the late sajjadanashin/Dewan. It is evident from the record, particularly Exh.D.16 which is a copy of the statement of the late Dewan Qutab-ud-Din in Qazaf proceedings initiated by the wife of the appellant wherein the late sajjadanashin/ Dewan had in very clear words expressed his dismay at the behavior of the appellant, condemning him for bringing disgrace to the entire family. Furthermore, the record in Exh.D.5 shows that there was a criminal complaint (page 323 of the 542-L/2012) made by the late Dewan Qutab-ud-Din against the appellant under Section 452, 506, 427, 440, 148, 149 of the Pakistan Penal Code, 1860 (PPC) which leaves no shred of doubt that the terms between the late sajjadanashin Dewan Qutab-ud-Din and him (appellant) were such that the former was being criminally intimidated by the latter. It is also Civil Appeals No.542-L and 543-L of 2012 -: 8 :- pertinent to note that Ex.P.2 being relied on so vehemently by the appellant, in fact when read in detail reflects that the incumbent sajjadanashin was to choose the sajjadanashin from amongst his agnates/sons, whereas the appellant is the brother of the late sajjadanashin. It is further established that at the time of the death of Dewan Qutab-ud-Din the appellant was not present beside him, moreover in his own witness statement as PW-6 he has stated that he only came to know about the demise of the late Dewan Qutab-ud-Din through the newspapers. Not only did the appellant not attend the Nimaz-e-Jinaza of the late sajjadanashin but was also absent from his Qul and Chehlum. As against the above, the oral evidence produced by the respondent is overwhelming and regardless of whether the material facts stated in the statement of DW-20 have been cross-examined or not the statement has not at all been shattered or impeached by the appellant during cross-examination; besides the statements of DW- 20 and DW-21 have not been subjected to cross-examination, and thus stand unrebutted. Moreover, the appellant has also submitted that the respondent was incapable of performing the duties of a sajjadanashin relying on an incident of stampede during an Urs ceremony, which incident has been examined in a judgment of the Lahore High Court in WP No. 16974/2001 wherein the learned High Court has held that the responsibility of the unfortunate incident cannot be attributed to the respondent alone. Even otherwise, it has been conceded by the learned counsel for the appellant that Dewan Qutab-ud-Din had never appointed the appellant as sajjadanashin and it is also conceded by him that per the custom and also a history of over seven hundred years of the shrine, the nomination of the successor is always the absolute Civil Appeals No.542-L and 543-L of 2012 -: 9 :- discretion of sajjadanashin holding the post. In the absence of any written evidence of the same and the fact that the respondent has successfully been able to prove his case through witness statements and documentary evidence produced, the express nomination by the late sajjadanashin Dewan Qutab-ud-Din is the only conclusive factor of determining the entitlement of sajjadanashinship of the shrine of Baba Farid (RA). 4. We have considered the judgment of the learned High Court which is quite elaborate, each and every aspect of the matter has been taken into consideration and on the basis of proper reading and appreciation of the evidence: factual finding has been given by the learned High Court affirming the finding already given by the learned Appellate Court which has set aside the factual finding of the learned Trial Court, therefore, we do not find that in these cases any point which is covered by the leave granting order has been established warranting the interference and setting aside of the judgment in question. Resultantly, we do not find any merit in these appeals which are hereby dismissed. 5. Above are the reasons for our short order of even date, whereby the titled appeals were dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 22nd of January, 2018 Approved for reporting Waqas Naseer

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar Mr. Justice Mushir Alam Mr. Justice Umar Ata Bandial CIVIL APPEALS NO.545 TO 550 OF 2015 (Against the judgment/order dated 17.4.2015 of the Lahore High Court, Lahore passed in W.Ps. No.7955, 5323 and 8008 of 2015) 1. LDA through its D.G. (in C.As.545, 547 & 548/2015) 2. Province of Punjab through Chief Secretary, Punjab & another (in C.A.546/2015) 3. Province of Punjab through Secretary Housing Urban Development, Lahore (in C.As.549 & 550/2015) …Appellant(s) VERSUS 1. Ms. Imrana Tiwana and others (in C.As.545 & 546/2015) 2. Fahad Malik etc. (in C.As.547 & 549/2015) 3. Lahore Conversation Society, etc. (in C.As.548 & 550/2015) …Respondent(s) For the appellant(s) : Kh. Haris Ahmed, Sr. ASC Mr. Mustafa Ramday, ASC Ch. Akhtar Ali, AOR Mr. Asrar Saeed, Chief Engineer, LDA Mr. Nawaz Manik, Director Law EPA, Punjab (in C.As.545, 547 & 548/2015) Mr. Makhdoom Ali Khan, Sr. ASC Mr. Khurram Mumtaz Hashmi, ASC Mr. Tariq Aziz, AOR (in C.As.546, 549 & 550/2015) For the respondent(s): Mr. Salman Akram Raja, ASC Respondent No.1 in person (in C.As.545 & 546/2015) Mirza Mahmood Ahmed, ASC (for respondent No.1 in C.As.547/2015) Respondent No.1 in person Mr. Raza Kazim, Sr. ASC (for respondent No.1 in C.As.548 & 550/2015) Respondent No.1 in person On Court’s notice: Mr.Salman Aslam Butt, Attorney General for Pakistan Mr. Razzak A. Mirza, Addl. AG Punjab. Mr. Mudassir Khalid Abbasi, Asst. AG, Punjab Date of hearing: 22.06.2015 to 25.06.2015, 29.06.2015 to 03.07.2015, 06.07.2015 to 08.07.2015 final C.As.545 to 550 of 2015 2 O R D E R MIAN SAQIB NISAR, J. – For the reasons provided herein and for the detailed reasons to be recorded later and subject to such reasons assigned in the detailed judgment, the observation made and the opinion expressed therein and the guidelines subscribed/provided in the said judgment, these appeals are partly allowed in the following terms: i) Elected Local Governments are presently not in existence in the Province of Punjab. Their duties and functions are being performed by the Provincial Government through its agencies. The disputed Signal Free Corridor Project was conceived by an agency of the Provincial Government, LDA, in the year 2014 and included in its budget allocation for 2014-15. Construction of the project was awarded to the Contractor on 19.02.2015, who had already undertaken construction in the value of Rs.60 million before the interim restraint order was issued by the learned High Court on 06.03.2015. In the vacuum resulting from the absence of an elected Lahore Metropolitan Corporation, the initiation, approval and execution of the disputed Signal Free Corridor project by the Provincial Government through its agency, LDA, is held to be valid. The said project may accordingly be completed subject to provision of additional facilities for pedestrians, inter alia, including road crossing and passes at intervals of one-kilometer or less along the project road distance. ii) Subject, inter alia, to the criteria of spillover, economies of scale, effectiveness as shall be determined in the detailed reasons by the Court, any new project falling within the domain of Lahore Metropolitan Corporation for approval or execution shall not be undertaken by the Provincial Government or its agency without prior consultation and consent, unless withheld without justified reasons, as the case may be, of the elected Lahore Metropolitan Corporation in respect of such project. final C.As.545 to 550 of 2015 3 iii) Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory obligation on the Provinces to establish Local Governments possessing meaningful authority and responsibility in the political arena, administrative and financial matters. It is the duty of a Province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the Province so as to comply with their mandatory obligation under Article 140A of the Constitution. iv) In the present case, the powers in relation to master plan and spatial planning historically belonging to Lahore Metropolitan Corporation have been superimposed with similar functions vesting in LDA under Provincial law. To the extent of conflict in the exercise of their respective powers and functions by the two bodies or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected Local Government over the powers conferred by law on the Provincial Government or an agency thereof. Notwithstanding the above, the Provincial Government is in any case under a duty to establish a harmonious working relationship with an elected Local Government wherein respect is accorded to the views and decisions of the latter. Accordingly, Section 46 of the Lahore Development Authority Act, 1975, purporting to override conflicting action taken by an elected Local Government, is held to be against the scheme of the Constitution and should either be read down or declared ultra vires as determined in the detailed judgment. v) Section 5(6) of the Punjab Environmental Protection Act, 1997 imposes a mandatory duty on the Provincial Government to constitute Advisory Committee under the said Act. This Committee is meant to assist the Environmental Protection Agency in evaluating the environmental impact of projects under consideration. The failure by the Provincial Government to constitute the said final C.As.545 to 550 of 2015 4 Committee violates its statutory duty. However, in the present case the impugned judgment has not attended any objection to the EIA on its merits, nor have the respondents highlighted any objection that has remained unattended and yet is fatal to the EIA. Moreover, the right of appeal and further remedies on the merits of the EIA approval available under the Pakistan Environmental Protection Act, 1997, have not been availed by the objecting respondents. The EIA cannot be struck down upon presumption or mere apprehension. vi) It is improper that disparaging references are made in the impugned judgment to a learned senior counsel, who had objected to the composition of the Bench. Contents of paragraphs 10(d), 21 & 22 in the impugned judgment containing such remarks are accordingly expunged. Equally, the academic expositions on the concepts of subsidiarity and federalism within the federating units, in the present case a Province, cannot be made grounds by the impugned judgment for striking down statutory law. The only touchstone for this purpose is conflict of statutory law with the provisions of the Constitution. Consequently, the said grounds adopted by the impugned judgment are rejected. vii) The action proposed in the impugned judgment to be taken against the officials of the LDA or any other person as envisaged by paragraph 100A thereof is also set aside. JUDGE JUDGE JUDGE Islamabad, 08.07.2015 Irshad Hussain/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed Mr. Justice Mushir Alam Civil Appeal No.548 of 2009 (Against the 14.4.2009 of the Peshawar High Court Abbottabad Bench passed in Appeal No.70 of 2006) M/s Shah Nawaz Khan and sons … Appellant(s) Versus Govt. of NWFP and others … Respondent(s) For the appellant(s): Mr. Muhammad Munir Peracha, ASC For respondents 1-2: Mr. Mujahid Ali Khan, Addl. AG For respondent No.3: Mr. Khan Afzal, ASC Raja Abdul Ghafoor, AOR Respondents Nos.4-7: Ex-parte Date of hearing: 17.04.2015 ORDER Jawwad S. Khawaja, J.- Learned counsel for the appellants states that already in earlier rounds of litigation the case was twice remanded to the trial Court. Through the impugned judgment, yet again the matter has been remanded by the High Court to the trial Court. The reasons for this have been given in the second sub-para of the paragraph 7 of the impugned judgment which, for ease of reference, is reproduced as under:- “The respondent/department has denied all these facts. Regrettably, no issue was framed in this respect in terms of Order XIV, rule-1 CPC. No doubt it is the duty of the parties to point out the framing of necessary issue(s) and ordinarily if no such move is made during the pendency of lis, it shall be presumed that the issue has been abandoned. But it is equally the duty of the learned trial Court to frame correct issues which are necessary for determination of the real controversy between the parties and merely because the parties have not pointed out necessary issues does not absolve the learned trial court to perform its legal and statutory duty. Action or inaction on the part of the court cannot prejudice a party to litigation. Failure of the learned trial court to determine material issue amounts to exercise of jurisdiction illegally and with material irregularity.” We note that in fact this very aspect of the case was encapsulated in the issues framed by the trial Court and in particular issue No.3, in the following terms:- “3. Has the plaintiff got a locus standi?” It is also evident from the record that both parties were aware of their respective stance as set out in their pleadings and moreover evidence was also led in the light thereof. In this view of the matter, there was no justification for remanding the case by the High Court to the trial Court for the third round of litigation. The High Court had all the material before it to enable it to decide the RFA. 3. In view of the foregoing discussion, we allow this appeal and set aside the impugned judgment. As a consequence, the matter is sent to the High Court for decision of the RFA by itself. 4. We may add that remand should only be resorted to where it is absolutely necessary for a fair and proper adjudication of a case. Unnecessary remand results in undue delay in cases and consequent prolonging of the agony of the litigants. It is quite apart from clogging the court dockets and wastage of precious Court time. Judge Judge Judge ISLAMABAD, THE 17th April, 2015 M. Azhar Malik

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Guizar Ahmed, CJ Mr. Justice Jjaz ul Ahsan Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CIVIL APPEAL NO.550 OF 2020 [Against the judgment dated 17.12.2018, passed by the Federal Service Tribunal, Islamabad in Appeal No.1571(R)cs/2o16j Secretary Finance, Finance Division, Pak. Secretariat Islamabad. . . .Appellant Versus Muhammad Farooq Khan son of Adil Khan, Secondary School Teacher (BPS-is) Islamabad Model School for Boys, G-614, Islamabad and others. . . . Respondents N For the Appellant (s) Mr. Sajid Ilyas Bhatti, Additional Attorney General for Pakistan Mr. Khan Hafeez, Joint Secretary, Finance Division Mr. Sajid Javed, Legal Assistant, Finance Division Mr. Kamran Afzal, Secretary On Court's Notice For Finance Division For Ministry of Federal : Ms. Farah Hamid Khan, Education and Secretary Professional Training For Establishment : Dr. Jjaz Munir, Secretary Division For the Respondent(s) Ms. Shireen Imran, ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing 10.03.2021 ORDER GULZAR ARMED, CJ.- Respondent No.1 (the respondent) was working as Secondary School Teacher (SST) 13PS-17) in the Islamabad Model School for Boyes, G-6/4, F CA, 55O 012020 Islamabad, under under the Federal Directorate of Education. Vide Notification dated 11.04.2013, the respondent was promoted through time-scale from BPS-17 to BPS-la On grant of such time-scale promotion, the respondent was not granted one premature increment, as such, he filed a departmental representation on 27-05.2015. The same having not been responded by the department the respondent filed Service Appeal No.1269(R)(c5)/2015 before the Federal Service Tribunal, Islamabad (the Tribunal) on 11.08.2016. The said appeal was disposed of vide order dated 14.01,2016, with the direction to the department to decide the representation of the respondent within 3 months. Vide order dated 19.07.2016, the departmental representation of the respondent was rejected, against which the respondent filed a service appeal, which was allowed by the Tribunal vide impugned judgment dated 17.12.2018, directing the appellant to grant pre-mature increment to the respondent. Being aggrieved, the appellant challenged the same before this Court through a civil petition for leave to appeal, wherein leave was granted vide order dated 02.06.2020. 2. We have heard the arguments of the learned Additional Attorney General for Pakistan so also the learned counsel appearing for the respondents. We have also heard the Secretary Finance Division, Secretary Establishment Division so also the Secretary, Ministry of Federal Education and Professional Training and perused the record of the case. 3. The learned Additional Attorney General for Pakistan has contended that grant of time scale from BPS-17 to BPS-18 to the respondent was not a promotion as neither the post of the rl .1 CA.55U 012020 -3- respondent on which he was working in BPS-17 on grant of time scale in BPS-18 was changed nor was he granted any higher responsibility and for grant of promotion, criteria is fixed and only after meeting the criteria, the Departmental Promotion Committee (DPC) recommends granting of promotion. He contends that no DPC was held for considering the grant of time scale promotion to the respondent from BPS-17 to BPS-18. He further contends that the Establishment Division through its Office Memorandum (O.M.) dated 19.09.2011 has opined that grant of time scale formula without change in designation of posts does not involve up- gradation. He also relied upon the Finance Division's letter dated 23.05.2001, where it has been opined that grant of time scale is a special dispensation and is totally different from promotion and up-gradation. He has further contended that the respondent has not challenged the Notification dated 14.04.2013, which was issued pursuant to Establishment Division's Office Memorandum dated 19.09.2011 and thus, no relief could be granted to the respondent. I 4. The learned Additional Attorney General has further contended that the Tribunal in the impugned judgment has omitted to consider overall formula of granting of time scale and erroneously held that time scale promotion was a promotion in service. He contended that the judgment of this Court in the case of Government of the Pun jab through Secretary Services, Pun jab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others (1991 SCMR 696), was not applicable to the facts and circumstances of the present case and was distinguishable. He rther contented that the judgment of this Court dated 3. CA.550 of 2020 -4- 04.04.20 17, passed in the case of Ministnj of Finance through its Secretarq, Islamabad a Muhammad Is rail, Superintendent and another (Civil Appeals No.2290 to 2298/2016), was also not applicable to the facts and circumstances of the present case. 5. The learned Additional Attorney General ultimately requested for setting aside of the impugned judgment and allowing the appeal. 6. The learned counsel for the respondent on the other hand has contended that through grant of time scale, the respondent was promoted from the post of BPS-17 to BPS-18 and therefore, on grant of this promotion, the respondent was entitled to premature increment. He has supported the impugned judgment. 7. The background of the controversy arose from the Summary dated 03.02.2011, moved to the then Prime Minister by the Ministry of Education, Government of Pakistan on the subject of Implementation Plan For Uniformity Of Education System In ICT, as directed by the then Prime Minister of Pakistan. It referred to a meeting dated 01.02.2010, under the Chairmanship of the then Prime Minister in which it was decided to make ICT Education System as a role model for the whole country through: d. Up-gradation of teachers working in ICT. e. Capacity building of the teachers working in ICT. f. Up-gradation of physical infrastructure of F.G. Educational Institutions for merger with IMCs. 8. The Federal Directorate of Education under the Ministry of Education proposed implementation plan with the following recommendations: - . - CA.55(!Ot2U2U - g. Up-gradation of all Matric Trained Teachers BPS-09 to 35-14 and Trained Undergraduate Teachers (TUGT) BS-14 to BS-16 being in line with National Education Policy, 2009. h. up-gradation of teachers 35-16 and above through time scale promotion formula. i. Provision of charge allowance, hard area allowance and transport facility to the teachers. j. Capacity building of all teachers through well planned training courses. k. Up-gradation of Physical Infrastructure of F.G. I! Schools and Colleges at par with IMCs. 1. All Schools and Colleges be named as Islamabad Model Colleges. F! 9. On these recommendations, the Minister of Education on 08.11.2010 in his speech announced as follows:- All Educational Institutions of Islamabad Capital Territory shall be named and administered as Islamabad Model Schools and Colleges thus eliminating evening shift from all Islamabad Model Colleges with effect from Jan, 01, 2011. Agreed in principal with the proposal of up- gradation all Matric Trained Teachers BPS-09 to BS-14 and Trained Undergraduate Teachers (TUGT) 35-14 to BS-16 and up gradation of all teachers of 35-16 and above through a Time- Scale Formula which should be finalized in consultation with Ministry of Finance and Establishment Division for implementation from January, 01.2011. Agreed to the enhancement of charge allowance of the principals/ heads of the institutions as proposed. Date of implementation to be decided in consultation with Ministry of Finance. Transport facility for the students and teachers especially in the rural areas should be arranged by the Ministry of Education in collaboration with CENICP. Agreed to the establishment of Federation Public School and also consider the establishment of a Model University in Islamabad to cater for the affiliation needs of ICT graduates & Post Graduate Colleges, which are presently affiliated to University of Punjab Lahore. 4. It is stated that more than 13000 teachers are anxiously wailing for implementations of the HISTORIC ANNOUNCEMENT OF THE HONORABLE Cl .550 of 2020 -6- PRIME MINISTER OF ISLAMIC REPBLIC OF PAKISTAN. 5. The Prime Minster Secretariat is, therefore, requested to kindly direct Ministry of Finance and Establishment Division for their further necessary action to ensure implementation of the Directives. -sd- (M. Athar Tahir) Secretary P.S. to Prime Minister PM Secretariat Islamabad. U.O. No.F 1/1/DQ-FDE Dated 03.02.2011" 10. Pursuant to the above Summary, the Finance Division through its Office Memorandum dated 18.02.2011 approved the up-gradation of posts and also up-gradation of teachers of BPS-16 and above through time scale. On this approval by the Finance Division, the Capital Administration and Development Division (the CADD) through Notification dated 14.05.2011 made amendments in the recruitment rules of Federal Schools. The Establishment Division through its Office Memorandum dated 19.09.2011 gave its opinion that time scale formula is simply grant of higher scale without change in designation of posts and does not involve up-gradation of posts and amendment in recruitment rules and therefore, exclusively concerns Finance Division and advised the CADD to take up the matter with the Finance Division to work out details of the formula in continuation of its O.M. dated 18.2.2011. On 05.102.2011, the Prime Minister was pleased to approve para-5 of the summary. 11. The CADD issued Notification dated 14.10.2011 for adopting time scale formula for implementation of the Prime Minister directives such Notification is as follows:- "Government of Pakistan Cabinet secretariat CAPITAL ADMINISTRATION & DEVELOPMENT DIVISION CA.55002020 -7- Islamabad the October 14, 2011 NOT IFICATION No.F .1-1/2011-EDU. Following time scale formula shall be adopted for implementation of Prime Ministers Directive No.2605 dated 17.02.2011 (also concurred to by Finance Division OM No.F.l(13)/R-1/2010-203 dated 18th February, 2011) for teachers in BS-16 & above under the Federal Directorate of Education w.e.f. 01.01,2011: - S # BPS of Years of service required for Teaching next higher scale Staff 1. BS-17 Five years in BS- 16. 2. 88-18 Five years in BS- l7or lO years in 88-16 and 88-17. 3. 85-19 Seven years in BS-18 or 12 years in BS-17 and 35-18. 4. 85-20 Seven years in 38-19 or 19 years in BS-17 and above, 5. BS-21 Five years in 85-20 or 24 years in 85-17 and above. 2. The promotion through above formula will be subject to the fallowing terms and conditions. i. The service rules, nomenclature/ tiers of the posts and seniority of the teachers shall remain intact. ii. The promotion through time scale will be subject to fitness of candidate and recommendations of relevant DPCs and Selection Boards. iii. There would be no consecutive time scale promotions. - sd- (MUHAMMAD RAFIQUE TAHIR) Joint Educational Advisor" 12. On 09.02.2012, the Federal Directorate of Education issued a Notification by which it promoted Trained Graduate Teacher (TOT) (BPS-b) to the post of Senior School Teacher (SST) (13PS-17) with effect from 01.01.2011 and in such Notification the name of the respondent was mentioned at Serial No.308, which is as follows:- "TO BE PUBLISHED IN PART-rn OF GAZETTEE OF PAKISTAN GOVERNMENT OF PAKISTAN Federal Directorate of Education Islamabad the February, 09, 2012 M CA.550 of 2020 -8 - No.F.16-17/2012 (ii) (SST) FDE..........In pursuance of Capital Administration & Development Division's (CA & DD) Notification No.F.2-1/2011 (ii) - (Education), dated January 24, 2012, the following Trained Graduate Teachers (TGT) (BPS- 16) are hereby promoted to the post of Secondary School Teachers (SST) BS-17 (Ex. Deputy Headmaster) with effect from 01-01-2011 and placed in the institutions as mentioned against each: Sr. Name Date of Birth Institution No. 1. Mr. Jalil Ahmed 05-07-1951 IMCB Rawat, Islamabad 308. Mr. Farooq Khan 06.01.1963 IMSB, G-6/4, Islamabad 2. The incumbents are eligible to draw the financial benefits w.e.f. 01.01.201 11 and their seniority will be determined as per Civil Servants (Seniority) Rules, 1993. 3. This issues with the approval of Director General (Education). -sd- (IFTIKHAR HUSSAIN) Director School (Male) 13. The Federal Directorate of Education vide its Notification dated 11.04.2013, granted time scale promotion to the SST from BPS-17 to BPS-18 with effect from the date mentioned against their names in the Notification. The name of the respondent appears at Serial No.308 and he was granted such time scale promotion with effect from 02.01.2011. The Notification dated 11.04.2013 is as follows:- "TO BE PUBLISHED IN PART-111 OF GAZETTEE OF PAKISTAN GOVERNMENT OF PAKISTAN Federal Directorate of Education Islamabad the April 11th, 2013 NOTIFICATION No.F. 1-04/2013 (Time Scale) FDE: In pursuance of Finance Division's O.M. No.F.1(13)/R-1/2010-2013 dated February 18th, 2011 and the Establishment Division's O.M. No. CA. 550 of 2020 8/53/2009-R-I dated September 19 th 2011 and on the recommendations of time scale promotion committee in its meeting held on 25.02.20 13 and with the approval of competent authority, the following Secondary School Teachers (BPS-17) working in Islamabad Model Schools/Colleges under Federal Directorate's of Education Islamabad are promoted through time scale promotion from BS- 17 to BS- 18 with effect from the date mentioned against each: Sr. Name Date of Institution Date of No. Birth eligibility 1. Mr. Jahangir 11.11.1965 IMSB 1-9/4, 02.01.2011 Khan Islamabad 325. Mr. Farooq 06.01.1963 IMSB, G- 02.01.2011 Khan 6/4, Islamabad 14. The respondent before the Tribunal has not taken up any issue on granting him promotion from TOT (BPS- 16) to that of SST (BPS-17), which was with effect from 01.01.2011. He was then given time scale promotion through Notification dated 11.04.2013 from BPS-17 to BPS-18 with effect from 02.01.2011, which is the very next day from the effective date of his promotion from TGT (BPS-16) to SST (BPS-17). The respondent's claim was that he should have been granted one premature increment on the grant of time scale promotion from BPS-17 to BPS-18. 15. The perusal of the Notification dated 11.04.2013 shows that it was issued in pursuance of Finance Division's Office Memorandum dated 18.02.2011 and Establishment Division's Office Memorandum dated 19.09.2011. The Establishment Division specifically noted in the said O.M. that time scale formula is simply grant of higher grade without any change in designation of posts and does not involve up-gradation of posts and amendment in recruit rules. This very wording of the O.M. dated (4.551) of 2020 19.09.2011 was incorporated in the Notification dated 11.04.2013, for that, the word "in pursuance" as noted in this notification, has been defined in various dictionaries as follows:- • Black's Law Dictionary Tenth Edition: "Pursuant to": 1. in compliance with; in accordance with; under. 2. As. authorized by; under. 3. In carrying out. • Collins English Dictionary: "Pursuant: the carrying out or pursuing of an action, plan, etc. • Words And Phrases (Permanent Edition) Vol. 35-A 2.337 The expression "pursuant to" or "in pursuance of' have a restrictive interpretation and have been regarded as equivalent to "in conformity with", and imply that what is done in accordance with an instruction or direction. Corpus Juris Secundum Vol. 738 p.567 "Pursuance": A carrying out or with effect; the act of executing; that which is pursuant; consequence; a following after, or following out. "Pursuant": As an adjective "Pursuant" is defined as meaning acting or done in consequence or in prosecution (of anything); done in accordance with, or by reason of, something, hence agreeable to, conformable to, according to, following, in accordance with, in conformity with, in a similar manner or by like method." In the case of Aircraft Employees Housing Cooperative Rai, Government of Karnat a Bangalore and Ors 1(1996) 11 5CC 4751, though in the context of the pre-amended Land Acquisition Act, Supreme Court of India has dealt with the meaning of the expression "in pursuance or as under:- S 16 10- .1 1 "In pursuance of' would mean under the authority of or by virtue of or in the course of carrying out in accordance with the scheme or plan or direction or order or anything in consequence or LA. 550 of 2020 -11- conformable to or according to; act of pursuing, carrying out and performance, prosecution" 17 Thus, the Notification dated 11.04.2013 was issued in execution and in compliance with the O.M. dated 19.09.201 1 and such O.M. being part of the Notification dated 11.04.2013, the ii respondent in order to succeed in his claim that while granting him time scale promotion, the same was a promotion and he was entitled to grant of one premature increment, the very Notification dated 11.04.2013 was required to be challenged by the respondent, for that, the Notification as read, specifically noted the office memorandum of the Establishment Division that time scale promotion was neither a promotion nor up-gradation Until and unless the vires and legality of such notification is challenged and he succeeds in having the said notification set aside to the extent that the grant of time scale promotion does not allow him promotion, the relief of grant of premature increment being subjected to the condition of promotion, and such prayer having not been made by the respondent in his memo of appeal before the Tribunal and the Tribunal also having not considered this very aspect of the matter that the respondent has not challenged the Notification dated 11.04.2013, the Tribunal could not in the presence of the Notification dated 11.04.2013 allow the claim of the respondent for grant of premature increment. 18. Having thus, noted that the very Notification dated 11.04.2013 on which the respondent has based his claim for granting him premature increment was the very document which was the hurdle in his way of claiming it to be a promotion or up- adation, unless such document is removed from the scene, the CA.550 of 2020 - 12- relief claimed by the respondent ought not to have been granted by the Tribunal Reference in this regard is made to the case of PESCO, WAPDA House through Chief Executive vs. Ishfa g Khan and others (2021 SCMR 637) 19. The learned Tribunal in the impugned judgment has referred to the judgment of this Court in the case of Government of the Pun jab through Secretaru Services, Pun jab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others (1991 SCMR 696). It may be noted that this very judgment of this Court came into consideration before a 3-Member Bench of this Court in the case of Muhammad Ashraf and others Vs. Federation of Pakistan through Secretanj, Ministry of Railwags, Islamabad and others (2000 SCMR 477), where it was distinguished on the point that it was based upon the interpretation of sub-rule (3) of Rule 8 of the Punjab Civil Servants Pay Revision Rules, 1977, which provided that in case where for same or similar post apart from the ordinary pay scale, a higher pay scale has been provided for a percentage of the said post, the grant of the said higher scale shall be deemed to be a promotion in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The case of the respondent before the Tribunal was not that a certain percentage of posts of BPS- 17 have been given higher pay scale of BPS-18, rather the very Notification dated 11.04.2013, shows that all incumbents of BPS-17, who have completed five years' service were granted time scale promotion. The very name of the respondent at Serial No.308 shows that it was granted across the board. No element of even selection was involved. (L4.550 012020 A1 The Tribunal in the impugned judgment has also referred to the order of this Court dated 04.04.2017, passed in the case of Ministrq of Finance through its Secretarzi, Islamabad vs. Muhammad Is rail. Superintendent and another (Civil Appeals No.2290-2298 of 2016 and CMAs No.4077-4085 of 2016). The said order of this Court is distinguishable on facts for the reason that the O.M. dated 04.07.2012, which was floated by the Establishment Division for the approval of the competent authority i.e. Prime Minister, contained, inter alia, one time grant of BPS-17 to all Superintendents working in (BPS-16) irrespective of their length of service and such O.M. having been approved by the Prime Minister, the further O.M. dated 10.09.20 14 issued by the Finance Division limiting its application, providing for fitness of a candidate and recommendation of relevant DPC, and disallowing grant of premature increment and not allowing change in the entitlement/ admissibility of rental ceiling/house rent allowance/ medical allowance, the inroad made by the Finance Division, in the approval given by the Prime Minister by the O.M dated 04.07.20 12 and thus, it was found that the O.M. dated 10.09.2014, could not have altered or impeded the application of the approval of the Prime Minister and benefit flowing from it. The relevant para of the order of this Court is as follows: - 3. We have considered the submission of the learned DAG and have posed him a question to show us from the approved summary of the Prime Minister the conditions which are mentioned in paragraph-2 of the Office Memorandum dated 10.09.2014. The learned DAG was unable to give any satisfactory answer and could not assign any reason as to from where and on what basis the conditions mentioned in paragraph-2 of Office CA .550 of 2020 -14- Memorandum dated 10.09.2014 were introduced. He agreed that in the summary approved by the Prime Minister no such conditions are mentioned. On the basis of such assertion of the learned DAG and the Office Memorandum dated 04.07.2012, the approved summary of the Prime Minister it can justly and fairly be stated that the conditions introduced and mentioned in paragraph-2 of Office Memorandum dated 10.09.2014 were not a part of approval granted by the Prime Minister and that this has subsequently been added by the Finance Division (Regulation Wing) on its own and to us such addition of conditions to the approval of the Prime Minister reflects that some higher authority above the Prime Minister has imposed these conditions, which otherwise were not so mentioned in the approval of the Prime Minister. This seems to be not only contemptuous to the order of the Prime Minister but is a case of grave and serious insubordination in that the Office Memorandum dated 10.09.2014 on its face does not in real terms and in real spirit make compliance of the order of the Prime Minister rather deviate from it altogether. 21 We may also note that this Court in its judgment dated 12.09.2018 in the case of Khushdil Khan Malik vs. Secretary, Establishment Division Cabinet Block, Islamabad and others (2021 SCMR 1496) has specifically considered the very O.M. dated 19.09.2011 of the Establishment Division and has observed as follows:- "Now adverting to another contention of the petitioner that benefits under Time Scale Formula may be granted to him, it is essential to consider the 'terms and conditions of service of the petitioner under the Act of 1973 read with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 hereinafter referred to as Rules 1973. The petitioner being a civil servant was appointed under the Act of 1973 and transferred and promoted under the procedure and c_d!_550 of 2020 -15- conditions prescribed under the same Act and Rules 1973. The Act of 1973 doesn't define the term Time Scale Promotion'; therefore it cannot be considered as a term and condition of service Promotion on the basis of Time Scale is not a regular promotion but a matter of policy granted to specific categories of professions by the relevant competent authority with the concurrence of the Finance Division. Such a policy is meant to grant benefits of higher pay scales to those cadres of civil servants which do not ordinarily get promotions to higher grades under the Rules, 1973 on a regular basis. The monetary benefits under the Time Scale Formula cannot be extended generally to all civil servants but to class of civil servants as mentioned in the approved policy. The Establishment Division, expressly mentioned in Office Memorandum dated 19.09.2011, that Time Scale Formula is simply the grant of financial benefits of a higher pay scale without change in designation of the post and does not tantamount to up-gradation of the said post nor requires amendment in the recruitment rules. It was further clarified by the Finance Division, vide letter dated 10.09.2013, that even after the grant of higher time scale the incumbent continues to hold the same Post without there being any change in its status. The explicit conditions of the Time Scale Formula as mentioned in the relevant policy make it crystal clear that it does not tantamount to regular promotion under the Rules, 1973." 22. For all the above reasons, we are of the considered view that the impugned judgment of the Tribunal suffers from grave illegality, for that, it did not apply mind to the relevant facts and circumstances of the matter, rather deviated itself in relying upon the O.M. dated 29.06.1991 of the Finance Division and also I - -- -------- --.--- - Thus, this Court has held in the above judgment that grant of time scale promotion is not a promotion in terms of Rules of 1973 CA, 550 012020 -16- the letter dated 30.11.2016 of the Finance Division, which were not germane to the case, and termed the grant of time scale promotion as a promotion in service, thus, the same cannot be sustained and is liable to be set aside. 23. The impugned judgment of the Tribunal is, therefore, set aside and the appeal is allowed. Bench-I Islamabad 10.03.2021 'APPROVED FOR REPORTING' Rabbanj/ * Announced in open Court on #4 /11j2021

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Faisal Arab Mr. Justice Ijaz ul Ahsan CIVIL APPEAL NO.551 OF 2020 [Against the judgment dated 18.12.2018, passed by the Peshawar High Court, Peshawar in W.P.No.5030-P of 2017] Director General of Intelligence & Investigation, F.B.R., Islamabad and others. …Appellants Versus Muhammad Aslam Khan. …Respondents For the Appellant (s) : Mr. M.D. Shahzad Feroz, ASC with Muhammad Israr ul Haq, Intelligence Officer For the Respondent (s) : Mr. Muhammad Shoaib Shaheen, ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing : 21.09.2020 O R D E R Gulzar Ahmed, CJ:- The case is quite simple, as stated by the learned counsel for the appellants, in that, there were 8 vacancies for direct recruitment to the post of LDC. No direct recruitment against the vacant posts was made. Respondent-Muhammad Aslam Khan was employed as Sepoy in the office of Director General, Intelligence and Investigation, Federal Board of Revenue on 09.09.1985. On the recommendation of the Departmental Promotion Committee (DPC) and with the approval of the Director General, the competent authority vide order dated 07.07.2007, the respondent was promoted as LDC on acting charge basis. The period of probation was mentioned as one year with further period of one year. It was further mentioned that on CA.551 of 2020 - 2 - termination of probationary period, the appointment shall be deemed to be held until further orders. Much after completion of the probationary period, the respondent requested for his confirmation as LDC but his request was denied. The respondent initially filed Writ Petition No. 1084-P/2012, which was disposed of through order dated 05.11.2013, directing the appellants to consider the case of the respondent for confirmation as LDC. It seems that the appellants considered the case of the respondent and denied his request for confirmation as LDC. Yet again, the respondent filed a writ petition, which came to be decided by the impugned judgment dated 18.12.2018 by a learned Division Bench of the Peshawar High Court, Peshawar, whereby the writ petition was allowed in terms that the respondent shall be deemed to be confirmed as LDC (BPS-7), immediately, after completion of probationary period with all service benefits. Against the said judgment, leave to appeal was granted by this Court on 29.05.2020. 2. Learned counsel for the appellants has contended that in terms of Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the respondent has no vested right to be confirmed as LDC and in any case, there was 10% quota for promotion. 3. On considering the arguments of the learned counsel for the appellants, what appears is that it is self destructive and also self serving. It seems that the appellants themselves violated the mandate of Article 27 of the Constitution when they promoted the respondent from the post of Sepoy to the post of LDC, on acting charge basis, against the post specifically reserved for direct recruitment. The respondent for almost 10 years served on the post of LDC and when he asked for confirmation, it was refused to him. The appellants took refuge under Rule 8-B ibid. The appellants cannot be allowed to approbate and CA.551 of 2020 - 3 - reprobate at the same time, and in law, the appellants will be estopped from taking such position. The respondent did nothing and could not have done anything to obtain his promotion from the post of Sepoy to that of the post of LDC and thus, the granting of such promotion to the respondent was a voluntary act of the appellants themselves. The vacancy of LDC did exist but was meant for direct recruitment. The appellants for their own convenience promoted the respondent to the post of LDC on acting charge basis and thus, cannot be heard refusing confirmation to the respondent to the post of LDC, for it was the appellants’ own voluntary act. The provision of Rule 8-B ibid as canvassed before us, will not apply to the present case in the facts and circumstances. 4. It cannot be imagined that since 2007, when there were vacancies for direct recruitment, no recruitment against such vacancies were made and as per the submission of the learned counsel for the appellants, such vacancies still exist. This is a classical case of failure of administration on the part of the appellants, in that, from 2007 to date, it has not been able to fill up the vacancy of LDC through direct recruitment. 5. So for the submission of the learned counsel for the appellants that there are 10% vacancies meant for promotion to the post of LDC, we have not been shown any material or document, which could establish that 10% promotion vacancies with the appellants were ever filled in. What appears is that one Mansoor Ali Khan, who was employed as Sepoy on 05.11.1998, was given regular promotion as LDC on 07.07.2007. This is the same date on which the respondent was given promotion on acting charge basis. The reason given for regular promotion of Mansoor Ali Khan is that he obtained highest typing speed CA.551 of 2020 - 4 - of 30 words per minute (WPM). Although such is mentioned by the appellants, but they have not attached any document of typing test showing that Mansoor Ali Khan obtained highest typing speed of 30 WPM. Even if it is admitted that Mansoor Ali Khan secured higher marks, still he was junior by almost 13 years’ to the respondent and such period is not accounted for in any document. 6. We may note that similar case also come before this Court by way of Civil Appeals No.164 to 168 of 2012 titled as Government of Pakistan, Revenue Division, etc. Vs. Shafqat Ali Awan and others, which appeals were dismissed vide order dated 13.02.2020 and review petitions filed against such order came to be dismissed today i.e. 21.09.2020. 7. It seems that the appellants are running the department not only on ad hocism but are also apparently conducting themselves in an illegal manner and such factum is also supported by the letter dated 24.12.2004, by which the appellants ordered the promotion of ministerial staff to next higher posts against available vacancies of direct quota on acting charge basis. Further, by letter dated 30.03.2007, the appellants again ordered the promotion of ministerial staff to the post of Intelligence Officer against the post falling to the share of direct recruitment quota on acting charge basis. Though the Rule provides for promotion on acting charge basis, but such Rule has been made bona fide, to be used in bona fide situations and for bona fide purposes, and not to exploit the employees, who in the present case, is a ministerial employee and further, to perpetuate the maladministration of the department, which in the present case, is what the appellants are doing. No such acts of the appellants can be countenanced nor can the appellants be allowed to make its ministerial CA.551 of 2020 - 5 - staff hostage to appellants’ own arbitrary, whimsical and capricious conduct and play with the employment of its ministerial staff. This will amount to allowing premium to the appellants for their apparent bad conduct and conduct, which is not mandated by law. 8. The appeal is, therefore, dismissed. Copy of the order is sent to the Chairman, FBR for taking of appropriate action against the delinquent officials. CHIEF JUSTICE JUDGE Bench-I Islamabad 21.09.2020 APPROVED FOR REPORTING Rabbani/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO.552 OF 2015 (Against the judgment dated 10.3.2015 of the Lahore High Court, Lahore passed in RFA No.395/2005) Habib Bank Ltd. …Appellant(s) VERSUS WRSM Trading Company, LLC and others …Respondent(s) For the appellant(s): Ms. Ayesha Hamid, ASC For respondents No.1 & 3: Ex-parte For respondent No.2: Mr. M. Shahzad Shaukat, ASC For respondent No.4: Syed Waqar Hussain Naqvi, ASC For respondent No.5: Mr. Abdul Hameed Chohan, ASC Mr. M. S. Khattak, AOR Date of hearing: 2.7.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- This appeal challenges the order dated 10.03.2015 passed by the Lahore High Court whereby R.F.A. No.395/2005 filed by the appellant was dismissed. The facts as stated by the appellant are that respondent no.1, on 22.1.2001, availed finance from the appellant bank’s branch in Dubai, UAE. On 22.11.2002 the appellant filed Suit No.105/2002 before Banking Court No. 1, Lahore for recovery of UAE Dirhams 2,042,059.22 (PKR 33,285,565.28). Respondents No.2 to 5 were impleaded on account of being the directors of the respondent no.1 company and in their capacity as guarantors for the finance availed by the said respondent. Vide order-in-original dated 15.07.2005 the Banking Court returned the plaint for presentation in the Court of proper jurisdiction. The appellant challenged the Banking Court’s order through R.F.A. No.395/2005 which was dismissed vide impugned order dated CIVIL APPEAL NO.552 OF 2015 -: 2 :- 10.03.2015 passed by the Lahore High Court. The points raised in the impugned order being one of first impression, leave was granted vide our order dated 04.06.2015. 2. The impugned order holds that the appellant is not a financial institution within the meaning of Section 2(a) of the Financial Institutions (Recovery of Finances) Ordinance 2001 (FIO, 2001) as it did not undertake the transaction in Pakistan and that the appellant would have been entitled to file a recovery suit under Section 9 of the FIO, 2001 only if it had transacted business within Pakistan. Further, it holds that no interest based transaction could take place in Pakistan after 01.01.1985 in violation of State Bank of Pakistan (SBP) Banking Control Department (BCD) Circulars No.13 dated 20.06.1984 and No.32 dated 26.11.1984, as pursuant to Sections 3-A, 25 and 41 of the Banking Companies Order, 1961 the said circulars have the force of law and the interest-based agreements entered into by the appellant providing finance(s) to the respondents in Dubai were void in terms of Section 23 of the Contract Act, 1872 (Contract Act) as they were based on interest. It further holds that Section 20 of the Civil Procedure Code, 1908 (CPC) is procedural in nature and the same is not applicable to the FIO, 2001. 3. Ms. Ayesha Hamid, ASC appearing for the appellant bank contended that the Banking Courts are creatures of statute and they derive their power/jurisdiction from Section 7(4) read with Sections 9(1), 2(a), 2(c), 2(d), 2(e) and 4 of the FIO, 2001. She stated that the provisions of Section 20 of the CPC vest jurisdiction in all courts of civil nature (including the Banking Court) over persons residing within their territorial limits. The Banking Court, being a court of a civil nature, can therefore exercise jurisdiction over the respondents, who at the time of filing of the suit, resided within the territorial jurisdiction of the Banking Court, and continue to do so now. She relied on Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1). She stated that CIVIL APPEAL NO.552 OF 2015 -: 3 :- Section 9 of FIO, 2001 entitles a financial institution to file a recovery suit against a defaulting customer before a Banking Court once the threshold of jurisdictional events is crossed, i.e. nature of parties, relating to finance and occurrence of a default. She relied upon Mian Mehmood Ahmad Vs. Hong Kong and Shanghai Banking Corporation Ltd. through Manager and 6 others (2010 CLD Lah 293). She stated that the principle of forum non-conveniens supports adjudication of a lis in the country with which it has the most real and substantive connection. Furthermore, the BCD Circulars No.13 and 32 issued by SBP did not have the force of law and therefore the agreements for finance could not be held to come within the mischief of Section 23 of the Contract Act. She submitted that the Banking Court could not frame a preliminary issue with respect to territorial jurisdiction and decide the matter forthwith without recording of evidence in the light of Section 10(10) of the FIO, 2001 and also because territorial jurisdiction is a mixed question of law and fact. In this regard she relied upon Bank of Credits and Commerce and others Vs. Asrar Hassan and others (2007 SCMR 852). 4. Mr. Waqar Sheikh, ASC appeared on behalf of the legal heirs of respondent No.4. He supported the impugned order and the order in original and made submissions to the effect that the appellant bank is not a financial institution as defined in the FIO, 2001 and that no interest based transaction was enforceable in Pakistan. Upon the Court’s query he did not deny that finance was availed from the appellant and that a default had occurred and that the respondents were present in Pakistan and not in Dubai, UAE. 5. Mr. Shahzad Shaukat, ASC appeared on behalf of respondent No.2 and candidly stated that he would not defend the impugned order and instead threw himself on the discretion of the court and requested that the matter may be sent to the Banking Court to decide. 6. The questions involved in the instant opinion are:- CIVIL APPEAL NO.552 OF 2015 -: 4 :- i. Whether Section 20 of the CPC is applicable to banking courts when exercising their jurisdiction? ii. Whether branches abroad of financial institutions incorporated in Pakistan fall within definition of financial institutions [Section 2(a) of the FIO, 2001]? iii. Whether loans extended by such branches in Pakistan fall within the definition of finance [Section 2(d) of FIO, 2001]? iv. Whether Section 9 of the FIO, 2001 entitles a financial institution to file a recovery suit against a defaulting customer before a banking court once the threshold of jurisdictional events is crossed, i.e. (i) the nature of the parties (ii) if relating to finances (iii) and occurrence of a default? v. Whether the principle that creditors follow debtors is applicable to the assumption of jurisdiction by banking courts in the case of financial institutions incorporated in Pakistan, with branches abroad? vi. Whether the principle of forum non-conveniens supports adjudication of lis in a country with which it has the most real and substantive connection? vii. Whether the SBP BCD Circulars No.13 (20.06.1984) and No.32 (26.11.1984) have the force of law? (with reference to Sections 3A, 25, 41 of Banking Courts Ordinance, 1962)? viii. Whether interest based agreements made outside Pakistan are void in terms of Section 23 of Contract Act? 7. The Preamble to the CPC does not mention/define specific Courts, but instead makes reference to the all-encompassing Civil Judicature:- “Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows:-” [Emphasis supplied] Since the CPC does not specify/refer to any court therefore we have to turn to Section 9 of the CPC:- CIVIL APPEAL NO.552 OF 2015 -: 5 :- “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 nature excepting suits of which their cognizance is either expressly or impliedly barred or for which a general or special law is in force.. 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.” [Emphasis supplied] The question then arises, what are suits of a ‘civil nature’ which the Civil Courts are to try? It is the nature of the dispute being adjudicated by the court which is relevant. We need look no further than the case of Hussain Bakhsh (supra) in which it was held:- “The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceeding. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding.” [Emphasis supplied] Where special statutes regulating the civil rights of citizens are silent on some matter the CPC will apply and will fill the lacunae/vacuum. In this regard the CPC will apply to all Courts whether of plenary or restricted jurisdiction. The right of the appellant bank to sue for recovery of money lent by it is a civil right which could be enforced in the civil courts notwithstanding the fact that the money may have been lent outside Pakistan. Does the right cease to be a civil right simply because some CIVIL APPEAL NO.552 OF 2015 -: 6 :- portion of the plenary jurisdiction of the civil courts has been carved away by a special law, i.e. the FIO, 2001? Plenary jurisdiction of the civil courts means that it is full, entire, complete, absolute, perfect and unqualified. A special statute simply slices away some of this jurisdiction in respect of certain persons or certain matters. Therefore to our mind the answer to the question ibid is a resounding no. We are fortified in our view by Mst. Yasmeen Nighat and others Vs. National Bank of Pakistan and others (PLD 1988 SC 391) which held that the amendments to the banking laws in 1979 and 1983 show that “the legislature by enacting section 6(4) of Ordinance XIX of 1979 intended to oust the jurisdiction of all other Courts in the matter of banking loans and to confer exclusive jurisdiction on Special Courts in respect of the matters which were made triable by the said Courts…” 8. The forum where a suit is filed is a matter of procedure. Section 7(2) of the FIO, 2001 categorically provides that where the FIO, 2001 does not prescribe a particular procedure with respect to a matter, the proceedings under the FIO, 2001 are to be governed by the CPC. Section 7 of the FIO, 2001 provides that a Banking Court shall:- “7. Powers of Banking Courts. (1) Subject to the provisions of this Ordinance, a Banking Court shall– (a) in the exercise of its civil jurisdiction have all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); 7(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).” [Emphasis supplied] CIVIL APPEAL NO.552 OF 2015 -: 7 :- In the case reported as Adnan Afzal Vs. Capt. Sher Afzal (PLD 1969 SC 187) Hamood ur Rahman, J set out what manner of things are to be considered matters of procedure:- “The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure…This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only.” 9. The Banking Courts are creatures of statute and they derive their power/jurisdiction from Section 7(4) read with Section 9(1), 2(a), 2(c), 2(d), 2(e) and 4 of the FIO, 2001. Section 7(4) of the FIO, 2001 reads as under:- “7(4) Subject to sub-section (5), no court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the existence or otherwise of a finance and the execution of a decree passed by a Banking Court.” Section 9(1) of the FIO 2001 reads as under:- “9. Procedure of Banking Courts. (1) Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by a power of attorney or otherwise.” CIVIL APPEAL NO.552 OF 2015 -: 8 :- Section 2(a) of the FIO, 2001 defines a financial institution. Section 2(c) of the FIO, 2001 defines a customer. Section 2(d) of the FIO, 2001 defines finance and Section 2(e) thereof defines obligation. Section 4 of the FIO, 2001 reads as under:- “4. Ordinance to override other laws. The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.” 10. It is pertinent to note that the law has over time gradually expanded to include within the definition of a “banking company”/ “financial institution,” banks transacting business outside Pakistan. Reference is made to the following amendments in the banking laws, and the eventual articulation of the definition of a “financial institution” in the FIO, 2001:- Banking Tribunals Ordinance, 1984 “S. 2(a) “banking company” means– (ii) a company incorporated outside Pakistan and transacting the business of banking in Pakistan;” Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 “S.2(a) “banking company” means (i) any company whether incorporated within or beyond Pakistan which transacts the business of banking or any associated or ancillary business in Pakistan and includes a government savings bank;” FIO, 2001 S.2(a) “financial institution” means and includes– (i) any company whether incorporated within or outside Pakistan which transacts the business of banking or any CIVIL APPEAL NO.552 OF 2015 -: 9 :- associated or ancillary business in Pakistan through its branches within or outside Pakistan…” [Emphasis supplied] The law must provide a purposive interpretation to Section 2(a) of the FIO, 2001, in light of the amendments made to the law in the Banking Tribunals Ordinance, 1984 (the Ordinance, 1984) and the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (the Act, 1997), to include financial institutions incorporated in Pakistan, which transact business both inside and outside Pakistan. The appellant is clearly a company incorporated in Pakistan, which transacts the business of banking in Pakistan. It would be illogical to conclude that where the particular transaction has been transacted outside of Pakistan, the appellant, for the definitional purposes of Section 2(a) of the FIO, 2001 ceases to be a company incorporated within Pakistan transacting the business of banking. 11. A perusal of the earlier provisions of law, which defined a borrower/customer, indicates that these did not restrict jurisdiction of the Banking Courts to include only those persons to whom loans/finance were advanced in Pakistan:- Banking Companies (Recovery of Loans) Ordinance, 1978 S.2(b) “borrower” means a person who has obtained a loan from a Banking company and includes a surety or an indemnifier, but does not include the Federal Government or a Provincial Government; Banking Companies (Recovery of Loans) Ordinance, 1979 S.2(b) "borrower" means a person who has obtained a loan from a banking company and includes a surety or an indemnifier; Ordinance, 1984 S.2(c) “customer” means a person who has obtained finance from a banking company or is the real beneficiary of such finance, and includes surety and an indemnifier; CIVIL APPEAL NO.552 OF 2015 -: 10 :- The Act, 1997 altered the definition of a borrower:- S.2(c) “borrower” means a person who has obtained a loan under a system based on interest from a banking company and includes a surety or an indemnifier; (d) “customer” means a person who has obtained finance under a system which is not based on interest from a banking company or is the real beneficiary of such finance, and includes a surety or an indemnifier [Emphasis supplied] The FIO, 2001 (prior to the 2016 Amendment) defined a customer as:- “S.2(c) “customer” means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier.” [Emphasis supplied] The amendments made to Section 2(c) of the FIO, 2001 in 2016, which added the phrase “within or outside Pakistan” in the definition of a customer, further strengthens the conclusion that the jurisdiction of the Banking Courts extends to finance availed within or outside Pakistan:- “S.2(c) “customer” means a person to whom finance has been extended by a financial institution within or outside Pakistan and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier…” [Emphasis supplied] 12. It is appropriate to also look at the manner in which the definition of finance has been expanded from 1979 to date. The recent amendments to the definitions of “finance” in the FIO, 2001 further supplement the argument that the jurisdiction of the Banking Courts CIVIL APPEAL NO.552 OF 2015 -: 11 :- extends to finance availed within or outside Pakistan. The Ordinance, 1984, promulgated on 31.12.1984, provided in Section 2(e):- “2(e) “finance” includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, mark-up or mark- down in price…” [Emphasis supplied] The Act, 1997 introduced the definition of a loan:- “S.2(f) “loan” means a loan, advance and credit under a system based on interest and includes– (i) an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a banking company to a borrower;” [Emphasis supplied] The FIO, 2001 sets out the following definition of finance:- “S.2(d) “finance” includes– (viii) any amount of loan or facility availed by a person from a financial institution outside Pakistan who is for the time being resident in Pakistan.” [Emphasis supplied] It is pertinent to mention that the aforementioned part (viii) of Section 2(d) of the FIO, 2001 was introduced through the Financial Institutions (Recovery of Finances) Amendment, Act 2016 (promulgated on 15.08.2016) which enlarged the definition of finance to include finance availed outside Pakistan. 13. The appellant is undoubtedly a financial institution which is stated to have extended finance to respondent no.1, its customer, therefore, the suit filed by the appellant before the Banking Court No.1 in Lahore crosses the threshold of events which must take place before the CIVIL APPEAL NO.552 OF 2015 -: 12 :- jurisdiction of the Banking Court is invoked. The fact that the Courts at Dubai may also have jurisdiction over the parties is not a valid reason to deny the jurisdiction of the Banking Courts at Lahore. While the Act, 1997 had a more restricted definition of a banking company/financial institution, this was amended in the FIO, 2001 to include the words “through its branches within or outside Pakistan”. Therefore it is self-evident that the law makers have now included finance extended to customers outside Pakistan. This amendment is deliberate. To ignore it would render the said amendment futile and the Courts must make every effort to interpret the law in such a manner as to render amendments effective rather than nugatory. Reliance in this regard may be placed on the case cited as Dr. Raja Aamer Zaman Vs. Omar Ayub Khan and others (2015 SCMR 1303) in which this Court held that “The Courts in Pakistan have always preferred a purposive rather than a literal interpretation of Statutory Instruments.” We would not like to thwart the clear intent of the legislature on account of a narrow construction of the statute. The same question viz. which court is to assume jurisdiction when the above mentioned jurisdictional facts have occurred has been considered in the Hong Kong and Shanghai Banking Corporation case (supra) in the following terms:- “However for the exercise of such jurisdiction, it is fundamental, imperative, essential and sine qua non that two conditions must be met, co-exist and fulfilled, firstly, the special Court should have jurisdiction over the subject-matter, which means that the cause of action propounded in the plaint must be for redressal of the grievance qua the enforcement of the right or the complaint about the breach of obligation on part of the defendant, but relatable to the “finance”, this can be termed to the subject-matter jurisdiction…The second facet of the jurisdiction is over the parties to the lis, which may be termed as jurisdiction over the parties, and connotes that the banking Court shall only have the jurisdiction in the cases, where the relationship of the “financial institution” and that CIVIL APPEAL NO.552 OF 2015 -: 13 :- of the “customer” exists between the parties; considering both these aspects of jurisdiction, the broad question of jurisdiction shall be that the dispute should be between the “customer” and the “financial institution” as defined in law, in respect of the failure of the defendant to fulfil its/his obligations in relation to the “finance”, which is so specifically, lucidly and clearly mentioned in section 9 of the Ordinance, 2001, which is the key provision of the special law and can be termed as the jurisdictional clause of the enactment;…” We hold that the reasoning and the ratio of the above cited case is the correct law. The factors to be considered by a special court before the assumption of jurisdiction are firstly whether it has jurisdiction over the subject matter of the lis and secondly whether the parties to the lis are subject to its jurisdiction. In this case the subject matter is finance and the parties before the Banking Court are a financial institution and its customer. There is no quibbling with the fact that a default has occurred: the learned counsels for the respondents admit the same, though there appears to be considerable dispute betwixt the respondents as to who is responsible for the same. We would not like to comment on this aspect of the matter lest any prejudice be caused to the respondents. Our interest is strictly limited to the fact that once a default occurs the final piece of the puzzle falls into place and the jurisdictional facts which the banking court is to consider stand complete. The Banking Court is then duty bound to assume jurisdiction. 14. We need not belabour the point that it is a settled principle that creditors follow debtors. Whether indeed those debtors are in Pakistan may be determined by recourse to some of the factors cited in Miss Amtul Naseer Sami Vs. Secretary, Health, Government of Baluchistan and others (1975 SCMR 265):- “…residence must answer a qualitative as well as a quantitative test, and that the Courts have regarded CIVIL APPEAL NO.552 OF 2015 -: 14 :- naturalization, purchase of house or burial ground, exercise of political rights, financial expectations, establishment of children in business, the place where a man’s wife and family reside as indecia (sic) of his intentions in regard to residence.” If the debtors no longer maintain a presence in Dubai and as stated by the appellant they reside in Pakistan, what useful purpose would be served by forcing the appellant to file recovery proceedings in Dubai? There can be no cavil with the fact that the Civil Courts at Lahore would have jurisdiction in this matter on the basis of the fact that the respondents are presently in Pakistan, despite the fact that the loan was availed outside Pakistan or the cause of action took place outside Pakistan. From this accepted and undisputed position we have simply to consider whether that plenary jurisdiction of the civil courts has been carved away by a special statute, i.e. the FIO, 2001, and wrested some of the jurisdiction away to the Banking Courts created under the same. The answer as stated above is in the affirmative. 15. It is a settled principle of private international law that the forum, which has the most real and substantial connection with the lis must exercise jurisdiction over it. When the appellant bank and the respondents are present in Pakistan then it is the courts in Pakistan which must assume jurisdiction. In the English case reported as Spiliada Maritime Corporation Vs. Cansulex Ltd {[1986] 3 WLR 972} Lord Goff stated that:- “…a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.” [Emphasis supplied] CIVIL APPEAL NO.552 OF 2015 -: 15 :- The primary consideration before the Court must be where the ends of justice in this case will be best served. The factors to consider in this regard are the convenience or expense (including the availability of witnesses) and others, such as which law governs the relevant transactions, or the respective places of residence or business of the parties and finally where a decree would be most effective. Were the appellant to obtain a decree against the respondents in the UAE would this be of any avail to them? Would they be forced to pursue the assets of the respondents in Pakistan for purposes of actually executing the decree? If so, then it does not behove the courts in Pakistan to shirk their duty to adjudicate the lis. We may take this opportunity to observe that no situation should or ought to be created where citizens of Pakistan avail finance(s) outside Pakistan and retreat to Pakistan safe in the knowledge that there is no effective redress against them. Comity amongst nations requires that we in Pakistan do our best to ensure that there is effective redressal and recovery of finances and loans from the defaulting customers of financial institutions. The economic health of our great nation and confidence in the banking sector is dependent upon an effective machinery for the recovery of monies from defaulting customers because in the absence of the same there is reluctance on the part of the public to place their trust in the banking system. 16. At this point we would like to clarify that in the normal course of events the question of territorial jurisdiction would require the recording of evidence. In the case of Bank of Credits and Commerce (supra) this Court held:- “…the High Court has rightly refrained from dilating on the question relating to the territorial jurisdiction and maintainability of the suit against the petitioners in Pakistan. This may be noted that the question of fact or a mixed question of law and fact, cannot be effectively decided without recording CIVIL APPEAL NO.552 OF 2015 -: 16 :- the evidence and learned counsel for the petitioners has not been able to satisfy us that in the facts of the present case, the question relating to the jurisdiction of Courts in Pakistan to entertain the suit and adjudicate the claim of respondent against the petitioners is patently a question of law.” Certain jurisdictional facts may require to be established through evidence. But this is not a rule set in stone because at times, as in the instant case there are admitted facts which on the basis of interpretation of law lend themselves to a clear cut answer as to the question of which court is to assume jurisdiction in the matter. Whilst courts ought not to adopt arbitrary procedures and ignoring established practices is to be deprecated but at the same time we must not lose sight of the fact that courts must not become slaves to technicalities and create a fetish of procedures to the obvious detriment of litigants. 17. The impugned judgement proceeds on the understanding that the transaction being based on interest, does not qualify as “finance” for the purposes of the FIO, 2001. In terms of the history of the banking laws, till 1984, there was no reference in the legal definition of a finance/loan provided under the law to a non-interest based system. Thereafter SBP issued the two aforementioned BCD Circulars No.13 dated 20.06.1984 and No.32 dated 26.11.1984. It is to be noted that the transaction in question between the appellant and the respondents was entered into in March 2001, prior to the enactment of the FIO, 2001 in October 2001. The transaction in question was therefore governed by the terms of the Act, 1997, which clearly included within its ambit “loans” under a system based on interest. Section 2(f) of the Act, 1997 provided:- “S.2(f) “loan” means a loan, advance and credit under a system based on interest and includes… [Emphasis supplied] CIVIL APPEAL NO.552 OF 2015 -: 17 :- The fact the transaction in question was based on interest does not therefore detract from its status as a “loan” with regard to which the Banking Court could exercise jurisdiction. Since the governing law at the time unequivocally recognised the transaction(s) in question, i.e. interest based loans as being legally binding and treated the same as recoverable under the law, the assertion that the transaction(s) in question were void under Section 23 of the Contract Act for not having a lawful purpose, is entirely flawed and illogical. Reliance in this regard is placed on Azam Wazir Khan Vs. Messrs Industrial Development Bank of Pakistan and others (2013 SCMR 678) per Sarmad Osmany, J.:- “…In such capacity the State Bank from time to time issues guidelines and advices in the shape of BCD circulars and consequently it would be safe to conclude that the main function of the State Bank is to ensure and secure stability of the financial system in the country. Such powers and functions given to the State Bank are entirely divorced from the laws enacted from time to time for recovery of outstanding loans by the banks and the other development financial institutions. Hence it cannot be said that after 1st of January, 1985 no loans previously given by any company/DFI on the old interest bearing system could not be recovered as such. This is readily apparent from a perusal of section 15 of the 1997 Act which does provide that both interest and mark up could be recovered and the same is reflected in section 29 of the 2001 Act. There is no gainsaying the fact that BCD Circulars/instructions issued by the State Bank of Pakistan from time to time are binding upon all concerned in terms of section 25 of the Banking Companies Ordinance, 1962. However as stated above the functions of the State Bank of Pakistan are to regulate the finance and banking sector in the country which is entirely different from the mode and method of recovery of loans which is provided for in the various Acts/instruments of Parliament… ” [Emphasis supplied] CIVIL APPEAL NO.552 OF 2015 -: 18 :- For the sake of convenience Sections 3A, 25, and 41 of the Banking Companies Ordinance, 1962 (Ordinance, 1962) are reproduced as under:- “3A. Limited application of Ordinance to certain financial institutions. (1) The provisions of sections 6, 13, 25, 25A, 25AA, 29, 31, 32, 33, 40, 41, 41A, 41B, 41C, 41D, 42, 47, 48, 49, 51, 58, 83, 84 and 94 shall, with such modification as the State Bank may determine from time to time in relation to activities which have implications for the monetary or credit policies of the State Bank, apply to the Pakistan Industrial Credit and Investment Corporation, the Bankers Equity Limited, the Pak-Libya Holding Company Limited, the Saudi- Pak Industrial and Agricultural Investment Company Limited, the Pak-Oman Investment Company (Pvt.) Limited, the Pakistan Kuwait Investment Company Limited and such other companies, corporations or institutions or class of companies, corporations or institutions, as the Federal Government may, from time to time, by notification in the official Gazette, specify in this behalf.” (2) All notifications issued by the Federal Government which are inconsistent with the provisions of sub-section (1) including such notifications in respect of the National Development Leasing Corporations, Leasing Companies and Modaraba Companies shall stand rescinded with immediate effect. 25. Power of State Bank to control advances by banking companies.— (1) Whenever the State Bank is satisfied that it is necessary or expedient in the public interest so to do, it may determine the policy in relation to advances to be followed by banking companies generally or by any banking company in particular, and, when the policy has been so determined, all banking companies or the banking company concerned, as the case may be, shall be bound to follow the policy as so determined. (2) Without prejudice to the generality of the power conferred by sub-section (1), the State Bank may give CIVIL APPEAL NO.552 OF 2015 -: 19 :- directions to banking companies either generally or to any banking company or group of banking companies in particular.— (a) as to the credit ceilings to be maintained, credit targets to be achieved for different purposes, sectors and regions, the purposes for which advances may or may not be made, the margins to be maintained in respect of advances, the rates of interest, charges or mark-up to be applied on advances and the maximum or minimum profit sharing ratios; and (b) prohibiting the giving of loans, advances and credit to any borrower or group of borrowers on the basis of interest, either for a specific purpose or for any purpose whatsoever; and each banking company shall be bound to comply with any direction so given. (3) If any default is made by a banking company in complying with the policy determined under sub-section (1) or direction given under sub-section (2), every director and other officer of the banking company and any other person who is knowingly a party to such default shall, by order of the State Bank, be liable to a penalty of an amount which may extend to twenty thousand rupees and, where the default is a continuing one, of a further amount which may extend to one thousand five hundred rupees for every day after the first during which the default continues. (4) Without prejudice to the provisions of sub-section (3), the State Bank may, for the purposes of securing implementation of any special credit schemes or monetary policy or observance of credit ceiling by a banking company, by order in writing require banking companies generally, or any banking company in particular, to make special deposits with it for such amount and on such terms and conditions as may be laid down by the State Bank in this behalf. (5) The amount deposited with the State Bank under sub- section (4) or any part thereof may, at the discretion of the State Bank, be released by it to the banking company which deposited it as and when the State Bank deems fit either unconditionally or on such terms and subject to such CIVIL APPEAL NO.552 OF 2015 -: 20 :- conditions as the State Bank may, by order in writing, determine from time to time. (6) Any penalty imposed under sub-section (3) shall be payable on demand made by the State Bank and, in the event of refusal or failure by the director, officer or other person concerned to pay on such demand, shall be recoverable as arrear of land revenue. 41. Power of the State Bank to give direction.— (1) Where the State Bank is satisfied that— (a) in the public interest; or (b) to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interests of the banking company; or (c) to secure the proper management of any banking company generally; it is necessary to issue directions to banking companies generally or to any banking company in particular, it may, from time to time, issue such directions as it deems fit, and the banking companies or the banking company, as the case may be, shall be bound to comply with such directions. (2) The State Bank may, from time to time, issue direction, guidelines and instructions with respect to activities and operations of banks and the institutions mentioned in section 3A as may be deemed necessary by it for carrying out purposes of this Ordinance and matters ancillary thereto. (3) The State Bank may, on representation made to it or on its own motion, modify or cancel any direction issued under sub-section (1), and in so modifying or cancelling any direction may impose such conditions as it thinks fit, subject to which the modification or cancellation shall have effect.” 18. The BCD Circulars are in the nature of instructions issued by the SBP to regulate the business of banking companies. Sections 3A, 25, and 41 of the Ordinance, 1962 do not give instructions issued by the SBP CIVIL APPEAL NO.552 OF 2015 -: 21 :- the force of law. Nothing in the Ordinance, 1962 leads to the conclusion that violation of these instructions would void an agreement. Therefore we do not find any merit in the finding of the learned High Court that the transaction was violative of Section 23 of the Contract Act on account of the Circulars ibid. 19. In the light of the above, the impugned order of the learned High Court is set aside and the instant appeal is allowed. Let the matter be fixed before the Banking Court in the first week after the summer vacations for decision afresh on the basis of the plaint and the leave applications already filed by the respondents within a period of one month positively, with intimation to the Registrar of this Court of due compliance. The aforementioned are the reasons for our short order of even date which reads as under:- “For the reasons to be recorded later, this appeal is allowed and the matter is remanded to the Banking Court with a direction to decide the matter within a period of three months without fail. Barring the question of jurisdiction which has been settled and shall be elaborated in the detailed judgment, the respondents shall have the right to raise any legal and/or factual objections before the Court.” CHIEF JUSTICE JUDGE JUDGE Islamabad, the 2nd of July, 2018 Not Approved For Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL APPEALS NO.56-L & 57-L OF 2018, CIVIL MISC. APPLICATION NO.1503-L OF 2018 IN CIVIL MISC. APPLICATION NO.64-L OF 2013 IN CONSTITUTION PETITION NO.87 OF 2011, CIVIL MISC. APPLICATION NO.4823 OF 2018 IN C.P. NIL OF 2018, CIVIL MISC. APPLICATION NO.4825 OF 2018 IN C.P. NIL OF 2018, CIVIL MISC. APPLICATION NO.4827 OF 2018 IN C.P. NIL OF 2018 AND CONSTITUTION PETITIONS NO.30 AND 31 OF 2018 CA.56-L/2018 Speaker, National Assembly of Pakistan, Islamabad Vs. Habib Akram, etc. CA.57-L/2018 Election Commission of Pakistan Vs.Habib Akram, etc. CMA.1503-L/2018 in CMA.64-L/2013 in Const.P.87/2011 Workers Party and others Vs. Federation of Pakistan and others CMA.4823/2018 in CP.Nil/2018 Federation of Pakistan through M/o Parliamentary Affairs and others Vs. Habib Akram and another CMA.4825/2018 in CP.Nil/2018 Federation of Pakistan through M/o Parliamentary Affairs and others Vs. Aitzaz CA Nos.56-L-2018 etc. 2 Aslam Chaudhry and another CMA.4827/2018 in CP.Nil/2018 Federation of Pakistan through M/o Parliamentary Affairs and others Vs. Muhammad Ahmed Kamal and others Const. P.30/2018 Dr. Muhammad Zubair Khan and others Vs. Federation of Pakistan, Islamabad for the purposes of service through Secretary, Law and Justice Division, Islamabad Const. P.31/2018 Saad Rasool Vs. Federation of Pakistan and others For the Appellant (s) (in CA.56-L/2018) : Mr. Shahid Hamid, Sr. ASC For the Appellant (s) (in CA.57-L/2018) : Raja M. Ibrahim Satti, Sr. ASC For the Applicant (s) (in CMA.1503-L/18) : Mirza Mahmood Ahmad, ASC For the Applicant (s) (in CMAs.4823 and 4825/2018) : Mr. Sajid Ilyas Bhatti, Additional Attorney General assisted by Barrister Minaal Tariq For the Petitioner (s) (in Const.P.30/2018) : Mian Abdul Rauf, ASC For the Petitioner (s) (in Const.P.31/2018) : Barrister Saad Rasool, Advocate M. Ayub Malik, President, National Party On Court Notice : Mr. Ashtar Ausaf Ali, CA Nos.56-L-2018 etc. 3 Attorney General for Pakistan assisted by Barrister Asad Rahim Mr. Babar Yaqoob Fateh, Secretary, Election Commission of Pakistan Mr. M. Arshad, Director General (Law), Election Commission of Pakistan Date of Hearing : 06.06.2018 ORDER Mr. Shahid Hamid, learned Sr. ASC who appeared on behalf of the Appellant in Civil Appeal No.56-L of 2018 has been heard. The question of the maintainability of the instant appeals against the judgment of the learned Single Bench of the Lahore High Court, Lahore filed in the absence of Intra Court Appeals having been filed in terms of Section 3 of the Law Reforms Ordinance, 1972 is in issue. The question of the locus standi of the Appellant, who is the Speaker, National Assembly of Pakistan also needs to be determined. 2. The lis in the instant cases primarily revolves around the Nomination Forms for CA Nos.56-L-2018 etc. 4 candidates of the National Assembly and Provincial Assemblies issued in terms of Elections Act, 2017 and the omissions therein when compared with the such Nomination Forms issued in terms of Representation of the People Act, 1976 (ROPA) (since repealed). The adjudication in this behalf requires interpretation of various provisions of the Constitution of the Islamic Republic of Pakistan, 1973 including Articles 62, 63, 218 to 222, therefore, notice is issued to the learned Attorney General for Pakistan in terms of Order XXVII-A CPC. 3. Today, the question of interim relief needs to be examined. On the last date of hearing, while granting leave to appeal, operation of the impugned judgment was also suspended without hearing the opposite side. With regard to the information omitted from the Nomination Papers and Form A & B, as issued in terms of Elections Act, 2017, when examined in juxtaposition with the requirement of the Nomination Forms previously in vogue under the ROPA, 1976, it appears that the information, no CA Nos.56-L-2018 etc. 5 longer required to be disclosed, prima facie, would facilitate the determination of the qualification or disqualification of a candidate and would lead to greater transparency regarding the credentials of a candidate facilitating the electorate in making a more informative choice. 4. In the above backdrop, on Court query, the learned Sr. ASC for the Appellant stated that neither his client (Speaker of the National Assembly) nor the Political Party to which his client belonged has any objection to the disclosure of said additional information and the leadership of such political party has come on record in this behalf. However, as per his contentions, some of such information previously required in the Nomination Forms is not really necessary. With his assistance, we examined each and every omitted clause of the Nomination Forms issued under ROPA, 1976, The learned counsel, at this stage, could not persuade us that such disclosure in any manner would prejudice any candidate. At best, some information may perhaps be unnecessary or surplus. CA Nos.56-L-2018 etc. 6 5. As an interim measure, we believe that such additional information, which was required to be disclosed through the Nomination Papers & Forms under ROPA, 1976 and now omitted through Nomination Papers contemplated by the Elections Act, 2017 must be disclosed by a candidate. Such disclosure is necessary to ensure the sanctity and integrity of the General Elections, 2018, as if the instant appeals eventually fail, complications in this behalf may arise. The learned counsel for the ECP also supports such interim measures. 6. Mr. Babar Yaqoob Fateh, Secretary, Election Commission of Pakistan present in the Court was directed to prepare a draft Affidavit to be submitted by a Candidate disclosing the requisite information omitted by the Elections Act, 2017. Such draft affidavit was made available and is reproduced herein below, which shall form part of this order:- AFFIDAVIT BY THE CANDIDATE FOR ELECTION TO THE ASSEMBLIES IN GENERAL ELECTIONS 2018 I, ………………………………………….s/o, d/o, w/o…………………………………, being a candidate for election to the National Assembly / Provincial Assembly of ……………………………… (name of province) from CA Nos.56-L-2018 etc. 7 constituency No………………………………………………… filed / am filing my nomination papers on ……………………………………and in addition to Form A and Form B, I do hereby solemnly affirm and declare to the best of my knowledge and belief that,— A. I am registered as a voter at serial number …………… in the electoral roll of electoral area………………………………………………………… of Tehsil/Taluka ………………………………………… District …………………………………… B. No loan for an amount of two million rupees or more is obtained from any bank, financial institution, cooperative society or corporate body in my own name or in the name of my spouse or any of my dependents, or any business concern mainly owned by me or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off; and C. I, my spouse or any of my dependents or a business concern mainly owned by me or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination paper. D. The names of my spouse(s) and dependents are given hereunder which is correct and no name has been left out. Sr.No. Name of dependent Relation with the candidate 1 2 3 4 5 6 Note-I: Use additional sheet if required. E. Neither I nor my spouse(s) nor any of my dependents mainly owns any business/firm/company except the following: __________________________________________________________ __________________________________________________________ __________________________________________________________ Explanation.— For the purpose of these declarations, the expression — (i) “loan” shall mean any loan, advance, credit or finance obtained or written off on or after the 31st day of December, 1985, but shall not include the loan the recovery of which has been stayed or suspended by any order of a court or tribunal, including the High Court and the Supreme Court; (ii) “mainly owned” shall mean holding or controlling a majority interest in a business concern; (iii) “taxes” include all taxes levied by Federal Government, Provincial Government or a local government, but shall not include taxes the recovery of which has been stayed or suspended by any order of a court or tribunal; (iv) “government dues and utility charges” shall, inter alia, include rent, charges of rest houses or lodges owned by the Federal Government, Provincial Governments, local governments or corporations established or controlled by such governments, but shall not include the government dues and utilities charges the recovery of which has been stayed or suspended by any order of a court or tribunal. CA Nos.56-L-2018 etc. 8 F. No case of criminal offences was pending against me, six months prior to filing of my nomination papers. AND The following cases of criminal offences were pending against me, six months prior to filing of this nomination: Title and number of case Name of the Court G. My educational qualification is ………………………………………….. H. My present occupation is ………………………………………………. I. My passport number is ………………………………………………….. J. My National tax number, if any, is………………………………………. K. The income tax paid by me during the last three assessment years/ financial years is given hereunder:— Total Income *Source of income Tax Year Total Income Tax paid Note-II: Attach copies of income tax returns of the years mentioned above. *If more than one income resource, attach detail. L. Detail in respect of my travel abroad during last three years and cost incurred thereon is as under: (attach complete copy of the passport and detail of expenditure). Year Detail of countries visited Period of stay Cost Incurred Remarks M. The agricultural income tax paid by me during the last three years is given below: Tax Year Land Holding Agricultural Income Total Agricultural Income Tax Paid Note III: Attach copies of agricultural tax returns of the last three years mentioned above or the certificate issued by the authority concerned in this behalf. N. Being elected as Member of National Assembly/Provincial Assembly from Constituency No……………………………………………………… in the year(s) ………………………………… I made important contributions for the benefit of my constituency the details of which are as follows: …………………………………………………………………………… ……………. …………………………………………………………………………… ……………. …………………………………………………………………………… ……………. O. I have paid a sum of Rs…………. by way of contribution to the political party which has awarded me party ticket for this election. (Attach detail, if any). P. I have received a sum of Rs…………. from the party which has awarded me the party ticket (Attach detail, if any). Q. I shall make all election expenditures out of the money deposited in the exclusive account opened for the purpose detail of which has been mentioned in the nomination form and I shall not make any transaction towards the election expenses through an account other than the above account CA Nos.56-L-2018 etc. 9 R. I have not ceased to be a citizen of Pakistan nor have I acquired or applied for the citizenship of a foreign state OR I possess Foreign Passport No………………… issued by ………………………… …………………………….. [name of country(s)]. S. I have no objection if information concerning myself in relation to acquisition of citizenship of foreign State or application of such citizenship is provided by any foreign state to the Ministry of Foreign Affairs of the Government of Pakistan or Election Commission of Pakistan. T. The detail in respect of my Nets Assets is given as under: a. Net assets as on 30th June of current Financial Year…………………………….. b. Net assets as on 30th June of previous Financial Year…………………………… c. Increase/decrease (a-b)………………………………………………… U. I acknowledge that failure to give detail regarding any item in respect of Form A and Form B shall render my nomination to contest election invalid or if any information given therein and hereinabove are found incorrect at any time, my election shall stand void ab initio. V. I hereby assure that I shall abide by the Code of Conduct issued by the Election Commission. Signature of candidate ……………………………………. Thumb impression of candidate …………………………………. National Identity Card No. Address…………………………………………………… …………… …………………………………………………………… …… Contact No. ………………………. Dated………………………………. VERIFICATION ON OATH I, ................................................... S/o,W/o,D/o………………………..................... do hereby solemnly declare that, to the best of my knowledge and belief, the above contents of this affidavit are correct and nothing has been concealed therefrom. Signature of the candidate………………………………. Date …………………………………………. Place…………………………………………….. Attested by the Oath Commissioner……………………………………. Note: This affidavit is to be provided on stamp paper that will be duly attested by an Oath Commissioner appointed under the Oaths Act, 1873 (X of 1873). 7. All candidates of the National and Provincial Assemblies shall file the said affidavit along with their Nomination Papers. Such - - CA Nos.56-L-2018 etc. 10 candidates who have already filed their Nomination Papers, shall file the said Affidavit with the Returning Officers by or before 11th June, 2018. The Secretary, ECP, has assured us that the aforesaid process will not in any manner upset the schedule of Elections so as to delay of holding of the General Elections on 25.7.2018, as already announced. 8. It is clarified that failure to file such Affidavit before the Returning Officer would render the Nomination Papers incomplete and liable to rejection. If the Affidavit or any part thereof is found false then it shall have consequences, as contemplated by the Constitution and the law. Since the Affidavit is required to be filed in pursuance of the orders of this Court, therefore, if any false statement is made therein, it would also entail such penalty as is of filing a false affidavit before this Court. 9. The draft of the aforesaid Affidavit will immediately be put up by the Election Commission of Pakistan on its official website and communicated to all the Returning Officers. Such CA Nos.56-L-2018 etc. 11 draft Affidavit would also be publicized by the Election Commission of Pakistan in all the leading newspapers and the public will be informed through the Electronic Media in this behalf. 10. Adjourned to a date in the office. Chief Justice Judge Judge Judge Islamabad, the 6th June, 2018 Judge Safdar/*

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 AHMAD MALIK MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO.56 OF 2011, CMA NO.6863 OF 2014 IN CIVIL APPEAL NO.56 OF 2011, CIVIL APPEAL NO.462-L OF 2009 AND CIVIL APPEAL NO.11-L OF 2013 (On appeal from judgment dated 30.11.2010, 19.10.2004 & 19.12.2012, passed by the Lahore High Court, Lahore & Lahore High Court, Bahawalpur Bench, in C.R. No.897/2009, R.S.A. No.41/1997 & C.R. No.347-D/2006 (BWP), respectively) CA.56/2011 Muhammad Sattar Vs. Tariq Javaid and others CMA.6863/2014 in CA.56/2011 Muhammad Sattar Vs. Tariq Javaid and others CA.462-L/2009 Raja Muhammad Iqbal Vs. Muhammad Sadiq (decd) through L.Rs., etc. CA.11-L/2013 Muhammad Anwar Vs. Muhammad Akram, etc. For the Appellant (s) : Ch. Mushtaq Ahmed Khan, Sr. ASC Syed Rifaqat Hussain Shah, AOR (absent) (in CA.56/2011) Moulvi Anwar-ul-Haq, ASC (in CA.462-L/2009) Mian Allah Nawaz, Sr. ASC (in CA.11-L/2013 For Respondents No.1-4 and 6-8) : Malik Muhammad Kabir, ASC Mr. Ahmed Nawaz Ch., AOR (absent) (in CA.56/2011) For Respondents : Sardar Muhammad Aslam, ASC (in CA.462-L/2009) Ch. Aamir Rehman, ASC (in CA.11-L/2013) CAs.56 of 2011, etc. 2 Date of Hearing : 15 and 16.06.2016 JUDGMENT SH. AZMAT SAEED, J.- Civil Appeal No.56 of 2011, Civil Misc. Application No.6863 of 2014 in Civil Appeal No.56 of 2011 and Civil Appeals No.462-L of 2009 & No.11-L of 2013 have arisen out of Civil Suits, wherein the Plaintiffs therein variously claimed relief of Specific Performance of Agreements to Sell pertaining to immovable property. In each of the aforesaid cases, the Agreement to Sell in question was purportedly signed and executed by the Vendors but did not bear the signatures of the Vendees, who were the Plaintiffs in their respective Civil Suits. A common question which has arisen in all the aforesaid Civil Appeals is whether such Agreements to Sell not signed by the Vendees were valid and enforceable in law. The learned High Court in its judgment dated 30.11.2010 impugned in the Civil Appeal No.56 of 2011 and in the judgment dated 19.12.2012 by relying upon the judgment of this Court, reported as Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) held that such an Agreement to Sell not signed by the Vendee/Plaintiff was not enforceable in law. A similar argument was also canvassed at the bar in Civil Appeal CAs.56 of 2011, etc. 3 No.452-L of 2009. Reference was also made to another judgment of this Court, reported as Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) to assert that the Agreement to Sell not signed by one of the parties was invalid. 2. The learned counsels appearing for both sides of aisle were brisling with arguments based upon the entire factual and legal spectrum of their respective cases but were asked to restrict themselves to the legal proposition noted above, as we initially propose only to decide the aforesaid question of law leaving the merits of the individual case, including all other issues of fact and law to be adjudicated upon separately on a case to case basis. 3. Mian Allah Nawaz, learned Sr. ASC leading the charge on behalf of the Appellant in Civil Appeal No.11-L of 2013 contended that the learned High Court has failed to take into consideration the provisions of Sections 8 and 9 of the Contract Act, 1872, and a bare reading thereof leaves no manner of doubt that a concluded enforceable agreement can come about, even in the absence of formal signatures by one of the parties. It was added that there is nothing in the Contract Act, 1872, which prohibits an oral agreement, which is obviously not signed by either party. It was further added that the learned High Court has failed to CAs.56 of 2011, etc. 4 take into consideration the law laid down by this Court in the judgment, reported as Messer’s Jamal Jute Baling & Co, Dacca v. Messrs M. Sarkies & Sorts (Sons), Dacca (PLD 1971 SC 784), wherein it has been held that an Agreement reduced into writing and accepted by both the parties is enforceable in law, even if, one of the parties has not appended its signatures thereupon. The learned counsel further relied upon the judgment of this Court, reported as Karachi Gas Co, Ltd v. Dawood Cotton Mills Ltd. (PLD 1975 SC 193) to assert that a valid agreement can be based upon an implied proposal and acceptance and, in this behalf, writing is not necessary. The learned counsel also placed reliance upon the judgments, reported as RTS Flexible Systems Limited v. Molkerei Alois Muller GmbH and Co. KG (2012 SCMR 1027), Messrs Habib Bank Limited v. Abdul Wahid Khan (1996 CLC 698), Jugal Kishore Rameshwardas Vs. Mrs. Goolbai Hormusji (AIR 1955 SC 812) and Banarsi Das Vs. Cane Commissioner, Uttar Pradesh and another (AIR 1963 SC 1417). With regard to the judgments of this Court, reported as Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) and Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), it was contended that the same are not only distinguishable on facts but also do not lay down the CAs.56 of 2011, etc. 5 entire law on the subject and cannot be construed to run contrary to the express provisions of Sections 8 and 9 of the Contract Act, 1872 and the settled law on the subject, as laid down by this Court, including in the judgments referred to above. 4. The other learned counsels adopted and supported the contentions raised on behalf of the learned counsel for the Appellants referred to above. 5. The learned counsel for the opposite side controverted the contentions raised by Mian Allah Nawaz, learned Sr. ASC by contending that mutuality is a sine qua non for an enforceable agreement and the absence of the signatures of one of the parties thereto for all intends and purposes conclusively determine the absence of such mutuality. It was further contended that the same is even more vital in an executory agreement containing reciprocal promises. The learned counsel placed reliance upon the judgments of this Court in the cases, reported as Sirbaland Vs. Allah Loke and others (1996 SCMR 575) Messrs M.A. Khan and Co. through Sole Proprietor Muhammad Ali Khan Vs. Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. Through Principal Officer/Secretary, Karachi (2006 SCMR 721), Mst. Gulshan Hamid (supra), Alleged Corruption in Rental CAs.56 of 2011, etc. 6 Power Plants Etc. :In the matter of (Iftikhar Muhammad Chaudhry, CJ) (2012 SCMR 773) and Farzand Ali and another (supra). 6. Heard and perused the available record. 7. The primary and basic law relating to the contracts is obviously the Contract Act, 1872. The essentials of a valid contract are an offer communicated, the unconditional acceptance of such offer and consideration. There is nothing in the Contract Act, 1872 which requires that such offer and acceptance must necessarily be in writing or form a single document. The law i.e. the Contract Act, 1872 envisages a valid enforceable contract, which may even be oral. A perusal of the provisions of the said enactment also reveals that both the proposal and its acceptance may be expressed or implied, as is apparent from Section 9 thereof, which reads as under: “9. Promises, express and implied.- In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.” 8. Similarly, once an offer is communicated, the performance of the conditions of the proposal or the acceptance of any consideration or part thereof offered CAs.56 of 2011, etc. 7 with the proposal also constitutes an acceptance so as to bring about a valid binding contract between the parties, as is obvious from the bare reading of Section 8 of the Contract Act, 1872, which is reproduced hereunder for ease of reference: “8. Acceptance by performing conditions or receiving consideration.- Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.” 9. No doubt, the Contract Act, 1872 may not be the only law applicable to the transactions enumerating the requisite formalities. Various special laws pertaining to certain specified species of contracts also hold the field and the provisions thereof may envisage certain additional requirements to bring about a valid contract. An obvious example is Section 54 of the Transfer of Property Act, 1882, which requires that a contract of sale of immovable property of a value of more than one hundred rupees must necessarily be reduced in writing. This condition only applies where the Transfer of Property Act, 1882 is applicable through a Notification in terms of Section 1 thereof. The said provision of the Transfer of Property Act, 1882 is not applicable to the entire length and breadth of Pakistan and oral sales are recognized and enforced in CAs.56 of 2011, etc. 8 various parts of Pakistan. Be that as it may, there is nothing in the Transfer of Property Act, 1882 or any other law, which requires that an Agreement to Sell of immovable property must necessarily be reduced into writing or be signed by the parties thereto. 10. The Courts in Pakistan, while interpreting the various provisions applicable, more particularly, Sections 8 and 9 of the Contract Act, 1872, have repeatedly and consistently held that the contracts in general do not require to be reduced into writing (except where otherwise specifically provided by law) and the offer and acceptance can also be implied from the conduct of the parties in terms of Sections 8 and 9 ibid and the absence of formal signatures does not effect the validity or enforceability of the Contract Act, 1872. 11. This Court in the judgment, reported as Messer’s Jamal Jute Baling & Co, Dacca v. Messrs M. Sarkies & Sorts (Sons), Dacca (PLD 1971 SC 784) held as follows: “Even if it be assumed for the sake of argument that the contract was not properly signed even otherwise in my opinion, the contract between the parties was quite valid and binding on them. It has been rightly pointed out by the Civil Judge that the appellant-sellers have accepted the contract. There is also evidence that after the conclusion of the contract the appellant-firm had partially acted upon it for supplying 125 bales of CAs.56 of 2011, etc. 9 jute. Mr. Bhattacharjee, learned counsel for the respondent has referred to two Indian decisions, Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji (1) and Banarsi Das v. Cane Commissioner, Uttar Pardesh and another (2). It was held in these cases that even if signature is not there and acceptance is established it is a proper agreement between the parties. In the case of Jugal Kishore Rameshawardas, it was held as under :- “But it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and that it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.” The same view was expressed in the case of Banarsi Das. If the fact of the present case is considered in the light of these principles, it is proved that the agreement between the parties was reduced to writing. Both the parties accepted its terms and have partially carried them out. In view of this the contract in dispute is established between them and the respondents are entitled to enforce it. Having regards to these facts, I am satisfied that there was a valid reference to arbitration and the Arbitrators were competent to enter on the reference in order to decide the dispute between the parties. I would, therefore, repel the contention of the appellant in this behalf.” (emphasis supplied) In the case of Karachi Gas Co, Ltd v. Dawood Cotton Mills Ltd. (PLD 1975 SC 193), it has been observed as follows: “The customer did not raise any objection to this principle of charging interest. On the basis of these facts, the Privy Council CAs.56 of 2011, etc. 10 following the principle laid down in (1813) 3 Camp 487 observed at p. 23 as follows:- “… the fact that the defendant had not objected to a change of compound interest in accounts which for several years, he had annually received from the plaintiff bank offered sufficient evidence of a promise by him to pay interest in that manner.” In the case of Messers M. A. Khan & Co. through Sole Proprietor Muhammad Ali Khan v. Messers Pakistan Railways Employees Cooperative Housing Society Ltd. Through Principal Officer/Secretary, Karachi, (2006 SCMR 721), it was held as under: “… The acceptance of the offer may be express or implied or it can be gathered from the conduct of parties and the circumstance of the case. The acceptance of an offer would give rise to an agreement which if is enforceable in law is a valid contract and the contract is complete as soon as the offer is accepted and the terms of contract required to be reduced in writing would be only incidental to the completion of contract. In a contract by correspondence if the acceptance of offer is established through the letters, the non- execution of the formal agreement would not be essential to constitute a valid contract. The letters of offer and acceptance indicating the term agreed upon by the parties would constitute a valid contract which would not be affected by subsequent negotiation and the terms of the contract would necessarily be judged from the letter of acceptance.” CAs.56 of 2011, etc. 11 12. The controversy with regard to the validity of the contract, which does not bear the signatures of one of the parties thereof also cropped up in the Indian Jurisdiction and was settled by the Supreme Court of India in the judgment, reported as Aloka Bose v. Parmatma Devi & Ors. (AIR 2009 SC 1527), it was held as follows: “All agreements of sale are bilateral contracts as promises are made by both – the vendor agreeing to sell and the purchaser agreeing to purchase. On the other hand, the observation in S.M. Gopal Chetty (supra) that unless agreement is signed both by the vendor and purchaser, it is not a valid contract is also not sound. An agreement of sale comes into existence when the vendor agrees to sell and the purchaser agrees to purchase, for an agreed consideration on agreed terms. It can be oral. It can be by exchange of communications which may or may not be signed. It may be by a single document signed by both parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. … Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone unless it is by a series of offers and counter-offers by letters or other modes of recognized communication. In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the CAs.56 of 2011, etc. 12 vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale.” 13. The aforesaid would make it clear that it is now a well settled proposition of law that for a valid contract, the same can be oral or it may be through exchange of communication between the parties. Once an offer is communicated, the acceptance thereof can be expressed or implied. Such acceptance of the offer would include accepting the consideration accompanying the offer or acting upon the said bargain. There is no requirement of a formal signature of both or either of the parties. All that is required is an offer and acceptance and consideration between the parties. 14. At this juncture, it may be pertinent to mention that all valid contracts are not specifically enforceable but nevertheless may give rise to rights and liabilities, and the breach thereof may entitle the offended party to seek compensation/damages in terms of Sections 73 and 74 of the Contract Act, 1872. 15. The question of Specific Performance of a contract is dealt with in the Specific Relief Act, 1877. The reference to this aspect of the matter has been CAs.56 of 2011, etc. 13 necessitated in view of the fact that in the judgments relied upon by the learned counsel i.e. Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) and Farzand Ali and another Vs. Khuda Bakhsh and others (PLD 2015 SC 187), a reference has been made to Section 22 of the Specific Relief Act, 1877. The aforesaid provision is reproduced hereunder for ease of reference: “22. Discretion as to decreeing specific performance: The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The following are cases in which the Court may properly exercise a discretion not to decree specific performance: I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff’s part. Illustrations (a) A, tenant for life of certain property, assigns his interest therein to B. C contracts to buy, and B contracts to sell that interest. Before the contract is completed. A receives a mortal injury from the effects of which he dies the day after the contract is executed. If B and C were equally ignorant or equally aware of the fact. B is entitled to specific performance of the contract. If B knew the fact, and C did not, specific performance of the contract should be refused to B. CAs.56 of 2011, etc. 14 (b) A contracts to sell to B the interest of C in certain stock-in-trade. It is stipulated that the sale shall stand good, even though it should turn out that C’s interest is worth nothing. In fact, the value of C’s interest depends on the result of certain partnership- accounts, on which he is heavily in debt to his partners. This indebtedness is known to A, but not to B. Specific performance of the contract should be refused to A. (c) A contracts to sell and B contracts to buy certain land. To protect the land from floods, it is necessary for its owner to maintain and expensive embankment. B does not know of this circumstance, and A conceals it from him. Specific performance of the contract should be refused to A. (d) A’s property is put up to auction. B requests C, A’s attorney, to bid for him. C does this inadvertently and in good faith. The persons present, seeing the vendor’s attorney bidding, think that he is a mere puffer and cease to compete. The lot is knocked down to B at a low price. Specific performance of the contract should he refused to B.” 16. A perusal of the aforesaid provision leaves no manner of doubt that it does not pertain to validity of the contract but to its Specific Performance. In fact it presupposes a lawful contract as mentioned therein. It also presupposes that the agreement/contract in question contains all the necessary attributes mentioned in Section 12 of the Specific Relief Act, 1877 entitling a party to its Specific Performance. It also presupposes that the said agreement does not suffer from any of the disabilities CAs.56 of 2011, etc. 15 mentioned in the preceding Section 21 of the Specific Relief Act, 1877, which prohibit its Specific Performance. Section 22 only comes into play as a residuary provision authorizing the Court to decline Specific Performance on equitable grounds. The aforesaid provision has come up for interpretation regularly before this Court variously, included in the following cases. In the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344), it was held as under: “19. And lastly it was urged that the jurisdiction of the Court to decree specific performance being discretionary under section 22 of the Specific Relief Act, the Court ought not to have, considering the plaintiff's conduct, granted such relief. The jurisdiction under section 22 is discretionary only in the sense that it cannot be claimed as a matter of right. As enjoined by the section itself, the exercise of the discretion is not to be arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The exercise of the discretion to grant or refuse to grant relief will, therefore, depend upon the circumstances of the case and the conduct of the parties. The Courts below have not found the circumstances of the case or the conduct of the plaintiff to justify a denial of the relief to him, and we see no reason to hold otherwise.” CAs.56 of 2011, etc. 16 In the case of Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905), it was observed as under: “14. It may be noticed that according to the above-quoted section the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful. However, the discretion of the Court is not arbitrary but sound and reasonable and is to be guided by judicial principles which are amenable to correction by a Court of appeal. It may further be noticed that the above section gives two illustrations which are not exhaustive to demonstrate in which cases the Court may decline to exercise discretion of granting specific performance of a contract, namely, (i) where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiffs part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would not involve such hardship on the plaintiff. It may also be pointed out that the above section provides that the Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.” (emphasis supplied) In the case of Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189) (at page 2209), it was observed as follows: “… It is true that grant of relief of specific performance is discretionary with the CAs.56 of 2011, etc. 17 Court but this discretion cannot be exercised arbitrarily. The relief of specific performance being an equitable relief, it can be refused by the Court only if the equities in the case are against the plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find some thing in the conduct of plaintiff which disentitled him to the grant of equitable relief of specific performance, or the Court reaches the conclusion that on account of delay in seeking the relief, the circumstances have so materially changed that it would be unjust to enforce the agreement specifically. The specific performance of a contract cannot be refused merely because it is lawful for the Court to refuse it. Section 22 of the Specific Relief Act, though not exhaustive provides some instances in which the specific relief of a contract may be refused by the Court in its discretion. …” In the case of Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others (1999 SCMR 1362), it was stated as under: “9. … Undoubtedly there are many instances in which, though there is nothing that actually amounts to fraud there is nevertheless a want of equity and fairness in the contract which are essential in order that the Court may exercise its extraordinary jurisdiction in specific performance. In judging of the fairness of a contract the Court will look not merely at the terms of the contract itself but at all the surrounding circumstances. …” In the case of Bashir Ahmed through L.Rs. and another v. Muhammad Ali through L.Rs and another CAs.56 of 2011, etc. 18 (2007 SCMR 1047), it was held as under: “5. It is a settled law that grant of specific relief is always discretionary in character and the Court is not always bound to decree the suit of specific performance in cases where the agreement is proved. It is a settled law that Court has to exercise discretion judicially and not arbitrarily. Reference can be made to the following judgments:- Arif Shah's case PLD 1991 SC 905, Mussarat Shaukat Ali's case PLD 1994 SCMR 2189, Ameena Bibi's case PLD 2003 SC 430 and Jethalal Nanshah Modi v. Bachu and another AIR 1945 Bom. 481. The ratio of the aforesaid precedents is as follows:-- Where the circumstances under which a contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part or relief may be denied where the plaintiff has been negligent or as acquiesced in the injury." In the case of Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others (PLD 2010 SC 952), it was observed as follows: “7. … Now here at this juncture the question would arise as to whether the amount of consideration can be enhanced or otherwise? Before dilating upon the said question, it may be kept in view that "section 22 provides that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the CAs.56 of 2011, etc. 19 Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal." (Abdul Karim v. Muhammad Shafi 1973 SCMR 225). It hardly needs any elaboration that "grant of decree for specific performance of a contract is a discretionary relief and the Court is not bound to decree such a suit merely because it is lawful. The Court has also to see the conduct of the person asking for such relief as also his readiness and willingness and capacity to make payment. "(Emphasis provided). Ali Muhammad v. Shah Mohammad PLD 1987 Lah. 607, Bank of Bahawalpur, Ltd. v. Punjab Tanneries, Wazirabad Ltd. PLD 1971 Lah. 199 and Sree Lal v. Hariram AIR 1926 Cal. 181). 17. A perusal of Section 22 of the Specific Relief Act, 1877 as interpreted by this Court in the judgments reproduced hereinabove makes it clear and obvious that the said provision has no bearing on the validity of the contract. It only recognizes the discretion vested with the Court to decline the Specific Performance of an Agreement even in the absence of any impediment, in this behalf, as enumerated in Section 21 of the Specific Relief Act, 1877 and in spite of the fact that such Agreement may possess the necessary attributes entitling the Specific Performance of Section 12 of the said Act of 1877. It declares that the Specific Performance is essentially an equitable relief which can be declined if it is unjust or inequitable to do so. For determining whether the Relief or Specific CAs.56 of 2011, etc. 20 Performance is to be granted the circumstances under which the contract is executed and the contract of the parties at that time and thereafter may be taken into account. The illustrated examples pertain to unforeseen circumstances and hardships which may be inflicted upon a party through Specific Performance in contradistinction to the lack of such hardships as a consequence of the failure to specifically perform the contract. The illustrations appended to the provision are not exhaustive but indicate the discretion available with the Court. Such discretion must necessarily be exercised on the basis of sound judicial principles. At the end of the day, the discretion must necessarily be relatable to the circumstances in which agreement came about or to the Specific Performance of the contract and the consequences of grant or refusal of the relief of specific performance. It does not appear possible to invoke Section 22 of the Specific Relief Act, 1877 to determine the validity of the agreement. 18. Furthermore, there is nothing in Section 22 nor its illustrations or the interpretation thereof as handed down by this Court in the various judgments referred to and reproduced hereinabove to indicate that the relief of Specific Performance is relatable to or has any connection CAs.56 of 2011, etc. 21 with quantity or quality of the evidence required to be produced by either of the parties seeking or resisting such Specific Performance. Obviously a valid enforceable agreement alongwith factors entitling a person to Specific Performance, would be required to be proved through relevant and admissible evidence in terms of the Qanun-e- Shahadat Order, 1984. In this behalf, reference was made to Article 17 of the Qanun-e-Shahadat Order, 1984, which is reproduced hereunder for ease of reference: “17. Competence and number of witness.-(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law. (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.” CAs.56 of 2011, etc. 22 This Court in the judgment, reported as Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), has been held as follows: “12. It is true that before promulgation of Qanun-e-Shahadat Order, 1984 an agreement to sell was not required by any law to be attested by witnesses. It is, however, a matter of common knowledge that during that period also the agreements to sell were by and large reduced to writing and attested by witnesses in spite of absence of a legislative provision and the mode attained the status of an established practice by efflux of time. This mode, in all probability, was adopted by way of abundant caution and to procure documentary evidence inasmuch as in a suit for specific performance of contract based on an agreement to sell the onus is on the plaintiff to prove the contract unless its existence is admitted by the defendant. The interest of justice, therefore, demands that the form of proof should be in line with the format of the document executed by the parties to the contract. It would thus follow that where an agreement to sell executed prior to promulgation of Qanun-e-Shahadat Order, 1984 has been reduced into writing and attested by witnesses its execution must be proved in accordance with the provisions of section 68 (Article 79) of the erstwhile Evidence Act notwithstanding the fact that the ` tame apply only to that document which is required by law to be attested. Prop of the aforementioned legal vacuum cannot be taken to offset the effect of failure to prove the execution of an agreement to sell in accordance with the said mode. However, where an agreement to sell has been reduced to writing but not attested by witnesses its execution and the contract embodied therein can be proved by other strong evidence and attending CAs.56 of 2011, etc. 23 circumstances which may vary from case to case. Needless to mention that such evidence can also be produced in the first category of cases as supporting evidence. A perusal of the aforesaid provision as interpreted by this Court makes it clear and obvious that the rigors of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, would be attracted even if an Agreement to Sell is purportedly signed by both the parties but its execution is denied. Furthermore, the said provision pertains to the mode of proof of the document not its validity in terms of the Contract Act, 1872 nor its Specific Performance in terms of the Specific Relief Act, 1877. A failure to prove the existence of the Agreement would obviously deprive the Plaintiff of such relief but any difficulty, in this behalf, would not attract the provisions of Section 22 of the Specific Relief Act, 1877, as such difficulty may have no nexus with the circumstances under which the agreement came about or the conduct of the parties or the hardship flowing from the grant of such relief. The observations in the case of Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCMR 334) do not appear to be in consonance with the letter and spirit of Section 22 ibid and runs contrary to the judicial pronouncements of this Court. CAs.56 of 2011, etc. 24 19. A great emphasis was laid upon the judgment of this Court, reported as Farzand Ali and another (supra), in an attempt to persuade us to hold that an Agreement to Sell not signed by the Vendee was not enforceable in law. A close scrutiny of the aforesaid judgment reveals that no doubt a reference has been made to Section 22 of the Specific Relief Act, 1877 to reiterate the settled proposition of law that relief of Specific Performance of an Agreement to Sell is equitable in nature and the Court has the discretion to decline such relief. However, the judgment turns upon a finding of fact on the basis of the evidence discussed in extenso. In the said case there was an absence of “consensus ad idem”. The heart of the judgment is embodied in para 9 thereof, the relevant portion whereof for ease of reference is reproduced hereunder: “In the above context, the first and the foremost aspect of the case is, if the agreement to sell of the appellants was valid because if it is not valid the question of its enforcement through the process of law and the exercise of discretion does not arise. It is an undisputed fact that appellants agreement has not been signed by them. …………………………………………. ……………..………………………………………. the first, and the foremost requisite of a contract (agreement) is that the parties should have reached agreement, which CAs.56 of 2011, etc. 25 unmistakably means, that an agreement is founded upon offer and acceptance. ……… ……………………………………………………… ……………………………………………………… but its proof is also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. …………. ……………………………………………………. ……………….…………………………………… But in this case this is conspicuously lacking by virtue of non-execution (non- signing) of the agreement by the appellants, therefore in law and fact it is no contract (agreement). ….” From the aforesaid, it is clear and obvious that the conclusion drawn was that in fact and in law no agreement had been arrived at between the parties. It has not been laid down that in each and every eventuality where an Agreement, not signed by one of the parties, irrespective of the provisions of the Contract Act, 1872 referred to above would be invalid in law. It has also been noticed that the settled proposition of law as laid down in the judgment of this Court, reported as Messer’s Jamal Jute Baling & Co, Dacca v. Messrs M. Sarkies & Sorts (Sons), Dacca (PLD 1971 SC 784) has not been overruled. The relevant portion thereof in the same paragraph has been reproduced hereunder for ease of reference. CAs.56 of 2011, etc. 26 “9. … learned counsel for the appellants has relied upon the judgment reported as Messrs Jamal Jute Baling & Co., Dacca v. Messrs M. Sarkies & Sorts (Sons), Dacca (PLD 1971 SC 784) to argue to the contrary, wherein it has been held that "terms of agreement reduced into writing and proved to have been accepted and acted upon by both parties---Agreement, proper and valid even if one party had not signed such agreement". However the conditions are that the agreement should be accepted by the parties who are actually in dispute qua the validity thereof, and the agreement should have been acted upon. In this case as explained earlier in the light of the facts of the case the real dispute is between the appellants and the respondent, who (respondent) has never admitted the agreement and it has also not been acted upon. …” 20. Thus, it appears that the proposition of law that an Agreement to Sell not signed by one of the parties if proved to have been accepted and acted upon would be a valid Agreement to Sell, is a valid contract enforceable in law has in fact been reiterated. 21. In view of the above, it is evident that the proposition that where an Agreement to Sell pertaining to immovable property is not signed by one of the parties thereto, in each and every eventuality, is invalid and not specifically enforceable is fallacious and contrary to the law. The existence and validity of the Agreement and it being specifically enforceable or otherwise would depend upon the proof of its existence validity and CAs.56 of 2011, etc. 27 enforceability in accordance with the Qanun-e-Shahadat Order, 1984, the relevant provisions of the Contract Act, 1872, the Specific Relief Act, 1877 and any other law applicable thereto. Having settled the preliminary legal issues involved, let the above-mentioned Civil Appeals be set down for hearing to be decided separately on the basis of the evidence available on the record in terms of the observations made therein-above. Chief Justice Judge Judge Judge Judge APPROVED FOR REPORTING’ Mahtab H. Sheikh/* Announced on 11.11.2016 at Islamabad Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUHAMMAD ATHER SAEED CIVIL APPEAL NO.679-L OF 2012 (Against the order dated 9.8.2012 of the Lahore High Court, Lahore passed in Writ Petition No. 9871 of 2012) Rana Abdul Hameed Talib …Appellant VERSUS Additional District Judge, Lahore and others …Respondents … For the appellant: Mr. Qamar Zaman Qureshi, ASC For respondent No.3: Mr. Iqbal Mehmood Awan, ASC Mr. Faiz-ur-Rehman, AOR Date of hearing: 9.1.2013. … JUDGMENT MIAN SAQIB NISAR, J.- The primary proposition(s) involved in this appeal, with the leave of the Court dated 20.12.2012, is about the interpretation and the effect of non-compliance of the provisions of Section 9(b), independently, and also when read in the context of Section 8 of the Punjab Rented Premises Act, 2009 (the Act, 2009). In relation to the above proposition, the facts of the case are:- that on 18.1.2010, respondent No.3 brought an ejectment petition against the appellant under Act, 2009, on the ground(s), inter alia, of default in the payment of the rent due. The property in dispute is a room bearing No.21 Bashir Mansion, Turner Road, Lahore. The appellant filed an application for leave to contest the ejectment petition, Civil Appeal No. 679-L of 2012 -: 2 :- which was dismissed and as a consequence thereof, eviction order dated 28.1.2011 was passed against him; appellant’s appeal was disallowed on 20.3.2012, and same is the fate of his constitution petition, which has been discarded by the learned High Court vide impugned judgment dated 9.8.2012. 2. Learned counsel for the appellant has argued, that according to Section 8 of the Act, 2009, an existing tenancy has to be brought inconformity with the provisions of the Act and if the needful is not done, the Rent Tribunal, as per the mandate of Section 9, ibid shall not “entertain” any application either filed by the landlord or the tenant as the case may be, unless he (petitioner before the Tribunal) deposits a fine envisaged by the section and this has to be done even before an application is moved or at least the Rent Tribunal should pass an order to that effect, before issuing a notice to the other side; as the respondent-landlord of the case has failed to follow the mandatory provisions of law, therefore, his ejectment petition was not entertainable, and thus the Rent Tribunal had no jurisdiction to pass the eviction order against the appellant. It is further argued that respondent No.3, during the pendency of the appeal filed by the appellant, before the District Judge, was directed by the said Court to deposit 10% of penalty in terms of Section 9 of the Act, 2009, but this was not permissible under the law and the inherent defect in the very ‘entertaining’ of the application could not be allowed to be cured. In support of his contention that the provisions of Section 9 of the Act, 2009 are mandatory and that the eviction application could not be entertained by the Rent Tribunal, reliance has been placed by the appellant’s learned counsel upon a judgment dated 25.5.2011 rendered by this Court in Civil Petition No. 349-L of 2010 (Allah Ditta Civil Appeal No. 679-L of 2012 -: 3 :- Sajid Vs. Muhammad Saleem Qureshi & others). It is further submitted that the property in issue vide notification dated 18.1.2010 was taken over by Auqaf Department in terms of Section 7 of the West Pakistan Auqaf Ordinance, 1979 and, therefore, the relationship of tenancy between the parties has ceased to exist; and it is for this reason that the appellant had rightly denied the relationship of tenancy between the parties. This aspect of the matter has been totally ignored by all the forums below. 3. On the other hand, learned counsel for respondent No.3 states that the provisions of Section 9 of the Act, 2009 have to be read in conjunction and consonance with the provisions of Section 8, which provides that the existing tenancies should be brought inconformity with the mandate of the Act within a period of two years, which is the grace period for doing the needful. At the time when the eviction petition was filed by the respondent i.e. 18.1.2010, the two years period had not expired as yet, as the Act, 2009 was enforced on 17th November, 2009, thus, when such period matured, while the appeal was pending, the learned Court, was well within its jurisdiction as per the spirit of the Act, 2009, to issue the direction to the respondent/landlord for the deposit of fine under Section 9, which was duly paid (deposited) on or before 16.11.2011 and, therefore, respondent No.3 cannot be held to have violated the law. Meeting the argument of the appellant’s learned counsel about the Auqaf Department’s notification, it is submitted that the notification referred to above by the appellant’s counsel was challenged by respondent No.3 vide Writ Petition No. 1474 of 2008, in which the operation of the same has been suspended. Moreover, admittedly the appellant was inducted into possession of the property by the said respondent and, therefore, Civil Appeal No. 679-L of 2012 -: 4 :- the appellant is estopped under Article 116 of the Qanoon-e-Shahadat Order, 1894 to deny the relationship. 4. Heard. For the purposes of resolving the key proposition and the ancillary question(s) which may come up for answer(s) in the matter, I find it expedient to briefly touch upon the meaning and concept of a lease/tenancy; how it is created, and in reference thereto, the relevant law in force from time to time and the development thereof; in other words the legislative history and the object of the law on the subject. In this context there can be no two opinion that the lease/tenancy has its genesis (note: except the statutory tenancies) in a contract between two parties, the lessor and the lessee. According to Black’s Law Dictionary (Eight Edition) lease is defined as: “a contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, for a fixed period, or for a period terminable at will”. Whereas, the tenancy means “the possession or occupancy of land under a lease; a leasehold interest in real estate”. In our law, as per Section 105 of the Transfer of Property Act, 1882 (TP Act, 2009), the lease is defined as:- “105. Lease defined.- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing or value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.” Section 107 of the Act ibid stipulates, as to how a lease is made, and reads as:- “107. Leases how made.- A lease of immovable property from year to year, or for any term exceeding Civil Appeal No. 679-L of 2012 -: 5 :- one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments, than one each such instrument shall be executed by both the lessor and the lessee: Provided ……………………………”. Section 108 of the Act (supra) provides for the rights and liabilities of the lessor and a lessee and certain other sections stipulates, the effect of the expiry of the lease period, such as the concept of holding over and the tenancy at sufferance. Besides the noted enactment, according to Section 17 of the Registration Act, 1908 “leases of immovable property, from year to year, or for any term exceeding one year reserving a yearly rent;” shall be affected through compulsorily registrable document/instrument and if not so done, as per Section 46 of the Act, it (such document) shall not operate to create, etc. any right, title or interest, whether vested or contingent to or in the immovable property, whether in present or in future. Obviously meaning, that without a registered instrument, no valid lease beyond the period of one year shall validly be effected. It may be of some interest to mention here, that in the ordinary and common parlance, the terms lease and tenancy, more or less are taken to be analogous, however, if any distinction for the above two concepts/terms is required/expedient, reference can be made to Ramzan and 5 others vs. Member, Board of Revenue and others (1991 CLC 2125); besides, the distinction is also aptly elucidated in a book titled Legal Terms and Phrases (2006 Edition) by M. Ilyas as under:- Civil Appeal No. 679-L of 2012 -: 6 :- “The word, ‘lease’ would employ a contract of occupation of land for fixed term, whereas the word ‘tenancy’ implies that occupier would hold land till same was terminated expressly or by implication.” 5. Be that as it may, prior to 1959, the leases/tenancies subject to the aforestated laws were regulated by the terms and conditions of the contract between the lessor and the lessee. And the issues in relation thereto arising between the landlord(s) and tenant(s) were sorted out by the civil courts of plenary jurisdiction or the revenue courts as the case may be. However, vide West Pakistan Urban Rent Restriction Ordinance, 1959 (Ordinance, 1959) enforced on 23.2.1959, a vital and drastic change was brought into the law on the subject of tenancies, inasmuch as, certain urban properties were taken out of the preview of the general law and also the jurisdiction of the civil courts. The tenancies existing at that time, either contractual or statutory, as also the future tenancies/leases coming into being thereafter, were to be governed and regulated in material aspects by the provisions of the 1959 Ordinance as envisaged thereby. The specific contractual terms and conditions of the existing tenancies/leases were almost rendered nugatory and redundant; neither the rent could be increased as per the contract between the parties, nor the landlord could seek the eviction of the tenant in terms of the stipulations of the lease document. A special forum of Rent Controller was established to determine the issues between the landlord(s) and the tenant(s), strictly as provided by the said Ordinance. However, it may be pertinent to mention here, that unlike the Act neither the lease/tenancy was defined nor a mechanism was provided in the Ordinance as to how the future tenancies/leases shall Civil Appeal No. 679-L of 2012 -: 7 :- be created or constituted. It was quite obscure and unclear, if the provisions of the TP Act and the Registration Act shall have due and efficacious application in relation to the creation of future tenancies/leases after the enforcement of 1959 Ordinance. And even if, the two noted laws were not strictly adhered to, whether it shall make any difference; this was so because the eviction of a tenant, which emerged to be the main area of dispute (litigation) inter se, the landlord and tenant (under the Ordinance ibid) was no more (in many ways) regulated by the tenancy instrument(s) duly executed between them or TP Act, but the provisions of the said Ordinance. This was so because Section 13 of the (supra Ordinance, 1959) categorically mandated that “a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section”. It may be stated here with emphasis, that for the eviction of a tenant on the grounds mentioned in Section 13 of the Ordinance, 1959, the expiry of the period of tenancy as agreed upon between the parties was absolutely irrelevant (emphasis supplied), for example, if the period of lease/tenancy either existing or future, (as agreed upon between the parties) was for a term of three years and such period has expired, the landlord yet was precluded to seek the eviction of his tenant, on account of the expiry of the lease period, rather was only entitled to ask for the eviction on the grounds specifically mentioned in the Section 13 ibid (note:- if however the tenancy was for a fixed period the landlord under the said section could not ask for eviction on account of his personal need, till the expiry of that period, which looks quite anomalous). 6. This law remained in vogue for a considerable period and had its own pros and cons, which I do not feel are relevant to be Civil Appeal No. 679-L of 2012 -: 8 :- specified and discussed here. But it seems expedient to highlight (even at the cost of repetition), that no particular mechanism/procedure, or form for entering into a lease and was prescribed by the Ordinance 1959, and moreover Section 13 thereof, had an overriding effect in many ways over the laws in force at that time, therefore the above provisions of TP Act, the Registration Act, and the contractual stipulations between the parties, as mentioned earlier had practically lost its efficacy. In the said scenario, as also to avoid the expenses of requisite stamp duty(ies) and registration fee(s) etc. the tenancies through unregistered instrument and oral in nature became rampant, which as experienced subsequently, gave rise to numerous vice(s), and depravity. The foremost being usual and casual denial of the relationship(s) of tenancy by the tenant on number of scores. In this context, the setting up of the defence of adverse title; and being put into the possession of the property on account of some alleged agreement(s) to sell or by some third party etc. was (were) a common phenomena. Besides, the issues, about the rate of rent; the nature of the property, as also the use for which it was rented out, the subletting, got more and more complexed. There was considerable mess and confusion(s) and grey areas in the field. Above all, it was an eminent public perception that Ordinance, 1959 is a law, which is too pro the tenants. 7. It seems that in order to eliminate the confusions and to sort out the vice(s) which had emerged and surfaced in relation to the disputes, inter se the landlord and tenants under the Ordinance, and with a view to meet the present day exigencies and to draw a balance for regulating the relationship inter se the landlord(s) and the tenant(s), the legislature thought expedient to enforce a new law, which should Civil Appeal No. 679-L of 2012 -: 9 :- be self serving and comprehensive in nature, on the subject. Thus, firstly an Ordinance was enforced in 2007, followed by an Act, titled Punjab Rented Premises Act, 2009. In this law(s) inter alia in order to exclude, rather virtually preclude the creation of leases/tenancies orally or through unregistered instruments, which earlier in practical terms was not impermissible, and such a situation had added, to the flummox and abundance to the rent litigation, and the prolongation thereof, had augmented to the miseries of the litigant, that Section 5 seems to have been introduced, which provides a mechanism, as to how a tenancy for the purpose of the Act ibid (2009) shall be created; the section reads as under:- “5. Agreement between landlord and tenant.– (1) A landlord shall not let out a premises to a tenant except by a tenancy agreement. (2) A landlord shall present the tenancy agreement before the Rent Registrar. (3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord. (4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents. (5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant. (6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in sub-section (2).” Civil Appeal No. 679-L of 2012 -: 10 :- It is expedient to mention here, that in all the erstwhile laws on the subject, such a stipulation was never the requirement of the law. Anyhow, it is clear from the language of sub-section (1) that a specific command has been given to the landlord that he “shall not let out a premises to a tenant except by a tenancy agreement”, and as per definition clause section 2(m) “a tenancy agreement means an agreement in writing by which landlords let out a premises to a tenant” meaning thereby, that the very creation and the subsistence of a valid tenancy has been made subservient and subject to the execution of a written tenancy agreement, which agreement the landlord is obliged to present before the Rent Registrar for the registration [see Section 5(2)]. The above mandate of law, is fortified by the factum that the certified copy of the tenancy agreement has been made the proof of relationship of tenancy [see Section 5(5)]. In my opinion, through this mechanism an effort has been made, to do away with the possibility of any grey areas and the confusions in regard to the creation of tenancies and the issues related and having nexus thereto. 8. Further, in line with the above stated object and with a view to ensure precision, leaving wee room for uncertainty, even in regard to the contents of such tenancy agreement(s), Section 6 of the Act, 2009 stipulates as under:- “6. Contents of tenancy agreement.–(1) A tenancy agreement shall contain, as far as possible, the following: (a) particulars of the landlord and the tenant; (b) description of the premises; (c) period of the tenancy; (d) rate of rent, rate of enhancement, due date and mode of payment of rent; Civil Appeal No. 679-L of 2012 -: 11 :- (e) particulars of the bank account of the landlord, if the rent is to be paid through a bank; (f) the purpose for which the premises is let out; and (g) amount of advance rent, security or pagri, if any. (2) If the tenure of the tenancy is fixed but a rent is fixed only for a part of the tenure, in the absence of any stipulation to the contrary in the tenancy agreement, the rent shall be deemed to remain the same for the whole of the tenure.” Be that as it may, pursuant to the resolution of the proposition herein involved (note: mentioned in the opening para of the judgment), I would also like to add here that both, Ordinance, 2007 and Act, 2009 were given immediate effect in the words “it shall come into force at once” and on the enforcement of the latter enactment, as per Section 35 of the Act, 2009 (Section 35 of the Ordinance, 2007 also), the Punjab Urban Rent Restriction Ordinance was repealed, besides according to Section 4 of the Act, 2009, this law has an overriding effect on any law for the time being in force. However, all the matters which were pending adjudication under the repealed law were preserved and saved to be decided according to the earlier law, but (such matters) were transferred to the forum i.e. Rent Tribunal, constituted under the new enactment (note:- see section 35). From the object clause of these two new legislations and from the parts/sections thereof (note: which have been mentioned above or shall be referred in the succeeding part of the judgment), it is clear that all the existing tenancies, may be oral or the one constituted vide registered or unregistered instruments, or for that matter, even statutory tenancies, in respect of which the disputes between the landlord and tenant had not yet even arisen, were also brought into the net and purview of Act, 2009 and made amenable to the jurisdiction of the Rent Tribunal with immediate effect (a specific forum created under the Act, 2009 for that purpose). In Civil Appeal No. 679-L of 2012 -: 12 :- other words the existing tenancies were not set apart or separated or saved to be dealt with under the repealed law, except the pending matters. Rather in relation to the disputes in respect of the existing tenancies arising in future, were to be adjudged under the provisions of Act, 2009, from the date of its enforcement. Resultantly in order to keep the conformity and parity with respect to the class/category of cases which might come before the Rent Tribunal in future, (obviously under Act 2009 now), and for the purposes of catering for and for securing the rights and liabilities of the landlord(s) and the tenant(s) qua previous (existing) tenancy(ies), Section 8 of Act, 2009 mandates as:- “8. Existing tenancy.- An existing landlord and tenant shall, as soon as possible but not later than two years from the date of coming into force of this Act, bring the tenancy in conformity with the provisions of this Act.” 9. Thus, from the above stated legal position and the factual backdrop, it is my candid opinion that the nature, the interpretation and the effect of Section 9 in relation to the proposition in hand, (note: stated at the very outset of this judgment) has to be reckoned and made, keeping in view the aforementioned object(s) of the law, not only with respect to those tenancies coming in being in future, but also those existing (prior to the new law). And this has to be done on account of the collective reading of Sections 9, as also the other provisions of the Act mentioned earlier, including 5, 6, 7 ibid, and thus it should be determined and adjudged, as to whether the said Section (9) is a mandatory or a directory provision of law and the effect thereof. Before proceeding further with the matter, it may be expedient to state here, that Sections 12 and 13 of the Act, 2009, also have an important bearing and nexus to the proposition of this case, which Civil Appeal No. 679-L of 2012 -: 13 :- sections define and prescribe the statutory obligations of the landlord and a tenant towards each other, including, for example, the duty of the landlord to provide the copy of the tenancy agreement to the tenant [see section 12(1)(a)] and the obligation of the tenant to handover vacant possession of the premises to the landlord on the determination (expiry) of the tenancy [see section 13(1)(d)]. Besides, these two provisions also envisage the remedies available to both the above named (landlord and tenant), if there is any breach of such obligation on either of their parts. In this context reference can also be made to another important provision of the Act, 2009 i.e. Section 10, which provides that no agreement to sell etc., after the execution of the tenancy agreement (emphasis supplied) between the parties (landlord and tenant) shall affect, the relationship of tenancy, unless the tenancy is revoked by a written agreement entered before the sub-Registrar in accordance with the provisions of Section 5 of the Act, 2009. Moreover, in Section 15 of the Act, 2009 which prescribes the grounds for the eviction of a tenant, the expiry of period is now a new addition, which is one of the grounds of eviction, and this is in sharp contrast to the earlier law (1959 Ordinance), because the expiry of period of tenancy was irrelevant, as the express provisions of Section 13 thereof, provided that no tenant shall be evicted except as per the provisions of the said Section (13 ibid) and the expiry of tenancy period was not one of the grounds stipulated therein. 10. Reverting to the proposition in hand, it seem expedient at this stage to reproduce Section 9 of the Act 2009, which reads as under:- “9. Effect of non-compliance.- If a tenancy does not conform to the provisions of this Act, the Rent Tribunal shall not entertain an application under this Act- Civil Appeal No. 679-L of 2012 -: 14 :- (a) on behalf of the tenant, unless he deposits a fine equivalent to five percent of the annual value of the rent of the premises in the Government treasury; and (b) on behalf of the landlord, unless he deposits a fine equivalent to ten percent of the annual value of the rent of the premises in the Government treasury.” Upon the unmistakable reading of the Section and especially when conjointly read with all other relevant provisions (referred to supra) it seems that all these are integrated provisions, having nexus to the very purpose of the Act as described above, and the palpable object of the law is to compel the parties to enter into a tenancy agreement within the purview and scope of the provisions of Sections 5, 6 and 7 of the Act, 2009 (read together). Therefore, a penalty has been provided by the law for the breach of the obligations, envisaged thereby, in that, where the tenancy agreement is not so entered and registered and a landlord or the tenant approach the Tribunal for the enforcement of his right(s) under the Act, 2009 he has to pay a fine. The definition (of fine) whereof is “a sum of money as a penalty by a Court of law” OR “a punishment to pay a sum of money for the breach of the law”. As it is a penalty and a punishment which has been imposed by the law itself, thus the Tribunal is left with no discretion to wave it off, exonerate or absolve a party coming before it, from such a fine. Anyhow for the present, the fundamental and critical moot points are:- (a) what is the point of time when such fine is to be imposed by the Rent Tribunal? (b) What is the effect if the fine is not deposited as imposed by the Rent Tribunal? (c) Whether the Rent Tribunal shall have no jurisdiction to receive the application at all, or it can so receive, but shall not proceed with the matter until that fine is paid? In my view the resolution of the last Civil Appeal No. 679-L of 2012 -: 15 :- proposition (proposition c) shall also make the answer to the first two propositions easier and clear; therefore I shall take upon this in priority. In this regard, the syntax of the expression “the Rent Tribunal shall not entertain an application under this Act” appearing in Section 9 ibid and specially the word Entertain is of immense significance. But as the word has not been defined under the Act 2009, therefore in order to comprehend the same, resort should be had to the dictionary meaning and the case law in which the word has been legally construed and elucidated. In Black’s Law Dictionary Eighth Edition entertain is defined to mean “To bear in mind or consider; esp., to give judicial consideration to <the court then entertained motions for continuance>. To amuse or please. To receive (a person) as a guest or provide hospitality to (a person). Parliamentary law. To recognize and state (a motion); to receive and take into consideration (emphasis supplied) <the chair will entertain the motion>”. Concise Oxford Dictionary Eleventh Edition, defines it as “Provide with amusement or enjoyment, show hospitality to. Give attention to or consideration to (emphasis supplied)”. In the Indian case law, the word has been construed, as in Nepram Kali Singh vs. Mutum Chana Singh and another (AIR 1955 Manipur 39):- “The word “entertain” means “to receive and take into consideration.” The rule thus clearly means that no Court would be competent to receive any plaint which is based on unregistered document after promulgation of the rules referred to above and so it becomes quite clear that jurisdiction to entertain suits on the basis of unregistered document was expressly taken away by these rules and in the present case there was no question of irregularity in the exercise of jurisdiction.” Civil Appeal No. 679-L of 2012 -: 16 :- In M/s Lakshmiratan Engineering Works Ltd. vs. Asst. Commissioner (Judicial) I, Sales Tax, Kanpur Range Kanpur and another (AIR 1968 Supreme Court 488), it enunciated:- “The word ‘entertain’ is explained by a Divisional Bench of the Allahabad High Court as denoting the point of time at which an application to set aside the sale is heard by the court. The expression ‘entertain’, it is stated does not mean the same thing as the filing of the application or admission of the application by the Court. A similar view was again taken in Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543 in which the learned Chief Justice Desai and Mr. Justice Dwivedi gave the same meaning to the expression ‘entertain’. It is observed by Dwivedi, J. that the word ‘entertain’ in its application bears the meaning ‘admitting to consideration’.” This view has been followed in Hindusthan Commercial Bank Ltd. vs. Punnu Sahu (dead) through legal representatives (AIR 1970 Supreme Court 1384):- “These decisions have interpreted the expression “entertain” as meaning ‘adjudicate upon’ or ‘proceed to consider on merits’. This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. v. Asst. Commr., Sales Tax, Kanpur, AIR 1968 SC 488. We are bound by that decision and as such we are unable to accept the contention of the appellant that Cl.(b) of the proviso did not apply to the present proceedings.” In our jurisdiction, in the case reported as Amjad Ali alias Amjadulla Talukdar and others vs. Asadulla and another (PLD 1952 Dacca 301) it has been held:- “In my view the word “entertain” as used in section 16 of the Act means “to receive and to take into consideration” and, therefore, it signifies initially the Civil Appeal No. 679-L of 2012 -: 17 :- duty of the Court, when proceedings is sought to be started before it.” In All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600), the apex court has construed the expression “entertain” as under:- “Thus with reference to these rules in the instant case, expression ‘entertain’ would be defined in its ordinary dictionary meanings i.e. ‘to receive’. This definition seems to be more appropriate because the learned Single Judge in Chamber has directed the office ‘to entertain the Constitution petition, register it and fix before the Bench’. Needless to observe that the Hon’ble Judges responsible to administer justice are fully aware about the relevant provisions of law on the subject and unless it is proved otherwise, it would be deemed that orders have been passed in accordance with law. Since Order XXV, Rule 7 of the Rules 1980 is mandatory in nature.” In Ch. Bashir Ahmad and 4 others vs. Province of Punjab through Collector, Sargodha and 4 others (1990 MLD 986), a Division Bench of the Lahore High Court while surveying the case law both from Indian and our jurisdiction held:- “16. It would be legitimate to accept the dictionary meaning of the word ‘entertain’ used by the Supreme Court of Pakistan in its judgment. Therefore, the expression ‘that no appeal can or should be entertained’ would signify that the appeal would not be given any judicial consideration by the Court.” In Pakistan Steel Peoples Workers’ Union vs. Registrar of Trade Unions, Karachi and 6 others (1992 PLC 715), it has been held:- “This contention is devoid of force as the expression “entertain” used in section 22 of the Ordinance means not merely filing of an application or initiation of proceedings but would mean ‘adjudicate upon’ or proceed to consider on merits. The word “entertain” does not mean the same thing as the filing of the Civil Appeal No. 679-L of 2012 -: 18 :- application or admission of the application by the Registrar of Trade Unions.” In Divisional Superintendent, P.W.R. Multan vs. Abdul Khaliq (1984 SCMR 1311), it has been held:- “The word “entertain” in legal parlance means ‘adjudicate upon’ or ‘proceed to consider on merits’. This can only be achieved if the application is not hit by limitation for that closes the door for entry into the field of any adjudication or decision on merits.” From the above definitions and the survey of case law (supra) it is quite clear that the ministerial staff of the Rent Tribunal or for that matter the Tribunal itself, shall not refuse to receive an application of the landlord/tenant, as the case may be, when brought before it, rather on the first date when the matter comes before the Tribunal for the purposes of proceeding with it, the Tribunal shall ascertain from the applicant (of the case) if a validly executed and registered tenancy agreement (as per the provisions of Act 2009) is there and its availability on the record. If that not being so, whether the applicant has deposited the amount of fine as envisaged by Section 9 ibid. If both these aspects are missing, the Rent Tribunal shall halt further proceeding in the matter (emphasis supplied). No notice shall be issued to the respondent of the case and the applicant shall first be required and directed first to deposit the fine by specifying the exact amount as assessed by the Tribunal on the basis of the assertion of the applicant with regard to the rate of rent, within a specified period of time to be mentioned in the order. If the amount is deposited by the applicant/petitioner of the case within such period or the time further extended by the Tribunal, the matter shall be proceeded with further, otherwise the application shall be dismissed. However such dismissal shall not operate as a bar in the Civil Appeal No. 679-L of 2012 -: 19 :- way of the applicant to initiate the case afresh after depositing the fine or having a tenancy agreement (executed and registered according to law). It may be emphatically held that no proceeding to determine the case on merit shall be conducted and continued by the Court, until and unless the fine is deposited by the applicant. This is the mandate of the law and the provision ibid (Section 9) is mandatory, which has to be given effect in letter and spirit, keeping in view the purpose and the object of the Act 2009. This, obviously is the interpretation and the effect of Section 9, when considered independent of Section 8 of the Act 2009, and shall apply to the future tenancies (emphasis supplied). 11. Now considering the effect of Section 9 with regard and reference to the existing tenancies in the context of Section 8, it may be mentioned that Ordinance, 2007/Act, 2009 have come into force on 16th November, 2007 and 17th November, 2009 respectively (see section 1(3) – it shall come into force at once). From the language of Section 8 (of these laws), it is clear that both the landlord/tenant are statutorily duty bound to bring the existing tenancies in conformity with the provisions of the said laws, the expression “An existing landlord and tenant shall” appearing in the section, leave no room for any other interpretation in this behalf. Furthermore, the expression of the section “as soon as possible” postulates that the needful should be done quickly, promptly and before long, therefore, for all intents and purposes, the date of the enforcement (coming into force) of these laws is the statutory starting point of time, for bringing the existing tenancy in conformity with the Act, 2009; while in view of the expression “not later than two years” the law has prescribed the cutoff date for the purposes of doing the needful. However the question shall be; whether the applicant(s)/petitioner(s) having existing tenancy who shall approach the Rent Tribunal for the Civil Appeal No. 679-L of 2012 -: 20 :- enforcement of his rights under the provisions of the Act, 2009, is exempted from the fine for a period of two years; a moratorium of two years has been provided to him and/or the section shall remain dormant, inapplicable and inactive in such case (existing tenancy cases) for two years period and the landlord/tenant may approach the Rent Tribunal for the purposes of availing his rights and remedies under the Act 2009, but without paying the Fine? In order to resolve this proposition(s) we again have to revert to the object and spirit of the Act, 2009 as elucidated above (Ordinance, 2007 as well) and also keep in view the various provisions of the Act, 2009, to which reference has earlier been made, specifically Sections 12, 13 and 15. Because under these provisions immediately on the coming into force of the laws, certain rights and obligations of the landlord and the tenant are conferred upon and created, including the entitlement (right) of landlord to seek the eviction of the tenant (see Section 15) on the grounds, out of which some grounds are foundationally dependent on the tenancy agreement, such as for example (a) the period of tenancy has expired (b) the tenant has committed breach of a term or condition of tenancy agreement; thus as upon the enforcement of the Act, 2009 and according to Section 35 of the said Act, vide which only pending proceedings were/are saved to be adjudged under the Ordinance, 1959, whereas all the future disputes inter se the tenant and the landlord from the commencing day of the Act are to be determined as per the provisions of the Act, 2009, as according to Section 12, if the landlord fails to or neglects to fulfill his obligation mentioned in the section, the tenant has the right to approach the Rent Tribunal for the redressal of his grievance and the Tribunal has the power to pass orders in terms of Section 12(4). Likewise, if the tenant in terms of Section 13 does not Civil Appeal No. 679-L of 2012 -: 21 :- fulfill and abide by his obligations, the landlord can take recourse to his legal remedy by approaching the Tribunal. Above all, as mentioned earlier the landlord can seek the eviction of the tenant on the ground enumerated in Section 15, and it is conspicuously noted that unlike Section 13 of the Ordinance, 1959, the personal requirement, reconstruction etc. are not now one of the grounds, available to the landlord for seeking eviction of the tenant. From the above it is vivid and undoubtedly clear that on the enforcement of the Act, 2009 all the rights and remedies shall be available to the tenant or the landlord as the case may be, and it shall be ludicrous to conceive and interpret although he can avail the remedies and enforce such rights and duties, but shall not be obliged to pay the fine in terms of Section 9 ibid because two years time is available to him. In my view Sections 9 and 8, when both are read together alongwith the provisions of Act, 2009 and the object and spirit of the said enactment, leads to no other reasonable construction of the two sections (while in interaction), that the landlord/tenant can bring the existing tenancies inconformity with the Act within two years period and in this regard Section 8 should be construed independent and insulated from Section 9 and applied only in time with the sole object of bringing the tenancy in line with the provisions of the said Act. But where the applicant/petitioner (landlord/tenant) want to avail the remedy of that law (Act 2009), and exercise his right to enforce the duties of the opposite side, he shall be obliged to pay the fine as mentioned in Section 9 ibid as in the case of future tenancies; notwithstanding it is an existing tenancy or otherwise. In this behalf no exemption or moratorium etc. on the basis of two years period mentioned in Section 8 shall be available to him. And if the fine is not paid by the petitioner/applicant the fallout and Civil Appeal No. 679-L of 2012 -: 22 :- the consequences of failure of the non-compliance as envisaged by Section 9 for the future tenancy cases, as has been prescribed above, shall be duly attracted to such petition(s)/application(s) as well. 12. The question which may however arise is; what should be the fate of those petition(s)/application(s), in relation to existing tenancies, which have been entertained by the Rent Tribunal(s) under the impression that for two years period the provisions of Section 9 are not attracted, because of Section 8 ibid. And the matters are either pending before the Rent Tribunal where some (considerable) proceedings having already taken place, or the Rent Tribunal has finally decided the matter before it by overruling the objection of the respondent in the context of Section 9 and the further challenge thereto is pending in appeal or before the High Court in its constitutional jurisdiction, or even before this Court. In my opinion all such Courts seized of the matter shall halt the proceedings and should direct the original petitioner/applicant of the case to first pay the fine as mandated by Section 9, by determining the exact amount payable and by fixing the period in which the needful should be done; and if the amount of fine is paid, the case/matter shall be proceeded and decided on merits, if however, the order is not complied and the needful is not done the original petition/application, of the landlord or the tenant as the case may be, shall be dismissed; with all the consequences to follow which have been highlighted above, while considering the effect of non- compliance of the order passed by the Rent Tribunal where a direction is issued for the deposit of the fine. It may be pertinent to mention here, that where the order passed on the original side (petition/application) has attained finality and the execution proceedings are pending, the executing forum shall stop Civil Appeal No. 679-L of 2012 -: 23 :- further proceedings in the matter and shall first direct the execution petitioner to pay the fine in the mode and the manner provided above (note: by determining the amount and fixing the time) and till the time such fine is deposited/paid, the execution proceedings shall remain stayed. However, where the order is already executed, the rule of past and closed transaction shall be attracted and no order shall be annulled on the basis the fine envisaged by Section 9 ibid has not been paid. 13. Before parting it may however be observed that on account of the various provisions of the Act mentioned above, as it is the primary obligation of the landlord to create the tenancy through a valid tenancy agreement inconformity with the Act, 2009, it is for this reason that a failure on his part entails double the amount i.e. ten percent of the fine as compared to five percent by the tenant. Anyhow, as in the present case the fine already stands paid by the respondent at the appellate stage, therefore, Section 9 supra shall in view of the reasoning given in this discourse shall not render the judgments of the forums below invalid on this account. 14. In the light of the above, this appeal has no merits which is hereby dismissed. JUDGE JUDGE JUDGE Announced in open Court on 21.6.2013 at Lahore APPROVED FOR REPORTING Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO. 585 OF 2018 (On appeal against the judgment dated 23.09.2016 passed by the High Court of Sindh, Karachi in C.P. No. D-2353/2014) Pakistan Airline Pilots Association and others … Appellants VERSUS Pakistan International Airline and another … Respondents For the Appellants: Barrister Umaima Anwar Khan, Advocate (With Court’ permission) For the Respondents: Mr. Muhammad Ilyas Siddiqui, ASC Date of Hearing: 13.12.2018 JUDGMENT FAISAL ARAB, J.- The appellant No. 1 is Pakistan Airlines Pilots Association and the remaining appellants are retired pilot officers who served Pakistan International Airline Corporation “PIAC”. They are aggrieved with the current method of calculation of pension. Their case is that the pension be calculated in accordance with the formula articulated in the Trust Deed known as the “PIA PALPA FENA Pension Fund”. The said trust was created on 12.02.1980 for the benefit of its eligible pilots and flight engineers only. On 15.08.1981 a Martial Law Regulation No. 52 was passed which stated that “Any existing agreement entered into between the corporation and any employee of the corporation or any class, union, association or organization of such employee stood terminated and were held not to form basis for a fresh agreement on the resumption of activities of PIAC”. Thus the Trust stood rescinded. Thereafter new CIVIL APPEAL NO. 585 OF 2018 2 service rules were introduced by respondent No.1 which included a pension scheme on 07.09.1982 whereby the “PIAC, PALPA and FENA Pension Fund” was converted to “PIAC Cockpit Crew Pension Fund”, the same was later replaced by PIAC Pension Fund Rules. Then a supplemental trust deed was signed called the “PFF Rules” dated 04.09.1988 by which a method of calculation of pension was provided under Rule 9. Later various Admin Orders were issued from time to time regulating pension, last of which being Admin Order No.8 of 2004. 2. To seek the calculation of pensionary benefits on the basis of Trust Deed dated 12.02.1980, which had ceased to exist way back in 1981, the appellants filed constitution petition in 2014 in the High Court of Sindh, which was dismissed vide impugned judgment on the ground that it was not maintainable as the relationship of parties is governed by the principle of “master and servant”. Hence, this appeal with the leave of this Court. 3. Learned counsel on behalf of the appellants argued that the Trust Deed of 1980 sets out the proper calculation method of pension and such formula cannot be altered by respondent No. 1 as the trust had specifically established parameters regarding the trustees autonomy and dispenses PIAC from its interest in the trust as they have no authority under the deed except for the fact that they have to make contributions to the fund; that the trust is a separate entity and through Martial Law Regulation, it cannot be terminated; that the Admin Order No. 34/2003 which froze the salary for the purposes of calculating pension was passed without notice which has caused detriment to the Cockpit Crew who retired after 01.01.2003. CIVIL APPEAL NO. 585 OF 2018 3 4. Learned counsel of the respondents argued that the Martial Law Regulation No. 52 when passed in 1981 had the effect of rescinding the Trust Deed created in 1980 hence it had become defunct and thus unenforceable; that the pension of the Cockpit Crew is now being governed by the Admin Order No. 08 of 2004 to which the appellants have already acquiesced and now belatedly are raising a controversy which has no merits and even otherwise its determination is beyond the scope of writ jurisdiction. 5. We have heard the counsel for the parties. After MLR-52 rescinded the Trust Deed of 1980 in 1981, pension benefits were being calculated first under pension scheme of 1982 then under PFF Rules of 1988 which were followed by Admin Order 34 of 2003 and finally under Admin Order No. 08 of 2004. The appellants who retired on 2008, 2009 and 2014 are now seeking calculation of retirement benefits on the basis of Trust Deed of 1980 that as stated earlier stood rescinded in 1981. In Admin Order No. 34/2003 it is no doubt stated that pension, commutation and gratuity shall be calculated on the basis of the salary frozen on 31.12.2002 without taking into consideration future annual increments thereby resulting in the salary component to become stagnant as its effect was that no matter how much the salary increased after 31.12.2002 the pension was to be calculated on the salary drawn on 31.12.2002 but the anomaly so created was reversed by the respondent No.1 through Circular No. 21/2003 issued on 31.07.2003 which provided that future revision in pension shall be linked with last drawn salary. So the grievance that pension was not being calculated on last drawn salary also stood redressed in 2003. Thus it is clear that the appellants/pilots shall be CIVIL APPEAL NO. 585 OF 2018 4 entitled to the pension on the basis of the last drawn salary which they were getting at the time of their retirement. It is only in 2014 that the pensioners are seeking calculation of pensionary benefits on the basis of the Trust Deed of 1980 that stood revoked way back in 1981 under MLR-52 and replaced by other pension schemes hence the constitution petition also suffered from laches. 6. We may also state that where conditions of service of employees are not regulated by a statutory provision then such employees are to be governed by the principle of “Master and Servant”. As the terms and conditions of employment in PIAC are admittedly not governed by any statutory provision and the employees are amenable to the Rule of “Master and Servant”, Article 199 of the Constitution of Pakistan 1973 cannot be invoked. Reliance is placed on PIA Corporation VS Syed Suleman Alam Rizvi (1996 SCMR 1185), Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676) and Abdul Wahab and others v. HBL and others (2013 SCMR 1383). In view of what has been discussed above, we find no legal justification to interfere in the impugned judgment. This appeal is, therefore, dismissed. CHIEF JUSTICE JUDGE JUDGE Approved For Reporting Announced on 16.01.2019 at Islamabad. Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO. 587 OF 2017 AND CMA. NO. 3198 OF 2017. (On appeal against the judgment dt. 14.03.2017 passed by the High Court of Balochistan, Turbat Bench at Quetta in CP. No. (T)94/2016). Rafiq Ahmed and others Appellant(s) VERSUS Govt. of Balochistan thr. its Chief Secretary, Quetta and another. Respondent(s) For the Appellant(s) : Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR. (in CA 587/17) For the Respondent(s) : Mr. AmanullahKanrani, AG Balochistan Mr. Ayaz Khan Swati, Addl. AG Balochistan Date of Hearing : 26.05.2017 (Judgment Reserved) J U D G M E N T EJAZ AFZAL KHAN, J.-These appeals with the leave of the Court have arisen out of the judgement dated 14.03.2017 of a Division Bench of the High Court of Balochistan whereby it dismissed the petitions by the appellants as being not maintainable. 2. The learned Sr. ASC appearing on behalf of the appellants contended that when the appellants after having been appointed on deputation in Gwadar Development Authority (GDA) were absorbed, they ceased to be civil servants, therefore, the High Court was competent to entertain, hear and decide their petitions. The learned Sr. ASC next contended that the judgements rendered in the cases of Contempt Proceedings Against Chief Secretary Sindh CIVIL APPEAL NO. 587 OF 2017. 2 and Others (2013 SCMR 1752) and Ali Azhar Khan Baloch. Vs. Province of Sindh (2015 SCMR 456) were distinguishable on legal and factual plane, therefore, the Division Bench of the High Court could not dismiss such petitions as being not maintainable. 3. The learned Advocate General appearing on behalf of the respondent did not dispute the arguments addressed at the bar by the learned Sr. ASC for the appellants and thus suggested that the cases be sent back to the High Court for decision on merits. 4. Raja Muhammad Ibrahim Satti, learned Sr.ASC appearing on behalf of the applicant asking for being impleaded as a party contended that where the appellants were appointed on deputation and then absorbed without having recourse to transparent process, they would not cease to be civil servants, therefore, their petitions were rightly dismissed as their remedy, in view of the verdict, rendered in the case of Muzaffar Hussain Vs. Federation of Pakistan (Crl. O. P. No. 31 of 2016) would lie through a review petition and not through a petition under Article 199 of the Constitution or an appeal to an Administrative Tribunal functioning under Article 212 of the Constitution. Such disputes, the learned ASC added, could better be resolved by this Court, therefore, the impugned judgment being in line with the judgment of this Court is not open to any exception. 5. We have gone through the record carefully and considered the submissions of the learned Sr. ASCs for the appellants, applicant as well as the learned Advocate General appearing on behalf of the respondent. 6. The record reveals that the appellants were appointed on the recommendations of the Balochistan Public Service CIVIL APPEAL NO. 587 OF 2017. 3 Commission vide notification dated 21.10.2002. They served their respective departments till their appointment in the Gwadar Development Authority. The only question requiring consideration is whether the appellants were appointed in Gwadar Development Authority on deputation and then by absorption in accordance with law. We, therefore, have to see what is the method of appointment against the vacancies the appellants were appointed against. Reference to paragraph 4.6 of The Gwadar Development Authority Employees (Service) Regulation 2006 would help us answer the question which is reproduced as under: “4.6 Initial appointment to posts in basic pay scale 17 and above. 1) Initial appointment to the posts in basic pay scale 20 shall be made by the appointing authority on the recommendation of the Selection Board. The Selection Board shall consider and recommend from amongst the panel of which appeared in the interview. 2) Initial appointment to the posts in the basic pay scale 18 and 19 shall be made by the appointing authority on the recommendations of the Departmental Selection Committee – I. The Departmental Selection Committee shall, as far as possible, recommend from a panel of 3 names for each vacancy. 3) Initial appointment to posts in basic pay scale 11 to 17 shall be made by the appointing authority on the recommendations of the Departmental Selection Committee- II. The Departmental Selection Committee shall, as far as possible, recommend from a panel of at least 3 names for each vacancy. 4) Initial appointment to posts in basic pay scale 10 and below shall be made by the appointing authority on the recommendations of the Departmental Selection Committee-III. The Departmental Selection Committee shall, as far as possible, recommend from a panel of 3 names for each vacancy.” How observance of merit has been guaranteed is evident from paragraph 4.12, which also deserves a look and thus runs as under: “4.12 Observance of merit and regional quotas. (1) Vacancies in all posts carrying basic pay scale 5 and below will preferably be filled in from amongst the residents of Gwadar District. (2) In all other posts except as mentioned in sub- regulation (1) vacancies will be filled from all CIVIL APPEAL NO. 587 OF 2017. 4 Balochistan basis in accordance with the merit and regional quotas prescribed by the Government of Balochistan for civil posts from time to time Provided that where in the case of a professional or technical post the quota cannot be observed previous sanction of the Governing Body shall be obtained before making appointment to such a post. (3) Posts in each basic pay scale shall be considered separately for the purposes of allocation to the prescribed merit and regional quotas. (4) The merit and regional quotas in respect of the vacancies to be filled on the basis of the same advertisement should be worked out up to three decimal points. A vacancy or vacancies which cannot be filled by candidates belonging to the region to which the vacancy is allocated shall be filled by another suitable candidate not belonging to that region with the approval of Governing Body. (5) The domicile/ local of an employee as declared by him at the time of his first entry in the service of the Authority and accepted by the Authority shall be treated as final throughout his service career and no subsequent change shall be recognized for the purposes of terms and conditions of his service.” How appointments by deputation are made has been fully described in paragraphs 4.24 and 4.25 which read as under: “4.24 Procedure. Appointment by deputation to post may be made in the interest of the authority. “4.25 Conditions of deputation. (1) The appointing authority may in the interest of authority appoint a Federal or provincial Government servant or an employee of an organization set up, managed or controlled by these Governments, who hold appointment on regular basis, on deputation to equivalent posts or higher as decided by the appointing authority. Such appointment shall be made with the consent of the Federal Government, Provincial Government or organization concerned, hereinafter called the lending authority, for such period and on such terms and condition as may be determined by the appointing authority in consultation with the lending authority. (2) Unless in any case it is otherwise provided the whole time of the person on deputation shall be at the disposal of the Authority. He shall devote his whole time to his duties, abide by the rules and regulations and other orders and instructions of the Authority and at all times obey the orders given by the competent authority. CIVIL APPEAL NO. 587 OF 2017. 5 (3) A person on deputation to the Authority may be allowed, with the approval of appointing authority and with the consent of the lending authority, a deputation allowance as applicable to the employees of Govt. of Balochistan as per revise pay and scale and allowance of 2005.” The paragraphs of the Regulations reproduced above enumerate the methods of appointment by initial recruitment, promotion and deputation. To trump it all, they also guarantee observance of merit and regional quota. Appointment by deputation from the Federal or Provincial Government has been provided by paragraph 4.25 but appointment by absorption figures nowhere in the Regulations. Appointment by transfer has been provided by paragraphs 4.22 and 4.23 of the Regulations but that cannot be stretched to Civil Servants of the Federal or Provincial Government. Having completed their normal and even extended tenure of deputation, the appellants were to go back to their parent department. Absorption of the appellants in the Gwadar Development Authority being against the law and rules was to be set at naught. The notification repatriating the appellants to their parent departments is therefore unexceptional. 7. For the reasons discussed above, we having treated this appeal as a review petition and heard it as such, dismiss it. JUDGE JUDGE JUDGE Announced in open Court at Islamabad on 25.09.2017. JUDGE ‘Not Approved for Reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. (On appeal against the judgment dt. 14.03.2017 passed by the High Court of Balochistan Quetta in CPs. No. 1163 and 1172 of 2016). Aziz ul Allah and others Muhammad Akber Khan and others Muhammad Qasim Mengal Nazar Muhammad and another Appellant(s) VERSUS Govt. of Balochistan thr. its Chief Secretary, Quetta and another. Respondent(s) For the Appellant(s) : Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR. (in CA 588/17) Khawaja Haris Ahmed, Sr. ASC Mr. Mehr Khan Malik, AOR. (in CA 589/17) Mr. Qasim Mengal, In person (in CA 590/17) Malik M. Qayyum, Sr. ASC Ch. Akhtar Ali, AOR (in CA 710/17) For the Respondent(s) : Mr. Amanullah Kanrani, AG Balochistan Mr. Ayaz Khan Swati, Addl. AG Balochistan Raja Ibrahim Satti, Sr. ASC (Rs 3-7 in CA 588 & Rs 2-6 in 589/17) Syed Ali Zafar, ASC Mr. Zahid Nawaz Cheema, ASC (Rs 32-37 in CA 590/17) Ms. Asma Jehangir, Sr. ASC (Rs 2-6 in CA 710/17) In CMAs : Raja Ibrahim Satti, Sr. ASC (CMA 3198/17) Date of Hearing : 26.05.2017 (Judgement Reserved) …………………………. CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 2 J U D G M E N T EJAZ AFZAL KHAN, J.- These appeals with the leave of the Court have arisen out of the judgment dated 14.03.2017 of the High Court of Balochistan, Quetta whereby it dismissed the Constitution Petitions filed by the appellants as being not maintainable. 2. Brief facts of the case are that appellants were appointed as Assistant Executive Officers on qualifying the examination held under the aegis of Balochistan Public Service Commission vide notification dated 22.10.2002. They worked as such till 2008. They were then absorbed in Balochistan Civil Service Executive Branch vide notification dated 03.04.2008. They continued as such till the time they were directed to report to S&GAD Balochistan for further orders vide notification dated 15.12.2016. They challenged the aforesaid notification in the High Court but it was dismissed as being non-maintainable as mentioned above. Points raised and noted at the time of grant of leave read as under :- “After hearing the learned counsel for the petitioners, leave is granted inter alia to consider whether the constitution petitions filed by the petitioners before the learned High Court were incompetent for the reason that since they were civil servants and sought enforcement of the terms and conditions of their service, the learned High Court’s jurisdiction was barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973; whether the jurisdiction to attend to and resolve the grievance agitated by the petitioners before the learned High Court was only vested with this Court in light of the law laid down in the judgment reported as Contempt Proceedings Against Chief Secretary, Sindh and others (2013 SCMR 1752); and whether the dismissal of the petitioners’ writ petitions on the ground of maintainability in view of the reasons assigned therein was apt and appropriate. The petitioners are directed to implead the interveners who had moved an application(s) before the learned High Court as respondents in the matter and notice be issued to them.” 3. Learned ASCs appearing on behalf of the appellants contended that case of the appellants is not hit by the case reported as Contempt proceedings against the Chief Secretary Sindh CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 3 and others, Ali Azhar Khan Baloch. Vs. Province of Sindh and Muzaffar Hussain Vs. Federation of Pakistan (supra), therefore, their petitions before the Balochistan High Court could not have been dismissed as being not maintainable. The learned ASC next contended that even if it is assumed that the writ petitions filed by the appellants being related to the terms and conditions of service were not maintainable before the High Court, they could have been remitted to the Service Tribunal for decision in accordance with law. Merger of AEOs in Balochistan Civil Service and Balochistan Secretariat Service, the learned Sr. ASC added, as notified by the S&GAD vide notification dated 03.04.2008 on the recommendations of the Provincial Selection Board and approval of the competent authority was perfectly in accordance with law, therefore, it could not be reversed on the basis of the judgments rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others, Ali Azhar Khan Baloch. Vs. Province of Sindh and Muzaffar Hussain Vs. Federation of Pakistan (supra), when appeals of the respondents raising similar issues were pending before this Court. Absorption of the appellants, the learned Sr. ASC went on the argue could not be held illegal on any account when they possessed the requisite qualification and were appointed as AEOs on qualifying examination held under the aegis of the Public Service Commission. No distinction, the learned Sr. ASC added, could be drawn between the Assistant Executive Officers (AEOs) and the Balochistan Civil Service Officers and Balochistan Secretariat Service Officers when their qualifications, syllabus of the examination, pattern of papers and the process of selection under the Public Service Commission are alike and even identical. Another imperative, the learned Sr. ASC CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 4 maintained, necessitating the absorption of the appellants in the Balochistan Civil Service and Balochistan Secretariat Service was that they had no channel of upward progression beyond BPS-18. The learned ASC next contended that when in Civil Review Petitions Nos. 90, 452, 285, 286, 287, 288 and 289 of 2016 in Civil Appeal No.184-L of 2013 a five members Bench of this Court permitted the petitioners in the said petitions to raise their grievances before the competent fora, the appellants too cannot be deprived of their such right, therefore, the appeals filed by the appellants be sent back to the Service Tribunal for decision in accordance with law. 4. The learned A. G. Balochistan appearing for the Government of Balochistan did not seriously oppose any of the contentions of the learned Sr. ASCs appearing on behalf of the appellants. The learned ASCs appearing on behalf of the respondents contended that it has been settled in the cases of Contempt proceedings against the Chief Secretary Sindh and others, Ali Azhar Khan Baloch. Vs. Province of Sindh and Muzaffar Hussain Vs. Federation of Pakistan (supra) that a civil servant of a non-cadre post cannot be absorbed against a cadre post when the latter is to be filled, under the rules, through a competitive process. The learned ASC next contended that absorption of the appellants in the BCS or BSS cannot be protected under Section 11-A of the Balochistan Civil Servants Act when they were not rendered surplus as a result of reorganization, abolition of a department, Office or abolition of a post in pursuance of any government decision. The learned ASC next contended that the summary approving absorption of the appellants was not only a deviation from the law but also beyond the power and competence of the caretaker Chief Minister. Such CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 5 deviation, the learned ASC added, is also hit by the dicta of this Court rendered in the cases of Khawaja Asif. Vs. Federation of Pakistan (PLD 2014 SC 206) and Syed Mahmood Akhtar Naqvi and others. Vs. Federation of Pakistan and others (PLD 2013 SC 195). Hell of a difference, the learned ASC added, lies between the qualifications, syllabus of the examination, pattern of papers and the process of selection of Assistant Executive Officers and those of BCS and BSS Officers under the Public Service Commission, therefore, the absorption of the former in the latter cannot be justified on any account. Change of cadre, the learned ASC argued, without a change in law was inconceivable, therefore, the set up so structured cannot sustain itself. Absence of a space for upward progression, the learned ASC maintained, also appears to be a lame excuse when posts of Executive Officers and Director Finance and Accounts and those of Executive Officers and Directors Planning and Economics in BS-18 and BS-19 were created pursuant to the amendments in AEO Rules. The learned ASC by concluding his arguments submitted that where the appellants failed to point out any error much less patent in the judgments rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others, Ali Azhar Khan Baloch. Vs. Province of Sindh and Muzaffar Hussain Vs. Federation of Pakistan (supra), their appeals, even if they are treated as review petitions, are liable to be dismissed. 5. We have carefully gone through the record and considered the submissions of the learned Sr. ASC and ASCs for the parties as well as the learned A. G. Balochistan. 6. Before we deal with the questions urged by the learned ASC for the parties and the learned Advocate General and the CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 6 learned Additional Advocate General for Government of Balochistan it is worthwhile to see what is the method of recruitment of the officers in Civil Service (Executive Branch). Rules 5, 6 and 7 of the Balochistan Civil Service (Executive Branch) Rules, 1984 furnish answer to the question which read as under:- “5. Method of Recruitment. (1) Recruitment to the Service shall be made in the following manner :- a) by initial recruitment on the recommendations of the Commission based on the result of a competitive examination conducted by it in accordance with Appendix ‘A’ to these rules; or b) by promotion. 2) Fifty percent of the vacancies in the Service shall be filled by initial recruitment and the rest by promotion. 3) Vacancies to be filled by promotion shall be filled as follows:- a) 87 ½ percent of such vacancies shall be filled from among members of the Balochistan Tehsildari Service whose names appear in the Select List ‘A’ to be maintained in accordance with the provisions of clause (a) of sub-rule (4). b) The remaining 12 ½ percent of such vacancies shall be filled from among persons whose names appear in Select List ‘B’ to be maintained in accordance with clause (b) of sub-rule(4) of this rule. 4) Government shall maintain --- a) a Select List ‘A’ in form I annexed to these rules, which shall be prepared in consultation with the Board of Revenue, of the Tehsildars who are considered fit for promotion to the Service; b) a Select List ‘B’ in form 2 appended to these rules of persons who hold substantive posts of Superintendents, Personal Assistants, Stenographers, working in the Balochistan Secretariat, attached departments, Commissioners Office and Subordinate Offices and who are considered fit for promotion to the Service. 5) Selection of Officers for being brought on the Select Lists referred to in sub-rule 4 shall be strictly on merit with particular reference to fitness for higher responsibilities. 6) No entry shall be made in the Select List to be maintained under the provisions of sub-rule(4) of this rule nor shall an entry appearing in the Lists be removed or the order in which the names appear in the Select List without the previous approval of the Commission. CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 7 7) In making an appointment from among the persons whose names appear in the Select List to be maintained under the provisions of sub-rule (4), the order in which the names appear in the Select List, as far as may be followed. 8) Promotion against the departmental quota shall made first and the vacancies meant for initial recruitment shall be filled later; provided that under no circumstances the quota fixed for initial requirement shall be filled in by promotion. 6. Age. – (1) No person shall be appointed to the Service by initial recruitment who is less than twenty one years or more than twenty five years of age; 2) For the purpose of this rule, age shall be reckoned. a) where recruitment is to be made on the basis of a written examination on the 1st January of the year in which the examination is held; and b) in other cases, on the last date fixed for submission of applications for appointment; Provided that --- i) Upper age limit for appointment to the Service by initial recruitment shall be relaxable for three years upto 31.12.1984 according to Government of Balochistan Services & General Admn Department Notification No. S-III- 27(127)/S&GAD-74, dated 8.12.1979. ii) in the case of persons serving in connection with the affairs of the Federation, who are domicile in Balochistan and persons serving in connection with the affairs of the Province of Balochistan with at least four years service as such, the upper age limit shall be thirty five years. 7. Qualification --- (1) No person shall be appointed to the Service by initial recruitment unless he is a graduate from a recognized University. 2) No person not already in Government service, shall be appointed to the Service unless he produces a certificate from the principal academic officer of the academic institution last attended, and also certificate of character from two other responsible persons, not being his relatives, who are well acquainted with his character and antecedents. 3) No person shall be appointed by initial recruitment to the Service unless he is declared to be physically fit by a Government Medical Officer not below the rank of a District Health Officer.” 7. What is the method of recruitment of Sections Officers in Balochistan Secretariat Service Rules, 1982. Rule 5 is relevant in this behalf which reads as under :- CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 8 5. Method of Recruitment. – Recruitment to the service shall be made as follows :- a) Fifty percent of the vacancies shall be filled by initial recruitment based on the result of a competitive examination held by the Commission, in the prescribed subjects. b) The remaining fifty percent of the vacancies shall be filled by promotion in the following manner – i) Five-seventh of the vacancies by selection on merit with due regard to seniority from among the members of the Provincial Secretariat (Ministerial Service) holding the posts of Superintendents or, if no such Superintendents are considered suitable for appointment to the Service, then amongst the members of the Provincial Secretariat (Ministerial Service) holding the posts of Assistants with at least twelve years service as such; and ii) Two-seventh of the vacancies by selection on merit with due regard to seniority from among the Private Secretaries of the Balochistan Secretariat or if no such Private Secretaries are considered suitable for appointment to the Service, then from amongst the Senior Scale Stenographers of the Balochistan Secretariat with at least twelve years service as such.” 8. The Balochistan Secretariat (Section Officers) Service Rules, 1982 were repealed by the Balochistan Secretariat (Grade 16 and above) Service Rules, 2002. The method of initial recruitment according to the Rules of 2002 has been provided by Rule 5 which reads as under:- “5. Method of Recruitment: Appointment to the post in Service shall be made as specified in the Appendix.” The appendix of the said rules gives the details which read as under:- APPENDIX (See Rules 3(3), 5 and 7(1)). S. N o. Nomenclature of Post Minimum Qualificatio n for initial recruitment Method of Recruitment. 1. Administrative Secretary B-21 or BPS-21 post - By selection on merit from a panel of officers (B-20) of the Balochistan Secretariat Service who possess 22 years service in B-17 and above and have successfully completed regular course at Pakistan Administrative Staff College/National Defence College. CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 9 2. Administrative Secretary B-20 or BPS-20 post By selection on merit from amongst four officers (B-19) of the Balochistan Secretariat Service who possess 17 years service in B-17 and above and have successfully completed regular course at NIPA. 3. Additional Secretary B-19 or BPS-19 post. By selection on merit from amongst three officers (B-18) of the Balochistan Secretariat Service who possess 12 years service in B-17 and above. 4. Deputy Secretary B-18 or BPS-18 post. a) 40% post of the total shall be filled by promotion from amongst members of the Balochistan Secretariat Service (Under Secretary/Section Officer) who possesses five years service as such. b) 40% post of Deputy Secretaries in the Balochistan Secretariat shall be reserved for members of the APUG and BCS (EB). c) 20% posts of the total shall be filled in by transfers of suitable officers from attached departments of government. 5. Section Officer B- 17 or BPS-17 post. Graduate from a recognized University. a) 87% posts of Section Officers shall be reserved for members of the Balochistan Secretariat Service in the ratio of 50% by initial recruitment and 50% by promotion from amongst Superintendents and Private Secretaries of the Balochistan Secretariat Service in the following manner:- i) 70% from amongst Superintendents of Balochistan Secretariat Service or, if no such Superintendents are considered suitable for appointment to the service then from amongst Assistants of Balochistan Secretariat Service with at least 15 years service as such, and ii) 30% from amongst the Private Secretaries of Balochistan Secretariat Service or, if no such Private Secretaries are considered suitable for appointment to the service, then from amongst senior scale Stenographers/personal Assistants of Balochistan Secretariat Service with at least 15 years service as such. b) 13% post of Section Officer shall be reserved for BCS/EB and by transfer from amongst officers of the attached departments of Government in the ratio of 70% and 30% respectively. 6. Superintendent B- 16 or BPS-16 post. By promotion from amongst Assistants of the Balochistan Secretariat Service having five years experience as such. 7. Private Secretary B-16 or BPS-16 post. By promotion from amongst Senior Scale Stenographers/Personal Assistant B-15 of the Balochistan Secretariat Service having five years experience as such. What is the method of initial recruitment of Assistant Executive Officers (Finance and Accounts) Balochistan has been provided by Rule 5 of the Balochistan Finance and Accounts Group Service Rules, 2001 and the appendix added thereto which read as under :- “5. Method of Recruitment. Appointment to the service shall be made by initial recruitment as specified in the Appendix based on the CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 10 recommendations of the Commission based on the result of a competitive Examination conducted by its in accordance with the syllabus prescribed for BCS/BSS. S. No. Name of Post and Grade Minimum qualification prescribed for appointment by initial recruitment Method of recruitment 1. Assistant Executive Officer (Finance & Accounts) (B- 17) Graduate from recognized University By initial recruitment. Sd/- (Asmatullah Kakar) Deputy Secretary (Reg:) S&GAD. 2. Executive Officer (Finance and Accounts) (B-18). - By promotion from amongst the Assistant Executive Officer (Finance and Accounts) B-17 on seniority-cum-fitness with five years service as such provided he has cleared the departmental examination. 3. Director (Finance and Accounts) B-19 - By promotion from amongst holder of the post of Executive Officer (Finance and Accounts) on seniority-cum-fitness with at least seven years service as such. By Order of Chief Secretary Government of Balochistan” 9. Perusal of the rules reproduced above and the appendix added thereto shows how the officers in the Balochistan Civil Service Executive Branch and Balochistan Secretariat (Section Officers) Service are appointed, how long they stay on probation, how are they promoted, what are the conditions therefor, what is the percentage of the vacancies to be filled by initial recruitment or by promotion from amongst the members of the service holding posts in lower scales and what are the requisites therefor. Any other mode of appointment is alien to the rules and so is absorbtion of a civil servant of a non-cadre post against a cadre post. This aspect was highlighted by the Chief Secretary of the Province in the summary proposing the absorption of Assistant Executive Officers of Finance and Account and Planning and Economics groups. But the caretaker CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 11 Chief Minister without realizing that he had no power and competence under the Balochistan Civil Servants Act 1974 and the rules made thereunder proceeded to approve the summary absorbing the Assistant Executive Officers of both the groups in Balochistan Civil Service (Executive Group) and Balochistan Secretariat (Section Officers) Services. Such absorption is sought to be protected by invoking section 11A of the Balochistan Civil Servants Act but the application of this provision could only be invoked where a civil servant is rendered surplus as a result of reorganization or abolition of a department, office or a post in pursuance of any decision of the government. In this case the rules regulating appointment by initial recruitment, promotion and transfer in the Balochistan Civil Service (Executive Branch) and the Balochistan Secretariat (Section Officers) Service are still intact as no amendment has been made to squeeze in any intruder, therefore, individual or en-bloc absorption from any other group of service, being essentially against law, cannot be upheld. In the case of Contempt proceedings against the Chief Secretary Sindh and others (2013 SCMR 1752) this Court, while deciding a similar issue, held as under: “126. From the above discussion, the aforesaid legislative instruments on the issue of absorption are liable to be struck down being violative of Constitutional provisions referred to hereinabove, therefore, we hold as under:-- (i) That the Sindh Government can only appoint a person by absorption by resorting to Rule 9A of the Rules of 1974. (ii) Sindh Government cannot order absorption of an employee who is a non-civil servant, however, an employee of an autonomous body can be absorbed in Sindh Government subject to conditions laid down under Rule 9-A of the Rules of 1974. (iii) Sindh Government cannot absorb a civil servant of non- cadre post to any cadre which is meant for the officers who are recruited through competitive process. CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 12 (iv) Any backdated seniority cannot be granted to any absorbee and his inter-se seniority, on absorption in the cadre shall be maintained at the bottom as provided under the Rules regulating the seniority. (v) 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. (vi) The legislature cannot enlarge the definition of "civil servant" by appointing a non-civil servant through transfer on the basis of absorption conferring him status of civil servant pursuant to the impugned legislation which is violative of the scheme of civil service law as provided under Articles 240 and 242 of the Constitution.” The principle laid down in the paragraph reproduced above was reiterated in the case Ali Azhar Khan Baloch. Vs. Province of Sindh (supra) by holding as under: “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 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 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 CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 13 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 Rules 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 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 preconditions laid under Rule 9-A of the Rules are met. 120. At the time of hearing of Petitions No.71 of 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 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 C.R.P. 409 of 2013 Mr. AqailAwan for the petitioner 1 - 3 Criminal R.P.81 of 2013 and C.R.P. 412 of 2013 121. It was contended by MessrsAqilAwan, ShoaibShaheen, Muhammad MunirPeracha 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 CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 14 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 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. 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 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.” 10. The argument that another imperative necessitating the absorption of the appellants in Balochistan Civil Service and Balochistan Secretariat Service was that they had no channel of upward progression beyond BPS-18, appears to have no force both legally and factually when the posts of Executive Officers and CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 15 Director Finance and Accounts and those of Executive Officers and Director Planning and Economics in BPS-18 and BPS-19 were created pursuant to the amendments made in the Balochistan Finance and Accounts Groups Service Rules 2001 and the Balochistan Planning and Economics Group Service Rules 2001 vide notification dated 21.11.2005. 11. The argument that no distinction could be drawn between the Assistant Executive Officers and the Balochistan Civil Service officers and the Balochistan Secretariat Service officers when their qualifications, syllabus of examination, pattern of papers and the process of selection under the Public Service Commission are alike and even identical does not appear to be correct when on comparison the syllabus, pattern of papers and process of selection of the latter appear to be more extensive. Even if they be alike or identical no provision of law and the rules would justify such absorption unless of course the law and the rules as observed above are amended. 12. The argument that when in Civil Review Petitions Nos. 90, 452, 285, 286, 287, 288 and 289 of 2016 in Civil Appeal No.184-L of 2013 a five-member bench of this Court permitted the petitioners in the said petitions to raise their grievances before the competent fora, the appellants cannot be deprived of their such right, therefore the appeals filed by the appellants be sent back to the Service Tribunal for decision in accordance with law has left us unmoved because in those cases the controversy raised required decision of the competent fora whereas the controversy raised in this case has been settled once and for all as is evident from para 126 of the judgement rendered in the case of Contempt proceedings against CIVIL APPEALS NO. 588 TO 590 OF 2017, CMAS. NO. 2032, 2421, 2422 & 2419 OF 2017 AND CIVIL APPEAL NO. 710 OF 2017. 16 the Chief Secretary Sindh and others (supra) and paragraphs 117, 118, 119, 120, 121 and 139 of the judgement rendered in the case of Ali Azhar Khan Baloch. Vs. Province of Sindh (supra). Such controversy having already been settled could more adequately be dealt with by this Court through a review petition than through a petition before the High Court under Article199 of the Constitution or through an appeal before the Service Tribunal as held in para 153 and 154 of the judgement rendered in the cases of Ali Azhar Khan Baloch. Vs. Province of Sindh (supra). 13. The short and long of what has been discussed above is that nothing during the course of arguments has been pointed out by the learned Sr. ASC for the appellants as could call for a change or modification in the judgements mentioned above. We, thus, by treating these appeals as review petitions and having heard them as such dismiss them. JUDGE JUDGE JUDGE Announced in open Court at Islamabad on 25.09.2017. JUDGE ‘Not Approved for Reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN W:42 CIVIL APPEAL NO.597 OF 2020 (Against the judgment dated 06.11.2019 passed by the Peshawar High Court, Peshawar in Writ Petition No.1806-P of 2017). Controller General of Accounts ....A./vet:tar/I(s) Versus Fazli Ahmad, DA0 EC (C&W Division Hangu) and others. ..,Respondent(s) For the Appellant(s): For the Respondent(s): Moulvi Ejaz ul Haq, DAG. M. 14Iushtaq Khan, Account Officer. 1VIa.qbool Ali, ACGA, Mr. Sabit Ullah. Khan, ASC Syed Rafaqat H. Shah, AOR (Nos.1-3, 8-11, 17, 18, 22, 25, 27, 28, 30) Mr. Abdul Lateef Afridi, ASC. (Nos.4-7, 12-16, 19-21, 24, 26, 29, 31-32) Date of Hearing: � 10.02.2021.. JUDGMENT IJAZ UL AHSAN, J-. This appeal by leave of the Court arises out of a judgment of the Peshawar High Court, Peshawar dated 06. 1 1 . 0 19. Through the impugned judgment, a constitutional petition (W.P.No.1806-P of 2017) filed by the • Respondents was allowed to the extent of prayers "A" and "C" while prayer "B" made by them was not granted. 2. �Briefly stated the facts necessary for decision. of this Appeal are that the Respondents were working as # CIVIL APPEAL A10.597 OF 2020 � 2 Divisional Accounts Officers in the Office of the Appellant in Khyber Pakhtunkhwa. In order to become entitled to promotion they participated and qualified the departmental examination Part-I in. December, 2012 in. accordance with the Rules and Regulations prevalent at that time, They had also completed their practical training for six. months, As such, they had an. expectation of being promoted subject to passing Part-ff of the examination which was scheduled to be conducted in the year 2013. Such examination did not take place. While the Respondents were awaiting holding of the examination, vide notification dated 09.03.2017 the method of examination was changed. Previously, the examinations were conducted by the department itself but through the aforesaid notification the Federal Public Service Commission ("FPSC") was assigned the job of conducting promotion examination for appointment of Divisional Accounts Officers (BS-17). 3. �Pursuant to the notification in question which was issued by the Office of Controller General of Accounts, Resolution No.881 was circulated by the said Office intimating that promotion examination will henceforth be conducted by the FPSC. The Respondents were aggrieved of the said notification as well as the Resolution and challenged the same before the High CIVIL APPEAL. NO.597 OF 2020 Court by way of a constitutional. petition which was allowed vide impugned judgment dated 06.11.2019 in. the above noted terms. 4. �The Appellant was aggrieved of the impugned judgment and approached this Court through. a Civil Petition bearing No.29 of 2020 in which leave to appeal was granted vide order dated 25.06.2020 in. the following terms: "The learned Additional Attorney General for Pakistan has placed before us a photocopy cf notification No. S. R. 0. 162(1)/ 2017 dated 15.03 . 2017 duly published in the Gazette of Pakistan and contended that this very notification was validly issued under sub-rule 20 of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1972 read with Section 7(1)(c) of the Federal Public Service Commission Ordinance, 1977. He contends that the learned High Court has altogether misled itself in deciding the question by relying upon the provisions of Section 12 of Controller General of Accounts (Appointment, Functions and Powers) Ordinance, 2001. He submits that although the earlier Regulation dated 08.10.2012 did provide for departmental examination but by the notification impugned before the learned High Court the said examination was required to be conducted by the FPSC and the Respondents had no valid reason to approach the High Court nor was it justified to interfere with the decision of the Federal Government regarding conducting of examination more so when it is the sole prerogative of the Federal Government to take examination of its employees in the manner as it deems fit and in accordance with law. In support of his contentions, the learned Law Officer has relied upon a judgment of this Court reported as • CIVIL APPEAL 00.597 OF 2020 4 Government of Khyber Pakhtunkhwa u Muhammad Javed (2015 SCM.1.? 269). 2. � The submissions made by the learned Additional Attorney General need consideration. Leave to appeal is therefore granted to consider inter alia the same. Appeal stage paper books be prepared on the available record. However, the parties are at liberty to file additional documents, if any within a period of one month. As the matter relates to service, the Office is directed to fix the same for hearing in Court expeditiously, preferably after three months. 5. �The learned Deputy Attorney General appearing for the Appellant has argued that determination of th.e method of recruitment is the sole prerogative of the appointing authority in. terms of Rule 3(2) of the Civil Servants (Appointment, Promotion. and Transfer) Rules, 1973 rRules, 1973"). The previous Rules were validly amended by the competent authority and the Respondents had no valid reason or grievance to challenge the same. He further maintains that decision of the Office of Controller General of Accounts, to conduct promotion examination through MSC was based on lawful authority exercised by the said Office under Section 5(j) of the CGA Ordinance read with Section '7(I)(c) of Federal Public Service Commission Ordinance, 1977. He further maintains that decision to change the examination policy was taken in consultation with the Establishment Division as required by the Rules of Business, 1973. He finally submits that the syllabus and 1 . CIVIL APPEAL NO.597 OF 2020 � 5 other terms of the examination were not changed and it was only for administrative reasons and to ensure transparency and efficiency that FPSC was assigned the job of conducting the final examination. 6. The learned counsel for the Respondents on the other hand has defended the impugned judgment, 7. We have heard the learned DAG as well as the learned ASC for the Respondents and have one through the record. Rule 3(2) of the Rules, 1973 being relevant in the case in hand provides as follows: "3(2) (2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned in consultation with the Establishment Division." 8. A perusal of notification dated 09.03.201? ex facie reveals that it has not been issued by the Government of Pakistan and only the concurrence of the Establishment and Finance Divisions has been solicited. While it is true that Rule 3(2) of the Rules, 19'73 empowers the concerned Ministry/Division subject to consultation with the Establishment Division to lay down methods of appointment, the notification in question as well as the Resolution under challenge were neither issued by any Ministry or Division nor published in the official. Gazette. Further, according to the principle of law ;;;;;;;;.;';;;;,;''';;;;;:'• � ;;'; � :1 ; � . � ; � • ,; ;is; CIVIL APPEAL, NO.597 OF 2020 6 laid down by this Court in the case of Mustafa Impex v. Government of Pakistan. (2016 PTD 2269) wherever a power is conferred on the Federal Government, it is construed as a power given to the Prime Minister and the Federal Ministers/Cabinet to be exercised in the name of the Federal Government, Nothing has been placed on the record that may indicate that the Federal Government had notified the impugned notification after following the legal and procedural requirements and in accordance with the provisions of Rule 3(2) of the Rules, 1973, 9. �We also note that the Office of Auditor General of Pakistan/Controller General of Accounts has been established by the Federal Government through. Ordinance No.XXIV of 2001.. Section 12 of the Ordinance in question empowers the Controller General of Accounts to make regulations. For ease of reference, Section 12 of the Ordinance is reproduced below: 12. Power to make regulations: - The Controller General may with the previous approval of the Federal Government by the notification in the official Gazette, make such regulations not inconsistent with the provisions of this Ordinance and the rules made hereunder as he may consider necessary or expedient for carrying out the purpose of this Ordinance." In exercise of the aforenoted powers, the Controller General of Accounts promulgated Regulations in respect of departmental examinations which provided „..11:2;319.N.E5HilffiEf.:71IPESEK2ELLENSAME;inftir:{.165,Z3.11E-.:.:-.'-: CNIL APPEAL NO.597 OF 2020 � 7 that one examination will be conducted in the ist week. of October, 2012. Thereafter, two examination.s wiI be conducted in each successive year in the months of March and October, respectively. 10. We have asked the learned LAG if the Controller General. of Accounts had obtained any previous approval of the Federal Government as required. under paragraph 14 of the Regulations to amend the mode of examination and whether such notification had been published in the official gazette. He has not been able to show us from the record that previous approval of the Federal Government had indeed been. obtained in accordance with law and the notification. in. question was published in the official gazette. 11. It is a settled principle of law that a notification. which is duly published in. the official gazette takes effect from the date on which it is published except otherwise provided in the notification itself. In view of the fact that neither the notification had validly been issued on the basis of powers available to the Controller General. of Accounts and previous approval of the Federal Government nor does it appear to have been published in the official gazette. As such, the validity of the notification and its impact on the rights of the CAUL APPEAL NO.597 .7.F 2020 : � I Respondents was correctly assessed and determined by the learned High Court through the impugned judgment. 12. It is also apparent from the record and not denied by the Appellant that the Respondents had already successfully completed Part-I of th.e departmental examination and received the prescribed training in accordance with the Rules and Regulations prevailing at the relevant time. We are therefore not impressed by the argument of the learned DAG that the Appellant could have changed the mode of examination in 2017 keeping in view the fact that Part-H of the examination was due to be held in 2013 and was not held for the next four years without any fault on the part of the Respondents. Further, a right had already accrued in favour of the Respondents by reason of passing Part-1 of the departmental examination which could not have been taken away merely on the basis of a notification issued by the Office of Controller General of Accounts without following due process of law. 13. Further, modification of the Regulations notwithstanding the fact that it did not fulfil the legal and procedural requirements could not have affected any right or privilege acquired under the previous Regulations in favour of the Respondents. We are therefore convinced that the learned High Court had valid reasons and lawful • ' � '74,',17,—.74Y•WIMIXII'! 5,7.--7 � 1."97 CIVIG APPeAL � C)), 2020 � 9 justification which was duly recorded- in •the impugned judgment in coming to the conclusion that the Respondents were entitled to undergo Divisional Accounts Officers' Examination Part-If to be conducted by the department itself as per the previous Regulations. The impugned judgment of the learned High Court records valid reasons for its conclusion and after hearing the learned. Law Officer and going through the record, we are not persuaded to reach a conclusion different from the one arrived at by the learned High Court. 14. � For reasons recorded above, we do not find any merit this appeal. It is accordingly dismissed. 10.02,2021. ‘No4, Approved Por Reporting'

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT Mr. Justice Maqbool Baqar Mr. Justice Qozi Muhammad Amin Ahmed Civil Appeal No. 601/2019 & CMA No. 2953/2019 (Against the judgment dated 13.02.2019 of the Lahore High Court, Lahore passed in RSA No. 4207712017) Mst. Noor Jehan & another Appellate(s) Versus Saleem Shahadaf Respondent(s) For the Appellate(s) Syed Najamul Hassan Kazmi, ASC For the Respondent(s) Maulvi Anwar-ul-Haq, ASC Dale of Hearing 18.11,2021 ORDER Macibool Bagar, .1. A suit filed by the respondents for specific performance of an agreement for sale of an immoveable property was dismissed by the Trial Court, so was the first appeal against such dismissal. The Lahore High Court through the impugned judgment however allowed the respondents' second appeal and set aside the said two concurrent judgments. 2. The respondents' case as set out before the Trial Court was that on 23.04.2004, the appellants who are the owners of a property, being Bungalow No. 10, Plot No. 14 measuring 1318,50 sq yards, Shami Road, Lahore Cantt ("the suit property), in terms of an agreement, titled "token receipt", agreed to sell the suit property to the respondent for a sale consideration of Rs. 2,30,00,000/- Receipt of Rs. 5,00,000/- paid by the respondents to the appellants by way CA No. 60112OIeic It of earnest money on the said date i.e. 23.04.2004, was duly acknowledged by the appellants through the said "token receipt". The balance sale consideration amount, as stipulated in the "token receipt", was to be paid in three instalments as follows: (i) Rs. 35,00,000/-, on 26.04.2004, on which date a formal agreement to sell was to be executed between the parties; (ii) Rs. 25,00,000-I within six weeks from ,23.04.2004; (Hi) Rs. 1,65,00,000/- within 13 weeks from 23.04.2004. 3. The "token receipt", according to the respondent, was duly signed by the appellants and the respondents and also by the witnesses of the execution thereof, and of the payment acknowledged therein, namely, Muhammad Ashraf and Liaquat Khokhar, respectively, who also were the estate agents through whom the deal was made. However, when the respondents requested the appellants to execute a formal agreement to sell, the appellants asked the respondents to pay Rs. 40,00,000/- instead of Rs. 35,00,000/- as agreed to be then paid in terms of the "token receipt". The respondents thus obtained a pay order in the sum of Rs. 40,00,000/-, bearing No. 0402186521 dated 24.04.2004, drawn on Picic Commercial Bank Limited, Gulberg Lahore, and also purchased a stamp paper of Rs. 100/- for drawing a formal agreement to sell, but when on 26.04.2004, the respondents approached the appellants for execution of the document, the appellants refused to execute the same, and instead told the respondent that they shall sell the suit property to some other party at a higher price. Through a legal notice dated 29.04.2004 served I CA NO. 601/2019 e Ic 3 by the respondents through his Counsel, the respondents called Upon the appellants to honour the agreement, but to no avail. 4. Through their written statement the appellants denied that there has been any agreement to sell between the parties. it was averred that only verbal negotiations, through a Property dealer, Muhammad Ashraf were held for the sale of the suit Property, but no written agreement was executed and Signed by the appellants. Although receipt of token amount of Rs.5,00,0001 was admitted but it was claimed that the same was paid by Muhammad Ashraf and not the respondent. It was further claimed H that the "token receipt" acknowledging such payment was not signed by the respondent and his signatures appearing on the Pho tocopy of the said receipt, annexed to the plaint have been appended subsequeny. It was averred that the appellants were to execute a formal agreement to sell, which was to contain the terms If sale, but was subject to payment of an instalment of Rs.35,000001 on 26 .04.2004. The appellants further claimed that they did not know as to whether or not any pay order Was prepared as the same was never delivered to them, rather the Property dealer, Muhammad Ashraf, has asked for extension in time, as - according to him, the buyer he was representing, has not been able to arrange the amount, which request was declined. It Was denied that Muhammad Ashraf contacted the appellants and claimed that in fact it were the appellants, who on 26.04.2004 contacted and requested Muhammad Ashraf for payment of the instalment of Rs. 3500,000i However, after two days Muhammad Ashraf contacted the defendants and requested for refund of the H 4 1. I CA_No. 60!/2Ofle& E 4 token amount as, according to him, his client was not able to arrange further payment. It was denied that the appellants requested for enhancement in the amount of instalment from Rs.35,00,000/ to Rs.40,00,000/-. 5. The respondent in his evidence before the Trial Court deposed that he negotiated the deal for the purchase of the suit property with the appellants through Ashraf Estate property dealers, and after long drawn negotiations, he along with the property dealers, Muhammad Ashraf and Liaquat Khokhar, on 23.4.2004 at 6 Pm, went to the residence of the appellants, being the suit property, where the deal was struck for a price of Rs. 2.3 million, and he then Paid to the appellant a token amount of Rs.5,00,000/-, in presence of Muhammad Ashraf and Liaquat Khokhar. The respondent also stated the manner in which the balance sale consideration amount was to be paid in three instalments, as is stipulated in the "token receipt",] and produced a photocopy of the "token receipt, as the originalL thereof has been lost. The token receipt was exhibited, Ex-P-1. He als&J explained as to how and why he got prepared a pay order of.j Rs.40,00,000/ instead of Rs. 35,00,000/-, as explained in the plaint, and noted hereinbefore The respondent further deposed that he also Purchased a stamp paper for drawing a formal agreement to sell, and on 26.04.2004 he along with Muhammad Ashraf visited the appellants at their residence, however, the appellants refused to I receive the pay order and told them that they have received a higher offer. I '2 CA NO, 6GI/2pI9etc 5 6. Muhammad Ashraf appeared as PW-2 and deposed that he is engaged in the property business under the name of Ashraf Estate since 1976, and that the appellants have requested him to sell the suit property, whereas the respondent who was his client wanted to purchase a house of about 2V2 kanals in the cantonment area, and after seeing a number of houses through him, the respondent showed his interest in buying the suit property. The witness thereafter narrated the details of the meeting arranged by him between the appellants and the respondent on 23.4.2004, where the deal for the suit property was made between the parties before him and his partner Liaqat Khokhar, and the respondent paid to the appellants an amount of Rs. 500,000/- by way of earnest money. He deposed that the "Token I receipt" Ex F-i was signed by the appellants and the respondent, before him and Liaqat Khokhar, and that he and Liaquat Khokhar also Signed the document as witnesses thereto. However on 24.4.2004, the appellants called him on telephone and asked for a pay order of Rs.40,00,0001 instead of the agreed amount of Rs. 35,00,000/-,as they were in need of that much amount. The respondent thus obtained a but when they went to the appellants to Pay order of Rs.40,00,000/ deliver the pay order, the appellants refused to accept the same and demanded increase in the price as according to them they had received a higher offer. The appellants, according to the witness, despite persuasion remained adamant, and declined to honour the agreement 7. Liaquat Khokar, PW-3, deposed that he is a property dealer and has been working in Partnership with Muhammad Ashrafj for the last 21 years. According to him at the time of the agreement in / c& NQ, 601/2019&C April 2004, the parties, being the appellants and the respondent, were present, the witness verified his signatures and that of Muhammad Ashraf appended on the token receipt, as witnesses thereof. He further deposed that the document was signed by the appellants and the respondent in his presence and that he and Muhammad Ashraf have facilitated the deal as Estate agents. He also deposed that at the time of the agreement, the respondent has paid Rs.500,000/- to the appellants. He explained the purported circumstances under which the pay order of Rs.40,00,000I- was obtained by the respondent. The witnesses claimed that ".s 3 JJi S thiC.3.m 26-04-2004 and offered them the pay order, but the appellants declined to accept it, and refused to honour the agreements and said that they (the appellants) have received a higher offer. However, during his cross examination he contradicted himself and stated that it were the respondent and Muhammad Ashraf who went to deliver the pay order. He made a further contradiction when he slated that it was on 23.04.2004 that they last went to the appellants. 8. Though appellant No.2 Asifa Bano (DW-1), during her evidence denied having agreed to sell the suit property, but admitted having received the token amount. She stated that the "token[ receipt" was signed by her and her sister, the appellant No.1, and by Muhammad Ashraf and Liaquat Khokhar, but was not signed by anyone else before them. She further deposed that as per the "token: receipt" the agreed sale consideration amount was Rs.2,30,00,000/-. She claimed that the token amount was paid by Muhammad Ashraf,' ft E 7 but also said that Muhammad Ashraf and Liaquat Khokhar were property dealers. The appellant No. 2 further deposed that since no further payment was made, they asked for the payment due, but were told that the amount could not be arranged. She stated that she has never seen the respondent and claimed they never entered into any agreement with the respondent. During her cross examination, I she disclosed that she is a matriculate and can read Urdu. She admitted her signature and that of her sister, the appellant No.], on the token receipt, Ex.P-1, and that they signed the document at their own volition. She admitted that they accepted the token money, as H they agreed to sell the suit property, and that they had read the contents of the 'token receipt" before signing it. She also admitted that the name of the respondent is mentioned in the "token receipt". Appellant No.2 further admitted that the property was not being purchased by Muhammad Ashraf himself. She did not deny the suggestion that as per the token receipt, Ex.P-1, the respondent was obliged to pay Rs.35,00,000/ within 6 weeks, and also to pay to them: Rs.1,65,030/ within 13 weeks. She refused to respond to the suggestion that had the respondent paid to them the agreed sale consideration amount they would have conveyed the suit Property in favour of the respondent, but voluntarily said that Ashraf did not proceed in the matter further. The witness also did not deny the suggestion that, as per the token receipt, the agreement to sell the suit property was between the appellants and the respondent, but said that the H appellant neither meet nor had seen the respondent CA Np. Ou/2Ol9 etc I' 8 9 The position that now emerges from the foregoing is that the respondent through his evidence, and that of his witnesses. Muhammad Ashraf and Liaquat Khokhar, has proved the execution of the document described as "Token Receipt", and has likewise also proved the payment of the token amount to the appellants. 10. On the other hand, the appellants also have admitted the execution of the "Token Receipt". The appellant No. 2, who is the only witness examined on behalf of the appellants, admitted that the "Token Receipt" was written at her residence, and that she has read it before she and her sister the appellant No.], signed the same. She disclosed that she is a matriculate and can read Urdu, and further that they, the appellants, have signed the document at their own volition. She admitted that as per the 'Token Receipt' the agreed sale consideration amount was 2.3 million. She also admitted having received the token amount of Rs. 5,00,000/- but claimed that the same was paid by Muhammad Ashraf, whom she described as a property dealer. She also admitted that the name of the respondent is mentioned in the token receipt and further that the property was not being purchased by Muhammad Ashraf himself. The appellant No. 1, did not deny the suggestion that as per the token receipt, Ex.P-1, the respondent was obliged to pay Rs. 3.5 million on 26.4.2004; Rs.2.5 million within 6 weeks, and Rs.10.65 million .1 within 13 weeks. She refused to respond to the suggestion that in the event the respondent would have paid the sale consideration amount the appellants would have conveyed the suit property in favour of the respondent. She also did not deny the suggestion that II CA No. 60112019 etC 9' in terms of the "token receipt", the agreement to sell the suit Property was between the appellants and the respondent. She however said that the token receipt was not signed by the respondent before them and the signatures appearing thereon were appended subsequently. It can therefore be seen that not only the execution of the "token receipt" was admitted by the appellants but so also were admitted its contents, as well as the receipt of the payment acknowledged thereby. The appellants did not deny that in terms of the 'token receipt", the balance sale consideration amount was to be paid to them in three instalments as noted herein before, and further that the receipt also contained the name of the respondent. So not only the execution of the "token receipt" between the appellants and the respondent, the contents thereof and the Payment acknowledged thereby, were proved by the respondent through his evidence and that of the marginal witness of the doc ument, but all the above has been admitted by the appellants as well. Indeed, the appellants have claimed that the signature of the respondent has been made on the "token receipt" subsequent'y, they have however not been able to support this claim in any manner. 12. The document titled "token receipt" contains all the necessary ing redients essential for it to qualify as a valid and lawfully enforceable contract. The document unambiguously contains the identity of the seller and the purchaser. The Property to be sold has been described accurately in a well defined manner. If spells out I In CA No. 6O!/2019etc 10 the agreed sale consideration amount, and stipulates the manner of payment thereof. The parties who executed the document are at consensus in idem. The document clearly manifests the intention of the appellants to sell and that of the respondent to purchase the subject property. Nothing crucial was left to be settled which could have adversely affected the validity of the contract. The specific performance of the document in the circumstances could not have been avoided on the pretext that it provided for executing a formal agreement. The 'token receipt" was in itself a complete, and a lawfully enforceable agreement to sell. The judgment in the case of Sheikh AkhtcyrAzjz vs. Mst. Shabnam Begum and others, (2019 SCMR 524) may be referred to in this regard. 13. However the respondent has not been able to prove that he tendered to the appellants the payment due, as in the first Place neither has he been able to prove that he in fact obtained the pay order, or that he offered the some to the appellants. Neither has the respondent produced the original pay order in his evidence as required in terms of Article 75 of Qanun-e-Shahadat Order, nor has he laid before the Court any other evidence, or material that he in fact obtained the pay order from the bank as claimed, and/or that the some was lost or destroyed, though it was imperative for the respondent to have proved the loss of the original, as an essential prerequisite for seeking to produce a photocopy of the pay order. The respondent also did not even move an application for permission to produce and exhibit a photostat copy of the pay order before the Court. He also did not bother to explain, as to when, how and under what circumstances II; I CA No. 601/2019 etc 11 the pay order was lost, destroyed or misplaced. The respondent could have summoned the relevant record and the concerned officer from the payer bank which he choose not to. He has also not even claimed having lodged any complaint or FIR regarding the loss or theft of the pay order. The document was thus rightly not exhibited. The following judgments may be referred to in this regard, State Life Insurance Corporation of Pakistan and another vs. Javaid Iqbal (201] SCMR 1013) and Imam Din and 4 others vs. Bashir Ahmed and 10 others (PLD 2005 Supreme Court 418). 14. It hardly needs any emphasis to convey that a document which has not been lawfully produced and exhibited in the Court is not worthy of being considered as evidence/proof of a fact. Even otherwise the respondent's evidence with regard to his tendering the pay order to the appellants does not sound credible. On the one hand he claims to have visited the appellants with Muhammad Ashraf and offered them the pay order on 26.4.2004, whereas on the other his witness Liaquat Khokhar's narration in that regard conveys that it was not just the respondent and Muhammad Ashraf who went to the appellants to deliver the pay order to the appellants but he too accompanied them, and it was in his presence that the pay order was offered and the appellants refused to accept it; in fact this witness gave a detailed account as to what transpired on that occasion on 26.4.2004. A further damage was caused to the credibility of the whole story regarding the pay order, when Liaquate Khokhar further contradicted the respondent, and contradicted himself also; and stated that it was on 23.4.2004 that they last went to the appellants t house. 12 3. 15. In the circumstances discussed above, we are of the firm view that the respondent has failed to prove that he honoured his commitment and fulfilled his obligation under the "token receipt", and has, in fact, failed to fender the payment of the very first instalment that he was required to in terms of the "token receipt". Even otherwise, it is now well settled that where the vendor refuses to accept the sale consideration amount, the vendee seeking specific performance of the agreement to sell is essentially required to deposit the amount in the Court. The vendee has to demonstrate that he is and has at all relevant times been ready and willing to pay the amount, and to show the availability of the amount with him. A vendee cannot seek enforcement of reciprocal obligations of the vendor, unless he is able to demonstrate, not only his willingness, but also his capability to fulfil his obligation under the contract. Reliance may well be placed on the following judgments in this regard; Muhammad iamil and others v. Muhammad Arif (2021 SCMR 1108), Muhammad Yousaf v. Allah Ditta (2021 SCMR 1241), Muhammad Yaqub v. Muhammad Nasrullah Khan and others (PLD 1986 SC 497), Hamood Mehmood v. MsL Shabana Ishaque and others (2017 SCMR 2022), inayatullah Khan and others v. Shabir Ahmad Khan (2021 SCMR 686), MIs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. MIs Educational Excellence Ltd., and another (2020 SCMR 171), and Muhammad Shafiq Ullah and others v, Allah Bakhsh (decd.) through LRs and others (2021 SCMR 763). I - CA No. 601/2019etC 13 j S.. 16. However, in the instant case, not only the respondent failed in proving that he tendered the payment due, but also did not deposit the balance sale consideration, or even the amount due at the time of filing of his suit for specific performance in May, 2004, and obtained an injunctive order, without depositing any amount. The respondent, as can be seen from the Trial Court's order dated 07.07.2004, in terms whereof the injunctive order was confirmed, rather resisted the request/prayer for an order directing the respondent to deposit the balance sale consideration made by the appellants through their reply to the former's injunction application. Such was done on the flimsy ground that the respondent cannot be burdened with the deposit of the amount as the subject property was in possession of the appellants. 17. The respondent thus enjoyed the benefit of the injunctive order so obtained by him till the time the suit was dismissed for want of evidence, which dismissal he ultimately challenged before the Lahore High Court through RFA No.134 of 2010, where on 17.02.2010, through an application, bearing No.]- C/2010, he obtained an order restraining the appellants from alienating or encumbering the suit property, but this time the order was subject to deposit, of Rs. 11.25 million, being fifty percent (50%) of the balance sale consideration amount within three weeks thereof, so that it may be invested in some profit bearing scheme. The order further provided that in case the amount is not deposited within the time prescribed thereby, the interim order shall stand vacated. However the respondent still failed to deposit the amount, and instead made an application, being CM No. 2-C/2010, that the r CA No. 60112912 et 14 amount be allowed to be deposited by some Faisal YounaS, and also to be invested in the name of said depositor, so that in the event of the amount being refunded, it may be refunded to Faisal Younas, and in case of his demise to his legal heirs, and none else. 18. It is not only the above request/prayer made by the respondent, but also the other contents of his application, that clearly show that the respondent never had the money to pay or to deposit as required of him. As the application stated that the respondent "was to pay the balance amount from sale of his own house, whereafter he would have shifted to the purchased house under the agreement but presently there is no house to move into". It is also relevant to note here that neither the agreement/token receipt provided for delivery of possession of the suit property to the respondent before payment of the entire sale consideration amount, and/or transfer of the property in his favour, nor has he ever pleaded that he had any such understanding/arrangement with the appellants. It is interesting to note that the respondent neither disclosed any particulars, or the value of the property that he claimed, he would have sold, nor submitted any document pertaining thereto. The respondent's request for deposit of the sale consideration amount in the name of the depositor Faisal Younas, and in a manner that in the event of its being refunded, it be refunded to Faisal Younas, and in case of his demise to his legal heirs, and none else, leaves one wondering, as to under what arrangement the said depositor agreed to deposit the amount, and as to how and in what manner he secured his amount and/or interest in the matter, in case of the suit property being ordered to CA No. 601/2019 el, 15 be conveyed to the respondent; as a person who Was not ready to rely Upon the respondent for refund of his money and had deposited the amount under an order securing its refund to him only, as noted above, can hardly be expected to leave his money or interest in the matter unprotected and insecure in such an event. However, the respondent's application was allowed and the amount was thus deposited in the Court on 28.2.2019. 19. in the facts and circumstances of the case as discussed hereinbefore there remains no doubt that the respondent has not only failed to tender the sale consideration amount due to the appellants but has also failed/avoided to deposit the amount in Court as of required of him. The respondent was therefore not entitled to the discretionary relief of specific perfo rmance sought by him. The appeal is accordingly allowed and the impugned judgment is set aside. The appellants shall within a month from the date hereof refund to the respondent the token amount/earnest money paid by him to them under the "token receipt" CMA No. 2953/2019 stands disposed of. Announced in open Court or at IS/arnabad E!ROfQRREPTING.

IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEAL NO.605 OF 2015 (On appeal against the judgment dated 18.2.2015 Passed by the Peshawar High Court Peshawar, in Writ Petition No.1961/2011) Rizwan Javed and others … … Appellants VERSUS Secretary Agriculture Livestock etc … … Respondents For the Appellant : Mr. Ijaz Anwar, ASC Mr. M. S. Khattak, AOR For the Respondents : Mr. Waqar Ahmed Khan, Addl. AG KPK Date of hearing : 24-02-2016 O R D E R AMIR HANI MUSLIM, J.- This Appeal, by leave of the Court is directed against the judgment dated 18.2.2015 passed by the Peshawar High Court, Peshawar, whereby the Writ Petition filed by the Appellants was dismissed. 2. The facts necessary for the present proceedings are that on 25-5-2007, the Agriculture Department, KPK got an advertisement published in the press, inviting applications against the posts mentioned in the advertisement to be filled on contract basis in the Provincial Agri- Business Coordination Cell [hereinafter referred to as ‘the Cell’]. The Appellants alongwith others applied against the various posts. On various CA.605/2015 2 dates in the month of September, 2007, upon the recommendations of the Departmental Selection Committee (DPC) and the approval of the Competent Authority, the Appellants were appointed against various posts in the Cell, initially on contract basis for a period of one year, extendable subject to satisfactory performance in the Cell. On 6.10.2008, through an Office Order the Appellants were granted extension in their contracts for the next one year. In the year 2009, the Appellants’ contract was again extended for another term of one year. On 26.7.2010, the contractual term of the Appellants was further extended for one more year, in view of the Policy of the Government of KPK, Establishment and Administration Department (Regulation Wing). On 12.2.2011, the Cell was converted to the regular side of the budget and the Finance Department, Govt. of KPK agreed to create the existing posts on regular side. However, the Project Manager of the Cell, vide order dated 30.5.2011, ordered the termination of services of the Appellants with effect from 30.6.2011. 3. The Appellants invoked the constitutional jurisdiction of the learned Peshawar High Court, Peshawar, by filing Writ Petition No.196/2011 against the order of their termination, mainly on the ground that many other employees working in different projects of the KPK have been regularized through different judgments of the Peshawar High Court and this Court. The learned Peshawar High Court dismissed the Writ Petition of the Appellants holding as under : - “6. While coming to the case of the petitioners, it would reflect that no doubt, they were contract employees and were also in the field on the above said cut of date but they were project employees, thus, were not entitled for regularization of their services as explained above. The august Supreme Court of Pakistan in the case of Government of Khyber CA.605/2015 3 Pakhtunkhwa Agriculture, Live Stock and Cooperative Department through its Secretary and others vs. Ahmad Din and another (Civil Appeal No.687/2014 decided on 24.6.2014), by distinguishing the cases of Government of NWFP vs. Abdullah Khan (2011 SCMR 989) and Government of NWFP (now KPK) vs. Kaleem Shah (2011 SCMR 1004) has categorically held so. The concluding para of the said judgment would require reproduction, which reads as under : - “In view of the clear statutory provisions the respondents cannot seek regularization as they were admittedly project employees and thus have been expressly excluded from purview of the Regularization Act. The appeal is therefore allowed, the impugned judgment is set aside and writ petition filed by the respondents stands dismissed.” 7. In view of the above, the petitioners cannot seek regularization being project employees, which have been expressly excluded from purview of the Regularization Act. Thus, the instant Writ Petition being devoid of merit is hereby dismissed. 4. The Appellants filed Civil Petition for leave to Appeal No.1090 of 2015 in which leave was granted by this Court on 01.07.2015. Hence this Appeal. 5. We have heard the learned Counsel for the Appellants and the learned Additional Advocate General, KPK. The only distinction between the case of the present Appellants and the case of the Respondents in Civil Appeals No.134-P of 2013 etc. is that the project in which the present Appellants were appointed was taken over by the KPK Government in the year 2011 whereas most of the projects in which the aforesaid Respondents were appointed, were regularized before the cut-off date provided in North West Frontier Province (now KPK) Employees (Regularization of Services) Act, 2009. The present Appellants were appointed in the year 2007 on contract basis in the project and after completion of all the requisite codal formalities, the period of their contract appointments was extended from CA.605/2015 4 time to time up to 30.06.2011, when the project was taken over by the KPK Government. It appears that the Appellants were not allowed to continue after the change of hands of the project. Instead, the Government by cherry picking, had appointed different persons in place of the Appellants. The case of the present Appellants is covered by the principles laid down by this Court in the case of Civil Appeals No.134-P of 2013 etc. (Government of KPK through Secretary, Agriculture vs. Adnanullah and others), as the Appellants were discriminated against and were also similarly placed project employees. 7. We, for the aforesaid reasons, allow this Appeal and set aside the impugned judgment. The Appellants shall be reinstated in service from the date of their termination and are also held entitled to the back benefits for the period they have worked with the project or the KPK Government. The service of the Appellants for the intervening period i.e. from the date of their termination till the date of their reinstatement shall be computed towards their pensionary benefits. Chief Justice Judge Judge Judge Judge Announced in open Court on ____________. J Approved for reporting. Sohail/**

(Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Ijaz Ui Ahsan Mr. Justice Qazi Muhammad Amin Ahmed (PPc .J) Civil Appeal No-607 of 2021 Against judgment dated 24.02.2021 of Sindh Service Tribunal, Karachi, passed in Service Appeal No.888 of 2018. Saqib Ali Khokhar, Director (Regional) /Additional Appellant(s) Director (BS-19) STEVTA to be served through Managing Director (STEVTA), Headquarters, Street No. 19, Block-6, Gulshan-e-Iqbal, Karachi. Versus Inayatullah Lohar & others Respondent(s) For the Appellant(s): Mr. M. Shoaib Shaheen, ASC For Respondent No.1 Syed Ghulam Shabbir Shah, ASC (via video link from Karachi) assisted by Mr. Awwad Anwar, Advocate Syed Rafaqat Hussain Shah, AOR Mr. Fauzi Zafar, Addl.AG, Sindh 08.11.202 1 For Respondents#2-4 Date of Hearing: ORDER IJAZ UL ARSAN, J-. This appeal by leave of the Court arises out of a judgment of Sindh Service Tribunal, Karachi ("the Tribunal") dated 24.02.2021. Through the impugned judgment, a Service Appeal bearing No.888 of 2018, filed by Respondent No.1 was aliowed and a direction was issued to Sindh Technical Education and Vocational Training Authority ("STEVTA") to grant promotions, etc in accordance with the ,.1 guu,jppep; Mo.607 Qf 2023 2 provisions of Rules framed under Sindh Civil Servants, Act 1973 ("Act, 1973 11) and not under the provisions of STEVTA Act and its Rules. 2. Briefly stated the facts necessary for disposal of this Appeal are that vide notification dated 24.04.2009, the Government of Sindh transferred administrative control of 250 institutions to STEVTA, whereby all Technical Education and Vocational Training Colleges, Institutes, Schools and Centers working under the Education, Labour and Social Welfare Department of the Government of Sindh and the District Governments with all their assets including human resources and administrative offices were transferred to STEVTA under STEVTA Act, 2009. Out of the said 250 institutions, 150 were taken over from the Directorate of Manpower Training, Labour Department and 12 institutions were taken over from the Social Welfare Department, Government of Sindh. Before takeover, the said institutions were under the administrative control of their respective Departments. In terms of Section 15(2) of STEVTA Act, 2009 as amended in 2010, all civil servants transferred and given in the administrative control of STEVTA were to be governed by the provisions of the Act, 1973 and the Rules made thereunder. In terms of STEVTA Act, 2009 employees of all institutions were Clvii Appeal No 60701 2021 3 C transferred by the Government of Sindh for service under the Authority on terms and conditions, as may be determined by the Government which shall not be less favourable than those admissible to them immediately before their transfer to the Authority. Likewise, in terms of Section 15(3), the employees transferred under subsection 2 thereof were to continue to be employees of the Government and liable to be transferred back to the Government unless absorbed by consent in service of the Authority in such manner as may be prescribed. 3. It appears that in 2012, STEVTA framed its own Rules namely Sindh Technical Education Vocational Training Authority Employees (Appointment, Promotion & Transfer) Rules, 2012 ("Rules 2012"). Under the said Rules, STEVTA changed the administrative structure of the institution, gave new nomenclatures to the posts of employees and broadly categorized all employees in two different categories; one such category consisted of the employees who had been transferred from the Directorate of Manpower Training and the other, the employees of Technical Education. Pursuant to the said Rules, STEVTA granted promotions under its own rules on the basis of seniority lists separately maintained for the two categories. The Appellant and Respondent No.1 belonged to two different departments of the Government of Sindh QV? Aooeal No 507 of 2Q21 4 and came from different cadres which had their own rules for upward movement through promotions. However, the Appellant was promoted under STEVTA Rules of which Respondent No.1 was aggrieved and had challenged the promotion of the Appellant first before the departmental authorities and thereafter before the Tribunal. Through the impugned judgment, the promotion of the Appellant was declared unlawful and the direction as noted above was issued. He is aggrieved of the said judgment. 4. In this case, leave to appeal was granted by us on 29.06.202 1 in the following terms: "The Sindh Service Tribunal, Karachi (the Tribunal) has already given its judgment dated 21.10.2015 in Service Appeal No.757 of 2015 (titled Muzaffar Ali Bhuttoo vs. Province of Sindh and others), regarding the application of the Sindh Technical Education and Vocational Training Authority Act, 2009 (Act of 2009), and the rules made under it in 2012. Such judgment, as stated by the learned counsel for the petitioner, was upheld by this Court but the Tribunal by the impugned judgment dated 24.02.2021, has disagreed with its earlier judgment noted above, against which the petition before this Court stood dismissed. 2. The learned counsel for the petitioner contends that the Tribunal could not have taken a different view from the one already taken by it in the matter and, thus, the impugned judgment of the Tribunal is not sustainable. Further contends that the petitioner was transferred to the Sindh Technical Education and Civil Anveal No. 607012021 5 Vocational Training Authority (STE VTA) under the Act of 2009 and under such Act, the rules have been framed by the Sindh Government in 2012. Such rules being applicable for the promotion to the staff of STEM and the petitioner having been granted such promotion, the Tribunal on the basis that STEM rules being not applicable, was not justified in setting asicte me promotion of the petitioner. Further contends that the very departmental appeal filed by respondent No.1 was time barred. He has also relied upon a judgment of this Court reported as Muhammad Aslam v. WAPDA and others (2007 SCMR 513). 3. The submissions made by the learned counsel for the petitioner require consideration. Leave to appeal is granted to consider, inter alia, the same. The appeal stage paper-books be prepared from the available record with liberty to the parties to file additional documents, if any, within a period of one month. As the matter relates to service, the Office is directed to fix the appeal expeditiously, preferably, after three months." 5. The learned ASC for the Appellant has vehemently argued that in terms of STEVTA Act and the Rules framed thereunder, the employees transferred from different Government Departments of Sindh to STEVTA were governed under the provisions of Section 15 of STEVTA Act and subsections (2), (3), (4), (5) & (6) thereof all related to the employees transferred by the Government of Sindh for service under the Authority. He laid great emphasis on the fact that in terms of Section 15(5) of STEVTA Act it was categorically stated that the employees transferred under Subsection (1) of Section 15 shall cease to be employees of the Government and would dtMAuveal No.607of 2021 6 become employees of the Authority and shall be governed by the rules and regulations applicable to other employees of the Authority. He maintains that the Tribunal not only misinterpreted the provisions of Section 15(2) of the STEVTA Act but ignored the clear and categoric language of subsection 5 thereof to the effect that the nexus of employees of the Government who were transferred to STEVTA ceased to exists for all intents and purposes and the terms and conditions of their service were to be governed under the STEVTA Act and the Rules framed thereunder. He further maintains that the impugned judgment does not take note of the fact that another Bench of the Tribunal had taken a totally different view which could not have been done in the facts and circumstances of the instant case. He further argues that the impugned judgment also does not take notice of the principles of law laid down in Contempt Proceedings against Chief Secretary, Sindh and others (2013 SCMR 1752) and Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456). 6, On the other hand, learned ASC for Respondent No.1 has defended the impugned judgment. He submits that admittedly the parties were civil servants and just by reason of their transfer to STEVTA which is an Authority functioning under the Government of Sindh, CYvil Anneal No.607 of 202) 7 they could not have been taken out of purview of the Act, 1973 and subjected to a different set of rules which may or may not have been in consonance with the process of promotion as provided under the Act, 1973 and the Rules framed thereunder. 7. We have heard the learned counsel for the parties as well as the learned Additional Advocate General, Sindh and have gone through the case record. In the first place, we may note that by virtue of an amendment in STEVTA Act, 2009 subsections (4), (5) and (6) of Section 15 thereof were omitted with the obvious result that the rule which envisaged that employees transferred to STEVTA shall cease to be employees of the Government was removed from the statute book. After omission of the said three subsections, the only clear clause that remained governing the status of the employees transferred to STEVTA was subsection (3) of Section 15, which is to the effect that employees transferred under subsection (2) to STEVTA shall continue to be employees of the Government and could be transferred back to the Government unless absorbed by consent in service of the Authority in such manner as may be prescribed. It is not the case of the Appellant that he had been absorbed in the Authority with consent as envisaged under Section 15(3) of STEVTA Act. S uil Anneal No.607 of 2021 8 8. Admittedly, the Appellant and Respondent No.1 belonged to two different departments, different cadres and continued to be governed under the Act, 1973 and the Rules framed thereunder despite their transfer/ deputation, etc with STEVTA. Such employees had to be promoted through their parent channels under the Rules framed under Act, 1973. We, therefore find ourselves in agreement with the finding recorded by the Tribunal that granting of promotion to civil servants who had been transferred to STEVTA for the time being under the Rules framed by STEVTA was illegal and without lawful authority. In this context, reference may usefully be made to the principles of law laid down in Muhammad Bachal Memon v. Tanveer Hussain Shah (2014 SCMR 1539) where it was categorically held that the terms and conditions of civil servants can only be altered by an Act of the Parliament enacted in exercise of powers under Article 240 of the Constitution of Islamic Republic of Pakistan, 1973. It has neither been argued nor is it the case of the Appellant that STEVTA Act and the Rules framed thereunder were enacted in exercise of powers available under Article 240 of the Constitution. In this view of the matter, it is clear that administrative changes, transfers and postings of civil servants to different departments, agencies or authorities working as a part of the Government or under the Government cannot change cSiAiAvpeal No. 5O7OfW21 9 the service structure and the conditions of service including seniority of civil servants which can only be done by a statutory instrument in terms of Article 240 of the Constitution. 9. It is clear and obvious to us that the Provincial Assembly of Sindh did not make any amendments in the Act, 1973 or the Rules framed thereunder in order to change, modify or alter the terms and conditions of service of those transferred to STEVTA. We are therefore in no manner of doubt that for the purpose of promotion, STEVTA could not exclude the applicability of the Act, 1973 and the Rules farmed thereunder and apply its own rules to the Appellant as well as Respondent No. 1. All employees of STEVTA who had been transferred/ posted to STEVTA from different departments of Sindh Government continued to be employees of the Government and various aspects of their service including seniority and promotion are governed by the Act, 1973 and they have to follow the channels of promotion available in their own departments and cadres under the Act, 1973 and the Rules made thereunder. 10. We have also gone through the judgments cited by learned ASC for the Appellant and find that they are of no help to the case of the Appellant and are distinguishable on law as well as fact. Further, reliance idLAvoesl No.60 ?L2Q21 10 of the learned ASC on a judgment of the Tribunal dated 21.10.2015 in Appeal No.757 of 2015 is also misplaced on account of the fact that it proceeded on different sets of facts and circumstances, which were limited to that particular case and did not lay down the entire law on the subject. We also notice that the grievance of the Appellant in the said matter related to transfer of certain employees/ Respondents who belonged to the academic cadre and their promotion to posts in administrative cadre was challenged, which according to him, was not permitted. However, the question before the Tribunal in that case was not whether the parties were governed by the provisions of STEVTA Act or the Act, 1973 and the Rules framed thereunder. We also find that the impugned judgment of the Tribunal dated 24.02.2021 is well reasoned, proceeds on correct principles of law on the subject and does not suffer from any legal or jurisdictional defect or error that may furnish basis or justification for interference by this Court. The learned ASC for Appellant has also failed to point out any illegality in the impugned judgment that may furnish ground, basis or justification to interfere in our appellate jurisdiction. civilAnvealNo.6070f2021 11 11. Above are the reasons for our short order of even date, which for ease of reference is reproduced as under: "We have heard the learned counsel for the parties so also the learned Additional Advocate General, Sindh, and have also gone through the record of the case. For reasons to be recorded later, the appeal is dismissed." ISLAMABAD THE 8th of November, 2021 ZR/ * ...jNet Approved For Reporting'

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE SARDAR TARIQ MASOOD CIVIL APPEALS NO. 613 AND 614 OF 2014. (Against the judgment dated 31.10.2013 in W. P. No. 2545 of 2000 and C. R. No. 566-D of 2000 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi). M/s Lagarge Pakistan Cement Company. …Appellant(s) Versus District Collector, Chakwal, District Chakwal, etc. …Respondent(s) For the appellant(s): Mr. Waseem Sajjad, Sr. ASC. For the respondent(s): Mr. Mudassar Khalid Abbasi, AAG, Pb. With Syed Naveed Alam, AC. Kalar Kahar. Date of hearing: 26.04.2016. (Judgment Reserved) J U D G M E N T EJAZ AFZAL KHAN, J.- These appeals with the leave of the Court have arisen out of the judgment dated 13.11.2013 whereby Writ Petition No. 2645 of 2000 and C. R. No. 566-D of 2000 were dismissed. 2. Facts of the case in brief are that appellant obtained a loan of two billion Japanese Yen which at the relevant time was equal to Rs.64,52,72000/-. To secure the loan obtained the appellant hypothecated the machinery etc. and mortgaged the land mentioned in the mortgage-deed. On 09.05.1998 respondent No. 1 issued a notice to the appellant stating therein that stamp-duty in the sum of Rs.4,49,31,530/- has been evaded in the registration of mortgage- deed, therefore, it is liable to pay ten times penalty along with the actual stamp-duty which shot up to Rs.49,42,46,830/-. The appellant challenged the notice by filing a writ petition which was disposed of with the direction to respondent No. 1 to decide the CIVIL APPEALS NO. 613 AND 614 OF 2014 2 matter afresh after hearing the appellant. The respondent after hearing the appellant maintained the order passed earlier. The appellant to assail the order of District Collector filed Writ Petition No. 2645 of 2000. In the meantime, when a decree passed by the Civil Court was set aside by the Court of appeal the appellant also filed a C. R. No. 566-D of 2000. The writ petition as well as civil revision was dismissed by the High Court. The appellant filed petitions for leave to appeal before this Court which were granted by holding as under:- “Making reference to the registered mortgage deed dated 29.5.1996 and the leviable duty thereon in terms of Article 40 of the Stamp Act 1899, learned Sr. ASC for the petitioners contends that the payment of stamp-duty and registration fee on the mortgage deed was made strictly in accordance with law, but due to erroneous interpretation of relevant provision of the Stamp Act, 1899, (as applicable in the year 1996), the Collector had illegally calculated further liability of Rs.4,49,31,530/- against the petitioner with additional sum equal to five times of the purported payable duty as penalty, without taking into consideration the fact that the question of payment of penalty was not at all involved in the present case as there was no concealment or misstatement of facts from the side of the petitioner at the time of execution and registration of mortgage deed dated 29.5.1996. He further adds that since possession of mortgage property was not given to the mortgagee, as evident from its contents, the leviable stamp-duty in terms of Article 40 of the Stamp Act was as on a Bond (Article No: 15) for the amount secured by such bond and not as payable (article No:23) on a conveyance deed. 2. Contention raised need consideration. Leave to appeal is accordingly granted in these two connected petitions. The appeal paper books may be prepared on the basis of available record within two months. Additional documents, if any, within one month. Since government revenue is involved in these cases office is directed to fix the appeals arising out of these petitions for hearing within six CIVIL APPEALS NO. 613 AND 614 OF 2014 3 months. In the meantime, the interim order dated 9.1.2014 shall continue to remain in force.” 3. Learned ASC appearing on behalf of the appellant contended that when possession of the property or any part thereof comprised in such deed is not given or agreed to be given by the mortgagor, the case of the appellant would be covered by Article 40(b) and not 40(a) of the First Schedule of the Stamp Act, 1899, therefore, the amount of stamp-duty shall be charged as on a bond covered by Article 15. Learned Sr. ASC next contended that Collector under Section 48 of the Stamp Act could have recovered the duties, penalties and other sums required to be paid, under Chapter IV of the Stamp Act if the instrument had been produced in evidence and impounded on account of being deficiently stamped in view of the provisions contained in Sections 33 and 38 of the Stamp Act. But where, he added, it was neither produced nor impounded, the Collector could not recover duties, penalties or other sums as is evident from the language used in Section 48 of the Act. To support his contention, learned Sr. ASC placed reliance on the cases of Hanuman Prasad. Vs. The State of Rajasthan (AIR 1958 Rajasthan 291), Thakar Das and others. Vs. The Crown (AIR 1932 Lahore 495), Dairy Farm. Vs. Emperor (AIR 1942 Lahore 257), Chandrahasji Maharaj. Vs. Chief Controlling Revenue Authority (AIR 1986 Madhya Pradesh 132), Lala Uttam Chand. Vs. Perman Nand and others (AIR 1942 Lahore 265), Abdur Rehman. Vs. Raabia Bibi (PLD 1984 Lahore 407), Imtiaz Rafi Butt. Vs. The Lahore Development Authority (PLD 1996 Lahore 663). The learned Sr. ASC lastly argued that where there is nothing on the record to show that the appellant willfully under-stamped the deed to evade the payment of the CIVIL APPEALS NO. 613 AND 614 OF 2014 4 proper stamp-duty, it cannot be subjected to any penalty. Learned ASC to support his contention placed reliance on the cases of Smt. Kamla Devi. Vs. The Chief Controlling Revenue Authority, Delhii (AIR 1966 Punjab 293) and Messrs Humayun Ltd. Vs. Pakistan and others (PLD 1991 SC 963). 4. The learned Assistant Advocate General, Punjab appearing on behalf of the respondent contended that where the mortgagor covenanted in the mortgage-deed that in the event of default on its part in payment of the mortgage money or part thereof, in accordance with the provisions of the agreement, the lender shall have the right to sell without intervention of the Court, title as well as possession of the property has been transferred to the mortgagee, therefore, the case would fall within the purview of the Article 40(a) of the First Schedule of the Stamp Act. The learned AAG next contended that the words “or comes in the performance of his functions” used in Section 33 of the Stamp Act are wide enough to cover the situation emerging in this case, and that the view taken by the learned Single Judge of the High Court being in conformity with the provisions of the Act is not open to any exception. 5. We have gone through the record carefully and considered the submissions of the learned Sr. ASC for the appellant as well as the learned AAG for the respondent. 6. Before we appreciate the arguments addressed at the bar it is worthwhile to refer to the relevant Articles 15 and 40 of the First Schedule of the Stamp Act which run as under :- “ Sr. No. Description of Instrument Proper Stamp- duty 15. Bond as defined by section 2(5) not being a DEBENTURE (No. 27) and not being otherwise Fifteen rupees. CIVIL APPEALS NO. 613 AND 614 OF 2014 5 provided for by this Act, or by the Court Fees Act, 1870— (i) where the amount or value secured does not exceed five hundred rupees Fifteen rupees. (ii) where it exceeds five hundred rupees, for every additional amount of five hundred rupees or part thereof. See ADMINISTRATION BOND (No. 2). BOTTOMERY BOND (No. 16) CUSTOMS BOND (No. 26) INDEMNITY BOND (No. 34) RESPONDENTIA BOND (No.56), SECURITY BOND (No. 57), Exemption Bond when executed by any person for the purpose of guaranteeing that the local income derived from private subscription to a Charitable dispensary or hospital or any other object of public utility shall not be less than a specified sum per mensem. Fifteen rupees. AND Sr. No. Description of Instrument Proper Stamp- duty 40. MORTGAGE DEED not being an AGREEMENT RELATING TO DEPOSIT OF TITLE-DEEDS, PAWN OR PLEDGE (No. 6), BOTTOMERY BOND (No. 16) MORTGAGE OF A CROP (No. 41) RESPONDENTIA BOND (No. 56), OR SECURITY BOND (No. 57). (a) When possession of the property or any part of the property comprised in such deed is given by the mortgagor or agreed to be given; The same duty as on a Conveyance(N o. 23) for a consideration equal to the amount secured by such deed. (b) When a possession is not given or agreed to be given as aforesaid; The same duty as on a Bond (No. 15) for the amount secured by such deed. “ 7. A glance at the table would reveal that where possession is not given or agreed to be given, the stamp-duty shall be charged on the amount secured by such deed as is provided by Article 15 of the First Schedule of Stamp Act. The question thus arises whether possession in this case has been given to the mortgagee. CIVIL APPEALS NO. 613 AND 614 OF 2014 6 The answer to the question is an emphatic no as the words used in Clause 4(vii) of the agreement that “the mortgagor shall not without the prior written consent of the lender part with possession of the mortgage property” unmistakably show that possession has not been given to the lender. The argument of the learned AAG addressed on the strength of Clause 3 of the agreement is misconceived as the lender’s right to sell the mortgage property without intervention of the Court would accrue only, if the mortgagor defaults in payment of mortgage money and not otherwise. It, therefore, follows that the case of the appellant is covered by Article 15 and not Article 40(a) of the First Schedule of the Stamp Act. It thus has to be charged accordingly. 8. The other question emerging for the consideration of this Court is as to when the Collector can recover duties, penalties and other sums required to be paid, under Chapter IV of the Stamp Act. Sections 33, 38 and 48 of the Act provide the answer which read as under :- “33. Examination and impounding of instruments: (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For this purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in Pakistan when such instrument was executed or first executed: Provided that – CIVIL APPEALS NO. 613 AND 614 OF 2014 7 (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII of Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of a High Court the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, -- (a) the Provincial Government may determine what offices shall be deemed to be public offices; and (b) the Provincial Government may determine who shall be deemed to be persons incharge of public offices. 38. Instruments impounded how dealt with: (1) When the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the collector, or to such person as may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the collector. 48. Recovery of duties and penalties: All duties, penalties and other sums required to be paid under this chapter may be recovered by the Collector by distress and sale of the movable property of the person from whom the same are CIVIL APPEALS NO. 613 AND 614 OF 2014 9 instrument in question came before the Collector not once but thrice in the performance of his functions after its registration. The last argument of the learned Sr. ASC for the appellant that where there is nothing on the record to show that the appellant willfully under- stamped the deed to evade the payment of the proper stamp-duty it cannot be subjected to any penalty, does not deserve unqualified acceptance when provisions contained in Articles 40 and 15 of the First Schedule of the Act being clear and unambiguous do not admit of more than one interpretation. The judgments rendered in the cases of Smt. Kamla Devi. Vs. The Chief Controlling Revenue Authority, Delhii and Messrs Humayun Ltd. Vs. Pakistan and others (supra) are not applicable when the appellant through the civil suit and the writ petitions tried to justify what was unjustifiable. However, in the circumstances of the case, we hold that five times penalty is too harsh and that two times penalty of the deficient portion of the duty would be sufficient to meet the ends of justice. 10. The short and long of what has been discussed above, Civil Appeal No. 613 of 2014 is partially allowed and the impugned judgment is modified to the extent hinted to above while Civil Appeal No. 614 of 2014 is dismissed. JUDGE JUDGE Announced in open Court at Islamabad on 05.05.2016. JUDGE ‘Not Approved For Reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) Present. Mr. Justice Nasir-ul-Mulk, HCJ. Mr. Justice Amir Hani Muslim Mr. Justice Ejaz Afzal Khan CIVIL APPEALS NO.616 AND 617 OF 2006 (On appeal against the judgment dated 16.2.2006 passed by the Lahore High Court, Lahore in ICA No.12/2005 and the order dated 27.2.2006 passed in CM No.69/2006 in ICA No.12/2005) Mian Javed Amir and others (in both cases) … Appellants Versus United Foam Industries (Pvt) Ltd, Lahore (CA.616/06) Sh. Combined Industries (Pvt) Ltd and others (CA.617/06) … Respondent(s) For the Appellants : Mr. Aitzaz Ahsan, Sr. ASC (in both cases) Mr. Uzair Karamat Bhandari, ASC Mr. M. S. Khattak, AOR For Respondents (1-10): Mr. Raza Karim, Sr. ASC (in CA.616/06) and Mr. Omar Alvi, ASC Respdt.2-11 in CA.617/06) For Respondent No.12: Mr. Hamid Khan, Sr.ASC. (in CA.616/06 and Respondent No.1 in CA.617/06) Date of hearings : 10, 15-16 & 18-6-2015. JUDGMENT AMIR HANI MUSLIM, J. These Appeals by leave of the Court are directed against the common judgment dated 16.2.2006, passed by the Lahore High Court, Lahore, whereby ICAs No.11-L & 12-L/2005 filed by the Respondents were allowed and judgments of the learned Single Judge/Company Judge dated 7.6.2005, in C.O.No.3/2005, were set aside. The Appellant filed CMs.No.68 & 69 of 2006 for recalling the order dated 16.2.2006 which was dismissed vide impugned order dated 27.2.2006. C.As.No.616 & 617/06. 2 2. Brief facts of the case are that Respondent No.1 United Foam Industries (Pvt) (herein after referred to as ‘the Company)] was incorporated on 12.3.1976 under the Companies Act 1913 and presently operating under the Companies Ordinance 1984. The Company was a joint venture of Appellant No.1 and Respondent No.2 and the Appellants were shareholders to the extent of 38%. The dispute arose between the parties with regard to the alleged transfer of shares by the Respondents. The Appellants challenged the said transfer of shares before the Company Judge under Section 305 and 152 of the Companies Ordinance, 1984 praying for winding up of the Company and also for the rectification of register of shareholders on the ground that the Respondents had manipulated the record and made bogus entries in the register to show that Appellants had sold out to them their shares. By filing written statements the Respondents denied the allegations leveled against them by the Appellants and also leveled counter allegations. On 7.6.2005 the learned Company Judge referred the matter to the SECP for appointment of a reputable Inspector within 14 days to investigate into the allegations levelled by the parties against each other, with direction to file report within two months. 3. The Respondents M/s Sheikh Combined Industries (Pvt) Ltd and United Foam Industries (Pvt) Ltd, challenged the order dated 7.6.2006 by filing separate ICAs which were allowed, holding that the Civil Court would be the appropriate forum for adjudication of the controversy between the parties. Being aggrieved of the said order, the Appellants filed CMs No.68 & 69 of 2006, which, too, were dismissed vide order dated 27.2.2006. The said orders were challenged by the Appellants in Civil C.As.No.616 & 617/06. 3 Petitions No.475-L & 480-L of 2006, wherein leave to Appeal was granted to consider the following questions : - i. Whether the learned Division Bench having concurred with the finding of the learned Company Judge with regard to the existence of serious disputes qua the management and running of the company was justified in law to interfere with the direction for appointment of an Inspector to investigate in terms of the observations made by the learned Company Judge in para-9 and 10 of the order passed by him? ii. Whether the order passed by the learned Company Judge for appointment of Inspector to investigate into the affairs of the Company was beyond the parameters of Section 265 of the Companies Ordinance? iii. Whether the transfer of shares recorded by Company in its register of share holders in the absence of share certificate pertaining to those shares is not unlawful? iv. Whether the order of the learned Company Judge could be interfered with on the sole ground that the civil suits between the parties were pending decision? v. Whether a civil court is a proper remedy to investigate the allegations/counter allegations or the circumstances and the mandate of law warrant a more pro-active remedy under the special law i.e. Inspector having the requisite expertise to investigate in terms of Section 265 of the Companies Ordinance? vi. Whether the learned Company Judge instead of referring the matter for investigation by an Inspector to be appointed by the Security Exchange Commission of Pakistan could decide the same himself in terms of Section 152 read with Section 305 of the Companies Ordinance? 4. The learned Counsel for the Appellants had contended that Civil Suit is not the appropriate remedy in the present case as the remedy has been provided in the special statute i.e. Companies Ordinance 1984. He C.As.No.616 & 617/06. 4 referred to sections 263 and 265 of the Companies Ordinance 1984, which provide for appointment of an Inspector and confer powers on him to investigate into the affairs of the Company. The learned Counsel, in support of his contention, has relied upon the case reported in the case of Light Metal and Rubber Industries (Pvt) Ltd. Vs. Serfraz Quadri (2011 CLD 1485). 5. He next contended that the Appellant is in possession of the original share certificates, without which shares cannot be transferred under Section 76 of the Ordinance. In support of his contention he has relied upon the case reported as Mst. Maqsooda Begum Vs. Maulvi Abdul Had (PLD 1968 Lahore 903). 6. He further contended that the scope of Section 265 of the Ordinance is very wide, as has been held in the case of Mian Miraj Din vs. Brothers Steel Mills (1996 CLC 516). He submitted that the matters which fall within the domain of the Companies Ordinance, a special procedure has been provided which debars the jurisdiction of the Civil Court. 7. The learned Counsel for the Appellants, Mr. Aitzaz Ahsan Sr. ASC submits that there exists a serious dispute between major shareholders of the Company. According to him, under Section 265 of the Companies Ordinance, 1984, the Court can itself appoint an Inspector for investigation. The Appellant alleges that he is owner of 38% shares in the Respondent- Company, out of which 23% shares have purportedly been transferred. The learned Counsel contended that these questions are required to be investigated by the Inspector. C.As.No.616 & 617/06. 5 8. He has further contended that three separate Civil Suits have been filed; one prior to the petition for winding up of the Company and for determination of shareholding whereas two were filed subsequent to the Petition, claiming damages. He referred to the case of Khaqan Industries vs. Islamic Republic of Pakistan (1979 SCMR 62) wherein it was held that pendency of civil litigation is no bar to initiate proceedings before the Company Judge under the Companies Ordinance. He also referred to Section 314 of the Ordinance, which authorizes the Company Judge to pass any order it deems just. He further referred to Section 281, which provides that an inquiry or investigation shall not affect the winding up proceedings. He, therefore, contends that the power to hold inquiry or investigation exists independent of any proceedings provided for winding up. 9. The learned Counsel further contended that in the case of Mian Miraj Din (1996 CLC 516), the Court investigated into the internal disputes in Ittefaq Group regarding breach of trust and misappropriation of funds and the findings of the High Court were upheld by this Court in Brothers Steel Ltd. and others vs. Mian Miraj Din (PLD 1995 SC 320). He also relied upon the case of Attock Refinery Ltd. Vs. Executive Director Enforcement and Monitoring Division, SECP (PLD 2010 SC 946). He also referred to Section 152 of the Ordinance, which permits a party to file an application for rectification of register of shareholders. 10. He contended that in the case of Lahore Race Club through Secretary vs. Raja Khushbakhat-ur-Rehman (PLD 2008 SC 707), it was held that no Civil Suit between the parties shall affect the jurisdiction of the Company Court. He contended that the Civil Suits pending between the parties have no nexus with the present Appeal. The learned Counsel C.As.No.616 & 617/06. 6 referred to Section 76 of the Ordinance, which provides that shares shall not be transferred unless the Transfer Deed is properly executed and the scripts are transferred. Therefore, the transfer of shares recorded in the register in absence of share script was not lawful. 11. On the other hand, the learned Counsel Mr. Hamid Khan has contended that the findings in regard to ownership of shareholding can only be recorded by a Civil Court of competent jurisdiction. He relied upon the case reported as Lahore Race Club through Secretary (PLD 2008 SC 707). The learned Counsel submitted that out of 38% disputed shareholding, 15% shareholding was initially sold and the remaining 23% was sold to his client in 2001. The Appellants, therefore, filed Civil Appeal No. 616 of 2006) under Sections 152 and 305. In the prayer, it has been stated that transfer of shares, increase in share capital and allotment of shares shall be declared illegal. It was further prayed that register of shareholders shall be rectified and the Company should be wounded up. He submitted that the Inspector appointed under Section 265 does not have the authority to rectify the register of shareholders or order winding up. Therefore, the reliefs claimed under the prayer do not fall within the powers of Inspector under Section 265. He contended that the Inspector does not have the powers to decide the disputes between shareholders regarding the ownership/title of shares. He submitted that the Company Judge has passed an order which does not fall within the ambit of Section 265. 12. He next contended that the dispute of the nature cannot be resolved in summary manner and requires adjudication by the Civil Court, after recording of comprehensive evidence. He submitted that the Civil Court is the appropriate forum to decide the dispute of ownership of C.As.No.616 & 617/06. 7 shareholdings between two major shareholders, after proper investigation and recording of evidence. He has relied upon the cases reported as Muhammad Aslam Javed vs. Malik Ijaz Ahmed and another (2003 YLR 2150), Muhammad Ahmed vs. Associate Engineering Concern (Pvt) Ltd (1998 CLC 426), Lahore Race Club through Secretary (PLD 2008 SC 707), Messrs Ammonia Supplies Corporation Ltd vs. Messrs Modern Plastic Containers Pvt Ltd. (AIR 1998 S.C. 3153) and Messrs Ammonia Supplies Corporation Ltd. Vs. Messrs Modern Plastic Containers Pvt. Ltd (AIR 1994 Dehli 51). 13. Mr. Raza Kazim, the learned Counsel for the Respondent No.1 has submitted that the main issue before the court is the allegation by the Appellant that the Respondent has committed fraud/forgery. He contended that if it is held that these shares were legally sold, then the Appellants have no locus standi as they were ceased to be the members of the Respondent Company. And in case it is determined that fraud/forgery has been committed by the Respondents, the register of shareholders shall be rectified. He has submitted that in order to settle this issue, some evidence is required to be recorded. To determine the allegation of fraud, the most important material is the examination of signatures by the handwriting expert, and this cannot be undertaken by an Inspector. He submitted that the recording of statements and cross-examination should be done in the High Court under the Companies Ordinance, as it does not involve an enormous record to be looked into. He submitted that the point in issue is very limited and can be undertaken by the Company Judge. 14. He next contended that there is no restriction on the Company Judge to try this matter and record evidence under Section 9 of Companies C.As.No.616 & 617/06. 8 Ordinance. He contended that the concept of summary procedure relates to time that the case should be decided expeditiously, within 90 days. In support of his contention, he relied upon the case reported in Messrs Platinum Insurance Company Ltd. Karachi Vs. Daewoo Corporation Sheikhupura through Director Admn and Finance (PLD 1999 SC 1), wherein it was held that summary procedure adopted must be fair and just and it does not debar a Court from recording evidence. 15. We have heard the learned Counsel for the parties at length and have perused the record. The Appellant filed proceedings before the learned Company Judge under the provisions of Sections 152 read with Section 305 of the Ordinance for winding up of the Company and for rectification of register of shareholders. The learned Company Judge referred the matter to the Security and Exchange Commission for appointing an Inspector to investigate into the affairs of the company and report within two months. The Respondents challenged the order of the learned Company Judge in I.C.A before a Division Bench, which set aside the orders of the Company Judge and directed the parties to approach the Civil Court for resolution of their dispute. 16. The question which arises from these proceedings is whether a Court having jurisdiction under the Ordinance can undertake the exercise of recording oral/documentary evidence and decide disputed questions of fact in an Application under Section 152 of the Ordinance, in view of the restriction contained under Section 9(3) of the Ordinance. Section 9(3) of the Ordinance provides that “in the exercise of its jurisdiction as aforesaid, the Court shall, in all matters before it, follow the summary procedure.” In C.As.No.616 & 617/06. 9 our opinion, this Section does not abridge or curtail the power of the Court to record oral evidence or receive documentary evidence in the proceedings before it to determine the issues relating to a “Company” or its members covered under the Companies Ordinance, 1984. 17. Section 9 of the Code of Civil Procedure provides:- “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 nature excepting suits of which their cognizance is either expressly or impliedly barred.” Since the Ordinance was promulgated with an intent to amend the law relating to companies and certain other associations for the purpose of healthy growth of the corporate enterprises, protection of investors and creditors, promotion of investment and development of economy and matters arising out of or connected therewith, therefore, all matters relating to companies irrespective of the fact whether factual controversy is involved or not are required to be tried by a Court having jurisdiction under the Ordinance of 1984. Mere insertion of the term “summary procedure” does not debar the Company Judge from receiving evidence in cases where factual controversy is involved. The Court having jurisdiction under this Ordinance can receive evidence in cases it thinks appropriate in the circumstances of the case. 18. In order to gather the true intent of the legislature and the purpose of the Ordinance, it would be advantageous to reproduce Section 152 of the Ordinance:- “Power to Court to rectify register (1) If— (a) the name of any person is fraudulently or without sufficient cause entered in or omitted from the register C.As.No.616 & 617/06. 10 of members or register of debenture-holders of a company; or (b) default is made or unnecessary delay takes place in entering on the register of members or register of debenture-holders the fact of the person having become or ceased to be a member or debenture-holder; the person aggrieved, or any member of debenture-holder of the company, or the company, may apply to the Court for rectification of the register. (2) The Court may either refuse the application or may order rectification of the register on payment by the company of any damages sustained by any party aggrieved, and may make such order as to costs as it in its discretion thinks fit. (3) On any application under sub-section (1) the Court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or debenture-holders or alleged members or debenture-holders, or between members or alleged members, or debenture-holders or alleged debenture-holders, on the one hand and the company on the other hand; and generally may decide any question which it is necessary or expedient to decide for rectification of the register. (4) An appeal from a decision on an application under sub- section (1), or on an issue raised in any such application and tried separately, shall lie on the grounds mentioned in section 100 of the Code of Civil Procedure, 1908 (Act V of 1908): (a) if the decision is that of a civil court subordinate to a High Court, to the High Court; and (b) if the decision is that of a Company Bench consisting of a single Judge, to a Bench consisting of two or more Judges of the High Court” 19. In order to carryout the purposes of the above Section and the Ordinance itself and to determine the factual controversy between the parties, a Court having jurisdiction under the Ordinance has ample power to record evidence in cases it deems fit. The object of Section 152 of the Ordinance, which relates to factual controversy, cannot be achieved without entering into in-depth investigation and recording of evidence. Therefore, we hold that there is no legal bar for a Company Court to enter into factual inquiry, framing of issues for determination and recording of oral as well as documentary evidence in coming to the just conclusion of the case. C.As.No.616 & 617/06. 11 20. The learned Company Judge has also erred in law while directing the S.E.C.P to appoint an Inspector who shall submit a report as to whether a case under Section 305 is made out or not. Suffice it to observe that the power to appoint an Inspector under Sections 263 and 265, vests with the Commission on an application by a member of the company or the Registrar of the Commission. The areas in which the Inspector was directed to investigate falls within the jurisdiction of the Company Court and can be investigated and looked into by a Company Judge itself. 21. The dictionary meaning of the term “Summary Proceedings” referred to in Section 9 of the Ordinance of 1984, is “to be disposed of promptly in simple manner out of regular course of the common law”. This term by itself does not impose any restriction on the forum from recording evidence to reach a final conclusion. Section 9 of the Ordinance of 1984 does not exclude the jurisdiction of the Court to decide the controversial facts. 22. We, for the aforesaid reasons, are of the considered view that a Court having jurisdiction under the Ordinance of 1984 can record oral as well as documentary evidence in any dispute brought before it for adjudication and the learned Division Bench of the High Court fell in error in holding that the Civil Court would be the appropriate forum for resolving the controversy between the parties. 23. The above are the reasons of our short order of even date, which is reproduced hereunder:- “For reasons to be recorded later, the appeals are partly allowed in the terms that while C.As.No.616 & 617/06. 12 setting aside the impugned judgment of the Division Bench of the Lahore High Court, the order of the Company Judge is modified to the extent that the exercise of rectification of register of shareholders as well as the issue of winding up shall be examined and decided by the Judge himself instead of referring the same to the Inspector” CJ J J Islamabad the, 16th June, 2015. APPROVED FOR REPORTING. Sohail/**

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present Mr. Justice Mian Saqib Nisar Mr. Justice Ejaz Afzal Khan Mr. Justice Umar Ata Bandial CIVIL APPEAL NO. 620 OF 2006 (On appeal from the judgment dated 11.07.2005 passed by High Court of Sindh, Karachi in Const.P.1207 of 2004) Mansoor Sharif Hamid & others … … Appellants Versus Shafique Rehman & others … … Respondents For the appellant : Mr. Khalid Anwar, Sr. ASC. Mr. Afsar Abidi, ASC. For respondent No.10 : Syed Jamil Ahmed, ASC. Respondent No.3 : Ex-parte. For remaining respondents: Nemo. Date of hearing : 24.02.2015. JUDGMENT UMAR ATA BANDIAL, J.— This appeal by leave of the Court is directed against the judgment of the learned High Court of Sindh, Karachi dated 11.07.2005. The impugned judgment declares the alteration made by the appellant in the layout plan of his private housing settlement, involving the relocation of two plots reserved respectively for a mosque and a clinic at a short distance within the same area, as amounting to conversion of amenity plots contrary to Article 52-A of the Karachi Development Authority Order, 1957 (“KDA Order”) and the law laid down by this Court in Abdul Razzak vs. Karachi Building Control Authority (PLD 1994 SC 512). CA.620/2006 2 2. The leave granting order dated 20.04.2006 passed in this matter is in the following terms: “After hearing the learned counsel for the petitioners as well as the Additional Controller of Karachi Building Control Authority, we grant leave to appeal to consider, inter alia, the question whether the plot No. SD-I in KDA Scheme No.3, measuring 12 hundred Square Yards was not an amenity or residential plot and whether the bar contained in Section 52-A (Clauses 2, 3 & 4) of the KDA Ordinance 1958, as amended by KDA (Sindh Amendment) Act, 1994 was attracted to the plot in dispute. Since a short point is involved, let the main appeal be set down for final hearing, on its present record, within a period of 4 months. Meanwhile, status-quo in respect of the property in dispute shall be maintained by all the parties concerned.” 3. The private respondents No.1 to 8 before us were petitioners in a constitution petition decided by the learned High Court through the impugned judgment. These respondents have failed to appear or be represented before this Court on any date of hearing. An adjournment application made on behalf of respondent No.7 was allowed on 09.02.2010. However, thereafter, on five dates of hearing, none has entered appearance on her behalf. Although the substituted service of respondents No.1 to 8 by proclamation published on 20.01.2015 in the Daily News and Daily Jang (Karachi Edition) had been effected for hearing on 27.01.2015, however, this Court refrained on that date of hearing to proceed ex-parte against them, for the reason that thirty days time mentioned in the publication had not elapsed. Fresh notices were sent again to the respondents for today’s hearing. Report of the process- server available on record reveals that some of the respondents refused to accept service; others were served through affixation whilst a few have shifted their addresses. As is apparent from the order sheet, the Court has made repeated efforts to secure the representation of the private CA.620/2006 3 respondents in the present proceedings, but to no avail. Resultantly, this matter has awaited adjudication since 2006. After the lapse of nine years of futile effort to procure representation of the said respondents, the Court is left with no option but to proceed against them ex-parte. It is so ordered. 4. The salient facts of the case are that land measuring 11.35 acres belonging to one Mst. Nargis Mistri was acquired by the Karachi Development Authority (“KDA”) sometime prior to 1982. No compensation for such acquisition was paid to its private owner. The acquired land fell within the limits of KDA Gulistan-e-Johar Scheme No.36 (“KDA Scheme No.36”). By letter dated 18.12.1982 the KDA offered to lease the acquired land back to its original owner, Mst. Nargis Mistri with permission to develop a part of it as an adjunct to KDA Scheme No.36 subject to the following conditions: “i) The area of 4 acres containing fully grown trees would be maintained by the allottee as a garden. ii) The remaining area of the land measuring 7 acres was permitted for utilization, as per existing town planning rules and regulations, subject to approval by the KDA/Karachi Building Control Authority. iii) The allotment was subject to payment of annual ground rent, full occupancy value & fees and the outer development charges to KDA and concerned municipal authorities. iv) The allottee was made responsible for providing internal development facilities, such as water supply, sewerage system, storm water drainage at her own cost.“ 5. The appellant is the attorney/successor of the original owner. He was issued an allotment-cum-possession letter by the KDA on 18.06.1985 which restates the above mentioned conditions of land use and improvement. Learned counsel for the appellant has contended that as a result of the appellant’s compliance with the conditions conveyed by the KDA, a first layout plan of the appellant’s settlement, utilizing an area of 7.35 acres was submitted to the KDA. This plan was approved by KDA on CA.620/2006 4 19.08.1985. It envisaged a public park measuring 4 acres encircled by residential, commercial and amenity plots. In the present context, plots for a mosque and a clinic were shown along the south end of the public park. On 09.09.1985, the KDA approved a second layout plan proposed by the appellant. This plan shifted the said amenity plots earmarked for a mosque and a clinic to the northwest of the settlement, adjacent to a plot previously reserved for ‘commercial use’ in the first layout plan. Soon afterwards, a third layout plan of the said settlement proposed by the appellant was approved by the KDA on 20.06.1987. According to this plan, the location of only the clinic was shifted to the south end of the appellant’s settlement upgrading the clinic into a hospital and giving it a larger area. The plot vacated by the clinic on the northwest side of the settlement was again classified as ‘commercial’ in the third layout plan and designated as plot No.SD-I measuring 1200 Sq. Yards (“disputed plot”). 6. In their constitution petition filed in year 2004 the private respondents complained before the learned High Court that construction of a high-rise building was commenced unlawfully by the appellant on the erstwhile amenity plot reserved for a clinic. The appellant and the public respondents, in particular KDA and KBCA, had illegally converted that amenity plot into a commercial plot in violation of the conditions laid down in Article 52-A of the KDA Order. The counter affidavit filed in the learned High Court by the Deputy Controller of Buildings, KBCA refers correspondence by the Directorate of Land Management KDA Wing, CDGK reconfirming that the disputed plot is categorized as ‘commercial’. Accordingly, commission of illegality in the approval of the appellant’s building plan is denied. It is a matter of record that the location to which CA.620/2006 5 the plot for a clinic had been shifted under the appellant’s second layout plan dated 09.09.1985 was reserved for commercial use under the first approved plan dated 19.08.1985. However, by considering the second layout plan as being final and binding, the impugned judgment dated 11.07.2005 rejected the subsequent alteration made in the appellant’s third layout plan dated 20.06.1987. The finding is based firstly, on the principle laid down in Abdul Razzak’s case (supra) that an amenity plot cannot be converted to commercial use without inviting objections and obtaining the order of the government and secondly, on the prohibition imposed by Article 52-A(2) of the KDA Order. The said prohibition was incorporated in the KDA Order by means of the Karachi Development Authority (Sindh Amendment) Act, 1994. For the sake of convenience, the amending law is reproduced below: “WHEREAS it is expedient further to amend the Karachi Development Authority Order, 1957 in the manner hereinafter appearing: It is hereby enacted as follows: 1. (1) This Act may be called the Karachi Development Authority (Sindh Amendment) Act, 1994. (2) It shall come into force on and from 2nd May, 1994. 2. In the Karachi Development Authority Order, 1957, in Article 52-A for clauses (2), (3) and (4) and Explanation thereunder, the following shall be substituted:-- “(2) No amenity plot reserved for the purpose mentioned in clause (1) shall be converted to or utilized for any other purpose.” 3. The Karachi Development Authority (Sindh Amendment) Ordinance, 1994 is hereby repealed.” It is noted that the three layout plans of the appellant’s settlement were approved by the KDA during the period 1985 to 1987. On the other hand, the prohibition in Article 52-A(2) of the KDA Order was enacted in the year 1994. It is therefore apparent that the learned High Court applied the prohibition retrospectively to the appellant’s case whereas according to CA.620/2006 6 the language of the statutory amendment such an interpretation is not justified. Be that as it may, the un-amended Article 52-A of the KDA Order was in the field when the different layout plans submitted by the appellant were approved by the KDA. Accordingly, it is the original Article 52-A that applied to the case in hand for ascertaining the limitations, if any, imposed on alterations made in layout plans of a private housing settlement. Article 52-A was incorporated in the KDA Order through amendment made by the Sindh (Amendment of Laws) Ordinance, 1974 which is reproduced below: “After Article 52, the following shall be inserted:-- 52-A. (1) The Authority shall immediately after any housing scheme is sanctioned by, or altered with approval of, Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries, play-grounds, gardens, parks, community centres, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette. (2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in sub-section (1) apply to the Commissioner for conversion of such plot to any other purpose. (3) The Commissioner shall, on receipt of an application under subsection (2) invite objections from the general public through a notice published in one English and one vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice. (4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations along with the application and other connected papers to Government for orders.” 7. Learned counsel for the appellant has argued that while wrongly giving retrospective enforcement to the prohibition in Article 52-A of the KDA Order, the learned High Court has also ignored certain important facts of the case. On these facts the present case remains outside the ambit of Article 52-A(3) and (4) of the KDA Order which specify the procedure for the conversion of amenity plots to other use. The second CA.620/2006 7 layout plan submitted by the appellant was given final and overriding effect by the learned High Court although it was one of the amending layout plans. The disputed plot in the appellant’s third layout plan was located in the same area that was reserved for commercial use in the original/first layout plan. As such the third layout plan reinstated land use in that area. 8. More importantly, it is not alleged or shown by the private respondents No.1 to 8 that in 1987 when the disputed amendment in the layout plan was approved, the infrastructure and facilities of the appellant’s settlement had been implemented or that its plots had been announced for sale. It is more likely at that time the settlement was still on the drawing board rather than being occupied by residents. The documents on record show that the private respondent No.2 was the earliest amongst the objectors to get approval of KDA/KBCA dated 12.06.1998 for his house building plan submitted for plot No.B-16, Block 2, KDA Scheme No.36. Indeed, the private respondents No.1 to 8 herein do not claim in their constitution petition that they were either resident in or owners of property in the appellant’s settlement or KDA Scheme No.36 when the impugned amendment in the layout plan was approved. Also, the said respondents do not explain why the second layout plan of the appellant’s settlement dated 09.09.1985 enjoys primacy or finality because it is neither alleged to be notified in the gazette by the competent authority under Article 52-A(1) of the KDA Order nor to have been represented by the appellant for sale of plots to the public. On what criteria any of the three layout plans or indeed subsequent amendments thereto ought to be treated as final and binding is also not dilated by the learned High Court. The private respondents No.1 to 8 approached the CA.620/2006 8 learned High Court 17 years after the impugned amendment in the third layout plan was approved. It appears that they became aggrieved in 2004 by the construction commenced on the disputed plot by the appellant. Conversion of land usage is claimed by learned counsel to be a convenient but mistaken label given to their grievance by the petitioners before the learned High Court to advance their object of blocking construction of a high-rise building undertaken by the appellant on a commercial plot. The learned High Court statedly accepted that version without verifying the allegation with reference to the facts on record. Therefore, the impugned judgment unfairly judges the disputed layout plan and compliant construction activity, upon standards that apply to conversion of usage of residential or amenity plots that were being specifically used as such. 9. Since we have heard the present case in the absence of the objectors/private respondents therefore, we have considered the matter in issue and the material on record carefully so that no injustice is caused, in particular, to the public interest of the resident community in the neighbouring KDA Scheme No. 36. 10. Certain distinguishing features of the present case may be noticed at the outset. These differentiate the controversy herein from cases in which strict injunctive action against high-rise construction has been ordered by this Court. Firstly, the provisions of the layout plan of the appellant’s settlement were proposed autonomously in accordance with the KDA Regulations and without being tied to conditions laid down in the master plan of KDA Scheme No.36. Accordingly the said master plan dated 17.12.1995 (available at page-6 of CMA No. 4972 of 2011) shows the appellant’s settlement (situated in Survey No.1, measuring 11.35 acres in Deh Safooran, KDA Scheme No.36) as a blank rectangle marked ‘Private CA.620/2006 9 Land’. Nevertheless, the appellant’s settlement remains in a sense an appendage to the KDA Scheme No.36. Within the small area of 11.35 acres of the appellant’s settlement, the development work is permitted and therefore proposed in a circular band measuring 7.35 acres that encircles an existing garden measuring 4 acres. In the said development area, the appellant had discretion to locate specified land use categories, i.e. residential plots, commercial plots, amenity plots according to his choice. Clearly, the location of each land use category is subject to conformity with the land use ratios prescribed in KDA Regulations and the approval of the competent Building Control Authorities. Viewed in that context, the present case concerns legality of not the conversion but the relocation of an amenity plot, namely clinic/hospital within the circular band of development around the central garden of the appellant’s settlement. Secondly, the disputed relocation of an amenity plot by the appellant does not eliminate or reduce that amenity area but actually increases its size from 1200 sq yards to 2000 sq yards. Thirdly, the disputed amendment in the appellant’s layout plan was made when the settlement was still at the planning and project implementation stage. There is nothing on record to suggest that by 1987 the appellant’s second layout plan was imbued with finality because it had been notified under Article 52-A(1) of the KDA Order or that the appellant had represented or advertised it to the public for securing the sale of plots in the settlement. Also, the private respondents have not alleged that by the year 1987, they had become owners or occupiers of plots situate in or neighbouring the appellant’s settlement. In that background, it is evident that an amendment in the layout plan, that is neither notified nor executed nor represented to the public, cannot become a basis for asserting third party vested rights. CA.620/2006 10 Indeed, it is more than a decade later that the private respondents claim that they acquired proprietary rights in KDA Scheme No.36 after purchasing land and planning houses in the area. 11. To our minds, the above facts make the present case distinguishable from the existing legal precedents on the subject of conversion of residential or amenity plots for hosting high-rise commercial buildings. The allegation in the present case namely conversion of an amenity plot to commercial use was discussed and adjudicated in Ardeshir Cowasjee vs. Karachi Building Control Authority (1999 SCMR 2883). In that case the land reserved for a revolving restaurant in a public park on the Clifton beach was converted into a high-rise building comprising shops, apartments and a revolving restaurant. It was held that the conversion of an amenity plot was illegal because according to KDA’s notified Zonal Plan, only a revolving restaurant and not a commercial building was authorized to be constructed in the public park. The said park was already in public use. To alter the category of its land use, the public notice and objection procedure envisaged in Article 52-A(3) of the KDA Order had not been complied. Accordingly, the judgment struck down the conversion and affirmed the rule of strict enforcement Article 52-A(3) of the KDA Order. Abdul Razak vs. Karachi Building Control Authority (PLD 1994 SC 512) was endorsed on the point that conversion of an amenity plot to another use without inviting and deciding objections is illegal. On facts that case involved the conversion of a residential plot to commercial high-rise construction in a developed housing scheme having residents. Such conversion was also held to be an abuse of discretion and therefore unlawful. The same view on the law was endorsed but on account of CA.620/2006 11 additional facts to yield a different result in Javed Mir Muhammadi vs. Haroon Mirza (PLD 2007 SC 472). Each of the said cases mandates the strict enforcement of the provisions of Article 52-A(3) and (4) of the KDA Order against landowners who converted land usage of their plots, located in schemes that were already in the use and occupation of the public, for construction of high-rise buildings. 12. The question that arises for determination is whether the facts of the present case attract that rule of strict enforcement of Article 52-A(3) and (4) of the KDA Order laid down in the afore-noted judgments of this Court? The impugned judgment by the learned High Court holds in the affirmative but by retrospectively enforcing the 1994 prohibition incorporated in Article 52-A of the KDA Order in relation to the disputed amendment in the appellant’s layout plan made in the year 1987. That is not a valid ground of decision. However, the failure to invite objections to the appellant’s disputed third layout plan under Article 52-A(3) of the KDA Order, prima facie, discloses a serious default in the appellant’s case. The need for such notice and if so, the effect of its non-issuance in the present case has, however, not been discussed by the learned High Court. 13. It stands to reason that there must be some pivotal event in the development stages of a housing scheme that fixes the starting point necessitating the issuance of public notice on a request for conversion of an amenity plot under Article 52-A(3) of the KDA Order. Article 52-A(1) of the KDA Order requires that details of amenity plots in a Scheme must be notified in the official Gazette. The notice under Article 52-A(3) ibid would plausibly become necessary after that notification because it makes a representation to the public about the details of amenity plots. There is CA.620/2006 12 no material on record to show that the details of amenity plots in the appellant’s settlement were ever notified in the official gazette under Article 52-A(1) of the KDA Order. However, considering that the official act of said notification of amenity plots had been delayed or prevented by some cause, valuable public and proprietary rights cannot be allowed to be defeated by an act of omission by the concerned functionary. It is in that context that the distinguishing factual features of this case already noted above assume importance. If the erstwhile layout plan had been represented to the public for sale of plots or for any other reason, or that the amenity plot in dispute had been laid out and was being used by the public, then the members of the public may claim a right to defend and protect the same. However, in the present case, neither of the said events are even alleged to have taken place prior to the disputed third layout plan of the appellant’s settlement. Add to this, the other features of this case, namely, the appellant’s freedom and discretion to locate amenity plots, the early stage of amendment of the layout plan of the settlement during its implementation, the relocation rather than conversion of an amenity plot at the said embryonic stage of development of the settlement and the non-existence of any private or public rights at that time in the layout of the settlement. These aspects of the matter militate the control of Article 52-A of the KDA Order over the appellant’s third layout plan. 14. Under Article 40 of the KDA Order, Zonal Plans of urban areas must be notified in the Gazette. These demarcate land reserved for specified purposes like residential, commercial, industrial, recreational use, etc. Change in the use of land reserved for one purpose in the Zonal Plan to another must be preceded by public notice and hearing of CA.620/2006 13 objections by the KDA. Since Zonal Plans deal with large areas of land, hence it is neither alleged nor apparent from the record that any Zonal Plan delineating the appellant’s settlement was ever issued. Therefore, it appears that neither Article 52-A nor Article 40 of the KDA Order requiring public notice, hearing and determination of objections prior to allowing change of land use in a housing scheme applies to the present case. The premature enforcement of the said statutory safeguards under the KDA Order would thwart and arrest the object of the law, namely, land development through planned housing schemes that serve the interest of the public. 15. For testing the validity of KDA’s approval of the appellant’s third layout plan under the KDA Order and regulations, the material date is 20.06.1987. If the said action by KDA complies the legal requirements as on 20.06.1987 then adherence of that amended layout plan to KDA building and construction regulations current in the year 2003 is not relevant because as noted above no third party interest could be adversely affected by those changes made in the layout plan. Secondly, it is not contested that the relocation of the disputed amenity plot, namely, clinic/hospital from one commercial area to another within the settlement scheme fully complied the KDA regulations prescribing land usage ratios reserved for commercial areas and also for amenity plots in the appellant’s settlement. Hence, no objection on this score has been taken against the validity of KDA’s approval dated 20.06.1987. We therefore consider that non-compliance of the disputed layout plan with the KDA and KBCA regulations has not been made out on the present record. Accordingly, on CA.620/2006 14 its merits the approval of the appellant’s third layout plan is lawful and effective. 16. Indeed the essence of the law enunciated on the subject is also the same. The rule has been reiterated consistently by this Court in Abdul Razzak’s case (1994; ibid) and Javed Mir Muhammadi’s case (2007; ibid) both relating to conversion of residential plots in developed areas of a housing scheme to commercial use on the one hand and in Ardeshir Cowasjee’s case (1999; ibid) concerning conversion of a portion of an amenity plot to commercial use as a high-rise building on the other hand. It is ruled that the law restricting conversion of land usage in housing schemes is not to be applied rigidly and pedantically but is meant to protect the public interest and public convenience. Reference is made to the apt observations made in this behalf in the Ardeshir Cowasjee’s case: “20. The perusal of the abovequoted extracts from the above judgments indicates that in the case of Abdul Razak, this Court has held that the power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity of the nature which does not change the complexion or character of the original proposed construction nor it adversely affects third parties’ rights/interests. It has been further held that the paramount object of modern city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities and that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. It has been further held that deviation from the planned scheme will naturally result in discomfort and inconvenience to others. It has also been held that framing of a housing scheme does not mean simpliciter, leveling of land and carving out of plots, but is also involves working out approximate requirement of water, electricity, gas, sewerage lines, streets and roads etc. and if a housing scheme is framed on the assumption that it will have residential units 1 + 1 but factually the allottees of the plots are allowed to raise multi-storeyed buildings having flats, the above public utility services will fall short of requirements, with the result that everyone living in the aforesaid scheme will suffer. It has also been held that to reduce the miseries of most of the Karachiites, it is imperative on the public functionaries like the Authority to ensure adherence to the Regulations. However, it has also been clarified that it may not be understood that once a scheme is framed, no alterations can be made. Alterations in a scheme can be made for the good of the people at large, but not CA.620/2006 15 for the benefit of an individual for favouring him at the cost of other people.” … … The power to regularize contained in the Ordinance and the Regulations is intended and designed to be exercised when irregularity is of the nature which does not change the complexion or character of the originally proposed construction. The Government or the Authority under the Ordinance does not enjoy unbridled or unfettered power to compound each and every breach of the Regulations. The Regulations should be applied for the benefit of the public and not for favouring an individual. Simpliciter the factum, that on account of tremendous increase in the population in Karachi the situation demands raising of high- rise buildings, will not justify the conversion of residential plots originally intended to be used for building ground-plus-one and allowing the raising of high-rise buildings thereon without providing for required water, electricity, gas, sewerage lines, streets and roads etc.” (emphasis provided) The provision and preservation of suitable infrastructure in the target area of a development scheme as a public interest requirement of the law is particularly evident from the above quoted observations in Ardeshir Cowasjee’s case. The infrastructural facilities of a housing scheme or society like electricity, water, gas, roads, sewerage, etc. can be overburdened dramatically when land reserved for residential purposes is converted to commercial use. Equally, public interest suffers through deprivation when amenity plots are converted to other use. The irregular and unlawful conversion of plot usage creates undue congestion and load on the infrastructure and facilities of a housing scheme which puts the entire community to injury and loss. To prevent such congestion is the primary consideration of this Court in ordering the strict enforcement of building and land usage laws. 17. However, in a case where the relocation (as against elimination or curtailment) of an amenity plot in a scheme takes place prior to or during the stage of implementation of its infrastructural provisions or before representation to or use by the public, the changes CA.620/2006 16 made in the layout plan should not injure public interest. This is because the proposed changes can anticipate and cater any increased requirements resulting from the relocation by making adjustments in the design and planning of the infrastructural provisions of the scheme. Without such adjustment there cannot be any merit to approvals granted by the KDA because an amended scheme without adequate infrastructure and facilities would forebode injury to and deprivation of convenience and comfort of the residents in such scheme. This aspect of the matter in such cases demands vigilance, attention and certification of the approving authorities namely KDA & KBCA rather than injunctive actions by members of the public based upon false presumptions of irregular conversion of land usage by a proponent of a private housing settlement. 18. Accordingly, the upshot of the foregoing discussion is that Article 52-A of the KDA Order has been overstretched by the impugned judgment to apply in this case wherein the requisite ingredients for judicial intervention on that account are lacking. This is however, without prejudice to the enforcement of Articles 40 & 52-A of the KDA Order by residents/owners from the public against amendments made after the notification of the appellant’s layout plan or the acquisition of proprietary interest by the objecting members of the public in any plot neighbouring the disputed commercial plot or any changes made to an amenity plot after amendment of Article 52-A in 1994. Also the respondent KDA and KBCA are directed to ensure that the appellant’s disputed third layout plan and allied specifications faithfully comply the terms of the allotment letter dated 18.06.1985 and also make provision for adequate CA.620/2006 17 infrastructural facilities that sustain the erection of the proposed high-rise building on the said plot. 19. For the foregoing reasons, this appeal is allowed and impugned judgment dated 11.07.2005, passed by the learned High Court of Sindh in Constitution Petition No. 1207 of 2004 is set aside. No order as to costs. J. J. Islamabad, J. 24.02.2015. Irshad Hussain /* APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEALS NO.622 & 623/2008 AND 1403 & 1404/2009 (Against the judgment dated 24.10.2007/8.5.2009 of the High Court of Sindh, Karachi passed in ITA Nos.1114 & 1115/1999, 485 & 486/2000) 1. M/s Squibb Pakistan Pvt. Ltd. Vs. Commissioner of Income Tax In C.As.622 & 623/2008 2. Commissioner Income Tax (Legal Division) Large Tax Payer Unit Karachi Vs. M/s Syngenta Pakistan Ltd. In C.As.1403 & 1404/2009 For the appellant(s): Dr. Muhammad Farough Naseem, ASC (In CAs No.622 & 623/2008) Dr. Farhat Zafar, ASC (In CAs No.1403 & 1404/2009) For the respondent(s): Mr. Muhammad Siddique Mirza, ASC (In CAs No.622 & 623/2008) Mr. Makhdoom Ali Khan, Sr. ASC (In CAs No.1403 & 1404/2009) Date of hearing: 08.02.2017 … JUDGMENT MIAN SAQIB NISAR, CJ.- The key issue before us is the scope of Section 79 of the Income Tax Ordinance, 1979 (as it stood prior to the Finance Act, 1992, hereinafter referred to as the Ordinance, 1979) and whether it was applicable to the taxpayers in the instant matters. 2. The factual background is that Squibb Pakistan (Pvt.) Ltd. (appellant in Civil Appeals No.622 and 623 of 2008, hereinafter referred to as “Squibb Pakistan”) and Syngenta Pakistan Ltd. (respondent in Civil Appeals No.1403 and 1404 of 2009, hereinafter referred to as “Syngenta Pakistan”) were resident companies (registered in Pakistan) engaged in the import, manufacture and sale of pharmaceutical products. They imported pharmaceutical raw material from their parent companies (foreign companies), namely M/s Bristol-Myers Squibb Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 2 :- International, USA (“Squibb International”) and M/s Ciba Geigy, Basel, Switzerland (“Ciba Geigy”) respectively. Their assessments (assessment years of 1989-90 and 1990-91 for Squibb Pakistan and 1990-91 and 1991-92 for Syngenta Pakistan) were finalized by making additions under Section 79 of the Ordinance, 1979 on account of the difference between the price of raw material imported by the companies from their parent companies and that imported by some other companies from other sources. In Civil Appeal Nos.622 and 623 of 2008, the Commissioner of Income Tax (Appeals) [CIT(A)] upheld the addition followed by the deletion thereof by the learned Income Tax Appellate Tribunal (Tribunal). The respondent’s income tax appeal was allowed by the learned High Court vide impugned judgment and the addition was upheld by relying upon Messrs Cynamid (Pakistan) Ltd., Karachi Vs. Commissioner of Income Tax, Companies-II, Karachi (2007 PTD 1946). Leave was granted on 10.7.2008 to consider the “applicability of Section 79 of the Ordinance”. As regards Civil Appeal Nos.1403 and 1404 of 2009, upon the respondent’s appeal before the CIT(A), the additions were deleted for decision afresh, and the learned Tribunal upheld the deletion. In the department’s appeal before the learned High Court, the deletion of the addition was upheld, but the Court incorrectly relied upon its earlier order passed in ITA Nos.1114 and 1115 of 1999 (ITAs in Civil Appeals No.622 and 623 of 2008) which were decided in favour of the department. Leave was granted on 3.12.2009 on the basis of the aforementioned leave granting order dated 10.7.2008. 3. The submissions of the learned counsel for the appellant (in Civil Appeals No.622 and 623 of 2008) were to the effect that as per the assessment order, Squibb Pakistan imported two pharmaceutical raw materials, i.e. cephradine and amoxicillin trihydrate, for use in its final pharmaceutical product(s) from its parent company at a higher value than that paid for Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 3 :- the same products by other companies, warranting addition under Section 79 of the Ordinance, 1979; however, in order for the Assessing Officer to rely on these comparisons such cases had to be proved to be parallel in nature and complete details thereof should have been provided. Comparison between two persons/entities in dissimilar situations would be violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). The disparity in the prices of the raw material was due to the superior nature and quality of the raw material of the parent company as it incurred huge expenditure on account of research and development to ensure the efficacy and safety of the products; there was no manipulation and arranged dealing between the resident and non-resident companies as required by Section 79 of the Ordinance, 1979, and nor was there a reduction, depletion or extinction of profits in the business as the pharmaceutical products were eventually sold at a price higher than similar products of other companies; and that the learned High Court had erred in relying upon the Cynamid case (supra) which was not the correct law. In support of his arguments, learned counsel relied upon the cases reported as Commissioner of Income-Tax Vs. Pfizer Laboratories Ltd. (1989 PTD 612), Commissioner of Income- Tax, Central Zone ‘A’, Karachi Vs. Glaxo Laboratories (Pakistan) Limited, Karachi (1991 PTD 393) and the judgment dated 21.4.1992 passed in Civil Appeal No.237-K of 1991 titled Glaxo Laboratories (Pakistan) Limited Vs. Commissioner of Income-Tax. Learned counsel for the respondent (in Civil Appeals No.1403 and 1404 of 2009) adopted the aforesaid arguments stating that undoubtedly the fate of his cases depended upon that of Civil Appeal Nos.622 and 623 of 2008. 4. The collective arguments of the learned counsel for the department (in all the cases) were that by purchasing raw material from their non-resident parent companies at a price higher than charged by other Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 4 :- sources for similar products, the resident companies were liable to have profits added to their assessment order(s) in terms of Section 79 of the Ordinance, 1979. 5. Heard. A perusal of Cynamid’s case (supra) relied upon by the learned High Court in the impugned judgments reveals that in paragraph No.5 of the aforementioned judgment, the learned High Court extracted eight principles while relying upon five judgments, three of the Appellate Tribunal {[1988 PTD (Trib) 447], Smith Kline and French of Pakistan Ltd. Vs. IAC Range-I, Companies-II, Karachi [ITA No.2202/KB of 1987-88] and Messrs Bayer Pharma (Pvt.) Ltd [ITA No.1796/KB of 1993-94, dated 14-9-1994]} and the judgments of the learned High Court of Sindh and this Court in the case of Glaxo Laboratories (supra). Suffice it to say that first, the judgments of the Tribunal are not binding on the learned High Court, which should have provided reasons for its findings based on proper application of mind. Furthermore, both Glaxo Laboratories cases (supra) by the learned High Court and this Court do not in any manner lay down the eight principles extracted by the learned High Court in Cynamid’s case (supra) which to our mind is not good law. Besides, this Court’s order in Glaxo Laboratories case (supra) is a leave refusing order which is not the law enunciated by this Court. 6. In consequence of the weaknesses noted in the case of Cynamid (supra), the impugned judgments are devoid of an analytical discussion of the questions that arose for determination by the learned High Court in the references of these cases before it. We have already noted that questions of law arising in these cases involve, inter alia, the interpretation of statutes and ascertaining the evidentiary requisites for a finding recorded under Section 79 of the Ordinance, 1979. The different aspects of these matters are not clearly identified in the judgments of the lower fora. In the circumstances a further preliminary question arises for our consideration, i.e. whether new questions not urged or examined by Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 5 :- the lower fora can be raised in a reference filed under Section 136 ibid? In other words what is the scope of a tax reference? 7. The learned counsel for the parties made oral submissions in this context and provided case law to the Court. The judgments cited by the learned counsel are as follows, some of which are also quoted in our opinion. The judgments cited by Dr. Farogh Naseem include:- Iram Ghee Mills Ltd. Vs. Income Tax Appellate Tribunal (1998 PTD 3835), The Lungla (Sylhet) Tea Co. Ltd., Sylhetah Vs. Commissioner of Income- Tax, Dacca Circle, Dacca (1970 SCMR 872), Commissioner of Income- Tax Vs. Pakistan Beverage Company, Karachi (1967 PTD 265), Mathuraprasad Motilal and Co. Vs. Commissioner of Income Tax, Madhya Pradesh [(1956) 30 ITR 695 (Nag)], Commissioner of Income- Tax, Punjab, Himachal Pradesh and Jammu & Kashmir Vs. Chander Bhan Harbhajan Lal [(1966) 60 ITR 188 (SC)], Mountain States Mineral Enterprises Inc. Vs. Commissioner of Income Tax (Appeals) Zone-3, Karachi (2008 PTD 1087), Liquidator of Mahmoodabad Properties (P.) Ltd. Vs. Commissioner of Income Tax, West Bengal-II [(1980) 124 ITR 31 (SC), Commissioner of Income Tax, West Bengal Vs. Calcutta Agency Limited [(1951) 19 ITR 191 (SC)], Commissioner of Income- Tax, Bombay Vs. Scindia Steam Navigation Co. Ltd. [AIR 1961 SC 1633 = (1961) 42 ITR 589 (SC)], Messrs Pak Saudi Fertilizers Limited Vs. Commissioner of Income-Tax and others (2005 PTD 1607), Commissioner (Legal Division) Large Taxpayers Unit, Karachi Vs. Bawany Metals Ltd. Karachi (2006 PTD 2256), K. S. Venkataraman and Co. (P.) Ltd. Vs. State of Madras [(1966) 60 ITR 112 (SC)], C. T. Senthilnathan Chettiar Vs. State of Madras [(1968) 67 ITR 102 (SC)], Bhanji Bahwandas Vs. Commissioner of Income-Tax, Madras [(1968) 67 ITR 18 (SC)], Jamunadas Mannalal Vs Commissioner of Income Tax, Bihar [(1985) 152 ITR 261 (Pat)], Mohatta Brothers Vs. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 6 :- Commissioner of Income Tax, Gujarat, Ahmedabad [(1985) 153 ITR 247 (Guj)], Estate of Late H. H. Rajkuerba, Dowager Maharani Saheb of Gondal Vs. Commissioner of Income-Tax, Karnataka [(1982) 135 ITR 393 (Kar.)], Mahamaya Dassi Vs. Commissioner of Income-Tax, West Bengal-III [(1980) 126 ITR 748 (Cal)], Addl Commissioner of Income Tax, M.P., Bhopal Vs. MP Rungta [(1979) 116 ITR 245 (MP)], Amarchand Jalan Vs. Commissioner of Income-Tax, Central, Bombay [(1964) 54 ITR 18 (Bom)], Commissioner of Wealth Tax Vs. Mahadeo Jalan & Mahabir Prasad Jalan [(1972) 86 ITR 621 (SC)], Jetha Bhai Harji Vs. Commissioner of Income Tax, Gujarat, Bombay City [(1949) 17 ITR 533 (Bom)], Commissioner of Income-Tax, Central Zone “A”, Karachi Vs. Messrs Karachi Electric Supply Corporation Ltd. (1991 PTD 869), The Commissioner of Income-Tax, Karachi (Central Zone) Vs. Messrs Pakistan Refinery Ltd., Karachi (1984 PTD 337), Messrs Coronet Paints & Chemicals Ltd. Vs. The Commissioner of Income- Tax (Central), Karachi (1984 PTD 355), Commissioner of Income Tax Companies No. 1, Karachi Vs. M/s. Hassan Associates (Pvt.) Ltd., Karachi (1994 SCMR 1321), Mrs. Yasmeen Lari Vs. Registrar, Income Tax Appellate Tribunal (1990 PTD 967), Commissioner of Income-Tax Vs. National Refinery Ltd. (2003 PTD 2020), Messrs Urooj (Pvt.) Ltd., Karachi through Chief Executive Vs. Deputy Commissioner of Income-Tax, Circle-6, Companies IV, Karachi and 2 others (2004 PTD 295), Karachi Properties Investment Company (Pvt.) Limited, Karachi Vs. Income-Tax Appellate Tribunal, Karachi and another (2004 PTD 948)¸ Messrs G. I. M. Gregory & Co. In re. [(1937) 5 ITR 12 (Cal)], Commissioner of Income-Tax, Bombay City II Vs. Jadavji Narsidas & Co. [(1963) 48 ITR 41 (SC)], Praise & Co. (Private) Ltd. Vs. Commissioner of Income-Tax, West Bengal [(1966) 60 ITR 566 (Cal)], Humayun Properties Ltd. Vs. Commissioner of Income-Tax, Calcutta Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 7 :- [(1962) 44 ITR 73 (Cal)], Valivetti Sriramulu Vs. Commissioner of Income-Tax, A.P. [(1970) 76 ITR 551 (AP)], Patny & Co. Vs. Commissioner of Income Tax, Bihar and Orissa, Patna [(1955) 28 ITR 414 (Oris)], Commissioner of Income-Tax, Bombay South, Bombay Vs. Messrs Ogale Glass Works Limited, Ogale Wadi [AIR 1954 SC 429 = (1954) 25 ITR 529 (SC)] and Jesrajah Jiwanram Vs. Commissioner of Income-Tax, Assam [(1953) 24 ITR 245 (Assam)]. The judgments referred to by Mr. Makhdoom Ali Khan are:- The Commissioner of Income-Tax, Lahore Zone, Lahore Vs. Messrs Shaikh Muhammad Ismail & Co. Ltd. (1986 SCMR 968), Commissioner of Income Tax, Central Zone, Lahore Vs. Capt. (Retd.) Gohar Ayub Khan (1995 PTD 1074), The Commissioner of Income-Tax, Lahore Vs. Messrs Immion International, Lahore (2001 PTD 900), Messrs Nafees Cotton Mills Ltd., Lahore Vs. Income-Tax Appellate Tribunal, Lahore and 2 others (2001 PTD 1380), Ghulam Mustafa Jatoi, Karachi Vs. Commissioner of Income Tax, Central Zone-B, Karachi (2006 PTD 1647), Messrs. Superior Steel, Karachi Vs. Commissioner of Income- Tax, Zone-D, Karachi and another (2007 PTD 1577), Mountain States Mineral Enterprises (supra), Commissioner Inland Revenue, Legal Division, Bahawalpur Vs. Zulfiqar Ali (2012 PTD 964), Commissioner of Income-Tax/Wealth Tax, Multan Vs. Messrs Move (Pvt.) Ltd., Multan (2013 PTD 2040), Commissioner Inland Revenue Vs. Messrs Pak Arab Pipe Line Company Ltd. (2014 PTD 982), Commissioner of Income-Tax/Wealth Tax Companies Zone Vs. Ms. Fahmida Hamid (2015 YLR 1167), Commissioner (Legal) Inland Revenue, Large Taxpayer Unit Vs. Messrs Shield Corporation Ltd. (2015 PTD 2275), Commissioner Inland Revenue, Zone-II, Regional Tax Office-II Vs. Messrs Sony Traders Wine Shop (2015 PTD 2287), Commissioner Inland Revenue, Multan Vs. Messrs Bank Al-Habib Ltd. (2016 PTD Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 8 :- 2548), Central Exchange Bank Ltd., Lahore Vs. The Commissioner of Income Tax, Lahore (PLD 1954 Lah 439), Messrs Muhammad Idrees Barry & Co. Vs. The Commissioner of Income-Tax, Punjab and NWFP (PLD 1959 SC 202), Abdul Ghani & Co. Vs. Commissioner of Income- Tax (PLD 1962 Kar 635), Messrs Odeon Cinema, Lahore Vs. The Commissioner of Income-Tax, Lahore Zone, Lahore (1971 PTD 212), Ahmad Karachi Halva Merchants & Ahmad Food Products Vs. CIT, Karachi (1982 SCMR 489), The Commissioner of Income-Tax (Central), Karachi Vs. Messrs Haji Moulabux & Sons (1987 PTD 492), The Commissioner of Income-Tax, Rawalpindi Vs. Sh. Ghulam Hussain (2001 PTD 1419), Commissioner of Income-Tax, Rawalpindi Vs. Haji Mukhtar & Company (1980 PTD 415), Haji Ibrahim Ishaq Johri Vs. The Commissioner of Income Tax (West), Karachi (1993 PTD 114), Messrs Irum Ghee Mills Limited Vs. Income-Tax Appellate Tribunal and others (2000 SCMR 1871), Commissioner Inland Revenue Vs. Messrs Macca CNG Gas Enterprises and others (2015 PTD 515), Hassan Associates (supra), Commissioner of Income-Tax, Rawalpindi Vs. Messrs Rural Food Products, Rawalpindi (2001 PTD 2306), Commissioner of Income-Tax Companies, Lahore Vs. Crescent Art Fabric Limited, Lahore (2001 PTD 2553), Dr. Mukhtar Hassan Randhawa Vs. Commissioner of Income-Tax, Coys Zone-I, Lahore (2001 PTD 2593), Commissioner of Income-Tax, Companies-I, Karachi Vs. Messrs National Investment Trust Ltd., Karachi (2003 PTD 589), Commissioner of Income-Tax, Rawalpindi Vs. Mst. Shakeela Bano (2002 PTD 1209), Messrs Hong Kong Chinese Restaurant, Main Boulevard Gulberg, Lahore Vs. Assistant Commission of Income Tax, Circle 6, Lahore and another (2002 PTD 1878), Commissioner of Income-Tax, Companies Zone-II, Karachi Vs. Messrs Sindh Engineering (Pvt.) Limited, Karachi (2002 SCMR 527), National Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 9 :- Refinery Ltd. (supra), Messrs Qadri Cloth House, Lahore Vs. Income Tax Appellate Tribunal, Lahore and 2 others (2005 PTD 2430), Messrs F. M. Y. Industries Limited Vs. Deputy Commissioner Income Tax and another (2014 SCMR 907) and Punjab Mineral Development Corporation Ltd. Vs. Commissioner of Income Tax (2015 PTD 2522). The issue of whether new questions can be raised before the High Court in a reference has been the subject of substantial debate ever since a provision for reference to the High Court on questions of law was introduced in the sub-continent in the early 20th century. Over the years, judicial opinions have been inconsistent and there has been considerable divergence, both, in the Pakistani as well as Indian jurisdictions. In India, the issue was strongly contested and numerous conflicting judgments were delivered from time to time. The Indian Supreme Court came down in the Scindia Steam case (supra) in favour of a restrictive view but the legislature intervened and the law was amended in 1998 to provide for direct ‘appeals’ to the High Court in place of ‘references’ on questions of law, the scope of the former being much wider. In Pakistan, however, as explained infra, the issue can still be said to be open as there is no authoritative pronouncement of the Supreme Court in relation to the scope of Section 133 of the Income Tax Ordinance, 2001 (the Ordinance, 2001) as it stands today. 8. In order to appreciate the scope of a reference under Section 133 of the Ordinance, 2001, it is necessary to firstly examine the history and background of the provision and how it, and its predecessor provisions, have been interpreted by the Courts. A provision for a reference to the High Court in income tax matters has been in existence in the sub-continent since at least 1918. Section 51 of the Indian Income Tax Act, 1918 (the Act, 1918) provided for a statement of case by the Chief Revenue Authority to the High Court. It read as under: Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 10 :- (1) If, in the course of any assessment under this Act or any proceeding in connection therewith other than a proceeding under Chapter VII, a question has arisen with reference to the interpretation of any of the provisions of this Act or of any rule thereunder, the Chief Revenue- authority may, either on its own motion or on reference from any Revenue-officer subordinate to it, draw up a statement of the case, and refer it, with its own opinion thereon, to the High Court, and shall so refer any such question on the application of the assessee, unless it is satisfied that the application is frivolous or that a reference is unnecessary. (2) If the High Court is not satisfied that the statements contained in the case are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Revenue-authority by which it was stated, to make such additions thereto, or alterations therein, as the Court may direct in that behalf. (3) The High Court upon hearing of any such case shall decide the questions raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Revenue- authority by which the case was stated, a copy of such judgment under the seal of the Court and the signature of the Registrar, and the Revenue-authority shall dispose of the case accordingly, or, if the case arose on reference from any Revenue-officer subordinate to it, shall forward a copy of such judgment to such officer who shall dispose of the case conformably to such judgment. (4) Where a reference is made to the High Court on the application of an assessee, costs shall be in the discretion of the Court. Under Section 51 of the Act, 1918, in brief, if in the course of assessment or any connected proceedings, a question of interpretation of any Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 11 :- provision of the Act or rule made thereunder arose, the Chief Revenue Authority was empowered, on its own motion or on reference from any subordinate officer or on the application of an assessee, unless the application to its satisfaction was frivolous, to draw up a statement of the case including its own opinion and refer it to the High Court. The High Court, if dissatisfied with the statement of the case to the extent that it did not enable it to answer the questions referred, could refer the matter back to the Authority to make such additions and alterations as desired by the High Court. Upon hearing the case, the High Court was bound to answer the questions referred and deliver its judgment thereon containing the grounds for the decision, and send it to the Revenue Authority to dispose of the matter accordingly. Thus the dispositive power remained with the Revenue Authority, although only in accordance with the opinion of the High Court. 9. Under the Act, 1918, the jurisdiction of the High Court in income tax matters was very restrictive. There was no right of any kind, either by way of appeal or revision or review or reference, to challenge before the High Court any order passed by the revenue authorities. The legal remedy which was made available related to the stage prior to passing of an order. A power was conferred on the Chief Revenue Authority either on his own or on the request of the assessee to refer any questions of interpretation of the Act or the Rules to the High Court and the High Court simply gave its legal opinion, which was applied by the Revenue Authority in the course of assessment or related proceedings. As observed earlier, this power was to be exercised prior to the passing of an order. 10. The scope of the High Court jurisdiction in a reference under Section 51 of the Act, 1918 came under consideration before the Privy Council in the case of Tata Iron and Steel Company Ltd. Vs. The Chief Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 12 :- Revenue Authority of Bombay (AIR 1923 PC 148). In this case, the High Court had passed a judgment in a reference under Section 51 of the Act, 1918 against which an appeal was filed before the Privy Council with the leave of the High Court of Bombay. A preliminary objection was raised by the respondent to the effect that no appeal lay against the judgment under Section 51 ibid as the same was merely advisory in nature. The Privy Council observed that there was no express right of appeal provided anywhere against a judgment under Section 51 ibid but a general right of appeal existed under Clause 39 of the Letters Patent of the High Court of Bombay to challenge any “final” judgment, decree or order passed by the High Court in exercise of its original jurisdiction. The Privy Council then went on to examine whether a judgment passed under Section 51 ibid qualified as a “final” judgment. The Privy Council held that the judgment under Section 51 ibid was not a judgment as understood by Clause 39 of the Letter Patent as it was not a decision obtained in an “action”. The Privy Council observed that the judgment under Section 51 ibid could at best be an order and went on to examine whether it could be said to be a “final” order or only advisory. Certain observations of the Privy Council and its finding in this regard are reproduced below: “One must therefore ask oneself what is the nature and character of the acts which Section 51 of the Income Tax Act authorises and empowers the High Court to do…The opinion of the Revenue Authority thus dominates and conditions the right of the assessee. Again it is the duty of the Revenue Officer to make the assessment, and it is in the “course” of making it the question which may be referred must arise… This last provision merely means that the Revenue Officer, in proceeding with the work in the course of which he was Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 13 :- engaged when the question referred arose, shall be guided by the decision given, and shall make his assessment accordingly - the ultimate result being that he assesses the taxpayer at an amount which in his instructed opinion he judges to be right. No suit can be brought to set-aside or modify the assessment when so made. The amount of the taxpayers’ liability is thus definitely fixed, but nothing more is done. The decision of the High Court does not in any way enforce the discharge of that liability. It would appear clear to their Lordships that the word “judgment” is not here used in its strict legal and proper sense. It is not an executive document directing something to be done or not to be done, but is merely the expression of the opinions of the majority of the judges who heard the case, together with a statement of the grounds upon which those opinions are based… It does not appear to their Lordships that the fact that the functionary who states a special case for the opinion of the Court is or is not bound to act upon it necessarily determines whether the order and decision of the Court is or is not merely advisory. In order to determine whether an order made by a Court on a case stated is final or merely advisory it is necessary to examine closely the language of the enactment, whether statute, rule or order, giving the power to state a case. When a case is stated for the “opinion” of the Court, that word would serve prima facie to indicate that the order made by the Court was only advisory. Where the case is referred for the “decision” or “determination” of a question, there is a prima facie difficulty in holding that the order embodying this determination or decision is advisory, but the use of these words or one of them is not decisive… It would appear to their Lordships that having regard to the authorities cited, and for the reasons already stated the decision, judgment or order made by the Court under Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 14 :- Section 51 of the Income Tax Act in this case, was merely advisory, and not in the proper and legal sense of the term final, and thus so far as these considerations are concerned that the appeal is incompetent.” 11. From the above reproduced extracts, it is clear that the structure of the reference provision as it stood at the time was the determinative factor in the case. The Privy Council found support for its finding that the jurisdiction was “advisory” from the fact that questions which were to be referred under Section 51 ibid were those which arose in the “course” of assessment or related proceedings and the High Court merely gave its opinion which the Revenue Officer simply relied upon to finalize the assessment or related proceedings. A careful perusal of the Privy Council’s judgment shows that the underlying reasoning behind its findings was that since the questions were not arising from an operative order but at a prior stage, the opinion thereon was not a final order in the nature of being determinative of the rights and liabilities of the parties. The reasons behind the Privy Council’s decision thus only have a limited relevance today as the subsequent evolution of the law makes clear. 12. The provision for a reference to the High Court underwent substantial changes with the passing of the Indian Income Tax Act, 1922 (the Act, 1922). Section 51 of the Act, 1918 was succeeded by Section 66 of the Act, 1922, which is reproduced below:- (1) If, in the course of any assessment under this Act or any proceeding in connection therewith other than a proceeding under Chapter VIII, a question of law arises, the Commissioner may, either on his own motion or on reference from any Income-tax authority subordinate to him, draw up a statement of the case and refer it with his own opinion thereon to the High Court. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 15 :- (2) Within one month of the passing of an order under section 31 or section 32, the assessee in respect of whom the order was passed may, by application accompanied by a fee of one hundred rupees or such lesser sum as may be prescribed, require the Commissioner to refer to the High Court any question of law arising out of such order, and the Commissioner shall, within one month of the receipt of such application, draw up a statement of the case and refer it with his own opinion thereon to the High Court: Provided that, if, in exercise of his power of review under section 33, the Commissioner decides the question, the assessee may withdraw his application, and if he does so, the fee paid shall be refunded. (3) If, on any application being made under sub-section (2), the Commissioner refuses to state the case on the ground that no question of law arises, the assessee may apply to the High Court, and the High Court if it is not satisfied of the correctness of the Commissioner's decision, may require the Commissioner to state the case and to refer it, and, on receipt of any such requisition, the Commissioner shall state and refer the case accordingly. (4) If the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the Court may refer the case back to the Commissioner by whom it was stated to make such additions thereto or alterations therein as the Court may direct in that behalf. (5) The High Court upon the hearing of any such case shall decide the questions of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Commissioner by whom the case was stated a copy of such judgment under the seal of the Court and the signature of the Registrar, and the Commissioner shall dispose of the case accordingly, or, if the case arose on a reference from Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 16 :- any Income-tax authority subordinate to him, shall forward a copy of such judgment to such authority who shall dispose of the case conformably to such judgment. (6) Where a reference is made to the High Court on the application of an assessee, the costs shall be in the discretion of the Court. (7) Notwithstanding that a reference has been made under this section to the High Court, income-tax shall be payable in accordance with the assessment made in the case: Provided that, if the amount of an assessment is reduced as a result of such reference, the amount overpaid shall be refunded with such interest as the Commissioner may allow. Section 66 ibid retained the power of the Authority, now the Commissioner, to refer, on his own motion or on a reference from a subordinate officer, any question which arose in the course of an assessment or related proceedings to the High Court through a statement of the case with his opinion thereon. However, the remedy available to an assessee was widened decisively in terms of sub-section (2) whereby assessees were given the right to require the Commissioner to refer to the High Court, any questions of law arising out of the appellate orders passed by the revenue authorities. Thus, in addition to seeking advice prior to passing an order, the decision could itself be challenged. However, the assessee was limited to questions arising out of the order of the Revenue Authority, which meant that it could only refer those questions which were apparent from the record of the case and the facts as stated in the order of the Authority. In case the Commissioner refused to refer the case to the High Court, assessees could apply to the High Court and the High Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 17 :- Court, if dissatisfied with the Commissioner’s decision, could require the Commissioner to draw up a statement of the case and refer it to the High Court. There was a clear widening of the power of the High Court and the remedies available to assessees in relation to income tax disputes under Section 66 of the Act, 1922 as compared to its predecessor provision. 13. Following the decision of the Privy Council in the case of Tata Iron and Steel Co. (supra), it is clear that the jurisdiction exercised by the High Court in a reference under sub-section (1) of Section 66 ibid was considered “advisory”, although that word does not appear in the law. However, it is clear that the same reasoning cannot be extended to references made to the High Court under sub-section (2). It will be noted that the scope of the reference under sub-section (1) was fundamentally different from the scope of a reference under sub-section (2). Under sub- section (1), the reference was made by the Commissioner, of his own volition or on a reference from a subordinate officer, in relation to questions arising during the course of assessment which had not yet been decided whereas under sub-section (2) the reference was made by the Commissioner at the behest of an assessee on questions arising out of a final order passed under Sections 31 or 32 of the Act, 1922 by the Department. In substance, a right was conferred on the assessee to challenge the final orders passed by the Department, albeit to the extent of legal issues arising out of such orders. This was akin to a second appeal. Under sub-section (5), the High Court upon hearing a case under sub-sections (1) or (2) was obligated to answer the questions referred supported by a judgment containing the grounds of the decision and forward the same to the Revenue Authority for disposing of the case accordingly. In so far as references under sub-section (1) were concerned, sub-section (5) applied appropriately as the matter remained pending with the Revenue Authority which then finalized it in accordance with the Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 18 :- decision of the High Court. However, to the extent of references under sub-section (2), since they arose against final orders, there were no proceedings as such pending before the Revenue Authority which could be finalized. The Revenue Authority was simply bound to apply the High Court’s decision by way of implementing its orders subject to the modifications necessitated by the High Court’s decision. This made a critical difference. 14. There was also a practical difference between the two different kinds of references, i.e. under sub-sections (1) and (2), which shows the difference in the nature of the jurisdictions. Under sub-section (1), the reference was prepared by the Commissioner who presumably either framed the questions himself or adopted questions framed by a subordinate officer. By contrast, the reference application under sub- section (2) was essentially prepared by the assessees who also framed and proposed the questions for the Commissioner to refer to the High Court. The procedure of filing the application under sub-section (2), in a similar manner as one under sub-section (1) through the Commissioner seems to have been retained as a matter of convenience and convention and appears not to have a great deal of significance, especially in view of the fact that the Commissioner’s refusal to forward a reference to the High Court could be challenged directly by the assessee before the High Court under sub-section (3). The same issues as identified in the application under sub-section (2) were argued in applications under sub-section (3) and if the High Court saw a prima facie case, the matter was entertained by way of directing the Commissioner to make the reference as a matter of sheer formality. The assessee was thus allowed a full and proper remedy against final orders passed by the Revenue Authority to the extent of legal issues. It thus seems clear that whether or not the jurisdiction of the High Court is termed advisory is a matter of nominal terminology, there being Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 19 :- little doubt that the jurisdiction exercised under sub-section (2) read with sub-section (3) was basically appellate/final in nature, though limited only to questions of law, and not interim/advisory. 15. Since this point was never brought before the courts, it is therefore not surprising that it was ignored and thus the significance of this development remained unexplored, with a consequential failure to draw a distinction between the two obviously different kinds of domain. The High Courts imposed the same restrictive interpretation on applications under sub-section (2) as applications under sub-section (1). The seemingly unfounded self-imposed limitations placed by the Courts on their jurisdiction shaped the narrow scope of the reference jurisdiction of the High Courts in the years to come. The restrictive interpretation of the High Courts was also later on supported by the Privy Council, without any analysis or discussion, in the case of Raja Bahadur Sir Rajendra narain Bhanj Deo Vs. Commissioner of Income-Tax, Bihar and Orissa (AIR 1940 PC 158). While refusing to answer a purely academic question, the Privy Council observed as under:- “The function of the High Court in cases referred to it under S. 66 of the Act is advisory only, and is confined to considering and answering the actual question referred to it…” 16. Notwithstanding the generally restrictive approach developed by the Courts towards reference applications of any kind, there was clearly an abridgement of the absolute powers of the tax department when Section 66 of the Act, 1922 replaced Section 51 of the Act, 1918. The broadening of the remedies available to the assessee continued in the years to come through various amendments, one of the major ones being through the Indian Income Tax (Amendment) Act, 1939 (Act VII of 1939), Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 20 :- which effected major changes in the law. By way of this amendment, the Income Tax Appellate Tribunal was formed, to which assessees were provided a direct right to appeal against orders passed by the Revenue Authority. Essentially a further forum was provided to assessees between the Revenue Authority and the High Court. Chief Justice Muhammad Munir was the architect of this amendment and went on to become the first President of the Tribunal in the year 1940. This was a clear broadening of the remedies available to assessees as it provided for a full time arbiter for legal disputes between the department and assessees. Section 66 of the Act, 1922 after the 1939 amendment read as under:- “66. Statement of case by Appellate Tribunal to High Court.- [(1) Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of section 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court: Provided that, if, in the exercise of its powers under sub- section (2), the Appellate Tribunal refuses to state a case which it has been required by the assessee to state, the assessee may, within thirty days from the date on which he receives notice of the refusal to state the case, withdraw his application and, if he does so, the fee paid shall be refunded. (2) If on any application being made under sub-section (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 21 :- from the date on which he is served with notice of the refusal, apply to the High Court, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition the Appellate Tribunal shall state the case and refer it accordingly. (3) If on any application being made under sub-section (1) the Appellate Tribunal rejects it on the ground that it is time-barred, the assessee or the Commissioner, as the case may be, may, within two months from the date on which he is served with notice of the rejection, apply to the High Court, and the High Court, if it is not satisfied of the correctness of the Appellate Tribunal’s decision, may require the Appellate Tribunal to treat the application as made within the time allowed under sub-section (1). (4) If the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the Court may refer the case back to the Appellate Tribunal to make such additions thereto or alterations therein as the Court may direct in that behalf. (5) The High Court upon the hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment.1] (6) Where a reference is made to the High Court […2] the costs shall be in the discretion of the Court. 1 Inserted in place of the old sub-sections (1) – (5) by Section 92 of the Indian Income Tax (Amendment) Act, 1939 (Act VII of 1939). 2 The words “on the application of an assessee” were omitted by Section 92 of the Act ibid. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 22 :- (7) Notwithstanding that a reference has been made under this section to the High Court, income-tax shall be payable in accordance with the assessment made in the case: Provided that, if the amount of an assessment is reduced as a result of such reference, the amount overpaid shall be refunded with such interest as the Commissioner may allow [unless the High Court, on intimation given by the Commissioner within thirty days of the receipt of the result of such reference that he intends to ask for leave to appeal to his Majesty in Council, makes an order authorising the Commissioner to postpone payment of such refund until the disposal of the appeal to His Majesty in Council.3] [(7A) Section 5 of the Indian Limitation Act, 1908 (IX of 1908), shall apply to an application to the High Court by an assessee [under sub-section (2) or sub-section (3)4].5] (8) For the purposes of this section “the High Court” means— (a) in relation to [……6] British Baluchistan, the High Court of Judicature at Lahore; (b) in relation to the province of Ajmer-Merwara, the High Court of Judicature at Allahabad; and (c) in relation to the province of Coorg, the High Court of Judicature at Madras.” 17. Under the amended Section 66 of the Act, 1922, both the department and the assessee were given the right to require the Tribunal to draw up a statement of the case and refer any questions of law arising out of the order of the Tribunal to the High Court and in case the Tribunal refused to do so, both sides had the opportunity to challenge the 3 Inserted by Section 82 of the Act ibid. 4 Inserted in place of the words “under sub-section (3) or sub-section (3A)” by Section 92 of the Act ibid. 5 Section 7A inserted by Section 28 of the Income Tax (Second Amendment) Act 1933 (Act XVIII of 1933). 6 The words “the North West Frontier Province” were omitted by Section 82 of Act VII supra. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 23 :- Tribunal’s refusal before the High Court, which could then require the Tribunal to refer questions of law arising out of its order to the High Court. This procedure was basically the same as the procedure under the unamended Section 66(2) and (3) of the Act, 1922 with the difference that instead of the Commissioner, references were to be made through the Tribunal as it was the Tribunal’s orders which could now be challenged in a reference. The rights of assessees increased as they were given an additional appellate forum, which could be termed quasi-independent and could determine legal-cum-factual disputes between the department and the assessee. The High Courts continued to hold a restrictive view of their jurisdiction under the amended Section 66 of the Act, 1922 since, in so far as the Courts were concerned, the only difference was that the application was now being made through the Tribunal rather than the Commissioner. It will however be noted that the discussion in the preceding paragraphs in support of a wider reading of the jurisdiction under Section 66(2) of the Act, 1922 prior to the 1939 amendment applies equally to Section 66 thereof as amended in 1939 since the basic features of the High Court’s jurisdiction remained the same. The only notable difference is that the true advisory jurisdiction under Section 66(1) of the Act, 1922 was altogether done away with and instead the department was given a similar right as the assessee to challenge any order passed by the Tribunal. In so far as Pakistan is concerned, the law remained almost the same till at least 1971, when, as explained later, a crucial amendment was brought about in Section 66 supra. 18. Before examining the change in the law in 1971, it may be pertinent to examine some of the leading cases prior to the said change, which have been relied upon in later pronouncements of the High Courts and the Supreme Court. Although Courts were settled on the possibly incorrect position that the nature of the jurisdiction under Section 66 Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 24 :- supra was advisory, there was a great deal of debate in relation to the exact scope of the reference jurisdiction and conflicting judgments started coming in, in relation to different issues. In most of the leading judgments of the High Court and the Privy Council from the pre-partition era, the issues involved were either:- (1) whether questions not agitated in the application to the Tribunal to refer the case, and hence not so referred, could be raised in the High Court either at the time of challenging the Tribunal’s refusal to refer the case or at the time of arguments in a reference and/or (2) whether the High Court could itself formulate new questions of law which were not referred to it. 19. There were conflicting judgments from different High Courts on these issues but by and large, most agreed, rightly or wrongly, that questions not raised by the assessee in the application to the Tribunal to refer the case (even if they could be said to have arisen out of the order of the Tribunal) and hence not referred to the High Court, could not be raised in a reference by the assessee or by the High Court of its own motion. It also came to be settled, again, rightly or wrongly, that the High Court could not frame new questions on its own and was restricted to the questions referred to it but it could reformulate existing questions if necessary. Reference in this regard may be made to the following:- (i) Ishar Das Dharamchand – In the matter of (AIR 1926 Lah 168), in which it was held that the Commissioner is not obligated to refer questions not pressed/agitated by the assessee. (ii) In the matter of P. Thiruvengada Mudaliar (AIR 1928 Madras 889) in which it was held that if a point is not raised before the Commissioner within the time prescribed for making an application under Section 66(2) of the Act, 1922 to require the Commissioner to state the case, he cannot be later Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 25 :- required, by the High Court or the assessee, to refer that point to the High Court. (iii) A.K.A.C.T.V. Chettyar Firm Vs. Commissioner of Income- Tax, Burma (AIR 1928 Rangoon 281) in which the Rangoon High Court refused to consider two questions of law raised by the assessee in the application under Section 66(2) of the Act, 1922 against the Commissioner’s refusal to state the case since those questions were not raised in the preceding application to the Commissioner requiring him to state the case. (iv) S.A. Subbiah Iyer Vs. Commissioner of Income-Tax, Madras (AIR 1930 Mad 449), in which a five member bench of the Madras High Court, while approving the cases of P. Thiruvengada Mudaliar and ACACTV Chettyar Farm (discussed above) held that questions not proposed before the Commissioner for referring to the High Court within the time prescribed by Section 66(2) ibid cannot be subsequently raised before the High Court. (v) Commissioner of Income-Tax, Burma Vs. P.K.N.P.R. Chettyar Firm (AIR 1930 Rangoon 78), in which it was held that the High Court cannot consider questions which the assessee did not require the Commissioner to state to the High Court under Section 66(2) ibid. (vi) Gurmukh Singh Vs. Commissioner of Income-Tax, Lahore [AIR 1944 Lah 353 (2)] in which, after considering conflicting judgments, the Lahore High Court held that the High Court is only bound to refer those questions arising out of the order which are referred to it at the behest of the assessee and the High Court is bound by those questions and cannot formulate new questions not referred to it. The High Court, however, can reformulate existing questions. 20. It will be noted that the above judgments deal with the issue of whether questions not agitated by the assessee in the application made under Section 66(2) ibid requiring the Commissioner to state the case can Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 26 :- be raised subsequently before the High Court. There is nothing specifically in these judgments on the issue of whether questions of law arising out of the order under challenge, but not expressly raised before the lower forums, can be required by the assessee to be referred to the High Court. The distinction between these two categories is significant. Keeping aside the issue of the scope of the questions which may be proposed for reference by the assessee, it is clear that the courts had developed the view (which was perhaps not as well-founded as it was considered to be) that the powers of the High Courts in references were strictly limited. 21. In the case of The Commissioner of Income-Tax, Bihar and Orissa Vs. Maharajadhiraja Kameshwar Singh of Barbhanga ([1933] 1 ITR 94) before the Privy Council, the Commissioner, while stating a case, failed to formulate an apparent question arising out of a particular transaction. The High Court formulated the question itself in the reference and proceeded to answer it. The Privy Council, sitting in appeal against the judgment of the High Court noted this act of the High Court and criticized the departure from the regular procedure. However, in the circumstances of the case, the Privy Council did go on to express its view on the question. It may be noted that although this case supports the view developed by the courts at the time that the High Court’s powers in references are limited, it clearly shows that the limits were not as absolute as they had been made to seem. The Privy Council may not have approved of the practice, but it did not hold it to be illegal and in fact did entertain the question itself as well. 22. Another decision of the Privy Council which has been relied upon extensively in later decisions of the High Courts is the case of National Mutual Life Association of Australasia, Ltd. Vs. Commissioner of Income-Tax, Bombay Presidency and Aden (AIR 1936 PC 55) wherein the High Court had decided a particular point Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 27 :- against the assessee solely on the basis of an argument presented by the Advocate-General for the first time during the hearing of the case. The Privy Council while noting this observed that the argument presented by the Advocate-General was irrelevant as it was beyond the scope of the letter of reference. This case again leaned towards a restrictive reading of the High Court’s powers. 23. It can be seen from the pre-partition judgments discussed hereinabove that the Courts had developed the view that the High Courts’ jurisdiction and powers in references were restricted. However, as has been discussed above, the foundations of this view are quite shaky. This generally restrictive interpretation of the reference jurisdiction, from the very beginning, played a significant role in the Courts’ determination of the issue of whether assessees are entitled to raise questions in references which were not raised before the lower forums. This issue became more controversial post partition and before we examine the law as it developed in Pakistan in this regard, it may be pertinent to review the position in India after partition. 24. In India, the issue of the scope of the questions which may be proposed to the Tribunal for referring to the High Court became controversial very quickly and there came a time when there were multiple conflicting judgments in the field. The right conferred under Section 66 of the Act, 1922 on the assessee or the Commissioner was to require the Tribunal to refer any questions of law arising out of its order. The issue was whether the words “questions arising out of the order” included a question which was not argued before the Tribunal and/or dealt with by it in its order even though it be one of law and arising from the facts contained in the order. 25. The Madras High Court in the cases of Messrs A. Abboy Chetty & others Vs. Commissioner of Income-Tax, Madras (AIR 1948 Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 28 :- Mad 181) and Commissioner of Income-Tax, Excess Profits Tax, Madras Vs. Modern Theatres Ltd. (AIR 1952 Mad 255) took the view that a question of law not raised before the Tribunal and not dealt with in its order could not be said to be arising out of the order even if on the facts stated that question fairly arises. The same view was taken by the Calcutta High Court in the cases of Commissioner of Excess Profits Tax, West Bengal Vs. Jewanlal Ltd., Calcutta ([1951] 20 ITR 39) and Chainrup Sampatram Vs. Commissioner of Income Tax, West Bengal [(1951) 20 ITR 484] and by the Patna High Court in the cases of Maharaj Kumar Kamal Singh Vs. Commissioner of Income-Tax ([1954] 26 ITR 79) and Commissioner of Income-Tax, B and O. Vs. Ranchi Electric Supply Co. Ltd., Ranchi (AIR 1955 Pat 151). At the same time the Bombay High Court in the case of Madanlal Dharnidharka Vs. The Commissioner of Income-Tax, Bombay City (AIR 1949 Bom 24) held that questions not dealt with by the Tribunal could arise out of its order if the necessary facts were recorded. Chagla, CJ persuasively argued that:- “…Now, looking at the plain language of the section apart from any authority, I should have stated that a question of law arose out of the order of the Tribunal if such a question was apparent on the order itself or it could be raised on the facts found by the Tribunal and which were stated in the order. I see no reason to confine the jurisdiction of this Court to such questions of law as have been argued before the Tribunal or are dealt with by the Tribunal. The section does not say so and there is no reason why we should construe the expression ‘arising out of such order’ in a manner unwarranted by the ordinary grammatical construction of that expression.” [Emphasis supplied] Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 29 :- 26. It will be noted that the view of the Bombay High Court was on the plane of legal interpretation of the words used and was unfettered by the restraints imposed by importing the phrase “advisory jurisdiction” which does not appear in the law at all. This view found favour with the Punjab High Court in the case of Commissioner of Income Tax, Delhi Vs. Punjab National Bank, Ltd., Delhi ([1952] 21 ITR 526) and the Nagpur High Court in the case of Mohanlal Harilal Vs. Commissioner of Income-Tax, C. P. and Berar, Nagpur ([1952] 22 ITR 448). The Supreme Court of India left the issue open in the case of Ogale Glass Works (supra) but then went on to tilt in the opposite direction in the Scindia Steam case (supra) in which it (the Supreme Court of India) concluded as follows (at page 1645):- “31. The result of the above discussion may thus be summed up: (1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is therefore one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 30 :- Stating the position compendiously, it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of its order.” With regard to proposition (4) reproduced above, certain observations of the India Supreme Court (at pages 1643-1644), as will be seen later, are critical. It was expressly conceded by the Supreme Court of India:- “26. But the main contention still remains that the language of S. 66(1) is wide enough to admit of questions of law which arise on the facts found by the Tribunal and that there is no justification for cutting down its amplitude by importing in effect words into it which are not there. There is considerable force in this argument.” [Emphasis supplied] The Indian Supreme Court however then proceeded to argue as follows:- “But then there are certain features, which distinguish the jurisdiction under S. 66, and they have to be taken into consideration in ascertaining the true import of the words, “any question of law arising out of such order.” The jurisdiction of a court in a reference under S. 66 is a special one, different from its ordinary jurisdiction as a civil court. The High Court, hearing a reference under that section, does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal. It acts purely in an advisory capacity, on a reference which properly comes before it under S. 66(1) and (2). It gives the Tribunals advice, but ultimately it is for them to give effect to that advice. It is of the essence of such a jurisdiction that the court can decide only questions which are referred to it and not any other question…If the true scope of the jurisdiction of the High Court is to give advice when it is sought by the Tribunal, it stands to reason that the Tribunal should have had an occasion to consider the question so that it may Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 31 :- decide whether it should refer it for the decision of the court. How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the court should be sought?” [Emphasis supplied] 27. It will be seen from the above reproduced extracts that although the Supreme Court of India agreed that the scope of the words “arising out of such order” was wide enough to include questions of law which had not been argued before the Tribunal, it held that they must be construed narrowly by reason of the “special” nature of the jurisdiction of the High Court and because firstly, it was for the Tribunal “to give effect to the advice” and secondly because the advice was being “sought by the Tribunal”. In this manner the Supreme Court narrowly construed the words “arising out of the order” on the basis of the unnecessarily restrictive view of the reference jurisdiction developed by the courts over the years. On the face of it these reasons are not persuasive since the Tribunal was not seeking advice voluntarily, or on a suo motu basis, but because it was obligated to do so under the law at the behest of an aggrieved party, which is the essence of a judicial process before a court of law. Furthermore, it was also not within the discretion of the tribunal to give effect, or not give effect, to the advice. It was binding on it and the mandate of the law required it to give effect to it. Unfortunately, this judgment, although clearly flawed, has had an enormous effect on the subsequent case law both in India as well as in Pakistan. The question of the difference between an advisory jurisdiction and an appellate one, briefly discussed earlier, is one that we will revert to below. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 32 :- 28. In Pakistan, in the case of R. S. Munshi Gulab Singh and Sons Vs. Commissioner of Income-Tax, Punjab (PLD 1950 Lah 476) the assessee initially proposed two questions on 12.05.1945 which the Tribunal referred to the High Court. The High Court delivered a verdict on 19.10.1945 against the assessee whereafter on 28.02.1946 the assessee made a fresh application to the Tribunal to refer a completely different question. The Tribunal’s refusal to do so was challenged before the Lahore High Court. The matter could very simply have been decided solely on the basis of the fact that the second application filed by the assessee was hopelessly time-barred. The Division Bench did in fact hold as much in this case. However, it went further in its judgment by finding as under: “There can be no doubt that in the course of assessment proceedings for the year 1942-43 the assessee never raised the question which he now requires the Appellate Tribunal to state. In fact the position taken up by him was wholly inconsistent with the position that he has now adopted after the decision of the High Court…The Tribunal were, therefore, right in refusing to state the case. The law is clear on the point that it is only a question raised before the Appellate Tribunal that can be referred to the High Court under section 66.” 29. The Lahore High Court then went on to rely on, inter alia, the judgment of the Madras High Court in the case of A. Abboy Chetty (supra) which was approved by the Supreme Court of India in the following year in Scindia Steam’s case (supra). Perhaps its inclination to discuss the assessee’s contradictory positions, which led it into the domain of the issue whether new questions could be raised, can be attributed to the fact that the assessee in this case was blatantly trying to evade tax and kept taking conflicting positions. In any event, the Lahore High Court adopted the same restrictive approach post partition as was prevalent prior to it. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 33 :- 30. In the case of The Scindia Steam Navigation Co. Ltd. Vs. The Commissioner of Income-Tax (PLD 1959 Kar 527) a Division Bench of the High Court of Sindh held that although new questions could not be raised before the High Court, there was no restriction on new arguments being canvassed in support of the stated questions. This is an interesting case as it, while adopting the prevalent restrictive interpretation of the High Court’s powers in reference, expanded the scope for assessees by finding that new submissions, as long as in the form of arguments in support of existing questions and not new questions themselves, could be raised before the High Court in a reference. 31. Around the same time as the Sindh High Court judgment discussed above, Section 66 came under consideration before a four member bench of the Supreme Court in the case of M. Idrees Barry (supra). The Supreme Court in this case took a restrictive view of the High Court’s jurisdiction under Section 66 of the Act, 1922. The facts of the case were that a dispute arose as to whether the assessee was properly served notices in the case. The Tribunal held that the service of notice was valid which led the assessee to propose a question for reference to the High Court. The department opposed the reference but the Tribunal accepted it and referred the question, the form of which was approved by the assessee. The High Court held that although the question as framed would go against the department, the “real” question involved would lead to a decision against the assessee. It then proceeded to ‘reformulate’ the question and answer it against the assessee. The Supreme Court pointed out that the question referred to the High Court was whether service of notice was “valid” while the High Court reframed the question to make it as to whether service of notice on the assessee was “effective”. The Supreme Court went on to hold that the substance of the question Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 34 :- referred was not preserved by the High Court and therefore the reformulation was not valid. It further held that:- “Further what is provided for in S. 66(1) is not a reference of any question arising on the facts of the case but only a reference of a question or questions which arise out of the order of the Appellate Tribunal. This is clear from the language of the section as well as from the decisions on which the learned Judges have relied. The extract from the above-mentioned Full Bench judgment incorporated in the judgment under appeal is to the effect that the Tribunal cannot travel beyond the question originally indicated by the assessee and the High Court cannot raise any question suo motu which is not covered by the reference. The learned Judges recognised this limitation…” The Supreme Court then went on to examine the judgment of the High Court which had decided the matter on the basis of the conduct of the assessee after finding that it was one of the issues referred to in the Tribunal’s order. The Supreme Court disagreed with this observation and after examining the Tribunal’s order found that the conduct of the assessee was never challenged by the department before the lower forums. The Supreme Court observed that the only point raised was whether the service was valid, as the person who received the notice was empowered by the assessee and the High Court’s finding on effectiveness of service was not valid. The Supreme Court went on to discuss the Privy Council decision in National Mutual Life Association’s case (supra) in which the High Court had decided a point on the basis of a new argument raised before it but the Privy Council observed that the argument was outside the scope of the reference. The Supreme Court finally went on to conclude as follows:- Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 35 :- “It may well be that when the question referred is considered some point may emerge with regard to the assessee’s liability which should have been raised before the Tribunal and dealt by it, but as long as that matter is not covered by the reference, the High Court cannot formulate a new question and deal with it, for, as pointed out by their Lordships of the Privy Council in Raja Bahadur Sir Rajendra Narayan Bhanj Deo v. Commissioner of Income-Tax, Bihar and Orissa [AIR 1940 PC 158 at 159] “the function of the High Court in cases referred to it under S. 66 of the Act is advisory only and is confined to considering and answering the actual question referred to it”. The learned Judge should therefore have answered the question referred by the Income-tax Appellate Tribunal instead of formulating a different question and answering it.” It is obvious from a perusal of the above judgment that the Supreme Court of Pakistan adopted a restrictive view of the High Court’s jurisdiction and powers under Section 66 of the Act, 1922 on the basis of decisions of the Privy Council and other courts, which are based on certain fundamental misconceptions discussed earlier. Although the Supreme Court in M. Idrees Barry (supra) indicated that new issues cannot be raised in a reference, the point it actually decided was only that the High Court did not have any suo motu powers to frame new questions and answer them. The Supreme Court stated that only questions arising out of the order could be referred but did not expressly deal with the scope of the significant phrase “arising out of the order” or the issue of whether the assessee has the right to propose new questions while making a reference which are apparent from the facts as recorded in the Tribunal’s order and fall within the ambit of that phrase. 32. The view of the Lahore High Court in the R. S. Munshi Gulab Singh’s case (supra) was followed by the Sindh High Court in the case of Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 36 :- Abdul Ghani & Co. Vs. Commissioner of Income-Tax (PLD 1962 Kar 635) wherein it was held that only questions raised before and dealt with by the Tribunal could be referred to the High Court at the behest of the assessee. However, subsequently in 1965, a five member bench of the Supreme Court of Pakistan showed a strong inclination to depart from the narrow construction of the reference jurisdiction of the High Court in one case and then went on to assign a more liberal construction to the same in another case. In the case of Pakistan, through the Commissioner of Income-Tax, Karachi Vs. Messrs Majestic Cinema, Karachi (PLD 1965 SC 379) the Supreme Court of Pakistan observed as under:- “The second observation which we have to make is of a general nature. It is that consideration should be given to the question whether the procedure of ascertainment of the proper law applying to cases arising out of imposition of the income-tax, by the method of reference under section 66 of that Act is, in actual practice, entirely apt for the resolution of the questions of law arising, owing to the danger which appears in a fairly considerable number of cases, of there being produced through this process a distortion of the case both as to facts and law in its presentation to the High Court. It is in our view a matter for serious consideration whether a truer interpretation of the legal provisions could not be achieved by a process of direct appeal to the High Court from the decisions of the Tribunal, so limited however, that the determination of questions of fact is left within the exclusive responsibility of the Tribunal, subject to directions by the High Court, as to error of law or material error of procedure in such determination. We observe that in nearly all cases the question referred is prefaced by the expression “in the facts and circumstances of the case”, and on occasions, these words seem to convey a request for a final ascertainment of the ‘facts and circumstances’. Cases are not infrequent where the presentation of ‘facts and circumstances’ in the Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 37 :- ‘statement of facts’ appears in the course of the argument before the High Court and the Supreme Court, not to be entirely consistent from those appearing on the record. The Courts are then faced with a difficulty in formulating an answer to the question of law which would not operate a distortion in the imposition of the tax. In the present case, the facts are certainly clear, and the indefiniteness appeared in the question as referred to the High Court, but that is without effect on the observation that a direct appeal from the decisions of the Income-tax Tribunal in the two appeals before it, might have led to a more consistent decision in the present case, on the basis of the settled facts as they appeared. The procedure of reference is cumbersome and experience shows increasingly that it lends itself to possibilities of distortion not only in the presentation of facts relevant to the question of law referred, but even to distortion of the question of law itself. We think it is a matter for serious consideration by the authorities concerned whether the present procedure should not be replaced by a direct appeal, limited as to facts, to a Superior Court. A further clear advantage from a direct appeal would be a considerable saving of time in the finalisation of taxation matters.” [Emphasis supplied] The point is well taken. What is the object of the entire exercise? Is it to provide a discourse on the technical competence of the counsel appearing before the Tribunal in relation to the points actually raised or which ought to have been raised, or is it to answer the substantive issues in relation to the levy of fiscal law? 33. Only a few months after the passing of the above judgment, the same five member bench of the Supreme Court of Pakistan was once again faced with a difficult question in relation to the scope of references. In the case of Messrs Sutlej Cotton Mills Ltd., Okara Vs. The Commissioner of Income-Tax, North Zone (West Pakistan), Lahore Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 38 :- (PLD 1965 SC 443) during the course of the hearing a question was raised as to the period of limitation which had not been properly raised or considered in the lower forums, although a generalized objection had been raised. In this regard, the Supreme Court held as under:- “The question of violation of natural justice, as has been seen, was raised in bar of the jurisdiction of the Income-tax Officer to make the order of re-assessment which he made, and a point of jurisdiction is one which is not barred even at the ultimate stage before this Court…It is open to a Court before which a point of jurisdiction is raised, to deal with it at the very last stage, even if the point was not raised at any earlier stage, provided that all the evidence necessary for the determination of the point is available on the record so that no further evidence is required for reaching a satisfactory conclusion.” [Emphasis supplied] The Supreme Court carved out this exception but went on to state in its conclusion that:- “…in arriving at this conclusion, it has not been necessary in any way, to go outside the four corners of the question referred, or subject it to modification in any sense. The “facts and circumstances” have been accepted as they appear on the record, for the examination of the question.” Put differently, the Supreme Court construed the question before it so widely, as to allow the jurisdictional point to be decided although it was neither raised, nor discussed, earlier. This was an original approach and the ends of justice were therefore served. 34. That despite a move towards a liberal interpretation of the reference jurisdiction of the High Courts, the Lahore High Court in the case of Odeon Cinema (supra) reverted to the earlier view relying on, inter Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 39 :- alia, the Sindh High Court judgment in the Scindia Steam case (supra) and the Supreme Court judgment in the M. Idrees Barry case (supra), and went on to hold that questions not raised before the Tribunal could not be agitated before the High Court in a reference. It may be noted that the Lahore High Court did not refer to the Supreme Court’s latest judgment in the Sutlej Cotton Mills case (supra) and relied on the M. Idrees Barry judgment (supra), without analysis of its exact scope. 35. Up until 1971, the position in Pakistan was that the Courts were supportive of the view that the reference jurisdiction of the High Court was limited to answering the questions referred to it and it could not enlarge this scope. The Supreme Court in the Majestic Cinema case (supra) recognized the need for an enlargement of the High Court’s jurisdiction by providing a direct appeal on the questions of law and urged for a reconsideration of the law in this regard. Whilst dealing with the issue of whether questions not raised before or dealt with by the Tribunal, the High Courts had held that such questions could not be raised in a reference but in this regard a comprehensive and authoritative pronouncement of the Supreme Court of Pakistan was lacking. The High Courts found support from the case of M. Idrees Barry (supra), but a close analysis of that decision shows that the Supreme Court while obviously taking a very restrictive view of the overall jurisdiction and powers of the High Courts in references did not expressly deal with the issue of whether new questions falling within the ambit of the phrase “arising out of the order” could be referred by assessees in reference applications. The Supreme Court of Pakistan in Sutlej Cotton Mills case (supra) noted that, if the relevant facts were on the record, a question of jurisdiction could be raised at any time before the Courts in tax matters, regardless of whether it was raised before the lower forums, but it did not say whether questions of law, other than jurisdictional questions, could also be raised at any Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 40 :- time in a similar manner. However, to the extent of jurisdictional issues, the Supreme Court can be said to have carved out an exception to the general rule laid down in the decisions of the High Courts. 36. Section 66 of the Act, 1922 was significantly amended by way of the Finance Ordinance, 1971 (Ordinance XIV of 1971). For the first time since the introduction of the provision for references in the tax laws of the sub-continent, litigants were given the right to directly refer questions of law arising out of the Tribunal’s order to the High Court. This was an extremely important change, although its importance was not fully grasped at the time. It is vitally important to note that the argument for a restricted interpretation of the law, in as much as it was based on the view that since the High Court only gave its opinion to the Tribunal which was responsible for finalizing proceedings, the jurisdiction of the High Court was limited, was now being fatally undercut. A direct right had now been conferred on an assessee to invoke the jurisdiction of the High Court. The Tribunal itself did not need to seek any advice. It was not authorised to seek any advice. How then could the operative order of the High Court be termed as advice? The procedural formality of the past, which was given far more significance by the Courts than it deserved, was now removed thereby rendering the remedy available to the assessees more clearly appellate in nature. Thus, both the legal entitlement of the assessee and the jurisdiction of the High Court were enlarged. In practice also, the view of the Indian Supreme Court in the Scindia Steam case (supra) was now no longer applicable in any view of the matter. This change in the law may perhaps have been prompted by the Supreme Court’s plea in the Majestic Cinema case (supra). As amended in 1971, Section 66 of the Act, 1922 read as under:- Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 41 :- (1) Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of section 33 the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, [refer to the High Court any question of law arising out of such order7]. [……8] [(2) An application under sub-section (1) shall be in triplicate and shall be accompanied by the following documents, and where any such document is in any language other than English, also by translation thereof in English, namely :-- (a) Certified Copy, in triplicate, of the order of the Appellate Tribunal out of which the question of law has arisen; (b) Certified Copy, in triplicate, of the order of the Income-tax Officer or the Inspecting Assistant Commissioner, as the case may be, which was the subject- matter of appeal before the Appellate Tribunal; and (c) Certified Copy, in triplicate, of any other document the contents of which are relevant to the question of law formulated in the application and which was produced before the Income-tax Officer, the Inspecting Assistant Commissioner or the Appellate Tribunal, as the case may be, in the course of any proceedings relating to any order referred to in clause (a) or clause (b). (3) Where the assessee is the applicant, the Commissioner shall be made a respondent; and where the 7 Inserted for the words “require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court” by Section 4 of the Finance Ordinance, 1971 (Ordinance XIV of 1971). 8 Proviso omitted by Section 4 of the Ordinance ibid. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 42 :- Commissioner is the applicant the assessee shall be made a respondent: Provided that where an assessee dies or is adjudicated insolvent or is succeeded by another person or is a company which is being wound up, the application shall not abate and may, if the assessee was the applicant, be continued by, and if he was the respondent, be continued against, the executor, administrator or successor or other legal representative of the assessee, or by or against the liquidator or receiver, as the case may be. (4) In respect of cases referred to in sub-section (5) of section 5 where the Inspecting Assistant Commissioner performs the functions of an Income-tax Officer, reference in this section to Commissioner shall be construed as reference to the Central Board of Revenue. (4-A) On receipt of the notice of the date of hearing of the application, the respondent shall, at least seven days before the date of hearing, submit in writing a reply to the application; and he shall therein specifically admit or deny whether the question of law formulated by the applicant arises out of the order of the Appellate Tribunal. If the question formulated by the applicant is, in the opinion of the respondent, defective, the reply shall state in what particular the question is defective and what is the exact question of law, if any, which arises out of the said order; and the reply shall be in triplicate and be accompanied by any documents (alongwith a translation in English of those of such documents as are not in English) which are relevant to the question of law formulated in the application and which were produced before the Income- tax Officer, the Inspecting Assistant Commissioner or the Appellate Tribunal, as the case may be, in the course of any proceedings relating to any order referred to in clause (a) or clause (b) of sub-section (1).9] 9 Sub-sections (2), (3), (4) & (4A) inserted in place of sub-sections (2), (3), (3-A) & (4) by Section 4 of the Ordinance ibid. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 43 :- (5) The High Court upon the hearing of any [such application10] shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment. (6) Where a reference is made to the High Court the costs shall be in the discretion of the Court. (7) Notwithstanding that a reference has been made under this section to the High Court, income-tax shall be payable in accordance with the assessment made in the case: Provided that, if the amount of an assessment is reduced as a result of such reference, the amount overpaid shall be refunded with such interest as the Commissioner may allow unless the High Court, on intimation given by the Commissioner within thirty days of the receipt of the result of such reference that he intends to ask for leave to appeal to the Supreme Court, makes an order authorising the Commissioner to postpone payment of such refund until the disposal of the appeal to the Supreme Court. (7A) Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application under sub-section (1) [……11]. [(8) Any application made to the Appellate Tribunal or any question of law referred to the High Court by the Appellate Tribunal before the first day of July 1971, shall be disposed of by the Appellate Tribunal or the High Court, 10 Inserted in place of the words “such case” by Section 4 of the Ordinance ibid. 11 The words “or sub-section (2) or sub-section (3)” omitted by Section 4 of the Ordinance ibid. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 44 :- as the case may be, as if the Finance Ordinance, 1971, had not come into force.12] 37. This enlightened and progressive change in the law did not, however, last for long as the law reverted back to its original position with the passing of the Finance Act, 1974 (Act XL of 1974) (it may be noted in passing that this somewhat erratic behaviour of the Finance Ministry in proposing and getting amendments passed without any proper application of mind is hardly commendable for the reason that Finance Acts do not travel to the Senate for debate and discussion and they are often passed by the National Assembly in routine without rigorous debate. This adds to the responsibility of the Finance Division to ensure a proper application of mind prior to proposing an amendment. The will of the legislature is certainly to be respected but the rapidly changing whims of the draftsmen of the Federal Board of Revenue are not to be encouraged. Perhaps the conclusion is that a greater vigilance is required by the superior courts in interpreting fiscal laws). However, the interpretation of Section 66 of the Act, 1922 as it stood between 1971 and 1974 is extremely important for the purposes of the present discussion since the current state of the law is materially similar. Although there is no authoritative pronouncement of the Supreme Court of Pakistan on the law from this period, there is a judgment of the Lahore High Court which sheds considerable light on the interpretation of Section 66 ibid as it stood after the 1971 amendment. In the case of Messrs Hunza Asian Textile and Woolen Mills Ltd. Vs. Commissioner of Sales Tax, Rawalpindi Zone, Rawalpindi (1973 PTD 544 = [1974] 29 Taxation 1) while examining the jurisdiction of the High Court under Section 17 of the Sales Tax Act, 1951, in order to answer questions apparent from the face of the record in a reference even though the questions were not urged before the Tribunal, the Lahore High Court had the occasion to examine the similar Section 66 of the Act, 1922. The Lahore High Court examined the conflicting case law on the scope of Section 66 ibid and relied on the 12 Inserted by Section 4 of the Ordinance ibid. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 45 :- Supreme Court judgment in the Sutlej Cotton Mills case (supra) to rightly note that there was a move towards a broadening of the jurisdiction of the High Courts in references even prior to the 1971 amendment. It then went on to hold (at page 15) as under:- “15. On a careful consideration of the law we find that these amendments introduced in section 66 of the Income-tax Act and section 17 of the Sales Tax Act are fundamental in character and go to the very root of this jurisdiction exercised by the High Court under the law. There is no gainsaying that essentially this jurisdiction, vested in the High Court, is advisory only. But then under these two amended sections a right is conferred on the assessee or the Commissioner by an application to directly refer to the High Court any question of law "arising out" of the appellate order passed by the Appellate Tribunal. As a matter of strict interpretation, on the language of the section, the word "arising" out of the order of the Tribunal in the context has a wider import and connotation than the word "raised" before the Tribunal. A question of law may still "arise" out of the order of the Tribunal although it was not actually raised before it. In this connection it would be pertinent to reiterate the observations made by the Supreme Court of India in the Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. In interpreting the old section 66(1) of the Act the Court remarked that the language of section was wide enough to admit of questions of law on the facts found by the Tribunal and that there was no justification for ousting down its amplitude. We find that these remarks are all the more pertinent now after these amendments introduced in section 66(1) of the Act in this country by the Finance Ordinance, 1971. In these circumstances it calls for a more liberal interpretation to be placed on the amended provision for a direct reference of a question of law arising out of the appellate order passed by the Tribunal. Indeed it seems to us that the power of High Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 46 :- Court on reference after these amendments is now more akin and similar to that vested in it in a second appeal. … 17. …there is nothing inherent in the nature of this jurisdiction to debar the Court, in a proper case, from entertaining a new question of law patent on the face of the reference made to it by the Tribunal. … 19. To sum up our above discussion we find that the jurisdiction vested in the High Court is a controlled one. It must act upon a reference by the assessee or the Commissioner and not without it. It is not a Court of facts but will decide questions of law only. In this connection under the amended law the processing of the reference application through the Appellate Tribunal was dispensed with. The idea behind this amendment was to liberalize this procedure and to free it from the old process, shackles and hurdles. The dialogue now is between the assessee or the Commissioner and the Court directly. On principle we cannot but hold that the Court is competent to entertain a pure question of law floating on the surface, patent on the face of the record, and going to the root of the case, merely because it escaped the notice of the party and was not raised before the Tribunal in appeal in the first instance. The progress in the law has been to march forward from procedure to substance and to break down the rigours and formalities of the past in the larger interest of justice…” [Emphasis supplied] 38. The Lahore High Court essentially held that the jurisdiction under Section 66 ibid was essentially now appellate in nature, although restricted to only questions of law i.e. similar to a second appeal. On this view, it held that the phrase “arising out of the order” must now be assigned its natural meaning to include any questions which are apparent from the order. The Lahore High Court drew support from the decision of the Supreme Court of India in Scindia Steam (supra) wherein the court, Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 47 :- while agreeing that the natural meaning of the words “arising out of the order” could include new questions if they are apparent from the order, had gone on to adopt a narrow interpretation only because it felt constrained by the restrictive advisory jurisdiction of the High Court. The Lahore High Court correctly held that since that restrictive aspect of the law had been done away with and the jurisdiction was now practically appellate in nature, there was no reason why the words “arising out of the order” could not be assigned their natural meaning to include any questions which are apparent from the face of the record, regardless of whether they were raised before the Tribunal or not. There is an obvious distinction between “arising out of” and “argued before”. The Lahore High Court correctly noted that if the questions to be referred were to be restricted to the questions dealt with by the Tribunal, the language of the law would have been “refer questions of law ‘raised’ before the Tribunal” and not “arising” out of its order. This clearly is a powerful argument. 39. The view of the Lahore High Court is good authority for the scope of a reference under Section 133 of the Ordinance, 2001 as it stands today, due to the similarity in the law. However, some later judgments of the superior courts have made matters slightly more complicated than that. As noted earlier, the law reverted back to the pre-1971 position with an amendment in Section 66 ibid by way of the Finance Act, 1974. Subsequently, Section 66 supra was replaced by Section 136 of the Ordinance, 1979, which also retained the formal procedure of referring questions through the Tribunal and read as under:- 136. Reference to High Court.- (1) Within ninety days of the date upon which he is served with notice of an order under section 135, the assessee or the Commissioner may, by application in such form and accompanied by such documents as may be prescribed, require the Appellate Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 48 :- Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall, within ninety days of the receipt of such application, draw up a statement of the case and refer it to the High Court. (2) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may within one hundred and twenty days from the date on which he is served with notice of the refusal, apply to the High Court, and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, frame a question of law and the provisions of sub-sections (4), (5), (6) and (7) shall so far as may be, apply as they apply to a reference made under subsection (1). (3) If the High Court is not satisfied that the statement in a case referred under sub-section (1) is sufficient to enable it to determine the question raised thereby, the Court may refer the case back to the Appellate Tribunal to make such modifications therein as the Court may direct. (4) When any case has been referred to the High Court under this section, it shall be heard by a Bench of not less than two Judges of the High Court, and in respect of such case the provision of section 98 of the Code of Civil Procedure, 1908 (V of 1908) shall, so far [as] may be, apply notwithstanding anything contained in the Letters Patent applicable to any High Court or in any other law for the time being in force. (5) The High Court upon the hearing of any such case, shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal, which Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 49 :- shall pass such orders as are necessary to dispose of the case conformably to such judgment. (6) Where a reference is made to the High Court under this section, the costs shall be in the discretion of the Court. (7) Notwithstanding that a reference has been made under this section to the High Court, tax shall, unless the recovery thereof has been stayed by the High Court, be payable in accordance with the assessment made in the case. (8) Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application under subsection (1) or subsection (2). (9) When an application is made under subsection (1) by the assessee, it shall be accompanied by a fee of one hundred rupees. 40. In the case of Ahmad Karachi Halva (supra), a three member bench of the Supreme Court was called upon to decide the question whether a question of law raised in the memorandum of appeal but not argued before the Tribunal can be said to be arising out of the order of the Tribunal. The counsel for the appellant relied on the case of Hunza Asian Textile and Woollen Mills (supra) and Walayat Flour Mills, Lyallpur Vs. Commissioner of Income-Tax, Rawalpindi ([1974] 29 Taxation 31). The Supreme Court first examined the judgment in Hunza Asian Textile and Woollen Mills (supra) and noted the discussion in relation to the decision of the Indian Supreme Court in Scindia Steam (supra) therein. It then went on to find in paragraph 8, as under:- “The Division Bench, however, went further and held that a liberal meaning should be given to the expression “arising Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 50 :- out of the order of such Court” in agreement with the minority opinion in that case. Accordingly, it was of the opinion that a new plea could be allowed to be raised if it was implicit in or covered by the question of law referred to it for its opinion and no additional facts were necessary for its disposal.” The Supreme Court then went on to examine the judgment in the case of Walayat Flour Mills (supra) and while noting that the Division Bench relied on the minority view in the Indian Supreme Court judgment of Scindia Steam (supra), the Supreme Court observed that the Lahore High Court had failed to rely on the cases of Abdul Ghani, (supra) Odeon Cinema (supra) and M. Idrees Barry (supra). Thereafter the Supreme Court made a passing reference to some decisions from the Indian jurisdiction post the Scindia Steam case (supra) and went on to hold as under:- “11. There is, therefore, a preponderance of view as held by the High Court in favour of the proposition that expression “arising out of such order” in section 66(1) of the Income-tax Act does not include within its concept a question of law which was not raised, argued or decided by the Tribunal. This Court in PLD 1959 SC (Pak.) 202 has not given any wider import to the expression and has confined it to a question of law which is dealt with by the Tribunal. This in our view would not include a question of law which was neither raised nor dealt with by the Tribunal. 12. Concluding thus, we are not inclined to agree with the opinion of the Division Bench in (1974) 29 Taxation 31 which has followed the minority view of the Supreme Court of India in the case of Scindia Steam Navigation Co. Ltd. which itself did not find favour in the subsequent cases decided by the Supreme Court of India…” Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 51 :- 41. It may be noted that there are multiple aspects of the Supreme Court’s decision which require a closer examination. Firstly, it will be noted that although in Walayat Flour Mills case (supra) express reliance was placed on the minority view in the Indian Scindia Steam case (supra), the same is not true for the case of Hunza Asian Textile and Woollen Mills (supra). The Hunza Asian Textile and Woollen Mills case (supra) did not rely on the minority view in the Indian Scindia Steam case (supra). What it did was to refer to the majority view in the Indian Scindia Steam case (supra) but read with the change in the law, which was the significant and determinative factor. Furthermore, it should be noted that the Lahore High Court had not advocated a liberal/wide reading of the phrase “arising out of such order” but instead had simply assigned the natural meaning of the words to the said phrase. Thus the essential point was the change in the law on which the case of Hunza Asian Textile and Woollen Mills (supra) rests. The case related to the tax year 1957-1958 and a reference was filed in 1964. The matter was decided by the Supreme Court in 1981. At all these material times, the law was different from the law interpreted by the Lahore High Court in the case of Hunza Asian Textile and Woollen Mills (supra). Finally, in so far as the subsequent cases of the Indian Courts are concerned, they are hardly relevant since they were bound by the majority view in the Indian Scindia Steam case (supra) and obviously could not follow the minority view. 42. Essentially, the Supreme Court followed the majority view of the Indian Supreme Court decision in the Scindia Steam case (supra) because the intervening change in the law in Pakistan was not brought to its notice. If it had, perhaps the verdict may not have been the same. We have already pointed out the flaws in the reasoning in that case, and the earlier cases on which it relied. The Indian Supreme Court had proceeded on the unfounded assumption that the jurisdiction was advisory in the Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 52 :- narrow sense. On the contrary, the Tribunal was bound by the law to refer the matter to the High Court at the insistence of an aggrieved party and the Tribunal had no discretion to disregard the High Court’s “advice”. There is a clear cut conceptual distinction between binding and non- binding advice, especially when emanating from a court of law. An illustration of advisory jurisdiction is provided by Article 186 of the Constitution in terms of which the President, of his own volition, seeks the advice of the Supreme Court. The mere fact that a judicially binding verdict is given in the format of a question and answer does not change or alter its judicial character, especially when it is given in relation to a final order passed by a lower forum. It is a judicial verdict in every sense of the word and the Court exercises its normal judicial powers for this purpose. To conclude, the law does not use the phrase “advisory jurisdiction” and the use of this nomenclature cannot alter the plain meaning of the words used in the statute. 43. The view of the Courts of Pakistan has subsequently been coloured by the observations in the Ahmad Karachi Halva case (supra). A major change to Section 136 of the Ordinance, 1979 came in 1997 when it was amended to provide for an “appeal” to the High Court instead of a “reference”. Thus the earlier suggestion of the Supreme Court was belatedly acted upon by the legislature. Unfortunately, there was another reversion through the Finance Ordinance, 2000. Although the intention of the 1997 amendment was manifestly to broaden the jurisdiction of the High Court by explicitly making it an appellate jurisdiction, the High Court surprisingly failed to pick up this obvious point. In the case of Hong Kong Chinese Restaurant (supra), the Lahore High Court held that since the jurisdiction was still limited to questions of law arising out of the order of the Tribunal, there was no difference between the scope of the Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 53 :- jurisdiction prior to and post the 1997 Amendment. This was a clear misreading of the law. 44. Thereafter followed yet another zig zag in the law. Section 136 of the Ordinance, 1979 was succeeded by Section 133 of the Ordinance, 2001, which, as amended up to the year 2004, read as under:- (1) Where the Appellate Tribunal has made an order on an appeal under section 132, the [taxpayer13] or Commissioner may, by application in such form and accompanied by such documents as may be prescribed, require the Appellate Tribunal to refer any question of law arising out of such order to the High Court. (2) An application under sub-section (1) shall be made within ninety days of the date on which the [taxpayer14] or Commissioner, as the case may be, was served [……15] with the Appellate Tribunal’s order. (3) Where, on an application under sub-section (1), the Appellate Tribunal is satisfied that a question of law arises out of its order, it shall, within ninety days of receipt of the application, draw up a statement of the case and refer it to the High Court. (4) Where, on an application under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the [taxpayer16] or the Commissioner, as the case may be, may apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, frame a question of law for its consideration. (5) An application under sub-section (4) shall be made within one-hundred and twenty days from the date on 13 Inserted in place of the word “appellant” by the Finance Ordinance, 2002. 14 Inserted in place of the word “appellant” by the Finance Ordinance, 2002. 15 The words “notice of” omitted by the Finance Act, 2003. 16 Inserted in place of the word “appellant” by the Finance Ordinance, 2002. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 54 :- which the [taxpayer17] or Commissioner, as the case may be, was served with [order18] of the refusal. (6) Sub-sections (10) through (14) shall apply to a question of law framed by the High Court in the same manner as they apply to a reference made under sub- section (1). (7) If, on an application under sub-section (1), the Appellate Tribunal rejects the application on the ground that it is time-barred, the [taxpayer19] or Commissioner may apply to the High Court and, if the High Court is not satisfied with the correctness of the Appellate Tribunal’s decision, the Court may require the Appellate Tribunal to treat the application as made within the time allowed under sub-section [(2)20]. (8) An application under sub-section (7) shall be made within [ninety days21] from the date on which the [taxpayer22] or Commissioner, as the case may be, was served with [order23] of the rejection. (9) If the High Court is not satisfied that the statement in a case referred under sub-section (3) is sufficient to enable it to determine the question raised thereby, the Court may refer the case back to the Appellate Tribunal to make such modification therein as the Court may direct. (10) A reference to the High Court under this section shall be heard by a Bench of not less than two Judges of the High Court and, in respect of the reference, the provisions of section 98 of the Code of Civil Procedure, 1908 (V of 1908) shall apply, so far as may be, notwithstanding anything contained in any other law for the time being in force. 17 Inserted in place of the word “appellant” by the Finance Ordinance, 2002. 18 Inserted in place of the word “notice” by the Finance Act, 2003. 19 Inserted in place of the word “appellant” by the Finance Ordinance, 2002. 20 Inserted in place of the brackets and figure “(1)” by the Finance Act, 2003. 21 Inserted in place of the words “three months” by the Finance Ordinance, 2002. 22 Inserted in place of the word “appellant” by the Finance Ordinance, 2002. 23 Inserted in place of the word “notice” by the Finance Act, 2003. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 55 :- (11) The High Court upon hearing a reference under this section shall decide the questions of law raised by the reference and deliver judgment thereon containing the grounds on which such decision is founded. (12) A copy of the judgment of the High Court shall be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment. (13) The costs of a reference to the High Court under this section shall be at the discretion of the Court. (14) Where a reference relates to an assessment, the tax due under the assessment shall be payable in accordance with the assessment, unless recovery of the tax has been stayed by the High Court. (15) Section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to an application under sub-section (1). (16) An application under sub-section (1) by a person other than the Commissioner shall be accompanied by a fee of one hundred rupees. The provisions of Section 133 of the Ordinance, 2001, being similar to Section 136 of the Ordinance, 1979 were also interpreted by the Courts in a similar restrictive manner. Even the provisions for a reference under the Sales Tax Act, 1990 (the Act, 1990) and the Customs Act, 1969 were interpreted in an identical restrictive manner [reference may be made to Collector of Customs E & S. T. and Sales Tax Vs. Pakistan State Oil Company Ltd. (2005 SCMR 1636) and Towellers Ltd. through Chief Operating Officer Vs. Government of Pakistan Represented by Member Sales Tax Central Board of Revenue, Islamabad and another (2006 PTD 310)]. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 56 :- 45. Thereafter followed yet another major alteration in the law. Section 133 of the Ordinance, 2001 underwent two crucial changes in the year 2005 when it was amended once again, firstly, to provide the right to litigants to directly refer questions of law arising out of the Tribunal’s order to the High Court, and, secondly, what is even more important, to explicitly state that the effect of the opinion of the High Court would automatically translate into a modification of the Tribunal’s order. In brief, the High Court’s judgment had now become self-executory. The concept of “advice” being given to the Tribunal to alter its erroneous views has now totally disappeared, beyond any doubt. The order of the Tribunal is altered by the opinion of the High Court, by operation of law. In other words the legal right and entitlement of the Tribunal to refer questions of law to the High Court for “advice” was taken away. This obviously makes an enormous difference. The earlier limitation which was supposedly because the reference was being made by the Tribunal and the answer was being given to the Tribunal has now disappeared. The litigant has been conferred a direct right to take his grievance to the High Court. The Tribunal’s views or formulations are no longer necessary or relevant. They are besides the point. Section 133 of the Ordinance, 2001 as amended by the Finance Act, 2005 reads as under:- [133. Reference to High Court.- (1) Within ninety days of the communication of the order of the Appellate Tribunal under sub-section (7) of section 132, the aggrieved person or the Commissioner may prefer an application, in the prescribed form along with a statement of the case, to the High Court, stating any question of law arising out of such order. (2) The statement to the High Court referred to in sub- section (1), shall set out the facts, the determination of the Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 57 :- Appellate Tribunal and the question of law which arises out of its order. (3) Where, on an application made under sub-section (1), the High Court is satisfied that a question of law arises out of the order referred to in sub-section (1), it may proceed to hear the case. (4) A reference to the High Court under this section shall be heard by a Bench of not less than two judges of the High Court and, in respect of the reference, the provisions of section 98 of the Code of Civil Procedure, 1908 (Act V of 1908), shall apply, so far as may be, notwithstanding anything contained in any other law for the time being in force. (5) The High Court upon hearing a reference under this section shall decide the question of law raised by the reference and pass judgment thereon specifying the grounds on which such judgment is based and the Tribunal’s order shall stand modified accordingly. The Court shall send a copy of the judgment under the seal of the Court to the Appellate Tribunal. (6) Notwithstanding that a reference has been made to the High Court, the tax shall be payable in accordance with the order of the Appellate Tribunal: Provided that, if the amount of tax is reduced as a result of the judgment in the reference by the High Court and the amount of tax found refundable, the High Court may, on application by the Commissioner within thirty days of the receipt of the judgment of the High Court that he wants to prefer petition for leave to appeal to the Supreme Court, make an order authorizing the Commissioner to postpone the refund until the disposal of the appeal by the Supreme Court. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 58 :- (7) Where recovery of tax has been stayed by the High Court by an order, such order shall cease to have effect on the expiration of a period of six months following the day on which it was made unless the appeal is decided or such order is withdrawn by the High Court earlier. (8) Section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application made to the High Court under sub-section (1). (9) An application under sub-section (1) by a person other than the Commissioner shall be accompanied by a fee of one hundred rupees.24] 46. Despite the legislature’s clear intention to liberalize the law by way of the 2005 amendment, the High Courts have unfortunately continued to interpret the scope of the reference jurisdiction in the same restrictive manner as before. Reference in this regard may be made to the case of Haseeb Waqas Sugar Mills Ltd. Vs. Government of Pakistan and others (2015 PTD 1665), wherein the Lahore High Court while interpreting the scope of Section 47 of the Act, 1990 (which is similar to Section 133 of the Ordinance, 2001) held that new questions could not be raised in a reference if they had not been urged before the lower forums. In reaching this conclusion, the Lahore High Court relied on, inter alia, the judgment in the Ahmad Karachi Halva case (supra) without realizing that in the intervening period the law had undergone a radical change. Other judgments also superficially followed cases decided under the old regime of law [for example Director, Intelligence and Investigation (Customs and Excise), Faisalabad and another Vs. Bagh Ali (2010 PTD 1024) and Mountain States Mineral Enterprises (supra)]. The case of Ghulam Mustafa Jatoi (supra), wherein the Sindh High Court, after examining a large number of cases, set out the principles governing 24 Inserted in place of sub-sections (1) to (16) by the Finance Act, 2005. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 59 :- references under Section 133 of the Ordinance, 2001, suffers from the same flawed analysis. The problem with all the above decisions is that they fail to appreciate the significance of the amendments in the law in 2005 and thus failed to draw any distinction on that basis. The principles laid down in these cases may, at best, have been valid for the period prior to 2005. However, thereafter, the position of the law is different and warrants an independent examination. Judgments such as Ahmad Karachi Halva (supra), Abdul Ghani (supra), Odeon Cinema (supra) relied upon in these cases are also distinguishable as they relate to a period when the legal provision was different. Some other judgments relied upon do not expressly lay down the principle that new questions cannot be referred by the assessee if they were not taken up before the lower forums. The generally restrictive view adopted in these judgments is also open to the objection, as discussed earlier, that the language of Section 66 since its enactment, and the language of its successor provisions, is wide and confers broad powers, jurisdiction and rights upon the parties and the High Court, which the courts have not appreciated. 47. There is also a recent judgment of the Supreme Court in the case of F. M. Y. Industries Limited (supra) which also adopted the same restrictive view of the High Court’s jurisdiction. However, the provision under consideration was Section 136 of the Ordinance, 1979 and not Section 133 of the Ordinance, 2001 as it stands today. Thus this decision is distinguishable. Furthermore, it is obviously not applicable for the purposes of interpreting the current provision of law as the same is significantly different. In a recent judgment reported as Army Welfare Trust (Nizampur Cement Project), Rawalpindi and another Vs. Collector of Sales Tax (Now Commissioner Inland Revenue), Peshawar (2017 SCMR 9), this Court relied upon the case of F. M. Y. Industries Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 60 :- Limited (supra) however that was in the context of Section 47 of the Act, 1990 therefore this decision is also distinguishable. 48. To recapitulate, the problem all along has been the unfortunate legacy of the Act, 1918. This provided a true illustration of advisory jurisdiction, since advice was to be rendered to the Revenue Authority prior to its having passed an order. In 1922, this advisory jurisdiction was retained under Section 66(1) of the Act, 1922 which was similarly framed. However, this sub-section had, in sum and substance, lost its importance because of sub-section (2), which conferred the right to challenge the decision of the Tribunal on questions of law. It was this remedy which was followed thereafter. Section 66(1) ibid thereafter became redundant for all practical purposes and was eventually deleted through a subsequent amendment in 1939 and the same position continued under the Ordinance, 1979 and succeeding law. Thereafter, no advisory jurisdiction remained in any shape or form. But since the significance of the change was not appreciated, the concept of advisory jurisdiction continued to confuse the courts – the corpus had disappeared, but the shadow remained. The law as it stands after the 2005 amendment is now clear beyond any conceptual doubt. There is no question of advisory jurisdiction (which phrase was never used in the law at any stage) and the plain words of the section must now be given their ordinary meaning. No hyper- technicalities now stand as barriers in the way of substantive justice. 49. An independent interpretation of Section 133 of the Ordinance, 2001, as it stands today, on the plain language of the law, liberated from the burden or benefit of earlier judgments, would make the position very clear. Sub-section (1) confers a right on any person or the Commissioner aggrieved by a final order of the Appellate Tribunal to file an application before the High Court along with a statement of the case stating any questions of law arising out of the Tribunal’s order. There is a Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 61 :- direct right to approach the High Court in a similar manner as in appeals, revisions, reviews etc. The order being challenged is the final order but the challenge is limited to questions of law only. The statement must set out the facts, the Tribunal’s determination and the questions of law which arise out of its order in terms of sub-section (3). The questions of law which may be referred are only those which “arise” out of the order of the Tribunal. On the plain language of the law, this would include any question which can be made out from the order of the Tribunal. There is nothing in the scheme of the section to impute any extraordinary limitations on the type of questions which may be posed. The facts as stated in the Tribunal’s order have to be taken as recorded and any question which can be made out from those facts may be raised in an application under Section 133 ibid, regardless of whether it was previously urged or not. There is absolutely no reason for confining the questions which may be referred to only those which were argued before the Tribunal on the hypothesis that this is an advisory jurisdiction as that is not what the language of the law contemplates. The law, as it stands, allows all questions “arising” out of the order to be referred and not just questions “argued” or “raised” before the Tribunal. 50. Section 133 ibid clearly states that upon hearing a case, the High Court is obligated to decide the question of law raised by the reference and pass judgment thereon and the Tribunal’s order automatically stands modified by the order of the High Court. This is an extremely significant aspect as it is the essence of an appellate order that it per se modifies the order of the lower forum, or, in other words, merges into it. As pointed out above, this particular aspect of Section 133 ibid was introduced for the first time by way of the 2005 amendment and was not present in Section 66 of the Act, 1922 during the brief period between 1971 and 1974 when the law was similar to the present one. It is therefore Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 62 :- clear beyond any doubt that the remedy under Section 133 ibid is appellate in nature and must be construed and applied as such. The language of the law must be given effect to, rather than unnecessarily restricting the scope of the jurisdiction on the basis of judgments from an era when the law and circumstances were completely different. The civilized world, including our own country, has been moving towards greater rights for citizens over the last century to the extent that the privilege of a fair trial has now become a constitutional right. In these circumstances, it is not appropriate to restrict the scope of a legal remedy available to citizens on the basis of old decision, especially when the language of the law is clearly pointing in the opposite direction. 51. Before parting with the subject, a brief reference to the law in England may also be useful for purposes of comparison. A provision for statement of a case for the opinion of the High Court in tax matters has been in existence in English law since at least 1890. Section 59 of the Taxes Management Act, 1880 (the Act, 1880), on which Section 66 of the Act, 1922 was presumably based, read as under:- “59. Commissioners may be required to state a case for opinion of High Court. (1.) Immediately upon the determination of any appeal under the Income Tax Acts by the General Commissioners, or by the Special Commissioners, or any appeal under the Acts relating to the inhabited house duties by the General Commissioners, the appellant or the surveyor may, if dissatisfied with the determination as being erroneous in point of law, declare his dissatisfaction to the Commissioners who heard the appeal, and having so done may, within twenty-one days after the determination, require the Commissioners, by notice in writing addressed to their clerk, to state and sign a case for the opinion of the High Court thereon. The case shall set forth the facts and Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 63 :- the determination, and the party requiring the same shall transmit the case, when so stated and signed, to the High Court within seven days after receiving the same, and shall previously to or at the same time give notice in writing of the fact of the case having been stated on his application, together with a copy of the case to the other party, being the surveyor, or the appellant, as the case may be. (2.) In relation to cases to be so stated, and the hearing thereof, the following provisions shall have effect: (a.) The party requiring the case shall, before he shall be entitled to have the case stated, pay to the clerk to the Commissioners a fee of twenty shillings for and in respect of the case: (b.) The High Court shall hear and determine the question ‘or questions of law arising on a case transmitted under this Act, and shall thereupon reverse, affirm, or amend the determination in respect of which the case has been stated, or remit the matter to the Commissioners with the opinion of the High Court thereon, or may make such other order in relation to the matter, and may make such order as to costs as to the High Court may seem fit, and all such orders shall be final and conclusive on all parties : (c.) The High Court shall have power, if they think fit, to cause the case to be sent back for amendment, and thereupon the same shall be amended accordingly, and judgment shall be delivered after it shall have been amended: (d.) The authority and jurisdiction hereby vested in the High Court shall and may (subject to any rules and orders of the High Court in relation thereto) be exercised by a judge of the High Court sitting in chambers, and as well in vacation as in term time: Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 64 :- (e.) The High Court may from time to time, and as often as they shall see occasion, make and alter rules and orders to regulate the practice and proceedings in reference to cases stated under this Act. (3.) An appeal shall lie from the decision of the High Court, or of any judge thereof, upon any case stated under the above provisions to Her Majesty's Court of Appeal, and from thence to the House of Lords, and from the decision of the Court of Session, as the Court of Exchequer in Scotland, upon any case so stated to the House of Lords. (4.) The fact that a case so stated is pending before the High Court therein referred to shall not in any way interfere with the payment of the income tax or inhabited house duty according to the assessment of the Commissioners by whom the case was stated, but the income tax or inhabited house duty shall be paid according to such assessment, as if the case had not been required to be stated, and in the event of the amount of assessment being altered by the order or judgment of the High Court the difference in amount, if too much has been paid, shall be repaid with such interest (if any) as the High Court may allow, and if too little, shall be deemed to be arrears (except so far as any penalty is incurred on account of arrears), and shall be paid and recovered accordingly.” As stated earlier, Section 59 of the Act, 1880 was similar, but not identical, to Section 66 of the Act, 1922. One of the obvious differences was that under Section 59 supra, the statement of the case for the opinion of the High Court was not just limited to questions of law but covered any questions arising out of the determination. A provision similar to Section 59 of the Act, 1880 remained in the English Statute books till 01.04.2009 when Section 707 of the Income Tax Act, 2007 (statement of case by Tribunal for opinion of High Court or Court of Session) was repealed to provide for a direct appeal to an upper tier tribunal. Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 65 :- 52. The position in England was settled very early in the case of Attorney General Vs. Avelino Aramayo and Company ([1925] 1 KB 86) wherein Lord Atkin held at pages 108-109 as under:- “…..As I read the statutory procedure, which at that time depended on s. 59 of the Taxes Management Act, 1880, the Court is not limited to particular questions raised by the Commissioners in the form of questions on the case. All that the section provides is that if the appellant is dissatisfied with the determination as being erroneous in point of law he may require the Commissioners to state and sign a case, and the case shall set forth the facts and the determination, and upon that being done the Court has to decide whether or not the determination was or was not erroneous in point of law, and any point of law that can be raised properly upon the facts found by the Commissioners the Court can decide. No doubt there may be a point of law in respect of which the facts have not been sufficiently found, and if that point of law was not raised below at all and cannot be raised without further facts on either side, the Court may very well refuse to give effect to it, and Either (sic) party may have precluded themselves by their conduct from raising in the Court of Appeal the point of law which they deliberately refrained from raising down below. Those questions, of course, have to be considered. But apart from that, if the point of law or the erroneous nature of the determination of the point of law is apparent upon the case as stated, and there are no further facts to be found, the Court can give effect to the law.” The Judgment of the Court of Appeals was upheld by the House of Lords in Aramayo Francke Mines, Limited Vs. Eccott ([1925] A.C. 634) and was consistently followed by the Courts in England. The proposition is that if a question arose from the facts as stated and no new facts were necessary for determination of the same, there is no reason why it should Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 66 :- not be entertained by the High Court regardless of whether it was raised before the lower forum. 53. The above is a brief conspectus of the law as it originally stood, as it has evolved over the years and as it stands today. 54. We now advert to an analysis of Section 79 of the Ordinance, 1979 which read as under:- 79. Income from transactions with non-residents.- Where business is carried on between a resident and a non- resident and it appears to the Income-tax Officer that, owing to the close connection between them, the course of business is so arranged that the business transacted between them produces to the resident either no profits or less than the ordinary profits which might be expected to arise in that business, the Income-tax Officer shall determine the amount of profits which may reasonably be deemed to have accrued to the resident and include such amount in the total income of the resident. Section 79 ibid pertained to the concept of transfer pricing which is the pricing of a transaction between related parties. While transfer pricing in itself is not illegal or unlawful, transfer mispricing, also known as abusive transfer pricing or transfer pricing manipulation is. When two unrelated companies transact with each other, the transaction generates a market price based on the forces of demand and supply. This is called arm’s length trading. However, when two related companies enter into a transaction with each other, the price in such transaction may be distorted due to various factors. Sometimes the prices are distorted in order to minimize the overall tax bill of the corporate group. For example, one company (in a jurisdiction with higher tax rates) may pay a higher price for a good from its associated company (in a jurisdiction with zero/low tax rates) so that most of the profit of the corporate group is recorded in the country with Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 67 :- zero/low tax rates. In such situations, companies are not dealing with each other at arm’s length. This principle entails that transfer prices must be comparable to the prices that unrelated parties would have charged in the same or similar circumstances. It requires a comparability analysis, whereby transactions between unrelated parties are identified which may be compared to the transactions between related parties in order to determine whether transfer mispricing has taken place. For this exercise, transfer pricing documentation is required which is the information and documents relied upon by taxpayers while determining the transfer price of their transaction. 55. This is the menace that Section 79 of the Ordinance, 1979 was meant to curb. According to Section 79 ibid, the Income Tax Officer was to determine the amount of profits which may reasonably be deemed to have accrued to the resident and include such amount in the total income of the resident if the following elements were present in a transaction:- i. There was a resident and a non-resident; ii. There was a close connection between them; iii. Business was carried on between them; and iv. The course of business was so arranged that the business transacted between them produced to the resident either:- (a) no profits; or (b) less than the ordinary profits which might be expected to arise in that business. For the Income Tax Officer to exercise powers under Section 79 of the Ordinance, 1979, all the above elements were required to be present. The absence of any one of them rendered the section inapplicable to a case. As Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 68 :- regards the first element, “resident” was defined in Section 2(40) of the Ordinance, 1979 as follows:- (40) "resident", in relation to any income year, means- (a) an individual, who- (i) is in Pakistan in that year for a period of, or for periods amounting in all to, one hundred and eighty two days or more; or (ii) is in Pakistan for a period of, or periods amounting in all to, ninety days or more in that year and who, within the four years preceding that year, has been in Pakistan for a period of, or periods amounting in all to, three hundred and sixty-five days or more; or (b) a Hindu undivided family, firm or other association of persons, the control and management of whose affairs is situated wholly or partly in Pakistan in that year; or (c) a Pakistani company or any other company, the control and management of whose affairs is situated wholly in Pakistan in that year; Section 2(30) of the Ordinance, 1979 defined “non-resident” as “a person who is not resident”, i.e. a person who did not fall within the definition of resident given in Section 2(40) supra. The second element, “close connection” was not defined in the Ordinance, 1979 and has to be understood in the context of the concept of transfer pricing. Residents and non-residents could be related or closely connected in various ways:- (i) the resident could be directly or indirectly controlled by the non-resident, for example, the resident may be a subsidiary and the non-resident the parent/holding company; (ii) the non-resident may be directly or indirectly controlled by Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 69 :- the resident, for example, the non-resident may be a subsidiary and the resident the parent/holding company; or (iii) the resident and non- resident were directly or indirectly controlled by a common person, for example, the resident and non-resident were both subsidiaries while the common person was the parent/holding company. Coming to the third element, “business” was defined in Section 2(11) of the Ordinance, 1979 thus “includes any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture.” The use of the word “trade” was wide enough to cover any buying and selling of goods and services. Since certain facts are undisputed and therefore the first three elements stand proved, we deem it expedient to discuss the same before moving onto the fourth element which is contentious. First, Squibb Pakistan and Syngenta Pakistan fall within Section 2(40)(c) of the Ordinance, 1979 and are/were therefore residents. This fact is recorded in their respective assessment orders, which they do not dispute. It is also undisputed that Squibb International and Ciba Geigy are non-residents. Secondly, there is a close connection between each resident and non-resident; Squibb International and Ciba Geigy are the parent companies of Squibb Pakistan and Syngenta Pakistan respectively. This fact was mentioned in the assessment orders and not controverted by the assessees. The resident assessees also accept that they purchased various pharmaceutical raw materials from the non-residents for a certain amount of consideration which constitutes “trade” and therefore fell within the definition of “business”, ergo business was carried on between the residents and non- residents. Thus the sole issue that remains is whether the course of business was so arranged that the business transacted between the resident and non-resident produced to the resident less than the ordinary profits which might be expected to arise in that business (note:- the issue of no Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 70 :- profits does not arise in these cases as it is undisputed that the resident companies did earn profits for the assessment years in question). 56. It is this fourth element that clinches the issue of transfer pricing. Where the pricing of transactions between closely connected parties is not at arm’s length, this may result in reduced (or no) profit for the resident taxpayer, thus the tax authorities are empowered under Section 79 of the Ordinance, 1979 to adjust the profit upwards and impose tax accordingly. Section 79 ibid provides “Where business is carried on between a resident and a non-resident and it appears to the Income-tax Officer that...” [emphasis supplied]. In other words, in order to invoke Section 79 ibid, the Income Tax Officer had to see whether prima facie, the course of business was so arranged between the closely connected resident and non-resident that the business transacted between them produced to the resident less than the ordinary profits which might be expected to arise in that business. For this purpose the Income Tax Officer needs to base such prima facie opinion upon evidence gathered in a reasonable investigation showing that his proposed method of pricing was the most appropriate for determining the arm’s length transfer price. The burden would then shift to the taxpayer to establish that the transfer price of the transaction with its closely connected non-resident was indeed at arm’s length based upon another pricing method which was more appropriate in the facts and circumstances of the case. This is to be proven from inter alia the transfer pricing documentation. 57. Coming to the facts of the cases; the Income Tax Officers relied upon the accounts provided by the resident companies compared to their previous years and the details of import(s) of ingredients for its pharmaceuticals from the non-resident associate concerns as furnished by the assessees compared with the prices of imports of parallel companies from other sources, duly certified by the Assistant Drugs Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 71 :- Controller, and concluded that the raw material ingredient was imported by Squibb Pakistan and Syngenta Pakistan at a higher price, thereby reducing the profits that would have otherwise accrued to them and have adjusted the tax payable accordingly. What the Income Tax Officer(s) failed to show was that the course of business was so arranged between the closely connected resident and non-resident that the business transacted between them produced to the resident less than the ordinary profits which might have been expected to arise in that business. The Officer(s) merely tabulated the differences in the import prices without giving any precise details regarding the parallel cases upon which he placed reliance nor did he provide any prima facie justification that the pricing method adopted (if any) by him was the most apt in the peculiar facts and circumstances of the case. The reason cited by the Income Tax Officer that the raw materials imported by parallel companies from other sources fulfill the requirements, as laid down in the Drugs Act, 1976 and cleared by the Assistant Drugs Controller, is not to our mind sufficient to establish prima facie transfer mispricing. Various factors affect the price of a good and mere approval of some authority may mean that it (the good) has met the minimum specifications for the ingredient laid down in law but does not necessarily mean that the said goods can be treated at par with the goods imported by the resident companies for the purposes of pricing. Therefore we do not find that the Income Tax Officer had conducted a reasonable investigation or offered prima facie evidence based on an appropriate pricing method adopted by him, thereby showing transfer mispricing and resultant depletion in profits of the resident companies. Hence the burden never shifted to the resident taxpayers to prove that the pricing method adopted by the Income Tax Officer was not appropriate in the circumstances and that they (the residents) had duly conducted a comparability analysis of the pharmaceutical ingredients in question in Civil Appeals No.622 & 623/2008 and 1403 & 1404/2009 -: 72 :- the light of which their transfer price was at arm’s length. Therefore the Income Tax Officer erred in invoking Section 79 of the Ordinance, 1979 and adjusting the profit of the resident companies. 58. In light of the above, we find that Section 79 of the Ordinance, 1979 was not attracted to the case of Squibb Pakistan and Syngenta Pakistan, therefore, Civil Appeal Nos.622 and 623 of 2008 are allowed and the impugned judgements are set aside while Civil Appeal Nos.1403 and 1404 of 2009 are dismissed. CHIEF JUSTICE JUDGE JUDGE Announced in open court on 26.4.2017 at Islamabad Approved For Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO.633 TO 637 OF 2007 AND CIVIL APPEALS NO. 130 TO 145 OF 2009 AND CIVIL APPEALS NO. 68-70 OF 2011 AND CIVIL APPEAL NO. 1229 OF 2013 AND CIVIL APPEALS NO. 158 TO 160, 983 TO 999 & 1025-1026 OF 2015 AND CIVIL APPEALS NO. 1337 & 1353-1356 OF 2016 AND CIVIL APPEALS NO. 172-174 OF 2017 AND CIVIL PETITIONS NO. 261-P TO 265-P OF 2011 AND CIVIL PETITIONS NO. 3697 & 3698 OF 2016 (on appeal from the judgments/orders dated 19.10.2006, 21.02.2002, 03.06.2002, 3-7-2002, 17-7-2003, 25.11.2004, 3- 2-2005, 23-12-2005, 28-4-2006, 25-2-2003, 9-10-2003, 3-9- 2003, 10-3-2004, 18-12-2009, 30.5.2013, 04.02.2016, 30.04.2015 ,14.05.2015, 27.05.2015, 28.01.2016, 14.01.2016, 20.07.2016, 24.02.2011, 13.10.2016 of the Peshawar High Court, Peshawar passed in W.P. Nos.1669/2004, 53/2006, 154, 1846 , 2023 /2005, 988/2001, 226/2002, 594/2003, W.P.1443/2003, 1826, 453, 453/2004, 589/2005, 657/2002, 662/2002, 1148/2002, 118/2003, 872/2003, 796/2003, 1008/2003, 1824/2004, 1134/2004, 1191/2004, 1246/2004, 1506/2001, 157 &158/2005, 854-P /2006, 1830-P /2014, 192-P,195-P, 194-P, 221-P/2015, 916-P to 917-P, 919-P, 920- P/2013,1644-P/2014,190-P/2015,2195-P,2196-P/2012,1831- P/2014, 191-P /2015, 193-P, 222-P/2015, 3643-P/2012,3644- P/12,220-P/2016, 3525-P, 3526-P/2015,5-P/2016, R.P.8/2016 In W.P.3526-P/2015, 2751-P, 2752-P, 3776-P /2015, 1845/05, 2212/06, 2213/06, 535,536/07, 2952-P and 2953-P /2016) Pakistan through Chairman F.B.R. & others (in CAs 633- 637/07, 134/09) Pakistan through Chairman Revenue etc. (in CAs 130/09) The Collector Customs etc (in CAs 131 and 135/09) Collector of Central Excise and Sales Tax and others (in CAs 132/09) Collector of Customs, Peshawar (in CAs 133,142 to 144/09) Govt. of Pakistan thr. Secy. Revenue Div. Islamabad and others (in CAs 136/09) M/s. Lal Ghee & Oil Mills Pvt. Ltd. (in CAs 137/09, 158-160/15) Collector of Customs & Central Excise & others (in CAs 138/09) The Central Board of Revenue & others (in CAs 139 to 141/09) Pakistan through Secy. Finance & others (in CAs 141/09) Govt. of Pakistan thr. Chairman Central Board of Revenue and others (in CAs 145/09) M/s Saadat Ghee & Oil Mills Pvt. Ltd. (in CAs 68 to 70/11) Commissioner Inland Revenue, RTO, Peshawar (in CAs 1229/13, 983-999, 1025- CAs 633/2007 etc -: 2 :- & others 1026, /15) Federal Board of Revenue thr. its Chairman, Islamabad (in CAs 1337/16, 174/17) M/s Roshni Mate Industries (in CP 261-P/11) M/s Excellence Plastic (in CPs 262-P, 263-P/11) M/s Star Plastic Industries (in CPs 264-P, 265-P/11) The Chief Commissioner Inland Revenue, Regional Tax Office, Peshawar and another (in CAs 1353- 1356,172,173/16 & C.P.s 3697 & 3698/16) …Appellants/ Petitioners VERSUS Hazrat Hussain and others (in CAs 633/07) M/s Naveed Ghee Industries (Pvt). Ltd. (in CAs 634/07) M/s Lal Ghee Oil Mills (Pvt). Ltd. (in CAs 635/07, 1337/16) Roshni Mat Industries thr: Gul Sher, Proprietor (in CAs 636/07) M/s Nafees Plastic Industries (in CAs 637/07) M/s Gul Cooking Oil & Vegetable Ghee Dargai (in CAs 130/09) M/s PATA Packages & another (in CAs 131/09) Allied Rubber (Pvt.) Ltd. (in CAs 132 and 142/09) M/s Malakand Ghee & Oil Mills (Pvt.) Ltd. and others (in CAs 133/09) M/s Taj Vegetable Oil Processing Unit (Pvt.) Ltd. (in CAs 134 and 145/09) M/s Afridi Poly Propylene Industries (Pvt.) Ltd. and another (in CAs 135 to 136/09) Pakistan thr. Chairman CBR.& others. (in CAs 137/09) M/s Gul Cooking Oil & Vegetable (Pvt) Ltd. (in CAs 138/09) M/s Gul Cooking Oil & Ghee Mills Ltd. & another (in CAs 143/09) M/s Bara Ghee Mills (Pvt) Ltd. (in CAs 139/09) M/s Saadat Ghee Mills (Pvt) Ltd. (in CAs 140/09) Mahsood Ghee Industries (Pvt) LTd. & others (in CAs 141/09) Inamullah Khan Afridi (in CAs 144/09) Government of Pakistan thr. Secretary, Revenue Division & others (in CAs 68 to 70/11 and 158 to 160/15) M/s Cherat Cement Company Ltd & another (CAs 1229/13) M/s Sher Steel Furnace and Re-Rolling Mills & others (in CAs 983 & 996/15) M/s AK Tariq Foundry & others (in CAs 984 & 998/15) M/s Mohmand Moulding Works & others (in CAs 985 to 986/15) M/s Al Haj Foundry & others (in CAs 987 & 999/15) M/s Taj Packages Company Pvt Ltd & others (in CAs 988 to 989/15) M/s Taj Wood Board Mills (Pvt) Ltd & others (in CAs 990- 991/15) M/s Taj Re Rolling & Steel Mills Pvt Ltd & others (in CAs 1353- 1354, 1356/16) CAs 633/2007 etc -: 3 :- Umar Zada & others (in CAs 992/15) M/s Universal Steel Mills & others (in CAs 993 & 997/15) M/s Brilliant Plastic Manufacturer & others (in CAs 994- 995/15) M/s Eagle Plastics Industries & others (in CAs 1025- 1026/15) M/s Wasim Sharif Industries (Pvt) Ltd & others (in CAs 1355/16) M/s GMS Steel Foundry and others (in CAs 172 to173/17) M/s Muslim Steel Mills and others (in CAs 174/17) The Collector Custom & others (in CP 261-P/11) The Commissioner of Income Tax & others (in CP 262-P, 264-P/11) The Collector Sales Tax & others (in CP 263-P, 265-P/11) M/s Aitamad Steel Furnace and re-rolling Mills Ameerabad thr. its Director , Peshawar (in CP 3697/16) M/s Gul Shehzada Steel Mills thr. its Manager Import and others (in CP 3698/16) …Respondent(s) For Appellant/Pet.(s): (in CA 633/07) (in CAs 633-637/07 and 130-136,138-140/09) (in CAs 68-70/11 & 158-160/15) (in CAs 1229/13) (in CAs 983-999/15, 1025, 1026/15 & 1337/16, 1353-1356/16 & C.P.s 3697 & 3698/16) (in CAs 172-174/17) (in CAs 135,136/09) (in CA 137/09) (in CA 141/09) (in CP 261-265/11) Mr. Khalid Abbas Khan, ASC Hafiz Ahsan Ahmad Khokhar, ASC Mr. Isaac Ali Qazi, ASC. Mr. M. S. Khattak, AOR. Dr. Farhat Zafar, ASC. Mr. M. S. Khattak, AOR. Mr. Ghulam Shoaib Jally, ASC. Syed Rifaqat Hussain Shah, AOR. Mr. Rehmanullah, ASC. Raja M. Iqbal, ASC. Raja Abdul Ghafoor, AOR. Mr. Shumail Butt, ASC Mr. Tariq Aziz, AOR Mr. Ahmed Raza Kasuri, Sr. ASC. Nemo. For the Respondent(s): (in CAs 983,996/15) (in CAs 984-999/15 & 1025-1026/15 & 1229/13) Mr. Khalid Anwar, Sr. ASC. Mr. Issac Ali Qazi, ASC. (also in CA 134/09) CAs 633/2007 etc -: 4 :- (in CPs 263-P,265-P/11) (in CPs 1353-1356/16) (in CAs 158-160/15) (in CA 137/09) (in CAs 633,634,636 and 637/07 and 130-133/09) (in CAs 635/07 & 137/09) (in CA 68-70/2011) On Court’s notice Raja M. Iqbal, ASC. Dr. Farhat Zafar, ASC. Mr. Shumail Butt, ASC. Mr. Ghulam Shoaib Jally, ASC. Raja M. Iqbal, ASC. Mr. Farhat Nawaz Lodhi, ASC. Raja Abdul Ghafoor, AOR. Raja M. Iqbal, ASC. Nemo. Mr. Shumail Butt, ASC. Mr. Habib Qureshi, ASC.` Mr. M. Waqar Rana, Addl. AGP. Date of Hearing: 14.12.2017 JUDGMENT MIAN SAQIB NISAR, CJ.- All these appeals with leave of the Court vide orders dated 15.1.2007 and 27.1.2009 involve akin questions of law, thus are being disposed of together. The facts relating to the present controversy can be set out within a brief compass by making reference to one appeal. The respondent No.1 in Civil Appeal No.983/2015 (the respondent) is carrying on the business of operating a steel furnace and re-rolling mill. Pursuant to the said business it imports iron and steel remeltable scrap from time to time as also machinery and plant. The importation takes place through the port of Karachi. At the time of importation, the respondent files the appropriate goods declaration along with each consignment (Goods Declaration). In terms thereof, the respondent claims an exemption in relation to both advance income tax as well as sales tax on the ground that its plant is located in Dargai, Malakand Agency which is part of the Provincially Administered Tribal Areas (PATA). The respondent does not dispute its liability to CAs 633/2007 etc -: 5 :- pay Customs duty and thus there is no controversy regarding the same. The Goods Declarations filed in the present case clearly show that the customs duty has been duly paid. However, insofar as the advance income tax and sales tax are concerned, the same are strongly contested on the anvil of Article 247(3) of the Constitution of the Islamic Republic of Pakistan (the Constitution) which is reproduced below:- “247. (3) No Act of Majlis-e-Shoora (Parliament) shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Majlis-e-Shoora (Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situated, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such exceptions and modifications as may be specified in the direction.” 2. The Customs Department, however, refused to accede to the request of the respondent. Its stance was that both advance income tax and sales tax were payable under the Customs Act, 1969 (Customs Act) and accordingly the respondent, having no other effective, efficacious and expeditious remedy available to it, invoked the jurisdiction of the learned Peshawar High Court. The petition filed by it was ultimately succeeded, as further explained hereinafter. The Chief Commissioner, Inland Revenue (appellant) challenged this decision by filing petition for leave to appeal before this Court, which (leave to appeal) was granted and pursuant thereto the case has come up before us for final decision. CAs 633/2007 etc -: 6 :- 3. The case of the appellant is best set out in terms of the para-wise comments filed by it before this Court and the opening ground contains the following passage:- “That the petitioner (i.e. the Respondent herein) cannot claim territorial/constitutional exemption of sales tax on imports of raw materials/machinery as the activity “taxable imports” is taking place in the area to which tax laws are fully applicable irrespective of its transportation to taxable or non-taxable areas. Besides, the ruling of the Supreme Court of Pakistan in the judgment passed in the case of Master Foam (Pvt.) Ltd. as well as the ratio decided in Review Order dated 5.3.2007 in the case of Gul Cooking Oil this Honourable Court has also settled the matter in question, therefore, re-agitating the same at this stage and before this Honourable Court is extremely unwarranted. Consequently, the demand of sales tax at import stage is based upon the interpretation of apex court in the respective and concurrent decisions and the constitution as well. The charging and collection of sales tax on imports is not discriminatory or confiscatory as the petitioner had to add the element of sales tax being an indirect levy in the cost of finished products on its sales depending upon the market conditions.” 4. As against the above argument the contention of the respondent is that the immunity granted to it under Article 247(3) of the Constitution cannot be taken away by the Department. This is the critical area of dispute between the parties which we have to decide. 5. We begin with the admitted position that the Customs Act applies in the matter. This is because, irrespective of the question as to whether the Customs Act applies to PATA or not, CAs 633/2007 etc -: 7 :- there can be no doubt about the fact that it applies in Karachi which is the port of the importation of the goods. The above being the admitted position we now have to determine on what basis income tax and sales tax can be demanded from the respondent under the Customs Act. The applicable section in this regard of the Income Tax Ordinance, 2001 (Income Tax Ordinance) is Section 148 and the relevant provisions thereof are reproduced below:- “148. Imports (1) The Collector of Customs shall collect Advance Tax from every importer of goods on the value of the goods at the rates specified in Part-II of the First Schedule. ………………………….. (5) Advance Tax shall be collected in the same manner and at the same time as the customs-duty payable in respect of import or, if the goods are exempt from customs duty, at the time customs-duty would be payable if the goods were dutiable.” The above provisions prima facie create the jurisdiction entitling the Customs Department to demand advance income tax from the importers. 6. Sub-section (1) thereof makes it clear beyond any iota of doubt that what is being collected by the Collector of Customs is advance income tax and not customs duty. This is a point of critical importance. Sub-section (5) ibid further clarifies that the role of the Customs Department is essentially that of a collecting agency. It has been statutorily conferred the power to collect advance income tax for and on behalf of the Income Tax Department. It is here that the appellant comes up against a constitutional barrier. It is not denied that the income tax law does not apply for, and in relation to PATA. Section 148 is an integral CAs 633/2007 etc -: 8 :- part of the Income Tax Ordinance. Since the Income Tax Ordinance does not apply in toto it necessarily follows that Section 148 thereof will also not apply for, and in relation to, PATA. Thus, ex facie, the Department lacks the jurisdiction to collect advance income tax under the said section. 7. We now turn to the issue of demand for sales tax. The applicable provision of the Sales Tax Act, 1990 (Sales Tax Act) is Section 3 and the relevant part thereof is reproduced below:- “Scope of Tax. (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 17% 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; (b) goods imported into Pakistan.” Section 3 (ibid.) has to be read in juxtaposition with Section 6 of the Sales Tax Act and the relevant part thereof is reproduced below:- “6. Time and manner of payment. (1) The tax in respect of goods imported into Pakistan shall be charged and paid in the same manner and at the same time as if it were a duty of customs payable under the Customs Act 1969 and the provisions of the said Act including section 31A thereof, shall, so far as they relate to collection, payment and enforcement including recovery of tax under this Act on such goods where no specific provision exists in this Act, apply.” It may be observed that this section is a parallel section to the provisions contained in Section 148(1) and (5) of the Income Tax Ordinance. What is important to note here, once again, is that what has to be collected under Section 3 (1)(b) is not customs duty; CAs 633/2007 etc -: 9 :- it is, and throughout remains, sales tax which is leviable on the imports of goods into Pakistan. It is merely that the machinery provisions of the Customs Act, insofar as they relate to the payment and recovery of tax under the said Act, have been made applicable. 8. Thus, in brief, both the Income Tax Ordinance and the Sales Tax Act contain provisions which enable the machinery of the Customs Act to be made applicable and also create jurisdiction in the Collector of Customs for the purpose of recovery of both advance income tax as well as sales tax. Both laws are clear beyond any dispute on the point that by so doing what is being collected is not customs duty but respectively income tax and sales tax. It follows that by a parallel set of reasoning, as has been set out hereinabove, in relation to income tax, that the provisions of the Sales Tax Act will also not justify the levy and collection of sales tax on goods meant and intended for PATA. There is no dispute, as pointed out above that neither the Sales Tax Act nor the Income Tax Ordinance applies in relation thereto. 9. The above is the constitutional and legal background of the matter. The principle is clear, beyond any doubt. However, what has still to be resolved is the modality in terms of which this principle is to be applied. On the one hand the appellant claims that since the goods are being imported through Karachi, they are entitled to recover not merely the customs duty but also the income tax and the sales tax, since it is not known as to whether the goods will actually be delivered to PATA and processed and sold therein or not. That is a pure question of fact. No interpretation of law is involved therein. The mere fact that a CAs 633/2007 etc -: 10 :- question of fact arises will not create a non-existent jurisdiction in the Revenue. As against this the stance of the respondent is that it is, as a matter of fact, transporting the imported scrap from Karachi to PATA, utilizing it therein for the purposes of manufacture of the goods made by it and thereafter the same are being sold in PATA. 10. We have to resolve this dilemma. While the entitlement of the respondent is clear, on the constitutional plane, there is also no doubt about the fact that the Department is entitled to conduct an investigation on the factual plane to determine whether the goods are indeed intended for PATA and whether thereafter these are processed and sold also in PATA. Bearing in mind the conflicting stands of the parties, the learned Peshawar High Court, by means of the impugned judgment, set out a mechanism for resolving the factual dispute. In essence, it provided that the respondent shall initially prepare and deposit a post-dated cheque in favour of the Department. Thereafter, on receipt of the cheque the Department releases the goods without insisting on payment of the claimed amnesty of tax. An elaborate procedure of checking and verification is carried out. This is illustrated by a set of documents which has been made part of the record and is available in CMA No.752 of 2015. The basic document is a letter addressed by the respondent to the Commissioner Inland Revenue bearing the heading “Request for issuance of consumption certificate.” The letter sets out the details of the raw materials which have been imported for utilization in the factory located in PATA. It ends with a request to the Commissioner Inland Revenue that he should verify the arrival of the above consignment at the factory, as well as its consumption therein, and issue consumption CAs 633/2007 etc -: 11 :- certificates. Attached to the letter are a set of documents. These include the Goods Declaration filed with the Customs Department, the documents showing the production and consumption of material, the stock report of raw material, the stock report of finished goods, the statement of production and the statement of sale. The list of dealers is also shown to whom the sales have been made. Then follow up details in relation to the abovementioned transactions. The documents include the names of the firms to which the goods are sold and the amount recovered therefrom. There is also a date-wise statement showing the opening balance of raw materials, a receipt of raw material including the transportation documents, and the gate passes along with the quantities. Further particulars which are contained therein are the waste percentage, the quantity of goods in process, the quantity of material actually consumed, the quantity of goods produced/manufactured with the number of packages and the closing balance. The final document is a certificate issued by the Commissioner of Inland Revenue in response to the above mentioned documents which have been received by him and duly processed. It states that the arrival and consumption of the material was verified from the record by the audit staff of the Department, who has confirmed that the goods have arrived at the factory premises and have been processed therein. It is further certified that the imported goods have been consumed in the production of finished goods in the premises of the respondent in Dargai, Malakand Agency. This consumption certificate is, it is important to note, only issued after the sale has taken place to the buyers whose names and details of sales have been set out in the accompanying documents, which we have already referred to CAs 633/2007 etc -: 12 :- hereinabove. It is a significant fact of the utmost importance that throughout the period in which the respondent was carrying on business, this process and procedure was carried out smoothly and at no point of time, including up until now, was there any discrepancy found in the documents and, indeed, it is not the case of the Commissioner Inland Revenue, that the raw materials imported have not been consumed at the factory at PATA and sold again in PATA, as evidenced by the documentation referred to hereinabove. 11. In the above circumstances, we are at a loss to understand why and how, on the factual plane, the present appeal has been filed. The learned counsel appearing on behalf of the respondent has raised a strong objection in relation thereto. On the face of it we are inclined to agree with him. It is to be noted that appeals should not be filed as a matter of routine or because a decision has been rendered against the Department. Decisions should be taken on a reasonable basis. It is not advisable for government departments to waste public time and money by filing appeals routinely. In the present case we have been informed that the respondent has suffered substantial financial loss since the factory was shut down for over a year as a consequence of the ex parte stay order obtained by the Department. This must have had serious consequences for the workers who lost gainful employment. The position would have been different if the respondent had been engaged in an illegal activity but that is not the case pleaded by the Department. The net result is that citizens of Pakistan have suffered substantial financial losses with no corresponding benefit to the Revenue Department. This can only be described as an undesirable status of affairs. When we raised CAs 633/2007 etc -: 13 :- these questions the only response given on behalf of the Department was that the legal issues were involved especially those reported in the two main judgments, namely Commissioner of Income Tax, Peshawar Vs. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd (2008 PTD 169 Supreme Court) and the case of Master Foam Pvt. Ltd. Vs. Government of Pakistan (PLD 2005 SC 373). Accordingly, it is necessary that we should set out our views in relation thereto. Prior to doing so, it is imperative to summarize concisely the principle of law which is applicable on the conceptual plane. The Department lacks the jurisdiction in relation to an activity taking place in PATA. It does, however, have jurisdiction to carry out an enquiry in the settled areas of Pakistan where the tax laws apply. Thus the initial burden of proof rests on the importer to establish that the goods are intended for PATA and once that has been discharged, the burden shifts to the Department to establish that a fraud has been committed and the goods have, in fact, been processed or sold in the areas where the tax does apply. Unless it discharges that burden, it cannot raise demands against the importers. This principle safeguards the interests of both sides. 12. We now propose to discuss the case law. Before that, however, we would like to express our appreciation for the judgment of the Peshawar High Court (authored by Yahya Afridi, J.) which has not only set out the factual and legal contentions raised by both parties but has also summarized the applicable case law in the body of the judgment. This has saved us a great deal of time. 13. The Gul Cooking Oil’s case (supra) went through three stages. The first was before the Peshawar High Court. The case pertained to a factory located in the Malakand Division and the CAs 633/2007 etc -: 14 :- question was about recovery of advance income tax at the stage of importation of the goods into Pakistan. The notices issued to the company by the Department under sections 56 and 61 of the Income Tax Ordinance were declared illegal and a direction was given that the raw material of the company should be released without deducting withholding tax at the import stage. The second stage was when an appeal was lodged before the Supreme Court. The judgment in this case is reported in (2003 PTD 1913 = PLD 2003 SC 614), whereby the judgment of the High Court was maintained. This judgment was delivered on 25.4.2003. The final stage was when a review petition was filed and for purposes of disposal of the matter a larger bench of five members was constituted. This judgment is reported in (2008 PTD 169) and was strongly relied upon by the Department. 14. In our opinion, the judgment does not support the stance adopted by the Department in the present case. In the first place it should be noted that the judgment expressly accepts the legal position as stated by the High Court and as also stated hereinabove. This is so clear from the following extract of the judgment: “16. There is no cavil to the legal position that exemption under the law from payment of income tax is available to a person or company carrying its business in tribal areas and income tax cannot be collected from such person or company by the tax collecting authorities of the Government unless the law relating to the collection of income tax is extended to the tribal areas by virtue of article 247 of the constitution……” CAs 633/2007 etc -: 15 :- Secondly, the judgment goes on to state what it considered to be the real question which was to be decided in that case. The following extract indicates the said question:- “16……The exemption from payment of tax is certainly available on the business being carried in the tribal area in which income tax law is not applicable but the real question for determination in the present case would be that a company with its manufacturing unit and registered office in non-taxable area, if is also carrying business in taxable area, is exempted from payment of Income Tax of its income as a whole or only on the income being derived from the non- taxable areas.” [Emphasis supplied] In the above circumstances, the case was remanded to the Department to determine this question of fact. The findings on the legal aspect of the case were left untouched. We may note, in passing, at this point, that the facts of the present case are different. As the sequence of the events which has been set out hereinabove makes clear, the business in the present case was being carried on exclusively in PATA where both the factory is located and also where the sales take place. This case therefore is of no help to the Department. 15. The second main case on which reliance is placed is Master Foam’s case (supra). (We may note that the High Court judgment under appeal incorrectly identifies the Master Foam judgment as having been delivered by a five members Bench. It was in fact a three members Bench.) 16. The facts of Master Foam’s case are clearly distinguishable since in that case the business was being carried on in Azad Jammu & Kashmir (AJK) which is, of course, technically an independent state with its own laws which is partially CAs 633/2007 etc -: 16 :- administered by Pakistan (as per Article 31(3) of the Azad Jammu and Kashmir Interim Constitution Act, 1974). The question in dispute related to the payment of sales tax at Karachi Port at the import stage. The demand was made in terms of section 3(1)(b) of the Sales Tax Act. At this point of time it is necessary to refer to a significant feature of the laws of AJK. In terms of the Sales Tax (Adoption) Act, 1993 (Sales Tax (Adoption) Act) it is provided in terms of section 2(4) as follows:- “In determining the input tax under sub-section (1) the amount paid as input tax at the import stage to the Customs authority in Pakistan shall be deemed to have been paid in Azad Jammu and Kashmir for the purpose of adjustment against the tax liability on the finished goods.” In our opinion there can be little doubt about the fact that this provision of law is both significant and detrimental to the case pleaded on behalf of the company. The grievance being made was that sales tax should not be charged on the goods since they were merely in transit through Pakistan. However, the feature which now emerges is that since the goods were intended for AJK the consequence of the above section 2(4) is that the amount paid to the Pakistan Customs would be deemed to have been paid to the AJK Government under the Sales Tax Act applicable therein. It would seem to follow that the company would not have a genuine cause of action in relation to the levy of the sales tax in Pakistan since in fact that tax would be deemed to have been paid to the AJK Government. Admittedly, the company was subject to the jurisdiction of the AJK Government and the provisions of the Sales CAs 633/2007 etc -: 17 :- Tax (Adoption) Act applied to it. The question as to whether or not the company would be entitled or able to claim a refund from the AKJ Government relates only incidentally to Pakistan. The Company relied on an exemption notification issued by the AKJ Government and contended that it would be nullified if sales tax were levied on its goods by the Government of Pakistan. However, this by no means follows as a logical consequence. In fact, the finding on this point in the judgment is to the contrary: “The appellants have been granted sales tax exemption in AJK on the goods manufactured by them there. There is no exemption on import of raw material. In other words, they have been granted exemption only on the value addition they made to the raw material.” Thus theoretically it was possible for the matter to have been decided on this point. However, the reasoning in the judgment traverses a much wider field of enquiry. It relates to legal issues as well as to the question of constitutional interpretation. 17. The legal issue which was primarily raised on behalf of the company was as to the true meaning of the word “import”. Does the word import mean simply the passing of the goods into the territories of Pakistan i.e. by crossing the frontier, or, does it has a more extended meaning as was contended on behalf of the company i.e. that import means not merely the physical crossing of the goods but the entire legal procedure of importation including compliance with all the requisite formalities and excludes goods in transit. The specific contention which was raised was that goods which are in transit should not be considered as having been imported into Pakistan. After considering the matter in some depth, eventually the Court rejected the contention. Instead of giving a wider meaning to the term import it relied on the narrower CAs 633/2007 etc -: 18 :- interpretation in terms of which import merely means the bringing of the goods into the country. For this purpose reliance was placed on an earlier decision of this court reported as Pakistan Textile Mills Owners Association Karachi versus Administrator of Karachi (PLD 1963 SC 137). A number of decisions from the Indian jurisdiction were also considered and the contention raised on behalf of the company was rejected. The case law emanating from the United States was also taken into consideration while doing so. In our opinion the decision taken as to the meaning and concept of import in the Master Foam’s case is correct and is to be followed. However, this does not end the matter. The Court then decided to embark upon the wider constitutional issue which perhaps it was not essential to do in the facts of that case. 18. In this connection, the Attorney General appearing on behalf of the Government referred to the case reported as WAPDA versus Collector of Central Excise and Sales Tax (2002 PTD 2077 at 2082). Paragraph 11 thereof is reproduced below:- “11. … … The subject of sales tax was on the Provincial Legislative List at Serial No.48 in the Government of India Act, 1935 and was described as “Taxes on sales of goods and on advertising”. In the Constitution, 1956, “tax on sales and purchases” was mentioned at Serial No.26 of the Federal Legislative List, and therefore, for the first time it became a Federal subject. The position was maintained in 1962 Constitution, which mentioned “tax on sales and purchases” on the Federal Legislative List as clause (j) at Serial No.43 in the Third-Schedule. In 1973 Constitution as originally adopted ‘tax on sales and purchases’ was kept on Federal Legislative List at Serial No.49 of Part I of the Federal Legislative List given in the Fourth Schedule. The item was, however, CAs 633/2007 etc -: 19 :- completely substituted by Constitution 5th Amendment Act, 1976 with effect from September 13, 1976 to read “Taxes on sales and purchases of goods imported, exported, produced, manufactured or consumed”. The second half of the amended entry appears to have been taken from the amendment made in Sales Tax Act, 1951 by Finance Ordinance, 1960. Through that amendment the words “consumption of goods” in the preamble were substituted by “importation, exportation, production, manufacture or consumption”.” 19. The finding of the Court thereon is set out in para 20 of the Master Foam’s case which is reproduced below:- “20. The Act of 1990 was introduced as an amendment to the Act of 1950 vide section 13 of the Finance Act, 1990 which substituted chapters 1 to 16 of the Sales Tax Act, 1951 with the chapters set out in the Third Schedule to the Finance Act, 1990. Further, the preamble to the Sales Tax Act, 1951 was not substituted and was retained as the preamble to the Act of 1990. Relevant part of section 3 of the Act of 1951 reads as follows:- 3.(1) There shall be levied and collected a tax on the value of --- (a) All goods produced or manufactured in Pakistan payable by the manufacturer or producer; (b) All goods imported into Pakistan payable by the importer… .” It is noted that anomaly in the law with reference to tax was rectified by replacing the original Entry 49 with the present one quoted above and this intent was noted in the case reported as 2002 PTD 2077. Now as a result, import, export, production, manufacture and consumption are distinct taxable events CAs 633/2007 etc -: 20 :- independent and irrespective of sales of goods. It is thus clear that the purpose of substituting of original Entry 49 with the present one was to expand its scope so as to include, inter alia, import as a separate taxable event as had been the position under the Act of 1951.” (Emphasis supplied). 20. The legislative history of the constitutional status of sales tax and the meaning to be applied thereto has been set out in the above. Thereafter, the further history of the constitutional amendments for, and in relation to, sales tax have been discussed. It has been noted that by means of the Finance Act, 1990 a thorough revision of the law was carried out in the Sales Tax Act, 1951. The argument was thereafter further developed in the following terms:- “29. Close scrutiny of Entry 49 and other laws referred to above reveal that acceptance of appellants’ argument that Entry 49 authorizes tax on import only when it is followed by sale or purchase in Pakistan, will render the words ‘imported, exported, produced, manufactured or consumed’ redundant and also frustrate the whole purpose of substituting present entry for the original Entry 49, and the amendment inconsequential. If sale and purchase alone was taxable events, as argued by the learned counsel for the appellants, then there was no point in adding the words ‘imported, exported, produced, manufactured or consumed’. Clearly, no redundancy can be attributed to the Legislature and on this ground the argument of the appellants is repelled. It is also to be noted that, if above argument of the appellants is accepted, a situation would arise where import into Pakistan may not be taxed at all. Besides, while examining the validity of a statute, the principle is that there is a presumption of constitutionality of a statute and that every explanation in favour of a statute must be found. Keeping in view the complexity of CAs 633/2007 etc -: 21 :- economic problems, great latitude is shown in favour of fiscal statutes.” [Emphasis supplied] 21. It will be perceived that the central argument which was developed was that if we accept the proposition that sales tax on imports can only be levied when it is followed by sale or purchase in Pakistan the result will be to render the words “imported, exported, produced, manufactured or consumed,” redundant. It was further urged that this would frustrate the whole purpose of substituting the present entry for the original entry 49 and make the amendment inconsequential and irrelevant. 22. The argument needs to be examined closely. To make the point clearer let us re-visit for a moment the earlier paragraph reproduced in para 17 above which essentially makes the point that the original entry in the constitution which was “tax on sales and purchases” would, in effect, be restored if the interpretation being advanced on behalf of the Company was accepted. In other words, the argument was based on the concept of redundancy. 23. But is this contention correct? A critically important aspect which has been missed in the above interpretation needs to be examined. What the Court, with all due respect, failed to notice was that the original Entry “taxes on sales and purchases” had one very important implication which seems to have completely eluded it. “Taxes on sales and purchases”, as the Entry originally stood, has a wider connotation. Sales and purchases may not be merely of goods but also of services. Thus, prior to the making of the 5th Amendment to the Constitution in 1976, Entry 49, being open ended was wide enough to comprehend both the sales of goods and also sales of services. The fact that sales tax on services was, or CAs 633/2007 etc -: 22 :- was not, imposed by the Legislature at that time is not relevant. The Entry was wide enough to cover both classes of sales. However, after the 5th Amendment, the scope of the Entry was narrowed down to goods and only goods. There is, therefore, no redundancy. With profound respect, the finding of the Court cannot be sustained on the plane of principle. 24. We can develop the principle further. The new Entry, as introduced in 1976, can now be analyzed further. It can be perceived that the Entry falls, broadly speaking, into two parts: (i) The first part is the opening phrase “Taxes on the sales and purchases of goods”. This phrase controls the ensuing second part. (ii) The second part essentially answers the question as to which categories of goods are subject to the levy of sales tax. The answer is (a) goods which are imported, (b) goods which are exported, (c) goods which are produced, (d) goods which are manufactured, and finally, (e) goods which are consumed. In other words, the entire range of goods is covered. There is no redundancy. 25. The point can be re-stated from a different perspective by clarifying that the words “imported, exported manufactured, produced or consumed” qualify the word “goods”. The goods are those which fall in the categories set out in the above, which are all covered. Neither the rules of syntax nor of grammar justify any other interpretation. The use of these words, does not, and cannot, alter the basic fact that the levy is, and remains, on the sales and purchases of goods. This is the essence of what a sales tax is, as is obvious from the lexical meaning of the term. It is not a tax on CAs 633/2007 etc -: 23 :- import of goods, per se – that is levied by Entry 43 i.e. customs duty. Nor is it a tax on the manufacture or production of goods per se – that is excise duty, which is levied under Entry 44. If the discussion is to centre around the doctrine of redundancy then this over-broad interpretation of sales tax leads to Entry 43 and Entry 44 becoming redundant which surely is a consequence which cannot be countenanced. Can it seriously be contended that those words were added to Entry 49 so as to lead to the implied removal of the need for Entry 43 and 44. The question answers itself. The import of goods always has been, and is still, subject to customs duty. This is the normal structure of the Constitution of Pakistan and it is a normal structure of other constitutions also. Duties on import are called customs duty. They have been levied over the centuries in different Countries around the world. They have always been one of the principle modes of collection of revenue. Their importance cannot be underestimated. The allied concept which requires consideration relates to duties on production or manufacture. These are covered by Entry 44 which deals with duties of excise. Excise duties have traditionally been duties which have been imposed on the act of manufacture or production. This has been true for a long period of time and reference may be made, by way of illustration, to the Central Excises and Salt Act, 1944, as well as its legislative predecessors. Thus the structure of the Constitution now becomes clear in relation to the all important fiscal entries. Entry 43 primarily relates to customs duty i.e. duties on importation, Entry 44 relates to excise duty or duties on manufacture or production and Entry 49 relates to duties on sales. Each entry has its own separate and clearly demarcated role and scope. The interpretation CAs 633/2007 etc -: 24 :- given to Entry 49 in terms of the judgment unfortunately renders entry 43 and entry 44 virtually redundant. Thus the argument relating to redundancy which has been advanced in the judgment, in fact operates in the opposite direction. We are therefore regretfully unable to concur with the views expressed in the judgment. 26. The matter does not end here. There is yet another way of analyzing the status of the Entry which reinforces the above interpretation. Entry 49, as it existed prior to the 18th Amendment (i.e. when the judgment was delivered) reads as follows:- “Taxes on the sales and purchases of goods imported, exported, produced, manufactured or consumed.” In effect, the Court has interpreted the Entry as if the words in square brackets were omitted i.e. as if the Entry read as “Taxes on goods imported, exported, produced, manufactured or consumed”. If the Entry read as set out above then the interpretation placed by the court thereon would be correct. The act of importation would constitute an independent source of taxation, and the same would be the position in relation to each of the other categories of goods. But that is not so, if the words in square brackets are restored. Indeed they are vitally important words which encapsulate the central premise. This is indubitably a tax which is primarily on the sale of goods, irrespective of the category into which the goods in question fall. Surely no known, or accepted, principle of interpretation justifies the omission of the central part of an Entry. Therefore, with profound respect to the Court, we find ourselves unable to accede to the interpretation placed by it on Entry 49. CAs 633/2007 etc -: 25 :- 27. A consequential error in para 29 follows clearly on the basis of the above. It has been observed therein that if above argument of the appellant is accepted, a situation would arise where import into Pakistan may not be taxed at all. “With respect, surely that is a complete non-sequitur. The existence of Entry 43, which seems to have been lost sight of, enables all imports to be taxed by way of customs duty. 28. Finally, there is a reference in the judgment to the well known principle of the presumption of constitutionality of a statute. The principle is indeed well established. But an equally well established principle is that, if there is a conflict between the provisions of a statute and that of the Constitution, then it is the statute which must yield to the superior mandate of the basic law, which confers on parliament the power to enact laws. The offspring must necessarily be subservient to the parent and the lesser power must surrender before the greater one. There is no greater power known to any civilized polity then that which flows directly from the constitution. In the above connection reference may be made to the following judgments: (i) Abdul Aziz v. Province of West Pakistan (PLD 1958 SC 499 at 506) “They (i.e. the High Court) went on to observe that “Courts should normally lean in favour of constitutionality of statutes and if two interpretations of a constitutional provision are possible, one of which would invalidate a statute while the other would support its validity, the second interpretation should be preferred”. That observation appears to us, speaking with due respect, to call for comment. If what is meant is that constitutional provisions may be stretched by CAs 633/2007 etc -: 26 :- interpretation with the object of saving the validity of statutes, which ex facie contravene the Constitution, it must be said at once that this view cannot be accepted. The correct view is that a constitutional provision must be interpreted, as befits an organic instrument, in the widest possible sense. It is not permissible to place narrow constructions upon provisions contained in a Constitution, if the result be that thereby the validity of a statute is prejudiced. In all circumstances, the full scope and extent of the constitutional provision must first be determined, and if the statute in question is capable of a construction which is conformable to the true meaning of the relevant constitutional provision, then that construction should be accepted. It is possible that the learned Judges meant to convey this impression by the words which they have employed, and we have only found it necessary to comment upon these words to ensure that they should not be interpreted as allowing Courts to adapt the Constitution for the purpose of saving a statute when in fact the requirement is that all statutes and more generally, all sub-constitutional laws should conform to the Constitution. [Emphasis supplied]” (ii) Inamur Rehman v. Federation of Pakistan (1992 SCMR 563 at 589) “He has relied on the proposition that one of the cardinal principles of interpretation is that law should be saved rather than destroyed and the Court must lean in favour of upholding the Constitutionality of a legislation. (Mehreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397). There can be no cavil against this proposition as it is a well- recognized rule of Constitutional interpretation that there is a presumption in favour of the Constitutionality of a legislative enactment but if there is on the face of a statute no classification at all and no visible differentia, with reference to the object of the enactment as regards the person or persons subjected to its provisions, then CAs 633/2007 etc -: 27 :- the presumption is displaced. We cannot be asked to presume that there must be some undisclosed or unknown reasons for subjecting certain individuals to discriminatory treatment, for, in that case we will be making a travesty of the fundamental right of equality before law enshrined in the Constitution.” 29. At the time of hearing of this case it was not our intention to delve into the constitutional issues referred to above. However, when we came to writing this judgment we concluded that it was necessary to deal with the judgment in Master Foam’s case (supra) because of the importance attached to it by the appellant’s counsel. In the circumstances, we have arrived at the conclusion that this judgment may have to be considered either per incuriam, or, at the very least, be confined to the facts of the case which were linked with AJK. 30. We next take up the issue relating to the security mechanism to be placed in position by the Government so as to ensure that the facility is not misused by unscrupulous importers. In the judgment under appeal, we have noticed that in paragraph 14 the learned High Court has set out a large number of exemption notifications issued, from time to time, by the Government/Federal Board of Revenue granting exemptions as well as the conditions for ensuring that the facility is not misused. By way of illustration we may refer to Entry 5 contained therein. It relates to manufacturing in bond. In this case the condition for exemption laid down is that the imports are to be made against a bond. Similarly, in entry No.6 of the said table a reference has been made to the duty and tax remission for exporters under Rules 296 and 297 of the Customs Rules 2001, in terms whereof exporters are allowed the facility not CAs 633/2007 etc -: 28 :- to pay duty in advance but furnish post-dated cheques. The same facility has been granted under Entry No.7 which relates to common Bonded Warehouses. In this case too, goods can be imported under bond or post-dated cheques. 31. The point we make is that since the above relate to exemptions granted by the Government in its discretion, from time to time, the case for granting the facility of not demanding advance payment in the present case rests on a much stronger foundation. The Constitution itself grants a complete immunity for, and in relation to, sales tax and income tax in FATA/PATA. Obviously persons carrying on business in these areas cannot be subjected to discriminatory treatment. The High Court, after reviewing the facts and circumstances of the case, was, in our opinion, completely justified in allowing the release of goods without prior payment of tax/duty against deposit of post-dated cheques. It has also been found, as a matter of fact, that the facility was not misused or abused by the importers of the raw materials. The High Court has recommended that the Federal Government should lay down a uniform policy. 32. We are unable to understand what possible objection can be raised by the Federal Government in this behalf. In fact, it is worth noting that no appeal has been filed against the judgment by the Federal Government and it is only the Chief Commissioner of Inland Revenue who has preferred the present appeal. Prima facie, this appears to be a case of being more loyal than the King. We have no hesitation in deciding that, in the above facts and circumstances, the Federal Government should lay down a uniform policy in terms whereof the facility for importation against post-dated cheques is extended to all the manufacturers in CAs 633/2007 etc -: 29 :- FATA/PATA. It does not require any argument to establish that the policies in relation to grant of exemptions should be applied on a uniform and a non-discriminatory basis. While it is perfectly true that the power of granting exemptions is discretionary, it is equally true that the said power cannot be exercised in a discriminatory manner. Exemptions are to be granted and regulated in terms of consistent policies for sound reasons. There is no justification for granting or refusing exemptions arbitrarily or on the ipse dixit of the concerned officials. The power to grant an exemption or to decline to grant an exemption, must be exercised in accordance with the general principles relating to good governance. In this connection, reference may be made to the following well known judgment pertaining to the exercise of discretionary powers:- Abid Hassan vs. PHC (2005 SCMR 25 at 35) “14. In his Treatise ‘Discretionary Powers’ which is Legal Study of Official Discretion D.J. Galligan has acknowledged that “the general principles that discretionary decisions should be made according to rational reasons means; (a) that there be findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasonable manner”. According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary, and may be considered a misuse of powers. (Emphasis provided).” 15. In Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 Shafiur Rehman, J. who was sitting in the Full Bench has very ably propounded the well-known doctrine of ‘Structuring the discretion’ in the report at page 1147 “Wherever wide-worded powers conferring discretion CAs 633/2007 etc -: 30 :- exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure (Emphasis provided). Somehow, in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times. “Government of N.W.F.P. v. Mejee Flour and General Mills (Pvt.) Ltd. 1997 SCMR 1804. 16. The judicial consensus seems to be that the functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet-will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. Aman Ullah Khan v. Federal Government of Pakistan PLD 1990 SC 1092, Chairman R.T.A. v. Pakistan Mutual Insurance Company PLD 1991 SC 14, Pacific Multinational (Pvt.) Ltd. V. I.G. of Police PLD 1992 Kar. 283, Presson Manufacturing Ltd. V. Secretary, Ministry of Petroleum and Natural Resources 1995 MLD 15, Ramana v. I.A. Authority of India AIR 1979 SC 1628, Dwarka Nath Prasad Atal v. Ram Rati Devi AIR 1980 SC 1992, Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147 and Nizamuddin v. Civil Aviation Authority 1999 SCMR 467.” CAs 633/2007 etc -: 31 :- 33. At the conclusion of the hearing we dismissed Civil Appeals No.633 to 637 of 2007, 130 to 136 & 138 to 145 of 2009, 1229 of 2013, 983 to 999 & 1025 & 1026 of 2015, 1337 & 1353 to 1356 of 2016, 172 to 174 of 2017 and Civil Petitions No. 3697 & 3698 of 2016 (filed by the department); whereas, Civil Appeals No. 137 of 2009, 68 to 70 of 2011 and 158 to 160 of 2015 (filed by the private parties) were allowed. As regards Civil Petitions No. 261-P to 265-P of 2011 (filed by the private parties), the same were converted into appeals and allowed. 34. The above are the reasons of our short order of even date. CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 14th December, 2017. Approved for reporting Waqas/

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO. 634-L OF 2012 (Against the judgment dated 25.04.2012 of the Islamabad High Court, Islamabad passed in RFA No.43/2011) Mrs. Khalida Azhar Appellant(s) VERSUS Viqar Rustam Bakhshi and others Respondent(s) For the Appellant(s) : In person a/w Dr. Azeem Azhar Raja, Adv HC (son) Dr. Aneeqa Azhar Raja, Adv HC (Daughter) For Respondents No. (1-12) : Ch. Khursheed Ahmed, Sr. ASC (R-13) (R-14) : Mian Muhammad Hanif, ASC Ms. Amber Gillani, AC Dina M. Matloob, Patwari, Dates of Hearing : 17 & 18.01.2017 JUDGMENT MAQBOOL BAQAR, J. The appellant’s father namely, Rustam Ali Bakhshi who passed away on 20.02.1978 was, besides the appellant, survived by a widow, namely Mst. Sultana Rustam Bakhshi, who also passed away on 11.08.1988, one son namely, Viqar Rustam Bakhshi, the respondent No. 1, and two daughters, namely Mrs. Parveen Waheed, the respondent No. 2, and Mrs. Gulfreen Riaz, who too passed away in August 2005 and is now represented by her legal heirs, the respondents No. 3 to 7. 2 2. The deceased Rustam Ali Bakhshi, according to the appellant left behind the following properties and assets: (i) Certain agricultural lands in villages, Garh Mahal, Raju Pindi, and Chak Almas, Tehsil Dina, District Jhelum (The agricultural lands). The agricultural lands were in fact jointly owned by the deceased along with his mother, two brothers and one sister; (ii) House No. 3, Street No. 98, F-7/1 Islamabad, approximately measuring 4 canals, which was jointly owned by the deceased with his wife (The House No. 3); (iii) Distribution Agencies, for District Attock, for the products of Pakistan Tobacco company, and Liver Brothers Limited, respectively (The distribution agencies); (iv) Inventory/Stocks at shop No. B1/69/A-49, Main Civil Bazar, District Attock (The stock in business); (v) Plot No. 142 measuring 6000 square yards, Jinnah Abad Town Scheme, Abbottabad (the Abbottabad Plot); (vi) Various shares, Bonds, Units and Bank accounts (The other assets). 3. The agricultural lands were, in the year 1973, purportedly transferred by its owners, Rustam Ali Bakhshi, his brothers, one sister and their mother in favour of respondent No. 1, through gift mutations purportedly attested on various dates of May & November 1973. Whereas House No. 3 was, through a purported registered gift deed dated 29th October, 1980, (Exh. D/2), allegedly executed by the appellant, her mother Mst. Sultana Rustam Bakhshi, her two sisters Mrs. Parveen Waheed, the respondent No. 2, and late Gulfreen Riaz, the mother of respondents No. 3 to 7, transferred in favour of respondent No. 1. And according to respondent No. 1, upon the death of Rustam Ali Bakhshi the distribution agencies in his name were terminated, and 3 the respective companies appointed some other persons as their agents instead. Whereas the stocks in business were sold by the widow of the deceased, who owned the shop, being shop No. B1/69/A-49, Main Civil Bazar, District Attock, where such stocks were lying. The Abbottabad plot was sold by respondent No. 1 as a purported attorney of late Mst. Sultana Rustam Bakhshi, and also of the appellant, the respondent No. 2, and late Mrs. Gulfreen Riaz, (collectively called the legal heirs of the deceased). Respondent No. 1 claims to have paid the sale proceeds of the Abbottabad plot to late Mst. Sultana Rustam Bakhshi, whereas the amount lying in the bank account of late Rustam Ali Bakhshi was, according to the respondent No. 1, withdrawn through a succession certificate issued by a competent court of law, with the consent of all the legal heirs of the deceased. 4. It was in the year 2006 that the appellant through suit No. 139/2006 sought a declaration that the aforementioned properties and assets constitute the estate of her late father Rustam Ali Bakhshi, and that the property bearing House No. 10, Street No. 27, F-6/2, Islamabad (The House No. 10) has in fact been purchased by respondent No. 1, ostensibly in the name of his wife, Mrs. Azra Viqar Bakhshi, the respondent No. 8, from the funds generated by the former from the income of the properties and assets of late Rustam Ali Bakhshi. A further declaration was sought by the appellant that the aforesaid gift deed, as well as the gift mutations, whereby the agricultural lands were transferred in the favour of respondent No.1, are forged and fraudulent, and sought cancellation thereof. She also sought a decree for possession through partition of the aforementioned properties in accordance 4 with her inheritance share therein. The suit was contested by the respondents. The learned Single Judge of the Islamabad High Court after recording evidence of the parties and hearing them, dismissed the suit. The appellant’s appeal against the said dismissal also was dismissed by a Division Bench of the Islamabad High Court, which judgment has been impugned by the appellant before us. 5. We have heard the arguments of the learned counsel for both the parties and have perused the record of the case with their assistance. 6. Admittedly House No. 3, was jointly owned by late Rustam Ali Bakhshi and his wife late Mst. Sultana Rustam Bakhshi. After the death of Rustam Ali Bakhshi on 20.02.1978, his 50% share in the said property devolved upon his widow, late Mst. Sultana Rustam Bakhshi, and his son, the respondent No. 1, and daughters, the appellant, respondent No. 2, and late Mrs. Gulfreen Riaz, the mother of respondents No. 3 to 7. The said property, as noted above, was on the basis of a registered gift deed dated 29th October, 1980 (Exh. D/2), transferred in the name of respondent No. 1. It was through the 4th amended plaint filed on 27.02.2009 that the appellant sought the said deed to be declared, forged and fraudulent, and prayed for its cancellation. She claimed that it was only on 07.09.2006, that she came to know about the alleged execution and existence of the purported gift deed, through a written statement filed by the respondents. 7. Refuting the allegations, the respondents submitted that the property has in fact been gifted by the legal heirs of late 5 Rustam Ali Bakhshi, including the appellant, to respondent No. 1, through registered gift deed dated 29th October, 1980 (Exh. D/2), and it is for such reason that the appellant has remained silent for a period of almost 26 years. Through the said gift deed late Mst. Sultana Rustam Bakhshi, in addition to her 1/8th share of inheritance from her husband in the said property, has also gifted away her entire original 50% share therein to respondent No. 1. 8. Though the appellant produced nine (9) witnesses and examined herself as PW-11, but as would be seen from the forthcoming analysis of the relevant evidences could not bring anything on record to impeach the veracity of the gift deed and/or to create any doubt regarding the factum of gift as claimed by the respondents. 9. On the other hand, the respondent No. 1, in order to prove the gift and the execution of the gift deed, produced Raja Zahid Hussain, the marginal witness of the deed, as DW-2, who was known to the family and was familiar with the executants/donors, he testified to the veracity of the gift deed. He remained steadfast during his cross examination. Chaudhry Muhammad Ali, the Sub- Registrar, who registered the gift deed appeared as DW-1 and stated that he had registered the gift deed which was signed by the donors in his presence, and that at the time of execution and registration of the document he had satisfied himself regarding the identity of the donors/executants. 10. In her evidence, respondent No. 2, the eldest daughter of late Rustam Ali Bakhshi, verified the fact that she, along with her mother and two sisters, including the appellant, has signed the gift 6 deed (Exh. D/2) on 29th October, 1980, and that they had also singed the power of attorney dated 12.12.1978 (Exh. D/3), without any pressure or persuasion by Defendant No. 1, or anyone else. She testified that the appellant signed the gift deed and also the power of attorney in her full view. Whereas the respondent No. 4, the second eldest child of late Mrs. Gulfreen Riaz, who passed away in the year 2005, appeared as DW-4, and recognized the signatures of her mother on the gift deed (Exh. D/2), as well as on the power of attorney (Exh. D/3) as her true and genuine signatures. She deposed that she was familiar with her mother’s signatures as she has often seen her signing various documents like, bank cheques, and her school reports. 11. The said property was, in the year 1991, with the approval of the Capital Development Authority, partitioned into two plots/properties being plot/House No. 3, which plot the respondent No. 1 gifted to his son the respondent No.9 in the year 1997, and plot No. 3/A, which plot the respondent No. 1 gifted to his daughter, Amna Arshad, the respondent No. 10, who built a house therein, during the years 2000-2002, almost 22 years after the death of Rustam Ali Bakhshi. 12. In her evidence, recorded on 09.04.2009, the appellant denied execution and/or signing of the purported gift deed, and claimed that she came to know of the document only last year. During her cross examination, she deposed that she had cordial relations with her sisters and mother and that her mother loved her very much. She stated that she along with her children used to visit her mother quite often where respondent No. 1 also resided. She claimed that she has achieved her master’s degree before her 7 marriage, but has remained a house wife and has never served anywhere. She further stated that her husband who was serving in a company is jobless since last two years, and is doing some private engineering work, and that she does not know about her husband’s monthly earning. She stated that she owns House No. 129 in Lahore, which she purchased after selling her jewellary, but said that she does not have any receipt regarding such sale. She expressed ignorance as to whether or not her sister, the defendant No. 2, ever challenged or raised objection about the gift transaction in question. She acknowledged that in her written statement, her sister, Parveen Waheed, the respondent No. 2, admitted the execution of the gift deed and so also the legal heirs of her other sister, late Gulfreen Riaz, the respondents No. 3 to 7, have admitted the execution of the gift deed by their mother Mrs. Gulfreen Riaz. The appellant also admitted that her mother also never challenged the gift transaction before any forum. She expressed ignorance as to whether her sisters executed the gift deed in favour of respondent No. 1. 13. On the other hand, respondent No. 1 deposed that House No. 3, was gifted to him by his mother and three sisters, vide registered gift deed (Exh. D-2), which was signed by them as donors, and by himself as a donee, and that he intimated CDA about the gift deed, and the letter of change of ownership (Exh. DW-7/10) was accordingly issued by CDA on 16.02.1981. Respondent No. 1 further deposed that he had treated all his sisters, with great love and affection, more so the appellant as she was the youngest, and her relations with her husband were not good, who did not provide for her maintenance regularly, and he 8 had to care for her. He claimed that during the years 1983-84 he paid a sum of Rupees Eight lacs to the appellant, and that he got her son and daughter admitted in Govt. College, Lahore and kinnaird College, Lahore respectively. He stated that during summer vacations the appellant, along with her children use to come to and stay with him at House No. 3 many times. He produced a letter dated 07.07.1981, whereby his mother informed the concerned Gift Tax Officer, that she and her three daughters have, on 29.10.1980, gifted their respective share in House No. 3 to respondent No. 1, and submitted a Gift Tax Return along with a copy of the gift deed, for assessing the gift tax thereon. He also produced a copy of an order (Exh. DW-7/12) whereby assessment was made in pursuance of Exh. DW-7/11. He stated that the tax so assessed was paid by his mother on behalf of all the donors, however since the tax was mistakenly assessed on the full value of the property and the share inherited by him (respondent No. 1) therein was not excluded, his mother through letter, being Exh. DW- 7/13, sought refund of the amount so paid in excess and thus a revised assessment was made through Exh. DW-7/14. He claimed that his father had given a Toyota Corolla car and also some jewellary to the appellant towards her dowry, as per his financial status. Respondent No. 1 further deposed that he accepted the offer of the gift made by his mother and sisters, five/six weeks before the execution of the gift deed. During his cross examination the respondent No. 1 stated that the payment of Rs. 8 lacs to the appellant was made by him by carrying the amount from Islamabad to Lahore. He explained that initially he paid Rs. 6 lacs to the appellant during the years 1983-84, and paid the remaining amount of two lacs, about a year thereafter, and that he did not 9 obtain any receipt of the payment from the appellant. He admitted not having mentioned the above payment in his written statement and stated that he has mentioned about the said payment in his reply to the applications filed by the appellant and also in his written reply filed in the year 2008. He denied the suggestion that he never paid the amount to the appellant. 14. Ch. Ahmed Ali, Director (Administration), Chief Commissioner Office, Islamabad, produced by respondent No. 1 deposed that in the year 1980 he was posted as Naib Tehsildar, ICT Islamabad, and was also performing the functions and duties of Sub-Registrar, and Revenue Officer, Islamabad. He claimed that the gift deed (Exh. D/2) was presented before him for registration in respect of House No. 3, by Mst. Sultana Rustam Bakhshi, her three daughters, Mrs. Parveen Waheed, Mrs. Gulfreen Riaz and Mrs. Khalida Azhar, the appellant. All of whom have through the said deed, gifted their respective shares in the said house to respondent No. 1. He stated that all the three pages of the document bears the signatures of the donors/executants and, that the endorsement on the document, also bears their signatures, and that he also singed the certification on the last page of the document, which page also contains the registration number and the date of the registration of the document. During his cross examination, the Officer stated that the donors/executants were identified to him by the witness Raja Zahid Hussain, Naib Tehsildar, who was personally known to him and had also signed the document as a witness, and further that he also checked the Identity Cards of the executants, but he did not remember as to whether the Identity Cards shown were in original or/were photo 10 copies thereof, as it has been a long time. He further stated that as per his memory the document was firstly signed by Mst. Sultana Rustam Bakhshi. He denied the suggestion having ever served with defendant No. 1 in any department. 15. Raja Zahid Hussain who was examined as DW/2, deposed that during the year 1980 he was posted as Naib Tehsildar, Rawalpindi. He claimed that he personally knew the appellant and respondent No. 2, as well as their mother Mst. Sultana Rustam Bakhshi, and late Gulfreen Riaz, the executants of Exh. D/2. He claimed that his father’s family and the family of late Rustam Ali Bakhshi, both lived in Attock, and had family relationship. He stated that he had identified the executants at the time of execution and registration of the document before the Sub-Registrar and that all the executants had signed each page of the document and also on its endorsement. During his cross examination, he stated that besides Exh. D/2, the executants had also appended their signatures in the relevant register. He stated that Exh. D/2 was presented before the Sub-Registrar at about 10- 11 A.M. He stated that none of the executants was handicapped and that only late Sultana Rustam Bakhshi had some problem with her leg which was persisting since before the execution of the gift deed. He further stated that late Sultana Rustam Bakhshi had come to the office of the Sub-Registrar in a car with respondent No. 1 and her three daughters had accompanied her. 16. Mrs. Parveen Waheed, the respondent No. 2, in her deposition stated that it was, Exh. D/2, the gift deed, whereby she herself, her two sisters, namely, the appellant and late Gulfreen Riaz, and her mother late Sultana Rustam Bakhshi, gifted their 11 respective shares in House No. 3, she acknowledged her signatures on the said deed and deposed that the other donors had also appended their signatures on the document in her presence. She stated that Raja Zahid, who identified the executants, is known to her. The witness also verified the execution of the general power of attorney (Exh. D/3) in the same manner. During her cross examination, she stated that for execution of the gift deed she had appeared in the office of the Registrar, which was on the ground floor, and that she had willingly gifted her share in the house to respondent No.1, he being her brother. She also stated that a car was given to the appellant towards her dowry, and that some reasonable jewellery was also given to her. She further stated that Exh. D/3 was executed in Rawalpindi, and not in Islamabad and that she accompanied respondent No. 1 to the District Court, Islamabad for the execution of Exh. D/2, and similarly they went to Rawalpindi for execution of Exh. D/3, and appeared before the Sub-Registrar in his office on the ground floor in Rawalpindi. She deposed that except Exhs. D/2 & D/3, she has not signed any document relating to the property of her late father and that she has not signed any power of attorney in favour of any advocate after the death of her father. During her further cross examination she twice narrated and reaffirmed in details the sequence and the manner in which the executants appended their signatures on the gift deed. She further stated that she has not appeared in any Court for making any statement about the property of her late father after his death except for the execution of Exhs. D/2 & D/3 and also did not instruct anyone to make any statement on her behalf. She stated that the general power of attorney was executed by her on 12.12.1978, She stated that she has not 12 engaged any counsel in respect of present case. She denied a suggestion that she signed the documents Exhs. D/2 & D/3 at the instance of the respondent No. 1 or her wife, the respondent No. 8. She also denied that she executed the said two documents for an offer made by the said two respondents. She also stated that during their stay in Islamabad, the appellant, and late Gulfreen Riaz use to reside in the house of their mother and respondent No. 1. 17. Mrs. Seemi Arif, the respondent No. 4, who is a daughter of late Gulfreen Riaz, in her testimony stated that she can recognize the signatures of her mother as she often watched her signing different documents like cheques and her school reports. She saw Ehx. D/3 and recognized Ehx. DW-4/1-5 as the signatures of her mother therein. The witness said that it was through Exh. D/2 that her mother gifted her share in House No. 3 to respondent No. 1 and that Exh. D/3 is the document whereby her mother appointed the respondent No. 1 as her attorney. During her cross examination, she explained that her mother use to make her signature with normal frequency and with medium pressure on her pen. She stated that she is not aware as to whether her mother signed any document in relation to the property of her grandfather other than Exhs. D/2 & D/3. She denied having signed any document in relation to the present case other than the power of attorney that she has executed in favour of her husband. 18. As regards the agricultural land the appellant in her evidence claimed that she came to know about the transfer of agricultural lands in favour of respondent No. 1 only during the pendency of the suit and has been deprived of her inheritance 13 share in the said lands. During her cross examination, she expressed ignorance regarding the total area of the lands gifted to respondent No. 1 in the year 1997 in Garhmahl. She however stated that the area of the lands in the year 2001-02 was 508 kanals and 14 marlas but could not tell as to how much out of said 508 kanals and 14 marlas was purchased by respondent No. 1 and how much was gifted to him. She admitted that the orchard on the land has been grown by respondent No. 1, but then said that it was grown by their father. She stated that respondent No. 1 was looking after the lands, though without any permission. She further stated that she has not filed any suit or application for mense profit or share of the produce in respect of the subject land. 19. Mrs. Parveen Waheed, respondent No. 2 in her evidence deposed that she did not get any share in her ancestral property in District Jhelum as her father had gifted the same to respondent No. 1. She said that she was informed about the gift by her parents. 20. Sheikh Asif Rasheed, the Special Attorney of respondents No. 3 to 7, deposed that late Rustam Ali Bakhshi during his life time mutated the land in favour of respondent No. 1. He claimed that he was informed about the above transfer by respondent No.4. 21. The respondent No. 1 in his testimony deposed that his father, along with his two brothers, Anwar Ali Bakhshi and Ashraf Ali Bakhshi, sister Afzal Begum and mother Hashmat Bibi owned the agricultural lands. The said co-owners executed a general power 14 of attorney in favour of his father for the purpose of transferring their shares in the lands in his (the respondent No. 1’s) favour. Whereafter, his father Rustam Ali Bakhshi transferred the lands jointly owned by the aforesaid in his favour. He also gave the details of the gift mutations and produced the relevant gift mutations as exhibited DW-7/1 to DW-7/5. He deposed that after the above transfer, he purchased some more land and the total area thus owned by him came to 512 kanals. He further deposed that at the time of transfer of the lands as above, the lands were scattered in small parcels in three different villages namely Garhmahl, Raju Pindi and Chak Almas, and he therefore sold such lands situated in villages Chak Almas and Raju Pindi and consolidated his holdings in village Garhmahl through exchange and sale purchase and thus became owner of a compact block instead. The above exercise, according to respondent No. 1, was commenced by him in the year 1974 and was completed during the life time of his father. He further deposed that all his sisters including the appellant and his mother use to visit his land in Garhmahal and that after the death of his mother the appellant along with her husband and children had visited his lands and stayed in his house there for about 3-4 days. He claimed that all his sisters knew about the transfer of ownership of the land in his favour by way of gift. During his cross examination the respondent No. 1 stated that other than the above mutations there is no document pertaining to the transfer of possession of the land to him. He expressed his ignorance if the lambardar or the union council member had signed the gift mutations. He however stated that the lambardar had identified the parties. He also expressed his ignorance as to whether the gift mutations have been signed by 15 any of the donors. He stated that he was unable to give the exact date when the donors made offer of gift to him and/or the date on which he accepted the same. He stated that he took over possession of the lands immediately after sanctioning of the mutation but could not give the date. He expressed his ignorance as to whether in the special powers of attorney being Exhs. P-51, 52. 53, 54, 55, 56, 57 and 58 his name was mentioned as a proposed donee. He stated that Muhamad Afzal, who informed the revenue officials about the gift was Manager (Mukhtiar) of his father and other donors. He further stated that he does not remember having given any share of any produce from the orchard in the land to the appellant. 22. From the foregoing, it can be seen that out of the various properties and assets held by the deceased the distribution agencies admittedly came to be terminated upon his demise. Whereas the inventory/stocks in trade were, as claimed by respondent No. 1, sold by Mst. Sultana Rustam Bakhshi, the widow of the deceased. Nothing was suggested on behalf of the appellant during the cross examination of respondent No. 1 to refute the respondent’s such claim. Neither has the appellant disclosed the source of her information that the stocks were sold by respondent No. 1and not by Mrs. Bakhshi, nor has she been able to say as to for what amount were the stocks sold or to give any other information pertaining to the alleged sale. The shop wherein the above inventory/stock in trade were kept was admittedly owned by Mrs. Sultana Rustam Bakhshi and according to the respondent No. 1 was sold by him on the instructions of Mrs. Bakhshi for an amount of Rs. 1,20,000/-(Rupees One Lac Twenty Thousand) which 16 amount he paid to Mrs. Bakhshi. Nothing to refute the above was suggested on behalf of the appellant during the cross examination of respondent No. 1. As regards the sale of the Abbottabad Plot and the amounts withdrawn from the bank accounts of the deceased , and the sale proceeds of the shares, the respondent No. 1 has deposed that the plot was sold with the consent of all the legal heirs of late Mr. Bakhshi and on the basis of power of attorney (Exh. D/3) executed by them, and similarly the succession certificate was obtained and the amounts from the bank accounts were withdrawn and so also the shares were sold with the consent of the legal heirs, who were paid their respective shares therein. The respondent No. 1 claimed that in fact he paid to the appellant amounts which were far in excess of her share. None of the above claims were even attempted to be refuted during the cross examination of respondent No. 1. It can therefore be safely concluded that the appellant has failed to justify her claim and/or to prove her allegations with regard to the distribution agencies, stocks in trade, the Abbottabad Plot, the shop owned by Mst. Sultana Rustam Bakhshi and the bank accounts, shares etc. held by late Mr. Rustam Bakhshi at the time of his death. 23. Whereas the appellant has denied having gifted her share in House No. 3 to the respondent No. 1. She claims to have come to know of the existence of the gift deed Exh. D/2 only through the written statement filed on behalf of the respondent No. 1 on 03.09.2006. House No. 3 was admittedly owned by the deceased and Mst. Sultana Rustam Bakhshi each having equal shares. The gift deed Exh. D/2 is a duly registered document. The same was executed and registered on 29th October, 1980, by all 17 the legal heirs of the deceased, including his widow Mst. Sultana Rustam Bakhshi and the appellant. Admittedly Mst. Sultana Rustam Bakhshi lived more than 7 years after the execution and registration of the said document but neither she nor any other executant thereof including the appellant challenged the same in any manner throughout. Though the appellant has claimed that she has been asking for her share in the estate of the deceased from time to time however, neither has she been able to produce any evidence and/or witness in that regard nor has even stated as to when, in what manner, and in whose presence she made such demands. Since the document, as noted earlier, was executed and registered in the year 1980 much before the coming into force, of the Qanun-e-Shahadat Order, 1984, and was, in terms of Section 68 of the Evidence Act, 1872, then in force required to be proved by producing one marginal witness only, the respondent No. 1 thus produced Raja Zahid Hussain who has witnessed the execution and registration of the document and has signed the same as such, as DW-2. The said witness has verified such execution and registration with all the necessary details. He, as deposed by him, and also by the respondent No. 2, knew all the executants of the document personally, as his family and the family of he executants knew each other well from the days when both the families lived in Attock. The other witness produced by the respondent No. 1 to verify the execution and registration of the gift deed was Chaudhry Muhammad Ali, the Sub-Registrar who registered the gift deed. He verified the execution and registration of the document by all the executants before him, and that he has first satisfied himself regarding their identity. He also deposed that the donors/executants were identified to him by the witness Raja 18 Zahid Hussain and further that he had also checked the identity cards of the executants. The cross examination of the above two witnesses conducted on behalf of the appellant, instead of causing any dent in their respective depositions, further strengthened the respondent No.1’s case by brining forth the graphic detail pertaining to the time, place, manner and sequence the document was executed before them. 24. The gift deed, as noted earlier, has been executed by four (4) persons, one of whom, being the mother of the remaining donees, and the donors, as noted earlier, passed away in the year 1988, about eight (8) years after the execution thereof. Another executant/donor, namely, Mrs. Gulfreen Riaz, the mother of the respondents No. 3-7 also passed away in the year 2005. The only surviving executant/donor other than the appellant, namely Mrs. Parveen Waheed, the respondent No. 2, who is the eldest daughter of the deceased, in her testimony verified having signed and executed the gift deed as well as the power of attorney dated 12.12.1978 (Exh. D/3), and that all the remaining executants thereof have signed the documents in her full view. As noted earlier also, she denied a suggestion that she signed the documents Exh. D/2 and D/3 at the instance of the respondent No. 1 or her wife the respondent No. 8. She also denied that she executed the said two documents for some offer made to her by the said two respondents. 25. Mrs. Seemi Arif, the respondent No.4 who is a daughter of late Gulfreen Riaz, explained as to how she recognized the signatures of her mother on the said two documents as being her real and true signatures. She deposed that it was through the gift 19 deed Exh. D/2 that her mother Mrs. Gulfreen Riaz gifted her share in House No. 3 to the respondent No. 1, and that she also appointed the said respondent her attorney through Exh. D/3. The cross examination of the said two respondents, instead of being of any avail to the appellant, further strengthened and verified the respondents claim on the one hand, and further discredited the appellant’s claim with regard to House No. 3. 26. The respondent No. 1 through his evidence re-affirmed and reiterated his case with regard to House. No. 3 fully well. He also deposed that it was during the year 1983-84 that he paid a sum of Rupees Eight lacs to the appellants which claim was re- affirmed by him during his cross examination, when he stated that such payment was made by him by carrying the amount from Islamabad to Lahore and further that initially he paid Rupees Six lacs to the appellant during the year 1983-84 and paid the remaining Rupees Two lacs about a year thereafter. The respondent No. 1 also deposed that he accepted the offer of the gift made by his mother and sisters five weeks before the execution of the gift deed. He also produced a letter dated 07.07.1981 whereby his mother informed the concerned gift Tax Officer that she herself and her three daughters, on 29.10.1980, gifted their respective shares in House No. 3 to the respondent No. 1 and, submitted gift tax return along with a copy of the gift deed for the assessment of the gift tax. He produced the assessment made in pursuance of the said letter as Exh. DW-7/12, along with another letter, Exh. DW-7/13, whereby his mother sought refund of the amount assessed and paid in excess, and produced DW-7/14 whereby the assessment was accordingly revised, the authenticity 20 and veracity of the above letter was not denied by the appellant in any manner. 27. Undisputedly House No. 3, was, with the approval of Capital Development Authority, bifurcated/partitioned into two plots/properties, in the year 1991, one of which, that retained the original number, i.e. House No. 3, was in the year 1997 gifted by respondent No. 1 to his son, the respondent No. 9, and the other, bearing plot No. 3/A, was gifted by respondent No. 1 to his daughter, Amna Arshad, the respondent No. 10, who in the year 2000-2002, built a house therein. However, there is absolutely no evidence that the appellant, despite being an educated lady, with a master’s degree, objected to the same, or sought her share in the property or for that matter in any of the assets left behind by the deceased. 28. Among the executants of the gift deed and the general power of attorney it is only the appellant who has denied execution of the document, and that too after a lapse of more than 26. Although Mst. Sultana Rustam Bakhshi survived for about ten (10) years after execution of the power of attorney (Ehx. D/3), and eight (8) years after the execution of the gift deed neither Mst. Sultana Bakhshi nor any of the other executants challenged any of the two documents throughout. There appears to be no reason, and none was suggested for that matter, as to why the only surviving sister of the appellant, the respondent No. 2 and the daughter of the deceased sister, the respondent No. 4 would depose against the stance of the appellant by acknowledging the veracity and authenticity of the two documents more so when the appellant claim that she has/had cordial relation with her sisters. 21 29. It may also be relevant to note here that though the appellant has denied having signed the aforesaid two documents and has termed them as forged and fictitious, and thus it would have been in her interest had the authenticity, or otherwise of the disputed signatures been verified by a hand writing expert, in fact she herself ought to have made a request for such test/comparison. However she resisted the order dated 26.05.2010 passed by the Court for such comparison/ test through a revision before the Lahore High Court, and persisted in her opposition by filing a petition before this Court against dismissal of her revision, which petition was, by consent, disposed of with direction for early disposal of the case. This further lends credence to the claim of the respondents that the said two documents have in fact been signed and executed by the appellant also, as otherwise there seems no reason for her opposing the verification/comparison as ordered by the Court. 30. In light of the above evidence there remains no doubt that House No. 3 was duly gifted by the widow and the three daughters of the deceased, including the appellant, to the respondent No. 1 and that the gift deed Exh. D/2 and the general power of attorney Exh. D/3 were duly executed and registered by the said donors. The appellant’s challenge to the veracity and authenticity of the said two documents and her claim for a share in House No. 3 is, therefore, not sustainable. 31. In addition to the various properties and assets as listed in para 2 hereinabove, the appellant also claimed her inheritance share in House No. 10. She claimed that respondent No. 8, the wife 22 of respondent No. 1 is only an ostensible owner of the property, which has in fact been purchased by respondent No. 1, from the funds generated by the latter out of the income of the properties left behind by the deceased. However, she has not been able to produce any evidence to substantiate her claim in that regard. 32. Reverting back to the dispute regarding the agricultural land, though it is true, that like in respect of other properties and assets of the deceased, neither the appellant claimed any share therein over a long period of more than 28 years after the death of her father and till filing of the suit nor did she seek any share even in the produce thereof. She also did not object to the gift mutation attested in favour of the respondent No. 1 way back in the year 1978, although after having acquired the land respondent No. 1, proceeded to consolidate the same by way of sale, purchase and exchange and also enlarged his such land holdings by purchasing the land adjacent thereto and also developed an orchard and constructed a house therein, and it is also true that the respondent No. 2 who is the only surviving legal heir of the deceased in her deposition endorsed the respondent No. 1’s claim of having acquired the agricultural land by way of gift. However, the said respondent was still required to prove a valid gift of the land by his father, grand mother, uncles and aunt in his favour to the exclusion of the other legal heirs of the deceased, it was absolutely necessary for the respondent No. 1 to have proved all the essential ingredients of the gift independent of the gift mutations, Exh. DW- 7/1 to DW-7/5. He was essentially required to prove that the donees have offered to gift the subject land to him and that he accepted the said offer and that the possession of the lands was 23 delivered to him. He was also required to specify the date, time and place the offer was made and accepted by him, and also as to when the possession was delivered to him. However, neither has the respondent No. 1 divulged such details nor has he produced any person who witnessed the happening of any of the above. Although proving and verifying the authenticity of the gift mutation and its attestation, would not have been sufficient, without proving the transaction embodied therein, as noted above, however, the respondent No. 1 has failed even to prove the authenticity and veracity of the mutations and its attestation, as none who allegedly witnessed the attestation of the mutations been produced, neither the revenue officer nor the Lumbardars or the other witnesses whose names find mention in the attestation, or any of them who participated in the relevant jalsa-e-aam/assembly been produced by respondent No. 1, although there could have been a possibility that with the passage of long period of time, none of the above person may have survived, or may not have been traceable, but such also has not been claimed by respondent No. 1. He has also not been able to say positively as to whether the signature of the person who witnessed the gift attestations, were obtained by the revenue office in the register of mutation as required in terms of sub-section (7) of Section 42 of the West Pakistan Land Revenue Act, 1967. The respondent No. 1 thus having failed to prove the essential elements of gift in his favour, and having also failed to prove the authenticity and veracity of the relevant attestation, no valid gift of the subject land can be presumed in his favour, the respondent No. 1 is, therefore, liable to share the land with the appellant to the extent the appellant is entitled to inherit in accordance with Sharia, and also to pay to her the amount of 24 mense profit in respect of her such share in the land at the rate of Rupees eight thousands(Rs.8000/-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the date the possession of the land to the extent of her share is delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months from the date hereof. In addition to the amount of mense profit the respondent No. 1 shall also pay to the appellant the amount of markup accrued thereon at the bank rate on year to year basis and till the time the entire amount is paid. 33. The appeal stands disposed of in the foregoing terms. CHIEF JUSTICE JUDGE JUDGE ANNOUNCED IN OPEN COURT ON________________ AT ISLAMABAD JUDGE “APPROVED FOR REPORTING” Rizwan

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL Civil Appeal No. 634/2014 and Civil Appeals No.431 & 432/2020 (On appeal from the judgment/Order dated 8.5.2012 and dated 20.4.2018 passed by the Peshawar High Court, Peshawar in W.P.3095/2011 and W.P.No.3058/2011). 1. Aqeel Shahzad & others …(In CA.634/2014) 2. Director General Agriculture (Extension) Govt. of KPK Peshawar & others …(In CA.431/2020) 3. The Chairman, Peshawar Market Committee, Fruit and Vegetable, Peshawar & others ….(In CA.432/2020) …APPELLANTS VERSUS 1. Govt. of KPK thr. Chief Secretary KPK Peshawar & others …(In CA.634/2014) 2. Muhammad Israr & others …(In CA.431/2020) 3. Muhammad Israr & others ….(In CA.432/2020) …RESPONDENTS For the appellants: Mr. Misbahullah Khan, ASC Mr. M.S. Khattak, (Absent) (In CA.634/2014) Mr. Zahid Yousaf Qureshi, Addl.A.G., KP Mr. Saadullah Jandoli, AOR (Absent) Civil Appeals No. 634/2014, etc 2 (In CA.431/20 also for respondents No.1-5 in CA.No.634/14) Sardar Ali Raza, ASC Syed Rifaqat Hussain Shah, AOR (In CA.432/20) For the respondents 1-16: Mr. Khalid Rehman, ASC Mr. M.S.Khattak, AOR (Absent) (In CAs.No.431-432/20) Other respondents: Nemo Date of hearing: 22.7.2020 JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J-. We have before us an appeal (Civil Appeal No.634/2014) with leave of this Court vide order dated 15th April, 2014 against a judgment dated 8th May, 2012 of Peshawar High Court, Peshawar whereby the Writ Petition No.3095/2011 filed by the appellants for regularizing their services from the date of their initial appointments was dismissed. Similarly a Writ Petition No.3058/2011 was filed by the employees of Peshawar Market Committee, almost with the similar prayer as in the above noted Writ Petition which is reproduced herein-below:- “On acceptance of this writ petition, this Hon’ble Court may graciously be pleased to:- i) Direct the respondents to convert the appointment order dated 01.10.2010 into respective regular basic pay scale/grace. ii) Further direct the respondents to issue order of regularization of services of petitioners scale-wise since the entry into their respective services. Civil Appeals No. 634/2014, etc 3 iii) Direct the respondents to release the outstanding salaries of the petitioners since June 2011 forthwith. iv) Any other relief deemed appropriate by this Honourable Court may also be granted in favour of petitioners”. which was allowed by a Division Bench of the Peshawar High Court vide its judgment dated 20th April, 2018. The Appellants ‘Director General Agriculture (Extension) Govt. of Khyber Pakhtunkhwa Peshawar & others’ AND ‘The Chairman, Peshawar Market Committee, Fruit and Vegetable, Peshawar & others’ in Civil Appeals No.431/2020 & 432/2020 respectively have questioned the said judgment with leave of this Court dated 3rd April, 2020. Since common questions of law and facts are involved in these appeals so taken together. 2. The appellants of Civil Appeal No.634/2014 and private respondents of Civil Appeals No.431/2020 & 432/2020 (The Employees) were appointed and working against different posts since 1994 to 2010 on fixed pay but in different pay scales. Their services were initially regulated under the erstwhile Act and Rules i.e. ‘The Agricultural Produce Markets Act, 1939 (V of 1939)’ and ‘Agricultural Produce Markets Rules, 1940’ since repealed by the Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act, 2007 (The Act, 2007) and Khyber Pakhtunkhwa Agricultural Produce Markets General Rules, 2011 (The Rules 2011). Besides the Rules 2011, bye-laws under Section 36 of the Act, 2007 were also approved by the Government of the Khyber Pakhtunkhwa vide letter No.SOAII (AD)4(5)3/2012/Vol-I dated 12th February, 2013. Civil Appeals No. 634/2014, etc 4 3. Learned counsel for the parties and learned Additional Advocate General, Khyber Pakhtunkhwa were heard and record of the case was perused. 4. Record of the case would reveal that Section 16 of the repeal Act of 1939 and the Act 2007 deal with the appointment of employees of the Market Committees. Whereas Section 17 of the both the laws ibid provide the status of the employees of Market Committees as that of public servants within the meaning of Section 21 of the Pakistan Penal Code 1860 (PPC). Bye-laws of 2006 under the erstwhile Act of 1939 provide three categories of employees’ i.e. (1) Regular (2) Contract (3) Contingent, whereas Bye-laws of 2013 under the Act 2007 provide two categories of employees i.e. (1) Regular (2) Daily Wages. The employees before us in both the cases were appointed between 1994 to 2010. The employees so appointed continued with their services. The erstwhile Act, 1939 was once repealed having become redundant due to the Khyber Pakhtunkhwa Local Government Ordinance, 2001 vide Ordinance No.XXXVIII of 2002 and then again the erstwhile Act, 1939 was revived by repealing the Ordinance, 2002 ibid vide Khyber Pakhtunkhwa, Act VII of 2004. The Government kept on improving the market committees’ system. In the same effort, the Government made Bye-law of 2006 under the Act 1939. Thereafter, the Government promulgated yet another Act “Khyber Pakhtunkhwa Agricultural and Livestock Produce Markets Act, 2007” (Act IV of 2007). The Government also made and published/notified rules under Section 35 of the Act, 2007 with the name ‘The Khyber Civil Appeals No. 634/2014, etc 5 Pakhtunkhwa Agricultural Produce Markets General Rules, 2011’ and Bye-laws under Section 36 thereof. Rule 71 of 2011 Rules deals with the appointments, terms and conditions of service of employees. (Sub-Rules 1,2,5 & 6 are relevant). Relevant sub-rules of Rule 71 ibid are reproduced for ready reference:- “71. Appointment terms and conditions of service of employees. (i) The pay scales as prescribed in Schedule ‘IV’ annexed hereto shall apply to all the employees of a market committee. (ii) Recruitment/promotion to the posts of a market committee in future shall be made in accordance with- (a) The pay scales as prescribed in Schedule ‘ÍV’ and (b) The qualifications as prescribed in Schedule ‘V’ (iii) …………………………………………………………… (iv) …………………………………………………………… (v) If any person already employed by a market committee is not covered by Schedule ‘IV’ he shall be allowed to continue as such or may be absorbed at his request at place where such vacancy exists, with the prior approval of Government. (Emphasis supplied). (vi) In respect of service conditions including disciplinary matters and other matters ancillary thereto, the employees of the market committee shall be governed mutatis mutandis by the rules applicable, from time to time, to the employees of Government. (vii) …………………………………………………………… (viii) …………………………………………………………” Civil Appeals No. 634/2014, etc 6 5. The employees before us were appointed by the competent authority as mentioned in both the laws ibid with an admitted fact that there was no proper service structure at the time of such appointments. But a letter by Director General, Agriculture (Extension) KPK bearing No. E&M/29/165-D 14400/DGA dated 26.8.2011 present at Page/108,109 of the original file of Civil Appeal No.634/2014 would reflect that some 101 contingent/daily wages staff was regularized by ex-Market Committee. A letter bearing No. PMC/1-1/05 dated 02.09.2010 regarding regularization of contingent employees which is available on Page/51 of the Paper Book of Civil Appeal No.431/2020 confirms the fact of regularization of contingent employees. The above letter dated 26.8.2011 also refers to eleven other employees of different grades appointed during 1994, 1995 and 1996. It further says that terms and conditions and BPS mentioned in their appointment orders clearly indicate that their appointments were made on regular basis and they have served PMC for more than seventeen years and they as per Section 17 of the Act, 2007 are public servants and entitled to all benefits of pay and allowances as admissible to other Government employees. The Government was asked to consider their cases by keeping in mind span of their services. All the names contained in the said letter are of the appellants except the one at Serial No.11, Imdad Khan. His name does not appear in the array of appellants rather one Tanveer Khan has been arrayed as appellant No.11. 6. In both the Writ Petitions the stance of the Government of Khyber Pakhtunkhwa (The Government) and the Peshawar Market Committee (PMC) was almost the same that the Civil Appeals No. 634/2014, etc 7 appointments made by the PMC were carried out in absence of any rules/instructions from the Government and there was no proper service structure for such appointments. The Government while realizing this fact constituted a committee vide its letter No.SOAII (AD)4(5)/2011/Vol-XIX dated 25.5.2011 to get a proper service structure and approved the recommendations of the said committee vide letter No.SOAII 4(5) 2011/Vol XX dated 26.8.2011. Besides the above, the contention of the learned Additional Advocate General and the counsel for the Peshawar Market Committee was that the Government has approved proper budget for the employees of Peshawar Market Committee as well as laid down a service structure and after approval of the same, appointments in the Market Committee would be made in accordance with the same. The stance of the Government put forth through its comments in both the Writ Petitions regarding recommendations of the above noted committee was not so clear. The categoric stance of the committee in its second meeting held on 28.5.2011 was that appointments of the staff were carried out in absence of any rules/instructions of the Government and having no legal status may be terminated. Further recommended that till appointment of regular staff in the light of Schedule-IV of the Rules 2011, the noted thirteen staff members will perform their duties. These thirteen include the names of appellants. 7. While going through the impugned judgment dated 08.05.2012, we have noted that the learned Division Bench of the High Court has taken the very harsh and technical aspect of the matter which even goes against the provisions of the Act of 2007, Civil Appeals No. 634/2014, etc 8 Rules of 2011 and the By-Laws of 2013 on the subject. Appointing Authority under Section 16 of the Act of 2007 is the Market Committee. Terms and conditions of the employees as reflected in the different appointment orders (both under the existing and the repealed laws) would show that the same were of permanent and regular nature. We, in the circumstances, don’t think that the findings of the High Court are in accordance with law on the subject, hence are not maintainable. 8. We have noted that employees of the PMC who have spent/rendered services in the Committee since 1994-95 and that too without any blemish and in spite of the Act 2007, its Rules 2011 and the Bye-laws of 2013, have been made rolling stones struggling for their fundamental rights. We consider the action of respondents to terminate appellants and to make fresh appointments to be oppressive and against their fundamental rights specially when Rule 71(V) quoted above also gives protection to the persons already employed. While serving the PMC for such a long time, almost all of them would have lost their chance of fresh appointments in other Government departments. We in the circumstances cannot concur with the decision of the government and the Peshawar Market Committee (PMC) for termination of the employees or their fresh appointments under the Act 2007 and its rules and bye-laws ibid. We have also noted that the termination order dated 26.8.2011 of the employees in Writ Petition No.3058/2011 was passed after the Rules, 2011 were notified/published on 14.4.2011; such termination itself is in violation of Rule-71 (V) ibid. Civil Appeals No. 634/2014, etc 9 So, in this view of the matter, while allowing Civil Appeal No.634/2014, we set aside the impugned judgment. Resultantly, the order of termination dated 26.8.2011 of the appellants, being illegal and unlawful, having no legal effect, is also set aside. We further direct the Government and the Peshawar Market Committee to consider regularization of the services of the Appellants in accordance with law. Civil Appeals No.431/2020 and 432/2020 are dismissed with no order as to costs. Chief Justice Judge Judge Islamabad, 22nd July, 2020 Sarfraz. /- ‘Not approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALL AKBAR NAQVI AK Civil Appeal No.639 of 2014 (On appeal against judgment of the High Court of Sindh at Karachi dated 04.12.2013 4 ot, - .2 .L., in C.P.No. 1143 of2011) Mall Development (Pvt) Ltd Appellant(s) Versus Waleed Khanzada & others Respondent(s) For the Petitioner(s) Syed Ali Zafar, ASC For the Respondent(s) Mr. Khaiid Javed, ASC r-f. Malik Nacem Iqbal, ASC - F.,. 4.ç. t.flo. 0 v.. Ica,.ct) Date of Hearing: l2.05.2022. JUDGMENT IJAZ UL AHSAN-. By way of this Appeal, the Appellants have challenged a judgment of the High Court of Sindh, Karachi dated 04.02.2014 passed in Constitutional Petition No. 1143 of 2011 (hereinafter referred to as "Impugned Judgment"). Through the Constitutional Petition, the Respondent (Barrister Waleeci Khanzada) challenged the merger by the Appellants of a plot of land measuring 3600 Square Yard plot (hereinafter referred to as "Adjacent Plot") with an 8000 Square Yard commercial plot titled as "Zam-1" (hereinafter referred to as "Commercial Plot"). The case of the Respondent was that the 3600 Square Yard plot, being an amenity plot by nature, could not have been merged with the 8000 Square Yard commercial plot. The learned High Court, -7- through the Impugned Judgment, allowed the Constitutional Petition filed by the Respondent. 2. The necessary facts giving rise to this Us are that, on the basis of an agreement dated 17.07.1987 between the Appellants and DHA (Respondent No. 04); DHA sold a plot measuring 8000 Sq. Yards (hereinafter referred to as "Agreement with DHA") to the Appellants. Admittedly, Clause 02 of the Agreement with DHA stipulated that only 70% of the area of the Commercial Plot could be constructed upon whereas, 30% of the area of the Commercial Plot shall be utilized for providing amenities. Since leasehold rights of the Commercial Plot vested in DHA, therefore, a C-lease was executed on 16.09.1998 whereby, leasehold rights of the Commercial Plot were transferred in favour of the Appellants by DHA. On 14.12.2005, an Amending Deed was executed, through which, the Appellants purportedly acquired the adjacent plot measuring 3600 Sq. Yards, located on the western side of the original 8000 Sq. Yard plot. Resultantly, as averred by the Appellants, the area of the Commercial Plot increased from 8000 Sq. Yards to 11,600 Sq. Yards. The Respondent, after learning that the Adjacent Plot had been acquired by the Appellants and, that they were undertaking construction on it, filed a Constitutional Petition. They took the stance that, since the Adjacent Plot was an amenity plot on which DHA Park existed, therefore, the Appellants could not have raised any construction on it. The Petition of the Respondent was allowed vide the Impugned Judgment. C . A. -3- Aggrieved, the Appellants filed a CPLA before this Court against the Impugned Judgment. 3. Leave to appeal was granted by this Court vide order dated 17.04.2014 in the following terms: - 'Leave is granted, inter alia, to consider whether the High Court has decided the main issues involved in the matter without looking at the relevant record, in that, the master lease of the year 1972 in favour of DHA and the master plan; whether the learned High Court has overlooked the key fact of the case that according to the master plan of the year 1973, the plot i.e., 3600 square yards in question is part of a commercial plot and there has never been any change for its use from the commercial to that of public amenity; whether, as per the record, before the learned High Court and also before us, the plot in question has been or was ever converted as public amenity plot before its lease to the Petitioner and, therefore, neither it could be validly allotted to the petitioner for any commercial activity for it can be put to such a use. On the basis of the agreements of the respondent, leave is also granted on the points whether the master plan was never part of the record before the High Court and thus it was incumbent upon the learned High Court for deciding such crucial issue after first having requisition the master plan and then to decide about the nature of the plot (Note: Mr. Makhdoom All Khan though has submitted that master plan was requisitioned by the High Court vide order dated 1508.2012 and was part of the record); and whether the lease in favour of the Petitioner with regard to 3600 square yards plot is a colourable transaction, non-transparent; and was granted to the Petitioner with ma/a fide intention as the Chief Executive of the Company, at the relevant point in time, was the employee of DHA and member of the Auction Committee, this would vitiate the entire transaction, 4. The learned Counsel for the Appellants has argued that the High Court relied upon a 1975 Master Lease which does not relate to the Plot. He has further argued that the 1975 Master Lease relates to areas in Gizri and Korangi, S -4- therefore, it has no connection with the dispute in hand. The learned ASC for the Appellant has further submitted that consideration in the sum of Rs. 18 Million was paid to DHA for the Adjacent Plot. In this respect, he has relied upon a letter by DHA for grant of lease, dated 1902.2003 and, counter affidavits filed by the Appellants and DHA. Learned Counsel for the Appellants has further argued that, nowhere does the Master Plan of 1972 mention that the plot in question is an amenity plot. Rather, the 1972 Master Plan clearly provides that it is a commercial plot. The learned Counsel for the Appellants has also argued that through the Impugned Judgment, the learned High Court has effectively made Clause 3 of the Agreement with IDHA redundant. It has further been argued that the Appellants have not constructed any commercial building on the Adjacent Plot and, will follow and comply with the terms of the Agreement with DHA. The learned Counsel for the Appellants has additionally argued that the Second Building Plan submitted by the Appellants was tacitly approved by this Court while hearing CPLAs 297-K and 298-K of 1996, since the Second Building Plan was not struck down. 5. The Respondent-in-Person, on the other hand has supported the Impugned Judgment. 6. Learned Counsel for Respondent No. 03 has argued on similar lines, as argued by the Learned Counsel for the Appellants. He has mainly argued that the Impugned Judgment proceeds on an incorrect appreciation of the facts F and record. He has further argued that the Military Estates Officer was not made a party in the matter and, his point of view was not considered while passing the Impugned Judgment. He has further argued that the Adjacent Plot was validly added in the lease with the Appellants and, the learned High Court failed to consider this fact while passing the Impugned Judgment. 7. We have heard the learned Counsel for the parties and perused the record. Essentially, this Court has two issues before it for adjudication, namely: - (i) Did DHA "inadvertently" mention the Adjacent Plot as DHA Park whereas it was part of the Commercial Plot? (ii) Could the Adjacent Plot be utilized in any manner it deemed fit by the Appellant, if consideration was paid for it? DID DHA "INADVERTENTLY " MENTION THE ADJACENT PLOT AS DHA PARK WHEREAS IT WAS PART OF THE COMMERCIAL PLOT? 8. The learned High Court in the Impugned Judgment has held that as per the Agreement with DHA dated 17.07.1987, the area of the Commercial Plot is 8000 Sq. Yards. The learned High Court has also concluded that, the C-Lease dated 16.09.1998 also mentions the area of the Commercial Plot to be 8000 Sq. Yards. We have examined the Agreement with DHA and also the C-Lease. Both of these documents admittedly mention the area of the Commercial Plot as 8000 Square Yards. The said documents are the foundation on which the transaction between the Appellants and the Respondent Nos. 3 and 4 is based. Nowhere in the C-A.ófl/h1. said documents is it mentioned that the Appellant is being allotted the Adjacent Plot. In this respect, Counsel for the Appellants has placed reliance on an Amending "Deed" dated 14.12.2005 to argue that subsequently, the Appellants acquired the Adjacent Plot by paying valuable consideration. As such, the Adjacent Plot was acquired validly and lawfully. 9. We are unable to agree with the learned Counsel for the Appellants. It is pertinent to mention that, in the Agreement with DHA, it has been mentioned that the Appellants "in response to an Advertisement" made an offer to buy the Commercial Plot which was accepted by the Respondent-Authority. Since leasehold rights of the Commercial Plot vested with the Respondent-Authority, therefore, a C-Lease to this effect was executed. Clause 5(b) of the C-Lease states that the lessee shall comply with and observe all the rules and by-laws of CBC and DHA. In the Amending "Deed" dated 14.12.2005, it has nowhere been mentioned, whether the Adjacent Plot (if it is assumed that it was a commercial plot) was advertised/ auctioned and therefore, available to the general public. It has simply been mentioned in the Amending "Deed" that the area of the Commercial Plot has been "increased" to 11,600 Sq. Yards. There is nothing on the record to show that the said Adjacent Plot was advertised to be sold/ transferred or, that objections were called from the general public when it was purportedly being sold by converting it into a commercial plot. This casts a shadow on the entire transaction and, goes to suggest that the transfer of the Adjacent Plot in favour of the Appellants lacked transparency and adherence to the law. Land and valuable property, the rights of which vest in the Government, cannot be sold off arbitrarily. It is settled law that an amenity plot or public park cannot be converted for commercial use, nor can its land use be changed to one which affects the rights of other residents of the locality to enjoy the public park or amenity. Any transaction in this respect cannot be deemed to be legal because, one of the stakeholders in such a transaction is the general public. 10. One of the responsibilities of the Military Estates Officer is to ascertain whether any construction etc., is adverse to the interest of the Government or violates any rules or regulations which are meant to safeguard the interest of the public. The Military Estates Officer cannot, as per his own wishes and whims declare that a plot is a Park or a Commercial Plot. We have on record a letter of the Military Estates Officer dated 22.07.2003 which mentions the Adjacent Plot as a "Park". The learned Counsel for the Appellants, while placing reliance on the letter dated 22.07.2003 has argued that the Military Estates Officer provided a "clarification" about the nature of the Adjacent Plot by stating that it was to be maintained as a Park as per Clause 3 of the Agreement of DHA and, that the Adjacent Plot was not "DHA Park" as argued by the Respondent-in-Person. We are unable to agree with the learned Counsel for the Appellants. The fact that the Military Estates Officer CA. 431 A. - mentioned the word "Park" in his letter establishes that the Adjacent Plot was not to be used for a commercial purpose. 11. Further and more importantly, Clause 3 of the Agreement with DHA only allows the Appellant to "develop" the Adjacent Plot with "amenities". As such, the mode and manner in which the Adjacent Plot could be used, has been restricted. The Agreement with DHA was executed in 1987, which means that it has held the field for 35 years. The Appellants cannot at this stage, request the Court to absolve the Appellants of their responsibility to abide by the terms of the Agreement dated 17.07.1987. It is pertinent to mention here that, as per Clause 2 of the Agreement with DHA, the Appellants were only allowed to construct over 70% of the total area of the plot and, 30% of the area of the plot was to be utilized for "amenities". The fact that the Agreement itself mentions the words "amenities" and that too, in the clause relied upon by the Counsel of the Appellants, goes to show that the Adjacent Plot was not merely mentioned as DI-IA Park by inadvertence. We have seen in the record the Minutes of the Executive Board of DHA dated 06.05.1995. The said minutes too, incorporate a decision taken on Item No.37, that construction could not be made on the "park area". 12. Learned Counsel for the Appellants has argued that, the Minute Sheet dated 14.12.1999 wherein, the Adjacent Plot has been ear-marked as a park for the general public, is fabricated. There is nothing on the record to suggest any fabrication. On the contrary, DHA in a letter dated S c.A.N S )4. 3o.07.2007 clarified that no cO5° was allowed in the area mentioned in the enthng Deed. In another letter dated 02.072007 DHk has stated that the Adjacent plot is to be utilized as a leisure park for the general public. The fact that the Adjacent plot is mentioned as a "park" in various letters d other documents establishes the fact that the Adjacent Plot was meant and intended to be a public park and not a commercial plot. It is clear from the record that the Adjacent a park and, a letter issued by the plot had ways been the nature of the MilitaryEstates Officer could not Adjacent Plot or, allow the Respondents to construct or use it however they pleased- We have also found on the record a letter dated 27.O5.2003 issued by the Additional Director General (Lands) to the Mi1it Estates Officer, Karachicircle, 11Y mentioned in the said Karachi Cantt it has been tegori letter that plots reserved for en1ue5 cannot be used for Y other purpose. 13. Even otherwise, the second 13uilding plan, relied upon by the Appellants counsel, specifically menti0ns an hnowable covered Area". This further establishes that the Appellants could only consuct over the area approved for construction and, not more. In the presence of mateñal on the record, discussed above, we available that of the opinion that that the learned High court was correct to hold Plot was unlawfully annexed to the that the Adjacent roniniercial Plot. --U-- 4 'I C . A. 6 11 a I A COULD THE ADJACENT PLOT BE UTILIZED IN ANY MANNER DEEMED BY THE APPELLANT IF 14. The learned Counsel for the Appell5 has argued that, the Appellants paid Valuable consideration for the Adjacent Plot and have a right to use it in any manner deemed appropriate by them. The High Court in this respect has held that By-Laws 125 and 126 of the Cantonment Board Clifton (Building) By-Laws, 2007 clearly stipulate a procedure which must be followed if the nature of a plot is to be changed. There is nothing on the record that may show that the Appellants applied for the Adjacent Plot to be converted into a commercial plot. The onlyargument advanced by the Counsel for the Appellants in this respect is that they paid vid Consideration for the Adjacent Plot. We do not a&ee with this argument for the reason that, payment of consideration does not ipso facto absolve the Appellants of their responsibility to follow proper procedure of the law. Merely Paying consideration did not mean that the Appellants could do whatever they wanted with the Adjacent Plot. In the 1972 Master Lease, it has been Clearly stated that "Amenity Plots" could only be Used for the P urpose for which they were ear- "led- Mere payment of consideration does not mean that anything done illegally would get protection of the law. It is settled law that, when the law provides a Particular manner of doing things, they must be done in that manner or not at an. Anything done to the contrary would be illegal, ex-facie erroneous and unsustainable in law. I Cm . 31J14. - II - 15. It has been specifically mentioned in the Agreement with DHA and in the C-Lease that the Appellants shall abide by the by-laws of Cantonment Board Clifton and DHA. When the Respondent-Authority has repeatedly informed the Appellants that the Adjacent Plot could not be used for any other purpose; they were bound by such declarations made by DHA. The Appellants cannot at this stage, wriggle out of their part of the Agreement with DHA. This is because they chose to bind themselves by the conditions in the Agreement with DHA and, in the C-Lease. Learned Counsel for the Appellants has stated that this Court "impliedly approved" the Second Building Plan since this Court did not reject it outright. We do not agree with this argument. Merely because this Court did not struck down the Second Building Plan, does not, by any stretch of the language, mean that the Second Building Plan was "approved" by this Court. This Court, in its judgment handed down in CPLAs No. 297-K and 298-K, has nowhere used the word "approved" for the Second Building Plan. This Court, in various judgments, has held that an amenity plot cannot be used for commercial activities and by now it is settled law. Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 protects the fundamental right of life of every citizen of this Country. Right to life has been given an expansive interpretation by this Court. The right to life inter alia includes the right to enjoy public spaces such as parks. This Court is empowered to do complete justice and, nobody can be allowed to take fundamental rights guaranteed to the C.ft.3JJf - 12..- • F I citizens from the citizens, which are protected by the Constitution of the Islamic Republic of Pakistan, 1973. No doubt, commercial activities support the economy. However, commercial activities cannot be a made a basis to deprive citizens of basic amenities such as parks. There is sufficient material on the record to support the proposition that the Adjacent Plot was in fact, an amenity plot by its nature and use, which could not be allotted to the Appellants in an arbitrary and non-transparent manner, as done in the present case. As such, the learned High Court was correct to hold that the adjacent plot was illegally and unlawfully amalgamated with the Commercial plot and that nature and land use of the adjacent plot could not be changed, altered or modified in violation of the rights of public at large which are guaranteed by the Constitution of the country. 16. We find that the learned High Court has proceeded on correct factual and legal grounds in the impugned judgment. The learned ASC for the Petitioners has been unable to point out any misreading or non-reading of evidence by the High Court while passing the Impugned Judgment. Further, no jurisdictional defect, error or flaw in the Impugned Judgment has been found that may warrant interference of this Court. On hearing the learned ASCs for the parties and carefully perusing the record, we have arrived at the same conclusion as the High Court and find no valid ground, reason or basis to take a view different from the one taken by the High Court. t43j/h,. -43-- 17. In view of the foregoing, this Appeal is found to be without merit. It is accordingly dismissed. The Impugned Judgment dated 04.02.2014 passed b he High Court f Sindh at Karachi is affirmed and upheld . ISLAMABAD. THE 12 .05.2022 Hari3Ashtiaq LC/* 7fA pproved For Rrting' F Ii I -

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 648 OF 2021 (On appeal against the judgment dated 14.05.2019 passed by the Punjab Service Tribunal, Lahore in Appeal No. 2887/2017) Deputy Inspector General of Police, Lahore etc …Appellants VERSUS Sarfraz Ahmed …Respondent(s) For the Appellants: Mr. Zafar Hussain Ahmed, Addl. A.G Mr. H. Majid, DSP For the Respondent: Mr. Umer Farooq, ASC Date of Hearing: 04.10.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellants have called in question the judgment dated 14.05.2019 passed by the Punjab Service Tribunal, Lahore, whereby the service appeal filed by the respondent against his dismissal from service was allowed. 2. Briefly stated the facts of the matter are that the respondent while serving as a constable in Police Station Lower Mall, Lahore was proceeded against departmentally for wilful absence from duty from 21.12.2016 to 16.02.2017 and having been found involved in three criminal cases. It was also alleged that he had close relations with gangs of criminals, which were involved in cases of robbery, dacoity, kidnapping for ransom, theft etc. The respondent was issued show cause notice on 19.12.2016, which was duly replied by him. Thereafter, a regular Civil Appeal No. 648/2021 2 departmental inquiry was conducted wherein the allegations leveled against the respondent were found correct. On the basis of such inquiry report, the respondent was awarded major penalty of dismissal from service by the competent authority vide order dated 16.02.2017. Being aggrieved, the respondent filed departmental appeal but the same was rejected vide order dated 22.07.2017. He then filed service appeal before the Punjab Service Tribunal, Lahore, which has been allowed vide impugned judgment. Hence, this appeal with leave of the Court. 3. Learned Additional Advocate General argued that it was established on record that the respondent had close relations with gangsters, who are involved in many cases of kidnapping for ransom, extortion of money, dacoity and illicit weapons etc, therefore, keeping in view the fact that he was a member of the disciplined force, he does not deserve any leniency by this Court as this would cause adverse affect on other members of the force; that while awarding the penalty of dismissal from service, all the legal requirements were duly followed i.e. a regular inquiry was conducted and the respondent was given personal hearing by the competent authority but the learned Service Tribunal did not take this aspect into consideration and passed the impugned judgment in a slipshod manner. 4. On the other hand, learned counsel for the respondent has defended the impugned judgment. He contended that the period of wilful absence was condoned by the authority by treating the same as leave without pay. He added that another allegation against the respondent in the show cause notice was that he has been found involved in three FIRs bearing number 630/2016, 699/2016 & 702/2016 but in all of the three, the respondent has been acquitted of the charge, therefore, the learned Service Tribunal has rightly reinstated him into service. 5. We have heard learned counsel for the parties at some length and have perused the record with their able assistance. The learned Service Tribunal allowed the appeal filed by the respondent mainly on two grounds i.e. (i) that the respondent has been acquitted of the charge by the courts of competent jurisdiction in the three criminal cases registered vide Civil Appeal No. 648/2021 3 FIR Nos. 630/2016 dated 19.11.2016 under Section 387/506 PPC, 699/2016 dated 29.12.2016 under Sections 399/402 PPC and 702/2016 dated 29.12.2016 under Sections 13/20/65 of the Arms Ordinance, and (ii) the period of absence was condoned by the authority by treating the same as leave without pay. However, we have found that the department had conducted a regular inquiry in which it was found that the respondent has close relations with criminals operating in Lahore city against whom as many as 37 FIRs have been registered for the offences of robbery, kidnapping for ransom, dacoity etc. The detail of those FIRs has been duly mentioned in the dismissal order. When we confronted learned counsel for the respondent with this aspect of the matter, he could not give any plausible explanation. The learned Tribunal did not even discuss this aspect of the matter in the impugned judgment. The department has followed all the legal formalities while awarding penalty of dismissal to the respondent and he was given full opportunity to defend himself. So far as the condonation of the period of absence by allowing it without pay is concerned, it is admitted position that the respondent remained absent for a long period of about 55 days without taking prior leave or without informing his higher ups. The respondent being a member of the highly disciplined force was required to maintain strict discipline having regard to nature of duties enjoined to these forces and such an attitude cannot be excused and tolerated. In WAPDA Vs. Shan Elahi (1998 SCMR 1890), this Court has candidly held that employer/competent authority in case of unauthorized absence of employee from duty will be entitled to dismiss, remove or terminate the services of the employee concerned with effect from the date of unauthorized absence of the employee and the penalty of dismissal from service could be maintained even though the absence has been treated as leave without pay. In the case of NAB Vs. Muhammad Shafique (2020 SCMR 425), the respondent was awarded major penalty of compulsory retirement for his unauthorized absence of 66 days. The competent authority in the order of imposing major penalty had also treated the period of absence as Extraordinary Leave/Leave without pay. The respondent went to the High Court by pleading that since the office order through which major Civil Appeal No. 648/2021 4 penalty of compulsory retirement from service was imposed also directs the treatment of his unauthorized absence as extraordinary leave without pay, therefore, the penalty could not be sustained and ultimately succeeded in getting the relief. However, in appeal filed by the department against the impugned judgment of the High Court, this Court while setting aside the impugned judgment held that since the penalty imposed by the competent authority was of compulsory retirement which follows the payment of salaries and other dues till the date of imposing such penalty, therefore, it was necessary to give finding as to how such absence is to be treated but where an employee is dismissed from service he may not be entitled to any dues, therefore, there could hardly be any reason to provide for the treatment of his unauthorized absence as leave without pay. The Court further held that “in case where the competent authority wanted to condone the absence of an employee by directing its treatment as one kind of leave, then the competent authority would have shown its intention by providing reasons for condoning such absence or at least would not have in the same breath imposed major penalty of dismissal or compulsory retirement. The benefit of such naive drafting cannot be given to an employee who otherwise by his conduct deserved one of the major penalties. Additionally, it is not disputed that the conversion of unauthorized absence, as EOL without pay is not a penalty/punishment so that one can say that such treat cannot coexist with the major penalty/minor penalties. It is very obvious that if a man has absented himself from work without the permission of his employer, he of course is not entitled as of a right for payment of salary for such period.” 6. In WAPDA Vs. Shan Elahi supra case, it was also held that the Service Tribunal is competent to confirm, set aside, vary or modify the punishment but such power is to be exercised not arbitrarily or capriciously or on the basis of wrong premises or misconception of law. Even otherwise, learned Law Officer has disputed the fact of condoning the absence period. In this view of the matter, we are constrained to observe that the impugned judgment passed by the learned Service Tribunal suffers from misreading and non-reading of the evidence and the same cannot sustain in the eyes of law. Civil Appeal No. 648/2021 5 7. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. CHIEF JUSTICE JUDGE JUDGE Lahore, the 4th of October, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB MR. JUSTICE TARIQ PERVEZ CIVIL APPEAL NO.651 OF 2014 (Against the judgment dated 19.3.2014 of the Election Tribunal, Sukkur, passed in E.P.No.271/2013) Raja Ghous Bux Bijarani …Appellant(s) VERSUS Sardar Ghulam Abid Khan etc. …Respondent(s) For the appellant(s): Qazi Muhammad Anwar, Sr. ASC For respondent No.1: Mr. Farooq H. Naek, Sr. ASC Syed Rifaqat Hussain Shah, AOR Date of hearing: 07.01.2016 … ORDER MIAN SAQIB NISAR, J.- The appellant contested the elections for PS-17 Kashmore-I, District Kahsmore. The respondent is the returned candidate who secured 20,530 votes while the appellant is the runner up who obtained 18,850 votes, thus the differential between the two is 1,680 votes. Aggrieved of the above result, the appellant filed an election petition and according to his case as finally propounded (confined by the appellant) it was that in ten polling stations, details whereof are given in paragraph 9 of the election petition, bogus votes were cast and, therefore, examination/verification of the counterfoils by NADRA was sought by him. The learned Tribunal acceded to the appellant’s request and NADRA was required to examine the counterfoils, the report of which is as follows:- S.NO Description Count of Votes 1 Voters polled in polling stations whose election material was received by NADRA 8,099 2 Counterfoils did not qualify for fingerprint matching 2,415 3 Fingerprints successfully authenticated on used counterfoils and ER 3,176 4 Fingerprints on used counterfoils and ER falling authentication 0 5 Fingerprints of bad quality affixed on used counterfoils 2,508 After considering the report the learned Tribunal came to the conclusion C.A.651 of 2014 -: 2 :- that on account of non-verification of 2,415 and 2,508 votes it cannot be held that these votes were bogus. Learned counsel for the appellant states that at least the votes, which have not been verified on account that the “Counterfoils did not qualify for fingerprint matching”, should be excluded from the total count, and since such unverified votes (2415 in number) are greater than the differential of 1,680 votes, therefore, the election result has been materially affected in terms of Section 70(a) of the Representation of People Act, 1976 (the Act), suffice it to say that the reasons provided by the Tribunal in the impugned judgment are apt and are hereby upheld. It may be pertinent to mention here that it was never the case of the appellant that the thumb impressions on the votes (2415 and 2508) do not match the NIC numbers of the voters or that more than one person has affixed their thumb impressions on the counterfoils to hold that the ballot papers were not validly issued to the voter rather his case is restricted to the fact that as the verification could not be conducted by NADRA therefore the necessary conclusion be drawn that these votes are bogus. We are not persuaded to agree with the appellant because this is not the position in the present matter. If the report however was unequivocal and positive to the effect that there is no mention of the NIC on the counterfoil; or that the thumb impression of the voters are not affixed thereto; or the NIC mentioned on the counterfoil is bogus meaning thereby that such card has not been issued by NADRA; or that the NIC numbers do not tally with the thumb impressions; or the thumb impressions do not correspond with the NIC numbers; or that the counterfoils bear the thumb impression of one person; or more than one person has affixed his thumb impression on a number of counterfoils, the learned counsel could possibly have some room to argue that in the above scenario such votes as per the quantum of these kind of counterfoils could be excluded from the count (note:- we are however leaving this aspect of the case open to be considered in some other appropriate matter). However as this is not the position in the instant case, thus such votes (i.e. non-verified) C.A.651 of 2014 -: 3 :- cannot be declared to be bogus and excluded from the count altogether, so as to hold that the election result was procured by the respondent through illegal and corrupt practices or that there has been non- compliance of the provisions of the Act or the Rules made thereunder, thereby bringing the case within the purview of Section 70(a) or even (b) of the Act. No case for interference has been made out. Dismissed accordingly. JUDGE JUDGE JUDGE Islamabad, the 7th January, 2016 Not Approved For Reporting Waqas Naseer/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal Nos.653 to 656 of 2014 (Against the judgment dated 10.03.2014 passed by the High Court of Peshawar in Civil Revision Nos.275, 281, 284 & 285 of 2003) Zilla Muhammad and others (in C.A.653/2014) Saidi Gul (deceased) through LRs (in C.A.654/2014) Sher Khan (deceased) through LRs & others (in C.A.655 & 656/2014) …Appellant(s) Versus Kifayat Ali (in all cases) …Respondent(s) For the Appellant(s): Mr. Zia-ur-Rehman, ASC Mr. Nasir Mehmood, ASC Mr. Mehmood A. Sheikh, AOR For the Respondent(s): Mr. Khalid Mehmood, ASC Mr. M. Ijaz Khan Sabi, ASC Date of Hearing: 06.12.2021. ORDER Qazi Muhammad Amin Ahmed, J.- Captioned appeals, arisen out of consolidated judgment dated 10.3.2014 by a learned Judge-in-Chamber of the Peshawar High Court, overturns findings, recorded by a learned Civil Judge at Nowshera whereby he dismissed respondent’s four suits for possession through pre-emption, vide judgment and decree dated 23.9.2000, affirmed by a learned Addl. District Judge vide judgment and decree dated 1.11.2002. The suit land, comprising four pieces, situates within the revenue limits of Tehsil Lahor of District Swabi, KPK; sales were transacted through mutation Nos.419 dated 12.11.1995, 420 dated 22.11.1996, 556 dated 25.11.1996 and 484, 485 both dated 25.10.1997, respectively. Civil Appeal Nos.653 to 656 of 2014 2 What weighed with the learned trial Judge to non-suit the respondent has been his purported failure to perform Talab-i-Muwatibat within the contemplation of Section 13 of the Khyber Pakhtunkhwa Pre-emption Act,1987, besides one suit, hit by the period of limitation. 2. Learned counsel for the appellants contends that there was no occasion for the learned High Court to reverse well-reasoned findings, returned by the learned trial Judge, duly affirmed by the learned Appellate Court, leaving little space for the High Court to entertain a contra hypothesis so as to upset a finding of fact in exercise of its revisional jurisdiction. Concurrence of error was rectified, argued the learned counsel for the respondent while defending the impugned judgment. 3. Heard. Record perused. 4. Performance of Talab-i-Muwatibat is the core issue in three suits, instituted to pre-empt sales dated 12.11.1995, 22.11.1996 and 25.11.1996; in each case, Muhammad Nabi is informant to the plaintiff, latter a lawyer by profession; according to Muhammad Nabi, he acquired knowledge of first two sales on 1.2.1996 through one Shamsher son of Sher Bahadar and went all the way to District Courts Nowshera to lay information with the plaintiff, present in the Bar room alongside Muhammad Hanif Khan and Mian Abdul Karim Advocates, on 1.2.1996 at 11:00 a.m. however, in his cross-examination, while responding to a query as to when received information, he stated that "ﮯﮨ ﺖﻗو ﺎﮐ هرﺎﯿﮔ ہﮐ، ﺎﮭﭼﻮﭘ ﮟﯿﻣ ےرﺎﺑ ﮯﮐ ﺖﻗو ﮯﺳ ﯽﺳوﮍﭘ ﮯﻧ ﮟﯿﻣ Muhammad Nabi PW statedly learnt about the third sale again through the same informant on 5.3.1997 and once again went to District Courts Nowshera and informed the plaintiff at about 10:00 a.m; in cross-examination regarding the point of time, his explanation is as follows: ﺎﮭﭼﻮﭘ ﮟﯿﻣ ےرﺎﺑ ﮯﮐ ﺖﻗو ﮯﺳ ںﻮﯿﺳوﮍﭘ ﮯﻧ ﮟﯿﻣ" ہﮐ ﺎﮭﺗ ﺎﮩﮐ ﮯﮭﭽﻣ ﮯﻧ ںﻮﮭﻧا روا10 "ﮯﮨ ﺖﻗو ﺎﮐ ﮯﺠﺑ The learned Civil Judge viewed statement of Muhammad Nabi PW as inherently flawed and discrepant, given the inter se distance between the village and District Courts Nowshera, judicially noticed by him as 70 miles, though not specifically mentioned in the evidence. On an independent analysis, statement of Muhammad Nabi fails to inspire confidence for reasons more than one; after having acquired knowledge at 11:00 a.m. in the village, regardless of the inter se distance, he needed a speed of light to reach District Courts Nowshera, at the same point of time, a capacity that he certainly lacked. Similarly, disclosure Civil Appeal Nos.653 to 656 of 2014 3 of sale on the three occasions through the same source i.e. Shamsher son of Sher Bahadar and conveyance of information to the plaintiff in the Bar room of District Courts in Nowsher presents a story that may not find a prudent buyer; a script, poor by all means, resting upon a rare coincidence that seldom occurs, thus, the view taken by the learned Civil Judge, affirmed by the learned Appellate Court on factual plane, being a possible view, does not appear to be unrealistic or bombastic and as such does not constitute an error or irregularity nor can be equated with non-reading or misreading of evidence, amenable to interference by the High Court in exercise of its revisional jurisdiction. The fourth sale was transacted by the respondent on 12.5.1995 through a Court decree dated 10.12.1995, he was judicially declared to be owner in possession of the suit land w.e.f. 12.5.1995 and, thus, the suit ought to have been filed within a period of 120 days therefrom as is mandated by clause (c) of section 31 of the Act ibid and, thus, both the learned trial Judge as well as the first Appellate Court were well within the remit of law to non-suit the plaintiff for his failure to perform Talab- i-Khasumat within the prescribed period of time. See Muhammad Nazeef Khan Vs. Gulbat Khan and others (2012 SCMR 235) and Mst. Rooh Afza Vs. Aurangzeb and others (2015 SCMR 92). Appeals are allowed; impugned judgment dated 10.03.2014 is set aside; judgments and decrees passed by the trial court, upheld by the first Appellate Court are restored. No order as to costs. Judge Judge Announced in open Court on 30.12.2021 at Islamabad Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE UMAR ATA BANDIAL Civil Appeal No.654 of 2007 (On appeal from the judgment dated 25.07.2006 passed by the High Court of Balochistan, Quetta in CP 788 of 2005) Khushdil Khan Malik …Appellant VERSUS Secretary, Ministry of Defence Rawalpindi Cantt. and others ..Respondents Appellant: In person For respondents No.1-2: Mr. Waqar Rana, Addl. A.G. Pakistan For respondent No.3: Mr. Arshad Ali Chaudhry, ASC/AOR Date of hearing: 29.5.2015 JUDGMENT Dost Muhammad Khan, J.— Leave to appeal was granted to the appellant on 14.02.2007 inter alia on the following grounds:- “After hearing the learned counsel for the petitioner, we are inclined to grant leave inter alia on the questions as to whether petitioner is an employee of the attached department of the Defence under the direct control of Ministry of Defence, Government of Pakistan, and was entitled to become a Member of Defence Housing Authority as noted in the order dated 18.08.2006.” 2. The grievance of the appellant is that, the Defence Housing Authority, Islamabad decided to accommodate its Defence Employees and those of the attached departments by allotting them residential CA 654/2007 2 plots but through balloting. The appellant being a member of the attached department, serving in the Directorate of Education of the Garrison, under the direct control and management of the respondent, submitted an application to respondent No.3 when, by then he was posted as Regional Director, Human Rights in Balochistan, attached to Law, Justice & Human Rights Division but on deputation basis from the Ministry of Defence (Directorate of Education Garrison) and was falling within the category-J. On deposit of membership fee, he became the member of the Society/Authority. 3. Subsequently, amendment was made in the category-J, in which the appellant had applied, vide letter dated 18.05.2005 by respondent No.3 where the words, “and officers of Defence Division” were also added, making them all eligible for the allotment of the plots. 4. The balloting as was scheduled, took place and the appellant was found successful in the process. He also deposited the initial seed/advance installment of money with respondent No.3 however, without any show-cause notice to the appellant, the plot allotted to him on 10.06.2005 was cancelled on 24.10.2005 on fallacious ground/plea that the appellant was not paid emoluments from the Defence Estimates. 5. The appellant challenged the validity of this order in the High Court of Balochistan at Quetta through Constitution Petition No.788 of 2005, however, without applying judicial mind with deep thought to the legal issue, involved herein, his petition was dismissed. CA 654/2007 3 In the instant case, the Ministry of Defence/Defence Department was represented by the learned ASC and also by Mr. Waqar Rana, Additional Attorney General. 6. The decisive queries made from the respondent’s counsel were, as to whether the Directorate of Education of Garrison is not the attached department of the Ministry of Defence, however, on many occasions and hearings, the learned ASC representing the respondents could not furnish convincing and plausible explanation. 7. It is a fact, undeniable in nature that the appellant is serving in the attached department of the Ministry of Defence. The wholesome budget is allocated to the Ministry of Defence and is placed at the disposal of Military Accountant General (MAG) for further disbursement on defence expenditures and other emoluments of the Armed Forces of Pakistan and those civilian officials, who are serving in the departments attached to the Defence Services. 8. The department of the appellant is under the administrative control and management of the Ministry of Defence/Defence Directorate. In this regard, we have an ironclad proof on record in the shape of letter of the General Headquarters, IGT & E’s Branch, PGEI (C/G)Dte, Sir Syed Road, Rawalpindi, issued to the Manager Press, Printing Corporation of Pakistan, University Road Karachi-5, copies of which were forwarded to all the relevant officers of the Defence. Through this letter, the appellant was promoted from BPS-18 to BPS-19 w.e.f. 30.03.2001 and was posted to FG Sapper Boys High School, Risalpur. On the foot of the letter, the issuing authority is Col. Hameed Sarwar. This letter clinches the entire CA 654/2007 4 controversy with regard to the status of the appellant beyond any shadow of doubt that he is serving a department attached to the Defence Services and is not under the administrative control and management of the Education Ministry or Directorate of Education of Federal Government. 9. Learned Additional Attorney General and the learned ASC for respondent No.3 repeated their inapt arguments and made crude attempts to show that being a civilian officer, albeit serving in the Education Corp of the Garrison, the appellant was not at all belonging to the Defence Services and was not covered by that definition, entitling him to become member of the Defence Housing Authority, much less getting plot in the scheme. 10. It is an admitted fact that the Defence Services is allocated separate budget to meet the expenditures incurred directly on the Defence Services and allied/ancillary wings/attached department. 11. The letter, earlier referred to, is a clear manifestation of fact that the appellant, for all intents and purposes, belongs to Education Corp of the Garrison and is under the effective administrative control and management thereof, otherwise the order of his promotion, contained in the letter ibid, would have been issued by the Ministry of Education, Government of Pakistan and not by Col. Incharge in active service of the Defence Services. Therefore, it is held that the appellant is competently a member of the Defence Housing Authority and is covered by the definition given in the relevant provision of the Defence Housing Authority Ordinance and Public Advertisement Notice, issued in the Press on 21st April, 2005. CA 654/2007 5 12. The plea of the appellant is getting further fortification from the letter of approval of the Establishment Division, communicated through the Ministry of Defence, Rawalpindi vide No.2496/D-18/96 dated October 8, 1996. The appellant is undisputedly paid from the Defence Estimates through internal arrangements of the Defence Services and in this way, he has no nexus or any connection with regard to his service and other emoluments and benefits with the Ministry of Education, Government of Pakistan. 13. The concise statement/synopsis filed by the respondents is of no help to the replying respondents in view of what we have held above on the basis of established facts and the law applicable to the same. 14. There is another aspect of the matter, which shall not go unnoticed. In this case, the appellant was successful in the balloting process and got a plot; he deposited the seed money/installment, therefore, a decisive step was taken in the matter and vested right had already accrued to the appellant, hence unilateral cancellation of plot from his name without any show-cause notice to him, clearly amounts to condemning him unheard against the principle of natural justice. By now, it is well embedded and well entrenched principle of justice that the principle of natural justice shall be construed to be a part and parcel of every Statute even if it does not contain it and shall apply to all proceedings, whether judicial or administrative in nature. In this regard, reliance may be placed on the case of Mrs. Anisa Rehman v. P.I.A.C and another (1994 SCMR 2232). Therefore, on this score too, CA 654/2007 6 the impugned order being against the principle of natural justice is not sustainable in law. 15. For the afore-mentioned reasons, this appeal is allowed; the impugned order of the respondents, dis-allotting the plot from the name of the appellant vide order dated 24.10.2005 is held to be in disregard of law, principle of Justice and without lawful authority and the same is set at naught. It is further directed that the same plot shall be restored/allotted to the appellant or if that is not possible then some other plot of the same market value and of the same size be allotted to the appellant, of course, subject to payment of the dues. Judge Judge Judge Announced in open Court on ………………at Islamabad Judge Nisar/* Not Approved For Reporting.

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MUSHIR ALAM CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 AND CIVIL PETITION NO.305 OF 2010 AND CIVIL APPEALS NO. 962, 1073, 1074, 1085 TO 1087, 1135, 1139 OF 2011 & 799 OF 2012, AND CIVIL PETITIONS NO.615, 819, 971, 1361, 1708, 1762, 2229 OF 2010 & 887 OF 2011 & 44, 710, 1128, 1129, 1146 & 1147 OF 2012 & CIVIL PETITION NO.965/2014 AND CIVIL APPEAL NO.23/2014. Shafique Ahmed Khan, etc. …Appellants/Petitioners VERSUS NESCOM through its Chairman, Islamabad, etc. …Respondents For the appellants/ Petitioners: Raja Muhammad Asghar, ASC. (CAs-654 to 656 of 2010) Nemo. (in CA-657/10, CPs-819 & 2229 /10, CPs. 971/10, 887/11, 1128,1129,1146, 1147/12) Mr. Ahmer Bilal Soofi, ASC, (in CAs-658-659/11, 330/10, 44/12, 23/14 & CP-965/14) Hafiz S.A Rehman, Sr. ASC (CA-735/10) Mr. Zaheer Bashir Ansari, ASC. (in CA-1243-1259/10) Mr. Abdul Rahim Bhatti, ASC (in CAs-962, 1073, 1139/11 & 799/12) CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 2 Mr. M. Shoaib Shaheen, ASC. (in CA-1074/11 & CP-1361/10) Kh. Azhar Rasheed, ASC.(in CAs-1085-1087/11) Mr. Muhammad Ilyas Mian, ASC(in CA- 1135/2011) Nemo. (in CP-615/10) Mr. Abdur Rehman Siddiqui, ASC (in CP 1708/10) In person. (CPs-305 /10) For the respondents: Mr. Ahmer Bilal Soofi, ASC. (CAs-654-657/10, 962, 1073, 1074, 1085-1087, 1135 &1139/11, 799/12 and CPs-971/10, 887/11, 710, 1128-1129, 1146-1147/12, 1708/10, CA 735/10 and CA 1243-1259/10) Muhammad Ilyas Mian, ASC. (in CA-658- 660/10) Mr. Shoaib Shaheen, ASC. (CP-615 & 819/10) Nemo. (in CPs-1361 & 1708/10) Hafiz S.A Rehman, Sr. ASC (in CP-965/14) Nemo. (in CP-887/11 & 44/12) Nemo. (in CP-2229/10 & CA-23/14) Mr. Abdul Raheem Bhatti, ASC (in CA 330/10) For PAEC: Mr. Zubair Abbas, Sr. Law Officer. Mr. Ather Abbas JE. Mr. Suhail Akram Malik, Sr. Law Officer. Commander Retd. Muhammad Hussain Shahbaz, Legal Directorate SPD. Ms. Alvina Alvi, NCA Mian Sami ud Din, NCA For the Federation: Mr. Sohail Mehmood, DAG. Date of hearing: 02.11.2015 (Reserved Judgment) J U D G M E N T EJAZ AFZAL KHAN, J.- The only controversy articulated at the bar by the learned ASCs for the parties is whether the Rules framed under Section 15 of the National Command Authority Act, 2010 (hereinafter referred to as the Act) are statutory or otherwise. Mr. Ahmer Bilal Soofi, learned ASC appearing on behalf of the National CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 3 Command Authority contended that the Rules framed under Section 15 of the Act cannot be treated as statutory as they have not been approved by the Federal Government. There are as many as two judgments of this Court rendered in the cases Rector National University of Science and Technology (NUST) Islamabad and others. Vs. Driver Muhammad Akhtar (Civil Appeal No.495 of 2010 decided on 28th April, 2011) and Muhammad Zubair and others Vs. Federation of Pakistan thr. Secretary M/o Defence and others (Civil Petition No.1563/2013 decided on 26.2.2013) holding them statutory but they are essentially per incuriam inasmuch as the judgments interpreting the provisions of other enactments which are in pari materia with Section 15 of the Act have not been considered. Such precedents, the learned ASC contended, are also sub silentio inasmuch as they have not been fully argued and the judgments interpreting the provisions of the other enactments which are in pari materia with Section 15 of the Act have not been cited. 2. The learned ASC by referring to the cases of Muhammad Tariq Badr and another. Vs. National Bank of Pakistan and another (2013 SCMR 314), Zarai Taraqiati Bank Limited. Vs. Said Rehman (2013 SCMR 642), Pakistan Defence Officers Housing Authority and others. Versus. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Shoua Junejo. Versus. PIA (2012 SCMR 1681), Muhammad Nawaz. Versus. Civil Aviation Authority and others (2011 SCMR 523), Pakistan Telecommunication Co. Ltd. through Chairman. Versus. Iqbal Nasir (PLD 2011 SC 132), Abdul Rashid Khan. Versus. Registrar, Bahauddin Zakaria University, Multan (2011 SCMR 944), Pakistan International Airline Corporation. Versus. Tanweer-ur-Rehman, (PLD 2010 SC 676), State Bank of Pakistan. Versus. Muhammad Shafi (2010 SCMR 1994), CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 4 Asad Bashir. Versus. Chairman Board of Intermediate and Secondary Education, Lahore and 2 others (2006 PLC (CS) 110), Pakistan Red Crescent Society. Versus. Syed Nazir Gillani (PLD 2005 SC 806), Zia Ghafoor Pirach. Versus. Chairman, Board of Intermediate and Secondary Education, Rawalpindi (2004 SCMR 35), Muhammad Ishaq Waheed Butt. Versus. Chairman, Bank of Punjab (2003 PLC (C.S.) 963), Pakistan International Airlines Corporation (PIAC). Versus. Nasir Jamal Malik (2001 SCMR 934), Ijaz Hussain Suleri. Versus. The Registrar and another, (1999 SCMR 2381), Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad. Versus. Khalida Razi (1995 SCMR 698), Chairman WAPDA. Vs. Jameel Ahmed (1993 SCMR 346), Raziuddin. Versus. Chairman, PIA CORPN. (PLD 1992 SC 531), Karachi Development Authority. Versus. Wali Ahmed Khan (1991 SCMR 2434), Abdul Ghaffar. Versus. WAPDA (1990 SCMR 1462), Sindh Road Transport Corporation Chairman. Versus. Muhammad Ali G. Khohar (1990 SCMR 1404), Principal Cadet College. Versus. Muhammad Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain. Versus. ADBP (PLD 1984 SC 194), Muhammad Yusuf Shah. Versus. Pakistan International Airlines Corporation (PLD 1981 SC 224) and R.T.H. Janjua. Versus. National Shipping Corporation (PLD 1974 SC 146); contended that jurisdiction of the High Court cannot be invoked under Article 199 of the Constitution of Islamic Republic of Pakistan where the Rules are non-statutory. Learned ASC by referring to a two-member bench judgment rendered in the case of Muhammad Nawaz. Vs. Civil Aviation Authority and others (2011 SCMR 523) contended that Rules made without the intervention and approval of the Federal Government cannot be termed as statutory, therefore, their violation is not amenable to the constitutional jurisdiction of the High Court. CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 5 The learned ASC by referring to another two-member Bench judgment rendered in the case of State Bank of Pakistan. Vs. Muhammad Shafi (2010 SCMR 1994) contended that where by virtue of an amendment in Section 54 of the State Bank of Pakistan Act, 1956, the words “subject to the approval of the Federal Government were omitted” the Rules framed after the said amendment in the Section were not treated as statutory. The learned ASC by referring to a three-member Bench judgment rendered in the case of Pakistan Red Crescent Society. Vs. Syed Nazir Gillani (PLD 2005 SC 806) contended that the Rules framed by the Red Crescent Society under the rulemaking powers without the intervention of the Federal Government were held to be non-statutory, therefore, their violation was not amenable to the writ jurisdiction of the High Court. The learned ASC by referring to a three-member Bench judgment rendered in the case of Sindh Road Transport Corporation Chairman versus Muhammad Ali G. Khokhar (1990 SCMR 1404) contended that Sindh Road Transport Corporation Service Rules 1971 were treated as non-statutory as they were not approved by the Authority delegating such power notwithstanding language used in the rulemaking provision of the Ordinance was almost similar to the language used in Section 15 of the Act, therefore, the judgments rendered in the cases of Rector National University of Science and Technology (NUST) Islamabad and others. Vs. Driver Muhammad Akhtar and Muhammad Zubair and others Vs. Federation of Pakistan thr. Secretary M/o Defence and others (Supra) have no binding or even persuasive force. The judgments rendered earlier on similar proposition, the learned ASC maintained, could not be ignored by subsequent benches with the same number of Judges. The learned CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 6 ASC to support his contention placed reliance on the cases of Pir Bakhsh represented by his legal heirs and others Vs. The Chairman, Allotment Committee and others (PLD 1987 SC. 145), Multiline Associates Vs. Ardeshir Cowasjee and two others (PLD 1995 SC 423) and Chaudhry Muhammad Saleem Vs. Fazal Ahmad and two others (1997 SCMR 315). The learned ASC next contended that while enacting Section 15 of the Act, the legislature was aware of the dicta and trend of the Supreme Court interpreting the provision of different enactments which are in pari materia with Section 15 of the Act, otherwise it would have phrased the section differently. Restraint on the part of the Government, the learned ASC argued, to gazette the Rules in terms of Section 20A of the General Clauses Act would also show as to what status the legislature intended to assign to the Rules. Approval of such Rules, the learned ASC contended, by the Federal Government to give them statutory attire in view of Rule 14 of the Rules of Business is also a must, therefore, in the absence of such approval they cannot be treated as statutory. The scheme of the Act, the learned ASC maintained, also shows that the legislature intended to make it autonomous on all accounts. Sections 9 and 21 of the Act, the learned ASC maintained, further show that the legislature wanted to make the orders of the Authority immune from justiciability. The learned ASC while giving finishing touch to his submissions contended that the purpose behind conferring full autonomy on NCA was to enable it to have effective control over its activities and maintain secrecy of its sensitive programmes in line with Pakistan’s International Legal Obligation, in particular UNSC Resolution 1540, which could not have been achieved otherwise. CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 7 3. As against that learned ASCs appearing from the other side contended that when it has been held in the cases of Rector National University of Science and Technology (NUST) Islamabad and others. Vs. Driver Muhammad Akhtar and Muhammad Zubair and others Vs. Federation of Pakistan thr. Secretary M/o Defence and others (supra) that Rules framed under Section 15 of the National Command Authority Act, 2010 are statutory, the controversy has been set at rest, therefore, another exercise to determine their status is not called for. The learned ASC by referring to Section 3 of the Act contended that where the Chairman of the Authority is the Prime Minister and its other Members include, besides Minister for Foreign Affairs, Minister for Defence, Minister for Finance, Minister for Interior, Chairman Joint Chiefs of Staff Committee, Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff, approval of the Rules by any other Ministry is hardly called for. The learned ASC next contended that when the provision of this Act by virtue of its provision contained in Section 21 has been given overriding effect over any other law for the time being in force in general and the Civil Servants Act, 1973, Pakistan Atomic Energy Commission Ordinance, 1965, Pakistan Space and Upper Administration Commission Ordinance, 1981, or any other law or Rules made thereunder in particular, it has to reign supreme. He then contended that when the very purpose of making Rules is to carry out the purposes of the Act it would be a contradiction in terms to shear them of statutory status. The learned ASC next contended that publication of a statutory instrument or a notification in the official gazette is not mandatory in every case, therefore, its non-compliance cannot rob the instrument or the notification of its statutory force. Reliance was placed on the cases CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 8 of Saghir Ahmed through legal heirs Vs. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 SC 261). The learned ASCs lastly contended that where the Rules prescribe the terms and conditions of service and provide safeguards against their violation, they are statutory by all means and have to be treated as such. 4. We have anxiously considered the submissions of the learned ASCs for the parties, their possible import, implication and amplitude and have also gone through the statutes and the case law cited at the bar. 5. Before we appreciate the arguments of the learned ASCs for the parties and answer the questions so raised, it is worthwhile to see the object of the National Command Authority Act, 2010 which is fully enunciated in its preamble and thus reads as under :- “THE NATIONAL COMMAND AUTHORITY ACT, 2010 ACT NO.V OF 2010 An Act to provide for the constitution and establishment of National Command Authority WHEREAS, it is necessary and expedient to establish an Authority for complete command and control over research, development, production and use of nuclear and space tec hnologies and other related applications in various fields and to provide for the safety and security of all personnel, facilities, information, installations or organizations and other activities or matters connected therewith or ancillary thereto. It is hereby enacted as follows:- 1. Short title, commencement, application and extent.- (1) This Act may be called the National Command Authority Act, 2010. CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 9 (2) This Act shall come into force at once and shall be deemed to have taken effect on the 13th December, 2007. (3) It extends to the whole of Pakistan and shall apply to any person who commits any offence under this Act, wherever, he may be. Section 2 of the Act defines the key expressions of the Act which reads as below :- 2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,- (a) “Authority” means the National Command Authority established under Section 3 of this Act; (b) “Chairman” means the Prime Minister of the Islamic Republic of Pakistan; (c) “employee” means any official, employee etc. whether in the service of the Authority or the Strategic Organizations, serving or retired and includes those on deputation or secondment within Pakistan or abroad, and those studying abroad; (d) “Strategic Organization” means such body notified by the Authority to be a Strategic Organization and includes Pakistan Atomic Energy Commission Dr. A.Q. Khan Research Laboratories (KRL) and Space and Upper Atmosphere Research Commission; and (e) “prescribed” means prescribed by Rules under the Act. 6. Section 3 of the Act deals with constitution and establishment of the Authority which reads as under :- “The Chairman of the Authority shall be the Prime Minister of Pakistan. (4) The other members of the Authority shall be the,- CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 10 (a) Minister for Foreign Affairs (b) Minister for Defence (c) Minister for Finance (d) Minister for Interior (e) Chairman Joint Chiefs of Staff Committee; (f) Chief of Army Staff; (g) Chief of Naval Staff; and (h) Chief of Air Staff.” 7. Section 7 deals with the powers and functions of the Authority which reads as under :- “Powers and functions of the Authority.- The Authority shall have the powers to perform all such functions that are necessary to implement the objects and purposes of this Act which include, without being limited, to the following, namely:- (a) to exercise complete command and control over all nuclear and space related technologies, systems and matters; (b) to supervise, manage and co-ordinate the administration, management, control and audit of budget, programmes and projects etc., of the Strategic Organizations; (c) to authorize undertaking of specialized scientific and technological work; (d) to prescribe specific terms and conditions of the employees including but not limited to, appointments, removals, promotions, transfers, integrity and reliability assessment and other related matters; (e) to create classification amongst employees based on the sensitivity of the functions, nature of assignment, security considerations and in the interest of security of Pakistan; (f) to take measures regarding employees in respect of their movement, communication, privacy, assembly or association, in the public interest or in the interest of integrity, security or defence of Pakistan or friendly relations with foreign states and public order; (g) to place such restrictions and limitation on the employees that are necessary in the interest of the confidentiality of the functions, assignments, CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 11 jobs etc., being performed by the said employees or the class of employees; (h) to ensure security and safety of nuclear establishments, nuclear materials and to safeguard all information and technology relating to said matters; (i) to ensure security and safety of establishments and facilities etc. of the Strategic Organizations; (j) to render security and ensure safety of serving or retired employees or any other person; (k) authorize possession and use of firearms to security force personnel who are in the service of the Authority; (l) to take actions, issue appropriate orders and instructions as it may deem fit or in order to advance or achieve the purposes of its establishment and in order to facilitate the performance of actions or functions that are incidental and ancillary thereto; (m) take implementing measures and assist the Federal Government pursuant to any obligation on Pakistan relating to non-proliferation, safety, security, accidents, terrorism and any other related matters; (n) to take measures in respect of the movement, communication and interaction etc., of any employee or person who is suspected of an attempt to commit an offence under this Act; (o) to carry out the functions of fact finding, inquiry, investigation prosecution etc., of offences under the Act and to that end authorize any official of the Authority or entrust any or all of the said functions to any official outside the Authority partly or fully, as the case may be; (p) to declare application of any other existing law, provisions of law, Rules, Regulations etc., to its employees, procedures, establishment, sites, building, lands, assets, equipments, partly or fully, as the case may be; (q) to acquire property movable or immovable in its own name or in the name of a designated official or a Strategic Organization; and (r) to enter into agreements, contracts and other like transactions; CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 12 8. Section 9 of the Act, deals with the employees of the Authority and those who shall be deemed to be its employees, their terms and conditions of services and how shall they be categorized. It thus reads as under:- “9. Employees of Authority.- (1) Notwithstanding anything contained in any other law, judgment of any court or tribunal for the time being in force or any procedure etc., hitherto followed by the Authority, all employees and officials working in the Strategic Organizations, upon notification of the said Organizations under Section 8, shall with immediate effect be deemed to be the employees in the service of the Authority: Provided that no employee shall be treated on terms and conditions less favorable to the ones which he was availing as per his terms and conditions of employment. (2) The Authority shall regulate all the matters relating to terms and conditions of the service of the employees in the service of the Authority, including their appointment and removal, promotion, transfer, integrity assessment, reliability, security clearance, and other related matters: Provided that the employees working in the service of the Authority who are subject to the Pakistan Army Act, 1952 (XXXIX of 1952), Pakistan Air Force Act, 1953 (VI of 1953) and Pakistan Navy Ordinance 1963 (XXXV of 1963), shall also be governed by this Act and Rules made thereunder: Provided further that the Pakistan Army Act, 1952 (XXXIX of 1952) shall be made applicable in respect of employees in the service of the Authority to whom Section 2 of the said Act applies or employees in the service of the Authority for whom a notification under Section 8 of the aforesaid Act is issued. (3) The Authority shall categorize the nature of service of the employees the basis of the sensitivity of the functions and then shall frame Rules, criterion, assessment basis for each set of employees and no employee shall have a vested right for any post, assignment, emoluments, promotion, privileges, transfer, deputation etc.” CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 13 Section 15 of the Act deals with making Rules for carrying out the purposes of the Act which reads as under :- “15. Power to make Rules.- The Authority may make Rules for carrying out the objectives of this Act.” 9. A glance at the preamble shows that the Act has been passed to provide for the constitution and establishment of the National Command Authority for complete command and control over research, development, production and use of nuclear and space technologies and other related obligations in various fields and to provide for the safety and security of all personnel, facilities, information, installations or Organizations and other activities or matters connected therewith or ancillary thereto. Section 2 of the Act besides defining Authority etc., also defines the expression ‘prescribed’ which means prescribed by Rules under the Act. Section 3 deals with the Constitution and establishment of the Authority. Section 7 deals with the powers and functions of the Authority, Section 9 deals with the terms and conditions of the employees of the Authority and those who shall be deemed to be its employees, while Section 15 of the Act deals with the power to make Rules. The Rules are made for carrying out the objectives of the Act. The legislature in its wisdom conferred rule making power on the Authority. There is not even a single syllable in the Section alluding to the intervention or the approval of the Federal Government and rightly so because here in this case the legislature did not provide for two sets of Rules; one for external and the other for internal management. The legislature in its wisdom provided for one set of Rules encompassing all the ins and outs of the Authority as are outlined by Sections 7, 8, 9 and 15 of the Act. Since all the matters CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 14 they deal with are of crucial importance, no division or distinction of external or internal management has been made. The rule making power in this case is exercised by the Authority consisting of Chairman and 8 other Members enumerated in Section 3 of the Act. It is the Authority which prescribes specific terms and conditions of the employees including but not limited to, appointments, removal, promotions, transfers, integrity and reliability and other related matters under Section 8 of the Act. It is also the Authority that creates classification among the employees based on the sensitivity of the functions, nature of assignments, security consideration and in the interest of security of Pakistan and takes measures regarding employees in respect of their movement, communication, privacy, assembly or association in the public interest or in the interest of integrity, security or defence of Pakistan or friendly relations with foreign States and public order. All these functions being envisioned by Sections 7 and 9 are essentially statutory. The Rules prescribing these functions cannot be short of statutory. They thus do not need intervention or approval of the Federal Government as the Authority itself is the Federal Government incarnate if we see it in the context of the personages adorning it. Not only that the Authority also regulates the matters relating to the terms and conditions of service of the employees in the service of the Authority including their appointment and removal, promotion, transfer, integrity assessment, reliability, security clearance and other related matters under sub- Section 1 and 2 of Section 9 of the Act. The framework for doing all this is provided by the Rules. The Rules partaking so much of the statute cannot be non-statutory by any interpretation of the word. It CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 15 was against this background that this Court in the case of Muhammad Zubair and others Vs. Federation of Pakistan thr. Secretary M/o Defence and others (supra) while dealing with the Rules framed under Sections 7, 9 and 15 of the Act held as under :- “5. We do not find ourselves in agreement with the ground on which the petitioners were non-suited namely, that their constitution petition was not maintainable as the Authority did not have statutory Rules. The petitioners were not seeking violation of their terms and conditions of service. Their petition was in the nature of quo warranto questioning reemployment of the respondents. Be that as it may, we have noted that the National Command Authority Employees Service Rules 2011 are statutory in nature as they have been framed by the Authority in exercise of its powers conferred upon it under Section 7 read with Section 9 (2) and further read with Section 15 of the National Command Authority Act, 2010. Such Rules making powers have been exclusively conferred upon the Authority and are not subject to approval of the Federal Government or any other authority. The Rules expressly make provision for reemployment of its retired officers in exceptional circumstances. Such power was conferred on the Authority in view of the nature of the work that is carried out by the different Organizations under the Authority, involving research by scientists, the utilization of whose expertise or experience may be useful or vital for any project or task on which they were working prior to retirement. Neither we are called upon nor shall we endeavor to examine the work that the respondents are engaged in Additionally the direction given by this Court in Suo Motu No. 24 of 2010 essentially related to civil servants and the same also did not completely prohibit reemployment.” CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 16 In the case of Rector National University of Science and Technology (NUST) Islamabad and others Vs. Driver Muhammad Akhtar rendered in Civil Appeal No.495 of 2010 decided on 28.04.2011, this Court held as under:- “4. The learned counsel produced a copy of the statutes called the National University of Sciences and Technology (Enforcement of Academic, Service, and Financial Matters) Statutes, 2005, made by the board of Governors in exercise of the powers conferred upon it by sub-section 2 of section 21 of the University of Sciences and Technology Act, 1997, in order to “regulate the creations of institutes and faculties etc and for enforcement of academic, service, appointment, discipline and financial matters”. Section 21 of the Act provides for making of statutes to regulate, inter alia, service, pension and fringe benefits and other terms and conditions of services of the employees of the University. Sub-section 2 provides the procedure that “Draft of the statutes shall be proposed by the Executive Committee for approval by the Board which may approve them or refer them back for reconsideration”. Sub-section 3 further mandates that “no statute shall be valid until it has been approved by the Board/Chancellor.” Section 21 neither requires approval of the Government of the proposed statues or its notification. It prescribes its own procedure. The draft statutes become enforceable upon its approval by the Board of Governors. The case of Chairman, State Life Insurance Corporation v Hamayun Irfan (ibid) is clearly distinguishable as there the Regulation making power conferred by the statute on the Corporation required the CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 17 previous approval of the Central Government, followed by notification of the Regulation in the official gazette. The Court was, therefore, interpreting the particular rule making power, while holding and as a matter of fact such requirements were fulfilled and that the Regulations were statutory. We have no doubt in our minds that the National University of Sciences and Technology (Enforcement of Academic, Service, and Financial Matters) Statutes, 2005, are statutory in nature as they were framed in accordance with the procedure prescribed in the statute. Since this was the only ground on which leave was granted, the appeal is dismissed”. 10. A parallel was drawn between the Rules framed under Section 5 of the Pakistan Red Crescent Society Act, 1920 and the Rules framed under Section 15 of the Act on the strength of the judgment rendered in the case of Pakistan Red Crescent Society (supra) but this parallel, to say the least, is misconceived on the face of it. The reason is that Pakistan Red Crescent Society has its genesis in Geneva Convention which was initially held on October 26th 1863 followed by the Hague Convention. The Society was universally recognized for taking care of the sick and wounded without any hindrance. Power was given to the managing body under Section 5 of the Red Crescent Society Act to make Rules for the management, control and procedure of the society but what was the status of the society and how far could it be treated as a person performing functions, in connection with the affairs of the Federation was elaborately dealt with in the case of Ziaullah Khan Niazi. Vs. CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 18 Chairman Pakistan Red Crescent Society (2004 SCMR 189) in the words reading as follows :- “6(5). We have heard the learned counsel for the parties at length. We find that the respondent-Society was constituted by the provisions of Section 2 of the Pakistan Red Crescent Society Act (XV of 1920) (hereinafter referred to as the Act). Its operational area covers the whole of Pakistan. The President of Islamic Republic of Pakistan is the President of the Society as provided by Section 3 of the Act. By Section 4 of the Act it is a body corporate having perpetual succession and a common seal with power to hold and acquire property, movable and immovable and may sue or be sued by the name of the Society. As enumerated in the General Principles of Society. Its object and principal aims include the prevention and alleviation of the suffering with complete impartiality both at national and international level and to render voluntary aid to the sick and wounded of the armed forces in times of war in accordance with spirit and conditions of the Geneva Conference and the Treaties and Red Cross to which Pakistan has given its adhesion. The Act, being an existing law was amended by the Central Legislature/Parliament from time to time. The Society cannot be treated as person performing functions in connection with the affairs of the Province. Therefore, the employees of the Society cannot be treated as civil servants of the Province of Punjab, by any stretch of imagination. They cannot invoke the jurisdiction of the Punjab Service Tribunal merely on the ground that they are employed in the provincial CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 19 branch of the society. The impugned judgment of the Tribunal suffers from defect of jurisdiction. “ 11. In the case of Pakistan Red Crescent Society. Vs. Nazir Gillani (supra), this Court after examining the status of the society and the managing body constituted thereunder, held as under :- “9. A careful perusal of the said Rule would indicate that the “Managing Body” is competent to frame Rules for the management, control and procedure of the Society. The rulemaking power has been conferred upon the Managing Body in an unambiguous manner and from whatever angle it is interpreted no role for framing of Rules has been assigned to the Government and moreso no such role has been reserved by the Government for itself. It is worth mentioning that no sanction or approval from any quarter including the government is required for framing of such Rules, which shall be framed by the Managing Body alone. It can thus safely be inferred that the powers qua rulemaking exclusively fall within the jurisdictional domain of Managing Body and the ultimate conclusion would be that the Rules or Regulations framed by the Managing Body are non-statutory. It is well settled by now that “ where the Government while setting up a corporation does not reserve to itself the power to regulate the terms of service of the Corporation’s employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the corporation by empowering it to frame Rules or Regulations in respect thereof without the Government’s intervention, then the Corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 20 with the terms and conditions prescribed by it. In such case neither a suit nor a writ petition for the relief of reinstatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable. However, where the terms and conditions of service of an employee of a statutory Corporation is regulated by a statute or statutory Rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory Rules will give him a cause of action to file a suit or a writ petition for the relief of reinstatement, as the power of the Corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable. For the purpose of deciding the factum, whether the Rules or the Regulations of a Corporation have the statutory force, the determining factor will not be their form or name, but the source under which they have been framed.” (Emphasis provided) Chairman WAPDA v. Jamil Ahmed (1993 SCMR 346), Muhammad Yousuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224)” The above quoted paragraph draws a line of distinction between the rules which are statutory and those which are otherwise. In the former case, the legislature while empowering the rule making body to make rules, prescribed the terms and conditions in the parent statute. In the latter case, the Government while setting up the corporation does not reserve for itself the power to regulate the terms of service of the Corporation’s employees under the relevant statute nor does it prescribe any condition but leaves it to the discretion of the corporation by empowering it to frame rules and CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 21 regulations in respect thereof without the Government’s intervention. In that case the Corporation is the sole arbiter in the matter of prescribing the terms and conditions of its employees and is competent to deal with them in accordance with the terms and conditions prescribed by it. It is in this state of things that neither a suit nor writ petition for the relief of reinstatement will be competent and the remedy of an employee for wrongful dismissal or termination of service will be a suit for damages. The case of the Authority falls in the first category as the legislature while empowering the Authority to prescribe terms and conditions, laid down certain parameters regulating and even restricting the power of the Authority as can be gathered from the provisions contained in Sections 7 and 9 of the Act. We, thus, don’t see any similarity between the rules made under the provisions of the Pakistan Red Crescent Society Act and those of the National Command Authority nor do we find any relevance of the judgment cited above to the case in hand. 12. An equation was also sought to be established between the Rules framed under Section 27 of the Civil Aviation Authority Ordinance, 1982 and the Rules framed under Section 15 of the Act on the strength of the judgment rendered in the case of Muhammad Nawaz. Vs. Civil Aviation Authority and others (supra) without appreciating the import of the language used in Sections 26 and 27 of the Ordinance and Sections 9 and 15 of the Act. Under Section 26 of the Ordinance, the Federal Government was empowered to make Rules for carrying out the purposes of the Ordinance, while under Section 27 of the Ordinance, the Authority was empowered to make Regulations to provide for the matters for which provision is necessary or expedient for carrying out the purposes of the CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 22 Ordinance. The scope of the Rules and the Regulations was distinctly defined and delineated in the relevant provision of the Act. The Rules made under Section 26, in view of their nature, were given statutory status while the Regulations made under Section 27 of the Act, in view of their nature, were treated as non-statutory. The question requiring determination in that case was whether service Regulations framed by the Authority in excess of powers conferred by the Authority under Section 27 of the Ordinance are statutory in nature or otherwise, but the Bench answered the questions by referring to the ratio of the dicta rendered in the cases of National Bank of Pakistan Vs. Manzoorul Hassan (1989 SCMR 832), Principal Cadet College, Kohat Vs. Muhammad Shoab Qureshi, Chairman WAPDA. Vs. Jameel Ahmed (1993 SCMR 346) and Pakistan Red Crescent Society Vs. Nazir Gillani, (supra) and dismissed the appeal. In the case of National Bank of Pakistan Vs. Manzoorul Hassan (supra) this Court having examined the nature of the Rules made under Section 32 of the National Bank of Pakistan Ordinance XIX held as under :- “4. It has been contended on behalf of the appellant that the Staff Service Rules not having been framed by virtue of the delegated rulemaking power vesting in the Central Board under Section 32 of the Ordinance, these Rules do not have effect as statutory Rules but are only instructions for the guidance of the Officers of the Bank in regard to the internal management of the Bank administration. There is no doubt that as previously observed, the National Bank of Pakistan (Staff) Service Rules purport to be Rules made by the Central Board under Bye-law 18 of the National Bank of Pakistan Bye-laws. However, in our view this fact makes no material difference CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 23 as to the effect of these Rules. The vires of the legal effect of the Rules cannot be judged by the mere form in which the Rules are framed or the title by which they are called. In substance and in legal effect the said service Rules for all intents and purposes are Bye-laws framed under Section 32 of the Ordinance. The legal requirements for giving effect to the subordinate legislation contemplated under Section 32 have been complied with in framing the Service Rules, inasmuch as, the Rules have been framed by the Central Board and it is not denied that the prior approval of the Central Government was accorded.” In the case of Principal Cadet College, Kohat Vs. Muhammad Shoab Qureshi (supra) this Court after drawing a comparison between Rules made under Section 17 and Regulations made under Section 18 of the West Pakistan Government Educational and Training Institutions Ordinance, 1960 held that Rules made under Section 17, in view of their nature, and area of efficacy are statutory while Regulations made under Section 18 of the Ordinance being in the nature of instructions for internal management are non-statutory. The same exercise was undertaken by this Court in the case of Chairman WAPDA. Vs. Jameel Ahmed (supra) by drawing a comparison between the Rules framed under Section 18 and the Regulations framed under Section 29 of the West Pakistan Water and Power Development Authority Act, 1958. What their comparison leads to is that Rules framed under Section 18 being in the nature of instructions for internal management are held to be non-statutory while the Regulations made under Section 29 of the Act with the approval of the Federal Government are held to be statutory. Reference was CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 24 also made by the learned ASC for the Authority to the case of Chief Manager State Bank of Pakistan Vs. Muhammad Shafi (2010 SCMR 1994) to project the proposition that any Rules or Regulations framed without the approval of the Federal Government could not have statutory status, notwithstanding the language used in Section 54 of the State Bank of Pakistan Act or any other Act or Ordinance is different from that of Sections 7, 9 and 15 of the National Command Authority Act which is sought to be termed as being in pari materia with the latter. But a survey of all these judgments would reveal that it is not the sole criterion which makes them statutory or otherwise. It is indeed their nature and area of efficacy which are determinative of their status. Rules dealing with instructions for internal control or management are treated as non-statutory while those whose area of efficacy is broader and are complementary to the parent statute in the matters of crucial importance are statutory. The Rules framed under Sections 7, 9 and 15 of the Act are of that genus or genera as they are not only broader in their area of efficacy but are also complementary to the parent statute in the matters of crucial importance. Yes, these Rules have not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory. Firstly because, approval of the Federal Government was not required either under Section 9 or Section 15 of the Act; secondly because, all those who call the shots were already on the board while framing the Rules and thirdly because, the scope and area of their efficacy not only stretch beyond the employees of the Authority but overarch many other strategic Organizations including nuclear and space related technologies systems and matters, as are mentioned in Section 8 and CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 25 9 of the Act. Had the Rules been framed for internal management and guidance of the officers of the Authority, the argument of the learned ASC for the Authority would have been tenable and the judgments cited at the bar would have been relevant. But when it is otherwise, as is illustrated above, we don’t think any of the arguments addressed and any of the judgments cited at the bar would support the proposition canvassed at the bar. The Rules so enacted and approved by the Authority with such personages on the board do not require another approval of yet another personage. 13. Granted that the legislature in its wisdom wanted to make the Authority autonomous on all accounts, but we don’t understand how does the statutory status of the Rules affect and undermine its autonomy. The argument that the scheme of Sections 9 and 21 of the Act shows that the legislature wanted to make the orders of the Authority immune from justiciability is vacuous both legally and logically as immunity of the orders of the Authority from justiciability would not only erode its autonomy, but tend to establish a reign of arbitrariness, which is a recipe for chaos and confusion. An Authority which has been established for higher objectives as is provided in the preamble and other provisions of the Act, cannot thrive and flourish, if its rules are not abided by or enforced on being violated. What good would they bring to the Authority when they are ornamental rather than statutory? What purpose would they serve when whim of anybody at the higher pedestal could replace them with impunity? Unaccounted exercise of unfettered powers is dangerous and even devastating for an institution of this type. Whether it is exercise of powers or exercise of discretion, better and CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 26 more uniform results in long term could only be achieved when it is structured and streamlined. Autonomy, independence and efficacy of the Authority are better attained with statutory rather non- statutory Rules. Effective control of Authority over its activities for maintaining secrecy of its sensitive programmes in line with Pakistan International Legal Obligation in particular UNSC Resolution cannot be affected by the statutory status of its rules. Employees whose terms and conditions of service are regulated by non-statutory rules are more exposed to mischief than those whose terms and conditions of service are regulated by statutory rules. It would rather be naïve and even myopic to equate the rules dealing with the matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal management and thereby deprive them of their statutory status. We, thus, hold that the Rules made by the Authority under Sections 7, 9 and 15 of the Act cannot be confused or even compared with the Rules and Regulations framed under other enactments without the approval of the Federal Government. The argument that the judgments rendered earlier on the similar proposition could not be ignored by subsequent benches with the same number of Judges is no doubt correct but we don’t think any of the judgments cited at the bar decided similar questions. The argument that approval of such rules by the Federal Government to give them statutory attire in view of Rule 14 of the Rules of Business is also a must, is misconceived because when the statute itself did not provide for the approval of the rules by the Federal Government, we cannot supply omission in the Act on the basis of Rule 14 of the Rules of Business. The argument that the judgments rendered in the cases of Rector National CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 27 University of Science and Technology (NUST) Islamabad and others. Vs. Driver Muhammad Akhtar and Muhammad Zubair and others Vs. Federation of Pakistan thr. Secretary M/o Defence and others (supra) holding the rules statutory are per incuriam or sub silentio is not correct as they have been rendered after due consideration of the statute and the case law. The judgments rendered in the cases of Muhammad Tariq Badr and another. Vs. National Bank of Pakistan and another (2013 SCMR 314), Zarai Taraqiati Bank Limited. Vs. Said Rehman (2013 SCMR 642), Pakistan Defence Officers Housing Authority and others. Versus. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Shoua Junejo. Versus. PIA (2012 SCMR 1681), Muhammad Nawaz. Versus. Civil Aviation Authority and others (2011 SCMR 523), Pakistan Telecommunication Co. Ltd. through Chairman. Versus. Iqbal Nasir (PLD 2011 SC 132), Abdul Rashid Khan. Versus. Registrar, Bahauddin Zakaria University, Multan (2011 SCMR 944), Pakistan International Airline Corporation. Versus. Tanweer-ur-Rehman, (PLD 2010 SC 676), State Bank of Pakistan. Versus. Muhammad Shafi (2010 SCMR 1994), Asad Bashir. Versus. Chairman Board of Intermediate and Secondary Education, Lahore and 2 others (2006 PLC (CS) 110), Pakistan Red Crescent Society. Versus. Syed Nazir Gillani (PLD 2005 SC 806), Zia Ghafoor Pirach. Versus. Chairman, Board of Intermediate and Secondary Education, Rawalpindi (2004 SCMR 35), Muhammad Ishaq Waheed Butt. Versus. Chairman, Bank of Punjab (2003 PLC (C.S.) 963), Pakistan International Airlines Corporation (PIAC). Versus. Nasir Jamal Malik (2001 SCMR 934), Ijaz Hussain Suleri. Versus. The Registrar and another, (1999 SCMR 2381), Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad. Versus. Khalida Razi (1995 SCMR 698), Chairman WAPDA. Vs. Jameel Ahmed (1993 SCMR CIVIL APPEALS NO.654 TO 660, 330, 735, 1243 TO 1259 OF 2010 etc. 28 346), Raziuddin. Versus. Chairman, PIA CORPN. (PLD 1992 SC 531), Karachi Development Authority. Versus. Wali Ahmed Khan (1991 SCMR 2434), Abdul Ghaffar. Versus. WAPDA (1990 SCMR 1462), Sindh Road Transport Corporation Chairman. Versus. Muhammad Ali G. Khohar (1990 SCMR 1404), Principal Cadet College. Versus. Muhammad Shoaib Qureshi (PLD 1984 SC 170), Anwar Hussain. Versus. ADBP (PLD 1984 SC 194), Muhammad Yusuf Shah. Versus. Pakistan International Airlines Corporation (PLD 1981 SC 224) and R.T.H. Janjua. Versus. National Shipping Corporation (PLD 1974 SC 146) being distinguishable are not germane to the case in hand. It thus follows that the rules framed under Sections 7, 9 and 15 of the Act are statutory on all accounts and by every attribute. They are thus declared as such. Let the appeals and petitions filed in the Court be listed before the Benches for decision in the light of this judgment. Chief Justice Judge Judge Announced in open Court at Islamabad on 21.01.2016. Judge ‘Not Approved For Reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB MR. JUSTICE YAHYA AFRIDI Civil Appeal Nos. 656 to 659 of 2011 (On appeal from the judgment/order dated 24.12.2010 of the High Court of Sindh, Karachi passed in WTRA No. 27 to 30/1998) Commissioner Inland Revenue Legal Division, RTO III Karachi …Appellant(s) VERSUS Mst. Yasmeen Bano (in C.A.656/2011) Munawar Ali (in C.A.657/2011) Mst. Tahira Bano (in C.A.658/2011) Ghulam Muhammad (in C.A.659/2011) …Respondent(s) For the appellant(s): Mr. Riaz Hussain Azam, ASC a/w Mansoor Akhtar, Chief Legal For the respondent(s): Mr. M. Saleem Thepdawala, ASC (in C.A. 656-657/2011) Date of Hearing: 24.02.2020 ORDER UMAR ATA BANDIAL, J. The point in issue is whether the limitation period prescribed for the exercise of revisional power by the Commissioner under Section 25(2) of the Wealth Tax Act, 1963 (“Act”) can be ascribed the limitation period laid down in Section 25(1) of the Act C.A. NO. 656 OF 2011 ETC. 2 which also provides for the exercise of revisional power by the Commissioner but under different conditions. The learned High Court has answered the foregoing proposition in the affirmative. On that basis the order of the Appellate Tribunal dated 16.10.1990 has been set aside. 2. The facts of the case pertain to the assessment year 1986-87. The initial assessment order was rectified by the Taxing Officer on 30.06.1987 upon the filing of a revised Return by the respondent-assessee. The liability of the respondent-assessee was thereby reduced. In exercise of Suo Moto power the Commissioner revised that assessment vide his order dated 29.03.1990 whereby the original assessment order was restored. The learned Tribunal, without citing any legal authority, held that the applicable limitation period for the Commissioner to do so was two years under Section 25(2) of the Act but did not interfere with the order dated 29-03-1990 passed by the Commissioner. 3. We have carefully considered the pleas of the learned counsel on the question: whether in the absence of a limitation period being prescribed under Section 25(2) of the Act, the said omission can be supplied with reference to the limitation period under Section 25(1) of the Act. At this stage it would be appropriate to reproduce C.A. NO. 656 OF 2011 ETC. 3 the provisions of Section 25(1) and Section 25(2) of the Act. “25. Powers of Commissioner to revise orders of subordinate authorities.— (1) The Commissioner may, either of his own motion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him, and may make such inquiry, or cause such inquiry to be made and, subject to the provisions of this Act, pass such order thereon, not being an order prejudicial to the assessee, as the Commissioner thinks fit: Provided that the Commissioner shall not revise any order under this sub-section in any case— (a) … (b) … (c) … (d) where the order is sought to be revised by the Commissioner of his own motion, if such order is made more than one year previously. (2) Without prejudice to the provisions contained in sub-section (1), the Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by a Wealth Tax Officer is erroneous in so far as it is prejudicial to the interests of revenue, he may, after giving the assessee an opportunity of being heard, and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment or cancelling it and directing a fresh assessment.” 4. It may be noticed that Section 25(1) ibid provides a revisional remedy to the assessee for obtaining an order that is not prejudicial to his interest. The prescribed limitation period for invoking this remedy is one year. On the other hand, Section 25(2) ibid confers a Suo Moto power on the Commissioner to revise orders in C.A. NO. 656 OF 2011 ETC. 4 the interest of the revenue for which no limitation period is prescribed. The learned High Court has compared the two provisions of Section 25 and has read into the law by interpreting its sub Sections (1) and (2) to be identical in their effect. As a result, it has been held that the limitation governing the Suo Moto exercise of revisional power by the Commissioner under Section 25(2) of the Act is also one year. 5. We have perused the entire Act but have found no limitation period for Section 25(2) ibid. It is trite law that when a statute is silent about limitation, a reasonable time limit is to be supplied by the Courts. In carrying out this exercise, ‘no general standards can be set out, and such time is and shall be dependant again on the purpose of the law to be achieved by an act or function to be performed’ [ref: Federal Land Commission through Chairman Vs. Rais Habib Ahmed and others (PLD 2011 SC 842 at paragraph 11)]. In our considered view, the purpose of Section 25(2) is to protect the interest of the revenue and to prevent wealth from escaping assessment. This same purpose is also served by two other sections in the Act: 17 and 17B. The former provides for the exercise of Suo Moto re-assessment power by the Deputy Commissioner to prevent wealth from escaping assessment, and the latter provides for the exercise of Suo Moto revisional power by the Inspecting Additional C.A. NO. 656 OF 2011 ETC. 5 Commissioner to protect the interest of the revenue. The limitation period for Section 17 was amended in 1981 by Section 17A. For facility of reference, Sections 17A and 17 are produced below: 17A. Time limit for competition of assessment and re-assessment.- (1) … (2) No order of assessment or re-assessment shall be made under section 17.- (a) where any proceeding for an assessment or re-assessment is pending on the first day of July, 1981, at any time after the expiration of period of four years commencing on and from that date; or (b) … (c) … (3) … (4) … “17B. Powers of Inspecting Additional Commissioner to revise Deputy Commissioner’s order.-(1) The Inspecting Additional Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by a Wealth Tax Officer is erroneous in so far as it is prejudicial to the interests of revenue, he may, after giving the assessee an opportunity of being heard and after making, or causing to be made, such enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment to be made. (2) … (3) No order under sub-section (1) shall be made after the expiry of four years from the date of the order sought to be revised.” C.A. NO. 656 OF 2011 ETC. 6 6. It can be noticed that the prescribed limitation period under both the sections is four years from the date of assessment. While both provisions are evidence that re- assessment and revisional power exercised to protect the interest of the revenue shall be governed by a liberal limitation period i.e. four years, it is Section 17B that is particularly relevant to the facts of the present case. Section 17B is almost a verbatim copy of Section 25(2). In fact, Section 25(2) was only omitted from the Act in 1992 after Section 17B was inserted into the Act by Finance Act 1992. Section 17B is then the successor to Section 25(2). Therefore, it is only logical that the limitation period governing Section 17B should also govern Section 25(2). Any finding to the contrary will go against the spirit of this revisional power protecting the interest of the revenue, the purpose of which was to ensure that no taxable wealth escaped assessment. Similarly, to hold that the limitation period in Section 25(2) should be governed by the limitation period in Section 25(1) will be an incorrect conclusion because the two provisions have different purposes. The former protects the interests of the revenue whereas the latter protects the interests of the assessee. 7. Clearly then, the revisional power under Section 25(2) of the Act is to be exercised within four years from the date of assessment. In the present case, the date of assessment is 30.06.1987. Consequently, the revisional C.A. NO. 656 OF 2011 ETC. 7 order passed by the Commissioner on 29.03.1990 is within time. Accordingly, the judgments given by the learned Tribunal and the learned High Court are in error. They are set aside. The order of the Commissioner dated 29.03.1990 is restored. Consequently these appeals are allowed. Judge Judge Judge Islamabad 24.2.2020 Meher LC APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE YAHYA AFRIDI CIVIL APPEAL NO.668 OF 2022 (Against the judgment dated 18012022 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No.373/2022) Raja Ali Zaman (deed.) thr. LRs and ...Appellant(s) another VERSUS Evacuee Trust Property Board and ...Respofldent(S) another For the Appellants: Mr. M. Munir Paracha, ASC Date of Hearing: Mr. Hafiz Ahsan A. Khokhar, ASC Mr. M. Amir Malik, ASC/AOR Mr. Wasirn Sajjad, Sr. ASC Syed Rafaqat Hussain Shah, AOR (fri CMA No 539912022) 04.08.2022 For Respondents No.1 For Respondent No.2: For the Applicant: JUDGMENT IJAZ UI, AJISAN, J:-. Through the instant Appeal, the Appellants have challenged the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi (hereinafter referred to as the "High Court") dated 18.0 1.2022 (hereinafter referred to as the "Impugned Judgment") whereby the revision petition filed by the Respondents was allowed, the judgments an decrees of the Civil Judge 1st Class, Rawalpindi (hereinafter referred to as the "Trial Court") and the Additional District Judge, Rawalpindi (hereinafter referred to as the "Appellate Court") were set aside, and the suit of the Appellants was decreed. 2. The necessary facts giving rise to this us are that commercial property No.B-2(b) situated in Liaquat Market, Iqbal Road, Rawalpindi (hereinafter referred to as the "suit property") was owned by the Evacuee Trust Property Board (hereinafter referred to as c1ETPB") The suit land was originally rented out to Raja Ali Zamafl & Raja Muhammad BanaraS (hereinafter referred to as the "Appellants") by the Deputy Commissioner/ Chairman defunct Evacuee Trust Committee via order dated 16.05.1964. During their tenancy, the Appellants approached the Federal Minister for Social Welfare & Rural Development and sought outright sale of the suit property in their favour. The Federal Minister assented to the Appellants' request and allowed the sale of the suit land to the Appellants vide memorandum dated 22.03.1977. When the Federal Government was made aware of the memorandum dated 22.03.1977, it issued memorandum dated 13.05.1977 and restrained ETPB from finalizing the deal. The matter ostensibly came to an end but thereafter, on 06.06.1992, the Deputy Administrator ETPB, Rawalpindi executed Sale Deed (Exh.P4) dated 06-01.1992 (hereinafter referred to as the "Sale Deed") in favour of the Appellants. Being aggrieved of the sale deed, ETPB filed a suit for declaration, cancellation of the sale deed as well as permanent and mandatory injunction against the Appellants. This suit was dismissed by the Trial Court vide judgement dated 17.03.2002. ETPB appealed the judgement of the Trial Court The Appellate Court, vide judgement dated 17.01.2008, dismissed the appeal but allowed the cross- I CIVIL MflAL •Q6sOLeU 3 objection of the Appellants herein to the extent of Issue No. 1. When the matter was assailed before the High Court, it vide the impugned judgement, set aside the concurrent findings of the lower fora and decreed the suit of ETPB as prayed for. The judgement of the High Court is now under challenge before this Court. 3. The main argument advanced by the learned counsel for the Appellants is that the High Court had erred in law by heavily relying on a judgement passed by this Court in Messrs. Mustafa Impex, Karachi & others vs. Govt. of Pakistan thr. Secretary Finance, Islamabad & others (PLD 2016 SC 808).He contends that Article 99 of the Constitution of the Islamic Republic of Pakistan, as it stood before the 18th Amendment, allowed executive authorities (in this case, the ETPB) to exercise their authority under the law and relevant rules without having to route it through the Federal Government, contends that Mustafa Impex (supra) interpreted Article 99 of the Constitution post18th Amendment and since the sale deed was executed well before the 18th Amendment, Mustafa Impex was inapplicable to the instant case. He further contends that it was not the Appellants' burden to ensure that the relevant officials were duly authorised by the ETPB to carry out the sale in question when the sale deed took place and that the Appellants could not be made to suffer for not inquiring into what ostensibly appeared to be departmental practice and procedure. He prayed that the Ova AfltA&a OF 20fl 4 impugned judgement may be set aside and that the judgements of the lower for a restored. 4. The learned counsel for ETPB on the other hand has argued in favour of the impugned judgement. He contends that the sale deed in question was executed incompetently and was in violation of the relevant ETPB laws and rules. He further contends that no approval was ever accorded to the sale by the Federal Government and that the entire process was initiated through memorandum dated 22.03.1977 which had no lawful authority. Lastly, he contends that the sale of the land was only permissible once all the relevant processes and approvals were followed by the ETPB and it is only when the Federal Government has recommended a sale that land under the ETPB's ownership may be sold off through a private treaty. 5. The Learned Counsel for Respondent No.2 has also defended the impugned judgement. 6. During the pendency of this Appeal, CMA No.5399/2022 was moved by the Learned Sr. ASC for the Applicants seeking impleadment of various persons who had subsequently purchased shops in the suit property. He contends that the Applicants were bona Me purchasers and had purchased shops in the suit property for valuable consideration and had not been impleaded by the ETPB in any of the proceedings before the Courts below even though they were necessary and proper parties for the purposes of cmknl.4L -o — or fl 5 the present Us. As far as subsequent purchasers from the Appellants is concerned, their fate is intrinsically connected with them. They would sink or swim with them depending on the outcome of the appeal as would be seen herein below. 7. We have heard the learned counsel for the parties at length and gone through the case record with their assistance. The following questions fall for the determination of this Court: 1. UNDER WHAT LAW OR RULES IS ETPB AUTHORISED TO SELL PROPERTY UNDER ITS OWNERSHIP? 2. HOW CAN AUTHORISATION BE GRANTED FOR SALE OF THE LAND UNDER MANAGEMENT/CONTROL OF ETPB BY EITHER THE FEDERAL GOVERNMENT OR BY ETPB ITSELF ON BEHALF OF THE FEDERAL GOVERNMENT? 3. IF THERE IS A VIOLATION OF EITHER LAW, RULES OR PROCEDURE, WHAT EFFECT WOULD IT HAVE ON THE RIGHTS OF THE PARTIES? UNDER WHAT LAW OR RULES IS ETPB AUTHORISED TO SELL PROPERTY UNDER ITS OWNERSHIP? 8. Before we proceed to discuss the merits of the case, it is prudent to first discuss the relevant laws, rules and regulations etc. that are applicable to the facts and circumstances of the instant appeal. ETPB was constituted by virtue of Section 3 of the Evacuee Trust Properties (Management & Disposal) Act of 1975 (hereinafter referred to as the "ETPB ACT"). The ETPB Act was deemed to have taken effect from 01 06.1974 by virtue of Section 1 of the same. The functions of ETPB are enumerated in Section 4 of the ETPB Act. The relevant portions of Section 4are reproduced below for ease of reference: Section 4. Functions of the Board (1)The general supervision and control of all evacuee trust property shall, subject to any directions that may be given by the Federal Government, vest in the Board, and the Board shall take such action as it deems fit for the proper management, maintenance and disposal of such property in accordance with the provisions of this Act and the rules, schemes or directions made or issued there under. (2)ln particular and without prejudice to the generality of the foregoing power, the functions of the Board shall be:- (a) (c) (d)toscfl, dispose of, or transfer to such person or body, and on such terms and conditions, as the Federal Government, may direct or with the priorapproval of the Federal Government make an endowment of, or otherwise manage, evacuee trust property consistent with the objects qfthfs Act or a scheme or for any other object a )proved_kJLthe Federal Gverflteflt, (e) ...; (1) (g) (h)..; (i) U) (k)..; (1) (n)... (0) (p) 7 (r)to prepare a scheme or schemes with the prior approval of the Federal Government for promoting the objects of this Act, and; (s)...; (Underlining and Highlighting is ours) It is important to note that sub-section 2(d) of Section 4 was inserted after the Evacuee Trust Properties (Management and Disposal) (Amendment) Ordinance of 1984 was promulgated. Before this amendment, the role of ETPB was strictly custodial in nature. By virtue of Section 6, all evacuee properties were vested in the Federal Government and land under ETPB's control was divided into two main categories namely: a) Rural Area; and b) Urban Area. Urban Area is defined under s.2(l) of the ETPB Act. It is reproduced below for reference:- Section 2 Definitions (I) "Urban Area" means the area situated within the limits of a municipal corporation, a municipal committee, a notified area committee, a town area committee, a small town committee, a sanitary committee or a cantonment as those limits existed on the fourteenth day of August, 1947. It is important to note that the ETPB Act was passed after the Evacuee Property and Displaced Persons Law (Repeal) Act of t 1975 (the "Repealing Act") was passed w.e.L 01.07.1974. Section 3 of the Repealing Act is of importance for the F purposes of the present Appeal. It is reproduced below for reference:- Section 3 Transfer of Property (1) All properties, both urban or rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or un-occupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed cIyIkMflAL 10A6• Of 1022 S under sub-section (3) of section 2, shall stand transferred to the Government, for disposal- (a) in the case of urban properties, by the Government under a scheme to be prepared by t and (b) (2) .. (Underlining and Highlighting is ours) Alter the ETPB Act was passed, a scheme was framed by ETPB in 1977 i.e. Scheme For The Management and Disposal of Available Urban Properties Situated In The Province of Punjab, 1977 (hereinafter referred to as the "1977 Scheme"). Chapter III of the 1977 Scheme deals with the submission and scrutiny of applications. The relevant paras of the chapter are reproduced below for ease of reference:- 3. Inviting of Applications The Member, Board of Revenue (Residual properties) may, by notification issue from time to time in the official Gazette, invite applications for the transfer of available properties mentioned in paragraph 6. Such applications shall be made to the De puty Administrator (Residual Properties) of the area concerned in such form and manner as may be prescribed. (Underlining is ours) 5. Scrutiny of Applications The Deputy Administrator (Residual Properties) shall scrutinize the applications and if he finds that the application is deficient essential particulars, he shall get the deficiency supplied and shall determine entitlement. Chapter IV of the 1977 Scheme deals with disposal of available properties. The relevant paras of Chapter IV are reproduced below for ease of reference:- 6. Transfer of house, shop and building site having construction. (1) Subject to the provisions of this Scheme, an available house or shop of any value in possession of a person may, If he applies in this behalf, be transferred L'j •' d_Zt) 9 to him on transfer price or on such price as may be fixed by the Administrator (Residual properties) of the area concerned. Provided that where a house or a shop is applied for by more than one person in possession, it may be transferred to them jointly. (2) An available building site on which a person in possession has raised a permanent construction and applies for its transfer, it may be transferred to him on the transfer price: Provided that in addition to the constructed area, only such portion of the available open space may be transferred to the applicant which may not exceed three times the constructed area. (3) Where any person having made a pennanent construction on a building site does not apply for its transfer, it shall be dis posed of through unrestricted public auction along with the construction. The value of such construction shall be determined by the Deputy Administrator (Residual Properties) of the area concerned and paid to such a person out of the auction proceeds by such authority as may be specified. 11.Sale by Auction A house, shop or a building site having permanent construction for the transfer of which no application is received and every property that is cancelled from the name of a defaulter and a vacant building site shall be disposed of by un-restricted auction. 12. Disposal of houses, shops or a building site by negotiation If a house, a shop or a building site havin g been put to auction twice fetches no bid or fetches a bit short of the reserve price it shall be disposed by negotiation by inviting sealed tenders which shall be opened by the Deputy Administrator (Residual Properties) of the area concerned in the presence of the tenderers. If the highest offer made for such a house, a shop or a building site is equal to or exceeds 75% of its reserve price, it may be 10 accepted by the Deputy Administrator (Residual Properties) and where the highest offer made is below 75% of the reserve price but not less than 50% it may be accepted by the Administrator (Residual Properties), of the area or where the highest offer is below 50% it may be accepted by the Member, Board of Revenue (Residual Properties). Chapter V of the 1977 Scheme deals with Auction Committees and the Manner of Auction. For the purposes of this instant Appeal, paras 19 and 20 are of importance. They are reproduced below for ease of reference:- 19.Acceptance or refusal of bid. No bid below the reserve price shall be accepted. However, the competent Authority may refuse to accept the highest bid without assigning reasons. 20. Reserve price The reserve price of each property placed in auction shall be its transfer price. 9. Having gone over the relevant laws as well as the 1977 Scheme, it is clear and obvious to us that in order for a property to be disposed of by ETPB, it has to go through a rigorous and transparent process before it can be transferred to any private party. Before any evacuee land or property can be sold, it must be notified by the relevant Member Board of Revenue (Residual Properties) in the Official Gazette under para 3 of the 1977 Scheme. Once the requisite notification has been gazetted, applications need to be moved by prospective bidders to the concerned Deputy Administrator (Residual Properties) in order to become a part of the transfer process. A person in possession of the notified property/land may move an application to the concerned Deputy Administrator (Residual Properties) who is then required, 11 under para 6 of the 1977 Scheme, to transfer the notified land on such price as may be fixed by the concerned Administrator (Residual Properties). In the other instance, where no application is received, a process of un-restricted public auction commences where two rounds of public auction have to take place as per rule l2before the notified land can be sold by the ETPB through negotiation/ private treaty. Even where public auctions have failed and the ETPB resorts to disposing of the notified land under para 12, it is still important to note that negotiations can only take place after a tendering process has taken place and prospective tenderers have deposited their tenders with the ETPB. The ethos of transparency that pervades through para. 12 can also be seen by the fact that all tenders need to be opened by the concerned Deputy Administrator (Residual Properties) in the presence of all other prospective tenderers or their duly- authorised representatives before a bid can be accepted. The Deputy Administrator (Residual Properties) is also constrained by the fact that if the tendered price is below the reserve price, the notified land can only be sold if the competent authority in the ETPB hierarchy accords its approval. HOW CAN AUTHORISATION BE GRANTED FOR SALE OF THE LAND UNDER MANAGEMENT/CONTROL OF ETPB BY EITHER THE FEDERAL GOVERNMENT OR BY ETPB ITSELF ON BEHALF OF THE FEDERAL GOVERNMENT? 10. Before we can discuss how the Federal Government or ETPB itself on behalf of the Federal Government may direct sale of land under the management and control of ETPB, it may be prudent to go over Section 3 of the ETPB Act, 1975. The relevant portions of Section 3 are reproduced below for ease of reference:- S.SCONSTITUTION OF THE BOARD (l)The Federal Government shall constitute a Board, to be known as Evacuee Trust Property Board, for the management and disposal of the evacuee trust prom . (2)The Board shall be a body corporate by the name aforesaid having perpetual succession and common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued. (3) The Board shall consist of a Chairman and such members as the Federal Government may, by notification in the official Gazette, appoint. (4) The Chairman shall be appointed by the Federal Government on such terms and conditions as it may determine, shall hold office during the pleasure of the Federal Government and shall be the administrative and executive head of the Board ... (Highlighting is ours) Before any land can be sold by ETPB, it has to first conduct an internal board meeting and decide whether to sell land under its management and control. If, through a Board meeting, ETPB decided to sell any land under its management and control, a resolution has to be moved and passed to that effect which would then be subject to approval of the Federal Government. This is especially important in light of the fact that the status of ETPB, as made clear in Section 3 ibid, is managerial and custodial. It is also important to note that the land that is managed and supervised by ETP8 is not its own cmkflka½tQf2fl2 13 land/property. All land or properties managed and supervised by ETPB belong to the Federal Government and it is only after seeking permission from the Federal Government that the ETPB can be permitted to sell or dispose of land under its supervision. Therefore, it is incumbent upon ETPB to seek permission from the Federal Government before it can dispose of any land under its management or supervision. If the ETPB's Board never moves a resolution recommending sale seeks approval/ permission to sell, then it will be deemed that the Federal Government's permission was never sought for the sale of ETPB-managed land. If, however, it was the Federal Government that wished to sell any of the land under the management of ETPB, the process for doing so would be to refer the matter to the ETPB's Board, allow the Board to deliberate on the matter and then give its recommendations to the Federal Government before any sale is carried out. After the Federal Government has accorded its approval, the Chairman of ETPB would then exercise authority under Section 12 of the ETPB Act to designate an officer to carry out the sale or disposal of the land/property. For ease of reference, Section 12 of the ETPB Act is reproduced below:- Section 12. Appointment And Duties Of officers And Staff (1)The Chairman may, with the prior approval of the Federal Government and on such terms and conditions as the Board may determine, appoint Administrators, Deputy Administrators, Assistant Administrators, and may also appoint such other officers and staff as may be necessary for the efficient performance of the functions of the Board. r - + 14 (2) The Chairman may, by general order or special order, provide for the distribution or allocation of work to be performed by persons appointed under sub- section (1). (Underlining and Highlighting is ours) In essence, in order to sell or dispose of land managed by the ETPB, a resolution has to be passed by the ETPB's Board which is then approved by the Federal Government. Once approval has been accorded by the Federal Government, an officer is designated and authorised by the Chairman in terms of Section 12(2) of the ETPB Act who shall then carry out the sale or disposal of the land/property in question in the terms laid down by the Federal Government-sanctioned Board resolution. IF THERE IS A VIOLATION OF EITHER LAW, RULES OR PROCEDURE, WHAT EFFECT WOULD IT HAVE ON THE RIGHTS OF THE PARTIES? 11. Coming to the merits of the instant appeal, in their written statement before the Trial Court, the Appellants have contended that they had applied to the Federal Government for the sale of the suit property to them. However, there is nothing on the record to suggest that they had ever applied to the ETPB under Para 6 of the 1977 Scheme. Instead, the Appellants approached the relevant Federal Minister as opposed to the ETPB who, vide his memorandum dated 22.03.1977, accorded approval for the sale. No doubt if an appropriate application under Para 6had been moved by the Appellants, the matter would have been taken up by the Board, but the suit property could only have been sold subject to a resolution to that effect as well as the Omk AlflAL NO*a o fl 15 necessary approval of the Federal Government. Instead, the Appellants approached the concerned Minister. There is no provision in the law governing the ETPB, the relevant rules or the 1977 Scheme which allows a Federal Minister to approve sale of evacuee land in either his discretion or in relaxation of rules. It is important to note that Para 6 starts with the phrase: "Subject to the provisions of this Scheme..." which highlights that even if one were to assume that an application to the Federal Government via the Minister concerned was a competent application under Para 6 of the 1977 Scheme, it would still be necessary for the Federal Government to refer the matter to the ETPB's Board for deliberation. It is only after the Board had deliberated on the matter and passed a resolution for the sale of the suit property could the Federal Government have accorded their approval for a sale in favour of the Appellants. A bare perusal of the memorandum dated 22.03.1977 would also show that the price was determined by the concerned Federal Minister who was not the competent person to assess the value of the suit property under the 1977 Scheme. In holding that the Minister was not the competent person to be approached for the purposes of Para 6 of the 1977 Scheme, we hold that no competent application had ever been moved by the Appellants within the contemplation of the 1977 Scheme. In the absence of an appropriate application before the Competent Authority, and without it being processed in the departmental hierarchy according to the law and rules, the entire superstructure of the transaction which culminated in the Sale Deed was based c1yIkMfrMro,. OF fl2 16 on an incompetent and unlawful exercise and therefore any and all actions taken on the basis of the memorandum dated 22.03.1977 were unlawful and inconsequential on the rights of ETPB/Federai Government insofar as far as ownership of the suit property was concerned. The Learned Counsel for the Appellant could not point to any law or rule which could reasonably lead us to believe that the Federal Minister was allowed to exercise any power let alone discretion in relaxation of the 1977 Scheme when he acted both as the ETPB in accepting an application of the Appellants, as the Administrator (Residual Properties) when he determined the price of the suit property Rs. 100,000/- per Kanal. We find that the Minister could had no power or authority on behalf of the Federal Government and approve the sale of the suit property specially so in the absence of a resolution passed by the ETPB's Board seeking permission for sale of the suit property in favour of the Appellants. 12. As far as the contentions of the Learned Counsel for the Appellants are concerned that the High Court has relied mainly on the Mustafa lmpex (supra) in allowing the revision petition of the Respondents even though the said case interpreted Article 90 of the Constitution post-18th Amendment, it is important to note that Article 173 of the Constitution of Pakistan deals with the power of both the Federation as well as the Provinces to acquire property and to make contracts etc. It is reproduced below for ease of reference:- 17 173. Power to acquire property and to make contracts, etc. (1)The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts. (2)All property acquired for the purposes of the Federation or of a Province shall vest in the Federal Government or, as the case may be, in the Provincial Government. (3)All contracts made In the exercise of the executive authority of the Federation or of a Province shall beexpressed to be made In the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize. (4)Neither the President, nor the Governor of a Province, shall be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Federation or, as the case may be, the Province, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof. (5) Transfer of land by the Federal Government or a Provincial Government shall be regulated b y law. There is a presumption that the Legislature intends to legislate on matters in complete harmony with the Articles of the Constitution and that the Courts will give effect to the will of the Legislature which manifests itself through the laws passed by the Legislature. In the present appeal, in order to give effect to the Parliament's intention, a harmonious interpretation of Article 173 of the Constitution read with the ETPB Act (specifically Section 4(d) & 4(e)of the said Act) would be the one where it would be presumed that since Article 173 of the Constitution is "subject to any Act of the appropriate Legislature", all acts of the Federal Government (or a Federal Minister) not in compliance with or going against the express I-- W APtLU. S6S OP afla 18 provisions of an Act of the appropriate Legislature would cease to retain their executive nature as envisaged under Article 173 of the Constitution. In essence, what this would mean for the purposes of this appeal is that when the concerned Federal Minister accorded approval for sale of the suit property when he was not authorised to do so by the competent Legislature (in this case, the Majlis-e-Shoora), his actions cannot be considered as executive actions in terms of Article 173 of the Constitution of Pakistan, 1973. If the actions of the concerned Federal Minister were bereft of executive nature, then as a natural corollary, they cannot be construed as being authorised by the President of Pakistan in terms of Article 99 of the Constitution of Pakistan, 1973 as it stood in 1977. 13. On being confronted with the question as to whether ETPB's board had ever moved a resolution to the effect that the suit property is to be sold to the Appellants, the Learned Counsel for the Appellants was unable to point out any document which could reasonably lead us to conclude the existence of such a resolution. Even otherwise, no resolution from the ETPB's Board sanctioning sale of the suit property to the Appellants was ever placed on record. There is also nothing on the record to suggest that the concerned Minister had ever directed the ETPB's board to deliberate on the matter and pass a resolution concerning the sale of the suit property to the Appellants. If there was never any resolution, then there was never any sanction of the sale 19 either. If there was never any sanction, then there could have been no approval from the Federal Government for sale of the suit property. If there was never any approval from the Federal Government, then the Sale Deed itself would be illegal as well as ineffective owing to the reason that in light of Article 173 of the Constitution, the President would not be deemed to have accorded approval for the sale of the suit property through the Federal Government. The High Court had therefore rightly concluded that being bereft of its executive nature, the Sale Deed had been obtained without the approval of the Federal Government and was therefore illegal and voidab-initio. 14. In light of what has been discussed above, we find that the judgment of the High Court is well-reasoned and has arrived at the correct conclusion after taking into consideration all the material available on the record. No mis- reading or non-reading of the evidence has been pointed out by the Learned Counsel for the Appellants nor has he been able to point out any ground to take a view different than the one taken by the High Court. As a result, we do not find any merit in this appeal. It is dismissed. All miscellaneous applications are also accordingly ISLA3I4,BAD. THE 4th of August, 2022 Kkjgft Sahibzada 1926, LC*/ P APPROptREPORTING*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Jawwad S. Khawaja Mr. Justice Gulzar Ahmed Civil Appeal No.669-L of 2013 [Direct appeal under section 67(3) of the Representation of the People Act, 1976 (Act No.LXXXV of 1976) against the judgment dated 05.04.2013 passed in Election Petition No.104/2008 by the learned Election Tribunal, Lahore] Malik Umar Aslam …Appellant Versus Mrs. Sumaira Malik, etc. …Respondent (s) For the appellants(s): Mr. Hamid Khan, Sr. ASC Mr. Imtiaz Rashid Siddiqui, ASC Mr. Waqar Rana, ASC For respondent No.1: Syed Iftikhar Hussain Gillani, Sr. ASC Mr. Mobeen ud Din Qazi, ASC Mr. Mehr Khan Malik, AOR Assisted by: Barrister Saad Buttar, Adv. Respondent No.2 & 3: Nemo Date of hearing: 09.10.2013 JUDGMENT Iftikhar Muhammad Chaudhry, CJ.— Instant direct appeal has been filed under section 67(3) of the Representation of the People Act, 1976 (ROPA) against the judgment dated 05.04.2013 passed by the Election Tribunal, Lahore, whereby Election Petition No.104 of 2008 filed by the present Appellant was dismissed. 2. Precisely stating facts of the case are that the Appellant and Respondent No.1 along with other candidates contested the CA 669-L/13 2 election of National Assembly from NA-69 (Khushab-I) in the General Elections held on 18.02.2008 in which Respondent No.1 was declared returned candidate with 61076 whereas the Appellant was the runner- up having secured 60413 votes. The Appellant challenged the said election through Election Petition No.104 of 2008 under section 52 of ROPA on the ground that various provisions of law, particularly section 39 of ROPA, were violated and that the BA degree of Respondent No.1 was bogus. It was alleged in the election petition that Respondent No.1 colluded with government and election officials for the perpetration of countless election offences and grave violations of law, which materially and substantially affected the entire election process. Such malpractice adopted by Respondent No.1 rendered the entire election process void for not being just, free and fair. It was further alleged that on the polling day bogus votes were cast in a majority of polling stations. Moreover, it was asserted that the concerned Returning Officer (RO), without giving notice to contesting candidates or their polling agents, in collusion with Respondent No.1 manipulated the entire record. Allegedly, the RO broke open the packets sent by the Presiding Officers and replaced/destroyed/changed the ballot papers, resultantly, the rejected votes increased from 220 to 1061. Finally, it was alleged that the BA degree of Respondent No.1 was bogus as she completed her Intermediate in 1981 but did not obtain a BA degree until 2002, when she obtained forged and fabricated BA degree from the University of the Punjab. He made following prayer in petition:- “In view of the aforementioned facts and submissions, it is most respectfully prayed that the election of the Respondent No.1 is void and the petitioner be declared as the successfully returned CA 669-L/13 3 Candidates from NA-69, Khushab-I, in the national election conducted on 18.02.2008.” 3. Respondent No.1 was the only respondent who contested the election petition. Respondent No.1 in her reply raised various legal and factual defences to controvert all the allegations levelled against her. Learned Election Tribunal on 11.05.2010 formulated the following points:- (i) Whether in the facts and circumstances given in the election petition, the election of NA-69 is void? (ii) Whether the election petition is not maintainable and has been instituted in violation of the provisions of the Representation of Peoples, Act, 1976? 4. In the meantime, on 17.09.2008, Respondent No.1 filed CMA No.2 of 2008 under section 63 of ROPA read with section 151 CPC before the Election Tribunal praying therein that the petition may be dismissed as the provisions of section 55 of ROPA had not been complied with while instituting the same, inasmuch as the annexures appended with the petition had not been verified and attested in the manner provided in the Code of Civil Procedure, 1908. The Election Tribunal vide order dated 24.04.2009 dismissed the said CMA and CPLA No.1322 of 2009 filed against the said order was also dismissed as withdrawn by this Court vide order dated 24.03.2010. 5. The Appellant produced evidence which was also rebutted by Respondent No.1. The Tribunal after examining the evidence produced before it, dismissed the election petition vide impugned judgment which the Appellant has challenged before this Court through the instant appeal. CA 669-L/13 4 6. Mr. Hamid Khan, learned counsel for the Appellant, placed on record following formulations:- “1. That from the evidence on record, it is obvious that the degree of B.A. has not been obtained by the Respondent No.1 in the ordinary course.  She passed her F.A. in 1981 and did not attempt B.A examination until 2002.  B.A. in April 2002 was obviously attempted in desperation to qualify for contesting elections for MNA in the forthcoming general elections of 2002.  In such circumstance, particularly, when she was not in touch with the formal education for 20 years, it is plausible that another lady was hired to appear in the examination for her. 2. That impersonation of Respondent No.1 by another lady is established from the following evidence: (I) Respondent No.1 does not remember the subjects in which she appeared in the first instance and then corrects herself.  She does not remember that there was any compulsory paper other than English;  She does not remember the location of examination centers in Mustafaabad and Lahore Cantt. and as to how many papers were taken at what examination centre;  She does not remember prescribed syllabus of the English papers and as to what she studied for the examination. She does not remember how many questions were to be attempted or whether those questions referred to poetry, dram, prose etc;  She could not recall whether Pak Studies was a compulsory subject and how many parts were there in such paper.  She could not recall the syllabus of history paper and what she studied for that paper; (II) It is obvious from the photographs of the lady on the admission for and Roll No. slip that person in these photographs is different from Respondent No.1 as CA 669-L/13 5 appears from her photograph on ID Card application for obtaining ID Card, computerized ID Card (CNIC), election poster and news papers clipping:  The photograph on Admission form and Roll No. Slip is of a lady in her early twenties whereas the Respondent No.1 in 2002 is admittedly in her late thirties (38 to 39 years of age);  The features of the two faces are different. The lady on the admission form and roll No.slip were glasses. On no photograph of the Respondent No.1 she is wearing glasses. (III) The signatures on the Admission Form are totally different from signatures of the respondent No.1 as seen from her specimen signatures, her ID Card of 21.08.2002 her computerized ID Card. The letters and flow of the two set of signatures are different even to the naked eye. 3. The so called enquiry and its findings are evidently fake, false and manipulated in order to cover up the impersonation.  There is no notice of proceedings of enquiry for 11- 12-2002 as is evident from the report of 10.12.2002;  She does not seem to have appeared before any enquiry committee and the writing and signatures appears to have been procured because she does not remember the number of committee members, who was its head, what were their designations, what is the date of appearance before the committee and who dictated her writing.  Her husband at the given time held a very important position being Additional Secretary (Schools) Department of Education, Government of Punjab and the University of Punjab is controlled by the Education Department of the Punjab Government (rules of Business of the Government of Punjab Education Department, para2). Thus her husband was in a position to have his way with university officials who were dependent on him and he could manipulate matter in the university and actually did so. CA 669-L/13 6  The hurried manner of holding an enquiry if at all, producing reports, one on 10.12.2002, the other on 12.12.2002 obviously with an intent to cover up the impersonation would clearly establish an influential hand behind the whole scheme of cover up. Even the order of V.C. to put up documents before him was not complied with.  The court can presume above course of events and human conduct in relation to the facts of present case under Article 129 of the Qanun-e-Shahadat, 1984. 4. It is established from the evidence and the record that the appellant was never associated with the so called enquiry or its proceedings. This fact is critical in views of the judgment of the Election Tribunal in which reliance is placed heavily on these so called enquiry/enquires and report/reports.  Whatever enquiry was held on 11.12.2002, the Appellant was not in picture because he applied for the first time on 16.1.2003 and the second time on 28.1.2002;  At no place in the so called enquiry proceedings the Appellant has been marked present.  It is not even alleged in the statement of PW 5 Muhammad Rauf Nawaz, Deputy controller (Examination), who appeared for the Punjab University, that Appellant participated in any such enquiry. 5. That the degree of B.A. claimed by the Respondent No.1 has been proved to have been a result of impersonation, fraud and falsehood and therefore such a person is not qualified to contest for member of Parliament not being sagacious, righteous, non profligate, honest and amen as ordained by Article 62(i)(f) of the Constitution of Pakistan.  It has been held by this Honourable Court that those making false declarations about their qualifications in the nomination papers are hit by the Article 62(i)(f) of the Constitution.  Reference in this behalf is made to the following authorities: CA 669-L/13 7 (I) Abdul Ghafoor Lehri Vs Returning Officer, 2013 SCMR 1271 (II) Malik Iqbal Ahmad Langrial Vs Jamshed Alam, PLd 2013 SC 179 (III) Mudassar Qayyum Vs Ch. Bilal Ijaz, 2011 SCMR 80” 7. Syed Iftikhar Hussain Gillani, learned Sr. ASC appearing on behalf of Respondent No.1 placed on record following formulations:- (1) As the Honorable Supreme Court is exercising statutory jurisdiction under section 67 of the Representation of People Act thus can pass an order which is within the powers of the Tribunal and not beyond the mandate of the Law; (2) That the Appellant has come with unclean hands, and also perjured himself before the Tribunal; (3) That the Honorable Supreme Court may kindly not go behind the orders passed by the competent authority in 2003, which has attained finality; (4) That the reports of the University of Punjab are past closed transactions and cannot be reopened after a lapse of 10 years. (5) That the entire exercise is with regard to the 2008 elections, whereas new elections were held in 2013 and the Appellant has already filed an Election Petition on the same ground; (6) That it is a classic case of harassment, intimidation and abuse of the process of the court by Appellant even though he lost three elections i.e. 2002, 2008 and 2013 to the respondent, and is harassing the Respondent since then, which means that Appellant desires to win the elections through court orders and not by votes. The Honorable Supreme Court may never countenance such conduct.” 8. It is to be noted that the Appellant has been challenging the success of Respondent No.1 in the General Elections from 2002 to onward. The first chapter in this series of bilateral election disputes CA 669-L/13 8 began with Respondent No. 1’s success in the General Elections held on 10.10.2002 from the Constituency NA-69 (Khushab-I). The Appellant challenged the said election by submitting an election petition under section 52 of ROPA on 02.12.2002, which was forwarded to the Election Tribunal for adjudication. On the objection of Respondent No. 1, the petition was dismissed vide judgment dated 2.10.2003 passed in Election Petition No. 101/2002 for want of compliance with the verification requirements mandated by section 55(3) of ROPA. The Appellant proceeded to file Civil Appeal No.1716/2003 before this Court, which was decided on 19.12.2006 and reported as Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362). It is to be noted that in the Election Petition, the Appellant specifically levelled the allegation that Respondent No.1 was not a graduate and had procured a fake degree from the University of the Punjab in order to overcome the bar contained in Article 8-A of the Conduct of General Elections Order, 2002 and section 99(cc) of ROPA. 9. As it has been noted hereinabove the Appellant lost in the General Elections held on 18.02.2008 and Respondent No.1 was declared returned. Therefore, towards the month of April, 2008, the Appellant filed Election Petition No.104/2008, which was initially entrusted to Mr. Justice M. Bilal Khan Judge/Election Tribunal who heard the petition from 30.04.2008 to 17.11.2008 when for personal reasons he declined to hear this case and forwarded it to the Chief Election Commissioner of Pakistan for its entrustment to any other Election Tribunal. It seems that the election petition was entrusted to Mr. Justice Ali Akbar Qureshi, Judge/Election Tribunal, who commenced proceedings from 17.12.2008 to 17.07.2009. Thereafter, CA 669-L/13 9 the case was heard by Mr. Justice Manzoor Malik and Mr. Justice Nasir Saeed Sheikh on different dates who on 11.06.2010 in view of the following observations forwarded the case to the Election Commission of Pakistan:- “4. The learned counsel for the respondent No.1 has argued that he has no objection to the production of the election result sheets prepared by the Polling Officer, but seriously takes exception to the use of this method for effecting recounting of the ballot papers. 5. This objection raised by the learned counsel for the respondent No.1 that the election petitioner is creating a situation for recounting of the entire ballot papers of Constituency NA069 is, on the face of it, premature at this stage. However, this situation can be taken care of by the present in the bags sealed by the Polling Officer of each Polling Station be first produced for comparison, if necessary, with the election result sheets prepared by the returning Officer. 6. With this observation and direction, I dispose of this CM No.4 of 2010 and allow the record of Constituency NA-69 to be brought before the Commission with full security by the Registrar of the Election Commission. The abovementioned observation recorded by this Tribunal be kept in consideration by the Commission while recording the statement of the Returning Officer and of opening the bags of the Polling Stations of Constituency NA-69. It is however clarified that in case some serious objection is felt by the Commission that in order to verify the correctness of any of the result sheets prepared by the Polling Officer, the examination of the ballet papers or of the rejected ballet papers or of the tendered ballet papers is CA 669-L/13 10 necessary, the Commission may for reasons recorded order that that Commission shall not allow the opening of the ballet papers generally and will only stick to the comparison of the election sheet results with the result sheets prepared by the Returning Officer. CM No.4 of 2010 stands disposed of.” 10. The Election Commission again entrusted this case on 7.7.2010 to Mr. Justice Sh. Azmat Saeed, Judge/Election Tribunal (as he then was) who also declined to hear the case for personal reasons as is evident from the order dated 14.07.2010. Accordingly, the case was entrusted to Mr. Justice Sh. Najam-ul-Hassan Judge/Election Tribunal who commenced hearing from 24.08.2010 and on 7.2.2011. He also declined to hear the case due to personal reasons, thus the case was sent to Chief Election Commissioner for its entrustment to any other Election Tribunal. Accordingly, on 15.03.2011 Mr. Justice Ejaz-ul-Ahsan Judge/Election Tribunal commenced the hearing and finally dismissed the petition vide impugned judgment dated 04.05.2013 about five weeks before the polling of the next General Elections, 2013. 11. The purpose of noting the above facts is that under the provisions of section 67(1A) of ROPA, the decision of election petition is required to be taken within four months from its receipt, which are reproduced hereinbelow:- 67. (1) ……… (1A) The Election Tribunal shall proceed with the trial of the election petition on day to day basis and no adjournment shall be granted to any party for more than seven days and that too on payment of costs as the Tribunal may determine} and the decision thereof shall be taken within four months from its receipt: CA 669-L/13 11 Provided that where a petition is not decided within four months, further adjournment sought by any party shall be granted only on payment of special cost of ten thousand rupees per adjournment and adjournment shall not be granted for more than three days: Provided further that if the Tribunal itself adjourns it shall record reasons for such adjournment: Provided also that where delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Tribunal itself, or on application of the aggrieved party, shall after issuance the show cause notice to the returned candidate, within fifteen days from the date of show cause notice may order that the returned candidate has ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Tribunal may direct. 12. It has been noticed that not only in the instant case but in so many other identical cases pertaining to elections, timely decisions are not taken by the Election Tribunals; because, inter alia, Election Tribunals are ordinarily presided by learned Judges of the High Courts who remain unable to conclude matters expeditiously on account of their other judicial commitments, or because of delaying tactics employed by respondents who, having been declared as returned candidates, enjoy the status of Member of the National or Provincial Assembly. We are of the considered opinion that, as held by this Court in Muhammad Usman Achakzai v. Election Tribunal Balochistan (PLD 2010 SC 943), such delays in disposal of election petitions before the Tribunal in fact deprives a large number of electors of the constituency to have their due representation in the elected Houses, particularly in those matters where a whole term has been enjoyed by a winning candidate, who may later turn out to be disqualified on any count. CA 669-L/13 12 Thus, delay causes the people of constituency to be represented by a person who is not duly elected. This clearly negates the principle of democratic system of Government. There is wisdom in fixing the period for decision of such cases, namely, that there should be no uncertainty for the persons, who have been elected or who have challenged the election before the Tribunal or the Court and after expeditious disposal of the same. They should consume all their energies for the welfare of the people whom they represent, instead of wasting time in pursuing such matters before the Courts. This principle was reaffirmed by this Court in Workers’ Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681). Furthermore, in the case of Muhammad Khan Junejo v. Fida Hussain Dero (PLD 2004 SC 452) this Court held that it is a mandatory requirement of ROPA that Election Tribunal shall proceed with the trial of the election petition on day-to- day basis and the decision thereof shall be taken within four months from its receipt as provided under section 67(1A) ibid. This Court further held that the contention of the Appellant in that case that fair hearing was not afforded to him was without merit and in fact spoke volumes of the appellant’s propensity to prolong litigation at any cost. 13. In light of the aforementioned facts, it is clear that a legal duty has been cast upon the Election Tribunal to reach a conclusion expeditiously by following stringent/coercive measures of imposing a cost and assigning the reasons if cases are adjourned by the Tribunal. To this end the Tribunal is even empowered to declare that a returned candidate who is delaying the proceedings of the Tribunal ceases to be a member of the Parliament/Provincial Assembly, either till the CA 669-L/13 13 conclusion of the proceedings or for such period as the Tribunal may direct. 14. In this vein, it is pertinent to note that the provisions of section 67(1A) are mandatory in nature. This is evident as the said section contains penal consequences for taking adjournments and failing to decide an election petition within four months. In this regard it is instructive to have recourse to the decision of this Court in the case of Maulana Nur-ul-Haq v. Ibrahim Khalili (2000 SCMR 1305), wherein it was held that:- “7. ... No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. ...” In the case of Ghulam Hussain v. Jamshed Ali (2001 SCMR 1001) this Court held as under:- “13. It is an established principle of law that where the Legislature has provided a penalty/consequences for the non-compliance, the said provision would be mandatory in nature and where such consequences are not provided it would be termed as directory...” Similarly, in the case of Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362) it was held as under:- “10. ... …the Court is always empowered to ensure that the law under which proceedings have been initiated CA 669-L/13 14 before it stands complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty... ...” Furthermore, in the matter of: HUMAN RIGHTS CASES NOS.4668 OF 2006, 1111 OF 2007 and 15283-G of 2010 (PLD 2010 SC 759). Relevant extract therefrom is reproduced hereinbelow:- “12. … … It is to be noted that non-adherence to legislative provisions other than the Constitution is permissible, provided it does not entail penal consequences as there are two types of statutes/legislation, i.e. mandatory and directory. As far as mandatory provision of law is concerned, same is required to be enforced strictly without interpreting/construing it in any manner liberally. … …” 15. In light of the aforementioned case-law, it is abundantly clear that section 67(1A) is a mandatory provision of law that entails penal consequences for non-compliance. Therefore, the Learned Election Tribunal below failed to penalise Respondent No. 1 for repeatedly delaying the proceedings. 16. Moving now to the merits of the Appeal, it is pertinent to recap that the election petition No.104/2008 challenged the success of Respondent No.1 as a member of National Assembly on the alleged commission of corrupt and illegal acts, etc., by and on behalf of Respondent No.1 prior to as well as on the date of polling. In her reply, Respondent No.1 raised various legal and factual defences. Learned counsel appearing on behalf of Respondent No.1 contended that during the hearing of the election petition, the Appellant abandoned every ground of attack except pleading that the election of CA 669-L/13 15 respondent No.1 was liable to be declared void because she had procured a fabricated BA degree from University of the Punjab. Moreover, according to him, the pleadings of the Appellant never mentioned that Respondent No. 1 obtained the said degree as a result of impersonation. He explained that no fresh plea is allowed to be introduced without seeking amendments under section 62(3) of ROPA. If such amendment has not been made, the petition deserves to be dismissed on this sole ground as well. 17. In response, learned counsel for the Appellant contended that this very issue was raised before the Election Tribunal wherein the Appellant was not only allowed to raise this plea but permission was also accorded to produce the evidence, for which Respondent No.1 also had no objection as is evident from the perusal of the impugned judgment. A careful perusal of the proceedings supports the contention raised by the Appellant’s counsel as after examining the record the learned Tribunal in the circumstances observed as under:- “Therefore, the only question that requires determination by the Tribunal is as follows:- “Whether respondent No.1 procured a fabricated degree of Bachelor of Arts (B.A.) from the University of Punjab by arranging for some other lady to sit for the examination in her place, and hence her election is liable to be declared to be void.” The answer to above question will have direct bearing in deciding issue No.1 ibid.” Thus, objection raised by learned counsel for respondent being without substance needs no further discussion. 18. Learned counsel for Respondent No.1 also emphasized that under section 67 of the ROPA this Court can pass the order, which is within the powers of the Tribunal and not beyond mandate of the law. CA 669-L/13 16 Suffice to say, the instant appeal is in continuation of proceedings which have been dealt with by the Election Tribunal under section 52 of the ROPA as appeal has been filed to challenge the order of the Tribunal, which is based on evidence produced before it. According to him, the question of granting relief to the parties in respect of genuineness or otherwise of the degree is concerned depends upon the final judgment. However, the Court cannot travel beyond the powers conferred upon it by the law. 19. Learned counsel had a feel about exercising the jurisdiction of this Court under different constitutional provisions like 185(1), 185(2) and 185(3). We are of the opinion that appeal is a statutory right that can only be exercised if the Statute has provided so as a matter of right. Section 96 of CPC can be cited for reference, which provides that an appeal lies against all decrees passed by a court in the exercise of original civil jurisdiction, except consent decree, and decree passed in suit filed under section (9) of the Specific Relief Act, 1877, and a final decree, the preliminary decree of which is not challenged. Appeal also lies against an order if so provided for by section 104 or Order XLIII CPC. In the same breath learned counsel argued that this Court may not go beyond the orders of the competent authority of University of the Punjab which were passed in 2003, and validity of BA degree of Respondent No.1 has attained finality. He has made reference to the decision dated 10.12.2002 of the Committee of the University of Punjab in the proceedings captioned as “Reference Civil Suit from Mr. Muhammad Afzal son of Muhammad Din Versus Vice Chancellor/controller of Examination Against Mrs. Samaira Malik Tahir” and the said Committee meeting held on 12.12.2002 which has been CA 669-L/13 17 taken in continuation of the Order noted hereinabove and then the decision of the same dated 10.02.2003. 20. Learned counsel for the Appellant stated that Election Tribunal inter alia has based its decision on the documents on record. Therefore, according to him, if a written decision has been taken by the Election Tribunal by misreading any of these documents, this Court while disposing of the appeal is not precluded to examine the evidence as a whole and not base its findings on the conclusion, which have been drawn illegally by a forum without appreciating evidence according to law. The Appellant had raised a dispute since filing of earlier election petition on 12.12.2002 inter alia on the ground that Respondent No.1 was not a graduate and in order to overcome the bar contained in Article 8-A of the Conduct of General Election Order and section 99(cc) of ROPA she had managed to procure fake and fabricated degree from the University of the Punjab but this question had never been adjudicated upon as the election petition, referred to hereinabove, which culminated in dismissal of petition for non- compliance of the mandatory requirement of section 55(3) of ROPA on 2.10.2003 and appeal filed by the appellant was also dismissed vide judgment passed in Malik Umar Aslam’s case (supra). Again in the petition, which has given rise to instant appeal, as it has been noted hereinabove, the Election Tribunal after hearing the parties had also framed question to the effect whether respondent procured fabricated degree of BA etc. 21. It may not be out of context to note that judicial adjudication has to be undertaken by a forum duly authorized to CA 669-L/13 18 exercise judicial powers and pronounce the judgment between the parties as in the instant case Election Tribunal vide judgment dated 05.04.2013 had pronounced a judgment holding BA degree of Respondent No.1 to be valid and this decision is under examination in appeal before this Court. Therefore, subject to its decision it would not be possible to say that past and closed issue is not required to be adjudicated upon. Before deciding the case finally, the argument of the learned counsel of Respondent No.1 in this behalf seems to be premature. In absence of final adjudication the orders passed by the competent authority of the University in 2003 cannot be considered to have attained the finality. 22. At this juncture it is pertinent to note that domestic tribunals like Inquiry Committee, Departmental Committee constituted statutorily by the Universities to probe the genuineness or otherwise of a degree are bound by the principles of Qanun-e-Shahadat Order. Reference in this behalf may be made to the case of Rahat Naseem Malik v. President of Pakistan [2003 PLC (C.S.) 759], wherein this Court held at Para. 9 that “...if an Inquiry Officer on the basis of material placed before it assesses/estimates that the point which is required to be determined has been established and if his such verdict/opinion is acceptable to a prudent man it could be deemed under Article 2(d) of Qanun-e-Shahhadat Order, 1984 that fact has been proved accordingly.” In the same Para., it was also held that “…opinion rendered by an Inquiry Officer is not a final verdict to decide the fate of the parties arrayed before it for determination of a particular/specific question.” CA 669-L/13 19 23. Thus, from the above discussion we are of the opinion that adjudication in appeal proceedings by this Court at the apex level is distinct and different from the decision/findings of domestic Tribunals, not because of hierarchy but because of the statutory powers available to an appellate Court under section 67 of ROPA. Adjudication of an issue, which is a continuous bone of contention between the parties, cannot be postponed because of lapse of a period of 10 years as it has been suggested by the Respondent No.1’s learned counsel. More particularly, a candidate has to prove his credentials in terms of both Articles 62 and 63 of the Constitution to establish that no objection/attack is actionable against him or her; both before as well as after entering the Parliament or Provincial Assembly. In a number of cases, the Court has intervened in the election of such candidates who were found to be disqualified after having been elected the members of the Parliament and thereby they were de-notified. Reference in his behalf may be made to the cases of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 SC 1089) and Muhammad Azhar Siddiqui v. Federation of Pakistan (PLD 2012 SC 774). In the latter case, former Prime Minister Syed Yousaf Raza Gillani was found guilty of Contempt of Court by a 7-member Bench of this Court, as a result whereof he was sentenced, and subsequent thereto, on a number of petitions filed by politicians, including one filed by Mr. Imran Khan, Chairman of the Pakistan Tehreek-e-Insaf, question of the then Prime Minister’s disqualification was examined and he was de-notified to hold the office of Member of National Assembly forthwith, with all its consequences. CA 669-L/13 20 24. Learned counsel for Respondent No.1 stated that entire exercise is with regard to 2008 elections whereas new elections were held in 2013 and Appellant filed election petition on the same ground. It may be seen that when the Court was hearing the case, it was brought to our notice that election petition wherein appellant Umar Aslam Khan had challenged the election held on 11.05.2013. And said petition has been dismissed for violating mandatory provision of section 55(3) of ROPA as it has been observed in the order of Election Tribunal, Faisalabad dated 1.10.2013. Copy of the same, after procuring from the Tribunal, has been placed on record. Having said so, it is to be noted that in view of the above discussion instant matter relates to election of 2008, decision of which has been taken on 05.04.2013 by the Election Tribunal on the petition of Appellant. In view of the above discussion, the instant case involves more than the mere issue of maintainability of the appeal. Rather, the instant case also involves the question of the power of the Court to hear the appeal and finally dispose of the issues therein. Thus, the appeal would not become infructuous with the flux of time as findings so recorded by the Election Tribunal are based on the material produced before it, therefore, adjudication has to take place. 25. Moving further, it may be observed that according to learned counsel for the Appellant, the Election Tribunal has based its finding on the fact that Respondent No.1 had obtained BA degree in the ordinary course. He has referred to evidence, which has been relied upon by the Tribunal. According to him, the conclusion of the Tribunal is not based on correct appreciation of evidence. On the other hand, learned counsel for Respondent No.1 contended that the CA 669-L/13 21 Committee constituted by the University had independent jurisdiction and in view of evidence so brought on record a correct decision was arrived at; therefore, no interference is called for. 26. It is to be seen that the learned Tribunal, after having gone through one para of the petition, in which the allegation of fabricated degree has been levelled against Respondent No.1, proceeded to note that record does indicate that Respondent No.1 actually sat herself in the BA examination, whereas, by the Appellant the precise allegation against Respondent No.1 was that in absence of having her photographs on the application form or registration record as well as record of examination, she procured a fake and bogus degree, and further it was alleged that if there is any record with the University, same was falsely created under direct and unlawful influence of the Respondent No.1’s husband. It may be noted that at the time of submission of application form for examination of BA in the University of Punjab, her husband namely Malik Tahir Sarfraz, was Additional Secretary Schools and had attested her alleged admission form. In reply, Respondent No.1 denied the allegation as false and her stand was that she was bona fide graduate and the allegation was highly degrading and vague. However, learned Tribunal referred to the statement of Muhammad Rauf Nawaz, Deputy Controller (Examination) who appeared as PW-5, and also discussed the details of the record, including the statement of Muhammad Rauf Nawaz and details of the document, which according to him was admittedly part of the record of University of Punjab. It is important to note that the Tribunal also observed that “what is important to note is that the allegation of impersonation was levelled by the petitioner against CA 669-L/13 22 Respondent No.1 for the first time in the year 2002 by way of an application before the University of the Punjab. The said charges were not proved and after due inquiry in which the both parties participated, the degree of Respondent No.1 was found to be valid and the charge of impersonation was found to be baseless.” Learned Tribunal has relied upon the findings of the Committee of the University of the Punjab comprising:- (a) Sh. Rehmat, Assistant Controller-II; (b) Muhammad Akram Khan, Deputy Controller, (Examination); (c) Muhammad Akram Khan, Deputy Controller (Secretary). The Committee examined Respondent No.1’s admission form, result notification, award list, attendance chart, answer books, roll number slips, national identity card, her specimen signatures, handwriting which was compared with the handwriting on the answer books. The Committee found the handwriting on the specimen and the handwriting in the answer books as identical and according to the observation/finding so recorded by it, the Appellant on his appearance produced three documents namely (1) Election Poster with the photograph of respondent No.1 (2) Photocopy of the Admission form and (3) a photograph of respondent No.1 published in a newspaper. The report of the Committee contains the following observations:- (a) National Identity Card. Its copy was not attached with the Admission Form. It was inspected in original and photocopy retained. Same was issued on 21.08.2002. CA 669-L/13 23 (b) Specimen handwriting obtained, compared with the handwriting of the candidate’s Answer Books. The handwriting was found similar. (c) Photographs on the roll No Slip, Admission Form compared with the photo of the candidate’s NIC and candidate herself & found similar. (d) Specimen signature of the candidate obtained & compared with the one on NIC, SF 16 and found similar. The statements of Appellant and Respondent No.1 were also recorded who supported their respective stances taken before the Court. 27. It is important to note that Learned Counsel for Respondent No.1 pointed out that a manual Identity Card was issued to Respondent No.1 bearing No.128-63-180716. Subsequently, she moved an application with NADRA intimating that her correct year of birth was 1964 instead of 1963; therefore, corrected National Identity Card bearing No.128-64-180716 was issued to her. Later, upon introduction of computerized I.D. Cards, a Computerized National Identity Card was issued to her, which indicated her date of birth as 1963. (It is important to note that she herself has brought on record that in one of the ID Cards prepared manually, her date of birth was written as 1963, which she got corrected as 1964 and then again when she obtained computerized ID Card, it again indicated her date of birth to be 1963). 28. Learned Tribunal also obtained consent of the learned counsel and summoned relevant record of NADRA and examined the same. The Tribunal compared her signatures in exercise of powers CA 669-L/13 24 under Article 84 of the Qanun-e-Shahadat Order, 1984 and on her appearance she was also compared with the photograph attached with the admission form, registration form and Roll Number Slip with the attendance sheet of respondent and on having taken into consideration all the material, concluded that the photographs on the Forms were those of the Respondent No.1 herself and not of any third party who had allegedly impersonated her. Consequently petition was dismissed. 29. In view of the facts that all the documents referred to hereinabove have been relied upon by the Election Tribunal and based its findings on the same without any objection from Respondent No.1, therefore, this Court is bound to consider the effect of the same vis-à- vis the plea of both the sides. 30. Learned counsel for Appellant besides relying upon the documentary evidence has also referred some of the oral parts of her statement to substantiate his plea. It is a cardinal principle of appreciation of evidence that in presence of both kinds of evidence i.e. oral and documentary, preferably the Courts take into consideration latter kind of evidence. Therefore, it would be appropriate to discuss the same in the light of the findings so recorded by the Tribunal. 31. Learned Tribunal perhaps for want of proper assistance has referred to an application filed in the year 2002 by the Appellant before the University of Punjab. However, in the year 2002, admittedly no application was filed by Appellant. The correct position in this behalf is that reference of the members of the Committee namely Sh. Rehmat Assistant Controller and Muhammad Akram Khan, Deputy Controller relates to report dated 10.12.2002 which emerged from a CA 669-L/13 25 civil suit filed by one Muhammad Afzal son of Muhammad Din. Learned counsel for the Appellant during hearing of the appeal, filed CMA 6329/2013 for the purpose of placing on record the plaint dated 14.12.2002 in the aforementioned Civil Suit which was filed against the Board of Intermediate and Secondary Education, Lahore as well as Controller of Examination, Board of Intermediate. 32. It is to be noted that the residential address of the plaintiff Muhammad Afzal as mentioned in the plaint was 38-J, Defence Housing Authority, Lahore, which was the same as that of Appellant Umar Aslam mentioned by him in his application dated 28.01.2003 filed before the Vice Chancellor, University of Punjab, but this application is not relevant in any manner with the above-referred report of the Committee dated 10.12.2002 as the application was submitted on 29.1.2003. The Vice Chancellor/Controller of the Examination and Respondent No.1 were not made party in the civil suit. An application under Order VII, Rule 11 of CPC was moved in that suit for the rejection of the plaint as against Board of Intermediate and Secondary Education said Court had no jurisdiction. Ultimately the suit was dismissed for non-prosecution on 13.11.2003. Reference of the civil suit has been made here because learned counsel for Respondent No.1 has himself brought on record the same. A perusal of this document, which bears signatures of the members of the Committee and also Deputy Controller as well as Controller of Examinations, also suggests that Appellant had not participated in the said proceedings. Therefore, the observations of the learned Tribunal that the Appellant participated in those proceedings is not correct. Same is the position of the proceedings which took place on 12.12.2002 because on the said CA 669-L/13 26 date as well, the Appellant was not associated in the proceedings arising out of civil suit, obviously for the reasons that according to the contents of the plaint he was neither cited as plaintiff or defendant nor there is any material on record to suggest that he was summoned in these proceedings. 33. It is to be seen that on 10.12.2002 the Committee examined Admission Form, Roll No Slip, Gazette of BA 1st Annual Examination, 2002, Award Lists and Attendance Chart of Respondent No.1 and found the following:- She appeared in B.A Annual Exam 2002 under roll No.54334 Regd No.2002-z-27691 and was declared passed securing 293 marks. Photographs pasted on the Roll No slip and Admission Form were similar to each other. It was observed that allegation of impersonation can, however, be verified only after due inspection of the candidate’s NIC and her handwriting to compare it with the Answer Books. This document does not indicate that she was summoned on the following date; whereas report dated 12.12.2002 suggests that Respondent No.1 appeared before the Committee on 11.12.2002. Report further reveals that:- (a) Copy of NIC was not attached with the Admission Form. It was inspected in original and photocopy retained. Same was issued on 21.08.2002; (b) Specimen handwriting obtained compared with the handwriting of the candidate’s Answer Books. The handwriting was found similar; CA 669-L/13 27 (c) Photographs on the Roll No.Slip, Admission Form compared with the photo of the candidate’s NIC and candidate herself, and found similar. (d) Specimen signature of the candidate obtained & compared with the one on NIC, SF 16 and found similar. After making the above observation, the Committee was of the view that the charges of impersonation are baseless and the result notified is correct. This document was signed again by 5 persons whose names have already been noted hereinabove. As the Appellant was not party, therefore, on 29.01.2003 he filed an application for permission to participate and assist the pending proceedings against Respondent No.1. Contents of this application are reproduced hereinbelow:- Sumaira Malik Tahir daughter of Allah Yar Khan purportedly appear in B.A. Examination under Roll No.54334. The registration number of the said candidate was 202-Z-27691 while the serial number was 102527. She has been declared as successful candidate while the fact remains that she procured the degree by impersonation. She has impersonified herself with some other lady who took the exam in her place. The University has initiated the proceedings against the said candidate and it was the applicant who through a formal application brought to the notice of the University about the said illegality and fraud played by the said candidate. There is every likelihood that the said candidate by exerting her influence might take illegal advantage and get the record destroyed or fabricated. The applicant is an aggrieved person as the said candidate by using unfair means procured the B.A. Degree and subsequently contested the last general CA 669-L/13 28 election. The applicant is in a position to provide sufficient proof about the illegalities, which the said candidate has committed. It will be in the interest of justice, equity and fairplay that the petitioner be allowed to join the aforementioned proceedings. The permission to allow the petitioner in the said proceedings would make the process transparent and fair. It is therefore, most respectfully requested that the applicant may please be allowed to participate and join the proceedings for fair, just and lawful decision of the matter. 34. A perusal of above application indicates that it was not the Appellant on whose application the University has initiated proceedings against respondent No.1. Essentially, the appellant has not adverted to the finding recorded on 10.12.2002 and 12.12.2002 because same were on account of Civil Suit which was filed against Vice Chancellor and Respondent No.1 and in these proceedings he was not a party. It seems that some other applications have been moved by him on the basis of which proceedings were initiated. On one of these applications, an order was passed by the Vice Chancellor on 17.01.2003 and a report was prepared on 10.02.2003 again by Muhammad Akram Khan, Deputy Controller Exams under his signatures, wherein it was mentioned that a civil suit was filed against Respondent No.1, who appeared in BA annual examination, 2002 under Roll No.54334 containing the allegation that she made arrangements to cheat in the examination by way of impersonation. The Court directed the University to report the validation of her result. Case was placed before the Committee for consideration. The Committee considered the Admission Form, Result Notification, Award CA 669-L/13 29 Lists, Attendance Chart, Answer Books and Roll No. Slips, etc. It may be noted that these are the same documents reference of which has been given by the Presiding Officer of Election Tribunal attributing that the application was filed by the Appellant whereas from these documents it is also clear that these proceedings were drawn in pursuance of a civil suit to which the Appellant was not a party. It is further stated in the said document that the Committee after examining the whole record directed office to call upon the candidate to appear before it along with her National Identity Card. Candidate appeared before the Committee; her NIC was checked; her specimen handwriting was obtained and compared with the handwriting available on the answer books and it was found identical. In the meanwhile, another application from the Appellant was received stating therein that he had some solid evidence against Ms. Sumaira Malik Tahir. He provided three documents to the Committee: Election Poster with photograph of the candidate, photocopy of Admission Form and a photocopy of her photograph published in the newspaper. After going through the said documents the Committee was of the view that Respondent No.1 is not guilty of impersonation and her result is valid as per University record. On the said noting, Vice Chancellor passed following order:- “Please review and put all documents seen by the Committee by 20.2.2003.” However, the matter was not placed before Vice Chancellor as per available record as the Additional Controller wrote ‘seen’ on the note. 35. It is not understandable that when the application of Appellant had not been entertained and he had not been made party in CA 669-L/13 30 the earlier proceedings held on 10.12.2002 and 12.12.2002, instead of allowing him to participate in the proceedings, merely on receipt of documents referred to hereinabove, it was concluded that Repondent No.1 is not guilty of impersonation. We are of the opinion that any proceedings which have been drawn in absence of the Appellant do not have binding effect upon him as he had a right to be allowed to participate in the proceedings. 36. Learned Tribunal has not made reference to the second report, which has been signed by Mr. Muhammad Akram Khan, Deputy Controller (Exam) and Additional Controller (Exam) on 10.2.2003 and the Tribunal concluded that Respondent No.1 is in possession of a genuine degree by relying upon the reports of the Committee arising from the aforementioned civil suit.. This statement of fact, as it is apparent, is not correct. The three member Committee was constituted by the Vice Chancellor and later a five members Committee was constituted, names whereof have already been mentioned hereinabove, for probing into the issue, which has arisen at that time out of a civil suit filed by Muhammad Afzal or in respect of some other suit wherein Vice Chancellor and Respondent No.1 were parties. Therefore, under the circumstances, the conclusion that the findings of the Committee followed those of another Committee is not acceptable. The Tribunal seized with the issue could have inquired from both the sides about the nature of the proceedings which have given rise to constitute a Committee to record proceedings on 10.12.2002 signed by five persons. Inasmuch as nothing has been stated in respect of application dated 29.01.2003. As this document is not disputed, therefore, making reference to the same is not difficult. CA 669-L/13 31 37. Thus, in view of such circumstances we have to examine the documents independently. In a number of cases, courts, including the Supreme Court have examined the veracity of documents, signatures and handwriting under the powers granted by Article 84 of the Qanun-e-Shahadat Order, 1984. Reference may be made to Waqas Enterprises v. Allied Bank of Pakistan (1999 SCMR 85), Ahmed Hassan Khan v. Naveed Abbas (1998 SCMR 346) and Zar Wali Shah v. Yousaf Ali Shah (1992 SCMR 1778). 38. First of all reference has to be made to the Admission Form, Ex.R1/3, which is purportedly filled by the Respondent, containing her photograph Ex.RW 1/2 to appear in BA examination as a private candidate. Admittedly no ID Card was attached as it is mentioned in the proceedings dated 10.12.2002 conducted by five members Committee arising out of a civil suit. It is important to note that in Column No.19 of the Admission Form, it was necessary to note Bank Challan Number, Date, Amount and City/Branch, because according to the calendar of the University of Punjab no student shall be allowed to appear in examination if requisite fee for examination etc. has not been paid. 39. Admittedly, on examining the Admission Form and Roll No. Slip, it appears that there is no difference in both these photographs. According to her own version, her date of birth was shown in the manual ID Card as 1963 and she got it corrected her date of birth as 1964 and number of the same has been mentioned in the Admission Form. It would be appropriate to note that at the time of preparation CA 669-L/13 32 of manual ID Card, in Blocks 5 and 6, the year of birth used to be mentioned. 40. A comparison of all the three ID Cards of Respondent No.1 with the naked eye makes it abundantly clear that her photograph on ID Card showing her date birth to be 1964 bearing No.128-64-180716 is identical with the photographs on Admission Form as well as Roll No. Slip. Whereas, there is quite a noticeable difference between the above said photographs and the photographs appearing on her manually prepared ID Card bearing No.128-63-180716 as well as her computerized ID Card bearing No.61101-0176307-6 wherein again her date of birth has been shown as 1963. Similar is the position of her photographs appearing in the newspaper filed by the appellant. Likewise, photograph appearing on posters used for the election campaign is not identical with the photographs appearing on the Admission Form and Roll No. Slip as well as ID Card showing her date of birth to be 1964. 41. Now turning towards the handwriting, it is to be noted that she had allegedly given sample of her handwriting, extract of a para, which has been produced before this Court. A plain comparison of the signature on the ID Card bearing No.128-64-180716, handwritten samples and the signatures on the Admission Form clearly indicates that there is lot of difference. We consider it appropriate to hold, with due deference, that the learned Tribunal had a duty to compare all these documents in juxtaposition to ascertain whether Respondent No.1 appeared in the examination. Respondent No. 1’s oral evidence has also not supported her contention as after going through her cross-examination one can conveniently note that she failed to furnish CA 669-L/13 33 correct version of her stance, which she has taken before the Tribunal as well as before the Election tribunal. Therefore, on deep appreciation of evidence, both documentary and oral, made by the parties and also going through the judgment of the learned Tribunal we have no option except to hold that University authorities failed to arrive at a correct conclusion in view of the evidence produced before them. It is clear that in order to make herself qualified for contesting elections in the year 2002 she arranged a BA degree by way of impersonation to fulfill the requirements of Article 8-A of the Conduct of General Election Order, 2002. Otherwise, after having passed Intermediate in the year 1981 there was no necessity for her to obtain BA degree. 42. Learned counsel for Respondent No.1 contended that as there is allegation against the University, therefore, without impleading the same no finding can be recorded. We are of the opinion that the contentions, raised by the learned counsel are not entertainable because there are always litigations between the parties in respect of validity and genuineness, of the degree obtained by adopting illegal means including impersonation. It is to be observed that a University, being a place of education, should not be dragged into litigation; as it is for the University to decide whether or not to take action against delinquents. 43. Learned counsel for Respondent No.1 also stated that the Appellant has not approached the Court with clean hands because as far as the contents of the application dated 29.05.2003 are concerned, he participated in the proceedings and the stand taken by him before the Court was that he was not allowed to participate in the same. The CA 669-L/13 34 arguments of the learned counsel could have carried weightage had we not held hereinabove that the Respondent No.1 is in possession of BA degree which she has got by impersonation. Thus, the arguments are without substance and not acceptable. 44. The next question is as to whether the appellant is entitled for any relief in view of the fact that Respondent No.1 is no more member of the National Assembly as a result of the General Elections of 2008 because the Assembly, after completing its term has been dissolved. It is to be noted that the Appellant has been diligently pursuing the case of Respondent No.1’s disqualification for the last so many years commencing from 2002 up till now. Therefore, he is entitled for the relief as it has been concluded against Respondent No.1 that she has obtained BA degree by way of impersonation; meaning thereby that at the time when she filed nomination papers she was not qualified to contest and had proved herself not sagacious, righteous, non-profligate, honest and Ameen in terms of Article 62(1)(f) of the Constitution, as it has held in the case of Syed Mehmood Akhtar Naqvi’s case (PLD 2012 SC 1089). Relevant portion therefrom is reproduced hereinbelow:- “81. … … (d) All the Members of the Parliament/Provincial Assemblies noted above had made false declarations before the Election Commission while filing their nomination papers and as such appear to be guilty of corrupt practice in terms of Section 78 of Representation of Peoples Act, 1976, therefore, the Election Commission 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. (e) The members of Parliament/ Provincial Assemblies noted hereinabove, being disqualified persons are directed to refund all monetary benefits drawn by them for the period during which they occupied the public office and had drawn their emoluments etc. from the public exchequer including monthly remunerations, TA/DA, facilities of accommodation along with other perks which shall be calculated in terms of money by the Secretaries of the Senate, National Assembly and Provincial Assemblies CA 669-L/13 35 accordingly. (f) The amount, so recovered from all of them by respective Secretaries shall be deposited in the public exchequer within a period of two weeks and compliance report shall be sent to the Registrar. (g) 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 held 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 provision 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. Rahman 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) of the Act of 1976. Therefore, for such purposes Article 63(p) is to be adhered to because the disqualification incurred by him is envisaged under the law, referred to hereinabove in view of his own statement that he had renounced his citizenship of UK whereas the fact remains that such renunciation along with declaration can only be seen as having been made on 29-5-2012.” In the case of Malik Iqbal Ahmad Langrial v. Jamshed Alam (PLD 2013 SC 179) this Court held as under: - “10. Learned counsel for the appellant has vehemently argued that prior to 18th Constitutional Amendment, in terms of Article 62(1)(f) of the Constitution, the Court was not empowered to declare any person to be non-sagacious, not righteous or honest or an ameen, as such the observations of the Election Tribunal that the appellant was not only to contest the election in the year 2008, but was also not righteous or honest or an ameen person, was sustainable. In this regard it is to be noted that at the time of filing of nomination papers to contest the election in the CA 669-L/13 36 year 2002, the appellant produced fake and forged education certificates and the Election Tribunal had declared him to be a impostor vide judgment dated 26.12.2002. It is to be noted that Article 62(1)(f), as it stood prior to 18th Constitutional Amendment, provides that a person shall not be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless he is sagacious, righteous, non-profligate, honest and ameen. It is clear from the plain reading of the said Article that there is no restriction upon the Court/Tribunal to declare any person to be not sagacious, righteous or ameen. Admittedly the appellant used fake documents not only in the year 2002 but also in the year 2008 and also made false declaration making him liable to criminal action under certain provisions of P.P.C. In the case of Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80) this Court had upheld the findings of Election Tribunal, Punjab whereby it was held that a person who indulges into using unfair means in procuring his educational qualifications does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. The spirit with which the words sagacious, righteous, non profligate, honest and Ameen have been used by the Constitution of Islamic Republic of Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members of National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their educational documents through unfair means and are found guilty of such a condemnable act by the competent authority are allowed to be given entry into the doors of National or Provincial Assemblies of our country. The respondent (therein) is thus not worthy of credence and cannot be allowed to be entrusted with State responsibilities of Law Making; to be in-charge of the National Exchequre or be eligible to represent the people CA 669-L/13 37 of Pakistan.” In the case of Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II (2013 SCMR 1271) it was held that: - “14. In the instant case, the appellant has failed to meet the criteria set out for proposed candidates under Article 62(1)(d) & (f) of the Constitution and subsections (d), (e), (f) and (g) of section 99 of the Representation of People Act, 1976. It may be noted that under Article 63 of the Constitution of the Islamic Republic of Pakistan there are certain disqualifications which are of temporary nature and a person disqualified under Article 63 can become qualified after lapse of certain period as mentioned therein, whereas, the requirement of Article 62 are of permanent nature and a person has to fulfill certain qualifications/conditions to become eligible to be elected or chosen as a member of Majlis-e-Shoora (Parliament), otherwise, he is not eligible to be a Member of Majlis-e- Shoora (Parliament). For this reason alone, Article 62 does not provide any period after which a person, who was declared disqualified under the said Article, can be eligible to contest the elections of the Parliament. In such view of the matter we hold that a person who is not qualified under Article 62(1)(f) cannot become qualified by efflux of time. Reference in this regard may also be made to the case of Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369). In such circumstances the appellant has rightly been disqualified to be elected as member of the Parliament by the learned Election Tribunal by allowing the election appeal filed against acceptance of his nomination papers by the Returning Officer which findings were upheld by the High Court of Balochistan. In view of the facts and circumstances of the case and the material available on record we are of the view that the findings of the learned High Court are based on correct appreciation of evidence on record and the law on the subject.” CA 669-L/13 38 In the case of Muhammad Azhar Siddiqui’s case (PLD 2012 SC 774) the Court, inter alia, held as follows:- “(3) As a Bench of 7 Hon’ble Judges vide judgment dated 26.4.2012 followed by the detailed reasons released on 8.5.2012 has found Syed Yousaf Raza Gillani guilty of contempt of Court under Article 204(2) of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 3 of the Contempt of Court Ordinance, 2003 and sentenced him to undergo imprisonment till rising of the Court under section 5 of the said Ordinance, and since no appeal was filed against this judgment, the conviction has attained finality. Therefore, Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament) in terms of Article 63(1)(g) of the Constitution on and from the date and time of pronouncement of the judgment of this Court dated 26.4.2012 with all consequences, i.e. he has also ceased to be the Prime Minister of Pakistan with effect from the said date and the office of the Prime Minister shall be deemed to be vacant accordingly”. 45. Thus, on account of disqualification, under Article 62(1)(f) of the Constitution, in view of discussion and principles discussed above, the Respondent No.1 was not qualified to contest the elections in terms of the Constitutional provisions noted hereinabove, and she was not holding the office of MNA from Constituency No.69 with lawful authority; as a disqualified person has no right to represent the electorate of the country. Therefore, on account of such qualification she would not be entitled to contest the election in future as well, and if she does contest elections and is declared successful, the Election Commission shall be bound to de-notify her. From ab-initio, when she submitted nomination papers she was not qualified as according to CA 669-L/13 39 findings so recorded by this Court she had obtained BA degree by way of impersonation and depending upon the same educational qualification as it is normally disclosed by the candidates in the nominations papers, she had proved herself not to be truthful person. 46. For the foregoing reasons, the instant appeal is allowed. Resultantly, the notification dated 01.03.2008, notifying Respondent No.1 as the returned candidate from the Constituency NA-69 (Khushab-I) in the general elections held on 18.02.2008, is declared to be void. Ms. Sumaira Malik is hereby declared to be disqualified from becoming Member of Parliament with all its consequences noted hereinabove. 47. Copy of the judgment be sent to the Election Commission of Pakistan for further proceeding in accordance with law. The Appellant is also held to be entitled for cost throughout. Chief Justice Judge Judge Announced on 28.10.2013 at Islamabad Chief Justice Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB MR. JUSTICE MUNIB AKHTAR Civil Appeal Nos. 675 of 2019 to 988 of 2019 (On appeal from the judgment/order dated 30.08.2018 of the Federal Service Tribunal, Islamabad passed in Appeals No. 336 to 386, 404 to 405, 1084 to 1198®CS/2018, 4428 to 4500®CS/2017, 23 to 67(P)CS/2018,259 to 263®CS/2018, 1523 to 1545®CS/2018) in CA.675 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Asif Ali in CA.676 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Hifazat Ellahi in CA.677 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Shafique in CA.678 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Khalid Zubair in CA.679 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ali Asghar in CA.680 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Fayyaz Muhammad in CA.681 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Qadeer in CA.682 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Tariq in CA.683 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Wasi ur Rehman C.A. NO. 675 OF 2019 ETC. 2 in CA.684 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Tariq in CA.685 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Bashir Ahmed in CA.686 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. M. Abid Qureshi in CA.687 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Rehman In CA.688 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ali Khan In CA.689 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ziauddin In CA.690 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shakeel Ahmed in CA.691 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Aziz Ahmed in CA.692 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ejaz Muhammad in CA.693 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Tanseer In CA.694 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Rasool Bux in CA.695 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Siddiq in CA.696 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Zubair in CA.697 of 2019 Senior General Manager/CEO, Pakistan C.A. NO. 675 OF 2019 ETC. 3 Railways Headquarters Lahore & another vs. Zulfiqar In CA.698 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Nadir in CA.699 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Sajjad in CA.700 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Luqman in CA.701 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Sami ul Haq In CA.702 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Naveed Sarwar in CA.703 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Aurang Zeb in CA.704 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Rahat Hussain in CA.705 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Matloob Hussain In CA.706 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Syed Nizamuddin in CA.707 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Manzoor Ali in CA.708 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Aqeel Anwar in CA.709 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Fayyaz Muhammad In CA.710 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. C.A. NO. 675 OF 2019 ETC. 4 Abid Ali in CA.711 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shakeel Ahmed in CA.712 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Rahmatullah in CA.713 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Kamran In CA.714 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Hafeez In CA.715 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Qamar Ahmed In CA.716 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ghulam Mustafa In CA.717 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs.Amir Ahmed In CA.718 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Jaaro Khan In CA.719 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Ashraf In CA.720 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Niaz Hussain In CA.721 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Mumtaz Ali In CA.722 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Usman Ali In CA.723 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Saleem C.A. NO. 675 OF 2019 ETC. 5 In CA.724 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Dargahi In CA.725 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Aftab In CA.726 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Naseem Muhammad In CA.727 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ali Nawaz In CA.728 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Syed Muhammad Azhar ul Hassan In CA.729 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Tariq Aziz In CA.730 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Rashid Minhas In CA.731 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Javed Iqbal In CA.732 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Wazir Ahmed In CA.733 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Iqbal In CA.734 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Aziz In CA.735 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shams Pervaiz In CA.736 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Saleem C.A. NO. 675 OF 2019 ETC. 6 In CA.737 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Hameed In CA.738 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Fatah In CA.739 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Azam In CA.740 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Tahir Hussain In CA.741 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Syed Irfan Khalid In CA.742 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shahid Ali In CA.743 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ishtiaq Ahmed In CA.744 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Meraj ud Din Khan In CA.745 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Fayyaz In CA.746 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. ameer Bux In CA.747 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Mubeen In CA.748 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Safeer Ahmed In CA.749 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Rehmat Khan In CA.750 of 2019 Senior General Manager/CEO, Pakistan C.A. NO. 675 OF 2019 ETC. 7 Railways Headquarters Lahore & another vs. Habib Muhammad In CA.751 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Faheem ul Haq In CA.752 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. zahid ur Rehman In CA.753 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shaikh Mahtab In CA.754 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Raza Hussain In CA.755 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Mustafa Khan In CA.756 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Kafeel Ahmed In CA.757 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Wali Muhammad In CA.758 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Munir Ahmed Khan In CA.759 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ghulam Mustafa In CA.760 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Khan In CA.761 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Saleem ud Din In CA.762 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. shafi Muhammad In CA.763 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. C.A. NO. 675 OF 2019 ETC. 8 Mansoor Baig In CA.764 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Dawood Khan In CA.765 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shams ul Islam In CA.766 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Yaseen In CA.767 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Jameel Ahmed In CA.768 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Akram In CA.769 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Hameed Channa In CA.770 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Qadeer Khan In CA.771 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Zafar Khan In CA.772 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Nadeem In CA.773 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Waseem Ahmed In CA.774 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Roshan Ali In CA.775 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Waleed In CA.776 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Nazeer Ahmed C.A. NO. 675 OF 2019 ETC. 9 In CA.777 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Imam Ali In CA.778 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Ayub In CA.779 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ghulam Mustafa In CA.780 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Saleem In CA.781 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Kashif In CA.782 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Nawaz In CA.783 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Rashid In CA.784 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Arshad Mehmood In CA.785 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Arshad Mehmood In CA.786 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Fazal Ahmed In CA.787 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Arif Khan In CA.788 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Rauf In CA.789 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Syed Zaheer ud Din C.A. NO. 675 OF 2019 ETC. 10 In CA.790 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Sharif In CA.791 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Maqsood Ahmed In CA.792 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Latif In CA.793 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Saeed In CA.794 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Khalil In CA.795 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ghulam Farid In CA.796 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Rafiq Ahmed In CA.797 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Ashaque In CA.798 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shams ud Din In CA.799 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Jameel Ahmed In CA.800 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Pervaiz In CA.801 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Zakir Khan In CA.802 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shafait Ali In CA.803 of 2019 Senior General Manager/CEO, Pakistan C.A. NO. 675 OF 2019 ETC. 11 Railways Headquarters Lahore & another vs. Muhammad Irfan Khan In CA.804 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Zahid Khan In CA.805 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Ashraf In CA.806 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Saeed Khan In CA.807 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Hameed In CA.808 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Sabir Khan In CA.809 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Mehmooda Bano In CA.810 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shahid Hussain In CA.811 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Nadeem Ahmed In CA.812 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Syed Kaleem ud Din In CA.813 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Saeed Ahmed In CA.814 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Zaheer Abbas In CA.815 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Rehmat Ali In CA.816 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. C.A. NO. 675 OF 2019 ETC. 12 Muhammad Sharif Khan In CA.817 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Aslam In CA.818 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Hayat Ullah In CA.819 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Sain Bux In CA.820 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Azhar Ali In CA.821 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Shamim Akhtar In CA.822 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Nasir Khan In CA.823 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Fozia Zafar In CA.824 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Asif In CA.825 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Waziran In CA.826 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Latifan In CA.827 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Shafi In CA.828 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Asif In CA.829 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Kanwal Mehtab C.A. NO. 675 OF 2019 ETC. 13 In CA.830 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Akhtar Hussain In CA.831 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Aslam In CA.832 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Dil Murad In CA.833 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Naseem In CA.834 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Mazhar Ali Shah In CA.835 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Yaqoob In CA.836 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Hanook Shahzad In CA.837 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Imtiaz Bibi In CA.838 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Jahangir In CA.839 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Salah ud Din In CA.840 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Ali Anwar In CA.841 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Abdul Hadi In CA.842 of 2019 Senior General Manager/CEO, Pakistan Railways Headquarters Lahore & another vs. Muhammad Akram C.A. NO. 675 OF 2019 ETC. 14 In CA.843 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Allah Dino In CA.844 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Maqbool Hussain In CA.845 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Fida Hussain In CA.846 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Tufail Ahmed In CA.847 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Asif In CA.848 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Siddique In CA.849 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Ahsan In CA.850 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Rasheed In CA.851 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Iqbal In CA.852 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ali Akbar In CA.853 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Noor Muhammad In CA.854 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Noor Muhammad In CA.855 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Nisar Ahmed In CA.856 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Sarwar In CA.857 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Aziz In CA.858 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Rasool In CA.859 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Badaruddin In CA.860 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Zulfiqar Ali C.A. NO. 675 OF 2019 ETC. 15 In CA.861 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Syed Waseem Hussain In CA.862 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Shoukat Hussain In CA.863 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Mansoor Ahmed Khan In CA.864 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Ramzan In CA.865 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Abdul Rehman In CA.866 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Shabber Ahmed In CA.867 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Wazir Ali In CA.868 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Asghar In CA.869 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Sarwar In CA.870 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ali Gohar In CA.871 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Tarique Khan In CA.872 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Mumtaz Ali In CA.873 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Zaheer In CA.874 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Wahid Bakhsh In CA.875 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Yaseen In CA.876 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Allah Wadhayo In CA.877 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Samad Ahmed Khan In CA.878 of 2019 Chairman, Pakistan Railways, Islamabad and C.A. NO. 675 OF 2019 ETC. 16 another vs. Lall Bux In CA.879 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Nadeem In CA.880 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Mir Muhammad In CA.881 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Talib Hussain In CA.882 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Mahiwal In CA.883 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Tariq Javed In CA.884 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ejaz Hussain Shah In CA.885 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Shoukat Ali In CA.886 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Majeed In CA.887 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Sarwar Ali Rajput In CA.888 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Sikandar Ali In CA.889 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Shoaib In CA.890 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Fateh In CA.891 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Bashir Ahmed In CA.892 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Saifullah In CA.893 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Aijaz Ali In CA.894 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Siddique In CA.895 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Shoukat Ali C.A. NO. 675 OF 2019 ETC. 17 In CA.896 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Waseem In CA.897 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Yousaf In CA.898 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Kishor Kumar In CA.899 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Mehar Ali In CA.900 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Zaffar Ahmed In CA.901 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Muhammad In CA.902 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Sarwar In CA.903 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Tanveer Ahmed In CA.904 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Rukhsar Ali Shah In CA.905 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Haseen ur Rehman In CA.906 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Javed Akmal In CA.907 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Nasir Mehmood In CA.908 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Soharab Khan In CA.909 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muzakir Hussain In CA.910 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Malik In CA.911 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Mujeeb ur Rehman In CA.912 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Anwar ud Din In CA.913 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Riaz Ahmed C.A. NO. 675 OF 2019 ETC. 18 In CA.914 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Mohram Ali In CA.915 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Hussain In CA.916 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Said Rasool In CA.917 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Sajid Hussain In CA.918 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Shabbir In CA.919 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Maqsood Anwar In CA.920 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Gul Wali Khan In CA.921 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Haroon In CA.922 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Aleem In CA.923 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Syed Azaz Ali In CA.924 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Riaz In CA.925 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Ishaq In CA.926 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Rasheed In CA.927 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Nawab Ali In CA.928 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Rasheed In CA.929 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Faqeer Nawaz In CA.930 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Hamid Nawaz In CA.931 of 2019 Chairman, Pakistan Railways, Islamabad and C.A. NO. 675 OF 2019 ETC. 19 another vs. Altaf Hussain Shah In CA.932 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Tariq Iqbal In CA.933 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Arshad Ali In CA.934 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Naseer ud Din In CA.935 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Fazal Habib In CA.936 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Pir Imdad Ali In CA.937 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Janat Khan In CA.938 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Naseem Khan In CA.939 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Rasool In CA.940 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Nasir Shah In CA.941 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Taskeen Hussain In CA.942 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ghulam Mustafa In CA.943 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Deyar Muhammad In CA.944 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Suleman In CA.945 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Hidayatullah In CA.946 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Bashir In CA.947 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Wajid Ali In CA.948 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Qasir Rehman C.A. NO. 675 OF 2019 ETC. 20 In CA.949 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Azhar Siddique In CA.950 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Khalid Hussain In CA.951 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Saleem In CA.952 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Sohna Khan In CA.953 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Fazal Muhammad In CA.954 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Raziq In CA.955 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Noor Rehman In CA.956 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Ijaz Ahmed Shah In CA.957 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Abdul Nasar In CA.958 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Muhammad Saddique In CA.959 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Rashid Iqbal In CA.960 of 2019 Chairman, Pakistan Railways, Islamabad and another vs. Inayatullah Khan In CA.961 of 2019 Divisional Superintendent Pakistan Railways, Rawalpindi and another vs. Muhammad Asif In CA.962 of 2019 Divisional Superintendent Pakistan Railways, Rawalpindi and another vs. Muhammad Imran In CA.963 of 2019 Divisional Superintendent Pakistan Railways, Rawalpindi and another vs. Syed Shabbir Abbas Bukhari In CA.964 of 2019 Divisional Superintendent Pakistan Railways, Rawalpindi and another vs. Muhammad Tariq Faroori In CA.965 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Abid Hussain C.A. NO. 675 OF 2019 ETC. 21 In CA.966 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Shakir In CA.967 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Zulfiqar Ahmed In CA.968 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Rasheed Ahmed In CA.969 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Imran Khan In CA.970 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Habib ur Rehman In CA.971 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Gulzar In CA.972 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Akram In CA.973 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Zafar Abbas In CA.974 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs.Muhammad Arshad Mehmood In CA.975 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Mukhtiar Hussain In CA.976 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Safdar Khan In CA.977 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Abdul Ghafoor In CA.978 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Asad Naeem In CA.979 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Mazhar Hussain Shah In CA.980 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Allah Ditta In CA.981 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Riaz In CA.982 of 2019 Divisional Superintendent Pakistan Railways, C.A. NO. 675 OF 2019 ETC. 22 Multan and another vs.Ehsan Ullah In CA.983 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Tariq Hussain In CA.984 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Mureed Hussain Shah In CA.985 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Amjad Khan In CA.986 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Jameel In CA.987 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Amjad In CA.988 of 2019 Divisional Superintendent Pakistan Railways, Multan and another vs. Muhammad Nazar For the appellant(s) Hafiz S.A. Rehman, Sr. ASC Mr. Mehmood A. Sheikh, AOR Mr. Rizwan Saeed Khan, Dy. Chief For the respondent(s) Ms. Shireen Imran, ASC Date of hearing 15.05.2019 JUDGMENT UMAR ATA BANDIAL, J.— A common question of law that arises for determination in these connected appeals is whether the respondents are entitled to the grant of annual increments for the period of two years training undergone by them at the Walton Training Academy, Lahore (“Academy”). The respondents were appointed by the appellants as Apprentice Loco Cleaners on different dates during the period 1988 till 2004 and sent for training on the T-4 course for a period of two years at the Academy. After qualifying the training course, the respondents were inducted into regular service and posted on posts at different stations in the Railways service. The claim for payment of annual C.A. NO. 675 OF 2019 ETC. 23 increments attributable to the two years period of T-4 training course was filed by the respondents on different dates in the year 2017. In their service appeals the respondents explained that their claims were being filed pursuant to a judgment of the learned Federal Service Tribunal (“FST”) dated 01.03.2016 titled Sohail Iqbal and others versus Pakistan Railways allowing the grant of annual increments to similarly placed employees of the appellants. This judgment was given by the learned FST in 16 connected appeals. It was assailed before this Court in Chairman, Pakistan Railways, Islamabad and another versus Saleem Akhtar and others (Civil Petition Nos. 1038 to 1054 of 2018) but these petitions were dismissed vide order dated 28.08.2018 on account of being time barred. Consequently, the judgment of the learned FST in Sohail Iqbal’s case dated 01.03.2016 attained finality and was duly implemented. 2. Based squarely on that judgment the learned FST has decided the appeals filed by the present respondents during the year 2017 and 2018. The material portion of the Sohail Iqbal judgment that is quoted in paragraph 3 of the impugned judgment is reproduced below: “8. We have given careful consideration to the notice which was issued by Divisional Superintendent, Multan on 26.04.2014 on the basis of letter of G.M (Power), Pakistan Railways, Headquarters, Lahore dated 20.04.1987. It was mentioned therein that the period between completion of training and assumption of duty may be treated as on duty for grant of annual increment. On the other hand, the appellants were held disentitled for annual increments during the training period. The inconsistency and discrimination, in the policy of the respondent department, is floating on the surface of the record. Why the said financial benefits has been presumed to be admissible for a particular class of employees (BS-11 and above) and other employees who get training in the Academy have been divested of such right. This enigma could not be resolved from the written objections or the arguments of the learned C.A. NO. 675 OF 2019 ETC. 24 counsel for the respondents. All the railway employees are to be treated alike. The admissibility of annual increments during the training period is a policy. Matter and all such employees are to be treated, at par, so that there is no discrimination which is abhorable and disapproved by our Constitution. In view of the foregoing discussion, we dismiss the appeal to the extent of the relief of up-gradation and the appellants shall feel well advised to approach the competent forum for remedy whereas partly allow these appeals with the direction to the respondent-department to make admissible the annual increments for the appellants for the period they remained in Academy for training course T-4, as was done in the letter of G.M (Power) Pakistan Railways dated 24.04.1987. The needful be done within a period of 3 months.” 3. Following the above dicta, the learned FST has in paragraph 6 of the impugned judgment granted the following identical relief to the respondents: “6. Therefore these appeals of identical nature are disposed of with the direction to the respondents “to make admissible the annual increments” to the appellants for the period they remained in Academy for training.” 4. A perusal of the judgment dated 01.03.2016 shows that it is based upon a letter dated 20.04.1987 issued by the General Manager (Personnel), Pakistan Railways and addressed to all Divisional Superintendents in the organization. From that letter, the learned FST has deduced that “the period between completion of training and assumption of duty may be treated as on duty for grant of annual increments.” This means that the service period falling after completion of training is to be treated as on duty period. However, rather paradoxically the relief that has been granted by the said judgment dated 01.03.2016 and followed by the impugned judgment is a direction to the appellant department to grant annual increments to the respondents “for the period they remained in Academy for training course T-4.” A cursory reference to the contents of the letter dated 20.4.1987 by the General Manager (Personnel), Pakistan Railways straightaway C.A. NO. 675 OF 2019 ETC. 25 shows that the relief granted by the judgment dated 01.3.2016 and the impugned judgment has gone far beyond the terms of the said letter which serves as the foundation of the relief granted. For the sake of certainly it is useful to reproduce the letter dated 20.04.1987. “PAKISTAN RAILWAYS HEADQUARTERS OFFICE LAHORE No.561-E/137-II (E.Policy) dated: 20.04.1987 All Divisional Superintendents, Including DS/W Pakistan Railways W.M/Signal Shops, Lahore G.M. (P) RM, Lahore The A.G M/A & B Lahore Sub: REGULARIZATION OF PERIOD BETWEEN COMPLETION OF TRAINING & ASSUMPTION OF DUTY. References have been received from the Divisions regarding regularization of intervening period between completion of training & assumption of duty of Probationary Sub-engineers Gr.I on the Pakistan Railways. The matter has been carefully examined in this office. It has been noted that Sub-Engineers Gr.I on the railways are recruited as probationary Sub Engineers against permanent vacancies in accordance with fixed quota reserved for them. Therefore all probationary Sub engineers recruited in accordance with prescribed rules and regulations and against permanent vacancies (except on ad-hoc/work charged) will have to be treated as railway servants from the day they join Services with full benefits in regard to continuity of services, grant of annual increments etc. All such cases may be dealt with in the manner indicated above. This also disposed of D.S/Lahore’s letter No.735- E/1/76 (P-I) dated 31.12.1981. for General Manager, (Personnel) 5. It is apparent from the contents of the above letter that the period intervening between completion of training and assumption of duty by probationary Sub Engineers Grade-I is regularized as service with full benefits including annual increments. C.A. NO. 675 OF 2019 ETC. 26 6. Another letter dated 23.07.1987 also repeats the same administrative principle for grant of annual increments. However, it is straightway clear that the learned FST has misread the letter dated 20.04.1987 by wrongly considering that it allows annual increments for the training period for T-4 course whereas the letter is referring to the post training service period. 7. The learned counsel for the appellants tried to distinguish the case of probationary Sub Engineers Gr.I to whom the letter dated 20.04.1987 applies from the respondents in the present cases who are Apprentices or Stipendiary students. He has referred to the Pakistan Railways Personnel Manual clause 214 to explain the nature of employment of Apprentices: “214. Appointment of Apprentice/Students.- On successful completion of the period of apprenticeship/Student in such capacity and on such pay as may be considered suitable for him, but no guarantee or promise of employment on completion of apprenticeship/studentship is given or implied by the Railway Administration.” Paragraph (G) of clause 214 clarifies the ineligibility of Apprentices to increment in their stipends: “(G) There will be no special rates of stipend for Apprentices/Stipendiary students. Apprentices and stipendiary students will be allowed the minimum of the National Scales of pay of the post to which they would be appointed on successful completion of their apprenticeship/stipendiary studentship. The period of apprenticeship/stipendiary studentship will not count for increment in the National Scales.” 8. Learned counsel has explained probationary Sub Engineers Gr.I are differently placed from Apprentices in respect of their service rights. However, for present purposes, we need not go into the distinction drawn for the simple reason that according to the letter dated 20.04.1987 even probationary Sub Engineers have C.A. NO. 675 OF 2019 ETC. 27 not been granted the benefit which has been extended to the respondents by the impugned judgment. 9. In order to understand why apprentices/stipendiary students do not enjoy the said increment is because during their stage of employment they fall under Clause 214 of the Personnel Manual, Pakistan Railways which states that no guarantee or promise of employment on completion of apprenticeship/studentship is given or implied to be given by the Railways Administration. Furthermore, clause (G) of the 561- E/129 (E. Policy) dated 25.7.1972 stipulated in the Personnel Manual’s Clause 214 makes it clear that “the period of apprenticeship/stipendiary studentship will not count for increment in the National Scales.” Therefore, during the training period for the T-4 course, the Apprentices/stipendiary students do not qualify as regular employees of the Pakistan Railways and are therefore not entitled to service benefits which include annual increments that are undoubtedly an incident of regular employment. 10. From the foregoing discussion, it is evident that the impugned judgment of the learned FST misread the record and therefore arrived at the wrong conclusion with respect to the grant of service rights of annual increments to the respondents. This happened due to an incorrect interpretation and appreciation of the administrative directions given in the letter dated 20.04.1987. In any event, it is clear from the Personnel Manual that during their period of apprenticeship the respondents were not eligible to be in regular employment of the Pakistan Railways under Clause C.A. NO. 675 OF 2019 ETC. 28 214 thereof which means that service benefits corresponding to such employment, namely, inter alia, annual increment was not available to them as clarified in sub clause (G) of Clause 214 of the Personnel Manual. 11. As a result, we find that the impugned judgment suffers from a serious error in interpreting the relevant service regulations and is therefore liable to be set aside. Accordingly, these appeals are allowed. Judge Judge Judge Islamabad 15.05.2019 Naseer Not approved for reporting

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan Mr. Justice Munib Akhtar CIVIL APPEAL NO.681 OF 2020 [Against the judgment dated 30.12.2019, passed by the High Court of Balochistan, Quetta in C.P.No.869 of 2016] National Bank of Pakistan and another. …Appellant(s) Versus Zahoor Ahmed Mengal. …Respondent(s) For the Appellant(s) : Mr. Kaleemullah Qureshi, ASC (via video link from Quetta) For the Respondent(s) : Mr. Kamran Murtaza, Sr.ASC (via video link from Quetta) Date of Hearing : 26.11.2020 O R D E R GULZAR AHMED, CJ.- We have heard the learned counsel appearing for the parties and have also gone through the record of the case. 2. This appeal is by leave of the Court. Necessary facts of the matter are that the respondent was employed as Officer Grade-II with the appellants-National Bank of Pakistan (the Bank) and was posted in the Satellite Town Branch, Quetta. He absented himself from duty from 31.10.2014 and was issued notice dated 08.07.2015, wherein he was asked to report for duty within three days of the said notice and to justify his absence. Again on 27.07.2015, absence notice was issued to the respondent and he was again directed to report for duty within three days of the issuance of the notice. The respondent did not join CA.681 of 2020 - 2 - duty, rather gave a reply dated 05.08.2015 in which he acknowledged the absence notice dated 27.07.2015 and stated that since November, 2014, he could not join the Branch due to threat to his life on account of tribal feud and that he has sent an application but has not received any response from the Branch. He has further stated in this very letter that it is extremely difficult for him to attend the office furthermore, due to life threat. In the letter, he has further stated that he may be allowed one more year’s leave without pay. He was again issued absence notice dated 06.08.2015 but he did not join duty. On 02.02.2016, he reported for duty for one day and on this very day he gave an application and thereafter, failed to report for duty. Ultimately, through Memorandum dated 07.04.2016, the service of the respondent was terminated for remaining absent from 31.10.2014. 3. Mr. Kaleemullah Qureshi, learned counsel for the appellants has contended that where the very absence from duty was admitted, there was no need for conducting of disciplinary proceedings and that the High Court has wrongly assumed that order of termination from service was passed under the National Bank of Pakistan Rules, 1980. He further contended that the High Court has also wrongly noted in the impugned judgment that the period of absence of the respondent has been condoned and his joining report was accepted by issuing a stern warning to the respondent. He contended that there is no evidence on the record showing condonation of absence or accepting joining or issuing of stern warning. 4. Mr. Kamran Murtaza, learned Sr.ASC for the respondent, on the other hand, has supported the impugned judgment but has frankly conceded that from 31.10.2014 to 07.04.2016, the respondent has remained absent from duty except for one day i.e. 02.02.2016. CA.681 of 2020 - 3 - 5. It is quite evident from the record and also admitted by the learned counsel for the respondent that the respondent had remained absent from 31.10.2014 to 07.04.2016 except for one day i.e. 02.02.2016, when he stated to have reported for duty. It is also apparent from the record that respondent was issued notices by the appellants to join duty but he did not join duty, rather took a plea that on account of tribal feud he is unable to work in the Bank having threat to his life. Though such ground was taken by him but as stated by the learned counsel for the appellants, the respondent did not provide any material or evidence showing that in fact there was any tribal feud or there was threat to his life and even no instance in this regard whatsoever was pointed out by the respondent. Not even an FIR of any incident showing threat to the life of the respondent was provided to the appellants. 6. From the record it is evident that the respondent has remained absent from duty and that he has filed some applications with the Bank asking for leave but such applications for leave were not allowed, rather through absence notices dated 08.07.2015, 27.07.2015 and 06.08.2015, the respondent was directed to join duty but he chose not to do so. 7. In the face of such absence from duty of the respondent, which being admitted, there was no need to hold a regular enquiry because this Court in the case of Federation of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad vs. Mamoon Ahmed Malik (2020 SCMR 1154), has already held that where the fact of absence from duty being admitted on the record, there was no need for holding of a regular enquiry for that there was no disputed fact involved to be enquired into. CA.681 of 2020 - 4 - 8. As regards the observation of the High Court that the absence period of the respondent was condoned as his joining report was accepted by issuing stern warning to the respondent, no document is available on the record which may show the period of absence of the respondent was condoned or his joining accepted or he was issued stern warning by the appellants. The only thing evident from the record is that by Memorandum dated 07.04.2016, the service of respondent was terminated from 31.10.2014 and the intervening period, from the date of absence from duty till the date of termination, was treated as Extra Ordinary Leave (EOL) without pay not counting towards Service, Promotion, Increment & Pensionary Benefits, etc. The treatment of absence period as EOL without pay has already been dealt with by this Court in the case of NAB through its Chairman vs. Muhammad Shafique (2020 SCMR 425) and Kafyat Ullah Khan vs. Inspector General of Police, Islamabad and another (Civil Appeal No.1661 of 2019), where it has been held that while imposing penalty on the employee in the case of unauthorized absence, the absence period treated as an EOL is not a punishment, rather is a treatment given to the absence period, which employer is entitled to do. 9. As regards the observation of the High Court in the impugned judgment that the order of termination has been passed under the National Bank of Pakistan (Staff) Service Rules, 1980. The very Memorandum dated 07.04.2016, by which the service of the respondent was terminated, is reproduced as follows: - “Human Resources Management & AW No.RO/QTA/HRM/AW/PF/ZH/OG-II/ Dated 07.04.2016 MEMORANDUM UN-AUTHORIZED ABSENCE FROM DUTY REPLY FOR THE ABSENC NOTICE DATED 27.07.2015-MR.ZAHOOR AHMED OG-II (CASH OFFICER) PF#2440189 (SAP ID # 5539) NBP, S.TOWN BRANCH QUETTA CA.681 of 2020 - 5 - Refer joining report dated 02.02.2016 along with 04 pages application dated 02.02.2016 and 02 pages application dated 04.04.2016, of Mr. Zahoor Ahmed, received from Manager, NBP, S.Town Branch Quetta vide letter No.NBP/STQ/JOINING/2016/133 and No.STQ/NBP/STAFF/2016/134 dated 04.02.2016, forwarded to Head Office vide RO. Quetta letter No.RO/QTA/HRM/AW/PF/ZA/OG-II/1269 dated 10.02.2016. The competent authority at Head Office vide letter No.PAW/I-MISC/RO(QTA)/UA/75/2015/4288 dated 29.03.2016 has advised that the services of Mr. Zahoor Ahmed OG-II have been terminated from the Bank on account of unauthorized absence with effect from the date of absence i.e. 31.10.2014, the intervening period from the date of absence from duty till the date of termination will be treated as Extra Ordinary Leave without pay not counting towards Service, Promotion, Increase/Increment & Pensionary Benefits etc. Therefore, he is advised accordingly wit the instruction to adjust all direct/indirect loans/liability outstanding against him immediately, otherwise, legal proceedings will be initiated for recovery against him and his Guarantor.” There is no mention whatsoever in this Memorandum that it was passed under the National Bank of Pakistan (Staff) Service Rules, 1980. It seems that the learned Division Bench of the High Court, who has passed the impugned judgment has merely relied upon the submission of the learned counsel for the respondent and assumed the same to be correct and thereafter, proceeded on such erroneous assumption and found the Memorandum of termination from service of the respondent to be illegal. 10. In our view, this very treatment of the Memorandum dated 07.04.2016 by the learned Division Bench of the High Court was not appropriate for it ought to have looked into the Memorandum to ensure and be satisfied that what was orally argued by the learned counsel for the respondent was correct. The Memorandum dated 07.04.2016 having not at all stated that it has been issued under the National Bank of Pakistan (Staff) Service Rules, 1980, finding such Memorandum to be illegal by the learned Division Bench of the High Court was absolutely erroneous and unjustified and was not in accordance with the law. CA.681 of 2020 - 6 - 11. We, therefore, find that the impugned judgment passed by the learned Division Bench of the High Court could not be sustained. The same is, therefore, set aside and the appeal is allowed. CHIEF JUSTICE JUDGE Bench-I Islamabad 26.11.2020 APPROVED FOR REPORTING Rabbani/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CIVIL APPEAL NOS.682 TO 684 OF 2008, 131,233,253,504, 219 & 220 OF 2011, 678-683, 783 & 729-732 OF 2012, 389- 401 & 710-713 OF 2013, 1632 OF 2014, 565 OF 2015 AND 1424-1425 & 2470 OF 2016 (on appeal against the judgments/orders dated 7.11.2007, 18.12.2007, 05.11.2008, 25.09.2009, 09.07.2009, 29.01.2009, 01.04.2008, 07.04.2008, 04.05.2012, 05.04.2012, 05.04.2012, 06.06.2012, 19.07.2012, 06.06.2012, 05.04.2012,13.07.2011, 05.04.2012, 07.12.2011, 10.09.2014, 21.01.2015, 17.11.2015, 22.03.216 of the Lahore High Court, Lahore passed in W.P.13331/2006, S.T.R.68/2006, S.T.R.13/2007, S.T.A.5/2005, S.T.R.42/2006, W.P.13499/2003, W.P.16171/2008, S.T.A.23/2006, S.T.A.2/2007, S.T.R.44/2010, S.T.R.29/2010, S.T.R.144/2011, S.T.R.95/2010, S.T.R.36/2011, S.T.R.26/2010, S.T.R.76/2010, STR 55/2009, S.T.R.82/2010, S.T.R.32/2010, S.T.R.73/2010 S.T.R.22/2010, S.T.R.77/2009, S.T.R.21/2010, S.T.R.43/2010,, S.T.R.85/2010, S.T.R.101/2010, S.T.R.21/2011, S.T.R.62/2011, S.T.R.68/2011, S.T.R.69/2011, S.T.R.75/2011, S.T.R.70/2011, S.T.R.22/2011, S.T.R.83/2011, S.T.R.130/2011, S.T.R.13/2011, S.T.R.114/2011, S.T.R.89/2014, S.T.R.14/2015, S.T.R.194/2015, S.T.R.195/2015, S.T.R.58/2016 respectively) AND CIVIL APPEAL NO. 733 OF 2010 AND CIVIL APPEAL NO. 1507 OF 2016 The Collector of Sales Tax, Gujranwala, etc. (in CAs 682/08 & 131/11) Assistant Collector (C&E Division) Gujranwala, etc. (in CA 683/08) Dy. Collector of Sales Tax Gujranwala, etc. (in CA 684/08) Abbasi Enterprises Unilever Distributor Haripur & another (in CA 733/10) The Collector of Sales Tax, & Federal Excise Lahore (in CAs 233/11) Collector of Sales Tax, Lahore (in CAs 253/11) Collector of Sales Tax Faisalabad, etc. (in CAs 504/11) Commissioner Inland Revenue, RTO, Faisalabad (in CAs 678- 683/12 & 710/13, 729- 732/12) Commissioner Inland (Rev.) Legal Division Regional Tax Office, Lahore (in CAs 389- 401/13) Commissioner Inland Revenue Sialkot (in CA 711/13) Director of intelligence & investigation FBR Lahore (in CA 712/13) Commissioner Inland (Rev) Zone-I Regional Tax Officer, Faisalabad (in CAs 713/13) Commissioner Inland Rev. Zone-II, RTO, Faisalabad (in CAs 1632/14, & 565/15, 1424, & 1425 & 1507/16) Commissioner Inland (Rev) Zone-III RTO, Faisalabad (in CA 2470/16) Collector of Customs Federal E & S Tax Multan (in CAs 219- 220/11) Civil Appeal Nos. 682 of 2008 etc. -: 2 :- …Appellant(s) VERSUS M/s. Super Asia Mohammad Din & Sons etc. (in CA 682/08) M/s. Hanif Straw Board Factory, etc. (in CA 683,684/08) The Collector of Sales Tax & Federal Excise, Peshawar & others (in CA 733/10) M/s. Farhan Plastic, etc. (in CA 131/11) M/s. Meraj Din & Sons, etc. (in CA 233/11) M/s. New Art Press (Pvt.) Ltd. etc. (in CA 253/11) M/s. Tanvir Weaving (PVT) Ltd. etc. (in CA 504/11) M/s Cresent Textile Mills Faisalabad (in CA 678/12) M/s Fabritex International C/o. Kay Sons (Pvt) Ltd. Faisalabad & another (in CA 679/12) M/s Pharianwali Sugar Mills Ltd. Lahore etc. (in CA 680/12) M/s Aftab Soap Factory, Faisalabad (in CA 681/12) M/s Ihsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabad (in CA 682/12) M/s Sargodha Spinning Mills Ltd. Faisalabad (in CA 683/12) M/s Fateh Habib Textile, Faisalabad & another (in CA 783/12) M/s. Zahid Hafeez Re-Rolling Mills LHR, etc. (in CA 389/13) M/s. Chimera (Pvt) , Ltd., etc. (in CA 390/13) M/s. Ejaz & Co.,LHR, etc. (in CA 391/13) M/s. D.S. Power Ltd. LHR, etc. (in CA 392/13) M/s. Zahoor Cotton Mills. LHR, etc. (in CA 393/13) M/s. Mirtex Enterprises, LHR, etc. (in CA 394/13) M/s. Innovox Industries, LHR, etc. (in CA 395/13) M/s. Hussain Cotex Ltd., LHR (in CA 396/13) M/s Barkat Ali Steel Mills, LHR (in CA 397/13) M/s. Barkat Ali Re-Rolling Mills, LHR (in CA 398/13) M/s. Chaudhry Steel Re-Rolling Mills, LHR (in CA 399/13) M/s. Javed Nazir Brothers (PVT) Ltd., LHR (in CA 400/13) M/s. Al-Macca Press (Pvt.) Ltd., LHR, etc. (in CA 401/13) M/s. Zeshan Energy Ltd. etc. (in CA 710/13) M/s. Asad Brothers Sialkot (in CA 711/13) M/s. Umer Textiles (in CA 712/13) M/s. Crescent Textiles Mills Ltd. etc. (in CA 713/13) M/s Idrees & Company, Chiniot & another (in CA 1632/14) M/s Al-Haseeb Corporation, Faisalabad etc. (in CA 565/15) M/s Master Textile Processing Mills, Faisalabad etc. (in CAs 1424,1425/16) M/s Umer Brothers, Faisalaabad & another (in CA 1507/16) M/s Karimi Traders, Faisalabad (in CA2470/16) M/s. Joyia Sadat Cotton Industries (in CA 219/11) M/s. Qadir Agro Industries (Pvt) Ltd. Multan etc. (in CA 220/11) M/s Allah Tawakel Corporation Faisalabad etc. (in CA 729/12) M/s Bashir Printing Industries (Pvt) Ltd Faisalabad etc. (in CA 730/12) M/s Arfatex Industries (PVT.) Ltd. Faisalabad etc. (in CA 731/12) M/s Mian Zafar & Co. & another (in CA 732/12) …Respondent(s) For the Appellant(s): (in CAs 682-684/08, 131, 233, 253,504/11, 389-401/ 13, 710, 711, 713/13, 219 & 220/11) Mr. Izhar-ul-Haq, ASC Civil Appeal Nos. 682 of 2008 etc. -: 3 :- (in CAs 678-683/12, 783/12, 1632/14, 565/15, 1424, 1425, 1507, 2470/16 & 729-732/12) Dr. Farhat Zafar, ASC Mr. M. S. Khattak, AOR. Raja Abdul Ghafoor, AOR. (in CAs 733/10) Mr. Farhat Nawaz Lodhi, ASC Raja Abdul Ghafoor, AOR. (in CAs 712/13) Ch. M. Zafar Iqbal, ASC. For the respondent(s): (in CA 220/11) (in CAs 682/08, 397 and 398/13) (in CA 733/10) (in CAs 682-684/08) (in CA 131/11) (in CA 233/11) (in CA 253/11) (in CAs 504/11, 396, 399, 710/13) (in CAs 678/12, 713/13, 683/12, 392/13) (in CA 390/13) (in CA 400/13) (in CAs 394, 401/13, 711/13, 1632/14, 2470/16, 565/15, 730/12, 712/13, 732/12) (in CA 1507/16) (in CAs 219/11, 729/12, 731/12, (in CAs 679-682,783/12, 382, 391, 393, 395/13, 1424, 1425/16 Nemo. Syed Naveed Andrabi, ASC. Mr. Riaz Hussain Azam, ASC. Mr. M. S. Khattak, AOR. Mr. Waqar Azeem, ASC. Nemo. Nasir Mahmood Qureshi, ASC Nemo Mr. Muhammad Iqbal Hashmi, ASC Nemo. Mr. Shazib Masud, ASC Mian Ashiq Hussain, ASC Nemo. Mr. M. Ajmal Khan, ASC Ex-parte. N.R. Date of Hearing: 31.03.2017 … JUDGMENT MIAN SAQIB NISAR, CJ.- The facts pertaining to these appeals, with the leave of the Court, are that the respondents are Civil Appeal Nos. 682 of 2008 etc. -: 4 :- manufacturing units/suppliers who made taxable supplies during various tax years and filed sales tax returns for the relevant periods. They were served with show cause notices under the erstwhile Sections 11 and 36 of the Sales Tax Act, 1990 (the Act) and later the current Section 11 thereof. The orders-in-original were passed beyond the period of limitation provided in law. Aggrieved, some respondents approached the learned High Court directly by way of writ petitions, whilst others challenged the orders before the Customs, Excise & Sales Tax (Appellate) Tribunal (the Tribunal) which culminated in sales tax references before the learned High Court. The learned High Court allowed the writ petitions and the references alike through the impugned judgments; holding that since the adjudicating authority failed to decide the show cause notices within the statutory period provided in the first provisos to the erstwhile Sections 11(4) and 36(3) of the Act and the current Section 11(5) thereof, the orders were barred by time. Leave was granted on 09.04.2008 in the following terms:- “…whether the limitation of 45 days for completion of adjudication proceedings under Finance Ordinance, 2000 enhanced to 90 days by the Finance Act, 2003 was mandatory or directory in nature…” 2. The moot point is whether the limitation period contained in the first provisos to the erstwhile Sections 11(4) and 36(3) of the Act and the current Section 11(5) thereof for passing an order thereunder is mandatory or directory in nature (note:- as the show cause notices and the orders passed pursuant thereto were spread over a span of approximately 15 years, i.e. from 1998 to 2013, we shall discuss all the relevant provisions which were in force from time to time). The relevant law read as under:- Civil Appeal Nos. 682 of 2008 etc. -: 5 :- Erstwhile Section 36 1[36. Recovery of tax not levied or short-levied or erroneously refunded.– ⁞ (3) The officer of 2[Inland Revenue] empowered in this behalf shall, after considering the objections of the person served with a notice to show cause under sub-section (1) or sub-section (2), determine the amount of tax or charge payable by him and such person shall pay the amount so determined 3[:] 4[Provided that order under this section shall be made within 5[one hundred and twenty] days of issuance of show cause notice or within such extended period as 6[the 7[Commissioner] 8[* * *]] may, for reasons to be recorded in writing, fix, provided that such extended period shall in no case exceed 9[sixty] days 10[:]] 11[Provided further that any period during which the proceedings are adjourned on account of a stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded from the computation of the periods specified in the first proviso.] ⁞ Erstwhile Section 11 12[11. Assessment of Tax.- ⁞ 1 Substituted by the Finance Act, 1996. Omitted by the Finance Act, 2012. 2 Substituted for the words “Sales Tax” by the Finance Act, 2010. Earlier the same amendment was made by the Finance (Amendment) Ordinance, 2010 and the Finance (Amendment) Ordinance, 2009. 3 Substituted for the full stop by the Finance Ordinance, 2000. 4 Proviso added by the Finance Ordinance, 2000. 5 Substituted for the word “ninety” by the Finance Act, 2008 which was substituted for the word “forty-five” by the Finance Act, 2003. 6 Substituted for the words “an officer of Sales Tax” by the Finance Act, 2003. 7 Substituted for the word “Collector” by the Finance Act, 2010. Earlier the same amendment was made by the Finance (Amendment) Ordinance, 2010 and the Finance (Amendment) Ordinance, 2009. 8 The words, commas and brackets “or, as the case may be, Collector (Adjudication)” omitted by the Finance Act, 2005. 9 Substituted for the words “one hundred and twenty” by the Finance Act, 2009 which was substituted for the word “ninety” by the Finance Act, 2008. 10 Substituted for the full stop by the Finance Act, 2003. 11 Proviso added by the Finance Act, 2009. 12 Substituted by the Finance Act, 1996. Substituted for the Section 11 by the Finance Act, 2012. Civil Appeal Nos. 682 of 2008 etc. -: 6 :- (4) No order under this section shall be made by an officer of 13[Inland Revenue] unless a notice to show cause is given 14[within five years] to the person in default specifying the grounds on which it is intended to proceed against him and the officer of 15[Inland Revenue] shall take into consideration the representation made by such person and provide him with an opportunity of being heard 16[:]] 17[Provided that order under this section shall be made within 18[one hundred and twenty] days of issuance of show cause notice or within such extended period as 19[the 20[Commissioner] 21[* * *]] may, for reasons to be recorded in writing, fix provided that such extended period shall in no case exceed 22[sixty] days 23[:]] 24[Provided further that any period during which the proceedings are adjourned on account of a stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded from the computation of the periods specified in the first proviso.] ⁞ Current Section 11 25[11. Assessment of Tax and recovery of tax not levied or short-levied or erroneously refunded.― ⁞ (5) No order under this section shall be made by an officer of Inland Revenue unless a notice to show cause is given within five years to the person in default specifying the 13 Substituted for the words “Sales Tax” by the Finance Act, 2010. Earlier the same amendment was made by the Finance (Amendment) Ordinance, 2010 and the Finance (Amendment) Ordinance, 2009. 14 The words inserted by the Finance Act, 2008. 15 Substituted for the words “Sales Tax” by the Finance Act, 2010. Earlier the same amendment was made by the Finance (Amendment) Ordinance, 2010 and the Finance (Amendment) Ordinance, 2009. 16 Substituted for the full stop by the Finance Ordinance, 2000. 17 Proviso added by the Finance Ordinance, 2000. 18 Substituted for the word “ninety” by the Finance Act, 2008 which was substituted for the word “forty-five” by the Finance Act, 2003. 19 Substituted for the words “an officer of Sales Tax” by the Finance Act, 2003. 20 Substituted for the word “Collector” by the Finance Act, 2010. Earlier the same amendment was made by the Finance (Amendment) Ordinance, 2010 and the Finance (Amendment) Ordinance, 2009. 21 The words, commas and brackets “or, as the case may be, Collector (Adjudication)” omitted by the Finance Act, 2007. 22 Substituted for the words “one hundred and twenty” by the Finance Act, 2009 which were substituted for the word “ninety” by the Finance Act, 2008 which was substituted for the word “forty-five” by the Finance Act, 2003. 23 Substituted for the full stop by the Finance Act, 2009. 24 Proviso added by the Finance Act, 2009. 25 Substituted by the Finance Act, 2012. Civil Appeal Nos. 682 of 2008 etc. -: 7 :- grounds on which it is intended to proceed against him and the officer of Sales Tax shall take into consideration the representation made by such person and provide him with an opportunity of being heard: Provided that order under this section shall be made within one hundred and twenty days of issuance of show cause notice or within such extended period as the Commissioner may, for reasons to be recorded in writing, fix provided that such extended period shall in no case exceed ninety days: Provided further that any period during which the proceedings are adjourned on account of a stay order or Alternative Dispute Resolution proceedings or the time taken through adjournment by the petitioner not exceeding thirty days shall be excluded from the computation of the period specified in the first proviso. ⁞ 26[74. Condonation of time-limit.–Where any time or period has been specified under any of the provisions of the Act or rules made thereunder within which any application is to be made or any act or thing is to be done, the 27[Board] may, in any case or class of cases, permit such application to be made or such act or thing to be done within such time or period as it may consider appropriate 28[:] 29[Provided that the Board may, by notification in the official Gazette, and subject to such limitations or conditions as may be specified therein, empower a 30[Commissioner] to exercise the powers under this section in any case or class of cases.]] 31[Explanation.– ………………………………………] 26 Added by Finance Ordinance, 2002. 27 Substituted for the words “Central Board of Revenue” by the Finance Act, 2007. 28 Substituted for the full stop by the Finance Act, 2004. 29 Proviso added by the Finance Act, 2004. 30 Substituted for the word “Collector” by the Finance (Amendment) Ordinance, 2009, the Finance (Amendment) Ordinance, 2010 and the Finance Act, 2010. 31 Explanation added by the Finance Act, 2011. Civil Appeal Nos. 682 of 2008 etc. -: 8 :- Since the first provisos to the erstwhile Sections 11(4) and 36(3) of the Act and the current Section 11(5) of the Act are identical, save for the time limit prescribed and the officers mentioned therein, we are using the erstwhile Section 36(3) (as originally inserted in the Act) as notionally representative of the other sections and any reference to the said provision and the terms used therein are to be taken to include the corresponding provisions and terms of the erstwhile Section 11(4) and the current Section 11(5) of the Act and the subsequent amendments made therein from time to time (unless stated otherwise). 3. The learned counsel for the petitioner/department argued that once the first proviso to Section 36(3) of the Act had been inserted, a time frame came to be prescribed for the officer of Sales Tax (the ‘officer’) to pass an order under the said section and the same is not mandatory but rather directory especially considering that this period can be extended by the Collector under the first proviso itself and by the Board (or Collector notified by the Board) under Section 74 of the Act. He was of the opinion that the order passed by the officer after the stipulated period would not be vitiated merely on the ground that it had been passed beyond such time frame; therefore, the impugned orders of the learned High Court were liable to be set aside. Conversely, the learned counsel for the respondents submitted that the word ‘shall’ appearing in the first proviso to Section 36(3) of the Act rendered the provision mandatory and the officer was bound to pass the order within the stipulated period. Further, whilst time could be extended under the Act, such extension could not be for an unlimited period but only for the period specified therein. 4. The first proviso to Section 36(3) of the Act (as it stood at the time it was inserted) stipulated that orders passed thereunder ‘shall be made Civil Appeal Nos. 682 of 2008 etc. -: 9 :- within forty-five days’ of the issuance of the show cause notice or within such extended period as the officer may, for reasons to be recorded in writing, fix, provided that such extended period ‘shall in no case exceed ninety days’. There were basically two time frames: (i) a period of forty-five days within which the officer was to pass an order under Section 36 of the Act; and (ii) a period of ninety days which was the maximum period for which the officer could grant extension of time (with reasons recorded in writing) for passing of the order under Section 36 supra. The word ‘shall’ as opposed to ‘may’ has been used on both occasions when prescribing the maximum time period in the first proviso. It is settled law that when the word ‘shall’ is used in a provision of law, it is to be construed in its ordinary grammatical meaning and normally the use of word ‘shall’ by the legislature brands a provision as mandatory32, especially when an authority is required to do something in a particular manner. Reference in this behalf may be made to the case of Haji Abdul Karim and others Vs. Messrs Florida Builders (Pvt) Limited (PLD 2012 SC 247) wherein, whilst interpreting Order VII Rule 11 of the Code of Civil Procedure, 1908, this Court held that the Courts were bound by the word ‘shall’ used therein which made it mandatory to reject a plaint if it appeared from the statements in the plaint that it was barred by any law. In effect the deployment of the word ‘shall’ in this context denuded the Courts of their discretion in this behalf. Similarly, in the judgment reported as Safeer Travels (Pvt.) Ltd. Vs. Muhammad Khalid Shafi through legal heirs (PLD 2007 SC 504) it was held with regard to Section 16(2) of the Sindh Rented Premises Ordinance, 1979 that the word ‘shall’ made it obligatory for the Court to strike off a defence in case of default. Therefore we find 32 See the case of Mian Muhammad Nawaz Sharif Vs. President of Pakistan and others (PLD 1993 SC 473). Civil Appeal Nos. 682 of 2008 etc. -: 10 :- that the use of the word ‘shall’ is a strong indicator that the provisos in question are mandatory in nature. 5. Learned counsel for the appellants argued that the word ‘shall’ is not always to be construed as mandatory but rather the determining factor is whether non-compliance with a provision entails penal consequences or not. He stated that since no such consequences flowed from Section 36(3) of the Act thus the proviso was directory notwithstanding the fact that the word ‘shall’ was used therein. 6. The ultimate test to determine whether a provision is mandatory or directory is that of ascertaining the legislative intent. While the use of the word ‘shall’ is not the sole factor which determines the mandatory or directory nature of a provision, it is certainly one of the indicators of legislative intent. Other factors include the presence of penal consequences in case of non-compliance, but perhaps the clearest indicator is the object and purpose of the statute and the provision in question. It is the duty of the Court to garner the real intent of the legislature as expressed in the law itself. Reference may be made to the cases of Syed Zia Haider Rizvi and others Vs. Deputy Commissioner of Wealth Tax, Lahore and others (2011 SCMR 420), in Re. Presidential Election, 1974 (AIR 1974 SC 1682), Lachmi Narain Vs. Union of India (AIR 1976 SC 714), and Dinesh Chandra Pandey Vs. High Court Of Madhya Pradesh and another [(2010) 11 SCC 500]. 7. From the plain language of the first proviso, it is clear that the officer was bound to pass an order within the stipulated time period of forty-five days, and any extension of time by the Collector could not in any case exceed ninety days. The Collector could not extend the time according to his own choice and whim, as a matter of course, routine or Civil Appeal Nos. 682 of 2008 etc. -: 11 :- right, without any limit or constraint; he could only do so by applying his mind and after recording reasons for such extension in writing. Thus the language of the first proviso was meant to restrict the officer from passing an order under Section 36(3) supra whenever he wanted. It also restricted the Collector from granting unlimited extension. The curtailing of the powers of the officer and the Collector and the negative character of the language employed in the first proviso point towards its mandatory nature. This is further supported by the fact that the first proviso was inserted into Section 36(3) supra through an amendment (note:- the current Section 11 of the Act, on the other hand, was enacted with the proviso from its very inception in 2012). Prior to such insertion, undoubtedly there was no time limit within which the officer was required to pass orders under the said section. The insertion of the first proviso reflects the clear intention of the legislature to curb this earlier latitude conferred on the officer for passing an order under the section supra. When the legislature makes an amendment in an existing law by providing a specific procedure or time frame for performing a certain act, such provision cannot be interpreted in a way which would render it redundant or nugatory. Thus, we hold that the first proviso to Section 36(3) of the Act [and the first proviso to the erstwhile Section 11(4) and the current Section 11(5) of the Act] is/was mandatory in nature. 8. As regards the submission of the learned counsel for the appellants that the time period in the first proviso was only meant to ensure that orders were passed within a reasonable time and in fact, the orders could have been passed beyond the stipulated time period if the department were able to show that special circumstances existed warranting the same, suffice it to say that there is no justification whatsoever to read ‘special circumstances’ and ‘reasonable time’ into Civil Appeal Nos. 682 of 2008 etc. -: 12 :- the said proviso. It is settled law that the principle of reading in or casus omissus is not to be invoked lightly, rather it is to be used sparingly and only when the situation demands it. In fact the Courts should refrain from supplying an omission in the statute because to do so steers the Courts from the realms of interpretation or construction into those of legislation.33 This principle has been aptly dealt with by this Court in judgment reported as Abdul Haq Khan and others Vs. Haji Ameerzada and others (PLD 2017 SC 105) in which it was observed that:- The reading in of words or meaning into a statute when its meaning is otherwise clear is not permissible. As a matter of statutory interpretation, Courts generally abstain from providing casus omissus or omissions in a statute, through construction or interpretation. An exception to this rule is, when there is a self-evident omission in a provision and the purpose of the law as intended by the legislature cannot otherwise be achieved, or if the literal construction of a particular provision leads to manifestly absurd or anomalous results, which could not have been intended by the legislature. However, this power is to be exercised cautiously, rarely and only in exceptional circumstances. Therefore, we find that the wording of the first proviso to Section 36(3) of the Act contained no ambiguity or obscurity warranting reading in of the aforesaid phrases. 9. Another aspect of the matter is that when a statute requires that a thing should be done in a particular manner or form, it has to be done in such manner. But if such provision is directory, the act done in breach thereof would not be void, even though non-compliance may entail penal consequences. However, non-compliance of a mandatory provision would invalidate such act. In this context, reference may be 33 Principles of Statutory Interpretation (13th Ed.) by Justice G. P. Singh. Civil Appeal Nos. 682 of 2008 etc. -: 13 :- made to the case of Rubber House Vs. Excellsior Needle Industries Pvt. Ltd. (AIR 1989 SC 1160). Thus, having held the first proviso to Section 36(3) supra to be mandatory, the natural corollary of non- compliance with its terms would be that any order passed beyond the stipulated time period would be invalid. 10. Learned counsel for the appellants submitted that in terms of the second proviso to Section 36(3) of the Act, the time consumed by virtue of stay orders or adjournments not exceeding thirty days was to be excluded from the calculation of the time period in the first proviso. We find that such exclusion could not exceed 30 days as per the clear mandate of the provision itself. 11. Learned counsel for the appellants also stated that the Collector under the first proviso to Section 36(3) of the Act was empowered to grant extensions. Learned counsel for the respondent argued that the Collector could only extend time during the subsistence of the time limit provided in the former part thereof, accordingly, as per Section 36(3) of the Act, once the time period of forty-five days for passing the order under the section ibid had passed, no extension could be granted. We do not find any force in this argument. Undoubtedly the Collector has the power to grant extensions which cannot exceed ninety days, as is manifest from the wording of the latter part of the first proviso, however it is not incumbent upon the Collector to extend the time within the currency of the initial time period of forty-five days: it is entirely possible to extend the time even after the expiry of the initial time period but the critical period in this regard is ninety days because at the expiry of this maximum period time cannot be further extended. By way of illustration, as per the first proviso to Section 36(3) of the Act, if an officer fails to pass an order within forty-five days (the initial time Civil Appeal Nos. 682 of 2008 etc. -: 14 :- period), the Collector need not grant an extension within such forty-five days, instead he can do so after the said number of days. However, since the latter part of the first proviso only allows him to grant an extension of ninety days, thus any extension granted must not exceed the maximum limit of one hundred and thirty five days (forty-five plus ninety) from the date of the show cause notice. 12. As regards the reliance placed on Section 74 of the Act, it provides that where a time frame has been stipulated in the Act within which an act or thing is to be done, the Board, or the Commissioner notified by the Board, are empowered to permit such act or thing to be done within such time period as they may consider appropriate. Passing an order under Section 36(3) of the Act is certainly an act or thing to be done under the Act. Therefore the Board (which expression shall hereinafter include Commissioner notified by the Board) has the power under Section 74 of the Act to permit the passing of an order under the aforesaid section within such time period as it may consider appropriate. While applying the principles of harmonious construction, we find that the proviso is restricted in its application to the section it is attached to, whereas Section 74 of the Act is of general applicability and shall apply to all the provisions of the Act and the rules framed thereunder. This provision will undoubtedly have an overriding effect over the first proviso to Section 36(3) supra and can be held to be an exception thereto. The purpose of Section 74 supra is to give a separate overriding power to the Board to permit any act or thing to be done under the statute within such time period as it may deem appropriate, which undoubtedly is independent of any other provision of the Act which provides a time frame. To restrict the time period that can be granted under Section 74 supra to the maximum period available under the first proviso to Civil Appeal Nos. 682 of 2008 etc. -: 15 :- Section 36(3) of the Act would render the former absolutely redundant and superfluous, which cannot be countenanced under the settled rules of interpretation which do not allow such redundancy to be attributed to the legislative intent. Therefore, where the Board has permitted the passing of an order under the proviso within a time frame different from that contained therein, this new time frame shall be deemed to be the relevant one. However this does not mean that in exercise of its power under Section 74 of the Act, the Board will have unfettered and unbridled authority to extend time when, and for however long, it feels it expedient to do so. Rather time would only be extended in certain cases, after application of mind and that too for a reasonable amount of time. For the purposes of settling the reasonable time, we hold that after the expiry of the two time periods envisaged by the first proviso to Section 36(3) of the Act, i.e. forty-five days [within which the order under Section 36 of the Act is to be passed] and a further ninety days [extended period under the first proviso to Section 36(3) ibid], the Board should have six months within which it may grant extension of time under Section 74 supra which (extension) can also not exceed six months. If the reasonable time mentioned above also lapses, then the rule of past and closed transaction shall apply because it is inconceivable in law that:- (a) the Board would have infinite and unlimited time within which it can grant extensions under Section 74 supra; and (b) the Board can grant infinite and unlimited extension under Section 74 ibid; to obliterate the vested rights that stand created in favour of the taxpayer on account of such lapse of time. In this respect, the judgment reported as Federal Land Commission through Chairman Vs. Rais Habib Ahmed and others (PLD 2011 SC 842) is relevant in which this Court, while relying upon the settled principles of past and closed transaction and reasonable Civil Appeal Nos. 682 of 2008 etc. -: 16 :- time, stipulated that a period of six months was the reasonable time for the purposes of exercise of power by the Federal Government under Section 25 of the Land Reforms Act, 1977. Thus we are of the opinion that while undoubtedly the Board has the power under Section 74 supra to extend the time limit and permit an order under Section 36 supra to be passed within such time or period as it may consider appropriate, such power must be exercised within a reasonable time period of six months from the date when the time period provided in the first proviso to Section 36(3) supra and the extension granted thereunder have lapsed, and such power can only be exercised (by the Board under Section 74 supra) to grant an extension of not more than a reasonable time period of six months. 13. In view of the findings given hereinabove, it is appropriate to consider the relevant facts of each case which are tabulated below:- Civil Appeal No. Date of show cause notice Date of order in original Limitation period Observations 682/2008 06.04.1998 No order passed as yet. 90 days Beyond time 683/2008 22.06.2000 24.02.2004 45 days Beyond time 684/2008 19.06.2000 30.10.2000 45 days Beyond time 131/2011 06.04.2002 31.07.2002 45 days Beyond time 233/2011 31.05.2004 02.01.2006 90 days Beyond time 253/2011 21.11.2001 20.08.2003 45 days Beyond time 504/2011 23.04.2005 28.03.2006 90 days Beyond time 219/2011 09.09.2004 30.04.2005 90 days Beyond time 220/2011 17.05.2002 28.10.2002 45 days Beyond time 678/2012 07.11.2001 23.07.2003 45 days Beyond time 679/2012 11.12.2006 23.10.2008 90 days Beyond time 680/2012 27.11.2001 08.05.2002 45 days Beyond time 681/2012 19.07.2001 18.10.2001 45 days Beyond time 682/2012 20.03.2006 30.12.2006 90 days Beyond time 683/2012 12.02.2002 30.05.2002 45 days Beyond time 783/2012 15.11.2007 20.09.2008 90 days Beyond time 729/2012 09.08.2003 31.03.2005 90 days Beyond time 730/2012 19.02.2009 13.10.2009 120 days Beyond time 731/2012 09.08.2003 24.11.2004 90 days Beyond time 732/2012 06.11.2006 14.12.2007 90 days Within time Civil Appeal Nos. 682 of 2008 etc. -: 17 :- (extension granted by the Board) 389/2013 04.03.2002 30.11.2005 45 days Beyond time 390/2013 12.04.2001 17.08.2001 45 days Beyond time 391/2013 19.05.1999 17.06.2004 45 days Beyond time 392/2013 10.11.2004 12.10.2005 90 days Beyond time 393/2013 12.12.2002 11.11.2004 45 days Beyond time 394/2013 17.10.2008 12.02.2009 120 days Within time 395/2013 22.10.2007 28.02.2008 90 days Beyond time 396/2013 13.03.2004 18.05.2005 90 days Beyond time 397/2013 10.03.2004 10.06.2005 90 days Beyond time 398/2013 28.06.2003 20.03.2004 90 days Beyond time 399/2013 21.09.1998 19.06.1999 No limitation period Before insertion of proviso 400/2013 07.05.2005 06.10.2005 90 days Beyond time 401/2013 21.05.2005 21.10.2005 90 days Beyond time 710/2013 28.11.2007 30.12.2008 90 days Beyond time 711/2013 22.04.2005 26.12.2006 90 days Beyond time 712/2013 28.05.2007 12.09.2008 90 days Within time (extension granted by the Board) 713/2013 17.12.2004 16.05.2005 90 days Beyond time 1632/2014 09.08.2003 06.04.2004 90 days Beyond time 565/2015 16.05.2003 12.06.2004 45 days Beyond time 1424/2016 15.05.2012 05.10.2012 120 days Beyond time 1425/2016 14.03.2012 04.10.2012 120 days Beyond time 2470/2016 14.12.2012 19.04.2013 120 days Beyond time 14. While dictating the judgment, it came to our attention that in Civil Appeal No.394/2013, the show cause notice was issued on 17.10.2008 while the order was passed on 12.02.2009 which was within the limitation period of 120 days. In Civil Appeal No.399/2013, the show cause notice was issued on 21.09.1998 and the order was passed on 19.06.1999 therefore the matter pertained to the time period when the proviso containing the limitation period was not yet inserted into the Act hence, such limitation period did not apply thereto. In Civil Appeal No.712/2013, the show cause notice was issued on 28.05.2007 and the order was passed on 09.09.2008. However there are letters of Civil Appeal Nos. 682 of 2008 etc. -: 18 :- the Board on record suggesting that the time period was extended up till 30.09.2008 under the second proviso to Section 45(1) read with Section 74 of the Act. Thus the order was passed within time. Similarly, in Civil Appeal No.732/2012, the show cause notice was issued on 06.11.2006 and the order was passed on 14.12.2007, whereas there is a letter of the Board on record indicating that the time period was extended up till 31.12.2007 under the provisions ibid hence the order was passed within time. Therefore these four noted appeals are separated from the rest of the cases and the office is directed to fix them for re-hearing. 15. In the remaining appeals, all the orders of the officers were time barred as they were passed beyond the time period provided in the respective law existing at the relevant point in time and there is no material on the record in any of the cases suggesting that time was extended [under the second part of the first proviso to Section 36(3) of the Act or Section 74 thereof] for passing an order under Section 36 of the Act or that there was any stay order or adjournment granted on the request of the assessee [under second proviso to Section 36(3) of the Act] warranting exclusion of a period of 30 days from the limitation period in the first proviso, therefore, Civil Appeal Nos.682 to 684 of 2008, 131, 233, 253, 504, 219 and 220 of 2011, 678 to 683, 783 and 729 to 731 of 2012, 389 to 393 and 395 to 398, 400, 401, 710, 711 and 713 of 2013, 1632 of 2014, 565 of 2015 and 1424 to 1425 and 2470 of 2016 are dismissed. 16. The above are the detailed reasons for our short order of even date which reads as under:- “For the reasons to be recorded later and without in any manner limiting our jurisdiction to appropriately enlarge the scope of the detailed judgment, we hold that the Civil Appeal Nos. 682 of 2008 etc. -: 19 :- provisions of Section 11 and the erstwhile Section 36 of the Sales Tax Act, 1990 (the Act) are mandatory in nature. The Collector/Commissioner has the power to extend the time within which an order under either of the Sections supra is to be passed; besides, such time can also be extended in a particular case or class of cases by the Federal Board of Revenue (or the Commissioner if empowered by the said Board) as per the provisions of Section 74 of the Act. In the light of the above, all these petitions (except Civil Appeals No. 733/2010 and 1507/2006) are dismissed on the above question of law. C. As.733/2010 AND 1507/2016 Due to their peculiar facts, these cases are separated from the aforementioned cases and are to be re- listed.” CHIEF JUSTICE JUDGE JUDGE ISLAMABAD. 31st March, 2017. Approved for reporting Mudassar/

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel Civil Appeal No.694/2008 (On appeal from the judgment dated 5.10.2004 passed by the Lahore High Court, Lahore in C.R. No.3562/1994) Khan Muhammad (decd.) through L.Rs. etc. Appellants Versus Mst. Khatoon Bibi and others Respondents For the Appellants: Mr. Muhammad Ilyas Sheikh, ASC Ch. Akhtar Ali, AOR For Respondents No.1,2,3(ii) & 5: Ch. Mushtaq Ahmed Khan, Sr. ASC Mr. M.S.Khattak, AOR For Respondents No.3 (i, iii-v) & 4: Ex-parte Date of Hearing: 1.03.2017 JUDGMENT Mazhar Alam Khan Miankhel, J.- The Respondent No.1/plaintif filed a suit for declaration to the effect that she being real daughter of Rajada, the pre-deceased son of Ahmad (the last male owner herein after “the propositus of the parties”), was entitled to inherit from the legacy of her grandfather to the extent of her shari share out of the share his father would have inherited if alive at the time of opening of succession of his father (the propositus). Her claim was totally denied by the defendant/appellants being the legal heirs of Sadiq alias Sadu, the only surviving son, who got half share in the legacy of deceased father Ahmad, the propositus, in the year 1944 and the remaining half went to the two widows namely Mst. Fatima and Mst. Aisha (defendants No.1 & 2) respectively of pre-deceased son Rajada (father of the plaintiff). Her suit was dismissed by the trial Court by holding that she is not entitled to the decree prayed for and she was also non-suited on the question of C.A.694/2008 2 limitation. The appellate Court was also in concurrence with the findings of the trial Court by dismissing the appeal of Respondent No.1/plaintiff. The High Court while dealing with the matter in civil revision, allowed the same both on merits as well on the question of limitation and held that Respondent No.1/plaintiff being daughter of pre-deceased son of the last male owner was equally entitled to inherit the legacy of her grandfather to the extent of her shari share in the legacy of her pre-deceased father had he been alive at the time of opening of succession as per law. The defendant/appellants questioned the said findings of the High Court by way of Civil Petition No.3311-L/2004 wherein leave was granted vide order dated 29.07.2008 in the following terms:- “After hearing the learned counsel for the petitioners as well as respondent No.1 we grant leave to appeal to consider, inter alia, the following questions:- (i) Where Mst. Fatima and Mst. Ayesha widow of late Rajada a pre-deceased son of Ahmed had inherited the land in dispute as full owners or holders of limited estate? (ii) Where respondent No.1 Mst. Khatoon daughter of Rajada and Mst. Fatima were entitled to inherit the shares in the suit property and, if so, to what extent? (iii) Where the provisions of the Punjab Tenancy Act, Muslim Family Laws Ordinance, 1961 and West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 were attracted and were rightly construed with reference to facts and circumstances of the present case? Since short points are involved the office is directed to fix the main appeal on the present record within a period of one year. However, the parties any file additional documents with the permission of the Court.” Hence the present appeal. 2. Learned counsel for the appellants argued that the findings arrived at by the High Court are against the settled law of the land; that the plaintiff/Respondent No.1 and the two widows of the pre-deceased son of the last male owner, the propositus, were not entitled to inherit the legacy of the propositus as the provisions of Section 4 of the Muslim Family Laws C.A.694/2008 3 Ordinance, 1961, (the ‘Ordinance VII of 1961’), having no retrospective effect, were not applicable. He next contended that in view of the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (the ‘Act V of 1962’) Sadiq alias Sadu, the only surviving son at the time of death of Ahmad, the propositus, was entitled to inherit his entire legacy as a sole heir and thereafter, his legal heirs, the two widows and the daughter i.e. the plaintiff in no way were entitled to inherit the legacy of the propositus as heirs of the pre-deceased son. He further argued that the suit of the plaintiff/Respondent No.1 was hopelessly time barred as the same was filed after more than three decades. In support of his arguments, learned counsel placed reliance on the following cases:- 1. Mst. Sarwar Jan and others Vs. Mukhtar Ahmad and others (PLD 2012 SC 217) 2. Aslam and another Vs. Mst. Kamalzai and others (PLD 1974 SC 207) 3. Abdul Ghafoor and others Vs. Muhammad Shafi and others (PLD 1985 SC 407) 4. Muhammad Hussain and others Vs. Muhammad Shafi and others (2008 SCMR 230) 5. Mst. Grana through Legal Heirs and others Vs. Sahib Kamala Bibi and others (PLD 2014 SC 167) 6. Ghulam Abbas and others Vs. Mohammad Shafi through LRs and others (2016 SCMR 1403) 7. Mst. Ghulam Bano alias Gulab Bano and others Vs. Mst. Noor Jehan and others (2005 SCMR 658) 3. As against that learned counsel for the Respondents while supporting the impugned judgment submitted that the plaintiff being daughter of the pre-deceased son of the last male owner was entitled to get her shari share from the share her father would have inherited from the legacy of his father if alive at the time of opening of succession. The learned counsel further argued that question of limitation in the case of inheritance would not arise C.A.694/2008 4 as the plaintiff/Respondent No.1 became sharer in the property when the succession was opened. In support of his submissions, learned counsel placed reliance on the following cases:- 1. Sardar Vs. Mst. Nehmat Bi and 8 others (1992 SCMR 82) 2. Sahib Jan and others Vs. Mst. Ayesha Bibi through L.Rs. and others (2013 SCMR 1540) 3. Mst. Fazeelat Jan and others Vs. Sikandar through his Legal Heirs and others (PLD 2003 SC 475) 4. Mahmood Shah Vs. Syed Khalid Hussain Shah and others (2015 SCMR 869) 5. Lal Khan through Legal Heirs Vs. Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657) 6. Ghulam Ali and 2 others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) 4. Learned counsel for the parties were heard and record of the case was perused. Perusal of the same would reveal that the predecessor-in-interest of the parties ‘the propositus’ Ahmad son of Sajawal had five sons. Three out of whom namely Khan, Raja and Taja died issueless during his lifetime whereas the fourth son Rajada also died during the lifetime of his father, the propositus, but leaving behind two widows namely Mst. Fatima and Mst. Aisha and a daughter Mst. Khatoon, the plaintiff (from his first wife Mst. Fatima). The fifth son was Sadiq alias Sadu, the predecessor of Defendants No.3 to 16. Ahmad, the propositus, died in the year 1944, leaving behind the only surviving son Sadiq alias Sadu. The propositus, Ahmad, was recorded as an occupancy tenant of a chunk of land owned by the Provincial Government under Section 8 of the Punjab Tenancy Act, 1887 (the ‘Act XVI of 1887). His occupancy rights devolved upon his only surviving son to the extent of 1/2 shares and the remaining half went to the two widows of his pre-deceased son Rajada as holders of limited estate as per customs prevailing in the area vide mutation No.124 attested on 13th November, 1944 C.A.694/2008 5 available on the record as Exh.P.1. It is worth to mention here that entries of this mutation were incorporated in the record of rights in the year 1944-45 but their status was recorded as occupancy tenants under Section 10(2) of the Colonization of Government Lands (Punjab) Act, 1912 (the ‘Act V of 1912’) vide Notification No.20668 dated 7.08.1922. These entries in the record of rights continued up to 1964 when mother of plaintiff Mst. Fatima (the widow of Rajada) re-married with one Sultan son of Sadiq. Her limited estate reverted back to Sadiq alias Sadu vide mutation No. 51 dated 29.09.1964, available on the record as Exh.P.2, and thereby the share of Sadiq alias Sadu in the legacy swelled up to 3/4 and 1/4 remained with Mst. Aisha, the 2nd widow. It would also be worthwhile to mention here that vide mutation No.52 dated 19.04.1964, the remaining 1/4 share of the said Mst. Aisha also went to Sadiq alias Sadu as after promulgation of the Act V of 1962, the limited estate was terminated but the entries in the record of rights, available on the record, would show that this mutation was never incorporated in the record of rights and entries in her name continued up-till 1980 when their occupancy rights in the property were converted into ownership vide mutation No.150 dated 23.11.1980. Sadiq alias Sadu died in the year 1984 and his mutation of inheritance bearing No.227 dated 14.11.1987 was attested in favour of his legal heirs i.e. Defendants No.3-10. The plaintiff filed the instant suit to claim her share in the inheritance of her father Rajada (pre-deceased son of the propositus) as per Section 4 of the Ordinance VII of 1961 when her rights were denied firstly by Sadiq alias Sadu and then his legal heirs i.e. the defendants. Her suit was dismissed by the trial Court and the appellate Court on the question of her entitlement as such and also on the question of limitation but the learned Judge-in- C.A.694/2008 6 held her entitled to her shari share by granting a decree in her favour by holding that question of limitation would not come in her way. 5. To answer the queries raised in the leave granting order, we, in the given circumstances, have to see as to whether the plaintiff /Respondent No.1 and the two widows would be entitled to inherit the legacy left by the propositus, being legal heirs of the pre-deceased son, within the meaning of Section 4 of the Ordinance VII of 1961. If answer to the above question comes in positive then the legal heirs of the pre-deceased son naturally will get their right of inheritance otherwise, the suit of the plaintiff would be liable to dismissal. 6. To proceed further, it would be useful for the adjudication of the matter in hand to reproduce the relevant statutory provisions of the Act V of 1962 and Ordinance VII of 1961 which read as under:- “ Act V of 1962 Section 2.-- Application of the Muslim Personal Law. Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority legitimacy' or bastardy, family relations, wills, legacies, gifts religious usages or institutions, including Waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslim. Section 2(A): - Succession prior to Act IX of 1948. Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition .was a Muslim:-- (a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat); (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; C.A.694/2008 7 (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith; Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees. Section 3.-- Termination of limited estates under customary law. The limited estates in respect of immovable property held by Muslim female under the Customary Law are hereby terminated; Provided that nothing herein contained shall apply to any such estate saved by enactment repealed by this Act, and the estates so excepted shall continue to be governed by that enactment notwithstanding its repeal by this Act. Section 5.-- Devolution of property on the termination of life estate and certain wills. The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee; Provided that the share to which a Muslim female holding limited estate under customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her. Ordinance VII of 1961 Section 4: -- Succession. In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive. ” 7. There are two judgments of this Court which could decide the fate of the case, one referred and relied upon by the appellants i.e. Mst. Sarwar Jan and others Vs. Mukhtar Ahmad and others (PLD 2012 SC 217) and the other referred and relied upon by the plaintiff/respondents i.e. Sardar Vs. Mst. Nehmat Bi and 8 others (1992 SCMR 82). Relevant parts of both the judgments would also require to be reproduced which for ready reference read as under:- C.A.694/2008 8 “ Mst. Sarwar Jan’s case 6. ………The Ordinance was in force at the time of such termination, therefore, the retrospective application of section 4 was not an issue in the case. However, in the instant matter there is no element of any limited holding of the estate by a female under the custom which would terminate on the enforcement of Act, resultantly, the judgment supra has no relevance qua the present proposition. 7. In order to examine if as per its own force section 4 ibid has a retrospective effect, it is settled rule that any statute or a provision thereof forming part of substantive law, which creates or extinguish or affect the rights of the persons/citizen shall ordinarily have a prospective effect, except where by the clear command of the law, it is made applicable retrospectively. From the language of section 4 ibid we do not find such to be the intention of the legislature, therefore, in our considered view, the application of the section for all intents and purposes is prospective in nature and by no rule of interpretation can it be given a retrospective effect, so as to undo or reopen the past and closed settlements of inheritance, which had been concluded prior to the coming into force of the Ordinance, otherwise, there shall be no sanctity and conclusiveness attached to all or any of the successions, which have been settled under the Mohammedan Law, much before the enforcement of the Ordinance, 1961, even those successions finalized 50 or 100 years prior thereto shall have no protection. This has never been the object of section 4 ibid and the intendment of the legislature. Thus, considering this case in the light of the above rule and criteria, Ilam Din in the case died in 1956 and the legal heirs of his pre-deceased son would not be entitled to inherit his estate, under the Mohammedan Law……… Sardar’s case 9. After hearing the learned counsel for the parties and perusing the precedents cited by them, we are of the view that while enforcing section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 for the purpose of devolution of the estate of the last full owner we will have to apply Muslim Personal Law (Shariat) wherein is included the Muslim Family Laws Ordinance, 1961. The contention of the learned counsel for the respondents in this behalf is supported by the judgment of the Supreme Coart (Shariat Bench) in Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 that Muslim Personal Law (Shariat) is a comprehensive term to cover all laws relating to personal matters of Muslims. Section 4 of the Muslim Family Laws Ordinance, 1961 allows inheritance to the children of the pre-deceased son or daughter to the extent that the son or daughter would have got. Section 3 of the latter Ordinance 1961 also provides that `The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage'. Therefore, it appears to us that the learned Judge in the High Court was right in holding that by providing for devolution of the property under section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 on termination of the life estate, the children of pre-deceased daughter of the last full owner will inherit the share which their mother would have got as if she were alive at the time of the opening of the succession, that is to say, on the demise of her father Ilam Din in 1947. 10. ………. 11. Finally if the statutory provisions i.e. section 5, section 2 and section 2-A of the Muslim Personal Law (Shariat) Application Act, 1962 and section 4 of the Muslim Family Law Ordinance, 1961 are read together and the rule of interpretation for harmonizing statutory provisions is applied, it is quite clear that on the termination of the life estate of Mst. Nehmat Bi, inheritance will open with reference to the full owner namely Ilam Din who died in 1947. He would be succeeded by his heirs the widow, sister and pre-deceased daughter's children. The claim C.A.694/2008 9 of the appellant to exclude children of the pre-deceased daughter of Ilam Din is untenable. As regards distribution of shares amongst the heirs, assigned by the Lahore High Court, no one has come up in appeal; therefore, no interference is called for in this behalf.” A bare look of the above two judgments would reveal that there is a very delicate distinction in these judgments and if the true import of these judgments is seen then it becomes crystal clear that in the case of Sardar (supra) it was held by the Hon’ble five Member Bench that there were limited estate holders of the legacy of the propositus being the legal heirs of the pre- deceased son. On termination of the limited estate, in view of Section 3 of the Act V of 1962, the provisions of Section 4 of the Ordinance VII of 1961 were in field, so it was made applicable to that case and the right of inheritance to the legal heirs of the pre-deceased son was given whereas in the case of Mst. Sarwar Jan (supra) no such question of limited estate was involved in that case and the only question of inheritance and rights of the legal heirs of pre- deceased son was involved prior to the promulgation of the Ordinance VII of 1961, so in this view of the matter, the provisions of Section 4 of the Ordinance VII of 1961 was declared to be prospective in nature and would not extend any benefit to the legal heirs of pre-deceased son retrospectively. Apart from the case of Mst. Sarwar Jan (supra) we were unable to lay hand on any such judgment of this Court dealing with the effect of provisions of Section 4 of the Ordinance VII of 1961 and for that matter we almost went through the entire case law available on Section 4 ibid except the two judgments of the Lahore High Court i.e. Muhammad Yaqub and others Vs. Muhammad Ibrahim and others (2002 CLC 819) and Muhammad Murad and 12 others Vs. Allah Bakhsh and 34 others (2006 MLD 286). The ratio which comes out of the above two referred judgments is that when there is a question of limited estate holders and the legal heirs of pre-deceased son or daughter, the legal heirs of pre-deceased son or daughter would become entitle on C.A.694/2008 10 termination of the limited estate in view of Section 3 of the Act V of 1962 as Section 4 of the Ordinance VII of 1961 would be in field and in simple case of inheritance, the legal heirs of pre-deceased son or daughter, prior to promulgation of the Ordinance VII of 1961, would not be entitled to get any benefit under Section 4 of the Ordinance VII of 1961 as it will have no retrospective effect rather it will take effect prospectively. 8. While reverting back to the facts and circumstances of the case in hand, it is admitted and established on the record that the propositus of the parties died in the year 1944 leaving behind his only son Sadiq alias Sadu and the two widows and a daughter of his pre-deceased son namely Rajada. In view of the introduction of Section 2-A to the Act V of 1962, Sadiq alias Sadu though inherited as legal heir but also became full owner. His inheritance devolved upon his son to the extent of 1/2 share and the remaining 1/2 share went to the two widows as limited estate holders. Their limited estate got terminated after promulgation of the Act V of 1962 and by the time Section 4 of the Ordinance VII of 1961 was very much in field so was applicable in their case. The above referred situation tallies on all fours to the case of Sardar (supra) entitling the legal heirs of pre-deceased son i.e. the two widows and the daughter i.e. the plaintiff according to their respective shari shares i.e. 1/8 to the two widows, 1/2 to the daughter (plaintiff) whereas the remaining would go to the son Sadiq alias Sadu as residuary, full brother. 9. Since the status of parties to the lis is admittedly of occupancy tenants under Section 10 (2) of the Act V of 1912 so their succession would no doubt be dealt with under Section 19-A of the said Act. Since the appellants and the second widow namely Mst. Aisha of pre-deceased son after depositing the requisite fee under the scheme have become full owners so the plaintiff and her mother namely Mst. Fatima, the first widow of pre-deceased son, be also dealt with accordingly and the same principle was laid down in the case of C.A.694/2008 11 Mst. Ghulam Bano alias Gulab Bano and others Vs. Mst. Noor Jehan and others (2005 SCMR 658). 10. It is also worthwhile to mention here that provisions of Section 4 of the Ordinance VII of 1961 were declared against the tenets and injunctions of Islam by the Federal Shariat Court by reviving the theory of Mahjub-ul-Irs (otherwise, under the traditional Muslim Law of inheritance grandson is not excluded from the inheritance of his grandfather) in its judgment rendered in the case of Allah Rakha and others Vs. Federation of Pakistan and others (PLD 2000 FSC 1), wherein the effective date of such declaration was also given as 31.03.2000 but such verdict has been questioned before the Shariat Appellate Bench of this Court and by virtue of provisions of Article 203D of the Constitution of Islamic Republic of Pakistan, 1973 operation of such verdict becomes automatically suspended. Besides, such declaration could not affect previous operation of law or succession taking place before such date as was held in the cases of Mst. Samia Naz and others Vs. Sheikh Pervaiz Afzal and others (2002 SCMR 164), Muhammad Ali and others Vs. Muhammad Ramzan and others (2002 SCMR 426), Mst. Fazeelat Jan and others Vs. Sikandar through his legal heirs and others (PLD 2003 SC 475) and Mahmood Shah Vs. Syed Khalid Hussain Shah and others (2015 SCMR 869). 11. As far as the question of limitation in filing suit for declaration is concerned, we also would like to discuss it in some detail. In general, the time provided for such suit under Article 120 of the Limitation Act, 1908 is six years. Different aspects regarding reckoning /calculating this period of limitation have been considered and some yardsticks have been settled by this Court in different nature of cases and the situation cropping-up according to the facts and circumstances of the cases. In the cases of simple correction of revenue record, it is settled by now that every fresh wrong entry in the record of rights would provide fresh cause of action provided C.A.694/2008 12 the party aggrieved is in possession of the property as owner needless to say that it can be either physical or symbolic possession. Similarly, in the cases of claiming right of inheritance, it is well settled that the claimant becomes co- owner/co-sharer of the property left by the predecessor alongwith others the moment the predecessor dies and entry of mutations of inheritance is only meant for updating the revenue record and for fiscal purposes. If a person feels himself aggrieved of such entries, he can file a suit for declaration within six years of such wrong entries or knowledge. Any such repetition of the said entries in the revenue record would again give him a fresh cause of action or when the rights of anyone in the property are denied it would also give fresh cause of action. Similarly, it is again settled by now that no limitation would run against the co-sharer. We for instance can quote few judgments covering all these aspects like Ghulam Ali and 2 others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Riaz Ahmad and 2 others Vs. Additional District Judge and 2 others (1999 SCMR 1328), Mst. Suban Vs. Allah Ditta and others (2007 SCMR 635), Muhammad Anwar and 2 others Vs. Khuda Yar and 25 others (2008 SCMR 905) and Mahmood Shah Vs. Syed Khalid Hussain Shah and others (2015 SCMR 869). In recent past certain judgments have been rendered in the cases of inheritance wherein the question of waiver, acquiescence and estoppel have been considered like in the cases of Mst. Phaphan through L.Rs. Vs Muhammad Bakhsh and others (2005 SCMR 1278), Atta Muhammad Vs. Maula Bakhsh and others (2007 SCMR 1446), Lal Khan through Legal Heirs Vs. Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657), Muhammad Rustam and another Vs. Mst. Makhan Jan and others (2013 SCMR 299), Mst. Grana through Legal Heirs and others Vs. Sahib Kamala Bibi and others (PLD 2014 SC 167) and Noor Din and another Vs. Additional District Judge, Lahore and others (2014 SCMR 513). Since the question of limitation in the instant case has not been argued in the light of above noted cases, so we would not like to C.A.694/2008 13 discuss the questions involved in the above noted cases qua the question of limitation and would leave it open and consider this aspect in some other appropriate case wherein such like issues are involved. Since we have held that plaintiff Mst. Khatoon Bibi and the two widows of pre-deceased son Rajada of the propositus Ahmad are entitled to receive their due share and they being co-sharers/co-owners in the legacy of the propositus just after opening of succession have become fait accompli after the demise of the propositus and would not need the intervention of the revenue authorities to make them co-sharers/co-owners as such no limitation would run against them as possession of one co-sharer would be deemed to be the possession of all and further any wrong entry in the record of rights would also equip them with a fresh cause of action. Non-filing of any suit by the first widow namely Mst. Fatima, the mother of the plaintiff, by claiming 1/4 share out of 1/8 would also not disentitle her to claim her share. 12. After considering each and every aspect of the case in hand the answers to the queries, raised in the leave granting order, would be as under:- (i) Both the widows being female were not entitled to full ownership under Section 2-A of the Act V of 1962. They were holders of limited estate only which terminated after promulgation of Act V of 1962 and the property held by them as limited estate would only go back to the legal heirs of pre-deceased son. (ii) Both were entitled to inherit according to their respective shari share out of the share of the pre- deceased son Rajada which he would have received at the time of opening of succession of the propositus. (iii) Provisions of the Ordinance VII of 1961 and Act V of 1962 were attracted besides the provisions of Section 19-A of the Act V of 1912. C.A.694/2008 14 13. The upshot of the above discussion is that this appeal has lost its fate and the same is, therefore, dismissed. Judge Judge Announced in Open Court at on . Judge Bench-IV (Nasir Khan) ‘APPROVED FOR REPORTING’

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Umar Ata Bandial Civil Appeal No.697 of 2008. (On appeal from judgment of Lahore High Court, Lahore dated 24.5.2004, passed in Civil Revision No.680/2003) Baja (deceased) through his L.Rs, etc …Appellants Versus Mst. Bakhan & others … Respondents For the appellants: Ch. Muhammad Yaqoob Sindhu, ASC. For respondents 1&5: Kh. Saeed-uz-Zafar, ASC. Respondents No.2,3,4&6: Ex parte. Date of hearing: 16.6.2015. JUDGMENT Anwar Zaheer Jamali, J.- This appeal, with leave of the Court in terms of the leave granting order dated 30.7.2008, is directed against the judgment, dated 24.05.2004, passed by the Lahore High Court, Lahore, in C.R. No. 680 of 2003, whereby this civil revision was dismissed and the findings of the learned Additional District Judge Nankana Sahib, decreeing the suit for declaration and permanent injunction filed by Respondent No. 1, vide judgment dated 17.04.2003, were maintained. 2. The brief facts relevant for the disposal of this appeal are that Respondent No. 1 (Mst. Bhakan), who is an illiterate village woman, filed a suit for declaration and permanent injunction against the Appellants and Respondents No. 2 to 4, stating that she was the C.A-697/2008. 2 owner in possession of suit land admeasuring 9 kanals 1 marla which she had never gifted to Respondents No. 2 to 4, who were her cousin and co-sharers in the joint holding. She further stated that on 19.11.1967 Respondents No. 2 to 4 fraudulently managed some entry of gift on her behalf in their favour through mutation No.4 and thereafter fraudulently sold/transferred the suit land alongwith their other holding, total admeasuring 194 kanals 7 marlas in favour of Appellants through registered sale deed dated 25.6.1975. Hence the sale made by Respondents No. 2 to 4 in favour of appellants to the extent of her share was illegal. 3. The suit was contested by the Appellants, inter alia, contending to be the bona fide purchasers of the suit land, and also on the ground that the suit was hopelessly time barred as it was filed 30 years after the mutation entry of gift in favour of Respondents No. 2 to 4 made in the revenue records. 4. The civil Court framed twelve issues and after recording evidence of both the sides, dismissed the suit on 21.7.2001. Aggrieved by such judgment, Respondent No. 1 filed an appeal before the learned Additional District Judge Nankana Sahib, who, vide judgment dated 17.4.2003, allowed the appeal and decreed the suit in her favour. The Appellants challenged the said judgment of the learned Additional District Judge before the Lahore High Court, Lahore, where it was maintained and the Civil Revision filed by the Appellants was dismissed vide impugned judgment dated 24.5.2004. C.A-697/2008. 3 The Appellants have now approached this Court seeking to challenge the said judgment of the Lahore High Court, Lahore. 5. We have heard the learned Counsel for the parties and perused the case record which reveals that Respondent No.1 herself appeared as PW-1 and stated that she has a son and four daughters, while Respondents No. 2 to 4 are her cousins, and that she neither gifted her share in the joint holding to them nor did she ever appear to get such mutation entered attested in the revenue records. 6. The law, expounded by this Court in the case of Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1859) in the context of Article 127 of the Qann-e-Shahadat Order 1984 is very clear, which grants special protection to illiterate and pardanashin ladies in such type of transactions. In the cases of gift, particularly, when the donor is some illiterate pardanashin lady, disputing the very genuineness of the gift on the allegation of fraud, for their satisfaction the Courts have to look into the surrounding circumstances to ascertain the true intent behind the gift so as to determine its validity, and to ensure that women are not deprived of their property through frivolous or fraudulent means by taking advantage of their illiteracy, weak social background and other compelling circumstances to which they may be easily exposed. In the instant case, there appears to be no justification or plausible reason in support of the alleged gift made by Respondent No. 1 in favour of Respondents No. 2 to 4, especially when Respondent No. 1 had five children of her own while alleged C.A-697/2008. 4 donee’s were closely related to her and they were in position to encash her shortcomings, as discussed above. Even otherwise, in view of Article 127 of the Qanun-e-Shahadat Order, 1984, the burden of proving the validity of gift vis-à-vis good faith was on the beneficiaries of such transaction. But, in the present case, Respondents No. 2 to 4, the donees, despite being served with the summons did not appear to contest the Suit, to establish the validity of the alleged gift in their favour, and the Appellants, being subsequent buyer in the year 1975, also failed to prove the necessary ingredients of a valid gift. Therefore, the findings of the learned Additional District Judge, and of the learned judge in chambers of the Lahore High Court, are unexceptionable. 7. Since the Appellants have failed to prove the validity of the gift allegedly made by respondent No.1 in favour of Respondents No. 2 to 4, we are inclined to hold that the consequent entry in the revenue record had been managed fraudulently and thus it is void. It a settled principle of law that any superstructure built on the basis of a fraudulent transaction must collapse upon failure of such transaction. Therefore, the contention of the Appellants that they are bonafide purchasers of the joint holding, including the 9-kanals 1- marla land owned by respondent No.1, hence protected under section 41 of the Transfer of Property Act, 1882, does not carry any weight. Furthermore, it is also settled law that the period of limitation to challenge a fraudulent transaction runs from the date of its knowledge. According to the statement recorded by Respondent C.A-697/2008. 5 No. 1 as PW-1, she came to know about the gift mutation in the year 1995, whereafter she filed the suit within five months. This statement has gone unchallenged during her cross examination. Therefore, the suit filed by Respondent No. 1 after gaining knowledge of the fraudulent transaction, was not barred by limitation. 8. In view of the above discussion, the impugned judgment of the High Court and the judgment of the learned Additional District Judge, are maintained and this appeal is dismissed. 9. However, it is made clear that such decree will not affect the sale transaction dated 25.6.1975, in favour of the Appellants, except to the extent of the 9 kanals 1 marla land owned by Respondent No. 1. Moreover, it is left open for the Appellants to sue Respondents No. 2 to 4, for compensation and damages arising out of the fraud played by them with Respondent No. 1, which ultimately resulted in financial loss to them. Islamabad, 16th June, 2015. Approved for reporting. ��ا�� Judge Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE MUSHIR ALAM MR. JUSTICE UMAR ATA BANDIAL CIVIL APPEAL NO. 69 OF 2015 (On appeal from the judgment dated 28.08.20104 of the Lahore High Court, Lahore passed in W.P. No. 20018 of 2014) Shahbaz Khan alias Tippu and others Appellants Versus Learned Special Judge ATC No.3 Lahore and others Respondents For the appellants Raja Muhammad Ibrahim Satti, Sr. ASC Ch. Irshad Ullah Chattha, ASC For respondent No.2 Mr. Waqar Hasan Mir, ASC On Court’s Notice Mr. Mudassar Khalid Abbasi, Addl. PG, Pb. Mr. Ahmed Raza Gillani, Addl.P.G. Pb. Date of Hearing 15.09.2015 JUDGMENT UMAR ATA BANDIAL, J.— The leave granting order dated 26.01.2015 notes the following questions for the Court’s consideration in this appeal: “(i) whether the High Court in exercise of writ jurisdiction could have interfered in the Order of the ATC dated 02.07.2014 considering that the order had been passed for valid reasons appearing therein and was within the competence and jurisdiction of the ATC; and (ii) whether the principles of law enunciated in the case titled Ahmed Jan Vs. Nasrullah and others (2012 SCMR 59) and the case titled Bashir C.A. NO. 69 OF 2015 2 Ahmed Vs. Muhammad Siddique and others (PLD 2009 SC 11) were adhered to by the High Court.” 2. Briefly the facts of the case are that on 26.03.2014, FIR No. 247 of 2014 was lodged with Police Station Harbanspura, District Lahore for offences under Sections 302, 324, 148, 149, PPC read with Section 7 of the Anti-Terrorism Act, 1997 (“ATA”). The complainant Muhammad Ashraf states in the FIR that his sister Mst. Shabana alongwith her husband Muhammad Ijaz and their children reside in the house belonging to her father-in-law Mehraj Din situated in Fatehgarh, Harbanspura, Lahore. Mehraj Din’s daughter Mst. Saira Bibi and her husband Muhammad Jahangir have fraudulently got the said house transferred to the name of Mst. Saira Bibi. In civil litigation Mehraj Din has obtained an injunctive order against the said transfer. On 25.03.2014 at 09:30 p.m. Mst. Saira Bibi, her husband Muhammad Jahangir, his brother Muhamad Saleem Shahzad, two gunmen Yousaf and Shahbaz and four unknown armed persons came to the said house for securing its possession from Mst. Shabana and her husband. Mst. Shabana informed her father Muhammad Umer on the phone who alongwith his four sons Muhammad Akram, Muhammad Rafaqat, Ali Raza and Muhammad Ashraf, the complainant, reached Mst. Shabana’s house to attempt a settlement between the two sides. Other relatives of Mst Shabana were also present at the house. During the discussion Mst. Saira Bibi and her side suddenly abandoned the reconciliation process. Thereupon the two armed gunmen Yousaf and Shahbaz and the accompanying four unknown armed C.A. NO. 69 OF 2015 3 persons opened indiscriminate firing on the complainant party. In the attack the complainant’s father Muhammad Umer and his three brothers Muhammad Akram, Rafaqat Ali and Ali Raza were killed and two of his cousins Muhammad Kashif and Muhammad Kamran were injured. Mst. Saira Bibi’s husband, Muhammad Jahangir, also got killed in the indiscriminate shooting. According to the site plan of the occurrence, all the five deceased were killed at different locations on the street outside the disputed house. A private complaint was filed by the appellants’ side about the said occurrence but that was dismissed by the competent Court. The said decision remains unchallenged by the appellants. 3. Learned counsel for the appellants has forcefully contended that the learned High Court’s judgment dated 28.08.2014 is wrong in reversing the learned Anti Terrorism Court (“ATC”) judgment dated 02.07.2014 that had sent the case for trial by a learned Sessions Court exercising ordinary criminal jurisdiction. The alleged occurrence was triggered by a civil dispute between the complainant party and the accused party. Both sides have suffered loss of life and injuries in the ensuing fight. The cause of the occurrence is a private property dispute and not a design by the accused party to intimidate or overawe the public or to create a sense of fear or insecurity in the society within the meaning of Section 6(1)(b) of ATA. In a case where a sense of fear or insecurity in society follows as a by-product of a privately motivated crime, this Court has in the case of Bashir Ahmed vs. Muhammad Siddique (PLD 2009 SC 11) held that the commission of such offences have no nexus with the C.A. NO. 69 OF 2015 4 object of ATA and fall outside the statutory definition of terrorism. Moreover, it is argued that if the selection of the competent Court to try the offences in this case is postponed to a decision taken by the learned ATC after recording of evidence, then the appellants shall suffer double jeopardy contrary to the guarantee under Article 12 of the Constitution. In case the learned ATC concludes on the basis of evidence recorded during trial that it lacks jurisdiction to try the offences alleged in the present case, the appellants shall be made to suffer the rigours of a de novo trial before the learned Sessions Court. 4. On the other hand, learned counsel for the complainant who is fully supported by the Additional Prosecutor General, has defended the impugned judgment of the High Court that orders trial of offences in the present case by the learned ATC. He explains that the crime committed in the occurrence has certain shocking features: prima facie, the killing of five unarmed persons including one person belonging to the appellants’ side, is the result of random and unchecked firing by the appellants’ gunmen. The deceased were not killed within the confines of the disputed house but on a public street lined by private houses. The deaths were not committed by parties to the dispute but by six gunmen who acted callously and ruthlessly in executing their instructions. The attributed private object of the crime is far exceeded by the scale and enormity of the heinous acts committed in the occurrence. More importantly, the residents of the locality were directly exposed to the sight, noise and commission of the offences. He adds that it is natural and C.A. NO. 69 OF 2015 5 inevitable that the incident has grossly intimidated such residents and instilled insecurity and fear amongst them. 5. We have heard the learned counsel for the parties and have perused the record of the case carefully. 6. The jurisdiction of a learned ATC for taking cognizance and conducting trial of offences is to be initially determined on a tentative assessment of the prosecution material that is presented before a learned trial court. At the pre-trial stage the relevant record for the consideration of the said question is the police report under section 173 Cr. P.C and the investigation materials attached thereto. Section 6 of ATA furnishes the statutory criteria for selecting a case for trial by a learned ATC under Section 12 of ATA. In the context of the present case, causing death or committing grievous violence [Section 6 (2)(a) and (b) ATA] are actions that would amount to the commission of “terrorism” if the same also involved, inter alia, the following elements laid down in Section 6 (1)(b) of ATA: “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 a foreign government or population or an international organization or create a sense of fear or insecurity in society; or…” 7. It is clear from a textual reading of Section 6 of ATA that an action categorized in sub-section (2) thereof constitutes the offence of terrorism when according to Section 6 (1)(b) ibid it is “designed” to, inter alia, intimidate or overawe the public or to C.A. NO. 69 OF 2015 6 create a sense of fear or insecurity in society. Therefore, the three ingredients of the offence of terrorism under Section 6(1)(a) and (b) of ATA are firstly, taking of action specified in Section 6 (2) of A TA; secondly, that action is committed with design, intention and mens rea; and thirdly, it has the impact of causing intimidation, awe, fear and insecurity in the public or society. In relation to the above mentioned elements of the offence of terrorism, the following features of the present case are relevant for determining whether or not the case involves commission of that offence for its trial by a learned ATC. Firstly, the place of occurrence where five persons have been killed is spread over different spots on a public street in the locality of the disputed house. There are houses along both sides of this street where members of the public reside. Secondly, the five murders are a result of unchecked and random shooting that hit the fleeing victims in front of different houses on the street. Indiscriminate firing is also indicated by the death of a member of the accused party, Muhammad Jahangir. Thirdly, the persons attributed lethal firing by the prosecution are neither alleged to nor personally nurture the stated private motive narrated in the FIR. They are gunmen on a job impervious to the consequences of their actions. Fourthly, the occurrence took place within the sight and the earshot of the persons from the public who reside in the locality. 8. There is no doubt that the brutal killing of five unarmed persons on a public street would have stricken panic, fear and insecurity among the residents in the locality. However, because of the motive of a family dispute given in the FIR, there is C.A. NO. 69 OF 2015 7 a challenge that the required third element of “design,” intention or mens rea to commit terrorism is lacking in the present case. This element of the offence of terrorism has been treated as the pivotal criterion for ascertaining the jurisdiction of a learned ATC in the two judgments referred in the leave granting order: namely Bashir Ahmed vs. Muhammad Siddique (PLD 2009 SC 11) and Ahmed Jan vs. Nasrullah (2012 SCMR 59). The judgment in Ahmed Jan’s case ibid endorses the law enunciated in Bashir Ahmed’s case ibid to the effect that under Section 6(1)(b) of ATA a design that is intention or mens rea of an accused to cause the prescribed public or social reaction to an action specified in Section 6(2) of ATA is essential for the commission of the offence of terrorism. 9. In order to assess whether the offences committed in the present case qualify for trial by a learned ATC it would be useful to first comprehend the matrix of facts and legal reasoning given in Bashir Ahmed’s case ibid. Very briefly the complainant party in that case was attacked in their motorcars while crossing the haveili of Naseem @ Mithoo in Village Fatoowala, Sharaqpur Sharif. The accused party suddenly emerged from the said haveili and fired indiscriminately at the complainant party, killing four and injuring one of its members. Thereafter the assailants escaped while doing aerial firing creating terror and insecurity in the locality. The motive of the occurrence as stated in the FIR is a blood feud between the parties. Considering the provisions of Section 6(1)(b) of ATA, this Court concluded that previous enmity and private vendetta had triggered the occurrence in the case. It C.A. NO. 69 OF 2015 8 could therefore not be implied that the offences in question were committed with a design or intention to spread fear and insecurity in society or to intimidate the public. The analysis of Section 6 of ATA undertaken in Basharat Ali vs. Special Judge, Anti-Terrorism Lahore Court-II (PLD 2004 Lahore 199) was approved to hold that fear and insecurity in the society which results as a byproduct or an unintended consequence of a private crime falls outside the pale of the offence of terrorism under the ATA. It is only when such a reaction by the public and consequence on society is intended by the perpetrator of the offence that an offence of terrorism can, prima facie, be said to have been committed. In the facts of that case it was held that because a private blood feud had precipitated the occurrence, therefore, the case fell outside the purview of the ATA. 10. The view taken in Bashir Ahmed’s case ibid receives support from the seminal judgment by the full Court in Mehram Ali vs. Federation of Pakistan (PLD 1998 SC 1445). The following observations on the subject of jurisdiction of an ATC established under the ATA are made by the full Court: “Offences mentioned in the schedule should have nexus with the object of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification including C.A. NO. 69 OF 2015 9 such an offence to that extent will be ultra vires.” Nexus with the object of ATA and the offences covered in Sections 6, 7 and 8 thereof is a pre-requisite for offences being tried by a learned ATC. To elucidate the point, the judgment in Mehram Ali’s case ibid goes on to explain that if a murder is committed “solely” on account of personal enmity, such murder will have no nexus with the above mentioned provisions of the ATA and will not be triable under the said Act. The other authorities quoted in Bashir Ahmed’s case ibid include Bashir Ahmed vs. Naveed Iqbal (PLD 2001 SC 521) and Muhammad Mushtaq vs. Muhammad Ashiq (PLD 2002 SC 841) emphasize the importance of motive for constituting the offence of terrorism but the decisions turn on other grounds. The first of these precedents derives support from the repealed definition of terrorism that required the use of bombs, dynamite or other explosive substances as an essential ingredient for the commission of the said offence. The use of the said substances is no longer a necessary ingredient of the said offence under Section 6(2) of ATA. The judgment in the second precedent considers mens rea as significant for the commission of terrorism but treats the impact of the overt acts and surrounding circumstances in a case as an indication of the object of the crime. 11. Primarily, the rule laid down in Bashir Ahmed’s case ibid requiring the ascertainment of the design, intention and mens rea of an act for establishing the jurisdiction of a learned ATC rests on dicta given in Mehram Ali’s case ibid. However, C.A. NO. 69 OF 2015 10 Bashir Ahmed’s case ibid does not consider the ways and means by which the design, intention or mens rea, for an act of terrorism, requiring in essence the proof of an assailant’s state of mind, should be ascertained by a Court of law. Whether the Court should mechanically consider the motive alleged by a complainant in the FIR to be decisive or should it also scrutinize other aspects of an occurrence to assess if the culprits had any design, intention or mens rea to commit a terrorist act? 12. In most cases, the nature of the offences, the manner of their commission and the surrounding circumstances demonstrate the motive given in the FIR. However, that is not always the case. When offences are committed by persons with impunity disregarding the consequence or impact of their overt action, the private motive or enmity disclosed in the FIR cannot be presumed to capture their true intent and purpose. In such cases, it is plain that action taken and offences committed are not instigated “solely” by the private motive alleged in the FIR. It is settled law that intention, motive or mens rea refer to the state of mind of an offender. It is equally well established that a state of mind cannot be proven by positive evidence or by direct proof. The intention of an accused for committing an offence is to be gathered from his overt acts and expression. It has been held in the case of State vs. Ataullah Khan Mangal (PLD 1967 SC 78) that an accused person “must be deemed to have intended the natural and inevitable consequences of his action.” Thus apart from the overt acts of the accused, the injuries caused by him or consequences ensuing from his actions and the surrounding C.A. NO. 69 OF 2015 11 circumstances of the case are all relevant to ascertain the design intention or mens rea that instigated the offences committed. These principles are enunciated in Zahid Imran vs. The State (PLD 2006 SC 109) and Pehlwan vs. Crown (1969 SCMR 641). Intention is presumed when the nature of the act committed and the circumstances in which it is committed are reasonably susceptible to one interpretation. In such event, the rule of evidence that the natural and inevitable consequences of a person’s act are deemed to have been intended by him is applicable: Jane Alam vs. The State (PLD 1965 SC 640). In Muhammad Mushtaq vs. The State (PLD 2002 SC 841) the inevitable consequence of an act was considered as its design. Four persons were killed to settle a blood feud while they were on their way for a Court hearing at the nearby District Courts, Lahore. This Court observed that the learned ATC was the competent trial forum in the case: “7. It would thus appear that ordinary crimes are not to be dealt with under the Act. A physical harm to the victim is not the sole criterion to determine the question of terrorism. What is to be seen is the psychological effect produced by the violent action or with the potential of producing such an effect on the society as a whole or a section thereof. There may be a death or injury caused in the process. Thus where a criminal act is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of the society, the same may be treated to be a terrorist act. There may be just a few killings, random or targeted, resorted to with single-mindedness of purpose. But nevertheless the impact of the same may be to terrorize thousands of people by creating a panic or fear in their minds”. C.A. NO. 69 OF 2015 12 8. In the present case, we, prima facie, find that the occurrence took place during the peak hours of the day on the busy Court Road near the District Courts, Lahore, wherein four persons while on their way to attend the Court were allegedly murdered by the use of kalashnikovs. The cumulative fall-out of the occurrence as to the time, place and manner of the act created a sense of the fear and insecurity in society. The case was, therefore, triable by the Anti-Terrorism court established under the said Act …” 13. When wanton overt acts committed by an accused lead to horrendous consequences then the motive given in the FIR merely indicates the background. The presumption that the natural and inevitable consequences of the acts of an accused are deemed to be intended, provides a reliable touchstone for gathering the design, intention or mens rea of an assailant in the context of Section 6(1)(b) of ATA. 14. Indeed neither Mehram Ali’s case nor Bashir Ahmed’s case ibid have confined judicial recourse solely to the motive disclosed in the FIR for ascertaining the mens rea for the offence of terrorism. For the existence or otherwise of mens rea of the said offence, a Court of law may rightfully interpret the different aspects of a prosecution case noted above in order to ascertain the design behind the acts committed by an assailant. In the present case the assailants who committed the brutal acts of causing the death of five persons had no personal grouse against their victims. Prima facie, they executed the instructions given by the other accused. This was done with impunity because doing the job was material and not the consequence and impact of their overt action. A dispute about the possession of a family house thus exploded disproportionately to a scale depicting wanton ruthlessness and impunity in the multiple killing of C.A. NO. 69 OF 2015 13 victims in a public place inhabited by public residents. To our minds, the motive of a domestic family property dispute is merely the spark that triggered the occurrence, or metaphorically, the fire. The rule that the accused in the present case are deemed to intend the natural and inevitable consequences of action taken is apt and accurate in depicting their design, intention and mens rea. The three ingredients under Section 6 of ATA that constitute the offence of terrorism are prima facie available in the present case. 15. Therefore, the approach in the impugned judgment to interpret overt acts of the accused and the surrounding circumstances of the case in order to ascertain whether the case falls within the ambit of the ATA, is justified. Equally, the reliance placed by the learned ATC solely on the motive disclosed in the FIR No. 247 of 2014 lodged by the complainant in the case adopts a course meant for simple cases wherein the motive disclosed in the FIR is duly demonstrated by the other criteria for ascertainment of mens rea. 16. The learned counsel for the appellants has expressed the apprehension that a re-trial of the appellants would automatically follow if the learned ATC concluded during or after the recording of evidence that a scheduled offence is not made out. The anxiety expressed is completely misplaced because Section 23 of ATA expressly provides that a Court having jurisdiction under the Cr.P.C. 1898 “to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.” Accordingly, the trial of the offence resumes from the stage at which it was transferred by the learned ATC. C.A. NO. 69 OF 2015 14 17. The foregoing are the reasons of our short order of even date which is reproduced herein-below: “We have heard the arguments of learned ASCs for the parties as well as the learned Law Officers. For the reasons to be recorded separately, this Civil Appeal is dismissed.” Chief Justice Judge Judge Islamabad 15.09.2015 Naseer /* APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE SH. AZMAT SAEED CIVIL APPEALS NOS.06 AND 724 OF 2016 (On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 27.4.2015 passed in Appeal No.842(R)CS of 2009 and dated 10.6.2015 passed in Appeal No.799(R)CS of 2014) Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Islamabad and others … Appellant (s) (in both cases) Versus Ali Naseem (in CA No.06/2016) Abdul Ghafoor Malik and another (in CA No.724/2016) … Respondent (s) For the Petitioner(s) : Mr. Nayyab Hassan Gardezi, Standing Counsel Raja Abdul Ghafoor, AOR Mr. Fayyaz Ahmed, AD (Legal) For the Respondents : Hafiz S.A. Rehman, Sr. ASC (in CA No.06/2016) Mr. Mahmood A. Sheikh, AOR (in CA No.724/2016) Date of Hearing : 11.07.2016 CAs Nos.6-2016 etc - 2 - JUDGMENT SH. AZMAT SAEED, J.- Through this judgment, it is proposed to decide Civil Appeals No.06 and 724 of 2016, involving common questions of law and facts. 2. The brief facts necessary for adjudication of the lis at hand are that the Respondents in both the instant Civil Appeals were variously employed locally in the Pakistani Missions Abroad, whose services were terminated. After rejection of the Departmental Appeals filed by the present Respondents, both separately invoked the jurisdiction of the learned Federal Service Tribunal, Islamabad (FST), wherein their respective appeals were accepted by way of the impugned judgments. The Appellants unsuccessfully had taken up the plea before the learned Tribunal that the Respondents were not Civil Servants; hence, they were not entitled under the law to file the Appeals before the learned FST. 3. In Civil Appeal No.6 of 2016, Respondent Ali Naseem was apparently employed on 12.8.1991 by the Embassy of Pakistan in Paris, France as a Stenotypist and vide letter dated 25.09.2000, his services were terminated with CAs Nos.6-2016 etc - 3 - effect from the said date. The said Respondent filed a Departmental Appeal, which was eventually rejected on 16.07.2009, which order was challenged in Appeal before the learned FST. The learned FST accepted the Appeal vide judgment impugned dated 27.04.2015. Aggrieved, the present Appellants filed Civil Petition for Leave to Appeal No.1865 of 2015 before this Court, wherein Leave to Appeal was granted vide Order dated 05.01.2016. Hence, this Civil Appeal. 4. Abdul Ghafoor Malik Respondent in Civil Appeal No.724 of 2016, was appointed on temporary basis with effect from 23.01.1990 as Local Messenger in the Welfare Wing, Consulate General of Pakistan, Jeddah, Saudi Arabia. Such employment was extended periodically. Having been found guilty of misconduct, inefficiency as well as causing “suffering to a Pakistani National”, the services of Respondent Abdul Ghafoor Malik were terminated vide Office Order dated 23.11.2014 issued by the Consulate General of Pakistan, Jeddah, Saudi Arabia. The Respondent Abdul Ghafoor Malik filed a Departmental Appeal, which was rejected on 30.11.2014. Aggrieved, the said Respondent filed an Appeal before the learned FST, which has been allowed vide impugned judgment dated 10.6.2015. The present Appellant CAs Nos.6-2016 etc - 4 - challenged the impugned Judgment by filing Civil Petition for Leave to Appeal No.2560 of 2015, wherein Leave to Appeal was granted vide Order dated 04.03.2016. 5. The learned Standing Counsel contended on behalf of the Appellants that the Respondents in both the Civil Appeals were employed locally abroad in Pakistani Missions by the Heads of the said Missions on temporary basis through Contracts of Employment subject to the laws of the host countries specifically catering for termination upon notice. Such appointments are covered by the Financial Management at Missions Abroad Volume-II, Chapter - IX Locally Recruited Staff and Clause 9.1 thereof refers to Contracts of Employment of such Staff, whose services can be terminated upon notice. Thus, the nature of the employment of the Respondents was squarely covered under Section 2(1)(b)(ii) of the Civil Servants Act, 1973, whereby a person employed on contract is excluded from the definition of “Civil Servant”, hence in view thereof, the Respondents were not Civil Servants for the purposes of Civil Servants Act, 1973 and therefore, they were neither Civil Servants in terms of Section 2(a) of the Service Tribunals Act, 1973 nor could invoke the jurisdiction of the learned FST, hence, the impugned judgments are without jurisdiction and CAs Nos.6-2016 etc - 5 - liable to be set aside. The learned Standing Counsel drew our attention to some judgments of the learned FST, whereby the persons locally employed by Pakistani Missions Abroad have been held not to be Civil Servants entitled to invoke the jurisdiction of the learned FST. 6. The learned counsel for the Respondents controverted the contentions raised on behalf of the Appellants by contending that the Respondents were appointed against sanctioned posts in connection with the affairs of the Federation i.e. Ministry of Foreign Affairs. The Respondents were appointed for an indefinite period, who had served for a considerable period of time, hence, were Civil Servants, whose services could not be terminated without following the prescribed procedure. In this behalf, he referred to Sl. No.2 (Termination of Services of Temporary Government Servants) of Estacode (Civil Establishment Code) (Edition 2007 Vol-I). Hence, it was contended, the Respondents were clothed with the legal attribute necessary for invoking the jurisdiction of the learned FST for redressal of their grievances. The learned counsel also made reference to some judgments of the learned FST, whereby, according to him, persons similarly CAs Nos.6-2016 etc - 6 - employed were treated as Civil Servants and held entitled to invoke the jurisdiction of the learned FST. 7. Heard and the available record perused. 8. Section 4 of the Service Tribunals Act, 1973 provides that any Civil Servant aggrieved of an order may file an appeal before the learned FST. Section 2(a) of the said Act provides that a Civil Servant is a person who is or has been a Civil Servant within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973. The term of “Civil Servant” has been defined in Section (2)(1)(b) of the Civil Servants Act, 1973, in the following terms:- “2. Definitions.—(1) In this Act, unless there is anything repugnant in the subject or context,-- (b) “Civil Servant” means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include - (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is a “worker” or “workman” as defined in the Factories Act, 1934 (XXV of 1934), CAs Nos.6-2016 etc - 7 - or the Workmen’s Compensation Act, 1923 (VIII of 1923); 9. A perusal of the aforesaid provisions makes it clear and obvious that a person holding a civil post in connection with the affairs of the Federation would be a Civil Servant. However, exceptions thereto have been created so as to exclude, inter alia, a person, who is employed on contract as is apparent from Section 2(1)(b)(ii) of the Civil Servants Act, 1973 reproduced hereinabove. 10. The Respondents in the instant appeals belonged to a specific category of employees of the Federation engaged and appointed locally in the Pakistani Missions Abroad. The appointment of this category of employees is not effected in accordance with the standardize procedure provided for appointment of Civil Servants under the Civil Servants Act, 1973 and the Rules framed thereunder, more particularly, the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. They were not appointed through the Public Service Commission or the Selection Boards mentioned therein nor thereafter transferred to the Pakistani Diplomatic Missions. Such appointees from a separate category of employees recruited locally by the Heads of the Missions functioning CAs Nos.6-2016 etc - 8 - outside the Pakistan. The authority of such Heads of Missions can be traced to the Financial Management at Missions Abroad Chapter IX page 131, more particularly, clause 9.1 thereof, which is reproduced hereunder for ease of reference:- “Financial Management at Missions Abroad Chapter – IX, Page 131 “9.1 Tenure of Service 9.1.1 Heads of Missions are empowered to recruit staff locally on temporary basis against sanctioned posts. Such staff is not eligible for permanent employment. Their temporary employment should be in accordance with the prevailing practice or law of the country concerned. If there is no such law governing temporary employment the service of local recruits will be terminated on a fortnight’s notice on either side. The services of such local recruits can be terminated by the Head of Mission in accordance with the terms of the service contracts signed between the Mission and the employee. [MOFA No.M(11)- 7/31/51, dated 18.08.1952 and No.Rules- 1/6/73, dated 20.06.1973]” 11. A perusal of the aforesaid instructions reveals that the recruitment of local staff by the Heads of Missions is only to be effected through Employment Contracts. The Heads of Missions do not appear to be authorized to recruit any local staff otherwise than on contract. 12. The learned counsel for the Respondents was unable to show any specific provision for recruitment of local staff for Missions Abroad permitting recruitment otherwise CAs Nos.6-2016 etc - 9 - through a contract. However, the learned counsel for the Respondents made a Reference to the Estacode Civil Establishment Code (Edition 2007) entry titled Termination of Services of Temporary Government Servants, which incidentally was relied upon by the learned FST in one of the impugned judgment. The same is reproduced herein below for ease of reference:- Estacode Civil Establishment Code (Edition 2007) Volume I, Page 458 “Termination of Services of Temporary Government Servants A Civil Servant is not necessarily in temporary employment merely because of a statement in the order of appointment that his appointment will be purely temporary and liable to termination at any time without any notice or reasons being assigned. No Civil Servant is a temporary employee as long as the employment is for an indefinite period or against a post which continues to exist for an indefinite period. It is extremely difficult to attribute to the legislature an intention to clothe the authority concerned with arbitrary powers of terminating the services of a Civil Servant in their discretion without assigning any reason. The courts have always been reluctant to interpret these provisions in a manner as would justify the externment of an employee without any justification. 2. Further, after the enactment of Civil Servants Act, 1973, the services of a Civil Servant can either be terminated under Section 11 of the Act or under Government Servants (E&D) Rules, 1973. It is not possible to spell out any power to terminate the services of an employee without notice and without assigning any reason from the provision of sub section (3) of Section 11 of Civil Servants Act, 1973, especially in the presence of the provisions of sub-section (1) CAs Nos.6-2016 etc - 10 - thereof regarding termination of service during the initial or extended period of probation. If an employee has passed through the period of probation to the satisfaction of the competent authority, he is no longer a temporary employee within the meanings of sub-section (3) if his employment is for an indefinite period or against a post which continues to exist for an indefinite period. 3. In the light of above advice of the Justice Division services of an employee can no more be terminated without notice and without assigning reason. [Authority.- Extract from Estt. Division O.M. No.31/64-86-R-3 dated 20-4-1987].” 13. We are afraid that the aforesaid entry in the Estacode is of no real assistance to the point of view canvassed on behalf of the Respondents as the instructions presupposes that the Government Servant in question is a Civil Servant (and not a contract employee) and primarily, pertains to temporary employees and not to persons locally recruited by the Heads of Missions outside Pakistan. It reiterates the provisions of Civil Servants Act, 1973 whereunder, as has been noted above, persons employed on contract do not fall within the definition of Civil Servants. 14. Abdul Ghaffar Respondent in Civil Appeal No.724 of 2016 was employed through contract of employment for a fixed period, which was extended from time to time. The last of such documents of the Consulate General of Pakistan CAs Nos.6-2016 etc - 11 - Jeddah dated 01.1.2014 is available at page 30 of the paper- book. The relevant portion thereof is reproduced hereunder for ease of reference: “Employment Contract Mr. Abdul Ghafoor, a Pakistan national appointed as a local-based Messenger at this Consulate General on purely temporary / contract basis with effect from 23.01.1990. His employment contract is hereby renewed for another year with effect from 1 January 2014 to 31 December 2014. His appointment is governed under the following terms and conditions until further order:- Pay & Allowances He will draw basic pay at the rate of SR.3,000/- per month. In addition to the monthly salary, he will be entitled to a monthly conveyance allowance @ SR.400/- (fixed) + Local Compensatory Allowance @ 15% of basic pay. Leave He will be entitled to leave in accordance with the prevailing rules and regulations of this Mission, as may be amended from time to time. Other Employment He will not engage in any other work elsewhere for monetary or other considerations. He will not attend any school or college or other courses of instruction without prior permission of the Mission. Discipline/ Conduct During his employment in the Mission, he will CAs Nos.6-2016 etc - 12 - be required to perform such duties as officially required. Refusal or reluctance to perform the duties assigned by the reporting officer or the Head of Chancery will constitute an act of misconduct which may lead to termination of services forthwith. Non-Disclosure He will not publish or broadcast anything pertaining to or having bearing on Pakistan’s relations with other countries or anything relating to the Mission or to his work; nor divulge any information which comes to his attention in the Mission, during the tenure of his contract or even after he ceases to be in the employment of this Mission. Termination His services can be terminated by either side giving one month’s notice in writing or one month’s salary in lieu thereof. However, his services would be liable to terminate immediately, without any compensation and notice, if he is found guilty of misconduct, insubordination, absence from duty without prior approval, serious dereliction of duty, material breach of rules and regulations or taking undue advantage of his position. Renewal The renewal of contract will be decided on the basis of achieving a CAs Nos.6-2016 etc - 13 - minimum score of “Good” in his annual Performance Evaluation Reports. Gratuity He will be entitled to end-of-service gratuity @ 15 days for each completed years of service, subject to maximum of Pak. Rs.175,000/- (or as amended by the Government of Pakistan from time to time) after completion of five years of service which is the minimum qualifying period of the entitlement to gratuity. This issues with the approval of the Head of Mission.” 15. Similar document with respect to other Respondent is also on record and its relevant portion reads as follows:- “Reference to your application and your interview at this Embassy, you are appointed as Stenotypist with effect from 12-8-1991 on the following terms and conditions. 1. You will receive a pay of FF.4100/- per mensem and conveyance allowance. 2. You will be on probation for a period of three months. If your work is not found satisfactory during this period your services will be terminated forthwith without any notice. On completion of this period notice for the termination of services on either side will be fourteen days or salary in lieu thereof. In case of dismissal because of misdemeanour, no notice will be necessary. 3. No Social security will be paid by the Embassy but you will be entitled to a Health Insurance Policy paid by the CAs Nos.6-2016 etc - 14 - Embassy should you so desire and provided you do not already enjoy similar facilities under any other scheme. 4. You will earn leave at two and a half days per month which will be granted in proportion to the period of service rendered. Leave will not be carried over from one calendar year to another. You will be also entitled to seven days of casual leave plus thirteen days of medical leave each. The latter can be claimed only on medical grounds. 5. You will be considered for an increase after completion of one year service. 6. Other conditions of service will be according to the rules and regulations framed by the Embassy from time to time. 7. The appointment is being made subject to the conditions that you are free from any chronic, mental or physical disorder and that if such a condition came to light subsequently, your services are liable to be terminated without any notice. 8. You will be entitled to end of service gratuity as per rules framed by the Ministry of Foreign Affairs, Government of Pakistan.” 16. A perusal of the aforesaid documents indicates that the same are inconsonance with the Financial Management at Missions Abroad reproduced hereinabove. The Respondents have been employed locally through a contract of employment, as envisaged therein and contained a termination clause as mentioned in the said instructions, CAs Nos.6-2016 etc - 15 - which is generally alien to the terms and conditions of service of Civil Servants regularly appointed. 17. An over view of the aforesaid leaves no manner of doubt that the Respondents may be holding a civil post in connection with the affairs of the Federation, but who were not employed on regular basis through the usual procedure as prescribed for the appointment of Civil Servants under the Civil Servants Act, 1973 and the Rules framed thereunder. They are appointed locally by the Heads of the Missions of Pakistan abroad purportedly in exercise of the powers conferred upon them by the Financial Management at Missions Abroad reproduced hereinabove. Such instructions only permit appointment of local staff on contract basis. The documents evidencing their appointments appear to be employment contracts. Thus, it is self evident that the Respondents were appointed on Contract basis. Hence, in view of Section 2(1)(b)(ii) of the Civil Servants Act, 1973, the Respondents were not Civil Servants, therefore, in view of Section 4 read with Section 2(1) of the Service Tribunals Act, 1973 were not entitled to invoke the jurisdiction of the learned FST, hence the impugned judgments dated 27.4.2015 and CAs Nos.6-2016 etc - 16 - 10.6.2015 are without jurisdiction, therefore, not sustainable in law. 18. In view of the above, these appeals are liable to be allowed and the impugned Judgments dated 27.4.2015 and 10.6.2015 are also liable to be set aside. 19. These are the reasons of our short order of even date, which reads as follows:- “We have heard arguments of Mr. Nayyab Hassan Gardezi, learned Standing Counsel on behalf of Federation and Hafiz S. A. Rehman, learned Sr. ASC for the Respondents. For the reasons to be recorded separately, both these appeals are allowed and impugned judgments are set aside.” Chief Justice Judge Bench-V Islamabad, the 11th July, 2016 ‘NOT APPROVED FOR REPORTING’ Safdar

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEALS NO.700 TO 703 OF 2017 (Against the judgment dated 28.12.2016 of the Lahore High Court, Lahore passed in W.P.No.25317 of 2016) AND CIVIL MISC. APPLICATION NO.1407 OF 2018 (Applications for impleadment as party) 1. MAG Entertainment (Pvt) Ltd. Vs. Independent Newspapers Corporation (Pvt) Ltd. etc. In C.A.700/2017 2. PEMRA Vs. Independent Newspapers Corporation Pvt. Ltd. etc. In C.A.701/2017 3. M/s Startimes Communications Pakistan Pvt. Ltd. Vs. PEMRA etc. In C.A.702/2017 4. Shahzad Sky (Pvt) Limited Vs. Independent Newspaper Corporation (Pvt) Ltd. etc. In C.A.703/2017 For the appellant(s): Mr. Aitzaz Ahsan, Sr. ASC Mr. M. S. Khattak, AOR (In C.A.700/2017) Mr. Salman Akram Raja, ASC Ch. Munir Sadiq, ASC Syed Rifaqat Hussain Shah, AOR Mr. Ashfaq Jamani, Executive Member, PEMRA Mr. Ali Zeeshan Gondal, Head Legal, PEMRA (In C.A.701/2017) Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR (In C.A.702/2017) Syed Feisal Hussain Naqvi, ASC Syed Rifaqat Hussain Shah, AOR (In C.A.703/2017) For the applicant(s): Mr. Asad Kharal, in person (In C.M.A.1407/2018) For the respondent(s): Mr. Jan Asif Mehmood Lar, ASC Ch. Akhtar Ali, AOR Civil Appeal No.701/2017 etc. -: 2 :- (For respondent No.1 in C.As.700, 701, 703/2017 and For respondent No.2 in C.A.702/2017) On Court’s notice: Mr. Ashtar Ausaf Ali, Attorney General for Pakistan Mirza Nasar Baig, DAG Date of hearing: 8.5.2018 JUDGMENT MIAN SAQIB NISAR, CJ:– The judgment impugned before us through Civil Appeals No.700/2017, 701/2017, 702/2017 and 703/2017 was passed by the learned Lahore High Court in Writ Petition No.25317/2016 on 28.12.2016. The appellants in three of the aforesaid appeals are successful bidders for Direct To Home (DTH; defined in Section 2(hb) of Pakistan Electronic Media Regulatory Authority Ordinance 2002) licenses to be issued by Pakistan Electronic Media Regulatory Authority (PEMRA). PEMRA sought bids for three licenses for DTH distribution service(s). The entire bidding process was challenged by Independent Newspapers Corporation (Pvt.) Ltd (the respondent) through Writ Petition No.25317/2016. The respondent challenged the vires of Rule 13(3) and (4) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 (Rules 2009) and Regulation 2.5, 2.11 and 3.23 of the PEMRA (Eligibility Criteria and Bidding Procedure for Direct to Home Distribution Service Licensing) Regulations 2016 (DTH Regulations 2016). The respondent also challenged Regulation 12(3) of the PEMRA (Radio Broadcasting Station Operations) Regulations 2012 (Regulations 2012). The learned High Court held, inter alia, that Rules 13(3) and (4) were ultra vires of the parent Act, i.e., Pakistan Electronic Media Regulatory Authority Ordinance 2002 (PEMRA Ordinance). The successful bidders for DTH licenses and PEMRA have challenged the impugned judgment. 2. Mr. Aitzaz Ahsan, Sr. ASC appeared on behalf of MAG Entertainment (Pvt) Ltd., which participated in the bidding held by Civil Appeal No.701/2017 etc. -: 3 :- PEMRA on 23rd and 24th November 2016 for the DTH licenses and whose bid for Rs.4.91 billion was accepted. He argued that there are various producers of programmes who will in future sell their programmes to the DTH distributors and these distributors will beam these programmes directly to the subscribers/consumers via satellite which (programmes) will be received by the consumers by means of an antenna dish installed in their homes. According to him the basic question arising in these appeals is whether the producers/broadcasters of these programmes can also be given the rights for distribution. According to the learned counsel the broadcasters/producers (which he states are interchangeable terms) were excluded from bidding for the DTH licenses by PEMRA. He states that the decision of the learned High Court is incorrect because it has been held that Section 23(2) of the PEMRA Ordinance does not contain anything to prevent the participation of the broadcasters/producers from bidding for DTH licenses. He states that on the contrary Section 23(2) ibid allows PEMRA to promote the objectives of the PEMRA Ordinance as set out in its preamble to, inter alia, “enlarge the choice available to the people of Pakistan” by means of excluding broadcasters/producers from bidding for DTH licenses in order to prevent undue concentration of media ownership. He argued that while allowing broadcasters/producers to obtain DTH distribution licenses may not create a monopoly, it would certainly create a media enterprise which would be able to use its dominant position to the disadvantage of its competitors. He contended that on 01.06.2016 PEMRA initiated the process for the grant of DTH licenses and promulgated the DTH Regulations 2016. Later these were amended on 20.08.2016 vide SRO No.774(I)/2016. He compared the original and the amended Regulation 2.5 read with Regulation 3.23 of the DTH Regulations 2016 to show how PEMRA excluded producers/broadcasters Civil Appeal No.701/2017 etc. -: 4 :- from participating in the bidding for DTH licenses. He referred to paragraph nine of Writ Petition No.25317/2016 to demonstrate the grounds on which the respondent had challenged the DTH Regulations 2016 and the Rules 2009. 3. Mr. Salman Raja, ASC appeared on behalf of PEMRA and stated that the learned High Court has misinterpreted the proviso of Section 23 of the PEMRA Ordinance and read it (proviso) to create a right in favour of every media enterprise to participate in the bidding for DTH licenses. He stated that whilst anti-competitive behavior is generally prohibited the media sector is unique because there must be plurality and diversity of voice in society. According to him there are three tiers of media: the production houses, broadcasters and distributors. According to him the learned High Court failed to see that exclusion of the dominant is often necessary to create diversity and that no ‘right’ exists in favour of broadcasters to participate in bidding for DTH licenses. He stated that the three successful bidders have participated in an open and transparent bidding process which was allowed by this Court by way of interim relief during the pendency of the instant litigation before the learned High Court.1 The bidding process was in fact televised and three successful bidders each offered close to Rs.5.00 billion each and that any new bidding process would not garner such high bids as the distribution technology has now advanced beyond DTH. He stated that “undue concentration” has to be defined ex-ante. To determine “undue concentration” ex-post would be difficult and would paralyze the system. 1 C.M.A. No.7794/2016 came up before this Court on 23.11.2016 and the following direction was made, “…the bidding process, already fixed for today, may be held and take place at the same time and venue already fixed. It is, however, made clear that no final award of bidding or contract would be made by the petitioner. Furthermore, it is also observed that no right or interest shall be created or claimed by any bidder who may participate in the bidding process. It is expected that the learned Bench of the High Court, seized with the matter, may proceed to finalize the same at the earliest. Any process undertaking in pursuant to the order of this Court shall be subject to the final determination by the learned Bench of the High Court.” Civil Appeal No.701/2017 etc. -: 5 :- He contended that there is no violation of Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) as this is not a matter of restricting any person’s freedom of expression. 4. Mr. Wasim Sajjad, Sr. ASC appeared on behalf of Startimes Communications (Pvt) Ltd., another successful bidder, and contended that the preamble of the PEMRA Ordinance states that one of the objectives of PEMRA is to enlarge the choice and to do so diverse sources are needed; if the same person is licensed for both broadcasting and distribution this purpose will not be achieved. He referred to Section 39 (2)(e) of the PEMRA Ordinance to state that PEMRA has the power to define the circumstances constituting “undue concentration” of media ownership. He relied upon paragraph 17 of the judgment reported as Messrs S. M. Ilyas & Sons Ltd. Vs. Monopoly Control Authority (PLD 1976 Lah 834) to argue that it is settled law that the legislature cannot classify the type of anti-competitive entity and it is, therefore, left to the regulator to classify the same. He also made reference to Article 38 of the Constitution. 5. Mr. Feisal Naqvi, ASC appeared on behalf of Shehzad Sky (Pvt.) Ltd, another successful bidder and stated that the finding of the learned High Court that Rule 13 of the Rules 2009 is ultra vires of Section 23 of the PEMRA Ordinance is incorrect because the relevant section of the PEMRA Ordinance is not Section 23 but Section 39 which clearly confers on PEMRA the power to define “undue concentration” and prevent the same. He stated that the learned High Court read down Section 39 to fit the scope of Section 23 ibid and held that PEMRA was not justified in prohibiting the broadcasters from participating in the bidding for DTH licenses whereas it was a discretionary power to be exercised by PEMRA under the aegis of Section 39(2)(d) and (e) of the Civil Appeal No.701/2017 etc. -: 6 :- PEMRA Ordinance. He relied on the case reported as Pakistan Broadcasters Association and others Vs. Pakistan Electronic Media Regulatory Authority and others (PLD 2016 SC 692) to argue that the licenses issued to the broadcasters contain a clause to the effect that they will abide by the Rules and Regulations of PEMRA and, therefore, they are estopped from challenging the same. Finally he stated that the respondent itself argued in its Writ Petition No.25317/2016 that the cable operators discriminated against the respondent. There are 3500 cable operators in Pakistan and if they cannot be trusted not to discriminate then how is it possible to allow the respondent who already holds 5 broadcasters’ licenses to become even more powerful by grant of one of three DTH distribution licenses and trust it not to abuse its power? 6. Learned counsel for the respondent(s) defended the order of the learned High Court. He argued that broadcasters are not barred under the Ordinance from applying for distribution licenses, rather this was so done through delegated legislation, and that under the Ordinance itself the respondent(s) is entitled to hold distribution and broadcasting licenses. In this regard he referred to Sections 25, 23(2) and 2(l) of the PEMRA Ordinance. He also referred to Section 39(d) and (e) of the Ordinance to argue that though PEMRA has the power to make rules, no rules have been framed that affect vertical integration, in that the circumstances that constitute “undue concentration” have not been defined. Learned counsel contended that the said rule-making power is beyond the object, intent and preamble of the Ordinance. In this regard he relied upon the preamble of the Ordinance and the judgment reported as 2013 parent statute ultra vires. According to him, the Rules 2009 can be struck down on the touchstone of Section 23 of the PEMRA Civil Appeal No.701/2017 etc. -: 7 :- Ordinance. Finally, he stated that the language of “undue concentration” used in Section 23 of the PEMRA Ordinance implies that there is a certain amount of concentration that is permitted before it becomes “undue”. 7. Heard. The primary questions before us are whether PEMRA has the authority and power to exclude the broadcasters from bidding for the DTH licenses and whether such authority has been conferred upon PEMRA under the PEMRA Ordinance 2002? If yes, what is the extent of that authority/power? 8. The relevant provisions of law are reproduced below for ease of reference:- PEMRA Ordinance, 2002 23. Exclusion of monopolies.– (1) No person shall be entitled to the benefit of any monopoly or exclusivity in the matter of broadcasting or the establishment and operation of broadcast media or distribution service or in the supply to or purchase from, a national broadcaster of air time, programmes or advertising material and all existing agreements and contracts to the extent of conferring a monopoly or containing an exclusivity clause are, to the extent of exclusivity, hereby declared to be inoperative and of no legal effect. (2) In granting a licence, the Authority shall ensure that open and fair competition is facilitated in the operation of more than one media enterprise in any given unit of area or subject and that undue concentration of media ownership is not created in any city, town or area and the country as a whole: Provided that if a licensee owns, controls or operates more than one media enterprise, he shall not indulge in any practice which may impede fair competition and provision of level playing field. Civil Appeal No.701/2017 etc. -: 8 :- 39. Power to make rules.– (1) The Authority may, with the approval of the Government, by notification in the Official Gazette, make rules to carry out the purposes of this Ordinance. (2) …………………………………………………………….. (a) …………………………………………………………….. (b) …………………………………………………………….. (c) …………………………………………………………….. (d) …………………………………………………………….. (e) to define the circumstances constituting undue concentration of media ownership and abuse of powers and anti-competitive practices by media companies. PEMRA Rules, 2009 13. Media ownership concentration and exclusion of monopolies.- (1) To ensure that fair competition is facilitated, media diversity and plurality are promoted in the society and undue concentration of media ownership is not created. Maximum number of licences that may be issued to a person or any of its directors or partners where such person is a company or firm, who is directly or indirectly, controlling, owning or operating more than one media enterprise, shall not exceed a total of four satellite TV, four FM Radio licences and two landing rights permissions. (2) …………………………………………………………….. (3) A licensee who owns, controls or operates directly or indirectly any other distribution service license shall not be granted a landing rights permission or broadcast media licence. (4) A licensee who owns, controls or operates directly or indirectly broadcast media license or landing rights Civil Appeal No.701/2017 etc. -: 9 :- permission shall not be granted a distribution service licence. DTH Regulations, 2016 2.11. The applicants must not already be a licensee who owns, controls or operates directly or indirectly any broadcast media licence or landing rights permission, in compliance with Rule 13 of the PEMRA Rules 2009. Section 23(2) of the PEMRA Ordinance 2002 enjoins upon PEMRA a duty to prevent monopolies in the field of broadcasting and distribution. According to the preamble to the PEMRA Ordinance it is the duty of the regulator to enlarge the choice available to the people of Pakistan. The prevention of monopolies is therefore necessary as meaningful choice is only possible in the presence of genuine competition. Vertical and horizontal integration in the field would both tend to restrict choice. This was considered by the Competition Commission of Pakistan (CCP) in The Matter Of Show Cause Notices Issued To Jamshoro Joint Venture Ltd (JJVL) & LPG Association Of Pakistan (LPGAP) (No. 3/LPG/Dir(Inv)/M&TA/CCP/2009) which examined the issue of collusive pricing. CCP held that vertical integration would lead to an abuse of dominant position and facilitate collusive activity. It was observed as under:- 179. Competition jurisprudence acknowledges that a single producer or supplier can accumulate market power by taking over distribution networks downstream in the market. This can either be done by entering into vertical agreements, or by vertical integration. An examination of JJVL‟s downstream operations reveals that it is engaged in both types of relationships downstream. It has vertically integrated distributors, Lub Gas and Mehran Gas; and it has also entered into vertical agreements with some 30 or Civil Appeal No.701/2017 etc. -: 10 :- so LPG companies downstream. Hence the market structure and JJVL‟s dominance could possibly facilitate vertical collusion. Bansal2 explains that:- [A] broadcaster basically faces competition at three different levels namely, (i) at the content level to produce or procure TV content from third parties; (ii) access to distribution network e.g. DTH; and (iii) viewership i.e. number of TV channels and duration of content viewed by end consumers. For distribution companies as well, there exists serious competition to provide popular TV channels at reasonable subscription rates. They have to provide low carriage fee to the broadcasters and promise a robust distribution system and infrastructure that can perform seamlessly. Distributors also need to compete with companies operating on the same technology platform and also across different technology platforms. According to him in highly competitive markets broadcasting and distribution companies may vertically integrate which may have certain detrimental effects such as non-provision of TV channels, i.e., denial of access by the vertically integrated broadcaster to the competing distributors by refusing to provide its TV channel content. As a result the competing distributors lose market share and consumers face lack of distributor choices. Therefore, competition in the market is effectively reduced. Secondly, the vertically integrated distributor-broadcaster may raise entry barriers for other competing broadcasters by not carrying certain TV channels which would reduce their viewership, occasioning 2 Aakshita Bansal, “Vertical Integration in TV Broadcasting And Distribution Sector In India: A Competition Audit” (July 2013), available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwir04ij2MzcAhU ryIUKHamGCqcQFjAAegQIAhAC&url=http%3A%2F%2Fwww.scoop.it%2Fdoc%2Fdownload%2F3gnG 53cXJJ_Kx2mnTcqcHkx&usg=AOvVaw2LlBLqaogw-6p__8eT-70-. Civil Appeal No.701/2017 etc. -: 11 :- losses. Thirdly, a vertically integrated distributor may abuse its increased market power by arbitrarily disconnecting its channels from the local cable operators. Fourthly, the vertically integrated distributor- broadcaster may charge rival broadcasters discriminatory placement and carriage fees. Finally, the vertically integrated distributor-broadcaster may abuse its market power by restricting the choice of channels for the consumers by tying in unwanted channels with popular offerings. 9. The EC Guidelines3 on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings look into both the non-coordinated and coordinated effects of vertical integration. When assessing the non- coordinated effects, the guidelines prescribe a three-step process for the assessment of vertical mergers. First, whether the merged entity would have, post-merger, the ability to substantially foreclose access to inputs? Second, whether it would have the incentive to do so? This step evaluates whether a foreclosure strategy would be profitable considering only the static responses of rivals and consumers. Third, whether a foreclosure strategy would have a significant detrimental effect on competition downstream? Factors such as buyer power, likelihood of entry and the impact of efficiencies are examined to determine the long run impact of the merger on competition. Merely proving the existence of harm to competitors is not sufficient to deter a merger. Instead, it needs to be shown that there will be harm to competition. This can take the form of increased prices, reduced quality or reduced choices that are available to consumers. Mergers may change the nature of competition in such a way that firms who previously were not coordinating their behaviour, may be 3 Guidelines On The Assessment Of Non-Horizontal Mergers Under The Council Regulation On The Control Of Concentrations Between Undertakings (2008/C 265/07), available at https://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52008XC1018%2803%29. Civil Appeal No.701/2017 etc. -: 12 :- more likely to coordinate and raise prices or otherwise harm effective competition. Therefore we are convinced that whilst vertical integration is not per se barred it is a cause for concern when it leads to loss of genuine competition. 10. The learned High Court in the impugned order relied on the proviso to Section 23 of the PEMRA Ordinance to create a right in favour of every media enterprise to participate in the bidding for DTH licenses. This interpretation of the proviso is not correct. We are fortified in our view by the ratio of the following judgments. In the judgment reported as Ibrar Hussain and others Vs. Government of NWFP through Secretary, Board of Revenue and others (2001 SCMR 914), Irshad Hassan Khan, C.J., held that:- “5. It is well-settled principle of interpretation of statutes that it is to be read as a whole and not in bits and pieces. Generally three functions are ascribed to a proviso:-- (1) To exempt something from the enacting clause; (2) to qualify or restrain its generality; (3) and to exclude some possible misinterpretation of it as extending to cases not intended by the Legislature.” In Special Reference No. l of 1957 by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan [PLD 1957 SC (Pak.) 219] this Court in its advisory jurisdiction dilated upon the functions of a proviso, as succinctly stated by Crawford at pages 128-129 of the 1940 Edition of “Statutory Construction” in the following terms:- “…A proviso, on the other hand, is a clause added to an enactment for the purpose of acting as a restraint upon, or as a qualification of the generality of the language which it Civil Appeal No.701/2017 etc. -: 13 :- follows. Sometimes, however, as a precautionary measure, it is used to explain the general words of the Act and to exclude some ground of misinterpretation which would extend it to cases not intended to be brought within its operation or purview.” [Emphasis supplied] In the case reported as Sh. Liaquat Hussain and others Vs. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504) this Court observed that a proviso or an exception to the main enacting part is to be construed strictly. In Mst. Nawab Bibi and 3 others Vs. Ch. Allah Ditta and others (1998 SCMR 2381) it was held as under:- “It is settled law that proper function of a proviso is to accept and deal with a case which would otherwise fall within the general language of the main section, and its effect is confined to the rule or section to which a proviso has been added. The proper way to regard the proviso is as a limitation upon the effect of principal section or rule. A proviso, which is in fact and in substance a proviso, can only operate to deal with a case which, but for it, would have fallen within the ambit of the section to which the proviso is a proviso. To put it in another way the section deals with a particular field while proviso excepts or takes or carries out from the field a particular portion and therefore, it is perfectly true that before a proviso can have any application the section itself must apply.” In the case cited as Commissioner of Income Tax Vs. Nasir Ali and another (1999 SCMR 563), Saeeduzzaman Siddiqui J. opined that:- “4. It is a well-settled principle of interpretation that a proviso deals with the subject, which is covered by the enacting part of the provision. The proviso only carves out Civil Appeal No.701/2017 etc. -: 14 :- an exception which, but for the proviso, would fall within the language and meaning of the enacting part. 5. A proviso, therefore, has to be interpreted strictly, and where the language of main enacting part is clear and unambiguous, the proviso cannot by implication exclude from its purview what clearly falls within the express terms of the main enacting part. We would, therefore, first determine the scope and meaning of the main enacting part of section 3(4)(a) of the Ordinance in the light of the above stated legal position………… 6. ……The enacting part of the section is not to be construed in the light of the proviso but it is the proviso which is to be interpreted in light of the main enacting part of the statute.” [Emphasis supplied] In the judgment reported as Messrs Shahi Bottlers Limited, Lahore Vs. The C.I.T., Central Zone, Lahore (1999 PTD Lah 3518) the learned High Court quoted the following extract from Craies, The Construction of Statute Law:- “The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing it to that effect.” The Court then goes on to discuss the meaning of a proviso given in various judgments and observed as under:- Civil Appeal No.701/2017 etc. -: 15 :- “11. From the foregoing examination, the following principles for the interpretation of proviso emerge; that proviso excepts and deals with a case which otherwise would have fallen within the language of main enactment; that for the purpose of its construction the whole of the Act is to be taken into consideration and a strict construction is to be accorded to proviso which should keep it within the ambit of substantive provisions.” In the judgment reported as Messrs East and West Steamship Company Vs. Pakistan and others [PLD 1958 Supreme Court (Pak.) 41] it was held:- “…a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it. …the words of a proviso are to be construed strictly and confined to the special case which its words enact; it would be wrong to construe those words as being co-extensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview.” [Emphasis supplied] 11. In light of the settled law as reflected in the aforenoted judgments, the interpretation of the proviso to Section 23 of the PEMRA Ordinance by the learned High Court in the impugned judgment cannot be sustained. This Court has often adopted the purposive approach while interpreting statues. In the judgment reported as Dr. Raja Aamer Zaman Vs. Omar Ayub Khan and others (2015 SCMR 1303) it was held that:- Civil Appeal No.701/2017 etc. -: 16 :- “…The Courts in Pakistan have always preferred a purposive rather than a literal interpretation of Statutory Instruments.” In the case cited as Federation of Pakistan through Ministry of Finance and others Vs. M/s Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710) it was held:- “Even if the Schedule of the Act is given a subordinate position as was done in Premier Mills Ltd. v Commissioner of Income-tax (1985) 152 ITR 457, the legislative intent and the object of this specific legislation remains beyond doubt. Such intent and purpose must be given effect to and not thwarted on any vague and nebulous theoretical concept.” It is clear that Section 23 of the PEMRA Ordinance confers upon PEMRA a duty to ensure “that undue concentration of media ownership is not created in any city, town or area and the country as a whole.” “Undue concentration” is not defined in the PEMRA Ordinance. In fact, Section 39(e) of the PEMRA Ordinance allows PEMRA to frame rules with respect to defining “the circumstances constituting undue concentration of media ownership and abuse of powers and anti-competitive practices by media companies.” As the regulator, PEMRA is best placed to assess the “media market” in terms of the factors outlined in paragraphs 8 and 9 hereinabove and other relevant considerations. It is evident that having considered the relevant factors, PEMRA was of the view that vertical integration, which would come about as a result of the broadcasters being allowed to also hold distribution licences, would be detrimental to the public interest in that it would stifle choice which PEMRA is mandated to encourage. Therefore PEMRA framed and amended the PEMRA Rules 2009 to exclude such vertical integration by Civil Appeal No.701/2017 etc. -: 17 :- means of Rule 13(4) whereby a broadcaster was barred from also holding a distribution licence. There is no violation of the respondent’s fundamental rights by so doing; Article 18 of the Constitution allows for the regulation of businesses. This regulation may be in the form of licenses which carry certain conditions to protect the public interest. In this particular matter the public interest is best served by ensuring that the “media market” is one where genuine competition prevails. We cannot make a fetish of the respondent’s purported fundamental right to compete for and acquire a distribution license in addition to its broadcasting license(s) at the expense of the broader public interest of genuine healthy competition and the resultant choice. In the circumstances, these appeals are allowed and the impugned judgment is set aside. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Islamabad, the 8th of May, 2018 Not Approved For Reporting Waqas Naseer

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. (On appeal against the judgment dt. 14.03.2017 of the High Court of Balochistan, Quetta passed in CPs. No. 99/2017, 961/2016, 936 of 2016, Sudhir Ahmed Dawood Khan Imran Akbar and others Imtiaz Buzdar Faisal Khan Raja RahatJaved Appellant(s) VERSUS The Speaker, Balochistan Provincial Assembly and others Govt. of Balochistan thr. its Chief Secretary, Quetta and another. The Secretary, Industries and Commerce, Govt. of Balochistan and others Federation of Pakistanthr. its Secretary, M/o Interior, Islamabad and others. Respondent(s) For the Appellant(s) : Raja Saifur Rehman, ASC Mr. Ahmed Nawaz Ch., AOR (absent) (in CA 704/17) Mir Aurangzeb, AOR/AC (in CA 705/17) Mr. Shoaib Shaheen, ASC Mr. Ahmed Nawaz Ch., AOR (absent) (in CA 706 & 778/17) Mr. Abdul Raheem Bhatti, ASC Syed Rifaqat Hussain Shah, AOR (in CA 708/17) Faisal Khan, in person (in CA 711/17) CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 2 For the Respondent(s) : Mr. AmanullahKanrani, AG Balochistan Mr. Ayaz Khan Swati, Addl. AG Balochistan Mr. SajjidIllyas Bhatti, DAG (CA 778/17) Date of Hearing : 26.05.2017 (Judgment Reserved) J U D G M E N T EJAZ AFZAL KHAN, J.-These appeals with the leave of the Court have arisen out of the judgement dated 14.03.2017 of the Division Bench of the Balochistan High Court whereby it dismissed the Constitution Petitions of the appellants as being not maintainable. 2. Appellant in C.A. 704 of 2017 was working as a Senior Research Officer in BS-16 in Capital Development Authority (CDA), Islamabad. He, vide order dated 20.05.2014, was appointed on deputation as Liaison Officer in the Balochistan Provincial Assembly Secretariat for a period of three years on usual terms and conditions. He was then absorbed against the said post in BPS-17 vide notification dated 05.05.2015. He then in view of the judgment rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others (2013 SCMR 1752)and Ali Azhar Khan Baloch. Vs. Province of Sindh (2015 SCMR 456) vide notification dated 24.01.2017 was directed to report to his parent department. He filed a Constitution Petition in the Balochistan High Court against the notification which was dismissed as mentioned above. 3. Appellant in C.A. 705 of 2017, through notification dated 08.12.2016 was repatriated to S&GAD department. He filled a Writ Petition before the Balochistan High Court which was dismissed as mentioned above. CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 3 4. Appellant no.1 in C.A. 706 of 2017 was appointed as Assistant Engineer in BS-17 through the Public Service Commission in the Public Health Engineering Department vide notification dated 20.03.2007. Soon, thereafter, he was absorbed in Communication and Works Department vide letter dated 13.03.2008 which was approved by the Chief Minister Balochistan. Whereas, appellant no.2 was appointed as Assistant Civil Engineer in BS-17 in Water and Power Development Authority (WAPDA) on contract basis. He after clearing the written test and interview was regularized against the said post vide notification dated 17.05.2006. He then with the intervention of the Chief Minister was absorbed in Communication and Works Department vide notification dated 24.03.2007. The Government of Balochistan pursuant to the letter dated 17.10.2016 directed the appellants to report back to their parent department and on 18.10.2016 issued the order repatriating them to their parent department. The appellants questioned their repatriation through a Constitutional Petition in the Balochistan High Court which was dismissed as mentioned above. 5. Appellant in C.A. 708 of 2017 was working as Additional General Manager BS-18. He vide notification dated 09.10.2013 was appointed as Project Engineer Cadet College Killa Saifullah and Kohlu. He then was selected and posted as Project Director Cadet College Balochistan. He vide notification dated 24.10.2016 was repatriated in his parent department. He filed a Constitution Petition in the Balochistan High Court which, as mentioned above, was dismissed as being not maintainable. 6. Appellant in C.A. 711 of 2017 was appointed as Architect BS-17 in Gwadar Development Authority vide notification CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 4 dated 28.08.2008. The appellant was then confirmed against the said post vide notification dated 17.09.2008. He was then appointed as an Assistant Engineer in BPS-17 on deputation in Lasbella Industrial Estate vide notification dated 18.01.2011. Finally, he was absorbed in Lasbella Industrial Estate vide notification dated 29.12.2014. On 17.10.2016 he was repatriated to Gwadar Development Authority. He filed a Constitution Petition in the Balochistan High Court against the notification repatriating him to his parent department which was dismissed as mentioned above. 7. The appellant in C.A. 778 of 2017 was working as an Inspector BS-16 in Intelligence Bureau (IB). He possesses expertise and knowledge in the field of Information Technology and Geofencing. He was appointed as Inspector BS-16 in Islamabad Capital Territory (ICT) Police on deputation for a period of three years vide notification dated 03.07.2008. His tenure has been extended from time to time till the time he was repatriated to his parent department vide notification dated 08.02.2016. He filed an appeal before the Federal Service Tribunal which was dismissed on the ground that he being a Civil Servant of non-cadre post could not be absorbed in the ICT Police as Inspector. 8. The common argument addressed by the learned ASCs for the appellants is that when the appointment of the appellants on deputation and then through absorption was not objected to by any nor had it affected the rights of any, notification repatriating the appellants to their parent departments, being without any legal basis cannot be maintained. 9. Learned Additional Advocate General appearing on behalf of the respondents contended that where appointment by CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 5 absorption is not provided by any of the statutes regulating appointment by initial recruitment, promotion or transfer, this Court rightly directed the repatriation of all such employees to their parent department. 10. We have gone through the record and the relevant rules carefully and have considered the submissions of the learned ASCs for the appellants and the Learned Additional Advocate General Balochistan. 11. The case of the appellant in C.A. No. 704 of 2017 is that he being a Senior Research Officer in BS-16 was absorbed in the Balochistan Provincial Assembly Secretariat as a Liaison Officer. How far his appointment on deputation and then by absorption is justified is a question which could well be answered by looking into the Schedule B of The Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 2009 relating to the appointment of Liaison Officers as reproduced below: S. No. Nomenclature & Basic Pay Scale of the Post Minimum qualification for initial recruitment Method of Recruitment 26. Liaison Officer B-17 --- By Promotion from Assistant Liaison Officer B-16 with 5 years service as such. The schedule reproduced above shows that the post of Liaison Officer cannot be filled except by promotion of an Assistant Liaison Officer BS-16 with 5 years of service. Appointment by deputation or by absorption being against law cannot be maintained. The notification repatriating the appellant to his parent department is, thus, unexceptionable. 12. Appellant in C.A. No. 705 of 2017, was appointed as a driver in BS-04 in the Planning and Development Department (P&D), CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 6 Government of Balochistan vide notification dated 01.12.1992. He was then transferred to Service and General Administration Department (S&GAD). He, however, was retransferred to P&D. On occurrence of a vacancy of Transport Supervisor in BS-11, the appellant being senior was promoted as a Transport Supervisor vide notification dated 05.08.2008. His seniority was questioned before the Service Tribunal through an appeal before the Balochistan Service Tribunal Quetta which was allowed vide judgment dated 05.06.2013. The appellant challenged the judgment of the Service Tribunal mentioned above through a petition for leave to appeal before this Court which was allowed in the terms as under:- “2. We have heard the learned counsel for the parties and find that the Tribunal has not adverted to the true facts of the case and one of the confusions in the matter is whether the respondent was ever transferred from P&D department to S&GAD department, if so, and not re-transferred to P&D department; obviously then in the seniority list prepared for the drivers of P&D department, he would not be shown. Whereas the claim of the respondent’s counsel today is that he had never ever been transferred to the S&GAD department, but from the comments available on the record (at page 28 of the paperbook) filed by the Secretary, S&GAD before the Tribunal, find that the respondent is the employee of the S&GAD department. Be that as it may, as these factors are relevant for the purposes of the final determination of seniority of the parties and as there seems to be some discord between P&D and S&GAD department, therefore, we direct the Chief Secretary, Balochistan to look into the matter himself; ascertain as to where exactly the petitioner and the respondent are employed, and to re-determine their seniority after giving them an opportunity of hearing. Both the petitioner and the respondent are directed to appear before the Chief Secretary on 25.09.2013 and the matter of their seniority shall be finalized within one month thereafter. Accordingly, by setting aside the impugned judgment, this petition is converted into an appeal and allowed.” The case on remand from the Supreme Court was decided against the appellant vide order dated 11.11.2013 of the Additional Chief CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 7 Secretary Planning and Development Department. Appellant preferred an appeal before the Service Tribunal which was allowed vide its judgment dated 19.05.2014 in the terms as under:- “16. In view of the above facts, it is quite clear that the Respondent No.2 (Mr. Aashiq Hussain) is an employee of S&GAD department, therefore, his claim for promotion as Transport Supervisor (B-11) is not justified, therefore the appeal is accepted and the impugned orders issued by the Respondent No.4 (Additional Chief Secretary) P&D Department, and Respondent No.1 (Deputy Secretary (Services – II S&GAD), dated 27-11-2013 and 11-11-2013 are hereby set aside with no order as to cost. File after completion be consigned to record.” Ashiq Hussain, respondent no. 2 before the Service Tribunal, discontent with the aforesaid judgment preferred leave to appeal before this Court which was dismissed vide order dated 10.11.2014 which reads as under: “This is a service matter in which the two contestants are the petitioner Aashiq Hussain and Dawood Khan who is respondent No.4. Both are Drivers. The issue between them relates to inter se seniority. We have gone through the impugnedjudgement rendered by the Balochistan Service Tribunal dated 19.05.2014. The judgement is well reasoned and is consistent with the record which was available with the Service Tribunal. Learned counsel for the petitioner has, however, referred to a number of documents which he has placed on file, which admittedly were not on the record of the Service Tribunal. These documents, therefore cannot be considered by us. Considering this lapse on the part of the petitioner, learned counsel representing him, requested that the matter be remanded to the Service Tribunal. This request is also not tenable, considering that the matter is going on for many years and litigation between the contestants has seen a number of rounds, before the department concerned, before the Chief Secretary and before the Service Tribunal. 2. In view of the foregoing discussion, we find no justification for interfering in the impugned judgement, considering in mind the provisions of Article 212(3) of the Constitution. This petition, therefore, is dismissed and leave to appeal is declined.” CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 8 Once the appellant was held to be an employee of P&D department by the judgment of the Service Tribunal which has been upheld by this Court, he could not be disturbed unless the judgement of the Service Tribunal or this Court is set aside through a proceeding under section 12(2) of the CPC. 13. The only point requiring consideration in C.A. No. 706 is that whether the appellants could be absorbed in the Communication and Works department. Before we discuss this aspect, we would like to see what is the criteria for appointment of Assistant Engineer as laid down in the appendix substituted through notification No.SOR-II(3)12/S&GAD/1533-1643, dated 23.08.1997 in the Balochistan Communication and Works Department Civil, Mechanical, Electrical and Gas Engineers (BPS-17 and above) Service Rules, 1986 which reads as under:- “TO BE PUBLISHED IN THE NEXT SUE OF BALOCHISTAN GAZETTE GOVERNMENT OF BALOCHISTAN SERVICES AND GENERAL ADMIN. DEPARTMENT (Regulation Section-II) Dated Quetta the 23rd August, 1997 N O T I F I C A T I O N No.SOR-II(3)12/S&GAD/1533-1643. In exercise of the powers conferred by Section 25 of the Balochistan Civil Servants Act, 1974 (IX of 1974), the Government of Balochistan is pleased to substitute the Appendix to the Balochistan Communication and Works Department Civil, Mechanical, Electrical and Gas Engineers (BPS-17 and above) Service Rules, 1986 namely : APPENDIX (See Rule 3(3), 5 and 7 (1). S. NO NOMENCLATURE OF THE POST MINMIMUM QUALFICATION PRESCRIBED FOR INITIAL RECRUITMENT METHOD OF RECRUITMENT 1. Chief Engineer (B-20) --- By selection from amongst members of the service holding the post of Superintending Engineer on the basis of seniority-cum-fitness having at least 17 years service in BS-17 and above. 2. Superintending Engineer (B-19) ---- By selection on the basis of seniority-cum- fitness having at least 12 years service B- 17 and above from amongst members of the service holding the post of Executive Engineer having a degree in Engineering 3. Executive Engineer (B-18) ---- a) 80% by promotion on the basis of seniority-cum-fitness having at least 5 years service in B-17 from amongst the graduate members of the service in the relevant field holding the post of Assistant Engineer. b) 20% by promotion on the basis of CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 9 seniority-cum-fitness having at least five years service in B-17 from amongst the members of the service in the relevant field holding the post of Assistant Engineer holding Diploma of Associate Engineer of B-Tech (Hons.) 4. Assistant Engineer B- 17. --- Degree in Civil, Electrical or Mechanical Engineering from a recognize University or equivalent qualification. a) 70% by initial recruitment. b) 5% by promotion from amongst holder of the post of Sub-Engineer holding the degree prior to induction to the Government service provided that in case of non availability of Sub-Engineer holding pre-service degree in Engineering in the relevant field vacancies reserved for them shall be added to the share of the category of Sub-Engineers having acquired degree during service. c) 5% by promotion from amongst the holder of the post of Sub-Engineers acquiring the degree during service, provided that in case of non availability of Sub-Engineers acquiring degree during service the vacancies reserved for them shall be added to the share of the category of Sub-Engineers having pre- service degree. Provided further that in case of non- availability of Sub-Engineers having pre- service degree or having acquired post service degree such vacancies of both of the categories be added to the share reserved for Diploma holder Sub- Engineers. d) 17% by promotion on seniority-cum- fitness basis having ten years service as such and having passed such examination or training if any as prescribed by the Government from time to time, from amongst the members of the service holding of the post of Sub- Engineers having three years Diploma in Associate Engineers. e) 3% by promotion on seniority-cum- fitness basis having ten years service as such and having passed examination or training if any, as prescribed by the Government from time to time, from amongst the members of the service holding the post of Sub-Engineers having degree of B-Tech. (Hons). By Order of Governor Balochistan Chief Secretary, Government of Balochistan” A look at the relevant table of the rules would reveal that the post of Assistant Engineer BPS-17 is to be filled by initial recruitment or promotion. There is nothing on the record to show what was that unusual which justified the deviation from the legal course. Appointment by absorption, which more often than not, is resorted to through the intervention of the people in power by ignoring the CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 10 merit, cannot be approved and upheld. Having thus considered we do not feel inclined to interfere with the notification repatriating the appellants to their parent department. 14. The case of the appellant in C.A. No. 708, too, appears to be alike inasmuch as he, in the first instance, has been appointed against a vacant post of a Project Engineer Cadet College Killa Saifullah and Kohlu and then Project Director without inviting applications and testing merit of the deserving candidates. Doling out public offices to the blue-eyed without adhering to the transparency in the process of selection cannot be upheld. The notification repatriating the appellants to their parent department thus appears to be unassailable. 15. Absorption of the appellant in C.A. No. 711 of 2017, who was working as an Architect in BS-17 in the Gwadar Development Authority also appears to be against the relevant rules because no such post of an Architect in BS-17 exists in the Lasbela Industrial Estates Development Authority (Employee’s Service) Rules 2012, therefore, it cannot be upheld. Even otherwise we would be defeating the spirit of the judgments rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others(supra) and Ali Azhar Khan Baloch. Vs. Province of Sindh (supra) by approving the appointments of the persons who parachuted in any autonomous body, authority or department from above without undergoing the process laid down by law and the relevant rules for appointment. 16. Appellant in C.A. No. 778 of 2017 questioned the notification repatriating him to his parent department on the ground that he possessed the requisite qualification for being absorbed CIVIL APPEALS NO. 704 TO 706, 708, 711 AND 778 OF 2017. 11 against the post of Inspector in BPS-16 in ICT Police and that he has not disturbed the seniority of others. But it has not been disputed before us that he being a civil servant of non-cadre post could not be absorbed against a cadre post. It, therefore, cannot be permitted under any law notwithstanding expertise of the appellant in Information Technology and Geofencing is extraordinary. Paragraph 126 of the judgment rendered in the case of Contempt proceedings against the Chief Secretary Sindh and others(supra) would cover this case in all fours. We, thus, do not feel persuaded to create an exception against all the accepted norms of law and justice. 17. For the reasons discussed above, these appeals having been treated as review petitions and heard as such are dismissed while Civil Appeal No. 705 for the reasons recorded in para 77 is allowed. JUDGE JUDGE JUDGE Announced in open Court at Islamabad on ________________ JUDGE ‘Not Approved For Reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. (On appeal against the judgment dt. 14.03.2017 passed by the High Court of Balochistan Quetta in C. P. No. 1155 of 2016). Muhammad Sharif Tareen, Chief of Section (Acting)(BPS-19), Planning and Development Department, Government of Balochistan, Civil Secretariat Appellant VERSUS Govt. of Balochistan thr. its Chief Secretary, and another. Respondent For the Appellant(s) : Muhammad Shoaib Shaheen, ASC Ahmed Nawaz Chaudhry, AOR (absent) For the Respondent(s) : Mr. AmanullahKanrani, AG Balochistan Mr. Ayaz Khan Swati, Addl. AG Balochistan Date of Hearing : 26.05.2017 (Judgment Reserved). J U D G M E N T EJAZ AFZAL KHAN, J.- This appeal with the leave of the court has arisen out of the judgment dated 8.3.2017 of a Division Bench of the High Court of Balochistan whereby it dismissed the writ petition filed by the appellant by holding that his remedy in view of the dicta rendered in the cases i.e. Contempt proceedings against the Chief Secretary Sindh and others (2013 SCMR 1752), Ali Azhar Khan Baloch. Vs. Province of Sindh (2015 SCMR 456) and Muzaffar Hussain Vs. Federation of Pakistan (Crl.O.P. No.31 of 2016)decided on 10.05.2016 lay in review before the Supreme Court of Pakistan. CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 2 2. The learned Sr. ASC appearing on behalf of the appellant contended that where the appellant was appointed as Agricultural Officer (BPS-17) by initial recruitment on the recommendations of Balochistan Public Service Commission in the Balochistan Agricultural and Cooperative Department vide Notification No. PSC(Rectt:)2006/93, dated 29.07.2006 and then absorbed against the post of Research Officer (BPS-17) in the Planning and Development Department vide notification dated 10.09.2007 without affecting the seniority of the Research Officers already working in the department, his case is not covered by the dicta rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others,Ali Azhar Khan Baloch. Vs. Province of Sindh andMuzaffar Hussain Vs. Federation of Pakistan (supra), therefore, the notification repatriating him to his parent department cannot hold the field. He next contended that the case of the appellant shall be fully protected by the dicta rendered in the case of Ch. Muhammad Akram. Vs. Registrar, Islamabad High Court and others (PLD 2016 SC 961) and Suo Motu Case No. 13 of 2016, decided on 31.03.2017 when he possessed the qualification required for appointment of Research Officer in the Planning and Development Department. 3. The learned Addl. A. G. appearing on behalf of the Government of Balochistan contended that where codal formalities in absorbing the appellant were not complied with, the case of the appellant is fully covered by the dicta rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others,Ali Azhar Khan Baloch. Vs. Province of Sindh andMuzaffar CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 3 Hussain Vs. Federation of Pakistan (supra), therefore, the High Court rightly declined to exercise jurisdiction. 4. We have gone through the record carefully and considered the submissions of the learned Sr. ASC for the appellant as well as the learned Addl. A. G. for the Govt. of Balochistan. 5. Appellant who holds Master degrees in Economics and Business Administration was appointed as Agricultural Officer (BPS-17) by initial recruitment on the recommendations of the Balochistan Public Service Commission in the Balochistan Agricultural and Cooperative Department vide Notification No. PSC(Rectt:)2006/93, dated 29.07.2006. A year later, he was appointed by transfer as Research Officer (BPS-17) in Planning & Development Department and was placed at the bottom of the seniority list of the Research Officers already working in the department vide notification No. P&D-SOA.1(41)/2007, dated 10.09.2007. He has been working as such till the date the notification repatriating him to the parent department pursuant to the judgments rendered in the cases of Contempt proceedings against the Chief Secretary Sindh and others,Ali Azhar Khan Baloch. Vs. Province of Sindh andMuzaffar Hussain Vs. Federation of Pakistan (supra) was issued. His stance before us is that his case is not hit by the above said judgments when he possesses the requisite qualification. The questions thus emerging for the consideration of this Court are:- i) What is the nature of his appointment? ii) Whether the appellant possessed the requisite qualification? iii) Whether he was appointed by transfer as Research Officer in the Planning & Development Department without complying with the codal formalities, in case the answer is in the affirmative what would be the effect of that? CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 4 iv) Whether the appellant is hit by the judgment rendered in the cases i.e. Contempt proceedings against the Chief Secretary Sindh and others (2013 SCMR 1752), Ali Azhar Khan Baloch. Vs. Province of Sindh (2015 SCMR 456) and Muzaffar Hussain Vs. Federation of Pakistan (Crl.O.P. No. 31 of 2016)decided on 10.05.2016, if not where does his remedy lie? v) What is a cadre post and what is a non-cadre post? vi) What is the method of appointment for a cadre post, what is the mode of appointment against a non-cadre post? 6. Before we answer the questions it is worthwhile to see what is the ratio of the judgment rendered in the case of Contempt proceedings against the Chief Secretary Sindh and others (supra) and what has been summed up therein is well illustrated in paragraph 126 thereof which read as under :- “126. From the above discussion, the aforesaid legislative instruments on the issue of absorption are liable to be struck down being violative of Constitutional provisions referred to hereinabove, therefore, we hold as under:-- (i) That the Sindh Government can only appoint a person by absorption by resorting to Rule 9A of the Rules of 1974. (ii) Sindh Government cannot order absorption of an employee who is a non-civil servant, however, an employee of an autonomous body can be absorbed in Sindh Government subject to conditions laid down under Rule 9-A of the Rules of 1974. (iii) Sindh Government cannot absorb a civil servant of non- cadre post to any cadre which is meant for the officers who are recruited through competitive process. (iv) Any backdated seniority cannot be granted to any absorbee and his inter-se seniority, on absorption in the cadre shall be maintained at the bottom as provided under the Rules regulating the seniority. (v) 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. (vi) The legislature cannot enlarge the definition of "civil servant" by appointing a non-civil servant through transfer on the basis of absorption conferring him status of civil servant pursuant to the impugned legislation which is violative of the scheme of civil service law as provided under Articles 240 and 242 of the Constitution.” CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 5 7. Similarly what is the ratio of the judgment rendered in the case of Ali Azhar Khan Baloch. Vs. Province of Sindh (supra) has been summed up in its paragraphs No. 117, 118, 119, 120, 121 and 139 which are reproduced as under:- “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 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 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 Rules 4, 6(A) and 7. Therefore, any appointment by transfer under Rule 9-A of the Rules in violation of the CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 6 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 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 of 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 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 C.R.P. 409 of 2013 Mr. AqailAwan for the petitioner 1 - 3 Criminal R.P.81 of 2013 and C.R.P. 412 of 2013 121. It was contended by MessrsAqilAwan, ShoaibShaheen, CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 7 Muhammad MunirPeracha 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 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. 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 interest. The department can abolish a post for justiciable reason. Therefore, in future if CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 8 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.” 8. The quintessence of the paragraphs reproduced above is that the appointments made on deputation, by absorption or by transfer under the garb of exigencies of service in an outrageous disregard of merit impaired efficiency and paralyzed the good governance and that perpetuation of this phenomenon, even for a day more would further deteriorate the state of efficiency and good governance. Appointees thus appointed pursuant to the judgments mentioned above were brought to square one. The case of the appellant is that he has not affected the seniority of any of the Research Officers already working in the Department when he was placed at the bottom of the seniority list. But the question arises whether he could be absorbed as Research Officer in the Planning and Development Department under the relevant rules. The answer to the question would call for a look at the relevant rule which reads as under:- “Appointment by promotion or transfer. 7. (1) Promotion and transfers to the posts in basic pay scales 2 to 16 and equivalent shall be made on the recommendations of the appropriate Departmental Promotion Committee; and to the post in basic pay scales 17 and above or equivalent, shall be made on the recommendations of the Provincial Selection Board. (2) Persons possessing “such” qualifications and fulfilling the conditions as laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Provincial Selection Board, as the case may be. (3) Appointments by transfer shall be made from amongst the persons holding appointment on regular basis in the same basic pay scale or equivalent or identical with the post to be filled in.” The rules reproduced above provide for appointment by promotions and transfers. In the latter case the appointment cannot become permanent nor could it lead to absorption because such CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 9 appointment being a stop-gap-arrangement holds the field till the time a suitable person is appointed against the post. Absorption of a person thus appointed not only damages the fabric of civil service but also barricades the channels of promotion for those who sweat therefor but have no political links and connections to achieve the desired goal. The question whether the appellant was eligible to be appointed as a Research Officer can well be answered after looking at the appendix amended vide notification dated 17.10.2005 which reads as under :- “Government of Balochistan Services and General Administration Department (Regulation Section-II) Dated Quetta, the 17thOctober, 2005. Notification No. SOR-II(18)1/S&GAD/1438-1537. In exercise of the powers confirmed by Section 25 of the Balochistan Civil Servants Act, 1974 (IX of 1974), the Government of Balochistan is pleased to amend the Balochistan Planning and Development Department (BPS-16) and above) Service Rules, 1984 namely:- For the existing Appendix the following shall be substituted:- S.# Nomenclatur e of the post Minimum qualification prescribed for initial recruitment Method of recruitment 1. 2. 3. 4. 1. Chief Economist (BPS-20) By promotion from the post of Joint Chief Economist. 2. Joint Chief Economist (BPS-20) By promotion from amongst the members of the service holding the post of Chief of Section with at-least 17 years service in B-17 and above on the basis of seniority-cum-fitness. 3. Chief of Section (BPS- 18). (i) 80% by promotion from amongst the members of the service holding the post of Assistant Chief with at-least 12 years service in B-17 and above (ii) 20% by transfer from other services of equivalent grade. 4. Assistant Chief (BPS- 18) By promotion from amongst the members of the service holding the post of Research Officer with at-least five years service. 5. Research Officer (BPS- 17). 2nd Class Master’s Degree in Economics. Agricultural Economics, Statistics, Business Administration, Public Administration / Management and Commerce from a recognized University. By initial recruitment. By Order of Governor Balochistan Chief Secretary Government of Balochistan” CIVIL APPEAL NO. 709 OF 2017 IN CIVIL PETITION NO. 1332 of 2017. 10 A look at the appendix reproduced above would reveal that vacancy of Research Officer is to be filled by initial recruitment. There is no scope for filling this vacancy by promotion, transfer, absorption or by any other method which is not provided by the relevant law and rules. Such appointment being hit by the judgment rendered in the cases of Ali Azhar Khan Baloch. Vs. Province of Sindh and Muzaffar Hussain Vs. Federation of Pakistan (supra) cannot be maintained. The appellant has thus rightly been repatriated to his parent department. We by treating this appeal as a petition for review do not find any error much less patent on the face of the record to change or modify the view taken earlier. JUDGE JUDGE JUDGE Announced in open Court at Islamabad on 25.09.2017. JUDGE ‘Not Approved for Reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO. 710 OF 2014 (Against the judgment dated 18.3.2014 of the Election Tribunal, Faisalabad passed in Election Petition No.75/2013) Lt. Col. (Retired) Ghazanfar Abbas Shah Appellant(s) Versus Mehr Khalid Mehmood Sargana and others Respondent(s) … For the Appellant(s) : Sheikh Ahsan-ud-Din, ASC For Respondent No.1 : Khawaja Saeed-uz-Zafar, ASC Date of hearing: : 27.05.2015 JUDGMENT MIAN SAQIB NISAR, J.- This appeal under Section 67(3) of the Representation of the People Act, 1976 (ROPA) has been filed against the judgment dated 18.3.2014 passed by the learned Election Tribunal, Faisalabad, whereby the election petition initiated by the appellant against respondent No.1 (the respondent; the relevant candidate) has been dismissed on the score that such petition is not duly verified per the provisions of Section 55(3) of the ROPA, and therefore is liable to be dismissed in terms of Section 63 of the said Act. In the context of the above, it may be pertinent to mention here, that the verification part of the election petition reads as follows:- “VERIFICATION I, Col.(R) Ghazanfar Abbas Shah S/o Muhammad Nawaz Shah, Muslim, Adult, resident of Haveli Bahadur Shah, Tehsil Shorkot, District Jhang, do hereby state on CIVIL APPEAL NO. 710 OF 2014 - 2 - oath that whatever is stated above is true to the best of my knowledge, information and belief or is based upon legal advice received by me in the above suit which I verily believe to be true. D E P O N E N T The deponent above named is known to me and is identified by me to the Commissioner for taking affidavit. A D V O C A T E” (note: underneath this there are two stamps of the Oath Commissioner, Cantt. Lahore, namely, Muhammad Siddique. Both bears his initials and one of those postulates “ATTESTED”; however there is no date mentioned or written by the Oath Commissioner or the fact that before the attestation any oath was administered to the appellant, the election petitioner.) With the election petition, an affidavit of the appellant was also enclosed, which is as reproduced below:- “AFFIDAVIT IN SUPPORT OF MAIN PETITION I, Lt. Col.(R) Ghazanfar Abbas Shah s/o Muhammad Nawaz Shah R/o Haveli Bahadur Shah, Tehsil Shorkot, District Jhang, do hereby solemnly state on oath as under:- 1. I say that I am the Petitioner in the above case and as such fully conversant with the facts of the petition. 2. I say that the contents of the main petition may kindly be treated as part and parcel of this affidavit as the same have not been repeated here for the sake of brevity. 3. That whatever stated hereinabove is true and correct to the best of my knowledge and belief. DEPONENT” (note: same is the position of the affidavit, as that of verification.) CIVIL APPEAL NO. 710 OF 2014 - 3 - The learned Election Tribunal while considering the above two documents summarily dismissed the election petition due to the following reason:- “Now comes the question of verification of the Election Petition itself. The returned candidate has objection to maintainability of the petition for want of due verification. The original Election petition at page 7 contains a verification clause signed by the deponent but the Oath Commissioner has merely put an attestation stamp, without certifying administration of Oath and giving the date of administration of Oath. A separate affidavit is also annexed to the petition at page-8 but, unfortunately, the same procedure was adopted, and no date of administration of Oath was provided by the Oath Commissioner and no date of administration of Oath was described. Such a procedure is surely violative of the provisions of Section 55(3) of the Representation of the People Act, 1976 and it would necessarily attract the penal provision of dismissal of the Election Petition under Section 63(a) of the Representation of the People Act 1976.” 2. Learned counsel for the appellant has argued, that prior to the impugned judgment, the objection about due verification of the election petition was raised by the respondent/returned candidate before the learned Election Tribunal, but the Tribunal held that the petition was duly and validly verified. The respondent challenged inter alia the order through writ petition(s) (note:- some other orders of this tribunal were also assailed) before the learned High Court. The matter was remanded on some other points and not on the question of verification. The order pertaining to verification was never set aside, rather was kept intact. Therefore, in light of this legal position, not only will the principle of res judicata be applicable, rather the Tribunal in law shall have no authority to review its earlier decision. CIVIL APPEAL NO. 710 OF 2014 - 4 - It is also argued, that omission on part of the oath commissioner in mentioning, at the time of attestation of verification, that oath has been duly administered to the appellant cannot be made a reason for depriving the appellant of his very valuable legal right; he cannot be knocked out on technical grounds. This is neither the purport nor the spirit of law. It is further argued, that where an election petition is duly supported by an affidavit, notwithstanding any lapse in verification of the petition, such affidavit should be treated as due compliance with the requirement of verification of the election petition. On this score, therefore, the election petition could not be dismissed. It is lastly submitted that no writ was competent against the interim order of the Election Tribunal, therefore the order of remand by the High Court dated 31.10.2013 is without jurisdiction and obviously the impugned order is absolutely invalid. In support of his various contentions, the learned counsel for the appellant has relied upon the judgments reported as Malik Umar Aslam Versus Sumera Malik and another (PLD 2007 SC 362), Engr. Iqbal Zafar Jhagra and others Versus Khalilur Rehman and 4 others (2000 SCMR 250), Moulvi Abdul Qadir and others Versus Moulvi Abdul Wassay and others (2010 SCMR 1877), Zia-ur-Rehman Versus Syed Ahmed Hussain and others (2014 SCMR 1015), Muhammad Raza Hayat Hiraj and others Versus The Election Commission of Pakistan and others (2015 SCMR 233), Sardarzada Zafar Abbas and others Versus Syed Hassan Murtaza and others (PLD 2005 SC 600), S.M. Waseem Ashraf Versus Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others (2013 SCMR 338). CIVIL APPEAL NO. 710 OF 2014 - 5 - 3. Conversely, learned counsel for the respondent, Khawaja Saeed-uz-Zafar, has submitted that there are three shortcomings in the verification of the election petition as well as the affidavit, in that, it was not mentioned that oath had been administered by the oath commissioner at the time of attestation of both those documents which is mandatory/imperative in terms of Articles 101 and 102 of Qanun-e-Shahadat Order, 1984; no date and place has been mentioned as to when the petition was verified and attested. The verification of the election petition (mentioned in this petition) being flawed and defective cannot be made valid and rectified through an affidavit. Learned counsel for the respondent has further submitted that the noted is no affidavit in the eyes of law and for the purposes of elucidating as to what an affidavit is and should be, he has referred to the format (of affidavit) given in High Court Rules and Orders, Chapter No.12, Volume No. IV, Rule 9, Sub-Rules (iii) and (iv) and Rules No.11, 12, 15 and 16. In this context reliance has also been placed upon the judgment reported as Bashir Ahmad Versus Abdul Wahid (PLD 1995 Lahore 98) and Alam Zaib Khan Versus Muhammad Nawaz Khan and 2 others (1998 CLC 83). He has further argued that on the basis of the judgment reported as S.M. Waseem Ashraf supra, the reasons provided by the learned Tribunal are apt and cogent for the dismissal of the election petition (note:- Learned counsel for the appellant in rebuttal has relied upon page No. 80 of the paper book filed by him or the CMA filed by learned counsel for the other side as also the judgment reported as Moulvi Abdul Qadir supra). 4. Heard. The main argument propounded by the learned counsel for the appellant is that where an election petition is CIVIL APPEAL NO. 710 OF 2014 - 6 - supported by a valid affidavit, notwithstanding any deficiencies and flaws in the verification of the election petition, such affidavit should be treated as a substitute for verification of the election petition and therefore in such circumstances, due compliance with the requirement of verification of the election petition shall be established. In order to cater to this proposition, we find it expedient to reproduce the relevant portion of the Sardarzada Zafar Abbas case, upon which reliance has been placed by the learned counsel for the appellant. This Court, in the said case, held as under:- “We have considered this aspect thoroughly and have come to the conclusion that in the given circumstances, there is no material difference between a vaerification on oath and a verification through an affidavit. An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of fact. Thus, there is practically no difference whatsoever by verifying a statement on oath and verifying the same statement on affidavit. It also loses significance when such affidavit on oath is attested by the authority competent to administer oath…” It is in the light of the above law (Sardarzada Zafar Abbas Case) that the question of whether the election petition was duly verified either through verification on oath or through an affidavit needs to be established. In order to do so, we will first have to look at the legal requirements for both, a valid verification on oath and verification through an affidavit and then proceed onto assessing whether in the instant case either or both of the documents met the requirements laid out in law and were valid or otherwise. CIVIL APPEAL NO. 710 OF 2014 - 7 - 5. With regards to verification of election petitions on oath, it is clear from the provisions of Section 55(3) of the ROPA that an election petition has to be verified in accordance with the provisions of Order 6 Rule 15, CPC which provide the basics as to how pleadings have to be verified, what shall be the contents of the verification of pleadings and how they have to be attested by the oath commissioner when read with other relevant provisions of law. Be that as it may, in addition to the law cited by both the sides (from some other dicta), it is conclusively settled by this Court that verification of an election petition is mandatory and a petition which lacks proper verification shall be summarily dismissed by the tribunal, even if the respondent has not asked for or prayed for its dismissal1. In reference to the above, it shall be advantageous to reproduce the following part of the judgment reported as Zia-ur- Rehman supra wherein it has been categorically held:- “8. Every election petition and every schedule or annexure to the election petition has to be signed by the petitioner and verified in the manner laid down in Civil Procedure Code. Rule 15 of Order VI of C.P.C. lays down the procedure of verification, which reads as under:-- 15. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information. 1 Malik Umar Aslam Versus Sumera Malik and another (PLD 2007 SC 362) CIVIL APPEAL NO. 710 OF 2014 - 8 - (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. 9. The penal consequence of non-compliance with sections 54 and 55 of the Representation of the People Act is provided in section 63 of the Representation of the People Act, which reads as follows:-- 63. Dismissal of petition during trial.---The Tribunal shall dismiss an election petition, if-- (a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62." 10. Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly, otherwise it would not be in-compliance with the legislative intent. Non-compliance of this provision carries a penal consequence in terms of section 63 of the Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil Procedure Code. The effect of non-compliance of section 55 of the Representation of the People Act, 1976 came up for consideration before this Court in Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) wherein at page 290 it was candidly held that "the verification of pleadings has been provided under Order VI, Rule 15, C.P.C. which when read with section 39, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorised to administer oath and as such it could not be said that requirements of section 36 of the Act were complied with. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Iftikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer from any legal infirmity." CIVIL APPEAL NO. 710 OF 2014 - 9 - 6. Taking into account the verification of the election petition independent of the affidavit, it has been conspicuously noticed that there is no date or place mentioned in the verification i.e. at what date and what place the verification was made by the appellant. The two stamps of the oath commissioner, Lahore Cantt, affixed at the bottom of the verification also do not postulate the date on which the verification was made by the election petitioner. Besides, it is not reflected from the verification whether the appellant was present at the time of verification before the oath commissioner because he has not been identified with reference to his national identity card, rather by some Advocate, whose name and particulars are not even mentioned on the said verification. Therefore on account of the deficiencies identified above, we hardly find the verification to be valid in terms of spirit of provisions of Section 55(3) of the ROPA and in line with the law laid down by this Court in various dicta. Resultantly, we have no hesitation to hold that the verification is not in accord with the law. 7. We shall now turn to the second limb of the proposition i.e. whether the affidavit enclosed with the election petition was sufficient for establishing that the election petition has been duly verified in accordance with law or not. For this purpose, so as to determine the prerequisites of a valid affidavit, the provisions of High Court Rule and Orders, Chapter No.12, Volume No.IV, Rules No.11, 12, 14, 15 and 16 are reproduced below:- “11. Identification of deponent. Every person making an affidavit shall, if not personally known to the Court, Magistrate or other officer appointed to administer CIVIL APPEAL NO. 710 OF 2014 - 10 - the oath or affirmation, be identified to such Court, Magistrate or officer by some person known to him; and such Court, Magistrate or officer shall specify at the foot of the affidavit, the same and description of the person by whom the identification is made, as well as the time and place of the making of the affidavit. 12. Mode of attestation. The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added. 14. Attesting Officer’s duty. If any person making an affidavit appears to the Court, Magistrate or other officer administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand the contents of the affidavit, such Court, Magistrate or officer shall cause the affidavit to be read and explained to him in a language which both he and such Court, Magistrate or officer understand; either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court, Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it. 15. Attesting, signing and verification or affidavit. Every affidavit shall be signed or marked and verified at foot by the declarant and attested by the Court, Magistrate or other officer administering the oath or affirmation, the verification, by the declarant shall be in one of the forms attached thereto, and shall be signed or marked by the declarant. The attestation of the Court, Magistrate or other CIVIL APPEAL NO. 710 OF 2014 - 11 - officer administering the oath or affirmation shall also be in the form prescribed below. 16. Manner of administering oath to deponent. In administering an oath or affirmation to the declarant in the case of any affidavit under the Code of Civil Procedure, the Court, Magistrate or other officer appointed in that behalf shall be guided by the rules under the Indian Oaths Act, 1878, printed in Part A of this Chapter and shall follow the form of verification by oath or affirmation thereto appended. I-FORM OF VERIFICATION OF OATH OR AFFIRAMTION (Vide paragraph 15 above) Oath. I solemnly swear that this may declaration is true, that it conceals nothing, and that no part of it is false ………………… so help me God. Affirmation. I solemnly affirm that this my declaration is true, that it conceals nothing, and that no part of it is false. II-FORM OF CERTIFICATE (vide paragraph 12, 14 and 15 above) Certified that the above was declared on ……………… (here enter oath)/affirmation as the case may be) before me this ……………… (date) day of ……………… (month) ……………… (of 19 , at ……………… (place) in the district of (name of district) ……………… by ……………… (full name and description of declarant) who is ……………… here enter “personally known to me” or identified at (time and place of identification) by (full name and descriptor: of person marking the identification), who is personally known to me”. (Full Signature) A. B., (Officer) District Judge (or as the case may be) of ……………… II-A The exhibits marked A, B, C (as the case may be) above referred to are annexed hereto under this date and my initials. CIVIL APPEAL NO. 710 OF 2014 - 12 - Certified further that this affidavit has been read and explained to (name) ……………… the declarant who seemed perfectly to understand the same at the time of making thereof.” From the High Court Rules and Orders reproduced in the preceding para, it is clear to our mind that an affidavit has to meet the following requisites: 1. Identification of deponent (Rule 11) 2. Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11) 3. Time and place of the making of the affidavit to be specified (Rule 11) 4. Certification by Court/Magistrate/Other Officer at the foot of the affidavit that such affidavit was made before him (Rule 12) 5. Date, Signature and name of office and designation of the Court/Magistrate/Other Officer to be subscribed underneath the Certification (Rule 12) 6. Every exhibit referred to in the affidavit to be dated and initialed by the Court/Magistrate/Other Officer (Rule 12) 7. Where deponent of an affidavit does not understand the contents of an affidavit, the Court/ Magistrate/Other officer administering oath must read out the contents of an affidavit to such person so that he understands. Where such is the case, the Court/Magistrate/Other officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents (Rule 14) 8. Deponent to sign/mark and verify the affidavit and the Court, Magistrate or other officer administering the oath or affirmation to attest the affidavit (Rule 15) CIVIL APPEAL NO. 710 OF 2014 - 13 - 9. Oath to be administered by the Court/ Magistrate/Other officer in accordance with the Indian Oaths Act, 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other officer on forms appended thereto (Rule 16) The format of an affidavit is as has been mentioned in the law reproduced supra. But in the affidavit in question, it is conspicuous that the following essential elements are missing:- a) date on which and the place where the verification was made, have not been specified; b) no date has been mentioned on the stamp(s) of attestation fixed by the Oath Commissioner; c) it has also not been mentioned that the appellant was administered oath by the Oath Commissioner before the attestation was made; d) whether the appellant was duly identified before the Oath Commissioner is another important question the answer to which is also not clear from the said verification; e) it does not appear from the affidavit that appellant was identified with reference to his ID card which is the ordinary, usual and general course for identification of a person or even by an Advocate; and f) no ID Card Number is given; the identification does not seem to have been made; the particulars of the identifier are also conspicuously missing. This affidavit, therefore, can hardly be considered to be verification of the election petition in terms of the law. To reiterate the reasons, neither have the date and place of attestation been specified nor was the appellant properly identified. With regards to what a valid affidavit should contain, we also draw support from CIVIL APPEAL NO. 710 OF 2014 - 14 - the judgment of the Lahore High Court in the case reported as Bashir Ahmed Vs. Abdul Wahid (PLD 1995 Lahore 98), which in our view is good law. The relevant portion of the said judgment reads as follows:- “ The main requirements of the affidavit according to the High Court (Lahore) Rules and Orders, Volume IV, Part B, Chapter 12-B, Rules 8, 9, 14 and 15 are:- i. the name of the Court, title of the proceedings; ii. subject of the suit or petition; iii. name of the deponent, the date and place; iv. the affidavit is to be divided into paragraphs which shall be numbered consecutively and shall be confined to distinct portion of the subject; v. the deponent, other than the party to the suit, shall be described in such a manner as would serve to identify him clearly i.e. full name, father’s name, profession or trade and place of his residence; vi. the declarant in affidavit while referring the facts within his knowledge must do so directly and positively using the words ‘I affirm’ or ’I make oath and say’; vii. when making reference as to the information obtained from others, the declarant must use the expression ‘I am informed’, and should add ‘and verily believe it to be true’, or he may state the source from which he received such information. Every affidavit shall be signed or thumb-marked; and viii. it shall be verified in accordance with the verification in the form given in Rule 16 of the High Court (Lahore) Rules and Orders. The verification shall be signed and thumb-marked by the declaration. The affidavit shall be attested by the Oath Commissioner. One can divide the affidavit into following three parts in accordance with the above requirements:- 1) name of the Court, title and subject of the proceedings and name etc. of the deponent; 2) declaration of facts sought to be proved by the affidavit duly signed by the declarant; and CIVIL APPEAL NO. 710 OF 2014 - 15 - 3) verification duly signed by the deponent and attested by the Oath Commissioner.” This affidavit, even if considered to be verification of the election petition in terms of the Sardarzada Zafar Abbas supra, as mentioned earlier, can hardly be held to be proper verification. It may be pertinent to mention here, that neither does the affidavit in the instant case fulfill the requirements in the High Court Rules and Orders supra nor does it meet the essentials laid out in the judgment reported as Bashir Ahmad supra. We, therefore, are of the candid view that the affidavit in question is a flawed one. It is also relevant to note here that in an ordinary lis (suit etc.) requiring verification and support by an affidavit, if the verification or affidavit is flawed, such lapse may be considered an irregularity and be treated as a curable defect, but we are not laying down any hard and fast rule, because the matter before us is not pertaining to ordinary litigation, however in the case of an election petition the law is very stringent and imperative. Therefore if the election petition has not been verified in accordance with law, this cannot be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, cannot permit the election petitioner to cure the same. 8. The question now which remains for resolution is whether the omission on part of the Oath Commissioner in mentioning, in the attestation of verification or the affidavit, if the oath had been administered to the appellant/ deponent, shall have the effect of invalidating the election petition. As regards the above, suffice it to say that according to the provisions of Article 129, CIVIL APPEAL NO. 710 OF 2014 - 16 - illustration (e) of the Qanoon-e-Shahadat Order, 1984, there is presumption of correctness attached to an official act and it could not be controverted by the learned counsel for the respondent that the oath commissioner who is appointed by the respective High Courts under the law shall be performing the official acts for which he was appointed. However, he has stressed that the administration of oath before attestation by the Oath Commissioner should not be presumed in this case rather should reflect from the contents of attestation. We have applied our mind to this aspect of the matter and hold that in order to meet the real object and the spirit of the election laws which require verification on oath, in an ideal situation, the Oath Commissioner at the time of verification of the petition etc. and also the affidavit, must record and endorse verification/attestation that the oath has been actually, physically and duly administered to the election petitioner/deponent. But as the law has not been very clear till now, we should resort to the principle of presumption stipulated by Article 129(e) ibid in this case for avoiding the knock out of the petition for an omission and lapse on part of the Oath Commissioner. But for the future we hold that where the election petitioner or the affidavit is sought to be attested by the Oath Commissioner, the election petitioner shall insist and shall ensure that the requisite endorsement about the administration of oath is made, otherwise the election petition/affidavit shall not be considered to have been attested on oath and thus the election petition shall be liable to be, inter alia, dismissed on the above score. We consciously and deliberately neither apply this rule to CIVIL APPEAL NO. 710 OF 2014 - 17 - the instant case nor any other matter pending at any forum (election tribunal or in appeals). Resultantly, we are not inclined to accept the plea of the learned counsel for the respondents that the omission on part of the oath commissioner must be made the basis of dismissal of the petition of the appellant. This, as we have mentioned above, should be taken into account in case of future election petitions, i.e. filed after enunciation of the law herein laid down. 9. With regards to the argument raised by the learned counsel for the appellant that in an earlier order, the learned Tribunal had held that the verification of the election petition was valid and, therefore, it could not review such order, it may be held that inter alia such order dated 12.9.2013 was challenged by the respondent in various writ petitions and with the consent of the learned counsel for the parties all such orders including the one which held that the verification was valid, were set aside. The relevant portion of the judgment of the learned High Court is reproduced as below:- “In this view of the matter with the consent of the parties, the impugned orders are set-aside. The matter is remanded to the Election Tribunal to hear both sides, examine the various pleas raised by them in light of the case law cited by both sides which has been noted above and decide the matter afresh through a reasoned order.” 10. We will now respond to the argument that intra- locutory orders passed by the learned Tribunal could not be challenged in writ petition to propound which reliance had been placed upon the case reported as Muhammad Raza Hayat Hiraj and others supra. As regards the above, suffice it to say that the CIVIL APPEAL NO. 710 OF 2014 - 18 - order of the learned High Court was passed on 31.10.2013. This order was never challenged by the appellant before the Supreme Court, rather the order was a consent order and, therefore the law laid down in the judgment supra shall have no relevance to the matter in hand. 11. In view of the above, we are of the considered view that election petition of the appellant has not been verified in accordance with law and same is true with regards to the affidavit. The case of the appellant squarely falls within the mischief of the provisions of Section 55(3) of the ROPA and thus it warranted summary dismissal per the provisions of Section 63 of the said Act. The appeal being without merit is hereby dismissed and the impugned judgment of the learned Election Tribunal dated 18.3.2014 is upheld. These are the reasonings of our short order of even date which reads as under:- “For the reasons to be recorded later, this appeal has no merit and is, accordingly, dismissed.” Judge Judge Judge Islamabad, the 27th May 2015 Approved for reporting Ghulam Raza/*

THE SUPREME COURT o1 PAKISTAN (APPELLATE JURISDICTION) PRES:EST: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE TJAZ UL AHSAN MR. JUSTICE SAWED MAZAHAR ALT AKBAR NAQVI • -1 , � • ' � '1 � .- • . � .• No.712 713 of 2020 (Against the judgment dated 22.02.2018 passed by the Peshawar High Court, Peshawar in Writ Petitions No.5304-P and 5305-P of 2017). Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others. ....App elk-1.11'4.$) Versus Zahoor Ahmed Khalil. (in C.71.712 of 2020) Muhammad Arsh a d (in C5.7)3 of 2020) For the Appellant(s): �Mr. Zahid Yousaf Qureshi, Addl. A. G. KP. Mr. Shahid Iqbal, Litigation Officer, KP, PSC. Mr. M. Tufail Khattak, Addl. Secy., Establishment, KP. (in Gus. 712 (is 713 of 2020) For the Respondent(s): � In person. (in c1. 2 of 2020) Mr. ishtiaq Haider, ASC. (appeared without filing en-ter appearance on behalf of Respondent but appeared with Court permission). (in 071.713 of 2020) Date of Hearing: � 01.02.2021. JUDGMENT T.J11.Z. UL MIRAN, J.- Through this single judgment, we propose to decide Civil Appeal No.712 of 2020 and Civil Appeal No.713 of 2020 as they both arise out of the • CIVIL APPEALS NO.712 and 713 OP 2020 2 same impugned judgment of the Peshawar High Court, Peshawar dated 22.02.2018, 2. �These appeals by leave of the Court are directed against a judgment of the Peshawar High Court, Peshawar dated 22.02.2018 through which constitutional petitions filed by the Respondents were allowed. Briefly stated the facts necessary for disposal of this lis are that on 01.12.2017 Khyber Pakhtunkhwa. Public Service Commission ("KP Service Commission") advertised 69 posts of Officers in Provincial Management Service (BS-17). Such posts were required to be filled through competitive examination. However, 10% quota was reserved for in-service candidates. The Respondents who were serving as Caretakers (BS-11) in the Chief Minister's Secretariat, Government of Khyber Pakhtunkhwa were not allowed to participate in the PMS examination on the ground that they were not entitled to avail the benefit of 10% quota reserved for in-service candidates. Aggrieved of such refusal on the part of KP Service Commission to allow them to participate in the competitive examination for appointment against 10% quota, the Respondents approached the High Court in its constitutional jurisdiction. Through the impugned judgment dated 22.02.2018, such constitutional petitions of the Respondents were allowed. � 4. �Leave to appeal was granted by this Court vide order dated 17.08.2020 in the following terms: CIVIL APPF.41.:3 NC.71 owl 713 CY, '2020 "The Government of Khyber Pakhtunkhwa Public Service Commission (the petitioner) advertised 69 posts of Provincial Management Service (P11/1S) in BPS-.17, for competitive examination. Ten per cent quota was reserved for in service candidates. Khyber .Pakhtunkhwa Provincial Management Service Rules, 2007 (the Rules of 2007) has described the post of 'in service candidates' and such has been enumerated as Superintendents, Private Secretaries, Personal Assistants, Assistants, Senior Scale 'Stenographers, Stenographers, Date Entry Operators, Computer Operators, Senior and Junior Clerks. The private respondents in C.Ps. No.349-P and 350-P of 2018 were employed as Caretakers (BPS-.1.1) and their posts were not enumerated in the Rules of 2007. They filed writ petitions in the Peshawar High Court which vide impugned judgment came to be allowed. The petitioner in C.P. No.260-P of 2019, also filed writ petition in the Peshawar High Court which was disposed of vide impugned judgment. 2. The learned AAG contends that there being no mention of post of Caretaker in the Rules of 2007, the respondents in C.Ps. No.349-P and 350-P of 2018 and petitioner in C.P. No.260-P of 2019 could not have been allowed to undertake the competitive. examination and further relies upon the judgment of this Court in the case reported as Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain. and others (2016 SCMR 1021). 3. The submissions made by the learned AAG require consideration. Leave to appeal is, therefore, granted in all the petitions to consider, inter alia, the same. The appeal stage paper- books be prepared from the available record with liberty to the parties to file additional documents, if any, within a period of one month. As the matter relates to service, the Office is directed to fix these appeals expeditiously, preferably after three months." J. �The learned Additional Advocate General, Khyber Pakhtunkhwa has pointed out that the Khyber Pakhtunkhwa Provincial Management Service Rules, 2007 ("Rules, 2007") describe the posts of in-service candidate as Superintendents, Private, Secretaries, Personal Assistants, Assistants, Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operators, Senior and Junior Clerks, etc. He 4 � 114 CM. APPEALS 14C1712 and 713 OP 2020 maintains that the Respondents did not fall inany of the said categories nor were they covered by the Rules, 2007. He maintains that the Respondents fall in the definition of Household staff and in terms of Rule 10(2) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion &Transfer) Rules, 1989 they have specifically been excluded from the application of Rules, 2007. He further maintains that the Respondents being attached with the Chief Minister's Secretariat are not borne on the cadre of the Provincial Secretariat As such, the High Court erred in law in extending the benefit of 10% quota in question to the Respondents. To substantiate his contentions, the learned Law Officer has placed reliance on a judgment of this Court reported as Government of Khuber Pakhtunkhwa v. Haat Hussain ;201.6 3CilV1R 1021) in which the questions involved in these appeals has elaborately been dealt with. 6. �The learned ASC for the Respondents on the other hand submits that exclusion of the Respondents constitutes discrimination. He maintains that on their representation the. Chief Minister had made a recommendation that they may be allowed to participate in the competitive examination of PMS and avail the benefit of 10% quota. However, such direction was not implemented. The learned counsel further submits that the Respondents have no channel of promotion and it would cause injustice to them in case they are not allowed to avail the benefit of the quota as prescribed in Rules, 2007. APPRALS NO.712 and 713 OF 2020 � 5 7. �We have heard the learned Additional Advocate General, Khyber Pakhtunkhwa, learned A.SC for the Respondent in Civil Appeal No.713 of 2020, the Respondent in person in Civil Appeal No.712 of 2020 and have gone through the record with their assistance. For ease of reference, it would be appropriate to reproduce hereinbelow Schedule-I of the Rules, 2007 which prescribes the quota in question: "Ten percent by selection on merit, on the basis of competitive examination, to be conducted by the Commission in accordance with the provisions contained in Schedule VII, from amongst persons holding substantive posts of Superintendents, Private Secretaries, Personal Assistants, Assistants, Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operators, Senior and Junior Clerks who possesses post graduate qualification from a recognized University and have at least five years service under Government." A plain reading of the relevant Rule makes it abundantly clear that it is specific to a certain class of employees of the Government. It is not couched in language which may inclusive in its meaning and content or may permit an expensive and wider interpretation. The Rules, 2007 provide 10% quota for persons holding specific posts and such posts have been spelt out as "Superintendents, Private Secretaries, Personal Assistants, Assistants, Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operators, Senior and Junior Clerks". A further condition is that such persons must possess Postgraduate qualification from a recognized University and should have at • , � 7 • f.• � '••• � • � - � • • � '• � • � • � ' • � '• • • CIVIL APPEALS 110.712 and 713 OF 2020 � IS least five years service under the Government. Although, the learned High Court has noticed the said provision, it has misdirected itself in interpreting the Rules, 2007 in a manner which in essence amounts to reading language in the Rules which is not there and a class of employees have specifically, intentionally and deliberately been excluded for policy reasons. 8. It is abundantly clear to us that the Rules, 2007 specifically created a class of Government employees to whom the benefit of 10% quota was provided to the exclusion of others and if the interpretations given by the High Court were to he accepted it would amount to not only reading in something which is not there but also extending and expanding the scope of the Rule which is the domain of the Executive and cannot lightly be interfered with without recording strong, cogent and compelling reasons. Such reasons have neither been recorded nor in our humble opinion were available in the instant matters. 9. We further notice that the High Court has misread the Rules, 2007 and taken them out of context in observing that the Rules do not prescribe as to what should be the nature of experience required to participate in the competitive examination for appointment against the 10% quota posts. We are unfortunately unable to subscribe to that view. It is settled law that provisions of the Statutes and Rules have to be read in their context and unless otherwise provided or ;FO CMG AMALS NO.712 and 713 OP 2020 7 there are compelling and lawful reasons to do otherwise the Rule of ejusdern, generis has to be followed. Even otherwise, the Rule of ejusdem generis does not support in any manner the interpretation adopted by the High. Court, A. plain reading of the relevant Rule read in the context of its ordinary meaning and scope would show that five years experience under the Government was relatable to the titles/job descriptions mentioned in the earlier part of the Rule. Therefore, holding that because there was no specific and elaborate description of the sort of experience that was required, a totally unrelated experience, (in the present case working as a Caretaker / Household staff) would also count as experience of Government service has appeared to us to be without sound legal basis and for that matter any basis at all. We also note that the Respondents had. not altogether been excluded from participating in the competitive examination insofar as if they met the criteria for participation that they are not precluded from doing so by competing in open merit. Further and for the same reason we have not found any discriminatory treatment because the Respondents are not similarly placed vis-à-vis the persons/posts identified and specified in the rules and such persons/posts constitute a separate class, there being qualitative difference between the two fulfilling the requirement of intelligible differentia. 10. �The Respondent in the connected matter (Civil Appeal No, 7-14 of 2020) has frankly conceded before us that he had participated in open merit a number of times but CIVIL APPEALS 50 7 12 and 713 05 2020 could not succeed on account of being placed lower in the merit list as against the available seats. We are afraid that does not constitute justification to expand the scope of the quota to include all members of ministerial staff whether or not they fell in the categories provided in the Rules, 2007. 11, �We have also gone through the judgment of this Court in the case of Government of Khyber Pakhtunkhwa (ibid) cited by the learned Additional Advocate General, Khyber Pakhtunkhwa and find that the same directly deals with the question of appointment/promotion against the posts of RMS. It has clearly and categorically been held by this Court in the said judgment that determination of eligibility criteria, etc is essentially an administrative matter falling within the 'exclusive domain and policy decision making of the Government (as in this case) and interference with such matters by the Courts is not warranted. In this context, it has been held as follows: "It is a settled proposition of law that the Government is entitled to make rules in the interest of expediency of service and to remove anomalies in Service Rules. It is the Service Rules Committee which has to determine the eligibility criteria of promotion and it is essentially an administrative matter falling within the exclusive domain and policy decision making of the Government and the interference with such matters by the Courts is not warranted and that no vested right of a Government employee is involved in the matter of promotion or the rules determining their eligibility or fitness, and the High Court has no jurisdiction by means of writ to strike it down." Further, in the case of Central Board of Revenue, Government of Pakistan v. A.saci Ahmed Khan ,f PLD 1. GO SC 8i) it was held as follows: Fall'EEME211EiliaTZIET2g2E51101iiitz'':11:1',6.1:L 121fLitilf:2:72.9.1.:Eftiiffli7..::iI'!-: CIVIL APPEALS NO.712 awl 713 O1,2020 "In the circumstances it cannot be said that any rights of the petitioners were infringed, which they could enforce by a writ petition. The Government has every right to make rules to raise the efficiency of the services, and if no vested right is denied to a party, the High Court had no jurisdiction to interfere by means of a writ." 12. �Admittedly, the Respondents do not constitute ministerial staff and are also not borne on the cadre/strength of the Provincial Secretariat. These were two additional reasons why the Respondents could not claim the benefit of Rules, 2007 and the criteria laid down for PMS (BS-17) quota posts reserved for a specific class of Government employees. In the circumstance, we find that the learned High Court has failed to appreciate and correctly interpret the relevant Rules on the subject and passed the impugned judgment in a slipshod manner, which is not sustainable and is liable to be set aside. 1.3. �For reasons recorded above, we allow these appeals and set aside the impugned judgment of the Peshawar High Court, Peshawar dated 22.02.2018. 3)4 � (1:5— Isla:N.1'4AB A D 0i.932021 . 94,.5t Approved For .1.I..elborting' RIIIRENIIMigligilliNIREBIlliiiillilillEilEIMIllifillMITilningREIPHIENEABEIIPTIIIIIIIITIETEM � LifERERNERNIIIIIETIPINMEELEDE1111111111ENNIIIPPET5112:!=...L

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY CIVIL APPEAL NOs. 718 & 1366 OF 2007 (On appeal against the judgments dated 24.6.2005 & 19.4.2006 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No. 1762/2005 & 919/2006) Ex.-Gunner Muhammad Mushtaq (In CA 718/2007) Ex-Lance Naik Mukarram Hussain (In CA 1366/2007) … Appellants VERSUS Secretary Ministry of Defence through Chief of Army Staff and others (In both cases) … Respondents For the Appellants: Col (R) Muhammad Akram, ASC Ch. Akhtar Ali, AOR (In CA 718/2007) Rao Naeem Hashim Khan, ASC (In CA 1366/2007) For the State: Mr. Sohail Mehmood, DAG Date of Hearing: 01.04.2015 JUDGMENT IJAZ AHMED CHAUDHRY, J.- Through these appeals by leave of the Court, the appellants / ex Army Officials have challenged the judgments of the Lahore High Court, Rawalpindi Bench whereby the Writ Petitions filed by them against their death sentences awarded by the Field General Court Marshal were dismissed and the orders of the said Field General Court Marshal were affirmed. 2. Facts briefly stated are that appellant Muhammad Mushtaq in Civil Appeal No. 718/2007 was Gunner of Pakistan Army and was posted at Siachin Glacier in Chullung Sub Sector. He was charged under Section 59 of the Pakistan Army Act, 1952, to have committed murder of another Gunner Israr Ahmed on CIVIL APPEAL NOs. 718 & 1366 OF 2007 2 28.2.2004 at 5.30 AM. On 5.7.2004 he was convicted and sentenced to death by the Field General Court Martial. The sentence of death was confirmed on 26.10.2004 by the Chief of Army Staff. The appellant then filed Writ Petition No. 1762/2005 before the learned Lahore High Court, Rawalpindi Bench which stood dismissed vide order dated 24.6.2005. The appellant challenged the said order of the learned High Court by filing Civil Petition No. 2149/2005 before this Court in which leave was granted on 6.2.2007 and out of which this appeal has arisen. 3. Appellant Mukarram Hussain in Civil Appeal No. 1366/2007 was working as Lance Naik in Pakistan Army and was posted at Chumb Sector, Azad Kashmir. He was charged for the double murder of Hawaldar Noor Muhammad and Lance Hawaldar Bashir Ahmed vide FIR No. 39/2001 dated 29.5.2001 under Section 302 PPC at Police Station Barnala, District Bhambar Azad Kashmir. As the place of occurrence fell within the Cantonment Area, the investigation was undertaken by Military Police. He was convicted and sentenced to death by the Field General Court Martial and appeal against the said conviction also failed. The appellant then filed Writ Petition No. 919/2006 before the learned Lahore High Court, Rawalpindi Bench which stood dismissed on 19.4.2006. Thereafter the appellant challenged the said order of learned High Court before this Court by filing Civil Petition No. 336/2006 out of which Civil Appeal No. 1366/2007 has arisen. 4. Learned counsel for the appellant in Civil Appeal No. 718/2007 has inter alia contended that the appellant was not given the opportunity to consult a legal practitioner as guaranteed by the Constitution in terms of Article 10(1) of the Constitution; that the appellant has been deprived of his rights; that the appellant was CIVIL APPEAL NOs. 718 & 1366 OF 2007 3 forced to take a different stance as it was the case of the appellant that the deceased had tried to commit an unnatural act with him and due to sudden provocation he committed his murder. Learned counsel lastly contended that the learned High Court and this Court are empowered to set aside the conviction and sentences awarded to the appellant by the Field General Court Martial. In support of the contention learned counsel relied on Ghulam Abbas Niazi vs. Federation of Pakistan (PLD 2009 SC 866), & Shabbir Shah Vs. Federation of Pakistan (PLD 1994 SC 738 at 765). 5. Learned counsel for the appellant in Civil Appeal No. 1366/2007 submitted that it was an un-witnessed occurrence; that the learned High Court dismissed the writ petition filed by the appellant without considering the powers vested in it; that FIR was registered with a delay of 31 hours and that the case was registered at the ordinary Police Station and the same was to be tried by the ordinary Courts. 6. Learned Deputy Attorney General, on the other hand, has submitted that writ petitions were not maintainable in view Article 199(3) of the Constitution; that Field General Court Martial was competent under the Army Act to try the appellants and the proceedings were not mala fide; that under Section 133 of the Pakistan Army Act the matter has come to an end after rejection of appeals of the appellants by the Court of Appeal. In support of the contention, learned counsel relied on Rana Muhammad Naveed Vs. Federation of Pakistan (2013 SCMR 596). 7. We have heard learned counsel for the appellants as also learned Deputy Attorney General at some length and have gone through the record. CIVIL APPEAL NOs. 718 & 1366 OF 2007 4 8. Admittedly both the appellants were serving in Pakistan Army at the time of commission of offence. A complete procedure has been provided in the Pakistan Army Act, 1952, to try such accused. Both the appellants exhausted the remedies available to them under the Pakistan Army Act up to the level of Chief of Army Staff and it was after that, that they invoked the Constitutional jurisdiction of the learned High Court by filing writ petitions. Article 199 (3) of the Constitution of Islamic Republic of Pakistan clearly prohibits the High Courts from making an order in relation to a person who is member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of such forces, or in respect of any action taken in relation to such person as a member of the Armed Forces, or a person subject to such law. Under this clause of Article 199 the jurisdiction of the High Court is barred with regard to the conviction recorded and sentences awarded by the Field General Court Martial. As the appellants were admittedly members of Armed Forces, therefore, writ could not have been issued by the High Court against the General Field Court Martial or against the Appellate Authority which confirmed the conviction and sentences in view of Article 199(5) of the Constitution as the General Field Court Martial is excluded from the definition of ‘person’ in Article 199(1)(i) of the Constitution. The learned High Court in the peculiar facts and circumstances of this case has rightly declined to press into service its Constitutional jurisdiction in respect of the appellants, who have been found guilty by the competent forum. This Court in Shahida Zahir Abbas Vs. President of Pakistan (1996 PLD 632) has observed that “rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of CIVIL APPEAL NOs. 718 & 1366 OF 2007 5 an accused person. Procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case.” In Anwar Aziz Vs. Federation of Pakistan (2001 PLD 549) this Court has held that where matter is related to terms and conditions of service or in respect of any action taken in relation to members of Armed Forces or a person subject to Pakistan Army Act, 1952, then jurisdiction of a High Court in such a case is barred by Article 199(3) of the Constitution and that Article 8(3) of the Constitution envisages that provisions of Article 199(3) of the Constitution shall not apply to any law relating to members of Armed Forces, or of the Police or of such other forces as are charged with maintenance of public order, with a view to keep maintenance of discipline among them and also for the purpose of ensuring proper discharge of their duties. In Muhammad Musthaq Vs. Federation of Pakistan (1994 SCMR 2286) this Court has candidly held that grant of relief in relation to a person who is member of the Armed Forces of Pakistan even though based on fundamental rights which are included in Clause 1 of Article 199, is barred under Article 199(3) of the Constitution as the High Court has no jurisdiction in the matter. The learned Lahore High Court in Captain (R) Waseem Pasha Tajammal Vs. Federal Government, Ministry of Defence through Chief of Army Staff has also held that Article 199(3) of the Constitution has imposed restriction on the High Court that no order could be made under Article 199(1) on an application made by or in relation to a person who is member of the Armed Forces of Pakistan. Same is the case in Ex.PA 33756 Lieut Muhammad Asjid Iqbal Vs. Federal Government Secretary General Ministry of Defence, Rawalpindi (2005 PCrLJ 632). CIVIL APPEAL NOs. 718 & 1366 OF 2007 6 9. However, it is also a settled law that the superior Courts can interfere in the orders of the authorities relating to the Armed Forces if the same are found to be either result of mala fide or the same are corum non judice. This Court in Ghulam Abbas Vs. Federation of Pakistan through Secretary Ministry of Defence (2014 SCMR 849) 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.” The same view has been taken in Rana Muhammad Naveed Vs. Federation of Pakistan through Secretary M/o Defence (2013 SCMR 596) that the High Court is not prohibited from making an order under Article 199(3) of the Constitution when acts, actions or proceedings suffered from defect of jurisdiction and are thus coram non judice. In Federal Government through M/o Defence, Rawalpindi Vs. Munir Ahmed Gill (2014 SCMR 1530) this Court has reiterated that “when any action of the Army Authorities regarding a serving officer of the Armed Forces or any other person subject to the Pakistan Army Act, 1952, is established to be either mala fide, quorum non judice or without jurisdiction then the same could be assailed through a Constitution petition by the aggrieved person, and the bar of jurisdiction under Article 199(3) of the Constitution would have no applicability.” Same was the view of this Court in Federation of Pakistan through Secretary Defence Vs. Abdul Basit (2012 SCMR 1229). However, we have not been able to find out any mala fide on the part of the prosecution or authority. 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 CIVIL APPEAL NOs. 718 & 1366 OF 2007 7 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. The case law relied upon by the learned counsel for the appellants is also to this effect that if an order of the authority relating to Armed Forces is found to be result of mala fide or the same is coram non judice, the Courts can interfere. However, as discussed above, the same is misconceived. 10. So far as the argument of learned counsel for the appellants that the appellant in Civil Appeal No. 718/2007 that the appellant was not given an opportunity to consult legal practitioner of his own choice in terms of Article 10(1) of the Constitution is concerned, it is on record that the appellant was defended by a Defending Officer and in the writ petition before the High Court in para 5 it has been specifically mentioned that the appellant could not afford engaging a counsel due to his sheer poverty. In such a situation the apprehension of the learned counsel is misconceived. In Civil Appeal No. 1366/2007 it is on record that the appellant was represented through a counsel. 11. For what has been discussed above, we do not find any merit in these appeals, which are dismissed. JUDGE JUDGE Islamabad, the 1st of April, 2015 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL APPEAL NO. 723 OF 2013 (Against the judgment dated 29.05.2009 of the Lahore High Court, Lahore passed in WP No. 1363/2003) The Taxation Officer/Deputy Commissioner of Income Tax, Lahore Appellant(s) VERSUS M/s Rupafil Ltd & others Respondent(s) For the Appellant(s) : Mr. Ibrar Ahmed, ASC For Respondents No. 1-3 : Mian Ashiq Hussain, ASC Date of Hearing : 31.10.2017 JUDGMENT MAQBOOL BAQAR, J. Through the impugned judgment, a writ petition preferred by the respondents challenging the legality and propriety of notices under sub-section (2) of Section 221 of the Income Tax Ordinance, 2001 (“ITO 2001”) issued, by the appellant, requiring the respondents to show cause as to why their assessment orders for the assessment years 2000-2001 and 2001-2002 be not amended/rectified by levying surcharge on the tax levied under section 80-D of the Income Tax Ordinance, 1979 (“ITO 1979”), has been allowed by a learned Single Judge of the Lahore High Court. 2. The learned Single Judge through the impugned judgment, whilst overruling the objections to the maintainability of the petition, held that Section 221 of ITO 2001 does not apply to the CA 723/2013 2 orders passed under the provisions of repealed Ordinance i.e. “ITO 1979”. Through Order dated 18.06.2013, this Court was pleased to grant leave to appeal in this case, inter alia, to consider the following points: 1. Whether the provisions of Section 221 of the Income Tax Ordinance 2001 can be applied to the assessment orders passed under the provisions of the repealed ordinance; 2. Whether surcharge can be levied on the “minimum tax” payable under Section 80-D and other paramateria sections of the repealed ordinance; and 3. Whether writ petition is maintainable against the notice issued under section 221 of the Ordinance 2001 without availing departmental remedies. 3. In order to appreciate the issue with regard to the legality and propriety of invoking Section 221 of the ITO 2001, seeking to rectify a mistake in the assessment order made under section 62 of ITO 1979, we first need to examine the nature, scope, extent, purview and implication of the said provisions which, as stood at the relevant time, read as follows: 221. Rectification of mistakes.---(1) The Commissioner, the Commissioner (Appeals) or the Appellate Tribunal may, by an order in writing, amend any order passed by them to rectify any mistake apparent from the record on their own motion or any mistake brought to their notice by a taxpayer or, in the case of the Commissioner (Appeals) or the Appellate Tribunal, the Commissioner. (2) ……………………………………... (3) ……………………………………… (4) No order under sub-section (1) may be made after five years from the date of the order sought to be rectified. 4. It is indeed true that the above section does not expressly provide for its retrospective application but it can well be seen from the plain reading thereof that it prescribes procedure for CA 723/2013 3 rectification of a mistake in a assessment order and the circumstances under which such can be done. The provisions of Section 221 of ITO 2001 thus neither create, nor take away any right or privilege in/or from anyone, it rather provides for rectification of mistake(s) apparent from the record. It hardly needs to be stated that a benefit or advantage, which accrues to one at the cost of other due to a blatant mistake, does not create any right in the beneficiary to retain the same, unless the act giving rise to such benefit, or advantage, by efflux of time prescribed for its rectification, becomes a past and closed transaction. Furthermore the rectification/amendment under the aforesaid provision may not necessarily be to the disadvantage of the assessee/tax payer, but could also be beneficial for him, thus the remedy under Section 221 can also be invoked at the instance of the assessee/tax payer. It is also relevant to note that subsection (4) of Section 221 of ITO 1979, prescribes a period of limitation, and it is now well settled that the law prescribing period of limitation is to be considered as procedural. The said provision is thus clearly procedural rather than substantive, though where right to commence a proceedings has already become time barred then a subsequent enlargement of time through an amendment can be of no avail, as with the lapse of time prescribed, the transaction becomes a past and closed transaction, vesting a party with a right thus accrued which cannot be taken away by a subsequent amendment. 5. Indeed the assessment order sought to be rectified through the impugned notices were finalized under Section 62 of ITO 1979, between May 2001 and June 2002, whereas ITO 1979 CA 723/2013 4 prescribed a period of Four (4) years for rectification of the assessment made under Section 62 of the said Ordinance. ITO 1979 was repealed on 30.06.2002, where after, in July 2002, ITO 2002 came into force. It can therefore be seen, that the period of limitation prescribed through Section 156 of ITO 1979 has not expired at the time of promulgation of ITO 2001, such period during its currency thus stood extended through subsection (4) of Section 221 of ITO 2001, which provided a period of 5 (Five) years for rectification of mistakes, from the date of the assessment order, sought to be rectified. It is now well settled that procedural amendments apply to all cases which have not become past and closed transactions therefore the provisions of section 221 of ITO 1979 have been rightly invoked in the present case. 6. Coming to the next question, as to “whether surcharge can be levied on minimum tax payable under Section 80-D, and other paramateria sections of the repealed Ordinance”, it may be noted that under ITO 1979 surcharge was levied and charged in terms of the provision of Section 10 which reads as under: 10. Charge of super tax and surcharge.--- (1) In addition to the income tax charges for any year, there shall be charged, levied and paid for that year in respect of the total income, or any part thereof, of the income year or years, as the case may be, of every person, an additional duty of income tax (in this Ordinance referred to as ‘super tax’) and surcharge at the rate or rates specified in the First Schedule; (emphasis supplied) Provided…………………………………………………… ……………………………….……………………………… ………………………………………………………………. (2) Subject to the provisions of this Ordinance, the total income of any person shall, for the purposes of super tax and surcharge, be the total income as assessed for the purposes of income tax, and where an assessment has become final and conclusive for the purposes of income tax for any CA 723/2013 5 year, the assessment shall also be final and conclusive for the purposes of super tax or surcharge, as the case may be, for the same year. (3)…………………………………………………………… ………………………………………………………………. A perusal of the above provisions makes it clear that, firstly the levy of surcharge was in addition to the income tax charged for the relevant year, secondly, such levy was in respect of the “total income” of the relevant income year as assessed for the purpose of income tax and was to be levied at the rate(s) specified in the First Schedule. Whereas in terms of Section 9 of the aforesaid Ordinance (ITO 1979), income tax was to be levied and charged in respect of the total income of the relevant year and at the rate(s) specified in the First Schedule. For the sake of convenience, section 9 of ITO is reproduced hereunder: 9. Charge of Income Tax.--- (1) Subject to provisions of this Ordinance, there shall be charged, levied and paid for each assessment year commencing on or after the first day of July, 1979, income tax in respect of the total income of the income year or years, as the case may be, of every person at the rate or rates of specified in the First Schedule. (emphasis supplied) 7. It may also be noted here that “total income”, as defined by subsection (44) of Section 2 of ITO 1979, “means the total amount of income referred to in section 11, computed in the manner laid down in this Ordinance, (ITO 1979), and includes any income which, under any provision of this Ordinance (ITO 1979), is to be included in the total income of an assessee.” It may further be noted that Section 11 of ITO 1979 specifies “total income” as the one which includes all income from whatever source derived. 8. Whereas section 80-D of the said Ordinance, which begins with a non-obstante clause, introduced a distinct concept CA 723/2013 6 of “minimum tax” which in its nature and scope is clearly distinguishable from the nature and scope of “income tax” chargeable under Section 9 of ITO 1979. Section 80-D provided for charging tax, where the assessee was otherwise, i.e. in terms of Section 9 of ITO 1979, either not liable to pay any tax, or the tax payable by him was less than one-half percent of its turnover and at the rate(s) specified therein and with reference to the turnover of the assessee/tax payers. Section 80-D thus reads as under:- 80D. Minimum tax on income of certain persons.--- (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, where no tax is payable or paid by a company or …………………………………………………………… …………………………………………………………… …………………… or the tax payable or paid is less than one-half percent of the amount representing its turnover from all sources, the aggregate of the declared turnover shall be deemed to be the income of the said company or a registered firm, …………………………………………………………… …………………………………………………………… ………………….. and tax thereon shall be charged in the manner specified in subsection (2). Explanation…………………………………………… ………………………………………………………….. (2)………………………………………….................. ……………………………………………................... shall pay as income tax- (a) an amount, where no tax is payable or paid, equal to one-half percent of the said turnover; and (b) an amount, where the tax payable or paid is less than one-half percent of the said turnover, equal to the difference between the tax payable or paid and the amount calculated in accordance with clause (a). Explanation…………………………………………… ………………………………....................................... 9. What emerges from the foregoing is that “income tax” in terms of Section 9 of ITO 1979 is charged and levied in respect of CA 723/2013 7 the total income of the assessee and at the rate specified in the First Schedule, whereas Section 80-D of the said Ordinance deals with a situation where either no tax is payable by the assessee, or the tax payable is less than One-half percent of the amount representing its turnover. It thus provides a legal device to levy and charge “tax”/”minimum tax” where either no tax is payable, or the tax payable is at a specified low percentage, by deeming the aggregate of the assessee’s turnover as its income, and at the rates specified in the said section itself, and thus section 80-D, unlike the provision of Section 9 of ITO 1979, provides for levying “minimum tax” where no tax is payable in terms of the later provision, and in a certain specified situation, also provides for levying and charging tax in excess of what may otherwise be payable under Section 9 of ITO 1979. Section 80-D also shifts the very basis of levying tax from “total income” to “turnover”, by deeming the same to be the income of the assessee, whereas in terms of section 10 of ITO 1979 surcharge is leviable on the income tax and super tax payable on the income tax. There is no provision for charging surcharge in respect of any tax levied on the basis of turnover of the assessee rather than his total income. As noted earlier, section 80-D provided for levying of “minimum tax”/”tax” where either no tax is payable or where the tax payable is less than one-half percent of the amount representing its turnover. In the former situation, the “minimum tax”/”tax” equal to one-half percent of the said turnover, and in the latter case, equals to the difference between the tax payable or paid and the amount calculated in accordance with the former. Both the above situations do not allow for levying any surcharge, as surcharge is charged on the income tax only, whereas in the first of the above, no income tax is payable, and in the second what is CA 723/2013 8 charged by way of “minimum tax”/”tax”, rather than income tax, is already in excess of the income tax payable in terms of Section 9 of ITO 1979, and therefore there is no justification for levying of any surcharge thereon, more so when all and every ingredients essentially required for such levy, as discussed earlier, are clearly missing. 10. Although in view of our answering the question regarding the levy of surcharge in the negative, the question of maintainability of the respondents’ petition before the High Court has become redundant, however since leave to appeal was granted in the instant case to consider the latter question also we would therefore, express ourselves on the same by holding that since we have held that Section 221 of ITO 2001 was rightly invoked in the present case and the Department was competent to do so there was no jurisdictional error in issuing the impugned notices, the respondents’ petition was therefore not maintainable. 11. The appeal is thus, disposed of in the foregoing terms. JUDGE JUDGE Announced in open Court on _______________ at Islamabad JUDGE ‘APPROVED FOR REPORTING’ Rizwan

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal No.73 of 2016 (Against the judgment dated 28.05.2015 passed by the Islamabad High Court Islamabad in C.R. No.392 of 2010) Mst. Attia Bano & others (in both cases) …Appellant(s) Versus Abdul Majeed (in both cases) …Respondent(s) For the Appellant(s): Kh. Shahid Rasool, ASC For the Respondent(s): Mr. M. Shahzad Siddique, ASC Date of hearing: 24.06.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- In the wake of series of consecutive failures, downstairs throughout, the appellants have resigned in their last ditch to defend the title over house No.2070 Sector I-10/2 Islamabad; they are the legatees of ostensible owner of the premises, late Arshad Mehmood Humayun, no other than plaintiff/respondent’s real brother. The respondent, a U.S. resident, sought declaration with consequential reliefs on the plea of being the real owner through a suit instituted way back on 6.4.2002, averred wherein is that he had provided funds for the purchase of the plot as well as construction thereon, transacted as Benami by appellants’ predecessor-in-interest in his own name for procedural convenience, otherwise with no means to acquire or maintain an expensive dwelling in the Federal metropolis; the respondent further relied upon agreement dated 22.4.1993, executed by the deceased wherein he admitted respondent’s title with an undertaking to transfer the same, as and when required; the said agreement is part of the record as Ex.P.1 and purports to bind the appellants as well; upon their absence, they were proceeded ex parte, however, subsequently allowed to raise the 2 contest wherein they denied the claim. The suit was decreed vide judgment/decree dated 29.10.2007, appeal filed by the appellants met with no better fate vide judgment and decree dated 16.3.2010; revision petition before the High Court was declined on 28.5.2015, vires whereof, are being assailed on a variety of grounds by leave of the Court. It is contended that the deceased had purchased the plot with his duly explained resources and himself constructed the house thereon for the family; that respondent never claimed ownership of the house during the lifetime of his brother and that agreement dated 22.4.1993 was a forged instrument, contrived to deprive the family of their legacy. The Courts below ran into a unanimous error in constructing the transaction as Benami in the face of respondent’s failure to establish source of fund, motive, title documents and possession of the premises, warranting interference by this Court, concluded the learned counsel, a position controverted on respondent’s behalf. 2. Heard. Record perused. 3. Diametrically opposite positions notwithstanding, inter se relationship and respondent’s U.S. residence with frequent visits are common grounds. It is also not seriously disputed that the family comprising four brothers jointly dwelled in the premises. The respondent, in the witness box as PW-2, asserted to have supplied the fund for the purchase of plot as well as construction thereon; he also claimed to have financially assisted his brothers, hailing from a different district in their business pursuit besides providing a roof to their families. Despite a somewhat lengthy cross-examination, respondent’s categorical claim of being the man behind the scene has not been seriously disputed; the entire exercise is structured on references to events having no bearing on the real issue. Transfer of funds for the purpose has been established by the cross- examiner himself, reproduced as follows: � �� � �رز � ى� � � � A channel, though prohibited by law, nonetheless, has been unfortunately a convenient and ubiquitous mode for money transfers. The appellants, confronted with respondent’s sound financial position, the evidence led by them sans any substantial source of their predecessor’s income to support the hypothesis of purchase of a costly residential unit; according to them, the deceased had a grocery shop, a video game outlet and a commercial van albeit with no tangible proofs; they also claimed loan availed from unnamed well-wishers to carry out the construction. It is also an admitted position that after their predecessor’s death, no other moveable or immovable assets 3 have been taken over by the family. Atia Bano, the widow, appeared as DW-1 and admitted as follows: ۔� �ر � �را� �و� �ا � G-7 �رد�� روا �و� ا� � � �  1993  � � � � � ��� ن� �و سا � � �رد � She unsolicitedly volunteered explanation about the disputed house having been rented out again with no details to qualify the claim; her following admission is no less damaging to her position: � �ا� � � سا ن� م� � �و� ے� � � � � � ے� �و سا �� �  � � ��ا The above excerpts from the evidence clearly vindicate respondent’s stance that he had arranged the funds to his brother to manage a residence for the family in Islamabad; two other witnesses, a brother-in-law and a Peer Bhai, also fail in their joint effort to improve upon a plea, inherently flawed. It is established that the family comprising three brothers with their siblings jointly resided in the premises and it is so admitted by no other than Atia Bano (DW-1), in the following terms: �� � ��� ن� �� ود � �ر � ��� ن� ہا� � � � �� روا �� �را � � � ۔�  � ��ز ں��  �� �� �  ہا� ۔ � �ر �� �آ ر� � �� روا � �ر � ��� ن� She goes on to acknowledge that the disputed premises is the permanent residential address in respondent’s National Identity Card. The appellants after demise of their predecessor-in-interest were once evicted from the premises and re-entered the same through Court’s intervention. Totality of circumstances, reflected from the evidence led by the contestants unambiguously suggests a joint possession over the premises that included the respondent, strongly entrenched therein; his stay in the premises during his visit is also an admitted position. Respondent’s foreign residency and his admitted financial status appears to have been a dominant consideration behind his delegation of the task to his brother to conveniently transact the deal on his behalf and it is so evident from Ex.P-I, executed by appellants’ predecessor way back on 22.4.1993, for the convenience of reference, it is reproduced below:  � � ہر� �� � � ل�� م� �د �ا �و ں�� د� �را �����2   � � ۔ں� � تا� � �� � ��اؤ� ى�  � ��ا ل� ��اؤ� ى� � �د �ا �و �ا� �ار د� � مردا��  � � �ر � ٹ� �� ض� �ر � ��ا �  � ٹ� � �ا � �ر �� ہ�� � ہر�� مردا� � � � �2070  ��166.6/9— � �اوI-10/2    د�آ م�ا  � � ۔�او� � م� �ا � � � �� � ر�� مردا� �� ہ�� ٹ� ۔� � تر� �� ود � � � � �� ��� � �� � � � � �ا� �ار مردا� �� �ا � ہر�� �� ۔� راد  ن�راو روا � ى�� � ا� ��را�ا ۔� � �او �ا� � �� ن�ا� �و�ور د� ى� �ر � ہا�او� � � سا� و ش� �� �� را�ا � � � ۔�� � � �  ر�� �آ م� ترو� �� روا �ر � �� � �د� �� 4 The stamp vendor appeared as PW-1 to confirm purchase of stamp paper by the deceased whereupon Ex.P-1 was executed in respondent’s favour; in cross-examination, by far inconsequential, he vehemently denied suggestion of any foul play. Next in line is Muhammad Munir Akhtar (PW-3) being a real brother of the deceased as well as the respondent; he stands at equidistance; he established execution of Ex.P.1 as well as provision of funds by the respondent for the said house; his deposition being straightforward inspires confidence and by itself is sufficient enough to clinch the issue. Death intervened the entry of Nazeer Ahmed, another brother, signatory to the instrument, in the witness-box; he admittedly resided under the same roof. Evidence of aforesaid witnesses conclusively established execution of agreement Ex.P.1 leaving no space to entertain any doubt that appellants’ predecessor was merely an ostensible player, with resources assigned by the respondent to conveniently manage the purchase of land for construction of a house thereon; the burden has satisfactorily been discharged in accord with the law declared by this Court in cases reported as Abdul Majeed & others Vs. Ameer Muhammad & others (2005 SCMR 577) and Muhammad Sajjad Hussain Vs. Muhammad Anwar (1991 SCMR 703). Consensus, concurrently arrived at by the Courts below, admits no interference. Appeal fails. Dismissed with no order as to costs. Judge Judge Judge Islamabad, the 24th June, 2020 Not approved for Reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) I PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AUSAN MR. JUSTICE MUNIB AKHTAR Civil Appeal No.749 of 2021 On appeal from order dated 16.07.2020 of High Court of Balochistan at Quetta, passed in C.P.No. 1233 of 2017. Pakistan Electric Power Company ..Appellant(s) Versus Syed Salahuddin & others .Respondent(s) For the Appellant(s) Mr. Munawar Iqbal Duggal, ASC Syed Rafaqat Hussain Shah, AOR For Respondents# 1&2 Mr. Kamran Murtaza, Sr.ASC (via video link from Quetta) For Respondents# 3&4 Nemo Date of Hearing 21.12.2021 JUDGMENT IJAZ UL AHSAN, J-. This appeal by leave of the Court arises out of a judgment of the High Court of Balochistan at Quetta dated 16.07.2020. Through the impugned judgment, a constitutional petition bearing No.1233 of 2017 filed by Respondents No.1 and 2 (Syed Salahuddin Sahibzada Karim Jan) was allowed and the Appellant-PEPCO was directed to notify their promotions as Superintending Engineers (BS-19) with effect from 13.10.2016 instead of 14.04.2017 and they were also - Civil Appeal No.749°f 2021 2 held entitled to pensionary and all other benefits as Superintending Engineers (BS- 19) with effect from 13.10.2016. 2. Briefly stated the facts necessary for decision of this Appeal are that Respondents No.1 and 2 approached the High Court of Balochistan by way of a constitutional petition seeking a direction that action of the Appellant of notifying them in BS-19 on 14.04.20 17 after their juniors were promoted in the next grade on 13.10.2016 was illegal with a further direction to the Appellant to notify them in BS-19 with effect from the date when their juniors were notified i.e. 13.10.2016. The petition was contested on various legal and factual plains. One of the main grounds urged by the Appellant was that the Respondents were admittedly employees of Quetta Electric Supply Company ("QESCO") which was a separate and distinct legal entity incorporated under the Companies Ordinance, 1984 which did not have any statutory rules. In the absence of any statutory rules, alleged violation of terms and conditions of QESCO would not attract the constitutional jurisdiction of the High Court as held by this Court, vide judgment dated 21.06.2012 passed in C.P.No.1591 of 2011 titled Chief Executive Officer PESCO, Peshawar v. Muhammad Aftab- ur-Rehman and others. S Civu A ppeal No.749 of 2022 3 3. Leave to appeal was granted by this Court on 24.05.202 1 in the following terms: "The learned ASC for the petitioner-PEPCO inter alia contends that there are no statutory rules of service governing the employees of the petitioner-PEPCO and the High Court has erred in law in observing that the employees of the petitioner are governed by the statutory rules of service and thereby allowed the constitutional petition filed by the Respondents. 2. Having heard the learned counsel and going through the impugned judgment, we are inclined to grant leave to appeal in this case to consider inter alia the reasons recorded in our last order dated 24.05.2021 as well as the submissions made before us today. Appeal stage paper books be prepared on the available record. However, the parties are at liberty to file additional documents, if any within a period of one month. As the matter relates to service, the Office is directed to fix the same for hearing in Court expeditiously, preferably after three months. 3. Since the impugned judgment has been rendered by a Division Bench of the High Court, the appeal arising out of the instant petition be fixed before a three member Bench of this Court." 4. The learned counsel for the Appellant-PEPCO submits that the High Court failed to take into consideration the fact that Respondents No.1 and 2 were employees of QESCO which does not have statutory rules and any alleged violation of terms and conditions of service of the said Respondents would not attract the constitutional jurisdiction of the High Court. He further maintains that where terms and conditions of employees of a statutory body are not regulated by rules framed civil Appeal No. 749 of 2021 - under any Statute but under the rules and instructions issued for its internal use, the constitutional jurisdiction of the High Court cannot be invoked. He maintains that the impugned judgment of the High Court fails to take notice of the law laid down by this Court in the case of "Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Sed Jawaid Ahmed" (2013 SCMR 1707). He adds that the impugned judgment has not even considered a Division Bench's decision of the same Court reported as "Ali Gohar Mazar v. Federation of Pakistan through Chief Executive Officer, Quetta Electric Supply and others" (2010 PLC (CS) 353), where it was clearly and categorically held that employees of QESCO could not invoke the constitutional jurisdiction of the High Court. 5. The learned counsel for Respondents No.1 and 2 has however defended the impugned judgment. He maintains that the employees of QESCO and Pakistan Electric Power Company ("PEPCO") are governed by the statutory rules in view of the fact that Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978 have been adopted by the Board of Directors of QESCO in its meeting dated 28.06.2005. Therefore, by reason of such adoption, the employees of QESCO and PEPCO are governed by the statutory rules. Civil Appeal No.7490(2021 5 6. We have heard the learned counsel for the parties and gone through the record. It appears that Respondents No-1 and 2 were Electrical Engineers and inducted into service of WAPDA on 23.11.1985 and 15.08.1984 respectively. Subsequently, when bifurcation of WAPDA as envisaged in Section 8(vii) of the WAPDA Act, 1958 took place whereby the Power Wing of WAPDA was restructured into generation, transmission and distribution of electrical power, different corporate entities/ companies were established under the then Companies Ordinance, 1984. The Appellant had been given the mandate to take control and manage the process of transition of WAPDA Power Wing into aforementioned corporate entities. Consequently, services of the contesting Respondents were transferred by the Appellant to QESCO in the year 2003-04 after obtaining consent from them, as they were local residents of Balochistan and wished to serve in their Province. While serving at QESCO, the said Respondents were promoted as Executive Engineers on 23.06.2007 and 02.02.2007 respectively after observing all codal formalities. As per Manpower Transition Programme, a centralized seniority list of officers serving in BS-18 and onwards in different Energy related Corporations was being maintained by PEPCO and promotion was also the mandate of PEPCO. CIIM Appeal X..749 of 202) 6 7. The record also indicates that promotion cases of 145 senior Engineers, on the basis of integrated seniority list were considered by PEPCO Selection Board. In the said seniority list, Respondents No.1 and 2 were placed at Nos. 118 and 119 respectively. In this respect, PEPCO Selection Board considered the question of promotions on the basis of parameters elaborated in PEPCO Promotion Policy ("the Policy"). Key Performance Indicators ("KPI5") and Mobile Meter Reading Data ("MMR") were evaluated/ considered to determine the performance of every individual on the basis of data collected from respective Distribution Companies. After considering all material aspects, the Selection Board recommended promotion of 57 senior Engineers, including Respondents No.1 and 2, out of 145 senior Engineers to the rank of Superintending Engineers (non- generation) (BS- 19). However, out of the said 57 senior Engineers, the Board recommended immediate promotions of 35 senior Engineers unconditionally whereas the remaining 22 senior Engineers, including Respondents No.1 and 2 were recommended for promotion subject to certain conditions. In the case of Respondents No.1 and 2, they were recommended for promotion with the condition that, "their performance will be monitored for next three months and if found ciVil A ppeal IV,. 749 of 2021 7 satisfactory, promotion orders will be issued accordingly". Following the recommendations of the Board conditional promotion letters were issued clearly stating as under: 'The performance of the officers after their promotion will be evaluated on the basis of defined KPIs for a period of six months, extendable for further three months. In case of failure to perform in accordance with the prescribed KPIs for the post, the promotion of the officers will be reviewed. It was also categorically stated that promotion of officers at Serial Nos. 1 to 34, will be purely on temporary basis and they will not claim seniority/promotion over those who may otherwise be senior to them." 8. It appears from the record that performance evaluation of a number of senior Engineers including Respondents No.1 and 2 as per KPIs was requested from QESCO after completion of three months vide letter dated 04.11.2016 by the Appellant. The requisite performance evaluation of the said officers was provided and after examination of the same, reports were compiled and summarized and cases of 17 officers including Respondents No.1 and 2 were sent for approval of promotion by the competent authority. Out of the said 17 officers, promotion orders of 10 officers having satisfactory performance were issued on 26.12.2016. However, the performance of remaining officers including Respondents No.1 and 2 having not been found satisfactory were recommended to be observed for further CMM A ppeal Np 79 o[2021 three months. On expiry of such period of three months, the competent authority after being satisfied to some extent with their performance issued their promotion orders and they were accordingly promoted with effect from 14.04.2017. Respondents No.1 and 2 were aggrieved of their promotion with effect from 14.04.2017 and sought promotion from the date on which their juniors were promoted i.e. 13.10.2016. The High Court allowed their petition by observing that lawful justification for issuing promotion orders of different senior officers on different dates had not been provided. It was further observed that there was no justification available on the record as to why the recommendations dated 12.08.20 16 were not given effect across the board. The High Court therefore recorded a finding that General Manager (HR) PEPCO/the Appellant had acted with malice in issuing promotion orders of the Respondents on 14.04.20 17 instead of 13.10.2016. The aforenoted narration of the procedure adopted by the Appellant-PEPCO makes it abundantly clear that it had placed on record all material documents showing fulfilment of procedural formalities on the basis of which some Engineers were promoted immediately and the others conditionally for which valid 1 reasons which fell within the purview of PEPCO Selection Board were furnished. -T Civil Appeal No. 749 of 2022 9. We also find that there was no justification or basis for the High Court to come to the conclusion that GM (HR), PEPCO had acted with malice. We have I scanned through the record and do not find any material that may even remotely point towards mala fide or malice on the part of the functionaries of the Appellant. We therefore find that the finding recorded by the High Court relating to malice and absence of lawful reasons or justification for promoting different officers on different dates was not based on the record and arose out of misinterpretation and misconception of proceedings of I the Selection Board as reflected in the Minutes. We are also of the view that the PEPCO Selection Board was competent in the matter and imposition of conditions including evaluation of officials in view of their performance on the basis of defined KPIs for a period of three months extendable by another three months was neither unlawful nor unreasonable and squarely fell within the parameters of the Policy and directives of the competent authorities. 10. There is yet another aspect of the matter. A specific objection regarding jurisdiction of the High Court to entertain the petition was raised which was dealt with in the following manner: Civil Apucol No. 742 of 2021 10 "The petitioners being employees of QESCO/PEPCO are governed by statutory rules ana as sucri rn.e constitutional petition filed by the Respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable. We find that in the first place, there was no ground to hold that the Respondents were governed by the statutory rules. Admittedly, the Respondents by their own choice had joined QESCO which is a distinct and separate legal entity having been incorporated in the erstwhile Companies Ordinance, 1984 and has its own Board of Directors. Just by reason of the fact that QESCO had adopted existing rules of WAPDA for its internal use does not make such rules statutory in the context of QESCO. It was clearly and categorically held by this Court in Pakistan Defence Officers Housiflg Authority (ibid), Pakistan Telecommunication Company Ltd through its Chairman v. Igbal Nasir and others (PTA]) 2011 SC 132) as well as Pakistan International Airlines Corporation and others v. Tanveer ur Rehman and others (PLD 2010 Sc 676) that where conditions of service of employees of a statutory body are not regulated by rules/ regulations framed under the Statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through constitutional jurisdiction and they would be governed by the principle of "master and servant". The learned High CU,u Avoeo( Np 749 of 2021 11 Court appears to have not been assisted properly in the matter and therefore omitted to notice the said principle of law laid down in the aforenoted case and reiterated repeatedly in a number of subsequent judgments of this Court. 11. Further, while assuming jurisdiction in the matter, the learned High Court omitted to appreciate that in case of an employee of a Corporation where protection cannot be sought under any statutory instrument or enactment, the relationship between the employer and the employee is governed by the principle of "master and servant" and in such case the constitutional jurisdiction of the High Court under Article 199 of the Constitution cannot be invoked. We also find that although a judgment of this Court dated 07.03.2019 in the case of employees of IESCO was brought to the notice of the High Court in which a similar finding was recorded regarding non-availability of constitutional jurisdiction to the employees of IESCO, the Court appears to have misinterpreted and misconstrued the ratio of the same and therefore arrived at a conclusion which appears to be contrary to the settled law on the subject. We also notice that a judgment of a Division Bench of the same High Court escaped the notice of the High Court of Balochistan whereby it had clearly held that employees of F CluE? Appeal No. 749 of 2021 12 QESCO could not invoke its constitutional jurisdiction. Further, a judgment of this Court rendered in the case of Chief Executive Officer PESCO, Peshawar (ibkl) examined the question of jurisdiction of the High Court under Article 199 of the Constitution in matters relating to employees of PEPCO which is identically placed insofar as it was also incorporated under the Companies Ordinance, 1984 pursuant to bifurcation of various Wings of WAPDA into separate corporate entities and it came to the conclusion that since PEPCO did not have statutory rules, the High Court lacked jurisdiction to interfere in matters involving employment disputes between PEPCO and its employees. The ratio of the said judgment was clearly attracted to the facts and circumstances of this case, which appears to have escaped the notice of the High Court. We are therefore in no manner of doubt that in view of the fact that QESCO does not have statutory rules governing the terms and conditions of service of its employees, the relationship between the Appellant-PEPCO and Respondents No.1 and 2 was governed by the principle of "master and servant" and the Respondents could not have invoked t H constitutional jurisdictional of the High Court for redressal of their grievances. Civil Appeal No. 749 of 2021 13 12. For the foregoing reasons, we find that the impugned judgment of the High Court dated 16.07.2020 rendered in C.P.No, 1233 of 2017 is unsustainable and is accordingly set aside. Consequently, the appeal is allowed. ISLAMABAD. THE 2.1.12.2021 ZR/* NOT APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) MR. JUSTICE GULZAR AHMED, HCJ. MR. JUSTICE IJAZ UL AHSAN. MR. JUSTICE MUNIB AKHTAR. CWIL APPEAL NO.756 OF 2021 (Against the judgment dated 25.09.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1332(R)CS of 2016). AND CIVIL REVIEW PETITION NO. 11 OF 2021 IN CIVIL APPEAL NO.493 OF 2020. (Against the order dated 04.12.2020 passed by this Court in Civil Appeal No. 493 of 2020) Divisional Accounts Officer, Pakistan Railways, Rawalpindi. (in CA. 7S6/2021) Finance Secretary, Finance Division, M/o Finance, Islamabad. (in CRP. 11/2021) .App(s)/Pet(s). Versus Muhammad Yasin (decd) through L.Rs. and others. Respondent(s) (in both cases) For the Appellant(s) For the Petitioner(s) For the Respondent(s): Date of Hearing: Mr. Jawad Mehmood Pasha, ASC. (via video-link fmm Lahore) (in CA. 75612021) Ch. Aamir Rehman, Addl. AGP. Mr. Sajid Javed, Asstt. (Legal) Finance Division. (in CRP. 11/2021) Asim Yasin. (son of the respondent). 23.12.2021. JUDGMENT IJAZ UL ABSAN, J-. This single judgment shall decide Civil Appeal No.756 of 2021 (filed by Divisional Accounts Officer, Pakistan Railways) and Civil Review Petition No.11 of 2021 (filed by the Secretary, Finance Division, CIVIL APPEAL NO. 756 OF 2021, etc. 2 Islamabad) as common questions of law and fact are involved in both matters. 2. This appeal arises out of a judgment of the Federal Service Tribunal, Islamabad ("the Tribunal"), dated 25.09.2018. Through the impugned judgment, a Service Appeal bearing No. 1332(R)CS of 2016 filed by the Respondent (Muhammad Y asirt) was allowed and it was held that since he was holding the post in substantive Grade-15 at the time of his retirement he would be entitled to 25% increase in pension as per Office Memorandum dated 23.07.1999. The Appellant was directed to allow medical allowance to the Respondent @ 25% of his pension with effect from 01.07.2010 and arrears with a direction to complete the process within 30 days. 3. Briefly stated the facts necessary for disposal of this Appeal are that the Respondent was a pensioner of Pakistan Railways. He joined Pakistan Railways on 05.05.1969. He was allowed move-over to BS-16 with effect from 01.12.2000. He retired from service on 31.03.2000. It appears that the Government of Pakistan had announced pay scales with allowances, vide Office Memorandum dated 05.07.2010. Through the said OM, Medical Allowance was allowed to the pensioners at the following rates: 1) From BS-1 to 15 @25% of the pension and ii) From .BS-1 6 to 22 @20% of the pension. In view of the fact that the Respondent had been granted move-over to BS-16, he was allowed medical I •1 •1 Cl VAt APPEAL DO. ThU OF 2U2 I, etc. 3 allowance @ 20% of his pension. The Respondent claimed that since his substantive grade was BS-15 he was entitled to medical allowance @ 25% of the pension. His departmental representation was not responded, in consequence of which, the Respondent approached the Tribunal which allowed his Service Appeal, vide impugned judgment dated 25.09.20 18 which is impugned before us through the present appeal. 4. The learned counsel for the Appellants submits that the Respondent had drawn last pay in BS-16 and as such he could not claim medical allowance at the rate which it was payable to those who were in BS-15. In this regard, he has drawn our attention to Office Memorandum No.F-16(1)- Reg.6/2010-778, dated 05.07.2010("OM"). He maintains that the Tribunal has misconstrued and misinterpreted the clear and unambiguous language of the said OM. He further maintains that the Tribunal failed to consider that the departmental representation as well as the Service Appeal filed by the Respondent were hopelessly barred by time and the reasons recorded by the Tribunal for condoning the delay are unsustainable. He submits that the Respondent had retired on 31.03.2000, drew pension and allowances on his last drawn pay and could not claim increase in medical allowance payable to those who retired in BS-15. He points out that by claiming the allowance in BS-15 while drawing pension in BS-16 the Respondent in essence was claiming two benefits which are not permitted by law. He also argues that the Tribunal lost sight of the fact that the Respondent CIVIL APPEAL NO.756 OF 2021, etc. 4 was allowed move-over to BS- 16 with effect from 01.12.2000 on account of an option exercised by him and he could not have retraced his steps to claim an additional benefit of an increased medical allowance available to those who had retired in BS-15. S. Mr. Asim Yasin, son of the Respondent, who has appeared in person on behalf of his legal heirs has defended the impugned judgment. He maintains that the substantive Grade of his predecessor-in-interest at the time of retirement was BS-15. Therefore, he was entitled to payment of medical allowance payable to those who had retired in BS-15. He has also filed written submissions which have been gone through. 6. We have heard the learned ASC for the Appellants as well as Respondent's son and carefully gone through the record. The facts in the case are not disputed by either side which have been reproduced above. There is no denial of the fact that the Respondent had opted for move-over to BS-16 in which he chose to retire and was granted pension on the basis of last drawn pay of BS-16 and medical allowance permissible to those in BPS-16. The entire case turns on the interpretation of OM dated 05.07.2010 which in our opinion has been misinterpreted and misconstrued by the Tribunal. 7. It is significant to note that through the aforesaid OM, medical allowance was payable with effect from 01.07.2010 to all civil pensioners of the Federal Government ' CIVIL APPEAL NO.756 OF 2021, etc. including civilians paid from Defence Estimate and Civil Armed Forces at the following rates: Pensioners who retired in BPS-1 to 15 25% of Pension drawn (the underlining is ours). Pensioners who retired/will retire in BPS-16 to 22 20% pfpçjsion drawn. (the underlining Is ours). In our opinion, in the first instance, the Respondent had been granted move-over to BS-16 at his own option. Further, the rate of medical allowance was to be calculated on the basis of pension drawn. There is no denial of the fact that the Respondent drew pension on his last drawn pay which was in BS-16. Therefore, on a correct construction and interpretation of the OM, he was entitled to 20% of the pension drawn which is the deciding factor in determining the amount of medical allowance payable to a Pensioner. The Tribunal, in our view, did not correctly interpret the language of the OM and read into the OM something which was not there. The intent, meaning and scope of the OM was clear and unambiguous and we are in no manner of doubt that the medical allowance was payable on the pension drawn. In view of the fact that the Respondent admittedly drew pension calculated on the basis of his last drawn pay which was that of BS-16, he was correctly paid medical allowance @ 20% of the pension drawn. We also find substance in the argument of learned counsel for the Appellants that the Respondent was actually claiming two benefits. While on the one hand he was drawing pension calculated on the basis of his last drawn pay in BS-16 and on the other hand he claimed benefit of a higher rate of medical i) Li • I CIVIL APPEAL NU756OF2O21,efr allowance payable to persons retiring in BS-15, which is contrary to the plain language of the OM. The determining factor were the words "of pension drawn". The finding of the Tribunal that the Respondent had retired "substantively in BS-15" is a terminology unknown to the Service Law or any legal phraseology. Further, the rate of medical allowance was to be determined on the basis of pension drawn and no where does the OM provide for whether or not a pensioner had retired holding a substantive grade. 8. Further, we find that the Tribunal misconstrued and misinterpreted the law of limitation and the reasons that prevailed with the Tribunal in condoning the delay were not attracted to the facts and circumstances of the instant case. It may be noted that the claim of the Respondent was not regarding his pension or any pensionary benefit. In fact, he had approached the Tribunal seeking interpretation of an Office Memorandum dated 05.07.20 10 in 2016. As such, the question of limitation was material in view of the fact that the departmental representation as well as Service Appeal of the Respondent were patently barred by time. The entire tenor of the reasoning given by the Tribunal in allowing the Service Appeal is that the Respondent was holding a post in substantive Grade-15 which was alien to the considerations for grant of medical allowance as incorporated in the OM that was the subject matter of interpretation. Consequently, we find that the impugned judgment of the Tribunal is CIVIL APPEAL NO.756 OF 2021, etc. 'A unsustainable and is accordingly set aside. As a result, the appeal is allowed. 9. CRP No.11 of 2021. For the reasons recorded in the connected matter (Civil Appeal No. 756 of 2021) which has been allowed by us, this Review Petition is also disposed of. I ISLAMABAD. 23.12.2021. ZR/ * Wqt Approved For Eeporting

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, C.J. MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEALS NO. 759/2020, 1448/2016, 1483/2019, 760/2020, 761/2020, 1213/2020 TO 1230/2020 (On appeal from the judgments/orders dated 20.06.2017, 18.09.2015, 27.10.2016, 27.03.2018, 14.03.2016, 07.04.2016, 11.09.2017, 19.09.2017, 16.10.2017, 18.04.2018, 03.05.2018, 17.05.2018, 24.05.2018, 18.10.2018, 11.10.2018, 04.07.2017, 20.11.2018, 15.05.2019 and 07.03.2019 of the Peshawar High Court, Peshawar; Peshawar High Court, Mingora Bench (Dar-ul- Qaza), Swat; KPK Service Tribunal, Peshawar; and Peshawar High Court, D.I. Khan Bench passed in Writ Petition Nos. 1714-P/2015, 3592-P/2014, 3909-P/2015, 602-P/2015 and 4814-P/2017; Civil Revision No.493-P/2015; Writ Petition Nos. 1851-P/2014, 3245- P/2015, 429-M/2014 and 3449-P/2014; Appeal Nos.62/2020, 63/2020 and 326/2015; and Writ Petitions No.778-M/2017, 1678- P/2016, 3452-P/2017, 4675-P/2017, 2446-P/2016, 3315-P/2018, 667-D/2016, 2096-P/2016, 2389-P/2018 and 965-P/2014) 1. Civil Appeal No.759/2020: Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar etc. Vs. Intizar Ali etc. 2. Civil Appeal No.1448/2016: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education, Peshawar etc. Vs. Javed Khan etc. 3. Civil Appeal No.1483/2019: Government of Khyber Pakhtunkhwa through Secretary Education (E & S.E) K.P, Peshawar etc. Vs. Muhammad Ilyas 4. Civil Appeal No.760/2020: Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar etc. Vs. Behramand etc. 5. Civil Appeal No.761/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education Khyber Pakhtunkhwa Peshawar etc. Vs. Kifayatullah etc. 6. Civil Appeal No.1213/2020: Secretary Elementary & Secondary Education, Govt. of Khyber Pakhtunkhwa Civil Secretariat, Peshawar etc. Vs. Mst. Safia Begum etc. 7. Civil Appeal No.1214/2020: Government of K.P. through Secretary (E & S) Education, Peshawar etc. Vs. Akhter Biland CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 2 :- 8. Civil Appeal No.1215/2020: District Education Officer (Male) District Swabi etc. Vs. Muhammad Israr & another 9. Civil Appeal No.1216/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education Peshawar etc. Vs. Shujaullah 10. Civil Appeal No.1217/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education Peshawar etc. Vs. Sheraz Badshah etc. 11. Civil Appeal No.1218/2020: Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar etc. Vs. Zahid Ali 12. Civil Appeal No.1219/2020: Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar etc. Vs. Shah Hussain 13. Civil Appeal No.1220/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education Peshawar etc. Vs. Muhammad Hayat 14. Civil Appeal No.1221/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education, Peshawar etc. Vs. Dir Nawab Khan etc. 15. Civil Appeal No.1222/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education Peshawar etc. Vs. Muhammad Faridoon Khan etc. 16. Civil Appeal No.1223/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education Peshawar etc. Vs. Shafiq Ahmad 17. Civil Appeal No.1224/2020: District Education Officer (Male) Charsadda etc. Vs. Yahiya Jan 18. Civil Appeal No.1225/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education (E&SE) Khyber Pakhtunkhwa, Peshawar etc. Vs. Syed Attaullah Shah etc. 19. Civil Appeal No.1226/2020: Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education, Peshawar etc. Vs. Noor ud Din CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 3 :- 20. Civil Appeal No.1227/2020: Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar etc. Vs. Asmatullah Khan 21. Civil Appeal No.1228/2020: Director Elementary & Secondary Education Khyber Pakhtunkhwa Peshawar etc. Vs. Mst. Bakht Zari etc. 22. Civil Appeal No.1229/2020: Secretary Elementary & Secondary Education KP, Peshawar etc. Vs. Attaullah Jan 23. Civil Appeal No.1230/2020: Government of Khyber Pakhtunkhwa through Secretary Communication & Works Department, Peshawar etc. Vs. Sajjad Ahmad & another For the appellant(s): Mr. Shumail Butt, Advocate General, KPK Barrister Qasim Wadood, Addl.A.G., KPK Mr. Atif Ali Khan, Addl.A.G., KPK Mr. Zahid Yousaf Qureshi, Addl.A.G., KPK Mr. Iftikhar Ghani, DEO (Male) Bunir Mr. Muhammad Aslam, S.O. (Litigation) Mr. Fazle Khaliq, Litigation Officer/DEO (Male) Swat Mr. Fazal Rehman, Principle/DEO Swat Ms. Roheen Naz, ADO (Legal)/DEO(F) Nowshera Malik Muhammad Ali, S.O. C&W Department, KPK Mr. Jehanzeb Khan, SDO/XEN C&W (In all cases) For the respondent(s): Sh. Riaz-ul-Haque, ASC (In C.As.759/2020, 1483/2019, 760, 1214, 1215, 1217, 1218, 1220 & 1223/2020) Mr. Fazal Shah, ASC (Respondents No.1 & 2 in C.A.1448/2016, respondents No.2 to 4, 8, 99, 11 & 12 in C.A.1213/2020 & respondents in C.A.1229/2020) Mr. Abdul Munim Khan, ASC (In C.A.761/2020) Barrister Umer Aslam Khan, ASC (Respondent No.1 in C.A.1213/2020) Mr. Taufiq Asif, ASC (In C.A.1221/2020) Mr. Misbah Ullah Khan, ASC (In C.A.1222/2020) Hafiz S. A. Rehman, Sr. ASC (Respondents No.1, 3 to 8 in C.A.1225/2020) CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 4 :- Mr. Saleem Ullah Ranazai, ASC (In C.A.1227/2020) Chaudhry Muhammad Shuaib, ASC (Respondent No.2 in C.A.1228/2020) Mr. Fida Gul, ASC (In C.A.1230/2020) Nemo (Respondents No. 5 to 7 & 10 in C.A.1213/2020, respondents in C.As.1216/2020, 1219/2020, 1224/2020 & 1226/2020, respondent No.2 in C.A.1225/2020 & respondents No.1 & 3 in C.A.1228/2020) Date of hearing: 03.06.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through these appeals by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellants have called in question the judgments of the learned Peshawar High Court and KPK Service Tribunal whereby the Writ Petitions, Service Appeals and Civil Revision filed by the respondents were allowed and they were re-instated in service under the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012. 2. Briefly stated the facts of the matter are that the respondents were appointed on different posts in various departments of Government of KPK on various dates in the years 1995 & 1996 on temporary/fixed/ad-hoc basis. Later on their services were terminated by the appellants vide different orders passed in the years 1996 & 1997 on the ground that they lack requisite qualification and experience. In the year 2010, the Federal Government enacted the Sacked Employees (Re-instatement) Act, 2010 for the purpose of providing relief to persons who were appointed in a corporation/autonomous/semi-autonomous bodies or in Government service during the period from 01.11.1993 to 30.11.1996 and were dismissed, removed or terminated from service during the period from 01.11.1996 to 12.10.1999. Following the Federal Government, the provincial Government of KPK also promulgated the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 for reinstatement of sacked employees, who CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 5 :- were dismissed, removed or terminated from service during the period from 1st day of November, 1996 to 31st day of December, 1998. Pursuant to the said legislation, a number of employees were reinstated but the respondents were not given the said relief, which led to their filing of writ petitions, service appeals and Civil Revision arising out of a suit before the Peshawar High Court and KPK Service Tribunal, which have been allowed vide impugned judgments mainly on the ground that as the similarly placed employees have been reinstated, the respondents are also entitled for the same relief. Hence, these appeals by leave of the Court. 3. Learned Advocate General, KPK, contended that the respondents were temporary employees and the relief sought for under Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 was only meant for those employees who were appointed on regular basis having the prescribed qualification and experience for the respective post during the period from 01.11.1993 to 30.11.1996 and were dismissed, removed or terminated from service during the period from 01.11.1996 to 31.12.1998. Contends that even the respondents did not have the requisite qualification and experience at the time of their first appointment and they obtained the same after their termination from service. Contends that the learned High Court and the Tribunal in the impugned judgments has acknowledged this fact that the respondents did not have the requisite qualification yet they were ordered to be reinstated. Contends that under Section 7 of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, to avail the benefit of reinstatement an employee had to file an application within thirty days of the commencement of the Act i.e. 20.09.2012 but none of the respondents have fulfilled that condition. Contends that this Court has held that the requirement of Section 7 of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 is mandatory in nature and if an employee has not complied with the spirit of said provision, no relief can be given to him. Lastly contends that in such circumstances, the impugned judgments are liable to be set aside. 4. Hafiz S.A. Rehman, learned Sr. ASC for respondents No.1, 3 to 8 in C.A.1225/2020 contended that minutes of meeting of CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 6 :- the department held on 02.09.2015 show that all the respondents had applied within the stipulated period of time. Contends that factual controversy is involved in the present appeals as the disputed questions whether the respondents applied within the 30 days cutoff period after the commencement of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 and whether they had the requisite qualification/experience having assailed in the present appeals, therefore, the present appeals are not maintainable. Contends that no question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan is involved in the present appeals, therefore, they are liable to be dismissed. Contends that the learned High Court has not passed any injunctive order and has only remanded the cases back to the department for reconsideration on the basis of factual controversy. Contends that the respondents were regular employees and the term ‘temporary’ only refers to those employees who are on probation. 5. Sh. Riaz-ul-Haque, learned ASC for the respondents in C.As.759/2020, 1483/2019, 760, 1214, 1215, 1217, 1218, 1220 & 1223/2020 contended that the onus to prove that whether the respondents applied within 30 days cut-off period after the commencement of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 and whether they had the requisite qualification/experience is burdened with the appellant (Government) and they never raised this very issue before the High Court. On our specific query, he admitted that he does not know the date as to when the respondents had applied for re-employment in pursuance of Section 7 of the said Act. 6. In response to our query as to whether the respondents were regular employees having requisite qualification/experience and had applied within 30 days, Mr. Fazal Shah, learned ASC for respondents No.1 & 2 in C.A.1448/2016, respondents No.2 to 4, 8, 99, 11 & 12 in C.A.1213/2020 & respondents in C.A.1229/2020 admitted that the respondents were appointed on temporary/ad hoc basis. However, he kept on insisting that the respondents were duly qualified and possessed requisite qualification, therefore, the impugned judgments may be upheld. CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 7 :- 7. Barrister Umer Aslam Khan, learned ASC for respondent No. 1 in CA 1213/2019 stated that the respondent had equivalent to intermediate qualification but did not have the sanad/certificate at the time of appointment, which was procured later on in the year 2011. He supported the impugned judgments by stating that the respondent possesses all the requisite qualification/experience, therefore, he deserves to be reinstated. 8. Mr. Saleemullah Ranazai, learned ASC for the respondent in Civil Appeal No. 1227/2019 contended that the respondent was a regular employee and was wrongly terminated from service. Contends that after the promulgation of Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, the respondent had filed the application within the prescribed period of 30 days. He further contends that he was holding the degree of Bachelor of Arts at that time whereas the required qualification was matriculation. 9. Mr. Fida Gul, learned counsel for the respondent in Civil Appeal No.1230/2019 argued that both the respondents were appointed in Khyber Agency at the relevant time. Contends they had filed the application for statutory benefit/relief well within time and they had the requisite qualification/experience. 10. M/s Abdul Munim Khan, Taufiq Asif, Misbahullah Khan, Ch. Muhammad Shoaib learned ASCs have adopted the arguments of Hafiz S.A. Rehman, learned Sr. ASC. 11. Having heard the learned counsel for the parties at extensive length, the questions which crop up for our consideration are (i) whether the respondents were regular employees of the Government of KPK, (ii) whether they had the requisite qualification/experience at the time of appointment, (iii) whether they had applied for reinstatement within the cutoff period of 30 days as stipulated in Section 7 of the Act and (iv) what is the effect of our judgment passed in Muhammad Afzal Vs. Secretary Establishment (2021 SCMR 1569) whereby the Sacked Employees (Re-instatement) Act, 2010 enacted by Federal Government for similarly placed employees of Federal Government was held ultra vires the Constitution. CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 8 :- 12. Firstly, we will take up the issue as to whether the respondents were ‘regular employees’ and had the requisite qualification/experience at the time of appointment. Before proceeding with this issue, it would be advantageous to reproduce the very Preamble of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, which reads as under:- “Whereas it is expedient to provide relief to those sacked employees who were appointed on regular basis to a civil post in the Province of the Khyber Pakhtunkhwa and who possessed the prescribed qualification and experience required for the said post, during the period from 1st day of November 1993 to the 30th day of November, 1996 (both days inclusive) and were dismissed, removed, or terminated from service during the period from 1st day of November 1996 to 31st day of December 1998 on various grounds.” 13. The intent behind the promulgation of Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 clearly reflects that it was a legislation promulgated to benefit those regular employees sacked without any plausible justification enabling them to avail the same so that they may be accommodated within the parameters of legal attire. A bare reading of the Preamble of the Act shows that it was enacted to give relief to those sacked employees, who were appointed on ‘regular basis’ to a civil post in the Province of Khyber Pakhtunkhwa while possessing the prescribed qualification and experience for the said post during the period from 1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and were dismissed, removed or terminated from service during the period from 1st day of November, 1996 to 31st day of December, 1998. Therefore, keeping in view the intent of the Legislature, it can safely be said that to become eligible to get the relief of reinstatement, one has to fulfill three conditions i.e. (i) the aggrieved person should be a regular employee, (ii) he must have the requisite qualification & experience for the post during the period from 01.11.1993 to 30.11.1996 and not later, and (iii) he was dismissed, removed or terminated from service during the period from 01.11.1996 to 31.12.1998. At the time of hearing of these appeals, we had directed the learned Advocate General so also the respondents to provide us a chart containing dates of appointments of the respondents, whether they were regular employees or not, their qualifications/experience at the time of appointment, dates of CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 9 :- termination, dismissal or removal from service and the dates on which they had filed applications to avail the benefit under Section 7 of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012. The requisite data was provided to us through various CMAs. We have minutely looked at the credentials of each of the respondent and found that except (respondent Asmatullah in Civil Appeal No. 1227/2020) none of the respondents was appointed on regular basis. Although a very few, like a drop in a bucket, had the requisite qualification/experience, had applied within thirty days, the cutoff period as mandated but one thing is common in all of them, that they all were daily wagers/temporary/fixed employees. The foremost and mandatory condition to become eligible to get the relief under the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 was that the aggrieved person should be a regular employee stricto sensu whereas all the respondents do not meet the said statutory requirement. If an employee does not meet the mandatory condition to become eligible for reinstatement that he should be a regular employee then even if he was dismissed / removed / terminated from service, he cannot get the relief of reinstatement because he has not fulfilled the basic requirement of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012. Admittedly, the respondents were temporary/fixed/ad- hoc/contract employees. The temporary employees have no vested right to claim reinstatement/regularization. This Court in a number of cases has held that temporary/contract/project employees have no vested right to claim regularization. The direction for regularization, absorption or permanent continuance cannot be issued unless the employee claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules and against the sanctioned vacant posts, which admittedly is not the case before us. This Court in the case of PTCL Vs. Muhammad Samiullah (2021 SCMR 998) has categorically held that ad-hoc, temporary or contract employee has no vested right of regularization and this type of appointment does not create any vested right of regularization in favour of the appointee. In an unreported judgment dated 11.10.2018 passed in Civil Petition Nos. 210 & 300 of 2017, this Court has candidly held that the sacked employee, as defined in the Act, required to be regular employee to CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 10 :- avail the benefit of reinstatement and if an employee is not a regular employee his case does not fall within the ambit of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012. So far as the argument of learned counsel for the respondents Hafiz S.A. Rehman that the respondents were regular employees and the term ‘temporary’ refers to those employees who are on probation is concerned, the same is misconceived. Permanent or regular employment is one where there is no defined employment date except date of superannuation whereas temporary position is one that has a defined/limited duration of employment with specified date unless it is extended. If a person is employed against a permanent vacancy, there is specifically mentioned in his appointment letter that he will be kept on probation for a specific period of time but in the case of a temporary employee it is mentioned that he is employed on temporary basis either for a cutoff period of time or for the completion of a certain period either related to a project or assignment. The appointment letters of the respondents clearly show that they were appointed on temporary/fixed basis and not on regular basis. 14. Now we would advert to the second question as to whether the respondents had the requisite qualification/experience at the time of appointment. Although, when none of the respondents was a regular employee, the question whether they had the requisite qualification/experience at the time of appointment or not looses its significance but despite that we have carefully perused the particulars of each of the respondents and found that except 2/3 respondents none had the requisite qualification and experience at the time of appointment. Even otherwise, as discussed above, if an employee had the requisite qualification/experience but he was employed on adhoc/temporary/daily wages, he could not claim reinstatement under the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012. 15. The third question is whether the respondents had applied for reinstatement within the cutoff period of 30 days as stipulated in Section 7 after the commencement of the Act, 2012. Under Section 7(1) of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, to avail the benefit of reinstatement/re- CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 11 :- appointment, an employee had to file an application within thirty days of the commencement of the Act i.e. 20.09.2012. Before discussing this aspect of the matter, it would be advantageous to reproduce the said Section for ready reference. It reads as under:- “7. Procedure for appointment.---(1) A sacked employee, may file an application, to the concerned Department within a period of thirty days from the date of commencement of this Act, for his appointment in the said Department:-- Provided that no application for appointment received after the due date shall be entertained.” 16. In an unreported judgment dated 23.02.2021 passed in Civil Appeal No. 967/2020, the respondent was appointed as C.T. Teacher on 25.02.1996 and was terminated from service on 13.02.1997. After the promulgation of KPK Sacked Employees (Appointment) Act, 2012, the respondent submitted an application for his reinstatement, which did not find favour with the department and ultimately the matter came to this Court wherein it has been found that neither the respondent was a regular employee nor he had applied for reinstatement within thirty days within the purview of Section 7 of the Act. It would be in fitness of things to reproduce the relevant paragraphs of the judgment of this Court, which read as under:- “Section 7 of the Act of 2012, requires an employee to make an application to the concerned department within a period of thirty days from the date of commencement of the Act of 2012. The respondent did not apply under the Act of 2012 for his reinstatement rather on the basis that some of the employees were granted benefits of the Act of 2012, he also filed a writ petition taking chance of his reinstatement. The very question that whether the respondent applied under the Act of 2012 for reinstatement being disputed question, the High Court in the first place was not justified in exercising its writ jurisdiction, for that, the very fact that the respondent has applied under the Act of 2012 for reinstatement into service, was not established on the record. 7. The learned Additional Advocate General further contends that the respondent was a temporary employee and thus, was also not entitled to be reinstated into service under the Act of 2012. Such aspect of the matter has not been considered by the High Court in the impugned judgment. We, therefore, do CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 12 :- not consider it appropriate to examine the same and give our finding on it. The very fact that the respondent has not applied under the Act of 2012 for being reinstated into service, Section 7 of the Act of 2012 was not complied with and thus, the High Court was not justified in passing of the impugned judgment, allowing the writ petition filed by the respondent.” (Underlined to lay emphasis) 17. Similarly, in Civil Petition No. 639-P/2014, this Court has held that in order to avail the benefit of reinstatement under the KPK Sacked Employees (Appointment) Act, 2012, it is necessary for an employee to approach the concerned department in terms of Section 7 within thirty days and in case of failure, as per its proviso, he would not be entitled for appointment in terms thereof. We have noticed that except for a very few respondents none of them have fulfilled the mandatory condition of applying/approaching the department within 30 days after the commencement of the Act i.e. 20.09.2012, therefore, they are not entitled to seek the relief sought for. The respondents who had applied within time were not regular employees, therefore, even though they had applied within time but it would not make any difference as they do not fulfill the very basic requirement for reinstatement i.e. that to avail the benefit of reinstatement, an employee should be a regular employee. In a number of judgments, the superior courts of the country have held that when meaning of a statute is clear and plain language of statute requires no other interpretation then intention of Legislature conveyed through such language has to be given full affect. Plain words must be expounded in their natural and ordinary sense. Intention of the Legislature is primarily to be gathered from language used and attention has to be paid to what has been said and not to that what has not been said. This Court in Government of KPK Vs. Abdul Manan(2021 SCMR 1871) has held that when the intent of the legislature is manifestly clear from the wording of the statute, the rules of interpretation required that such law be interpreted as it is by assigning the ordinary English language and usage to the words used, unless it causes grave injustice which may be irremediable or leads to absurd situations, which could not have been intended by the legislature. In JS Bank Limited Vs. Province of Punjab through Secretary Food, Lahore (2021 SCMR 1617), it has been held by this Court that for the interpretation of statutes purposive rather than a CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 13 :- literal approach is to be adopted and any interpretation which advances the purpose of the Act is to be preferred rather than an interpretation, which defeats its objects. We are of the view that the very object of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, as is apparent from its very Preamble, was to give relief to only those persons, who were regularly appointed having possessed the prescribed qualification/experience during the period from 01.11.1993 to 30.12.1996 and were thereafter dismissed, removed or terminated from service during the period from 01.11.1996 to 31.12.1998. The learned High Court and the Service Tribunal did not take into consideration the above aspects of the matter and passed the impugned orders, which are against the very intent of the law. 18. On the same analogy on which the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 was enacted, earlier Legislature had enacted Sacked Employees (Re- instatement) Act, 2010 for the sacked employees of Federal Government. However, this Court in the recent judgment reported at Muhammad Afzal Vs. Secretary Establishment (2021 SCMR 1569) has declared the Sacked Employees (Re-instatement) Act, 2010 to be ultra vires the Constitution by holding as under:- “Legislature had, through the operation of the Act of 2010, attempted to extend undue benefit to a limited class of employees---In terms of the Act of 2010 upon the 'reinstatement' of the 'sacked employees', the 'status' of the employees currently in service was violated as the reinstated employees were granted seniority over them---Legislature had, through legal fiction, deemed that employees from a certain time period were reinstated and regularized without due consideration of how the fundamental rights of the people currently serving would be affected---Rights of the employees who had completed codal formalities through which civil servants were inducted into service and complied with the mandatory requirements laid down by the regulatory framework could not be allowed to be placed at a disadvantageous position through no fault of their own---Act of 2010 was also in violation of the right enshrined under Art. 4 of the Constitution, that provided citizens equal protection before law, as backdated seniority was granted to the 'sacked employees' who, out of their own volition, did not challenge their termination or removal under their respective regulatory frameworks---Given that none of the 'sacked employees' opted for the remedy available under law upon termination during the limitation period, the transaction had essentially become one that was past and closed; they had foregone their right to challenge their orders of termination or removal---Sacked Employees (Reinstatement) Act, 2010 had extended undue advantage to a certain class of citizens thereby CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 14 :- violating the fundamental rights (Articles 4, 9, and 25 of the Constitution) of the employees in the Service of Pakistan and was thus void and ultra vires the Constitution.” 19. This judgment in Muhammad Afzal supra case was challenged before this Court in its review jurisdiction and this Court by dismissing Civil Review Petition Nos. 292 to 302/2021 etc upheld the judgment by holding that “the Sacked Employees (Re- instatement) Act, 2010 is held to be violative of inter alia Articles 25, 18, 9 and 4 of the Constitution of Islamic Republic of Pakistan, 1973 and therefore void under the provisions of Article 8 of the Constitution.” The bare perusal of the Preamble of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 shows that since the Federal Government had passed a similar Act namely Sacked Employees (Re-instatement) Act, 2010, the Government of KPK following the footprints of Federal Government also passed the Act of 2012. It would be in order to reproduce the relevant portion of the Preamble, which reads as under:- “Whereas the Federal Government has also given relief to the sacked employees by enactment; And Whereas the Government of the Khyber Pakhtunkhwa has also decided to appoint these sacked employees on regular basis in the public interest” 20. The term 'ultra vires' literally means "beyond powers" or "lack of power". It signifies a concept distinct from "illegality". In the loose or the widest sense, everything that is not warranted by law is illegal but in its proper or strict connotation "illegal" refers to that quality which makes the act itself contrary to law. Constitution is the supreme law of a country. All other statutes derive power from the constitution and are deemed subordinate to it. If any legislation over-stretches itself beyond the powers conferred upon it by the constitution, or contravenes any constitutional provision, then such laws are considered unconstitutional or ultra vires the constitution. When two laws are enacted for the same purpose though in different jurisdictions and one of the same has been declared ultra vires the Constitution by the Apex Court of the country, then according to the dictates of justice, the other enacted on the same analogy also looses its sanctity and ethically becomes null and void. However, at this stage, we do not want to comment on this aspect of the matter CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 15 :- in detail. Even if we keep aside this aspect of the matter, as discussed in the preceding paragraphs, there is nothing available on the record, which could favour the respondents. 21. So far as the argument of Hafiz S.A. Rehman, learned Sr. ASC that as factual controversy is involved, these appeals are liable to be dismissed is concerned, even on this point alone the impugned judgments are liable to be set aside because it is settled law that superior courts could not engage in factual controversies as the matters pertaining to factual controversy can only be resolved after thorough inquiry and recording of evidence in a civil court. Reliance is placed on Fateh Yarn Pvt Ltd Vs. Commissioner Inland Revenue (2021 SCMR 1133). Admittedly, the learned High Court while passing the impugned judgments had went into the domain of factual controversy, which was not permissible under the law. We have noticed that in Civil Appeal No. 1213/2020 although the respondents had filed the civil suit but they were not appointed on regular basis and most of them do not have the required qualification/experience at the time of their appointment. Learned counsel had stated that no question of law of public importance within the meaning of Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, is involved in these appeals. However, this argument of the learned counsel is misconceived. The question of applicability of Article 212(3) of the Constitution arises only when any party has approached this Court against the judgment passed by the Federal Service Tribunal but except Civil Appeal Nos. 1218 to 1220/2020 same is not the case here, therefore, this has no relevance in the present proceedings. Even in the aforesaid Civil Appeals, the respondents were neither regular employees nor they had the requisite qualification/experience at the time of their appointment nor had they filed the application within thirty days within the purview of Section 7 of the Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, therefore, as discussed in the preceding paragraphs, the learned Service Tribunal could not have directed for their reinstatement. 22. Mr. Fida Gul, learned counsel for the respondents in Civil Appeal No.1230/2019 had contended that both the respondents were appointed on regular basis in Khyber Agency at CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 16 :- the relevant time, had filed the application within time and had the requisite qualification, therefore, they deserve to be reinstated in service. However, we have noticed that they were Agency Cadre (FATA) employees. The Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012 was applicable to the Provincial Employees of KPK as explained in para 2(b) & (e) of the Act and has never been extended to FATA. According to Article 247 of the Constitution of Islamic Republic of Pakistan, 1973, the Provincial Assembly of Khyber Pakhtunkhwa could not legislate for FATA. We have noted that only the residents of Khyber Agency were eligible to be appointed but it is a fact that both the respondents were residents of Charsadda/KPK. Even otherwise, we have found that respondent Sajjad Ahmad was initially appointed as Mate (BS-02) in the office of Chief Engineer (FATA) and was subsequently promoted to the post of Worker Superintendent (BPS-09) but according to the method of recruitment, the post of Worker Superintendent was required to be filled in by initial appointment and not by promotion amongst the Mate, therefore, his promotion was irregular. As far as respondent Amir Ilyas is concerned, he was appointed as Store Munshi in FATA but we have been informed that the Stores were closed in FATA on 26.11.1992, therefore, his subsequent appointment as Store Munshi on 26.12.1995 was irregular. 23. We have found that so far as the case of the respondent Asmatullah in Civil Appeal No. 1227/2020 is concerned, the same is different. Although, he was initially appointed as Security Sergeant in BPS-05 for a period of six months by the then Agricultural Engineer, DI Khan but subsequently, he was regularized against the post of Crank Shaft Grinder (BPS-05) vide order dated 02.04.1996. He had the requisite qualification/experience and had also applied for reinstatement on 09.10.2012 i.e. within thirty days of the commencement of Khyber Pakhtunkhwa Sacked Employees (Appointment) Act, 2012, therefore, to his extent the impugned judgment is liable to be maintained. 24. For what has been discussed above, all the appeals except Civil Appeal No. 1227/2020 are allowed and the impugned judgments are set aside. As far as Civil Appeal No. 1227/2020 is concerned, the same is dismissed. CIVIL APPEALS NO.759/2020, 1448/2016, 1483/2019, 760, 761, 1213 TO 1230/2020 -: 17 :- 25. Before parting with the judgment, we observe with concern that in a number of cases the statutory departments, due to one reason or the other, do not formulate statutory rules of service, which in other words is defiance of service structure, which invariably affects the sanctity of the service. It is often stressed by the superior courts that framing of statutory rules of service is warranted and necessary as per law. It is invariably true that an employee unless given a peace of mind cannot perform its functions effectively and properly. The premise behind formulation of statutory rules of service is gauged from Articles 4 and 9 of the Constitution of Islamic Republic of Pakistan, 1973. An employee who derives its employment by virtue of an act or statute must know the contours of his employment and those niceties of the said employment must be backed by statutory formation. Unless rules are not framed statutorily it is against the very fundamental/structured employment as it must be guaranteed appropriately as per notions of the law and equity derived from the Constitution being the supreme law. CHIEF JUSTICE JUDGE JUDGE Islamabad, the Approved For Reporting Announced on 28.01.2022 Khurram

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, HCJ Mr. Justice Amir Hani Muslim Mr. Justice Iqbal Hameedur Rahman Civil Appeals No.760 to 765 of 2016. (on appeal from judgment of High Court of Sindh, Karachi dated 10.2.2016, passed in C.Ps No.D-540 to 543, 419 & 468/2016) The Province of Sindh through Chief Secretary, etc Appellants Versus Muttahida Qaumi Movement (MQM), etc (in CA-760 & 761/16) Pakistan Muslim League (Functional), etc (in CA-762 & 763/16) Pakistan Muslim League (N), etc (in CA-764/16) Jam Abdul Karim Bijar, etc (in CA-765/16) Respondents For the appellants: Mr. Farooq H. Naek, Sr.ASC. Mr. Mukesh Kumar Karara, Addl.A.G. Sindh. Raja Abdul Ghafoor, AOR. For the respondents: Dr. Muhammad Farogh Naseem, ASC. (in CA-760 & 761/16) a/w Mr. Waseem Akhtar, in person. & For respondent No.1 (in CA-762-763/16) For the applicant: Raja M. Ibrahim Satti, Sr. ASC (CMA-1758/16) Mr. Mubeen-ud-Din Qazi, ASC (CMA-2256/16) For respondent No.9: Dr. Babar Awan, ASC. (in CA No.760/16) Ch. Akhtar Ali, AOR. a/w Mr. Saeed Ghani, in person. For ECP: Mr. Babar Yaqoob Fateh Muhammad, Secretary Other respondents: N.R. On Court Notice: Mr. Muhammad Waqar Rana, Addl.AGP. Mr. Shakeel-ur-Rehman Khan, A.G Punjab. Mr. Abdul Latif Yousafzai, A.G KPK. Mian Abdul Rauf, A.G. Islamabad. Mr. Ayaz Swati, Addl.A.G Balochistan. Dates of hearing: 4th, 5th, 6th, 7th, 12th and 14th April, 2016. ORDER Arguments in these connected appeals were heard on several dates of hearing, during which, on 12.4.2016, some suggestions were also exchanged between the learned ASCs for the appellant and respondents CA-760/2016, etc 2 No.1, 3 and 9. In response to it, following written formulations have been sent today by Dr. Muhammad Farogh Naseem, learned ASC. “Formulation and Written Arguments on behalf of MQM and PML(F). Further to write-up dated 6.4.2016 and the Addendum dated 7.4.2016 the Respondents are filing the present 2nd Addendum. 2. The undersigned appears on behalf of MQM and PML(F), whose instructions are as follows:- a) with regard to the issue of youth seats, neither MQM nor PML(F) filed any petition in the High Court and hence they are not aggrieved on this issue. b) with regard to women seats, both MQM and PML(F) are also neutral with regard to the percentage of the seats. 3. Both MQM and PML(F) are of the considered view that all indirect elections in the Local government elections, whether they pertain to Mayors, Deputy Mayors, Chairmen and Vice Chairmen should be conducted through secret ballot and not through show of hands. Also no bureaucratic transfer should be made by the government except upon permission from the ECP, after the announcement of the elections. 4. The distinction attempted to be brought about by the Appellant that the indirect elections for Mayors, Deputy Mayors, Chairmen and Vice Chairmen are separate elections is incorrect. All elections to the Local Government are part and parcel of each other, as one leads to another. It is settled law that election starts from the first step and includes all subsequent steps till the culmination. Hence, the law which was applicable on the first date of the announcement of elections i.e. 25.8.2015 (reference is invited to para 4 of the undersigned’s first write- up) will be applicable right till the end when the elections of Mayors, Deputy Mayors, Chairmen and Vice Chairmen so also the reserved seats would culminate.” 2. After hearing the learned ASCs for the parties at length, for the reasons to be recorded separately, these appeals are partly allowed in the following terms:- (i) The amendment brought into effect by the Province of Sindh vide Sindh Local Government (Third Amendment) Act, 2015 (Sindh Act No.XXXVIII of 2015) with effect from 25.8.2015, as regards introduction of 05 percent reserved seats for “Youth” and increase in the number of reserved seats for women from 22 percent to 33 percent, is held to be validly legislated; thus, to remain operative. CA-760/2016, etc 3 (ii) With the consent of the appellant and respondents No.1, 3 & 9, all the reserved seats as prescribed under section 18 shall be filled up in terms of section 18A of the Sindh Local Government Act, 2013, which will be revived and such amendment will be brought into effect by the appellant immediately. In case requisite legislative amendment is not made within two weeks, these seats shall be filled up in the manner as otherwise prescribed by law. (iii) The elections for the posts of Mayor, Deputy Mayor, Chairman and Vice Chairman are to be held under the Constitution and the law i.e. the Sindh Local Government Act, 2013, therefore, it is within the competence of the Sindh Government to legislate law to hold such elections either through show of hands or secret ballot. However, in the present case, since such amendment has been brought into effect under section 18 (ibid) on 18.1.2016, after the announcement of Election Schedule on 26.8.2015, therefore, such amendment is of no legal effect, and as per the Sindh Act No.XXXVIII of 2015, the ensuing elections for these posts will be held through secret ballot. (iv) All notifications regarding transfers and posting of bureaucrats issued by the appellant after the date of announcement of Election Schedule for Sindh Local Bodies i.e. 30.5.2015, without prior approval from Respondent No.6, the Election Commission of Pakistan, are declared to be without jurisdiction and of no legal effect. (v) The Election Commission of Pakistan shall ensure completion of remaining election process of local bodies in Sindh for the reserved seats as well as for the office of Mayor, CA-760/2016, etc 4 Deputy Mayor, Chairman and Vice Chairman within 60 days from today. 3. The impugned judgment of the High Court is accordingly modified in the above terms. 4. A copy of this order be sent through Fax to the Secretary, Election Commission of Pakistan; Chief Secretary, Government of Sindh, and other concerned authorities for their information and compliance. Announced. Islamabad, 15th April, 2016. Chief Justice Not approved for reporting. تﻗادﺻ Chief Justice Judge Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Civil Appeal No.774/2013 (On appeal from the judgment dated 16.5.2013 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No.100 of 2005) Phul Peer Shah ….Appellant VERSUS Hafeez Fatima ….Respondent For the appellant: Syed Qalb-e-Hassan Shah, ASC Syed Rifaqat Hussain Shah, AOR For the respondents: Barrister Imran Hassan Ali Ch. ASC Mr. Ahmed Nawaz Ch. AOR Date of hearing: 19.4.2016 JUDGMENT Dost Muhammad Khan, J.— Through the instant appeal, the appellant, Phul Peer Shah has questioned the legality and legitimacy of the judgment dated 16.5.2013 passed by the learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby, Revision Petition No.100 of 2005 filed by the respondent, Mst. Hafeez Fatima was accepted and her suit was decreed after setting aside the judgments & decrees of the Trial Court dated 1.7.2004 and that of the District Appeal Court/ADJ Chakwal dated 26.10.2004. We have heard Syed Qalb-e-Hassan Shah, learned ASC for the appellant and Barrister Imran Hassan Ali Chaudhry, learned ASC for the respondent and have carefully gone through the record, the impugned judgments of the Trial Court and the District Appeal Court as well as the evidence on record. CA 774/13 2 2. The epitome of the controversy is that the appellant claimed, having had purchased the suit property measuring 56-K,16-M in Patwar Circle ‘Choa Saiden Shah’ for sale consideration of Rs.2,60,000/- in presence of the witnesses i.e. DW-4 and DW-5 and that, the sale was given the colour of device of “Hiba-bil-Iwaz” to avoid of any pre-emption suit by the adjacent owners of the land. 3. Admittedly the respondent is a rustic old, illiterate widow and of reasonably advanced age. None of the witnesses of the so called sale transaction in any manner was acquainted with the lady much less related, rather they have close association and attachment with the appellant. It is alleged that the respondent lady reported the transaction to the ‘Moza Patwari’, who recorded the transaction in the ‘Patwari Daily Diary’ then mutation No.4021 was entered and it is further alleged that the same was attested by the Revenue Officer on 18.12.1993. In this way, the respondent lady was deprived of her entire land which was managed and cultivated by her tenants. 4. After getting knowledge of the said event, the respondent lady filed a suit on 31.10.1996 wherein she has alleged that naked fraud was committed upon her and in a fraudulent manner the land was transferred from her name without her consent, knowledge and will and without consideration and even if it is assumed to be so, then she is entitled to revoke the same. After filing written statements, contesting the suit by the appellant, the Trial Court held the trial on the wrong issues framed and then dismissed the suit. The same was the fate of the appeal filed by the respondent lady as stated above. However, the learned Judge in Chamber of the High Court set at naught both the judgments and decrees of the two courts below on the ground that the same were based on misreading and gross non- CA 774/13 3 reading of material evidence and mis and non-application of correct law to the established facts, causing serious miscarriage of justice. 5. Learned ASC for the appellant vehemently argued at considerable length that it is established principle of law that concurrent findings of two courts below be considered sacrosanct and not amenable to limited revisional jurisdiction of the High Court. He urged that no fraud was committed upon the respondent lady and because she has taken two divergent pleas, as in the first instance she has denied to have entered into any such transaction but in the same breath in paras- 16 and 17 of the plaint she opted to revoke the gift even if it is proved and this vacillating conduct of the lady speaks volumes about her conduct on account of self clashing pleas taken by her and thirdly, the appellant has established his case through overwhelming evidence by producing all the witnesses who were present at the time of initial transaction and then at the time of attestation of mutation, besides the revenue officer of the circle and the former ‘patwari’ who had entered the mutation and report in the ‘Daily Diary’, therefore, there was no occasion for the learned Judge in the High Court to interfere with the well reasoned judgments of the two courts below based on concurrent findings of facts, reached at after proper appraisal and re-appraisal of evidence on record. He also relied on the same case laws, which were cited before the learned Judge in the High Court during the course of arguments. 6. To the contrary, the learned ASC for the respondent lady urged with considerable vehemence that no two opinions can be formed about the established fact that the poor lady i.e. the respondent was having only one mother, who too was old enough, aged about 85 years or more. How, the receipt of transaction was CA 774/13 4 obtained from the respondent lady, more so when the description of the property i.e. ‘Khasra numbers’, ‘Khata numbers’ the area and even the ‘Mozah’ in which it is situated has not been mentioned therein. 7. Again, on the basis of unfounded and fallacious plea that to ward off right of preemption or filing of any preemption suit by the owners of the adjacent property in the mutation the transaction was given the colour of Hiba-bil-Iwaz. This by itself speaks volumes about the fraud because in S.2(d) of the Punjab Preemption Act, 1991, sale has been defined as follows:- “d. “sale” means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of ‘Hiba bil-Iwaz’ or with ‘Hiba ba shart-ul- Iwaz’.” In view of the above legal provision this plea, taken by the appellant is absolutely unsound and is fallacious as it does not stand to reason. 8. In a case of such transaction with old, illiterate/rustic village ‘Parda Nasheen’ lady onus to prove the transaction being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property, the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree. Amongst this condition, the pre-dominantly followed are as follows:- “(i) That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; CA 774/13 5 (ii) that she was having independent advice from a reliable source/person of trust to fully understand the nature of the transaction; (iii) that witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her; (iv) that the sale consideration was duly paid and received by the lady in the same manner; and (v) that the very nature of transaction is explained to her in the language she understands fully and she was apprized of the contents of the deed/receipt, as the case may be.” 9. The most intriguing part of the so called transaction is that the original mutation containing the final order of attestation of the mutation by the Circle Revenue Officer was never deposited in the central office of ‘Qanoongo’ nor it was received because there was no entry made in the register, maintained for that purpose in the Central Office of the District or Saddar ‘Qanoon-go’. Only ‘Partt Patwar” was produced at the trial containing no details about the nature of the transaction, payment of sale consideration, presence of the witnesses attesting the same and also no order of the Revenue Officer of the Circle, attesting the mutation was there on the same. 10. Under the law of evidence no secondary evidence can be led unless it is proved to the satisfaction of the trial Court that the original has been lost or destroyed or it was in possession of the opposite party and after serving due notice, the opposite party refused to produce the same. Without the permission of the Trial Court, this secondary evidence i.e. “Partt Patwar” of the mutation was brought on record, which is inadmissible and of no help whatsoever to the appellant. CA 774/13 6 11. The Trial Court committed serious illegality by placing the onus of proof on the respondent lady with regard to the transaction of gift because after clear denial by her and because the appellant was the beneficiary of the mutation/transaction, heavy burden of proof was on him and the same should have been placed on him instead of the poor lady because in a transaction of this nature a mere denial by the lady would shift the burden to the male beneficiary of the transaction. Framing of wrong issues and shifting of onus of proof to the lady landed the trial Court and the District Appeal Court in a field of illegalities and why they have drawn wrong conclusions therefrom. 12. It is century old principle of law, which is old as hills are, that mutation by itself is not sufficient to prove the transaction but it must be independently proved through cogent, reliable and convincing evidence and more stringently in the case of illiterate ‘Parda Nasheen’ lady. 13. In our male dominated society where the female legal heirs are consistently deprived even of their ‘Sharai’ shares in inheritance matters like sisters and mother, the principle of caution in protecting the legitimate rights of the illiterate/rustic village lady, must be applied vigorously and rigidly. 14. In the instant case, the respondent, an old lady, was having only one aged mother, who was dependent upon her and was having no male blood relative to give proper advice, protecting her rights at the time of the disputed transaction thus, she was vulnerable and fully exposed to any fraud because the appellant was a distant collateral who exploiting the ignorance of a defenceless lady, conveniently deceived her under self assumed and ill conceived design CA 774/13 7 that she would not be able to bring a law suit against him thus, managed all the things in quick succession and then with his connivance the revenue staff destroyed the original mutation because the respondent has clearly denied that she had appeared before the Revenue Officer at the time of attestation of the questioned mutation. This was the only transaction in the ‘Patwar Circle’ of which the original mutation was intriguingly missing as no evidence has been brought on record that any other mutation relating to other transaction in this Circle also went missing like the present one thus, the only inference would be that it was deliberately destroyed so to cause disappearance of evidence because in case the original mutation was brought on record then, the question of identification of thumb impression through fingerprints expert would have become essential and in that case no one else but the appellant would have been the loser. 15. Even the witnesses produced, have given conflicting statements about the place and time of the transaction. Who was the scribe of the receipt obtained from the lady, is another begging question, looks askance for which the appellant has no reply, much less plausible to give. 16. This Court in the case of Ghulam Ali vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), after taking judicial notice of the plight of the females in a male dominated society has laid down comprehensive guidelines for all Courts and authorities to follow in such cases. So much so that even the hopelessly time barred suits were decreed and it was held that the females in our society are neither supposed nor they are given any role, much less a decisive one to play in the management and receiving the benefits from the CA 774/13 8 property in which they become co-sharers but the male members of the family dominate the entire affairs to maintain, manage or to dispose of such properties. 17. The evidence furnished by the appellant is not upto the required standard, rather it is replete with infirmities, both factual and legal and because the witnesses have given conflicting statements therefore, the impugned transaction with the respondent lady can be safely held to be the result of fraud and deception, practiced upon her exploiting her defenceless and illiterate status. 18. For the foregoing reasons, we are of the considered view that the learned Judge of the High Court was absolutely justified in setting at naught the judgments and the decrees of the two Courts below, which in our view too, were based on gross misreading and non- reading of material evidence and also on wrong application of principle of law. The required care and caution was not observed while making appraisal of evidence and legal aspects of the case therefore, the concurrent findings were clearly amenable to the revisional jurisdiction of the High Court because gross illegalities were committed in the course of trial and appeal proceedings due to the above reasons. Accordingly, this appeal is found devoid of legal merits and is dismissed with costs throughout. Judge Judge Islamabad, the 19th April, 2016 ‘Nisar/- ‘Approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE KHILJI ARIF HUSSAIN Civil Appeals No. 77-78 of 2015 (Against the judgment dated 16.12.2014 passed by the Peshawar High Court in WP No.1255-P/2014) Professor Dr. Razia Sultana Govt. of K.P. thr. Chief Secretary, Peshawar etc (C.A.No.77/15) (C.A.No.78/15) …Appellants Versus Professor Dr. Ghazala Yasmeen Nizam etc. (C.A.No.77/15) (C.A.No.78/15) Respondents For the Appellant (in CA 77/15) (in CA 78/15) : Qazi Muhammad Anwar, Sr. ASC. Syed Rifaqat Hussain Shah, AOR. Mr. Waqar Ahmed Khan, Addl. A.G. KPK For the Respondent-1 : Qazi Jawad Ehsanullah, ASC (In both cases) Applicants in CMA 1009/15 Both in person. On Court Notice: Ms. Farah Hamid, Secretary, HED, KPK Mr. Hamid Ali, SO Date of hearing: 03.03.2016 ORDER Khilji Arif Hussain, J. These two appeals are arising out of judgment dated 16.12.2014 passed by the Peshawar High Court, Peshawar whereby the learned High Court set-aside the order dated 1.4.2014 passed by the Government of KPK and notification dated 7.4.2014 while declaring as without lawful authority. The matter was CAs 77 & 78 of 2015 2 remanded to the Chief Minister for considering afresh on merits in the light of recommendations by the Search Committee, in accordance with law, by exercising the discretion judicially after affording opportunity to the respondent of being heard. 2. The brief facts, necessary for adjudicating the matter, are that appellant (in civil appeal No.78 of 2015 i.e. Government of KPK through Higher Education Department) advertised the position of Vice Chancellor for Shaheed Benazir Bhutto Women University, Peshawar in the leading national newspapers. In response to said advertisement, various persons filed their applications including the appellant Dr. Razia Sultana and the respondent namely, Professor Dr. Ghazala Yasmeen. As averred in the petition, the Higher Education Department, KPK prepared a merit list of short listed candidates who were going to be interviewed by the Search Committee. As per contentions, according to merit list the respondent was awarded 52 marks whereas the appellant Dr. Razia Sultana was awarded 38 marks. The Search Committee interviewed the short listed candidates and finally three candidates including the appellant Dr. Razia Sultana and respondent Dr. Ghazala Yasmeen were unanimously recommended by the said Search Committee. The Higher Education Department, KPK forwarded these three names to the Chief Minister wherein the respondent’s name appeared at serial No.1 whereas the name of appellant Dr. Razia Sultana appeared at serial No.3. The Chief Minister through order dated 1st April, 2014 recommended the name of appellant Dr. Razia Sultana to be appointed as Vice Chancellor and accordingly, after approval of the Governor/Chancellor, a notification was issued on 7th April, 2014. CAs 77 & 78 of 2015 3 The respondent Dr. Ghazala Yasmeen impugned the said notification dated 7th April, 2014 through Writ Petition No.1255-P/2014 before the learned Peshawar High Court which was allowed in the above terms. Hence, these appeals. 3. We have heard Qazi Muhammad Anwar, Sr. ASC for appellant Dr. Razia Zultana, Mr. Waqar Ahmed Khan, Addl. A.G. for Government of KPK, Qazi Jawad Ehsanullah, ASC and Mr. Waseemuddin Khattak, ASC for respondents. 4. The learned counsel for appellants contended that the process of appointment of Vice Chancellor was undertaken by the authorities concerned in a transparent manner and in this regard through public notice, applications were invited from eligible candidates to submit their CVs. In the said advertisement, eligibility criteria, terms & conditions and evaluation proforma were clearly mentioned for the position of Vice Chancellor. In response to said advertisement, the University received 20 applications which were short listed as per evaluation proforma and after short listing, the eligible candidates were called for interview by the Search Committee. It is contended by the learned counsel for the appellants that the marks allocated to the candidates for the purpose of short listing the eligible candidates has nothing to do with the interview conducted by the Search Committee consisting of highly capable and responsible persons. The said Committee after interviewing the candidates as also taking into consideration their academic background, professional quality and leadership qualities etc., unanimously recommended the three names. The Chief Minister, in exercise of his discretion recommended the appellant Dr. Razia Sultana which was thereafter CAs 77 & 78 of 2015 4 approved by the Government/Chancellor under section 12(1) of the Khyber Pakhtunkhwa Universities Act, 2012. It is contended that the discretion exercised by the Chief Minister and the Government/Chancellor for selecting the name of appellant Dr. Razia Sultana was in accordance with law and after taking into consideration all the aspects relevant for the position. It is further contended that the respondent has failed to place on record any malice on the part of the Chief Minister and the Governor/Chancellor while selecting the name of appellant Dr. Razia Sultana out of the three names as recommended by the Search Committee. 5. On the other hand, the learned counsel for the respondent vehemently argued that the respondent secured highest marks as per evaluation proforma and accordingly, if for any reason, her name was not recommended by the Chief Minister and the Governor/Chancellor, they ought to have give reasons for the same. 6. We have gone through the entire record minutely and carefully considered the submissions of learned counsel for the parties. From perusal of record, it appears that respondent Dr. Ghazala Yasmeen averred in her memo of petition before the High Court that she secured higher marks than appellant Dr. Razia Sultana and as such if, for any reasons, the Chancellor/Governor had decided not to appoint her, he ought to have interviewed her and give reasons for her supersession. In order to appreciate the contention raised by the respondent, we have carefully gone through the record and found that the contentions of the respondent have no basis. The marks were allocated to the candidates on the basis of evaluation proforma for the purpose of short listing the candidates CAs 77 & 78 of 2015 5 who applied for the position of Vice Chancellor. On the basis of these marks, the Search Committee, constituted under section 12(2) of the Khyber Pakhtunkhwa Universities Act, 2012, interviewed all the fifteen (15) out of twenty (20) candidates. The Search Committee, consisting of eminent professionals, has not allocated any marks to any candidate as is evident from the minutes of the said Committee. The Search Committee, after a lengthy interview consisting of questions relating to University administration, professional and academic abilities etc. unanimously recommended three names out of which the Chancellor/Governor, in exercise of his powers under section 12(1) of the Khyber Pakhtunkhwa Universities Act, 2012, appointed the appellant as Vice Chancellor. 7. An administrative order is a final disposition of a matter before an administrative agency; product of an administrative adjudication, such order may be declaratory or it may contain an affirmative or negative command, whereas administrative forum while deciding rights has to take decisions by giving justiceable reasons of the same. 8. The role assigned to the judiciary in a tripartite allocation of power is to assure that the Courts will not intrude into an area committed to the other branches of government. 9. In a democratic society, to have the final say whether the action of each branch is within the constituent grant is of judiciary. However, the judicial review of the propriety of administrative decision best serves “the public interest” are said to be question– beginning. The purpose of judicial review are first, to check abuse or detournement of such power; second, to ensure to citizens an CAs 77 & 78 of 2015 6 impartial determination of their disputes with officials; and third, to protect them from unauthorized encroachment on their rights and interest. 10. In the instant matter, absolute power of appointment was not given to authorities i.e. the Chancellor/Governor to appoint any person of their choice but the Search Committee consisting of eminent professionals was constituted who after detailed scrutiny of the credentials and length interview of each candidate, recommended three names which, as per parawise comments, was not on the basis of any preference and the Chancellor/Governor, on the advice of the Chief Minister, appointed one candidate out of the three candidates in exercise of his powers, as mentioned above. Section 12(1) of the Khyber Pakhtunkhwa Universities Act, 2012 gives discretion to the Chancellor/Governor to appoint anyone out of the candidates recommended by the Search Committee on the advice of C.M. The only allegation against the appellant (Dr. Razia Sultana) is that she belongs to the constituency of the Chief Minister but without any supporting material, this cannot be termed as an act of mala fide. 11. Before we conclude, we may mention here that the principle laid down in the case of Munir Hussain Bhatti vs. Federation of Pakistan (PLD 2011 SC 407), is not attracted to the facts of these appeals as per the 19th Constitutional Amendment, Parliamentary Committee has to provide the reasons in case the nomination of the Judicial Commission is not accepted by them. Likewise, in the case of Muhammad Yasin vs. Federation of Pakistan (PLD 2012 SC 132), appointment of the person was declared unlawful as he was lacking CAs 77 & 78 of 2015 7 the required qualification and his name for appointment, in the first summary, was also declined by the Prime Minister. 12. In the case of Dossani Travels Pvt. Ltd. Vs. Travels Shop Pvt. Ltd. (PLD 2014 SC 1), while dealing with allocation of Hajj quota to Hajj Group Operators held that it is not the function of the High Court exercising jurisdiction under Article 199 of the Constitution to interfere in policy making domain of the Executive. In the case of Executive District Officer (Revenue) vs. Ijaz Hussain (2011 SCMR 1864), the order of High Court was set-aside whereby the High Court directed that the marks for interview should not exceed 25% of the total marks of selection, held that the Court can neither assume the role of a policy maker nor that of a law maker. 13. In the foregoing circumstances, the appeals are allowed. The impugned judgment dated 16.12.2014 passed by the Division Bench of the learned Peshawar High Court is set-aside. 14. These are the reasons of our short order of even date i.e. 3.3.2016. Chief Justice Judge Judge Islamabad 03.03.2016 A.Rehman Approved for reporting

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appeals are dismissed.” ١٣۔  � �� � ھ� � �ا��� روا۔� � � � �آ م�ا،د٢٨� � ،٢٠١٧ء ؁ )� � ��ا ر�( �را �

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 �� فا�ا � ��ا �ار �ا� روا �آ ���ا �ا� ا� � � فدا� �� ہز� � �  �و ىر�� � � �� �   � �ا� �� � � � �� � تر� �آ � ن�� روا �  م� � �� ۔� �� � �� � �� نزو � روا � � � ىر� �د � � �و ىر�� ا� � � د� و �� � �ا� � � فدا� � �� �اد�ور � � سا �� سا � ترازو  ٢٠١٧/ ٧٨٦۔٧٨٥ ى� �ا�د �ا 6 � � �� �" �� �� � ص�"  � ر� �� � � ل� � روا" �ر�  �ز�"� ر�ا ى��ا� � �� �� غر� � �ز� �� �� ر�،  � � �د سا � � � � � � ور � ن�� و �آ � تر�  ��� د� و �� � �ا� روا ترازو �  � �� � � تر� � �  ۔� �� ماود � نا روا � � � ں� �� � نا ا� � � � تر� � � �او � �ا� نا � � �ز�مز� ��   ا� ۔� � � � ر� �د � رو� �� �ا� ٣  ل� �� ن�� ���٢٠٠٩ � � ل� ق�ا �رد روا � � ؁  � �� �� � �ز�� � �� و ن�� ىزرو ف�  �� � تار�ا �آ � � � � � � � � � � � رد� �ا ِ�ز � �� �� ل�ا � �� �� روا ںوز� �   ۔�آ � � � ن��ر وا �آ ، ى�� ١١۔ ِت�� ��  ں�ود ���� �� �ا �ا�د ى�٧٨٥/ ٢٠١٧  روا٧٨٦ /٢٠١٧ � جر� �� ہ�� � � رو� �� �ا� روا � �� ۔�� �ر را�� ١٢۔ � � ى��ا � ےر� ت��و �� �ر�ہر ٢٨   �ا٢٠١٧� � ىد � �� �  ؁  �د � �ذ � �� �� �ا: “For the reasons to be recorded later, these appeals are dismissed.” ١٣۔  � �� � ھ� � �ا��� روا۔� � � � �آ م�ا،د٢٨� � ،٢٠١٧ء ؁ )� � ��ا ر�( �را �

CA.792-816/2005, etc. 1 IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: Mr.Justice Iftikhar Muhammad Chaudhry, CJ. Mr.Justice Rana Bhagwandas Mr.Justice Javed Iqbal Mr.Justice Abdul Hameed Dogar Mr.Justice Faqir Muhammad Khokhar Mr.Justice Mian Shakirullah Jan Mr.Justice M.Javed Buttar Mr.Justice Tassaduq Hussain Jillani Mr.Justice Syed Jamshed Ali Sr. # Case No. Parties Name On appeal from the judgment of Service Tribunal passed in … Dated…. For the appellant / petioner For Respondents 1 C.A.792-816 of 2005 Muhammad Mubeen us Salam Vs. Federation of Pakistan thr. Secy. M/o Defence Govt. of Pakistan and another Appeal Nos.1023, 1024, 1025, 1027, 1028, 1029, 1031, 1032, 1033, 1034, 1038, 1087, 1088, 1091, 1092, 1094, 1095, 1098, 1099, 1089, 1090, 1096, 1097 and 1011 (R)/CS/2003 Dt.27.11.2004 Mr. Muhammad Akram Sheikh, Sr. ASC a/w Altaf Elahi Sheikh, ASC and Ch. Muhammad Akram, AOR Assisted By: Barrister Kamran Sheikh, Hafiz Arafat Ahmad, ASCs Mr. Makhdoom Ali Khan, Attorney General for Pakistan a/w Raja Muhammad Irshad, DAG and Ms. Naheeda Mehboob Elahi, DAG Raja Abdul Ghafoor,AOR (in CA 792/2005) Hafiz S.A Rehman, Sr. ASC a/w Mr. M.S. Khattak (in CAs 793-816) 2 C.M.A.2208- 2211/2003 in C.R.Ps. 426, 427, 428, 430, 432, 429, 421 & 431 of 2001 Federation of Pakistan Vs. Muhammad Akram Malik Muhammad Qayyum, ASC Mr. M.S. Khattak, AOR Mr. Abdul Hafeez Pirzada, Sr. ASC a/w Mr. Mehr Khan Malik, AOR(in CA 2208-2209, 2211/2003) Mr. Waseem Sajjad, Sr. ASC (CA 2210/03) 3 C.M.Appeal l38- 139/2003 & C.M.Appeal No.47-48/2004 in Const.P.Nil/2003 Hashim Khan & others Vs. S.N.G.P.L & others. Syed Iftikhar Hussain Gillani, Sr. ASC a/w Mr. Mehr Khan Malik, AOR Raja Muhammad Ibrahim Satti, ASC a/w Ijaz Muhammad Khan (CM Appeal 47/04) Mr. Muhammad Akram Sheikh, Sr. ASC, Mr. Mehr Khan Malik, AOR( CM Appeal No.48/04) Mr. M.A. Qureshi, AOR (CA 138-139/03) Not represented in CM Appeals 47, 48/04 5 C.P.305-L/2001 Javed Iqbal Vs. VP/Zonal Chief UBL, etc. Appeal No.310- L/98 dt.30.12.2000 Mian Mehmood Hussain, ASC Mr. Faiz-ur- Rehman, AOR Mr. Shahid Karim, ASC 6 C.P.586-L/2001 Amjad Hameed Vs. Pakistan Postal Services Corp. etc. Appeal No.1751- L/1998 dated 11.1.2001 Khawaja Muhammad Akram, ASC a/w N.R. CA.792-816/2005, etc. 2 Mr. Faiz-ur- Rehman 7 C.P.587-L/2001 Abdul Shakoor Rana Vs. N.B.P. etc. Appeal No.527- L/1998 dated 1.1.2001 Nemo Mian Muhammad Saleem, ASC 8 C.P.643-L/2001 Wasim Anjum Vs. U.B.L, etc. Appeal No. 255- L/98 dated 9.1.2001 P- In Person Mr. Shahid Karim, ASC 9 C.P.647-L/2001 Ali Ahmed Mirza Vs. Pakistan Atomic Energy Commission. Appeal No.672- L/98 dated 26.12.2000 Nemo N.R. 10 C.P.931-L/2001 H.B.L. etc. Vs. Tariq Mukhtar Buttar. Appeal No.866- L/98 dated 9.2.2001 Raja Muhammad Akram, Sr. ASC Mr. M.A. Qureshi N.R. 11 C.P.980-L/2001 M.D. Passco, etc. Vs. Mohammad Nazir Appeal No.1373- L/99 dated 23.2.2001 Mr. Muhammad Akram Khwaja Nemo 12 C.P.998-L/2001 Ms. Khawar Zia Vs. P.I.A. etc. Appeal No.913- L/98 dated 25.1.2001 Nemo Muhammad Sharif Chaudhry, ASC 13 C.P.999-L/2001 Qaiser Hussain Siddiqui Vs. U.B.L. etc. Appeal No.828- L/98 dated 20.2.2001 Mr. Shahid Karim, ASC N.R 14 C.P.1008-L/2001 Mohammad Ashraf Raza Vs. The State Bank of Pakistan, etc. Appeal No.832- L/98 dated 8.2.2001 Mian Habib Elahi, ASC. N.R. 15 C.P.1024-L/2001 & C.P.1069- L/2001 Rao Muhammad Siddique Akhtar Vs. ADBP and others Appeal No.683- L/98 dated 14.2.2001 Mian Mehmood Hussain, ASC Mr. Faiz-ur- Rehman Petitioner in CP 1069/01: Nemo N.R. Mian Mehmood Hussain, ASC Mr. Faiz-ur-Rehman AOR 16 C.P.1065-L/2001 & C.P.1066- L/2001 Ghulam Sarwar Vs. PASSCO and others Appeal No.420-L- 421-L/98 dated 30.1.2001 Mr. Muhammad Jehangir Wahila, ASC Mr. M.A. Qureshi Mr. Muhammad Akram Khawan, ASC Mr. Mehmood-ul- Islam, AOR 17 C.M.A.1439- L/2002 in C.P.1276-L/2001 Agha Shahid Rashid Vs. M.D. PTV and others Appeal No.582- L/98 dated 10.3.2001 Nemo N.R. 18 C.P.1291-L/2001 Liaquat Ali Daultana Vs. The President, National Bank of Pakistan, Karachi and others Appeal No.650- L/98 dated 23.2.2001 Mian Mehmood Hussain, ASC Mr. Faiz-ur- Rehman, AOR N.R. 19 C.P.1491-L/2001 Muhammad Iqbal Vs. The President HBL and others Appeal No. 663- L/98 dated 10.3.2001 Syed Aqa Asif Jehfri, ASC Mr. M.A. Qureshi Mian Abdul Rashid , ASC 20 C.P.1509-L/2001 Muhammad Arshad Butt Vs. Pakistan Engineering Company Ltd. Appeal No.1727- L/98 dated 26.2.2001 P- In Person N.R. 21 C.P.1557-L/2001 NBP and others Vs. Shamoon Khan and another Appeal No.533- L/98 dated 28.2.2001 Mian Qamar uz Zaman, ASC M.A. Qureshi Mr. Faiz-ur-Rehman, AOR 22 C.P.1638-L/2001 Muhammad Rafique Vs. Airport Director Agency and others Appeal NO.661- L/98 dated 22.3.2001 Nemo N.R. 23 C.P.1818-L/2001 Abid Hussain Vs. Appeal No. NIL Mr. Muhammad Mr. S.M. Abdul CA.792-816/2005, etc. 3 ADBP and others (L) CE/2001 dated 2.4.2001 Afzal Sidhu, ASC Wahab, ASC Mr. M.A. Qureshi, AOR 24 C.P.1909-L/2001 Muhammad Anwar Sindhu Vs. The National Bank of Pakistan,etc. Appeal No.2044- L/98 dated 7.5.2001 Mian Qamar uz Zaman,ASC. N.R. 25 C.P.1983-L/2001 Faizullah Khan Vs. Chief Manager State Bank of Pakistan Appeal No. 1416- L/98 dated Mr. Farooq Zaman Qureshi, ASC Mr. Faiz-ur- Rehman, AOR N.R. 26 C.P.2042-L/2001 Muhammad Latif Vs. M.D. PASSCO,etc. Appeal No. 1541(L)/1998 Dated 13.4.2001 Ch. M. Khalid Farooq, ASC Mr. Faiz-ur- Rehman, AOR N.R. 27 C.P.2026-L/2001 Waheed Amjad Malik Vs. U.B.L.etc. Appeal No.1921(L)/1998 Dated 13.4.2001 Mian Mehmood Hussain, ASC Mr. Faiz-ur- Rehman, AOR Mr. Shahid Karim, ASC 28 C.P.2030-L/2001 C.M.Bashir Vs. State Life Corporation of Pakistan,etc. Appeal No.1860(L)/1998 Dated 20.4.2001 Nemo Mr. Sher Zaman Khan, ASC a/w Mr. M.A. Qureshi, AOR 29 C.P.2189-L/2001 Regional Head NBP.etc Vs. Fayyaz Ahmad Bhatti Appeal No.715(R)/1998 Dated 28.4.2001 Mian Qamar uz Zaman, ASC Mr. Ehsan ul Haq Ch. ASC a/w Mr. M.A. Qureshi, AOR 30 C.P.2270-L/2001 Malik Muhammad Azam Vs. The M.D. PASSCO,etc. Appeal No.1040(L)/1998 Dated 28.4.2001 Mian Mehmood Hussain, ASC Mr. Faiz-ur- Rehman, AOR Mr. Muhammad Akram Khawaja, ASC Mr. Mehmood-ul- Islam, AOR 31 C.P.2307-L/2001 Syed Kausar Hussain Shah Vs. The President Institute of Cost and Management,etc. Appeal No.357(L)/1999 Dated 28.4.2001 Nemo Mr. Saleem Baig, ASC a/w Mr. M.A. Qureshi, AOR 32 C.P.2378-L/2001 Humayun Asadullah Vs. National Bank of Pakistan,etc. Appeal No.408(L)/1998 Dated 9.5.2001 Mian Mehmood Hussain, ASC Mr. Faiz-ur- Rehman, AOR Mian Qamar-uz Zaman, ASC 33 C.P.2426-L/2001 & C.P.2495- L/2001 Muhammad Yousaf Vs. The Central Div. State Bank of Pakistan.etc. Appeal No.2426- L/98 & 208-(L) CE/2001 Dated 23.5.2001 Mr. Parvez Inayat Malik, ASC(CP 2426- L/01), Mr. Ghulam Nabi Bhatti, ASC (in CP 2495-l/01) N.R. 34 C.P.2498-L/2001 U.B.L. Vs. Muhammad Rafique Appeal No. 101(L)/1999 Dated 7.6.2001 Mr. Shahid Karim, ASC Mr. Mehmood- ul-Islam, AOR N.R. 35 C.P.2568-L/2001 Muhammad Rafique Vs. The President, NBP.etc. Appeal No.1908(L)/1998 Dated 4.6.2001 Nemo Mr. Zafar Iqbal Chaudhry, ASC 36 C.P.2643-L/2001 U.B.L.etc Vs. Tanvir Ahmed Khan Appeal No.1554(L)/1998 Dated 29.5.2001 Raja Muhammad Akram, Sr. ASC Mr. M.A. Qureshi, AOR N.R. 37 C.P.2769-L/2001 & C.P.2972- P.S.O. Co.Ltd.etc Vs. Syed Ihad Ali Appeal No.1429(L)/1998 Mr. Zafar Iqbal Nemo CA.792-816/2005, etc. 4 L/2001 Shah,etc. & 301(L) CE/1998 Dated 14.7.2001 Chaudhry, ASC 38 C.P.2777-L/2001 Syed Khalid Pervaiz Hussain Shah Vs. The P.I.A. Corp.etc. Appeal No.1403(L)/1998 Dated 9.5.2001 Nemo Mr. Arshad Ali Ch. AOR/ASC a/w Azmatullah Khan, Manager Legal PIA 39 C.P.2951-L/2001 Manzoor Ahmed Vs. PASSCO Ltd. and others Appeal No.984(L)/1998 Dated 28.6.2001 Ch. Khalid Farooq, ASC Mr. Faiz-ur- Rehman, ARO Mr. Muhammad Akram Khawaja, ASC a/w Mr. Mehmood-ul-Islam, AOR 40 C.P.3105-L/2001 Muhammad Siddique Vs. The G.M. Central Tel. Region PTCL, and others Appeal No. 1180(L)/1999 Dated 24.7.2001 Nemo Nemo 41 C.P.3108-L/2001 State Life Insurance Corporation of Pakistan and others Vs. Dr. Afzaal Ahmed Khan W.P. No. 1246/1997 Dated 30.5.1997 Mr. Jehanzeb Khan Bharwana, ASC Mr. Mehmood-ul- Islam, AOR a/w respondent 42 C.P.3173-L/2001 Tasawar Ali Sial Vs. UBL and another Appeal No.1014(L)/1999 Dated 28.7.2001 Mian Mehmood Hussain, ASC Mr. Faiz-ur- Rehman, AOR Mr. Shahid Karim, ASC a/w Mr. Mehmood-ul-Islam, AOR 43 C.P.3218-L/2001 Shafqat Ali Vs. HBL and others Appeal No.1978(L)/1999 Dated 2.8.2001 Nemo Mr. Muhammad Iqbal Khan, ASC 44 C.P.3247-L/2001 & C.P.3248- L/2001 Ghulam Muhammad Vs. Chief Eng. Projects Sui Northern Gas Pipelines Ltd. and others Appeal No. 1845(L)/1998 & 1898(L)/1998 Dated 20.6.2001 Mian Mehmood Hussain, ASC N.R. 45 C.P.3274-L/2001 & C.P.3275- L/2001 Maqsood Ahmed Farooqi Vs. UBL and another Appeal No.982(L)/1999 & 986(L)/1999 Dated 4.8.2001 Mian Mehmood Hussain, ASC a/w (in 3274/01) Rana Muhammad Sarwar, ASC (in 3275/01), Mr. Faiz-ur-Rehman, AOR in both Mr. Shahid Karim Bhatti, ASC Mr. Mehmood-ul- Islam, AOR 46 C.P.3774-L/2001 & C.P.3775- L/2001 Haroon Abbas Shahid Vs. PTCL thr. its M.D.and others Appeal No.1058(L)CS/200 0 & 1059(L)CS/2000 Dated 23.10.2001 Mian Qamar uz Zaman, ASC N.R 47 C.P.3994-L/2001 Abrar Ahmed Khan Alamgir Vs. Pakistan Television Corporation Ltd. thr. Chairman / Secy. and others Appeal No.871(L)/1999 Dated 31.10.2001 P- In Person N.R. 48 C.P.4026-L/2001 & C.P.4027- L/2001 Tehmina Bashir Vs. Chairman PTCL and others Appeal No. 234(L)CS/2001 & 235(L)CS/2001 Dated 25.10.2001 Ps- In Person in both Mr. Gorsi Muhammad din Ch. ASC a/w Mr. Mehmood-ul-Islam 49 C.P.4073-L/2001 Muhammad Aslam Vs. The Chairman PTCL and others Appeal No. 7(L)CS/2001 Dated 31.10.2001 Nemo N.R. 50 C.P.347-K/2001 & C.P.348- Trustees of the Port of Karachi Vs. Appeal Nos. 448 & 531 (K)CE/2000 Mr. Hashmat Ali Habib, ASC in Mr. M.M. Aqil Awan, ASC CA.792-816/2005, etc. 5 K/2001 Lt.Cdr.(Retd) Abdul Narejo and others Dated 5.12.2001 both 51 C.P.1202-L/2002 Abdul Majeed Sh. Vs. The Director (E&D) A.D.B.P., Islamabad and others Appeal No.18(L)/1999 Dated 20.2.2002 Ch. Khalid Farooq, ASC Mr. Faiz-ur- Rehman , AOR Mr. Shahid Karim, ASC a/w Mr. Mehmood-ul-Islam, AOR 52 C.P.1346-L/2002 Abdul Hameed Butt Vs. State Life Insurance Corporation of Pakistan and others Appeal No. 1552(L)CE/1998 Dated 14.3.2002 Nemo Mr. Jehanzeb Khan Bharwana, ASC 53 C.P.1808-L/2002 Nazir Ahmed Nasir Vs. State Life Insurance Corporation of Pakisan and others Appeal No. 104(L)/1999 Dated 18.3.2002 Nemo Mr. Jehanzeb Khan Bharwana, ASC and Mr. Sher Zaman Khan, ASC a/w Mr. M.A. Qureshi, AOR 54 C.P.3094-L/2002 & C.P.3095- L/2002 Muhammad Naeem Vs. The President NBP and others Appeal No. 830(L)CE/1998 Dated 22.5.2002 Mr. Abdul Rehman Siddiquie, ASC Mr. Faiz-ur- Rehman, AOR N.R. 55 C.P.3477-L/2002 Muhammad Arshad Vs. The President UBL and others Appeal No.1571(L)/1998 Dated 2.7.2001 Mr. Mehmood- ul-Islam, AOR Mr. M.A. Qureshi, AOR 56 C.P.3632-L/2002 Muhammad Bashir Vs. The President HBL and others Appeal No.667(L)/1997 Dated 20.8.2002 Mian Mehmood Hussain, ASC a/w Mr. Faiz-ur- Rehman, AOR Nemo 57 C.P.3797-L/2002 Abdul Basit Vs. The President N.B.P. and others Appeal No.1529(L)/1998 Dated 17.9.2002 Mr. Faiz-ur- Rehman, AOR Mr. Mehmood-ul- Islam, AOR 58 C.P.3807-L/2002 Ghulam Nabi Vs. ADBP Appeal No. 1811(L)/1998 Dated 21.9.2002 Ch. Khalid Farooq, ASC Mr. Faiz-ur- Rehman, AOR N.R. 59 C.P.4206-L/2002 Zaheer Babar Vs. Sui Northern Gas Pipelines Ltd. and others Appeal No. 323(L)/1999 Dated 5.11.2002 Mr. Mehmood A. Sheikh, ASC Mr. M.A. Qureshi, AOR 60 C.P.57-L/2003 Irshad Ahmed Rehmani Vs. M.D. PASSCO and two others Appeal No. 1764(L)CE/1998 Dated 10.9.2002 Ch. Khalid Farooq, ASC a/w Mr. Faiz-ur- Rehman, AOR Mr. M.A. Qureshi, AOR 61 C.P.180-L/2003 S. Manzoor Hussain Shah Vs. Federation of Pakistan, etc Appeal No. 1210(L)/1999 Dated 22.11.2002 P- In Person N.R. 62 C.P.215-K/2003 Syed Ahmed Naqvi Vs. National Engineering Service Pakistan (Pvt) Ltd. and another Appeal No. 843(K)CE/2000 Dated 21.02.2003 P- In Person N.R. 63 C.P.276-L/2003 PTCL thr. its G.M., etc Vs. Ali Ahmed Appeal No. 721(L)/1999 Dated 12.12.2002 Ch. Muhammad Sharif, ASC N.R. 64 C.P.284-K/2003 Khurshid Alam Qureshi Vs. H.B.F.C. and others Appeal No. 1048(K)/1999 Dated 6.3.2003 Mr. A.S. K. Ghori, ASC Raja Sher Muhammad Khan, AOR 65 C.P.293-L/2003 Aftab-ur-Rehman Meer Vs. President HBL, etc Appeal No. 805(L)/1999 Dated 12.12.2002 P- In Person N.R. 66 C.P.329-L/2003 Azhar Abbas Bokhari Vs. Asst. Engineer, etc Appeal No. 431(L)/1999 Dated 11.12.2002 Nemo N.R. CA.792-816/2005, etc. 6 67 C.P.401-K/2003 Ex-Havaldar Tassadaq Hussain Vs. Federal Service Tribunal and another Appeal No. 279(K)CS/2002 Dated 19.3.2003 P- In Person Raja Muhammad Irshad, DAG a/w Ch. Akhtar Ali, AOR 68 C.P.441-L/2003 & C.P.442- L/2003 Muhammad Akram Aftab Vs. Sui Northern Gas Pipelines Ltd., etc Appeal Nos. 711(L) & 712(L)/1999 Dated 23.12.2002 Mr. Faiz-ur- Rehman, AOR Mr. M.A. Qureshi, AOR 69 C.P.544-L/2003 Mohammad Ismail Qureshi Vs. HBL, etc Appeal No. 1182(L)/1999 Dated 20.2.2003 Mr. Faiz-ur- Rehman, AOR N.R. 70 C.P.584-K/2003 Dr.Sahib Khan Kheshkhely Vs. Federation of Pakistan M/O Industries and Production and others Appeal No. 118(K)CE/2003 Dated 29.5.2003 Nemo N.R. 71 C.P.654-L/2003 Gul Nawaz Khan Vs. HBL, etc Appeal No. 999(L)/1999 Dated 16.1.2003 P- In Person Mian Muhammad Saleem, ASC 72 C.P.712-L/2003 Mian Javed Akhtar Vs. State Life Insurance Corp., etc Appeal No. 38(L)CE/2002 Dated 11.12.2002 Nemo Mr. Jehanzeb Bharwana, ASC 73 C.P.735-L/2003 Abdul Sattar Vs. Passco thr. its M.D., etc Appeal No. 724- L/1999 Dated 23.1.2003 P- In Person N.R. 74 C.P.884-L/2003 Muhammad Anwar Butt Vs. HBL, etc Appeal No. 208(L)CE/2002 Dated 17.2.2003 P- In Person N.R. 75 C.P.911-K/2003 Pakistan Reinsurance Co.Ltd. Vs. Humayun Zia and another Appeal No. 1158(K)/1998 Dated 16.10.2003 Nemo N.R. 76 C.P.912/2003 & C.P.529- 531/2004 Gulzar Ahmad Soomro Vs.Sui Southern Gas Co.Ltd. Appeal Nos. 40(R)CE/2003, Dated 26.3.2003 Appeal No. 1328(K)/1999, 327(CE)/2001 & 328(CE)/2001 Dated 4.11.2003 Khawaja Muhammad Farooq, ASC a/w petitioner (in 912/03) Malik Muhammad Qayyum, ASC (529-531/04) Ejaz Muhammad Khan, AOR (in 912/03) Khawaja Muhammad Farooq, ASC, Sheikh,Riaz Ul Haq, ASC, Sardar Liaqat Ali, Ch. Arshad Ali (in CP 520-231) 77 C.P.982-L/2003 Abdul Malik Vs. Vice President & Zonal Chief, HBL, etc Appeal No. 223(L)/1999 Dated 25.3.2003 Nemo N.R 78 C.P.1025-L/2003 Muhammad Adnan Hanif Vs. PTCL thr. its Chairman, etc P- In Person N.R 79 C.P.1112-L/2003 Khizer Hayat Vs. HBL, etc Appeal No.69(L)CE/2002 Dated 26.2.2003 Mr. Muhammad Riaz Lone, ASC N.R. 80 C.P.1166-L/2003 Abdul Majeed Siddiqui Vs. The President HBL, etc Appeal No. 1595(L)/1998 Dated 24.2.2003 P- In Person N.R. 81 C.P.1267/2003 Pakistan State Oil Appeal No. Mr. Zafar Iqbal N.R. CA.792-816/2005, etc. 7 (D.B) Co.Ltd and another Vs. Madah Khan Mehsud 177(P)CE/2001 Dated 29.4.2003 Chaudhry, ASC 82 C.P.1271- 1272/2003 State Life Insurance Corporation of Pakistan and others Vs. Muhammad Munir Chishti Appeal Nos. 1017(R) CE/2001 & 1018 (R) CE/2001 Dated 23.4.2003 Mr. Ibadur Rehman, ASC Mr. Ejaz Muhammad Khan, AOR N.R. 83 C.P.1282- 1283/2003 United Bank Ltd . and others Vs. Khan Muhammad Shah Appeal Nos. 204 (P) & 205 (P)/1998 Dated 5.7.2001 Mr. Nafees Ahmad Siddiqui, ASC Mr. M.A. Zaidi, AOR N.R. 84 C.P.1288-L/2003 Waqar Ahmed Khan Vs. PTC thr. its G.M. and others Appeal No. 205(L)/1999 Dated 21.4.2003 Nemo Gorsi Muhammad Din Chaudhry, ASC, Ch. Muhammad Sharif, ASC a/w Mr. Mehmood-ul-Islam, AOR 85 C.P.1312/2003 Divisional Engineer,Telegraphs, Batkhela and another Vs. Jehani Room Appeal No. 25(P)CE/2002 Dated 21.4.2003 Hafiz S.A Rehman, Sr. ASC Mr. Mehr Khan Malik Mr. Abdul Rehman Siddiqui, ASC Mr. Arshad Ali Ch 86 C.P.1314-L/2003 Khalil Ahmed Vs. Zonal Head NBP, and others Appeal No. 1544(L)/1998 Dated 17.3.2003 Mr. Faiz-ur- Rehman, AOR Mr. Mehmood-ul- Islam, AOR 87 C.P.1339/2003 Habib Bank Ltd. and others Vs. Muhammad Yousuf Appeal No. 106(Q)CW/2001 Dated 30.3.2003 Mr. Shahid Anwar Bajwa, ASC Mr. M.S. Khattak, AOR N.R 88 C.P.1415/2003 (C.O) Syed Tassawar Hussain Shah Vs. Chairman Pakistan Agricultural Research Council and others Appeal No. 906(R)CE/2001 Dated 21.5.2003 Mr. Abdul Rehman Siddiqui, ASC Ch Muhammad Akram Mr. AM. Billal, Sr. ASC Syed Zafar Abbas Naqvi, AOR 89 C.P.1432-L/2003 Qamar uz Zaman Vs. National Bank of Pakistan thr. its President and others Appeal No. 1769(L)1998 Dated 2.4.2003 Mr. Faiz-ur- Rehman, AOR Mr. Noor Muhammad Khan Chandia, ASC 90 C.P.1515- 1516/2003 State Bank of Pakistan and another Vs. Shams-ul-Islam Appeal No.476(R)CE & 518(R)CE/2002 Dated 23.4.2003 Mr. Khalid Anwar, Sr. ASC Raja Abdul Ghafoor, AOR R-In person 91 C.P.1611/2003 The Regional Chief H.B.L. Regional Office Quetta and others. Vs. Muhammad Musa Khan. Appeal No. 39(Q)CE/2000 Dated 30.3.2003 Mr. Shahid Anwar Bajwa, ASC Mr. M.S. Khattak, AOR N.R. 92 C.P.1645- 1648/2003& 1657-1658/2003 National Bank of Pakistan thr.its President and others Vs. Sohail Ahmad Appeal Nos. 1170, 1171, 1172, 1173, 1174, 1175 (R)CW/2002 Dated 2.6.2003 Mian Muhammad Qamaruz Zaman, ASC Raja Abdul Ghafoor, AOR N.R. 93 C.P.1674-L/2003 Executive Board of Director thr. its President HBL and Appeal No. 71(L)CE/2000 Dated 2.5.2003 Mr. Mehmood- ul-Islam , AOR Nemo CA.792-816/2005, etc. 8 another Vs. Muhammad Arshad Mehmood Cheema 94 C.P.1788-L/2003 Ishtiaq Ahmed Sipra Vs. State Life Insurance Corporation of Pakistan and another Appeal No. 73(L)CE/2000 Dated 14.5.2003 Nemo Mr. Muhammad Jehanzeb Khan Bharwana, ASC 95 C.P.1857/2003 Shahid Amin Vs. M/s P.T.C.L., and another Appeal No.33(R)Cs/2001 Dated 28.6.2003 Agha Tariq Mehmood, ASC Ch. Akhtar Ali, AOR N.R. 96 C.P.1899- 1900/2003 Ahmed Gul Vs National Bank of Pakistan Appeal No. 697(L)1997 & 1879(L)/1998 Dated 18.7.2003 Mr. M.A. Qureshi, AOR (in CP1899/03) Mr. Faizur Rehman, AOR (in CP 1900/03) Nemo in 1899/03 N.R. in 1900/03 97 C.P.2003/2003 Hussain Ahmed Siddiqi Vs. State Engineering Corp. & others Appeal No. 1139(R)CE/2001 Dated 22.7.2003 Shah Abdul Rashid, Sr. ASC Mr. Mehr Khan Malik Ms. Naheeda Mehboob Elahi, DAG Mr. Nadeem Afzal Lone, ASC Ch. Akhtar Ali, AOR 98 C.P.2013/2003. Manzoor Hussain Vs. H.B.L. & others Appeal No. 1031(R)CE/2001 Dated 13.8.2003 Mr. Saadat Muhammad Waraich, ASC Mian Abdul Rauf, ASC Mr. M.A. Zaidi, AOR 99 C.P.2134-L/2003 Hassan Tariz Qadri Vs. Sui Northern Gas Pipe Lines Ltd., etc Appeal No. 231(L)CE/2002 Dated 10.6.2003 Mr. Zahid Farani Sheikh, ASC Mr. M.A. Qureshi, AOR 100 C.P.2139-L/2003 & C.P.2140- 2141-l/2003 Shaukat Hayat Vs. PTV. Ltd, etc Appeal No. 98, 99 & 101 (L)CE/2002 Dated 3.6.2003 Mr. M.A. Qureshi, AOR N.R. 101 C.P.2146-L/2003 Muhammad Jameel Khan Vs. Chairman ADBP, etc Appeal No. 187(L)/1999 Dated 12.6.2003 Nemo Mr. Muhammad Afzal Sidhu, ASC 102 C.P.2211-L/2003 Muhammad Iqbal Javed Vs. D.G. Pakistan Broadcasting Corp. Islamabad, etc Appeal No. 1788(L)/1998 Dated 16.7.2003 Nemo N.R. 103 C.P.2254-L/2003 Ranvir Ahmad Siddiqui Vs. National Bank of Pakistan, etc Appeal No. 1243(L)/1999 Dated 28.6.2003 Mr. Ali Akbar Qureshi, ASC Dr. Sohail Akhtar, ASC N.R. 104 C.P.2299-L/2003 Habib Bank Ltd. and others Vs. Malik Muhammad Bashir Awan and another Appeal No.650(L)/1997 Dated 3.7.2003 Mian Abdul Rashid, ASC N.R. 105 C.P.2363-L/2003 Muhammad Maqsood Elahi Vs. National Bank of Pakistan Appeal No.330(L)CE/2000 Dated 14.7.2000 Nemo Mr. Mehmood-ul- Islam, AOR 106 C.P.2434/2003 Masood Ahmed Vs. Fed. of Pakistan thr. Secy. M/o Information Media Development, Islamabad & others Appeal No.111(Q)CE/2001 Dated 4.6.2003 Nemo N.R. 107 C.P.2565/2003 Muhammad Khurshid Appeal No. Ch Muhammad Raja Muhammad CA.792-816/2005, etc. 9 Vs. Allama Iqbal Open University 1226(R)CE/2001 Dated 15.8.2003 Akram, AOR Ibrahim Satti, ASC Mr. M.S. Khattak, AOR 108 C.P.2566-L/2003 Manzoor ul Hassan Vs. National Bank of Pakistan and another Appeal No.78(L)/1999 Dated 17.2.1999 Nemo Nemo 109 C.P.2568- 2569/2003 & 2579, 2604/03 & C.P.515/2004 Chairman National Highway Authority Vs. Munir Ahmed Memon Appeal No. 1081(R)CE/2002, Dated 5.8.2003 Appeal No.1138(R)CE/200 2 Dated 10.6.2003 Appeal No.1081(R)CE/200 2 dated 5.8.2003 Appeal No. 175(K)CS/2001 Dated 10.7.2003 Appeal No. 492(R)CS/2002 Hafiz S.A. Rehman, Sr. ASC a/w Mr. Mehr Khan Malik, AOR (in CPS 2568-69 & 2604/03 Sheikh Riaz Ul Haq, ASC a/w Ch. Muhammad Akram(in CPs2579/03) Nemo (515/04) Sheikh Riaz Ul Haq, ASC a/w Mr. M.A. Zaidi, AOR (in 2568- 2569, 2604/03 & 515/04) Hafiz S.A. Rehman, Sr. ASC (in CP 2579/03) 110 C.P.2017- 2020/2003 & 2576/2003 G.M. NTR. PTC,L etc. & another Vs. Naseer Muhammad & others Appeal No.212(P), 213(P), 215(P), 217(P)/1998 Dated 3.7.2003 Ch. Khalid Farooq, ASC a/w Mr. Faiz-ur- Rehman, AOR (2017-2020/03) Mr. Abdul Rehman Siddiqui, ASC a/w Ch. Muhammad Akram, AOr (2576/03) Mr. Abdul Rehman Siddiqui, ASC a/w Arshad Ali Chaudhry, AOR (in 2017-2020/03) Nemo in CP 2576/03 111 C.P.2627/2003 Manager H.B.L. & another Vs. Jehanzeb & another Appeal No. 16(P)CW/2001 Dated 15.8.2003 Khawaj Muhammad Farooq, ASC Mr. M.A. Zaidi, AOR R- In Person 112 C.P.2748-L/2003 The Regional / Zonal Chief NBP and others Vs. Ghulam Abbas Ali Khan Appeal No.1128(L)/1999 Dated 10.9.2003 Mian Qamar Uz Zaman, ASC N.R. 113 C.P.2752-L/2003 Zulfiqar Ali Vs. The M.D. SBFC, Islamabad. Appeal No.1081(L)/1999 Dated 2.10.2003 Mian Mehmood Hussain, ASC Mr. Tariq Aziz, ASC a/w Mr. Ejaz Muhammad Khan, AOR 114 C.P.2773-L/2003 Muhammad Rafique Vs. Chairman State Engg. Corporation and another Appeal No.235(L)CE/2002 Dated 7.10.2003 In person Dr. Sohail Akhtar, ASC Mr. M.A. Qureshi, AOR 115 C.P.2774-L/2003 Ghulam Abbas Ali Khan Vs. The Zonal Chief NBP and others Appeal No.1128(L)/1999 Dated 10.9.2003 Mian Mehmood Hussain, ASC Mian Muhammad Qamar Uz Zaman, ASC 116 C.P.2792-2793- L/2003 Niaz Ahmed Sh. Vs. The President HBL and others Appeal No.175(L)CE & 176(L)CE/2000 Dated 15.10.2003 Mr. Hanif Ahmad Dogar, ASC N.R. 117 C.P.2805-L/2003 Muhammad Yasin Vs. Secy. Evacuee Trust Property Board Lahore and others Appeal No.165(L)CS/2003 Dated 1.10.2003 Mr. Zahid Hussain, ASC Mian Muhammad Qamar Uz Zaman, ASC Raja Abdul Ghafoor 118 C.P.2825-L/2003 Muhammad Alam Vs. General Manager Telecommunication Region South-II Egerton Road Lahore Appeal No.77(L)CS/2003 Dated 19.9.2003 Ch. Muhammad Sharif, ASC Gorsi Muhammad Din Chaudhry, ASC Mr. Mehmood-ul- Islam, AOR CA.792-816/2005, etc. 10 and another 119 C.P.2836-L/2003 Raja Hassan Shehbaz Vs. Pakistan Atomic Energy Commission and another Appeal No. 717(L)2003 Dated 12.5.2003 Nemo N.R. 120 C.P.2881-L/2003 The President Habib Bank Ltd. and others Vs. Muhammad Younus Shah Appeal No.119(L)/1998 Dated 24.9.2003 Mian Muhammad Saleem, ASC Agha Tariq Mehmood, ASC Ch. Akhtar Ali, AOR 121 C.P.3001/2003 Ch. Khan Mirza Vs. State Life Insurance Appeal No. 246(R)/2003 Dated 10.9.2003 Rao Fazal Akhtar, ASC Mr. Ejaz Muhammad Khan, AOR Agha Tariq Mehmood, ASC Ch. Akhtar Ali, AOR 122 C.P.3011/2003 Habib Bank Ltd. & another Vs. Muntazim Khan & others Appeal No. 233(P)CS/2002 Dated 17.9.2003 Khawaja Muhamamd Farooq, ASC Mr. M.A. Zaidi, AOR N.R 123 C.P.3074-L/2003 Muhammad Akbar Vs. HBL thr. its President and others Appeal No. 137(L)CE/2003 Dated 22.10.2003 Mr. Faiz-ur- Rehman, AOR N.R. 124 C.P.3076/2003 Muhammad Aslam Vs. G.M. Western Telephone Region-III and others Appeal No.1937(L)/1998 Dated 22.9.2003 Mr. Jamal Khan, Mando Khel, ASC Nemo 125 C.P.3088/2003 SME Bank Ltd., etc. Vs. Irfan Walayat and others Appeal No. 67(R)CE/2003 Dated 1.10.2003 Mr. Muhammad Akram Sheikh, Sr. ASC & Hafiz S.A. Rehman, a/w Mr. Mehr Khan Malik, AOR Mr. Abdul Rehman Siddiqui, ASC a/w Ch. Muhammad Akram, AOR 126 C.P.3134/2003 Dildar Khan Vs. The Chairman, State Life Insurance Corporation, Karachi & others Appeal No.1072(R)CE/200 1 Dated 4.9.2003 Rao Fazal Akhtar, ASC Ch. Akhtar Ali Agha Tariq Mehmood, ASC Mr. Ejaz Muhammad Khan 127 C.P.3175/2003 State Life Insurance Corporation and another Vs. Dadan Khan Jadoon Appeal No.80(P)CE/2000 Dated 6.10.2003 Mr. Ibadur Rehman Lodhi, ASC Mr. Ejaz Muhammad Khan, AOR N.R. 128 C.P.3182/2003 M/s Sui Southern Gas Company Ltd. Vs. Abdullah Nohri Appeal No.1805(K)/1998 Dated 5.6.2003 Khawaja Muhammad Farooq, ASC Mr. M.S. Khattak, AOR N.R. CA.792-816/2005, etc. 11 129 C.P.3238-L/2003 M.D. Sui Northern Gas Pipelines Ltd. Lahore and others Vs. M. Naeem and another Appeal No.1806(L)/1998 Dated 17.11.2003 Mahmood A. Qureshi, AOR N.R 130 C.P.3288-L/2003 Muhammad Siddiq Naseem Vs. PIA Corporation thr. its Chairman and another Appeal No.54(L)/1999 Dated 28.10.2003 Sh. Masood Akhtar, AOR/ASC Mr. Arshad Ali Ch, AOR a/w Mr. Asmatullah Khan, Manager legal PIA 131 C.P.3369- 3381/2003 Muhammad Mukhtar Khan Vs A.D.B.P through its chairman etc. Appeal No.4(R)CE/2003, 1293(R)CE, 1294(R)CE, 1295(R)CE, 1297(R)CE, 1299(R)\CE, 1300(R)CE, 1311(R)CE, 1312(R)CE, 1398(R)CE, 1399(R)CE, 1400(R)CE, 1403(R)CE/2002 Dated 18.10.2003 Mr. Attaur Rehman, ASC a/w Raja Abdul Ghafoor, AOR Hafiz S.A. Rehman, Sr. ASC, Mr. Muhamamd Naeem Sheikh, ASC a/w Mr. M.A. Zaidi, AOR 132 C.P.3386/2003 State Life Insurance Corporation of Pakistan and another Vs. Khalil A. Sheikh Appeal No.1156(R)CE/200 2 Dated 3.10.2003 Mr. Ibadur Rehman Lodhi, ASC Mr. Ejaz Muhammad Khan, AOR N.R. 133 C.P.3387/2003 President HBL, Ltd. & others Vs. Javaid Iqbal Qureshi & another Appeal No.348(R)CE/2000 Dated 15.8.2003 Rai Muhammad Nawaz Kharral, ASC Mr. Ejaz Muhammad Khan, AOR R- In Person 134 C.P.52/2004 Arman ul Haq Siddqui Vs. United Bank Ltd. and another Appeal No. 1398(K)/1997 Dated 10.11.2003 Mr. Asmat Kamal, ASC N.R. 135 C.P.74/2004 National Bank of Pakistan, Karachi and another Vs. Khalid Mehmood Yousaf Appeal No. 962(R)CE/2001 Dated 8.11.2003 Khawaj Muhammad Farooq, ASC Mr. Muhammad Aslam Uns, ASC a/w Mr. M.A. Zaidi AOR N.R. 136 C.P.106-L/2004 Muhammad Younus Vs. ADBP thr. its Chairman and others Appeal No.31(L)CE/2003 Dated 12.11.2003 Ch. Muhammad Ibrahim, ASC Mr. Muhammad Afzal Sidhu, ASC a/w Mr. M.A. Qureshi, AOR 137 C.P.109-L/2004 Muhammad Rashid Vs. Regional Chief N.B.P. of Ltd. Appeal No.242(L)/1999 Dated 23.9.2003 P- In Person N.R. 138 C.P.136-L/2004 Riaz Hussain Shah Vs. Chief Engg. (EHV) North, National Transmission and Appeal No. 643(L)CS/2002 Dated 7.11.2003 P- In Person N.R. CA.792-816/2005, etc. 12 Despatch Company Ltd. and others 139 C.P.192/2004 P.T.C.L. and another Vs. Ghulam Farooq, Deputy Director (Internal Audit) and others Appeal No.594(R)CS/2002 Dated 3.11.2003 Mr. Naheem Bukhari, ASC Mr. Mehr Khan Malik Raja Abdul Ghafoor, ARO 140 C.P.193/2004 M.D. Oil Gas Development Corpration Ltd. and another Vs. Dr. Zahid Aleem Malik and others Appeal No.1556(R)CE/200 2 Dated 4.11.2003 Rai Muhammad Nawaz Kharal, ASC a/w Mr. M.S. Khattak, AOR N.R. 141 C.P.235-L/2004 Ghulam Samdani Hashmi Vs. Managing Director, NESPAK and another Appeal No.176(L)/2003 Dated 20.12.2003 Nemo N.R. 142 C.P.265/2004 Fayyaz ur Rehman Vs. F.S.T. Islamabad and another Appeal No.140(R)CE/2002 Dated 4.11.2003 P- In Person N.R. 143 C.P.294-L/2004 Kh. Muzammil Hussain Vs. Habib Bank Ltd. and others Appeal No.418(L)CE/2000 Dated 19.12.2003 Nemo N.R. 144 C.P.329/2004 Malik Dad and another Vs. Karrar Khalid and another Appeal No.1397(R)CE/200 2 Dated 23.12.2003 Hafiz S.A. Rehman, Sr. ASC Mr. M.S. Khattak, AOR N.R. 145 C.P.337-L/2004 Masud Akhtar Khan Vs. IDBP and others Appeal No.710(L)CE/2000 Dated 13.11.2003 Mian Mehmood Hussain, ASC N.R. 146 C.P.359-K/2004 Mukhtar Ahmed Brohi Vs. Govt.of Pakistan thr.its Secy.M/O Finance and others Appeal No.413(K)CE/2001 Dated 7.2.2004 Mr. N.C.Motiani ASC/AOR Raja Sher Muhammad Khan, ASC/AOR 147 C.P.349- 353/2004 National Bank of Pakistan, thr. Attorney and others Vs. Abdul Aziz Appeal No.440(L), 636(L)/1998 Dated 11.12.2003 Appeal No. 698(L)/1998 Dated 4.12.2003 Appeal No. 1079(L)/1998 Dated 11.12.2003 Appeal No. 1340(L)/1998 Dated 4.12.2003 Khawaja Muhammad Farooq, ASC aw/ Mr. M.A. Zaidi, AOR N.R. 148 C.P.365-L/2004 The Regional Head NBP Ltd. and others Vs. Gulzar Ahmed Appeal No. 697(L)/1998 Dated 4.12.2003 Nemo N.R. 149 C.P.380-381- K/2004 Rasheed Ahemd Bhutto Vs. Ministry of Industries and Production and another Appeal No.5 & 6 (K)CE/2000 Dated 20.2.2004 Nemo N.R. CA.792-816/2005, etc. 13 150 C.P.386-K/2004 Muhammad Aslam Khan Vs. Civil Aviation Authority and others Appeal No.356(K)CE/2001 Dated 4.3.2004 P- In Person N.R. 151 C.P.391- 392/2004 National Bank of Pakistan Ltd. Vs. Qurban Ali Channa and others Appeal No.1962 & 1964(K)/1998 Dated 18.7.2003 Mr. Mehmood- ul-Islam N.R. 152 C.P.416-L/2004 Malik Muhammad Noor Vs. Chairman State Cement Corporation of Pakistan Pvt. Ltd. Appeal No.4(L)CE/2003 Dated 9.12.2003 Nemo N.R. 153 C.P.418-L/2004 Rana Muhammad Khalil Vs. National Bank of Pakistan thr. its President and others Appeal No.556(L)CE/2000 Dated 10.12.2003 P- In Person Noor Muhammad Chandia, ASC Mr. Mehmood-ul- Islam, AOR 154 C.P.419/2004 Pakistan International Airlines Corporation thr.M.D. and another Vs. Sohail Rashid Appeal No.435(K)CE/2002 Dated 11.12.2002 Mr. Arshad Ali Chaudhry, AOR a/w Asmatullah Khan, Legal Manager PIA N.R. 155 C.P.421-L/2004 National Bank of Pakistan thr. its President and others Vs. Akhtar Hussain Khalid Nemo Muhammad Aslam Uns, ASC Mr. M.A. Zaidi, AOR 156 C.P.419-424- K/2004 Talatul Wahid and another Vs. Aurangzeb and others Appeal No. 853 to 856, 858 & 859(K)CE/2000 Dated 9.3.2004 Raja Sher Muhammad Khan Mr. Mehr Khan Malik AOR in CP 419-K/04 157 C.P.425-K/2004 Fazil Umer Vs. federation of Islamic Republic of Pakistan and another Appeal No.59(K)CE/2000 Dated 8.3.2004 P- In Person N.R. 158 C.P.499/2004 P.I.A. Corporation, thr. its Chairman Vs. Imran Ahmed Khan and another Appeal No. 91(K)CE/2004 Dated 26.2.2004 Mr. Javed Altaf, ASC Mr. Faiz-ur- Rehman, AOR Raja Abdul Ghafoor, AOR 159 C.P.425-L/2004 Noor Ahmed Captain Vs. The Manager ADBP and others Zahid Hussain Khan, ASC N.R. 160 C.P.464-K/2004 Shoukat Ali Khan Vs. The Director General Pakistan Broadcasting Corporation and others Appeal No.1507(K)CE/200 1 Dated 29.3.2004 Mr. Niaz Ahmad Khan, ASC N.R. 161 C.P.466-K/2004 Ghulam Abbas Memon Vs. The Secy.M/O Industries and Production and others Appeal No. 873(K)CE/2002 Dated 31.3.2004 P- In Person N.R. 162 C.P.527/2004 Munawar Hussain Vs. Chairman Dr. Abdul Qadeer Khan Research Laboratories (KRL) Appeal No. 1210(R)CE/2003 Dated 24.12.2003 P- In Person Muhammad Aslam Uns, ASC Mr. M.A. Zaidi, AOR CA.792-816/2005, etc. 14 and another 163 C.P.562/2004 Tariq Waheed Khan Vs. The President N.B.P. of Pakistan and others Appeal No.35(Q)/1999 Dated 15.12.2003 Petition in person Mr. Muhammad Rasheed Qamar, ASC Raja Abdul Ghafoor, AOR 164 C.P.514-515- K/2004 Salahuddin Vs. Minister for Agriculture/Chairma n and others Appeal No. 27/1998 Dated 31.3.2000 Appeal No. 202/2002 Dated 13.4.2004 Nemo Raja Abdul Ghafoor, AOR 165 C.P.545-K/2004 Liaquat Ali Khanzada Vs. The Minister for Agriculture Chairman and others Appeal No. 202/2002 Dated 29.4.2004 Nemo Raja Abdul Ghafoor, AOR 166 C.P.627- 629/2004 Nazar Shah Khattak Vs. The Chairman, Pakistan Telecomunication and others Appeal No. 416(L)CS/2001, 151 & 155(L)CS/2002 Dated 23.1.2004 Nemo N.R. 167 C.P.657-K,659- K/2004 Bashir Ahmed Vs. Pakistan Steel Mills & another Appeal No. 9(K)CE/2001 Dated 18.6.2004 Nemo Mr. M.G. Dastagir, ASC Raja Sher Muhammad Khan, AOR 168 C.P.671-K/2004 Dr.Mushtaq Ahmed Sheikh Vs. Pakistan Steel and others Appeal No. 1511(K)CE/2001 Dated 10.7.2004 Nemo Mr. M.G. Dastagir, ASC Raja Sher Muhammad Khan, AOR 169 C.P.703/2004 Agricultural Development Bank of Pakistan (Now Z.T.B. L.) thr. its Chairman Vs. Ijaz Akhtar Appeal No. 1208(R)CE/2002 Dated 5.12.2003 Hafiz S.A. Rehman, Sr. ASC Mr. Mehr Khan Malik, AOR N.R. 170 C.P.802-K, 812- K/2004 Muhammad Akbar Tariq Vs. M/s Pakistan Steel Mills Corp. and others Appeal No.757(K)CE/2000 Dated 16.9.2004 Nemo in CP 802-K/04 Mr. M.G. Dastagir, ASC in CP812-K/04 Mr. M.G. Dastagir, ASC in CP802-K/04 Nemo in CP 812-K/04 171 C.P.889/2004 M.D. Pakistan Agricultural Storage & Services Corporation Ltd. and others Vs. Rana Abdur Raoof Appeal No. 638(L)CE/2000 Dated 5.3.2004 Muhamamd Akram Khawaja, ASC Mr. Mehmood- ul-Islam AOR N.R. 172 C.P.905/2004 Chairman N.H.A., Islamabad Vs. Muhammad Imtiaz Khan and another Appeal No. 14(Q)CE/2003 Dated 9.2.2004 Hafiz S.A. Rehman, Sr. ASC Mr. Mehr Khan Malik, AOR N.R. 173 C.P.914/2004 S.M.E. Bank Limited Vs. Muhammad Saleem Javed and others Appeal No. 740(L)/1999 Dated 30.1.2004 Mr. U.K. Butt, ASC Mr. Ejaz Muhammad Khan AOR Mr. Almas Haider Kazmi, ASC Mr. Arshad Ali Ch. AOR 174 C.P.927/2004 (Ch.O) Munawar Ahmad CHASNUPP Site Kundian Vs. Chairman Pakistan Atomic Energy Commission Islamabad. Appeal No.566(R)CE/2002 Dated 4.3.2004 P- In Person Raja Muhammad Ibrahim Satti, ASC Mr. Ejaz Muhammad Khan, AOR CA.792-816/2005, etc. 15 175 C.P.1006/2004 Cantonment Board Wah Cantt. thr. its Executive Officer and another Vs. Ghulam Rabbani Appeal No. 517(R)CS/2003 Dated 24.2.2004 Agha Tariq Mehmood, ASC Ch. Akhtar Ali. AOR N.R. 176 C.P.1007/2004 Zari Taraqiati Bank Ltd. through its Chairman and others Vs. Muhammad Samin Jan Appeal No. 113(P)CE/2002 Dated 26.2.2004 Mr. Muhammad Rasheed Qamar, ASC Raja Abdul Ghafoor AOR Sh. Riaz Ul Haq, ASC Mr. Arshad Ali Ch.,AOR 177 C.P.1021/2004 P.S.O. Company Ltd. thr. its M.D. PSO House and another Vs. Ansar Iqbal Zafar Appeal No. 956(K)CE/2002 Dated 26.4.2004 Mr. Zafar Iqbal Ch. ASC R- In Person 178 C.P.1022/2004 Abdul Majeed Sial Vs. A.D.B.P. Ltd. thr. its Chairman and another Appeal No. 1298(R)CE/2002 Dated 20.2.2004 Nusrat Javed Bajva, ASC Mr. Muhammad Afzal Sindu, ASC Mr. Mehmood-ul- Islam, AOR 179 C.P.1048-L/2004 Gulzaib Hussain Vs. Sui Northern Gas Pipelines Ltd. and others Appeal No. 674(L)/1997 Dated 10.1.2004 Mr. Faiz-ur- Rehman, AOR Mr. M.A. Qureshi, AOR 180 C.P.1074-L/2004 Intizar Hussain Vs. M.D. HBFC, Karachi and others Appeal No. 79(L)CE/2000 Dated 6.1.2004 Nemo Nemo 181 C.P.1112-L/2004 Muhammad Saleem Malik Vs. The ADBP and others Appeal No.1451(L)/1999 Dated 10.2.2004 Nemo Muhammad Afzal Sindu, ASC Mr. Mehmood-ul-Islam 182 C.P.1125/2004 Zafar ul Haq Vs. Sui Northern Gas Pipelines Ltd. and another Appeal No. 405(L)CE/2000 Dated 9.4.2004 P- In Person Mr. M.A. Qureshi, AOR 183 C.P.1127/2004 SME Bank Ltd. Vs. Syed Husnain Tariq Appeal No. 390 & 374(R)CE/2001 Dated 28.2.2004 Tariq Aziz, ASC Mr. Ejaz Muhammad Khan, AOR R- In Person 184 C.P.1142-L/2004 Faisal Hameed Khan Vs. Chairman PTCL and others Appeal No. 876(L)CS/2000 Dated 28.1.2004 Nemo Gorsi Muhammad Din Ch. ASC 185 C.P.1145-L/2004 Allah Bakhsh Vs. Coordinator (Operations) Zarai Taraqiati Bank Ltd Islamabad and others Appeal No. 1145(L)CE/2003 Dated 21.1.2004 Nemo Muhammad Afzal Sindu, ASC Mr. Mehmood-ul- Islam, AOR 186 C.P.1146/2004 Nadeem Asghar Vs. P.I.A. Corporation, thr. its Chairman, Karachi and others Appeal No. 160(L)CE/2002 Dated 15.3.2001 Mr. Arshad Ali Ch. Ch. Muhammad Ashraf, ASC Mr. M.S. Khattak, AOR 187 C.P.1188-L/2004 The Chief Manager, State Bank of Pakistan and another Vs. Muhammad Shafi Appeal No. 421(L)CE/2000 Dated 19.1.2004 Mr. Mehmood- ul-Islam, AOR Mr. M.A. Qureshi, AOR 188 C.P.1343- 1448/2004 Cotton Trading, Corporation of Pakistan (Pvt), Ltd. and anohter Vs. Muhammad Afzal and another Appeal No. 89, 150 to 153(L)CE/2002 & 252(L)CS/2002 Dated 5.4.2004 Hafiz S.A. Rehman, Sr. ASC Mr. M.A. Zaidi AOR in all In person in CP1344/04 189 C.P.1413/2004 Sagheer Ahmed ul Appeal No. 717(L) Raja Muhammad Mr. Mehmood-ul- CA.792-816/2005, etc. 16 Hassan Asif Vs. PASSCO thr. its Executive Committee/Board of Director PASSCO and another CE/2000 Dated 19.4.2004 Asghar ASC Mr. M.A. Zaidi, AOR Islam, AOR 190 C.P.796-K/2005 Abdul Fateh Langah Vs. M/s Pakistan Steel Mills Appeal No. 950(K)CE/2003 Dated 15.9.2005 P- In Person N.R. 191 C.P.1492/2004 Mukhtar Hussain Kharal Vs. President of SME Bank, Islamabad and others Appeal No. 117(R) CE/2003 Dated 30.4.2004 Hafiz S.A. Rehman, Sr. ASC Mr. M.A. Zaidi N.R. 192 C.P.1598-L/2004 National Bank of Pakistan Vs. Muhammad Irshad. Appeal No. 572(L)CE/2000 Dated 11.3.2004 Mian Qamar-uz Zaman, ASC Mr. M.A. Qureshi N.R. 193 C.P.1610/2004 Younus Masih Vs. A.Q. Khan Research Laboratories thr. its Chairman Appeal No. 1139(R)CE/2002 Dated 17.3.2004 Ch Muhammad Akram AOR N.R. 194 C.P.1625/2004 National Bank of Pakistan, thr. its Attorney and others Vs. Muhammad Anwar Appeal No.1043(R)CE/200 1 Dated 27.4.2004 Khawaja Muhammad Farooq, ASC Mr. M.A. Zaidi, AOR N.R. 195 C.P.1637-1638- L/2004 Dr. Muhammad Rashid Ch. Vs. Chairman & Dean Sh. Zayed Hospital & Post Graduate Institute, etc. Appeal No. 723(L)CS/2001 & 691(L)CE/2000 Dated 22.4.2004 Nemo in both Mr. M.A. Qureshi in CP 1638-L/04 196 C.P.1668-L/2004 Khalid Mehmood Shahid Vs. National Bank of Pakistan, etc. Appeal No. 869(L)/1999 Dated 3.4.2004 P- In Person N.R. 197 C.P.1671/2004 Iftikhar Ahmed Vs. United Bank Limited, Karachi and others Appeal No. 130(P)/1999 Dated 16.4.2004 Ch. Muhammad Abdul Saleem, ASC Mr. Muhammad Zahoor Qureshi, AOR N.R. 198 C.P.1683- 1685/2004 M/s Pakistan State Oil Company Ltd. thr. Its M.D. and another Vs. Saleem Ahmed Sheikh Appeal No. 397 to 399(K)CE/2002 Dated 20.6.2004 Mr. Zafar Iqbal Ch. ASC in all. Mr. Abdul Hafeez Pirzada, Sr. ASC Mr. Arshad Ali Ch, AOR 199 C.P.1705/2004 Saeed Ahmed Sheikh Vs. Federation of Pakistan thr. Secy. M/o Finance, Islamabad and another Appeal No. 213(R)CE/2001 Dated 4.5.2004 Mr. Abdul Karim Khan Kundi, ASC Mr. M.S. Khattak, AOR Khawaj Muhammad Farooq, ASC Mr. Ejaz Muhammad Khan, AOR 200 C.P.1711/2004 Mumtaz Khan Vs. P.I.A. Corporation, Karachi, M.D. thr. Director Admn. PIAC and another Appeal No. 1153(R)CE/2002 Dated 30.4.2004 Sardar Liaqat Ali, ASC Mr. M.A. Zaidi, AOR Mr. Arshad Ali Ch. a/w Asmatullah Khan Manager Legal PIA 201 C.P.1743/2004 M.D.Utility Stores Corporation & others Vs. Amin Ahsan Gill Appeal No. 473(R)CE/2001 Dated 14.4.2004 Muhammad Jaffar Hashmi, ASC Mr. M.A. Zaidi, N.R. CA.792-816/2005, etc. 17 AOR 202 C.P.1749/2004 Saeed ur Rehman Vs. Secy. M/o Industries and Production, Islamabad and others Appeal No. 452(R)CE/2004 Dated 23.4.2004 Ch. Muhammad Sadiq Warraich, ASC Mr. Ejaz Muhammad Khan AOR Muhammad Jaffar Hashmi, ASC Mr. M.A. Zaidi, AOR 203 C.P.1773/2004 Aminullah Ghazi Vs. Cantonment Executive Office, Peshawar, etc. Appeal No. 185(P)CE/2003 Dated 31.5.2004 Mr. Arshad Ali Ch., AOR Mian Mehmood Hussain, ASC 204 C.P.1779/2004 Capt. Javed Afzal Vs. M.D.Pakistan International Airlines Corporation (PIAC), etc. Appeal No. 1432(R)CE/2002 Dated 24.4.2004 Sh. Riaz ul Haq, ASC Mr. M.A. Zaidi, AOR Mr. Arshad Ali Ch. 205 C.P.1780- 1788/2004 Waheed Ahmed Vs. Habib Bank Ltd. and others Appeal Nos. 22 to 30(P)/CE/2001 Dated 17.4.2004 Mr. Khalid Khan, ASC Mr. M.A. Zaidi, AOR Mian Abdul Rauf, ASC 206 C.P.1798/2004 Chairman C.D.A. Islamabad Vs. Dr. Nighat Anwar and others Appeal No. 351(R)CE/2002 Dated 16.4.2004 Rai Muhammad Nawaz Kharal, ASC Mr. Ejaz Muhammad Khan AOR N.R. 207 C.P.1811/2004 G.M. (Admn.) PASSCO, Lahore and another Vs. Muhammad Zubair Appeal No. 813(R)CE/2003 Dated 7.6.2004 Mr. Muhammad Akram Khawaja, ASC Mr. Mehmood- ul-Islam AOR N.R 208 C.P.1827- 1828,1915- 1916/2004 National Bank of Pakistan thr. its President Vs. Awal Shah Afridi Appeal Nos.43, 44(L)CE/2001 Dated 26.5.2004 Mr. Muhammad Rasheed Qamar, ASC Mr. Ejaz Muhammad Khan AOR In CP 1827-28/04 For Fed:Nasir Saeed Sheikh, DAG Ch. Akhtar Ali, AOR Muhammad Munir Peracha, in CP 1916/04 N.R. in both 209 C.P.1829/2004 General Manager (Admn) PASSCO and another Vs. Ghulam Sarwar Appeal No. 596(R)CS/2002 Dated 16.6.2004 Muhammad Akram Khawaja, ASC Mr. Mehmood- ul-Islam AOR N.R. 210 C.P.1834/2004 Federation of Pakistan thr. Secy. M/o Defence and another Vs. Jehanzeb Khan Appeal No. 8(P)CE/2001 Dated 26.4.2004 Ch. Akhtar Ali N.R 211 C.P.1836/2004 Shabbir Ahmed Vs. PIAC, thr. its Chairman and others Appeal No. 822(R)CE/2003 Dated 17.5.2004 Hafiz S.A. Rehman, Sr. ASC Mr. Mehr Khan Malik AOR Mr. Arshad Ali Ch. A/w Asmatullah Khan, Manager Legal PIA 212 C.P.1850-L- Ijaz Ali Vs. The Appeal No. 545, Nemo N.R. CA.792-816/2005, etc. 18 1852-L/2004 Managing Director< National Engineering Services Pakistan Pvt. Ltd. & another. 557 & 561(L)/1999 Dated 8.11.2003 213 C.P.1869/2004 National Bank of Pakistan, thr. its Attorney and another Vs. Zawar Hussain Appeal No. 1234(R)CE/2003 Dated 29.5.2004 Khawaja Muhammad Farooq, ASC Mr. M.A. Zaidi, AOR Mr. Abdul Rehman Siddiqui, ASC Ch Muhammad Akram, AOR 214 C.P.1876/2004 (Ch.O) Syed Muhammad Asim Vs. Pak. Telecommunication Company Ltd. and another Appeal No. 1162(R)/2003 Dated 4.6.2004 P- In Person Ch Muhammad Akram , AOR Ms. Naeeda Mehboob Elahi, , Raja Muhammad Irshad, Deputy Attorney Generals 215 C.P.1889/2004 Mian Abdur Rashid Vs. Managing Director, OGDCL Appeal No. 775(R)CE/2003 Dated 19.5.2004 Mr. Zulfiqar Ahmad Bhutta, ASC Mr. Ejaz Muhammad Khan AOR Mr. Arif Chaudhry, ASC Mr. M.S. Khattak, AOR 216 C.P.1909-L/2004 Muhammad Aslam Saifi Vs. National Bank of Pakistan thr. its President and others Appeal No. 256(L)CE/2003 Dated 17.4.2004 Mr. Ehsan ul Haq, Ch. ASC Mr. M.A. Qureshi , AOR Mian Qamar uz Zaman, ASC 217 C.P.1924- 1925/2004 Oil and Gas Development Company Ltd. thr. M.D. and another Vs. Akhtar Hussain Appeal No. 1306 & 1307(R)CE/2002 Dated 12.6.2004 Mr. Arif Chaudhry, ASC Mr. M.S. Khattak, AOR N.R. 218 C.P.1937/2004 Executive Director, P.M.D.C., Islamabad Vs. Muhammad Ashraf Khan and another Appeal No. 827(L)CS/2002 Dated 28.6.2004 Raja Muhammad Bashir, ASC Mr. M.S. Khattak, AOR N.R. 219 C.P.1939/2004 National Bank of Pakistan thr. Regional Operations Vs. Sajjad Hussain and others Appeal No. 922(K)/1998 Dated 22.2.2003 Syed Haider Ali Pirzada, Sr. ASC Mr. M.A. Zaidi, AOR N.R. 220 C.P.1942/2004 Utility Stores Corporation thr. its M.D. and others Vs. Muhammad Karim Appeal No. 292(L)CE/2001 Dated 16.6.2004 Mr. Muhammad Jaffar Hashmi, ASC Mr. M.A. Zaidi, AOR Ch. Muhammad Sadiq Warraich, ASC Mr. Ejaz Muhammad Khan, AOR 221 C.P.1950/2004 Muhammad Akram Vs. Secy. to Governor, NWFP, FATA, Peshawar and others Appeal No. 234(P)CE/2003 Dated 10.7.2004 Hafiz S.A. Rehman, Sr. ASC Nemo 222 C.P.1960/2004 Chairman Capital Development Authority, Islamabad Vs. Muhammad Shafi Soomro Appeal No. 878(R)CE/2003 Dated 8.6.2004 Rai Muhammad Nawaz Kharal, ASC Mr. Ejaz Muhammad Khan AOR N.R. 223 C.P.1974/2004 National Bank of Pakistan thr. Regional Operation Chief, Quetta Vs. Allah Ditta Zahid and Appeal No. 19(Q)CE/2003 Dated 9.6.2004 Mr. Muhammad Rashid Qamar, ASC Mr. Ejaz Muhammad Rana Manzoor Ahmad, ASC Ch. Akhtar Ali, AOR CA.792-816/2005, etc. 19 another Khan AOR 224 C.P.1989/2004 Chairman Pakistan Telecommunication Ltd. thr. Chairman and others Vs. Khitab Gul Appeal No. 145(P)CE/2003 Dated 28.6.2004 Mr.. M.A. Zaidi, AOR N.R. 225 C.P.1990-L/2004 State Bank of Pakistan and another Vs. Ghulam Shabbir Appeal No.1807(L)/1998 Dated 19.4.2004 Mr. Noor Muhamamd Khan Chandia, ASC Mr. Mehmood- ul-Islam AOR R- In Person 226 C.P.1993/2004 Pakistan Telecommunication Company thr. its Dy. G.M., Rawalpindi Vs. Miram Shah Appeal No. 209(P)CS/2002 Dated 22.5.2004 Mr. Muhammad Aslam Uns, ASC Mr. M.A. Zaidi N.R. 227 C.P.2001/2004 Abdul Sattar Vs. Federation of Pakistan thr. Secy. M/o Finance, Islamabad and others Appeal No. 1004(R)CE/2001 Dated 10.7.2004 Dr. Babar Awan, ASC Mr. Ejaz Muhammad Khan, AOR Ch Muhammad Akram, AOR 228 C.P.2004- 2009/2004 Ali Ahsan Dar Vs. P.T.C. Ltd. thr. its Chairman and others Appeal No. 545, 541, 542 , 544 & 540(R)CS/2002 Dated 19.6.2004 Appeal No. 12(P)CE/2003 Dated 19.6.2004 Mr. Tariq Bilal, ASC Ch Muhammad Akram AOR N.R. 229 C.P.2054- 2059/2004 Sharif Ullah Vs. Govt. of Pakistan thr. Secy. State and Frontier Region and others Appeal No. 467, 468, 470, 471, 469(P)CE/2001, 1(P)CE/2002 Dated 3.7.2004 Hafiz S.A. Rehman, Sr. ASC Mr. M.A. Zaidi, AOR Nemo 230 C.P.2091/2004 S. Jamil Akhtar Vs. Pakistan Telecommunication Company Ltd thr. its President and others Appeal No. 987(R)CE/2004 Dated 19.8.2004 Sheikh Riaz Ul Haq, ASC Mr. Arshad Ali Ch, AOR. N.R. 231 C.P.2093- 2094/2004 Oil and Gas Development Company Ltd. thr. M.D. and others Vs. Ishaque Rasheed Roomi Appeal Nos.1496(R)CE/20 02 & 286(R)CE/2003 Dated 24.8.2004 Mr. Arif Chaudhry, ASC Mr. M.S. Khattak, AOR Mr. Zulfiqa Abbas Naqvi, ASC Mr. M.A. Zaidi, AOR 232 C.P.2091-L/2004 The Chairman Pakistan Model Education Institution Vs. Syeda Farhat Rizvi Appeal No. 1859(L)/1998 Dated 19.4.2004 Mian Qamar uz Zaman, ASC Mr. Mehmood-ul-Islam AOR 233 C.P.2095/2004 M.D. National Fertilizers Marketing Ltd. and another Vs. Hidayat Hussain Appeal No. 16(P)CE/2003 Dated 21.9.2004 Mr. Alamgir, ASC Mahmud-ul- Islam AOR N.R. 234 C.P.2128/2004 Chairman, Pakistan International Airlines Corp. (PIAC) and another Vs. Nuzhat Shaheen Appeal No. 89(R)CE/2003 Dated 12.8.2004 Sheikh Riaz ul Haq, ASC Mr. Arshad Ali Ch. N.R. 235 C.P.2134/2004 Amjad Ali Khan Niazi Vs. SME Bank thr. its Chairman and others Appeal No. 130(L)CE/2001 Dated 30.8.2004 Mian Mehmood Hussain, ASC N.R. CA.792-816/2005, etc. 20 236 C.P.2137- 2144/2004 Mira Jan Vs. Govt. of Pakistan thr. Secy. SAFRON and KANA, Islamabad and another Appeal No. 58, 62, 63, 73, 87, 88, 111, 115(P)CE/2003 Dated 9.8.2004 Mr. Abdul Qayyum Sarwar, AOR/ASC N.R. 237 C.P.2164/2004 The Managing Director, Investment Corporation of Pakistan Vs. Rehmat Ullah and others Appeal No.179(P)CE/2001 Dated 13.9.2004 Mr. Anwar Sipra, ASC Mr. Ejaz Muhammad Khan, AOR N.R. 238 C.P.2179/2004 (C.O) Dilawar Shah Vs. Federation of Pakistan thr. Secy. M/o Petroleum and Natural Resource, Islamabad and others Appeal No. 1469(R)CE/2002 Dated 2.9.2004 Mr. Mehr Khan Malik, AOR Mr. Arif Chaudhry, ASC Mr. M.S. Khattak, AOR 239 C.P.2181- 2182/2004 National Bank of Pakistan thr. its President and others Vs. Latif Ahmed Qureshi and others Appeal No. 1302(L)/1999 Dated 3.9.2004 Khawaja Muhamamd Farooq, ASC Mr. M.A. Zaidi, AOR N.R. 240 C.P.2186/2004 SME Bank Limited thr. its M.D. Vs. Abdul Sattar and others Appeal No. 1004(R)CS/2001 Dated 10.7.2004 Mr. F.K. Butt, ASC Mr. Ejaz Muhammad Khan, ASC N.R. 241 C.P.2189/2004 Rana Habibullah Khan Vs. Quaid-e- Azam University, Islamabad thr. its Registrar and another Appeal No. 391(R)CE/2001 Dated 21.8.2004 Mr. Muhammad Aslam Uns, ASC a/w Mr. Arshad Ali Ch. AOR N.R. 242 C.P.2308-L/2004 Muhammad Mansoor Dilawar Vs. Pakistan State Life Insurance Corporation and others Appeal No. 2381(L)/1999 Dated 7.5.2004 Mr. Muhammad Akram Khawaja, ASC Mr. Faiz-ur- Rehman, AOR Mr. Jehanzeb Khan Bharwana, ASC 243 C.P.2317-L/2004 Abdul Hameed Vs. The President Institute of Chartered Accountants of Pakistan,etc. Appeal No. 837(L)/1999 Dated 4.5.2004 Malik Ghulam Rasool, ASC Mr. Mehmood- ul-Islam AOR N.R. 244 C.P.2342-L/2004 National Bank of Pakistan,etc. Vs. Muhamad Sarwar Minhas Appeal No. 827(L)/1999 Dated 26.5.2004 Mr. Noor Muhammad Khan Chandio, ASC Mr. Mehmood- ul-Islam AOR Ghulam Nabi Bhatti, ASC 245 C.P.2349-L- 2352-L/2004 & 2347-2348- L/2004 Naveed Ahmed Irshad Vs. State Life Insurance Corporation of Pakistan and another Appeal No. 91, 93, 95, 96, 97 & 98(L)CE/2003 Dated 14.5.2004 Mr. Noor Muhammad Khan Chandio, ASC Mr. Mehmood- ul-Islam AOR N.R. 246 C.P.2377/2004 Pakistan Telecommunication Company Ltd. thr. Chairman and others Vs. Nasir Khan Appeal No. 1018(R)CS/2002 Dated 6.7.2004 Ch. Muhammad Sharif, ASC N.R. CA.792-816/2005, etc. 21 247 C.P.2381-L/2004 Bashir Ahmed Vs. Sheikh Zayed Hospital Lahore,etc Appeal No. 569(L)CE/2000 Dated 25.5.2004 Mr. Mehr Khan Malik N.R. 248 C.P.2387-L/2004 Muhammad Aslam Vs. P.T.C.L. etc. Appeal No. 647(L)CS/2002 Dated 17.5.2004 P- In Person Gorsi Muhamamd Din Chaudhry, ASC 249 C.P.2407/2004 (C.O) Noor Ellahi Khan Vs. Chairman Agricultural Development Bank of Pakistan and another Appeal No. 42(R)CE/2001 Dated 7.8.2004 Raja Muhamamd Asghar, ASC Mr. M.S. Khattak, AOR 250 C.P.2411/2004 Safirullah Vs. National Bank of Pakistan and others Mr. Abdul Rasheed Awan, ASC Mr. M.A. Zaidi N.R. 251 C.P.2412/2004 Nadeem Hussain Mughal Vs. M.D., PIAC Head Office, Karachi Airport, Karachi and another Appeal No.497(R)CS/2004 Dated 18.6.2004 Sardar Liaqat Ali, ASC Ijaz Muhamamd Khan, AOR Mr. Arshad Ali Ch. 252 C.P.2419/2004 Ihsan Ullah Vs. State Life Insurance Corporation of Pakistan thr. its Chairman and another Appeal No. 116(P)CE/2002 Dated 2.8.2004 P- In Person N.R. 253 C.P.2431/2004 Pervaiz Sher Lodhi Vs. ZTBL, Islamabad thr. its President and another Appeal No. 119(R)CE/2003 Dated 2.8.2004 Mr. Abdul Rehman Siddiqui, ASC Ch Muhammad Akram AOR Mr. S.M. Abdul Wahab, ASC Mr. M.A. Zaidi, AOR 254 C.P.2463/2004 Muhammad Qayyum Vs. State Life Insurance Corporation of Pakistan thr. its Chairman, Rawalpindi and others Appeal No. 11(R)CE/2002 Dated 12.8.2004 P- In Person N.R 255 C.P.2464/2004 Iftikhar Ali Butt Vs. Chairman Pakistan Telecummunication Company Ltd. and others Appeal No. 563(R)CE/2004 Dated 26.7.2004 Mr. M.A. Zaidi Ch Muhammad Akram, AOR 256 C.P.2478/2004 Ghulam Husnain Vs. Chairman Capital Development Authority (CDA), Islamabad and others Appeal No. 358(R)CE/2000 Dated 18.8.2004 Mr. F.K. Butt, ASC Mr. Ejaz Muhammad Khan N.R. 257 C.P.2506-L/2004 (Servie) Abdul Qayyum Chaudhry Vs. Chairman Board of Director,etc. Appeal No.712(L)CE/2000 Dated 11.6.2004 Nemo Mr. Jehanzeb Khan Bharwana 258 C.P.2522-L/2004 Abu Saeed Ahsan Islahi Vs. Federation of Pakistan and others Appeal No. 197(L)CE/2002 Dated 3.7.2004 Nemo Mr. Mehmood-ul-Islam 259 C.P.2533/2004 Zahid Inayat Vs. The Appeal No. Mr. Hifzur Mr. Hashmat Ali CA.792-816/2005, etc. 22 Executive Director (Personal), ADBP, Islamabad and others 584(L)CE/2001 Dated 5.8.2004 Rehman, ASC Mr. M.A. Zaidi Habib, ASC Mr. M.S. Khattak 260 C.P.2536/2004 Federal Bank of Cooperative Vs. Noor Ellahi Khan and others Appeal No. 970(R)CE/2001 Dated 232.8.2004 Ch Muhammad Akram Mr. Hashmat Ali Habib, ASC Mr. M.S. Khattak 261 C.P.2539/2004 Hanifullah Vs. Agricultural Development Bank of Pakistan, Islamabad thr. its Chairman and another Appeal No. 66(P)CE/2002 Dated 19.8.2004 Muhammad Aslam Uns, Mr. Arshad Ali Ch. Mr. Hashmat Ali Habib, ASC Mr. M.S. Khattak 262 C.P.2561/2004 Muhammad Ilyas Vs. National Bank of Pakistan Appeal No. 69(P)CE/2002 Dated 2.9.2004 Mr. Abdul Rehman Siddiqui, ASC Ch. Muhammad Akram Muhammad Rasheed Qamar, ASC Mr. Ejaz Muhammad Khan 263 C.P.2626/2004 P.I.A. Corporation thr. its M.D. Vs. Ms. Azra Sahi Appeal No. 888(R)CE/2003 Dated 17.9.2004 Mr. Arshad Ali Ch. Muhammad Munir Peracha, ASC Mr. Ejaz Muhammad Khan, 264 C.P.2631/2004 Muhammad Aslam Vs. Executive Engineer, Multan Electric and Power Supply Company and another Appeal No. 680(L)CS/2000 Dated 21.9.2004 Ch Muhammad Akram Mr. Murtaza Ali Zaidi, ASC Mr. M.S. Khattak, 265 C.P.2634/2004 Hafeez ur Rehman Vs. Pakistan Telecommunication Corporation Ltd. and others Appeal No. 38(R)CS/2002 Dated 23.9.2004 Syed Ishtiaq Haider, ASC Mr. Ejaz Muhammad Khan AOR NR 266 C.P.2707/2004 Mrs. Abida Akhtar Vs. Chairman Pakistan Agriculture Research Council, Islamabad and others Appeal No. 739(R)CE/2003 Dated 24.9.2004 Syed Ishtiaq Haider, ASC Mr. Ejaz Muhammad Khan N.R. 267 C.P.2714/2004 Muhammad Anwar Vs. Chairman, Defence Housing Authority Phase-III, 'Y' Block, Lahore Appeal No. 666(R)CS/2003 Dated 23.7.2004 Mahmud-ul- Islam N.R. 268 C.P.2723/2004 Raja Muhammad Farooq Vs. House Building Finance Corporation thr. its M.D. Appeal No. 1196(R)CE/2001 Dated 29.9.2004 P- In Person Rana Manzoor Ahmad, ASC Ch. Akhtar Ali, AOR 269 C.P.2726/2004 Dr. Muhammad Amin Deputy Director Zarai Taraqiati Bank Ltd. Vs. The President, Zarai Taraqiati Bank Ltd, Islamabad Appeal No. 439(L)/1999 Dated 20.9.2004 Mr. Arshad Ali Ch. Hafiz S.A. Rehman,Sr. ASC Mr. M.S. Khattak CA.792-816/2005, etc. 23 270 C.P.2747-L/2004 Dr. Muhammad Javaid Asif Vs. Chairman & Dean, (FPGMI) and others Appeal No. 653(L)CS/2000 Dated 25.6.2004 Mr. Mehmood- ul-Islam N.R. 271 C.P.2748/2004 Munawar Ahmed CHASNUPP Site Kundian Vs. Director Admin PAEC Headquarter Appeal No. 233(R)CE/2003 Dated 23.10.2004 P- In Person Raja Ibrahim Satti, ASC Mr. Ejaz Muhammad Khan 272 C.P.2752- 2753/2004 (Ch.O) National Bank of Pakistan and another Vs. Muhammad Arshad and another Appeal No. 1235(L)/1999 & 3(L)CE/2000 Dated 15.10.2004 Khawaja Muhamamd Farooq, ASC Mr. M.A. Zaidi Mian Mehmood Hussain in CP 2753/04 273 C.P.2757-L/2004 Muhammad Ikram Hussain Vs. Chairman Atomic Energy Commission & another. Appeal No. 1337(L)1999 Dated 17.7.2004 Mr. Rafiq Javed Butt N.R. 274 C.P.2758- 2759/2004 SME Bank Limited, Islamabad thr. its Chief Executive Vs. Muhammad Afzal and another Appeal No. 968 & 969 (R)CE/2001 Dated 7.10.2004 Mr. F.K. Butt Mr. Ejaz Muhammad Khan N.R. 275 C.P.2760-L/2004 State Life Insurance Corp. of Pakistan & another Vs. Zakaullah Malik . Appeal No. 18(L)CE/2004 Dated 30.6.2004 Mr. Jehanzeb Khan Bharwana, ASC N.R. 276 C.P.2761/2004 Joint Director, E & D Dept., Zarai Taraqiati Bank Ltd. and another Vs. Ghulam Rasool Shahid Appeal No. 140(L)CE/2000 Dated 4.9.2004 Muhamamd Rashid Qamar, ASC Mr. Ejaz Muhammad Khan Mr. Arshad Ali Ch. 277 C.P.2762/2004 Zarai Taraqiati Bank Ltd. thr. Chairman and another Vs. Muhammad Hussain Raza Appeal No. 113(R)CE/2003 Dated 23.9.2004 Muhamamd Rashid Qamar, ASC Mr. Ejaz Muhammad Khan N.R. 278 C.P.2821-L/2004 Muhammad Iqbal Vs. National Bank of Pakistan, and another Appeal No. 718(L)CE/2000 Dated 22.7.2004 Nemo Mian Qamar uz Zaman, ASC 279 C.P.2881-L/2004 Maqbool Qadir Vs. The State Bank of Pakistan, etc. Appeal No. 5(L)CE/2004 Dated 21.7.2004 Nemo N.R. 280 C.P.2890/2004 (Ch.O) Zahoor Ahmed Jaffar Vs. Secretary Ministry of Petroleum and Natural Resources, Govt. of Pakistan, Islamabad Appeal No. 8(Q)CE/2004 Dated 14.10.l2004 Shah Abdul Rasheed, Sr. ASC Ejaz Muhammad Khan Mr. Zafar Iqbal Chaudhry, ASC 281 C.P.2896-L/2004 Zia ur Rehman Vs. Pakistan International Airlines Corporation, etc. Appeal No. 51(L)CE/2003 Dated 7.6.2004 Mr. Farooq Zaman Qureshi, ASC Arshad Ali Chaudhry, ASC CA.792-816/2005, etc. 24 282 C.P.2897-L/2004 (Servie) Mehboob Ahmed Vs. Vice President National Bank,etc. Appeal No. 18(L)CE/2001 Dated 12.7.2001 Nemo N,.R. 283 C.P.2985-L/2004 Shoukat Ali Vs. The Chairman Post Graduate Medical Institute Sh.Said Hospital,Lahore.etc Appeal No. 712(L)CS/2003 Dated 27.7.2004 Mr. Farooq Zaman Qureshi, ASC N.R. 284 C.P.3085-L/2004 Anjum Rehman Vs. P.T.C.L. etc. Appeal No. 654(L)CS/2002 Dated 4.9.2004 P- In Person Gorsi Muhammad Din Chaudhry, ASC 285 C.P.3107-L/2004 Syed Saadat Ali Vs. Chairman State Life Insurance Corporation of Pakistan,etc. Syed Misbahul Hassan Abdi, ASC Mr. Jehanzeb Khan Bharwana, ASC 286 C.P.3113-L/2004 M.D. PASSCO Ltd. Lahore,etc Vs. Muhamad Nawaz Jappa,etc. Appeal No. 596(L)CE/2000 Dated 22.9.2004 Mr. Muhammad Akram Khawaja, ASC Mr. Mehmood-ul- Islam, AOR 287 C.P.3136-3137- L/2004 (Service Muhammad Akram Shah Vs. Sui Northern Gas Pipelines Ltd.thr.its M.D.etc. Appeal No. 357 & 358(L)CE/2003 Dated 1.4.2004 Malik Abdul Sattar Chughtai, ASC N.R. 288 C.P.3138-L/2004 Latif Ahmad Qureshi Vs. National Bank of Pakistan,etc. Appeal No. 1301(L)/1999 Dated 3.9.2004 Mr. M.A. Qureshi Mr. Mehmood- ul-Islam 289 C.P.3139-L/2004 Latif Ahmad Qureshi Vs. National Bank of Pakistan,etc. Appeal No. 1302(L)/1999 Dated 3.9.2004 Mr. M.A. Qureshi Mr. Mehmood-ul-Islam 290 C.P.3239-L/2004 Dr.Muhammad Javed Asif Vs. Chairman & Dean Shaikh Zayed Federal Postgraduate Medical Insitute,etc.. Appeal No. 653(L)CS/2000 Dated 28.9.2004 Mr. Mehmood- ul-Islam N.R. 291 C.P.3243-L/2004 The M.D. Sui Northern Gas Pipelines Ltd. and another Vs. Muhammad Waheed Butt Appeal No. 469(L)1998 Dated 2.10.2004 Mr. M.A. Qureshi N.R. 292 C.P.3277-L/2004 Muhammad Waheed Butt Vs. M.D. Sui Northern Gas Pipelines Ltd. and others Appeal No.469(L)/1998 Dated 2.10.2004 Mr. Mehmood- ul-Islam N.R. 293 C.P.3308-L004 Muhammad Nawaz Jappa Vs. M/s PASSCO thr. M.D. Head Office Lahore and others Appeal No. 596(L)CE/2000 Dated 22.9.2004 Nemo Muhammad Akram Khawaja, ASC Mehmood ul Islam, AOR 294 C.P.3329-L/2004 Sajid Saeed Chowhan Vs. State Life Insurance Corporation of Pakistan and others Appeal No. 497(L)CE/2001 Dated 24.11.2004 Mr. Mehmood- ul-Islam N.R. 295 C.P.3361-L/2004 Abdul Rashid Vs. The M.D. National Engg. Services Pak. (Pvt.) Ltd. Lahore and others Appeal No. 560(L)/1999 Dated 8.11.2003 Nemo N.R. CA.792-816/2005, etc. 25 296 C.P.3376-L/2004 Shabbir Ahmed Vs. Sui Northern Gas Pipelines Ltd. Lahore and others Appeal No. 290(L)CE/2000 Dated 14.10.2004 Malik Abdul Sattar Chughtai, ASC N.R. 297 C.P.33773379- L/2004 Muhammad Mushtaq Vs. Sui Northern Gas Pipelines Ltd. Lahore and others Appeal No. 108, 110 & 115(L)CE/2000 Dated 11.11.2004 Malik Abdul Sattar Chughtai, ASC N.R. 298 C.P.3380-L/2004 Basharat Butt Vs. Sui Northern Gas Pipelines Ltd. Lahore and others Appeal No. 180(L)CE/2000 Dated 19.10.2004 Malik Abdul Sattar Chughtai, ASC N.R. 299 C.P.3388-L/2004 Chairman Evacuee Trust Property Board and another Vs. Mukhtar Ahmed Appeal No. 459(L)CS/2000 Dated 14.10.2004 Mian Qamar Zaman, ASC Mr. Faiz-ur-Rehman 300 C.P.3417-L/2004 President National Bank Of Pakistan Ltd. and others Vs. Shakeel Ahmed Appeal No. 546(L)CE/2000 Dated 19.10.2004 Mian Qamar uz Zaman, ASC Nemo 301 C.P.2/2005 Zarai Taraqiati Bank Ltd thr. its Chairman and others Vs. Abrar Ahmed Appeal No. 1406(R)CE/2002 Dated 22.10.2004 Mr. S.M. Abdul Wahab, ASC Mr. M.A. Zaidi N.R. 302 C.P.5-L/2005 Muhammad Nawaz Siraj Vs. G.M. Ptv, Lhr., etc Appeal No. 406(L)CE/2000 Dated 2.11.2004 Mr. Ali Akram Qurishi, ASC Dr. Sohail Akhtar, ASC Mr. Mehmood-ul-Islam 303 C.P.2-L/2005 PIA thr. its M.D. Vs. Amin Shah Appeal No. 338(L)CE/2000 Dated 3.11.2004 Mr. M.S. Babar, ASC Sh. Masood Akhtar Mian Mehmood Hussain, ASC R- In Person 304 C.P.3/2005 Pakistan International Airlines Corporation thr. its M.D. Vs. Tasneem Kausar Appeal No. 292(R)CE/2003 Dated 24.10.2004 Sheikh Riaz Ul Haq, ASC Mr. Arshad Ali Ch. Hafiz S.A. Rehman, Sr. ASC Mr. M.A. Zaidi, AOR 305 C.P.14-L/2005 Haji Ghulam Qadir Vs. State Life Insurance Corp. thr. its Chairman, etc Appeal No. 310(L)CE/2001 Dated 12.11.2004 P- In Person Mian Mehmood Hussain, ASC Mr. Jehanzeb Khan Bharwana, ASC 306 C.P.25/2005 Muazzam Hussain Shah Vs. M.D. Member (Power), WAPDA, Wapda House, Lahore and others Mr. Jaffar Hashmi, ASC Mr. M.A. Zaidi N.R. 307 C.P.27-28/2005 Khalid Nawaz Vs. Govt. of Pakistan thr. Secy. M/o Petroleum and Natural Resources, Islamabad and others Appeal No. 410 & 411(L)CS/2000 Dated 29.11.2004 Mr. Arshad Ali Ch. N..R 308 C.P.41-L/2005 President NBP, etc Vs. Syed Mohsin Raza Qazmi Appeal No. 23(L0CE/2004 Dated 28.10.2004 Mian Qamar Zaman, ASC N.R. 309 C.P.55-L/2005 Mohammad Aslam Vs. State Life Insurance Corp. of Pakistan thr. its Chairman, etc Appeal No. 84(L)CE/2004 Dated 12.11.2004 Nemo Mr. M.A. Qureshi, AOR CA.792-816/2005, etc. 26 310 C.P.63/2005 (C.O) The Managing Director, Small Business Finance Corporation, Now SME Bank Ltd. and another Vs. Ibraz Mehmood Butt and another Appeal No. 1196(R)CE/2001 Dated 13.11.2004 Muhammad Akram Sheikh, ASC Mr. M.A. Zaidi Mr. Abdul Rehman Siddiqui, ASC Ch. Muhammad Akram, 311 C.P.64/2005 President, SME Bank Ltd. Vs. Iftikhar Ahmed Jogazai and another Appeal No. 1085(R)CE/2004 Dated 22.11.2004 Muhammad Akram Sheikh, ASC Mr. M.A. Zaidi Mr. Abdul Karim Kundi, ASC Ch Muhammad Akram 312 C.P.69/2005 Muhammad Sabir Vs. Member of Production, POF Wah Cantt. Appeal No. 131(R)CS/2004 Dated 17.5.2004 P- In Person N.R. 313 C.P.70-71/2005 Chairman, Pakistan Telecommunication Company Ltd. and others Vs. Muhammad Yasin Rashid Appeal No. 730 & 731(L)/1998 Dated 22.11.2004 Mr. Naeem Bukhari, ASC Mr. Arshad Ali Ch. Mr. Faiz-ur-Rehman 314 C.P.3105-L/2004 & C.P.113- L/2005 Muhammad Rafiq Bhatti Vs. The President N.B.P.etc. Appeal No. 154 & 417 (L)CE/2000 Dated 1.9.2004 Mian Mehmood Hussain, ASC Mian Qamar uz Zaman, ASC 315 C.P.129/2005 Ibraz Mehmood Butt Vs. The Secy. M/o Finance, Govt. of Pakistan and others Appeal No. 1196®CE/2001 Dated 13.11.2004 Mr. Abdul Rehman Siddiqui, ASC Mr. Arshad Ali Ch. Mr. Muhammad Akram Sheikh, ASC Mr. M.A. Zaidi 316 C.P.130/2005 Zarai Taraqiati Bank thr. its President Vs. Faiz Ahmed Khan Appeal No. 935(R)CE/2003 Dated 20.11.2004 Mr. Manzoor Ahmad Rana, ASC Ch. Akhtar Ali Ch Muhammad Akram 317 C.P.135- 136/2005 M/s Utility Stores Corporation of Pakistan (Pvt.) Ltd and another Vs. Nadeemullah Appeal No. 289 & 360(L)CE/2001 Dated 24.11.2004 Muhammad Jaffar Hashmi, ASC Mr. M.A. Zaidi N.R. 318 C.P.139- 140/2005 Hasnat Ahmed Khan Saeed Vs. Air Weapons thr. Its D.G. and another Appeal No. 1466 & 1467(R)CE/2004 Dated 1.12.2004 Shah Abdul Rashid, ASC Mr. Ejaz Muhammad Khan Raja Muhammad Bashir, ASC Mr. M.S. Khattak, AOR 319 C.P.141- 143/2005 Muhammad Tariq Vs. Zarai Taraqiati Bank Ltd. thr. its Chairman Appeal No. 183 & 455(P)CE/2001 & 39(P)CE/2002 Dated 6.6.2002 Mr. Abdul Rehman Siddiqui, ASC Mr. Arshad Ali Ch. Hafiz S.A. Rehman, Sr. ASC Mr. M.S. Khattak, AOR 320 C.P.165-L/2005 Chairman Evacuee Trust Property Board Lahore, etc Vs. Bashir Shahid, etc Appeal No. 455(L)/1999 Dated 23.11.2004 Mian Qamar Zaman, N.R. 321 C.P.153-K/2005 (Service Laws Matters / S.2A) Shakeel Ahmed Vs. Federal Service Tribunal & others. Appeal No.6(K)CE/2002 Dated 11.11.2004 Nemo N.R. 322 C.P.172-L/2005 Chairman Pakistan Red Crescent Society Vs. Zia Ullah Khan Appeal No. 54(L)CE/2003 Dated 7.1.2005 Ch. Mushtaq Ahmad, Sr. ASC Sh. Masood N.R. CA.792-816/2005, etc. 27 Niazi, Lahore, etc. Akhtar 323 C.P.3325- 3326/2003 & 3333- 3337/2003 Mehoodul Hussan Khalil Vs. Govt. of Pakistan thr. Secy. Finance Nemo Dr.Hussain Khan, ASC 324 C.P.216-L/2005 Muhammad Aslam Nadeem Vs. State Life Insurance of Pakistan thr. its Chairman, etc Appeal No. 264(L)CE/2003 Dated 3.4.2004 Nemo Mr. M.A. Qureshi 325 C.P.222-L/2005 Muhammad Akbar Shahid Vs. Deputy Post Master General, Central Region and another Appeal No. 101(L)CS/2004 Dated 7.12.2004 Nemo N.R. 326 C.P.225-K, 232- K/2005 Pakistan State Mills Corporation Vs. Abdul Sattar Butt Appeal No. 867(C)CE/2002 Dated 3.1.2005 Mr. M.G. Dastagir, ASC Raja Sher Muhammad Khan Raja Abdul Ghafoor, 327 C.P.265-K/2005 This case relates to the Section 2- A Cases M/s National Engineering Services Pakistan (Pvt) Ltd and others Vs. Engineer Musthaq Ahmed Khan Appeal No. 12(K)CE/2001 Dated 17.1.2005 Mr. M.G. Dastagir, ASC Mr. A.A. Siddiqui Nemo 328 C.P.268-K, 271- K/2005 M/s Pakistan Steel Mills Corporation and others Vs. Zaheer Ahmed Appeal No. 377(K)CE/2002 Dated 26.1.2005 Mr. M.G. Dastagir, ASC Raja Sher Muhammad Khan, in CP 271- K of 2005 Nemo 329 C.P.269-K/2005 The Chairman Pakistan Steel Mills and another Vs. Ghulam Fareed Appeal No. 515(K)CE/2000 Dated 6.1.2004 Mr. M.G. Dastagir, ASC Raja Sher Muhammad Khan Nemo 330 C.P.290-L/2005 P.I.A. Corporation thr. its Chairman, etc Vs. Muqaddas Anwar Butt Appeal No. 312(L)/1998 Dated 6.12.2004 Ch. Muhammad Sharif, ASC N.R. 331 C.P.298-299- K/2005 General Manager, PTCL, STR-I & another Vs. Abdul Hafeez Appeal Nos. 1708 & 1709(K)/1998 Dated 31.1.2005 Mr. S.K. Ghori, N.R. 332 C.P.343/2005 SME Bank Ltd., Islamabad Vs. Muhammad Iqbal Khan Appeal No. 2(L)CE/2001 Dated 11.12.2004 Mr. F.K. Butt, ASC Mr. Ejaz Muhammad Khan Nemo 333 C.P.497-L/2005 Junaid Hassan Vs. M.D. Sui Northern Gas, etc Appeal No. 109(L)CE/2003 Dated 11.11.2004 Mr. Abdul Sattar Chughtai, Mr. M.A. Qureshi, AOR 334 C.P.526-K/2005 Ikram Fayaz Vs. National Refinery (Ltd.) and others Appeal No. 982(K)/1998 Dated 24.5.2005 P- In Person Ali Sibtain Fazli, 335 C.P.530-L/2005 Mohammad Rashid Vs. Dy. Post Master General, etc. Appeal No. 753(L)CS/2004 Dated 27.1.2005 Nemo N.R. CA.792-816/2005, etc. 28 336 C.P.581-K/2005 (Service Laws Matters / S.2A) Abid Ali Siddiqui Vs. The State Bank of Pakistan, Thr. Chairman Central Board of Directors. Appeal No. 1234(K)CE/2001 Dated 6.1.2005 Nemo Raja Abdul Ghafoor 337 C.P.1276-L/2005 Ehsan-ud-Din Ch. Vs. NBP, etc Appeal No. 286(L)CS/2000 Dated 27.4.2005 Parvez Innayat Malik, N.R. 338 C.P.1292/2005 SME Bank Ltd. Islamabad Vs. Sadaqat Hussain and others Appeal No. 13(L) CE/2001 Dated 11.12.2004 Mr. F.K. Butt, Mr. Ejaz Muhammad Khan N.R. 339 C.P.1295-L/2005 Dir (A) Civil Aviation Authority Karachi, etc Vs. Muhammad Mumtaz Hussain Nemo N.R. 340 C.P.2275/2005 Dr.(Mrs) Farrukh Tahir Vs. Allama Iqbal Open University thr. its V.C.,etc P- In Person Raja Ibrahim Satti, ASC Mr. M.S. Khattak 341 C.P.1339/2005 Muhammad Ashraf Nadeem Vs. National Engineering Service (Pak.) Ltd and others Appeal No.69(L)CE/2000 Dated 10.11.2004 Ch Muhammad Akram N.R. 342 C.P.1350/2005 (Service Matters / Removal from Service) Muhammad Altaf Baig Vs. Regional Head National Bank of Pakistan and others Appeal No. 84(L)CE/2001 Dated 6.12.2004 Altaf Elahi Sheikh, Ch Muhammad Akram Mian Qamar Zaman, ASC Raja Abdul Ghafoor, AOR 343 C.P.1366-L/2005 Syed Jawad Hussain Vs. Chairman PIA Corp. Karachi, etc Appeal No. 113(L)CE/2004 Dated 23.5.2005 Nemo Mr. Faiz-ur-Rehman, 344 C.P.1347/2005 Pakistan International Airlines Corporation thr. its Chairman and others Vs. Miss Naghma Sehar Khan Appeal No. 482(R)CE/2004 Dated 12.1.2005 Mr. Arshad Ali Ch. R- In Person 345 C.P.1400/2005 Miss Naghma Sehar Khan Vs. P.I.A. Corp. and others Appeal No. 482(R)CE/2004 12.1.2005 P- In Person Mr. Arshad Ali Chaudhry, ASC a/w Asmatullah Khan Manager PIA 346 C.P.1454-L/2005 Khalid Masud Khan Vs. M.D. Small Business Finance Corp. etc Appeal No. 542(L)CE/2001 Dated 31.5.2005 Nemo N.R. 347 C.P.1463/2005 The State Bank of Pakistan through its Governor & another Vs. Sad Badshah and others Appeal No.1531 to 1555(R)CE/2002 Dated 31.1.2005 Malik Muhammad Qayyum, ASC Raja Abdul Ghafoor Muhammad Akram Sheikh, Sr. ASC 348 C.P.1474, 1598/2005 SME Bank Ltd. Vs. Sahibzada Appeal No. 1244(R)CE/2003 Dated 31.1.2005 Mr. F.K Butt, Mr. Ejaz Muhammad Khan Sheikh Iftikhar , ASC Ch Muhammad Akram, AOR 349 C.P.1488/2005 National Bank of Pakistan Vs. Haji Muhammad Saeed Appeal No. 348(R)CE/2002 Dated 17.1.2005 Mian Qamar Zaman Raja Abdul Ghafoor N.R. CA.792-816/2005, etc. 29 350 C.P.1545-L/2005 M. D. M/s. SNGPL, etc VS. Tariq Munawar Appeal No. 206(L)/2000 Dated 26.5.2005 Mr. M.A. Qureshi N.R. 351 C.P.1582/2005 Secy. Ministry of Finance, Islamabad Vs. Hilal A. Raza and others Appeal No. 345(R)CE/2004 Dated 28.1.2005 Mr. Nazir Ahmad Khan Lughmani Mr. Naheem Bukhari, ASC Mr. Mehr Khan Malik, AOR 352 C.P.1615-L/2005 Ehsanul Haq Vs. M.D. Sui Northern Gas Pipelines Ltd. Appeal No. 489(L)CE/2001 Dated 28.5.2005 Nemo N.R. 353 C.P.1653-L/2005 Pakistan International Airlines Corp. Vs. Mazhar Ilyas and others Appeal No. 48(L)CS/2004 Dated 4.6.2005 Mr. Arshad Ali Chaudhry, a/w Asmatullah Khan Manager Legal PIA Ch. Naseer Ahmad Bhutta 354 C.P.1713-L/2005 Tariq Amin Vs. National Bank of Pakistan, etc Appeal No. 551(L)CE/2001 Dated 12.7.2005 Mian Abdul Rashed, ASC Mian Qamar Zaman, Raja Abdul Ghafoor, AOR 355 C.P.1720/2005 Muhammad Ilyas Bhatti Vs. D.G./ M.D. Associated Press of Pakistan, etc Appeal No. 1594(R)CE/2004 Dated 27.4.2005 P- In Person N.R. 356 C.P.1785/2005 Secy. College of Physicians & Surgeons Pakistan Vs. Muhammad Maqsood Hafiz S.A. Rehman, Mr. M.S. Khattak N.R. 357 C.P.1828/2005 M.D. Pakistan Agricultural Storage & Services Corp. Ltd., etc. Vs. Muhammad Ashfaq Appeal No. 1030(R)CS/2002 Dated 21.4.2005 Muhammad Akram Khawaja, ASC Mr. Mehmood- ul-Islam N.R. 358 C.P.1855/2005 Pakistan Agricultural Research Council thr. its Chairman Vs. Khalid Masood Chaudhry, etc Appeal No. 993(R)CE/2001 Dated 7.5.2005 Abdul Karim Khan Kundi, ASC Ch Muhammad Akram N.R. 359 C.P.1874/2005 C.D.A. Thr. Its Chairman Vs. Saleh Muhammad Appeal No. 16(R)CE/2004 Dated 23.4.2005 Muhammad Anwar Sipra Mr. Ejaz Muhammad Khan N.R. 360 C.P.1931/2005 M/s Pakistan State Oil Company Ltd. and another Vs. Ghulam Farooq Appeal No. 1431(K)CE/2001 Dated 4.6.2005 Mr. Zafar Iqbal, Sheikh Riaz Ul Haq, ASC 361 C.P.1935/2005 The Pesident and Chief Executive Officer of Small & Medium Enterprises Vs. Munawar Ali Abbasi and another Appeal No. 709(R)CE/2004 Dated 20.4.2005 Rao Fazal Akhtar, ASC Mr. Ejaz Muhammad Khan Sheikh Iftikhar Hussain, Ch Muhammad Akram 362 C.P.1945/2005 Muhammad Afzal Sharif Vs. The Chief Executive Officer, LESCO, Ltd. and another Appeal No. 205(L)CS/2001 Dated 4.5.2005 Mian Mehmood Hussain, ASC N.R. 363 C.P.1950/2005 Secy. to Govt. of Pakistan Commerce Appeal No. 559(L)CE/2001 Raja Muhammad Asghar, ASC N.R. CA.792-816/2005, etc. 30 Div., Islamabad and others Vs. Muhammad Rashid Dated 7.5.2005 Mr. M.A. Zaidi 364 C.P.1977/2005 Secy. M/o Information and others Vs. Mamlook Hussain Appeal No. 675(R)CE/2001 Dated 7.5.2005 Muhammad Bashir Kiani, ASC Mr. Ejaz Muhammad Khan R- In Person 365 C.P.1985/2005 Allama Iqbal Open University, Islamabad thr. its Vice Chancellor and another Vs. Dr. Mrs. Farrukh Tahir Appeal No. 743(R)CE/2003 Dated 12.5.2005 Raja Muhamamd Ibrahim Satti, ASC Mr. M.S. Khattak N.R. 366 C.P.1999/2005 Anees ur Rehman Vs. S.M.E. Bank Ltd. Appeal No.743(R)CE/2003 Dated 12.5.2005 Hafiz S.A. Rehman, Mr. Mehr Khan Malik N.R. 367 C.P.2025- 2027/2005 Muhammad Ibrahim Vs. Federation of Pakistan thr. Secretary, M/o of Defence and another Appeal No. 132(R)CE/2003 Dated 21.5.2005 Ch Muhammad Akram Mr. Abdul Rehman Siddiqui, ASC in CP2026-27L /05, Mr. Arshad Ali Ch., ASC. 368 C.P.2039/2005 Chairman Pakistan Ordinance Factory Baord Wah Cantt. and another Vs. Sher Afsar Khan Appeal No. 103(R)CS/2003 Dated 5.5.2005 Ch Muhammad Akram N.R. 369 C.P.2048/2005 Muhammad Tahir Siddiqui Vs. State Life Head Zonal Insurance Corporation of Pakistan, and another Appeal No. 102(L)CE/2004 Dated 26.5.2005 Malik Mukhtar Malik, ASC a/w Mr. Ejaz Muhammad Khan Agha Tariq Mehmood, ASC Mr. Arshad Ali Ch. 370 C.P.2094- 2102/2005 State Life Insurance Corporation of Pakistan and another Vs. Syed Hassan Ali Shah Appeal No. 1420 to 1228(K)CE/2001 Dated 16.6.2005 Mr. M.A. Qureshi a/w Sajjad Malik, Regional Chief Insurance Corporation N.R. 371 C.P.2179/2005 PTCL thr. Its Chairman PTCL, Islamabad and others Vs. Mansoor Ahmed Khan Appeal No. 262(K)CE/2002 Dated 4.6.2005 Hafiz S.A. Rehman Mr. Mehr Khan Malik N.R. 372 C.P.2190/2005 Muhammad Ilyas, Ex-Extra Assistant Director ADBP now ZTBL Vs. Zarai Taraqiati Bank Ltd., Islamabad thr. its President and another Appeal No. 1487(R)CE/2003 Dated 11.6.2005 P- In Person N.R. 373 C.P.2191/2005 S.M.E. Bank Ltd. thr. its Chief Executive Officer Vs. Mrs. Farhat Zafar and another Appeal No. 351(L)CS/2004 Dated 18.6.2005 Mr. F.K. Butt, ASC Mr. Ejaz Muhammad Khan N.R. 374 C.P.2200- 2202/2005 The President, National Bank of Appeal No. 69, 218, 823(L)/1999 Khawaja Muhammad Mian Mehmood Hussain, CA.792-816/2005, etc. 31 Pakistan Vs. Muhammad Iqbal and others Dated 17.6.2005 Farooq, ASC Mr. M.A. Zaidi 375 C.P.2203/2005 Managing Director, Pakistan State Oil Company Limited and another Vs. Nazar Muhammad Appeal No. 79(R)CE/2003 Dated 10.8.2005 Mr. Zafar Iqbal Chaudhyr, . Syed Aqa Asif Jaffri, ASC Mr. Arshad Ali Ch 376 C.A.522/98 (Under Section 2(A) Chairman P.T. Company Vs. Irshad Muhammad Khan & others Appeal No. 1(K)/1997 Dated 1.1.1997 Raja Muhammad Bashir, ASC Mr. Mehr Khan Malik Sh.Riaz Ul Haq, ASC Mr. Ejaz Muhammad Khan 377 C.A.1394/99 & C/A/98-99/2000 Muhammad Idrees Vs. A.D.B.P.,etc. Appeal No. 809(R)/1998 335(P)/1998 844(R)/1998 Dated 2.3.1999 Muhammad Akram Sheikh, Mr. M.A. Zaidi Hafiz S.A. Rehman, Mr. Mehr Khan Malik Ch Muhammad Akram 378 C.A.638/2001 United Bank Ltd Vs. Syed Mazhar Hussain Shah Appeal No. 1839(R)/1999 Dated 1.3.2000 Khawaja Muhammad Farooq, ASC Mr. M.A. Zaidi Ch. Muhammad Sadiq Warraich, Mr. Ejaz Muhammad Khan 379 C.A.1580/2001 Investment Corporation of Pakistan, etc. Vs. Ch. Muhammad Shafiq Appeal No. 1895(L)/1998 Dated 26.9.2000 Muhamamd Akram Khawaja, ASC Mr. Faiz-ur- Rehman N.R. 380 C.A.1815/2001 The President HBL, etc. Vs. Mohammad Yousaf Appeal No. 907(L)/1998 Dated 18.1.2001 Mian Abdul Bashir, ASC R- In Person 381 C.A.1816/2001 President HBL, etc. Vs. Altaf Hassain Appeal No. 1533(L)/1998 Dated 20.1.2001 Mian Abdul Rauf, Mr. M.A. Qureshi 382 C.A.671/2002 & Crl.O.P.50/2002 in C.A.671/2002 Pakistan Steel Mills Corporation Vs. Abdul Rasheed Dahar and another. Appeal No. 656(K)CE/2000 Dated 20.6.2001 Mr. M.G. Dastagir, ASC Raja Sher Muhammad Khan Abdul Ghafoor Mangi, ASC Mr. Mehr Khan Malik 383 C.A.53/2002 Umar Ali Vs. Chairman ADBP, Islamabad others Appeal No. 225(R)CE/2000 Dated 9.2.2001 Nemo Hafiz S.A. Rehman, Sr. ASC Mr. M.A. Zaidi 384 C.A.138/2002 Managing Director P.I.A. Vs. Muhammad Hanif Lackho & another Appeal No. 1982(K)/1998 Dated 26.1.2001 Mr. Javed Altaf, ASC Sh.Salahuddin Abdul Ghafoor Mangi, ASC Raja Abdul Ghafoor 385 C.A.181/2002 Muhammad Shahid Nazir Vs. Pakistan Telecommunication Co. Ltd., etc. Appeal No. 2054(L)/1998 Dated 27.3.1999 Nemo Gorsi Din Muhammad Chaudhry, 386 C.A.492- 494/2002 Ch. Muhammad Ashraf. Vs. State Life Insurance Corporation of Pakistan and another Appeal No. 8, 102 & 103(P)CE/2000 Dated 6.2.2001 Javed A. Khan, Mr. Muhammad Zahoor Qureshi Mr. M.S. Khattak in CA 492 to 499/02 387 C.A.525, 1176/2002 Muhammad Javed Iqbal Vs. PAEC thr. Its Secretary, etc. Appeal No. 103(R)CE/2000 Dated 31.10.2000 A- In Person Raja Muhamamd Ibrahim Satti, ASC Mr. M.S. Khattak 388 C.A.526/2002 Muhammad Aslam Khan Vs. A.D.B.P. Islamabad. Appeal No. 1041(R)/1998 Dated 1.6.1999 A- In Person Hafiz S.A. Rehman, Mr. Mehr Khan Malik 389 C.A.589/2002 Chairman A.D.B.P. Appeal No. Hafiz S.A. Raja Muhammad CA.792-816/2005, etc. 32 (I.R) and another Vs. Mumtaz Khan 81(P)/1999 Dated 26.6.2000 Rehman, Mr. M.A. Zaidi Irshad, Deputy Attorney General Ms. Afshan Ghazanfar .A.A.G. Punjab Abdul Karim Khan Kudni, ASC Mr. Arshad Ali Ch. 390 C.A.593/2002 Shamsh ur Rehman Vs. D.G.P.S.B., etc. Appeal No. 1094(R)/1999 Dated 6.10.2000 A- In Person Mr. Irshad, Deputy Attorney General Mr. Arshad Ali Ch. Mr. Fazal Elahai Siddiqui, Mr. Ejaz Muhamamd Khan, AOR 391 C.A.613/2002 Muhammad Nawaz Gondal Vs. The Agricultural Development Bank and others Appeal No. 488(R)CE/2001 Dated 28.7.2001 Khawaja Muhamamd Farooq, ASC Mr. M.A. Zaidi Hafiz S.A. Rehman, Sr. ASC Mr. Mehr Khan Malik 392 C.A.689/2002 The President (Chairman) Executive Board N.B.P., etc. Vs. Khalil Ahmed Khan Appeal No. 1083(L)/1998 Dated 16.6.2001 Ch. Ameen Javed, ASC Mr. Mehmood- ul-Islam Mian Mehmood Hussain, ASC Mr. Faiz-ur-Rehman 393 C.A.870/2002 Capt (R) Malik Jahangir Ahmed Vs. Chairman P.A.E.C., etc. Abdul Rasheed Awan, ASC Mr. M.A. Zaidi Raja Muhamamd Ibrahim Satti, ASC Mr. M.S. Khattak Ms. Naheeda Mehboob Elahi, Deputy Attorney General 394 C.A.1081/2002 (D.B Syed Asif Ali. Vs. C.D.A., etc. Mr. M.Bilal, Sr. ASC Mr. M.S. Khattak Malik Muhammad Nawaz, ASC Raja Abdul Ghafoor 395 C.A.1085/2002 Zaheer ud Din Babar Vs. National Bank of Pakistan Ch. Muhammad Sadiq Warraich, ASC Mr. M.S. Khattak Khawaja Muhammad Farooq, ASC Mr. M.A. Zaidi, 396 C.A.1202/2002 (D.B) United Bank Limited and others Vs. Waseem Anjum and anothers Appeal No. 255(L)/1998 Dated 14.12.2000 Khawaja Muhammad Farooq, ASC Mr. M.A. Zaidi, Muhammad Munir Peracha, ASC Mr. Ejaz Muhammad Khan 397 C.A.1695/2002 (D.B) Waseem Ahmed Siddiqui Vs. F.S.T. etc Appeal No. 819(R)/1997 Dated 1.5.2000 Mr. Arshad Ali Ch. Abdul Baseer Qureshi, ASC Ch. Akhtar Ali 398 C.A.42/2005 (D.B) (Summons) (C.O) Binte Zohra Vs. G.M. (A & P Utility Store Corporation Pvt. & another Appeal No. 1014(R)CE/2001 Dated 7.10.2002 A- In Person Muhamamd Jaffar Hashmi, ASC Mr. M.A. Zaidi 399 C.A.325- 326/2003 N.B.P. etc. Vs. Abdul Sattar. Appeal No. 1342(L)/1998 Dated 27.4.2001 Mr. Zafar Iqbal Ch. Mr. Faiz-ur-Rehman 400 C.A.9/2004 (D.B) Ali Asghar Hussain and others Vs. Zafar Ali Appeal No. 1047(R)CE/2001 Dated 19.6.2003 Mr. M.S. Khattak Raja Muhamamd Ibrahim Satti, ASC Ch Muhammad Akram 401 C.A.603-638/ 2004 Miss Rubina Ramzan Vs MD PIA Corporation Head Office, Karachi In CA 603-627/04: Appeal No. 1497 to 1521(R)CE/2002 Dated 1.10.2003 In CA 628-638/04: Passed by Lahore High Court in W.P.805,/2002, Mr. M.A. Ghani, in CA.603-627/04 Mr. Arshad Ali Ch. a/w Asmatullah Khan Manager PIA in CA 628- Mr. Arshad Ali Ch. a/w Asmatullah Khan Manager PIA in 603- 627/04 Mr. M.A. Ghani, in CA.628-629/04 and 631-32//04 Ch. Muhammad Sadiq CA.792-816/2005, etc. 33 1248/03, 1565/03, 1636/03, 1691/03, 1744/03, 1755/03, 1768/03, 1769/031996/0320 31/2003 dated 23.12.03 638/04 Warraich, in CA 633/04 Dr. Babar Awan a/w, Ejaz Muhammad in 634-36/04 Muhamamd Rashid Qamar a/w Raja Abdul Ghafoor, in CA 637- 38/04 402 C.A.2139-2141 & 2948- 2949/2004 Chairman, State L:ife Insurance Corporation, etc. Vs. Humayun Irfan. Appeal No. 720(L)CE/2000 Dated 16.9.2004 Appeal No. 135(L)CE/2000 Dated 27.10.2004 Appeal No.454(L)CE/2001 Dated 18.10.2004 Appeal Nos. 202(P)CE & 1195(R)CE/2001 Dated 3.11.2004 Mr. M.A. Qureshi Mr. M.A. Zaidi Hafiz S.A. Rehman In person CA 2141/04 Ch. Muhammad Akram in CA 2939/04 403 C.A.5-32/2005 P.I.A.C. & others Vs Tariq Ali Khan & others Appeal Nos. 1363 & 1366 to 1392(R) CE/2002 Dated 7.11.2003 Mr. Arshad Ali Ch. a/w Asmatullah Khan Manger Legal PIA Abdul Mujeeb Pirzada, a/w Mr. M.S. Khattak, and Mr. Faiz-ur- Rehman 404 C.A.134/2005 Board of Director's Pakistan State Oil Company Ltd. through Its Chairman and others Vs. Ghulam Haider Mari and another Mr. Zafar Iqbal Chaudhry, ASC Riaz ud Din Ahmad, ASC Mr. Ejaz Muhammad Khan 405 C.A.242- 266/2005 State Bank of Pakistan thr. its Governor and another Vs. Sad Badshah Appeal No. 1531 to 1555(R)CE/2002 Dated 28.8.2004 Malik Muhammad Qayyum, SAC Raja Abdul Ghafoor Mr. Muhamamd Akram Sheikh, Sr. ASC Ch. Akhtar Ali 406 C.P.591- 612,630/2003 Ch. Azhar Ali Safeer Vs. State Life Insurance Corporation of Pakistan through its Chairman State Life and others Appeal No. 1075, 1076, 1077, 1079, 1080, 1082, 1086, 1088, 1094, 1096, 1097, 1099, 1100, 1106, 1108, 1111, 1114, 1115, 1118, 1112, 1119, 1120, (R)CE/2001 Dated 21.1.2003 Mr. M.A. Zaidi Agha Tariq Mehmood, ASC Ch. Akhtar Ali 407 C.P.2320- 2358/2005 United Bank Limited and another Vs. Manzoor Ali C/o U.B.L. Lahbour Union, Karachi Appeal No. 1401(K)/1997 Dated 15.8.2005 Mr. Khalid Anwar, Sr. ASC assisted by Barrister Bilal Shaukat Mr. Asmat Kamal, Raja Abdul Ghafoor N.R. 408 C.A.462/2002 M/s Sui Northern Gas Pipelines(Ltd) Vs. Asif Mehmood Appeal No. 1656(R)/1999 Dated 2.11.2000 Mr. M.A. Qureshi Mr. M.S. Khattak 409 C.A.702/2002 & C.A.120- 134/2004 & C.A.475-479, 562 & 2062/2004 P.I.A. Vs. Omer Saeed Kazi. Appeal No. 1322(K)/1998 Dated 6.12.2000 Appeal No. 178, 179, 205, 212, 218, 226, 234, 287(K)/1998 Dated 12.6.2003 Mr. Fazal Ghani Khan Sr. ASC, in CA 702/02 Javed Altaf a/w Mehr Khan Malik and Kamal Afsar, in CA 120-127, Muhammad Akram Sheikh, Sr. ASC a/w M.A. Zaidi, AOR Mr. Faiz ur Rehman, Mr. Ejaz Muhammad Khan Arshad Ali Chaudhry, in CA 475-478/04 CA.792-816/2005, etc. 34 Appeal No. 329 to 333 (K)CE/2002 Dated 10.5.2003 Appeal No. 91(K)CE/2004 Dated 22.4.2004 Appeal No. 287(K)/1998 Dated 4.5.2002 475-478/04 Mr. Faiz-ur- Rehman Mr. Waseem Sajjad, a/w Merh Khan Malik in CA 128-134/04 Asmatullah Khan, Manager Legal PIA Dr. Farrukh Naseem, Raja Abdul Ghafoor, ASC 410 C.A.1570-1575 /2003 & C.A.207/2004 The Habib Bank Ltd. and others Vs. Mahmood Ali Khan Appeal No.93®/CE/2003, 103(R)CE/03 & 104(R)CE2003) Dated 17.7.2003 Appeal No.1003 (R)/CE/2001 dated 10.6.2002 Shahid Anwar Bajwa, ASC Mr. M.S. Khattak in CA 1570- 1572/04 Mr. Ameer Alam Khan, Mr. M.A. Qureshi in CA 1573-74/04 Mr. Faizur Rehman in CA 1575/04 Shahid Anwar Bajwa in 1575/04 Khawaja Muhamamd Farooq a/w Ejaz Muhammad Khan in CA 207/04 411 C.A.64-86, 480- 547, 1228- 1249/2004 & C.P.194/2004 P.T.C.L. thr. Chairman, etc. Vs. Rahat-e-Alam Appeal No. 596 to 618(L)CS/2002 Dated 4.11.2003 Appeal No. 41 to 50, 164 to 169 (L)CS, 55 to 84(P)CS/2001, 271(P)CS/2002, 328(L)CS, 509 to 510(R)CS, 527, 529 to 537, 539 to 543(R)CS/2001 & 610 to 612(R) CS/2002 Dated 22.9.2003 Appeal No. 1113 to 1128(L)CS & 1140 to 1145(L)CS/2000 Dated 18.12.2003 Gorsi Muhammad Din Chaudhry, ASC Mr. Mehmood- ul-Islam in CA 64-86/04 Ch. Muhammad Sharif a/w Muhammad Ashraf Mirza Assistan Legal Advisor PTCL in CA 480-501 Mr. S.M. Abdul Wahab in CA 502-516/04 Mian Sarfraz Ul Hassan in 1228/04 etc. Mr Abdul Wahid Chaudhry, Muhamamd Ashraf Mirza, PTCL Almas Haider Kazmi, a/w Arshad Ali Ch. Syed Aqa Asif Jaffri, Syed Safdar Hussain, Mirza Hifzur Rehman, 412 C.A.214/2004 (D.B) M.D. National Books Foundation & another Vs Mrs. Irshad Abbasi Appeal No. 387(K)CE/2002 Dated 2.8.2003 Mr. Afzal Siddiqi, ASC Mr. Ejaz Muhammad Khan Nemo 413 C.A.1399/2004 G.M.Pakistan Television Corporation Lahore & others Vs. Muhammad Babar Zaman Raja Muhammad Ibrahim Satti ASC Mr. Ejaz Muhammad Khan Nemo 414 C.A.330- 339/2005 & C.P.2735/2004 Pakistan Telecommunications Company Limited thr. its Chairman and others Vs. Haq Dad Khan Appeal No. 152(P)CS/2001 Dated 8.11.2002 Appeal No.111, 112, 113, 114, 115, 116, 117,118, 119(K)/CS/02 dated 28.5.04 Appeal No. 1186(K)/1999 Dated 9.10.2004 Hafiz S A Rahman ASC Mr. Faiz-ur- Rehman (in) CA 330- 339/05 Abdul Kareem Khan Kundi,ASC Afzal Siddiqi Arshad Ali Chaudhry 415 C.A.427/2005 (-) Tassaduq Hussain Gillani, Mehar Muhammad Nawaz Vs. Managing Dir. SBFC, etc Appeal No. 755(R)CE/2000 Dated 9.1.2003 Abdul Kareem Khan Kundi,ASC FK But KSC Mr. Ejaz Muhammad Khan CA.792-816/2005, etc. 35 J. Mr. Arshad Ali Ch. Mr. Ejaz Muhammad Khan 416 C.A.747- 756/2005 Muhammad Ameen Memon and others Vs. M.D. Pakistan Television Corporation Ltd. and anothers Appeal No. 50(P)CE/2003, 626 to 628(R)CE/2003 & 732 to 734(R)CE/2004 Dated 20.9.2004 Shaukat Aziz Siddiqui ASC Raja Abdul Ghafoor Mr. M.S. Khattak Ch Muhammad Akram Abdul Kareem Khan Kundi,ASC Raja Muhammad Ibrahim Satti Mr. M.S. Khattak Ch Muhammad Akram 417 C.P.23/2005 (C.O) Chairman State Life Insurance Corporation of Pakistan and others Vs. Salamat Ullah Appeal No. 495(L)CE/2001 Dated 27.10.2004 Ibad ur Rehman Lodhi Mr. Ejaz Muhammad Khan N.R 418 C.P.513/2004 (C.O) Abdul Ghafoor Alvi Vs. Zari Tarkiyati Bank Ltd. and another Appeal No.241(R)CE/2003 Dated 26.12.2003 Mr. Nazir Ahmad Khan Lughmani Ali Hasan Gillani Mr. M.S. Khattak 419 C.P.800- 824/2004 State Bank & another Vs. Muhammad Aslam Khan Appeal Nos. 1049 to 1067(R)CE, 1140 to 1141(R)CE & 1156 to 1159(R)CE/2001 Dated 10.1.2004 Khalid Anwar ASC Raja Abdul Ghafoor Tariq Aziz Mr. Ejaz Muhammad Khan 420 C.P.1508- 1528/2004 P.T.C. Ltd., Islamabad Vs. Mansoor Ahmed Khan and others Appeal Nos. 309 to 317(K)CS, 539 to 547(K)CS & 549 to 551(K)CS/2002 Dated 29.3.2004 Naeem Bukhari Mr. Ejaz Muhammad Khan N.R 421 C.P.2356- 2367/2004 Pervez Khan Vs. Pakistan Telecommunication Company Ltd. thr. its Chairman and another Appeal No. 176(P)CS/2002 Dated 20.7.2004 Raja Muhammad Asghar Mr. M.A. Zaidi N.R 422 C.P.2540 & 2646-2685/2004 President, Zarai Traqiati Bank Ltd. and another Vs. Syed Yawar Ali Bokhari Appeal No. 42 to 57, 643, 229, 331, 904, 309 to 329(R)CE/2003 Dated 31.8.2004 Hafiz S A Rehman Mr. M.S. Khattak Shahid Hamid Mr. Ejaz Muhammad Khan (CP2651- 2664/04) CP2665 to 2685/04 423 C.P.2569- 2603/2004 Ishrat Pervez Vs. Commissioner Afghan Refugees Organization, Peshawar and others Appeal No. 167(P)CS/2001 Dated 16.9.2004 Ray Muhammad Nawaz Kharal Mr. Ejaz Muhammad Khan 424 C.P.2893- 2927/2004 P.T.C.L. thr. Chairman and another Vs. Abdul Rashid and others Appeal Nos. 1330 to 1351, 1359 to 1371(R)CE/2003 Dated 18.10.2004 Ch Muhammad Akram N.R 425 C.P.1300- 1317/2005 Chairman, Pakistan Telecom Company Ltd and another Vs. Muhammad Naeem and others Appeal Nos. 358 to 359, 409 to 418, 438 to 440, 443, 449 & 452(K)CS/2002 Dated 22.12.2004 Sheikh Riaz ul Haq Mr. M.A. Zaidi N.R 426 C.P.1367-1377 &2028/2005 National Highway Authority thr. its Chairman and others Vs. Muhammad Idrees Appeal Nos. 448, 454, 456, 458, 461, 466, 467, 470, 472, 531, 537(L)/1997 Dated 10.1.2005 Fasi Zafar, ASC Rao Muhammad Yousaf Khan CP 2028/05 Sheikh Raja Muhammad Bashir Ms Khattak (CP1367- 1369/05 (CP1370-1377/05) N.R CA.792-816/2005, etc. 36 Appeal No. 468(L)/1997 Dated 23.5.2005 Salauddin 427 C.P.1502- 1561/2005 Federation of Pakistan Vs. Mulazam Hussain and others Appeal Nos. 690 to 750(R)CS/2004 Raja Muhammad Irshad DAG Ch. Akhtar Ali N.R 428 C.P.1248- 1285/2005 M.D. Utility Stores Corporation of Pakistan (Pvt.) Ltd. and another Vs. Ejaz Hussain Talat Appeal Nos. 1557 to 1566, 1597 to 1624(R)CE/2004 Muhammad Jafar Hashmi Mr. M.A. Zaidi Chudhry Muhammad Saddik Warrich Ejaz Muhammad Khan 429 C.P.2310/2005 The Chief Manager, State Bank of Pakistan, The Mall, Rawalpindi and others Vs. Ghulam Rasool and another Raja Muhammad Ibrahim Mr. Ejaz Muhammad Khan Hafiz SA Rehman Mr. M.A. Zaidi 430 C.P.2298- 2304/2005 Chairman Pakistan Tobacco Board, Peshawar and another Vs. Azam Khan Appeal Nos. 106 to 112(P)CE/2002 Dated 15.6.2005 Syed Aqa Asif Jaffery Mir Adam Khan N.R 431 C.A.1824- 1825/2001 The Circle Executive U.B.L.,etc. Vs. Mohammad Boota Saeed Appeal No. 1032(L)/1998 Mr. M.A. Qureshi In Person 432 C.A.2615- 2618/2001 Zulfiqar Ali Vs. PTCL, etc. Appeal Nos. 624(L)CS/2000 Dated 30.9.2000 Farooq Zaman Qureshi Mr. Faiz-ur- Rehman Gorsi Muhammad Din Mian Sarfraz ul Hasan Mr. M.A. Qureshi 433 C.A.450- 461/2004 (D.B) (E.H.) Habib Bank Ltd. Vs. Nazeer Khan Appeal No. 1328(K)/1998 Dated 9.9.2002 Shahid Anwar Bajawa Mr. N.C.Motiani M.A Qureshi In Person 434 C.P.763/2003 Amanullah Memon Vs. Director Precision Engineering Complex Karachi Airport Appeal No. 849(K)/2000 Dated 7.3.2003 Muhammad Akram Sheikh Mr. M.A. Zaidi Mr. Arshad Ali Ch. 435 C.P.1410-L & 1439-L/2003 National Bank of Pakistan, etc. Vs. Azwar Hussain Appeal No. 1089(L)/1999 Dated 3.4.2003 Ameer Alam Khan Mahmud-ul- Islam Mr. M.A. Qureshi Mr. M.A. Zaidi 436 C.P.1519/2003 Ghulam Sarwar Vs. Pakistan Broadcasting Corporation thr.its Director General and others Appeal No. 1039(R)CS/2002 Dated 22.5.2003 Sheikh Iftikhar Ahmed Mr. Ejaz Muhammad Khan N.R 437 C.P.2445/2003 National Bank of Pakistan & another Vs Qasir Abbas & another Appeal No. 1867(L)/1998 Dated 21.7.2003 Khawaja Muhammad Farooq Mr. M.A. Zaidi N.R 438 C.P.2567/2003 Hafiz Abdul Rauf Vs. M.D. PASSCO & another Appeal No. 881(L)/1999 Dated 17.7.2003 Altaf Ellahi Sheikh M Munir Pasha Mr. Ejaz Muhammad Khan Mr. M.A. Qureshi 439 C.P.2274/2005 ZTBL, thr. its President and others Vs. Shabbir Ahmed Malik Appeal No. 1922(R)CE/2005 Dated 23.7.2005 Hafiz SA Rehman Mr. M.S. Khattak R- In Person CA.792-816/2005, etc. 37 440 C.A.134/2003 (E.H) (Ch.O) P.S.O. Ltd. Through its M.D. Vs. Tariq Akbar Khan and others Appeal No. 1180(R)CE/2001 Dated 19.12.2002 Abid Hasan Minto Ch. Akhtar Ali Chudhry Mushtaq Ahmed Mr. Ejaz Muhammad Khan R- In Person 441 C.A.958/2003 (S.J) State Life Insurance Corp. of Pakistan, etc. Vs. Mian Abdul Majeed. Appeal No. 9923/2001 Dated 28.10.2002 Muhammad Jhanzab Khan Bharwana Nemo 442 C.P.681-719- K/2005 Manzoor Ali Vs. U.B.L. and others Appeal Nos. 1401, 708, 714, 718, 749, 755, 767, 778, 782, 803, 825, 859, 866, 874, 876, 908, 944, 1015, 1152, 1196, 1218, 1266, 1390, 1422, 1450, 1500, 1507, 1612, 1620, 1648, 1656, 1774, 1796, 1836, 1912, 1966, 2034, 2056, 964, 965(K)CE/1997 Dated 15.8.2005 Asmat Kamal Naseem Ahmed MG Dastiger 443 C.A.783/2005 Hassan Khan Vs. M/s Sui Southern Gas. Co. Ltd. and others Appeal No.194(K)/1998 dated 12.11.2002 P- In Person A.S.K Ghouri 444 C.P.2258/2005 National Bank of Pakistan thr. Attorney and others Vs. Muhammad Aslam Appeal No. 337(L)/2000 Dated 2.6.2005 Khawaja Muhammad Farooq Mr. M.A. Zaidi N.R 445 C.P.2421- 2424/2005 Chairman, PTCL, Headquarter, Islamabad and another Vs. Saeed Anwar and others Note:- Paper books are not available Hafiz SA Rehman Mr. M.S. Khattak N.R 446 C.P.2282- 2283/2005 Pakistan International Airline Corporation and another Vs. Rafiq Ahmed Shaikh Appeal Nos. 767 to 768(K)CE/2003 Dated 2.6.2003 Shahid Anwar Bajwa Mr. M.S. Khattak Muhammad Afzal Siddiqi Mr. Ejaz Muhammad Khan 447 C.P.2768- 2770/2005 M.D. Pakistan Television Corporation, PTV, Headquarter, Islamabad and another Vs. Zia ur Rehman, Personnel Officer and another Appeal Nos. 2268 & 2269(R)CE/2005 Dated 2.12.2005 Raja Muhammad Asghar Ubaid ur Rehman Mr. Ejaz Muhammad Khan Ch. Akhtar Ali 448 C.P.88-L/2001 Nazar Khan Vs. UBL, etc. Appeal No. 1626(L)/1998 Dated 11.11.2000 Farooq Zaman Qureshi N.R 449 C.P.1090 & 1401/2002 C.P.109- 114/2003 & 136, 803-834, 843- 900, 922-982, 1000-1031, 1106, 1202- 1203, 1609, 2441, 3304/2003 & C.P.47, 56-67, 492-494, 738/2004 & C.P.88-91, 106- 112, 183-299, Dr. Huzoor Bux Vs Federation of Pakistan & others Appeal No. 870(R)CE/2000 Dated 5.4.2002 Appeal No. 1340(K)CE/2001 Dated 6.3.2002 Appeal No. 871, 872, 873, 878, 881 & 883(R)CE/2001 Dated 4.11.2002 Appeal Nos. 870(R)CE/2001 Dated 4.11.2002 Appeal Nos. 580 to 585, 894 to Mr. Ali Hassan Gillani, ASC a/w Mr. Mehr Khan Malik in CP 1090/2002 Ch. Muhammad Akram, in CP 1401/02 Syed Iftikhar Hussain Gillani a/w Meher Khan Malik, in CP 109-114, 136, 803-834, 922, 1106, 1609, Khawaja Muhamamd Farooq, ASC a/w Mr. M.S. Khattak, in CP 1401/02, CP 803- 834/03, CP 1000- 1031/03, CA 605- 719/03 Mr. Qureshi, AOR in CPs 109-114, 136/03, Mr. Tariq Asad in CP 1202/03, Syed Iftikhar Hussain Gillani a/w Mehr Khan Malik in CPs 56-67/04, 608-670- 817, 1218-1241/05, CA.792-816/2005, etc. 38 345-439, 452- 817, 838- 1241/2005 &C.A.685- 719/2003 &C.A.1032/04 &C.P.1679-L- 1682-L/2004 &C.P.1697- 1699-L/2004 &C.P.1028- 1049/2004 & C.A.786/2005 919(K)/1999 Dated 10.3.2003 Note:- CP. 843/2003 Is Missing Appeal Nos.313, 314, 317, 318 to 327, 331, 333 to 336, 338 to 341, 343, 345, 347, 481(K)/1998, 1223(K)/1999, 148, 537, 538, 658, 659, 661 to 677, 712, 713, 767, 769 to 772(K) CE/2000 Dated 10.3.2003 Note:- CP. 1000/2003 Is Missing Appeal Nos.332(K)CE/199 8, 581, 679 to 681, 683 to 685, 687 to 693, 696, 698 to 702, 766, 768, 773, 775 to 780, 782, 784(K)CE/2000 Appeal Nos. 313, 314, 316 to 327, 331, 333 to 336, 338 to 345, 347, 481, 1223 & 1226(K)/1998, 537 to 539, 658 to 677, 712, 713, 767, 769, 770, 771, 772 & 148(K)CE/2000 Dated 10.3.2003 Note:- C.P. 1106, 1202- 1203, 1609, 2441, 3304/2003 are missing. C.P. 47/2004 is missing. Appeal Nos. 2323 to 2330, 2335, 2336(R)/1999, 70 & 71(R)CE/2000 Dated 31.10.2003 Note:- CP 492-494, 738/2004 & CP 88-91, 106 to 112 Appeal Nos. 780, 763, 765, 766, 768, 770, 771, 773, 777, 783, 789, 790, 791, 793, 794, 798, 803, 804, 806, 808, 809, 811, 815, 816, 817, 818, 819, 820, 821, 822, 824, 825, 826, 827, 828, 831, 833, 834, 835, 837, 839, 842, 853, 854, 855, 856, 859, 861, 862, 1111, 1112, 1114 to 1119, 1188 to 1190, 1195, 1197, 2441, 3304/03, CPs 56-57/04, CPs 608-611, 622, 670-817, 1218/05 and CRP 64 to 68 of 05 Mr. Waseem Sajjad in CP 843 to 900/03, Waseem Sajjad a/w Mehr Khan Malik in CA 685-719/03, CA 1032/04, CRP 60,61, 62/03, Muhammad Akam Sheikh, Sr. ASC a/w Mehr Khan Malik in CP 1000-1031/03 Khawaja Muhammad Farooq, a/w Mr. M.S. Khattak in CPs 923-982/03 CP 47, 56-67/04, 492-494/04, CPs 183-299/05, CP 345-439/05, 452- 1241/05, 670- 817/05, Arshad Ali Chaudhry, in CPs 183-299/05, Mr. Wassem Sajjad a/w Arshad Ali Chaudhry in CP 345-439/03 , Waseem Sajjad a/w M.S. Khattak, in CA 605-719/03, Mr. Abdul Hafeez Pirzada a/w Mehr Khan Malik in CP 452- 1241/05 CA.792-816/2005, etc. 39 1199, 1200, 1201 to 1205, 1207, 1209, 1210, 1214, 1216, 1217, 1239, 1244, 1246, 1249, 1250, 1251, 1252, 1255, 1257, 1260, 1262, 1268, 2268, 2269, 2271, 2272, 2273, 2274, 2277, 2279, 2281, 2282, 2283, 2285, 2288, 2292, 2293, 2297, 2300, 2302, 2303, 2304, 2306, 2309, 2310, 2312, 2314, 2317, 2334(R)/1999, 632, 633, 634 & 637(R)CE/2000 Dated 23.10.2003 Appeal Nos. 567 to 587, 594 to 662, 664, 834, 1004, 1033, 1034, 1035 (R)CE/2002 Dated 8.11.2003 Appeal Nos. 554, 550, 551, 710, 575, 576, 577, 632, 633, 639, 640, 641, 252, 253, 254, 258, 260, 261, 262, 265, 266, 508, 895 to 902(K)CE/2001, 526, 550, 573, 574, 575, 577, 578, 618, 641, 765, 1067 to 1073, 1159 to 1162, 1166, 1168, 1169, 1171, 1172, 1174, 1176, 1238, 1239, 1266, 190(K)/1998, 570, 572, 574 to 580, 582 to 625, 631, 648, 649, 1284 & 1491(R)CW/2002, 1677(K)CE/2000, 219(R)CW/2002, 463(R)CW/2003, 1285(R)CW/2002, 141(R)CE/2003, 1008(R)CW/2002, 1273, 571, 573, 750(R)CE/2003, 5(Q)CE/2004, 315, 328, 329, 330, 344, 346(K)/1998, 1667, 1671, 1674, 1675, 1676, 1680(K) CE/2001, 245(K)CE/2003, 62 to 66(Q)CW/2003, 1391, 1392(R)CW/2003, 519(R)CE/2002, 1283, 1009 to 1012, 1186 to 1191, 1193, 1197, 1323 to 1350(R)CW/2002, 247, 422 to 430, CA.792-816/2005, etc. 40 444(R)CW/2003, 1411 to 1415, 1472 to 1483(R)CW/2002, 220 to 224, 250, 251, 462, 464 to 493, 497 to 536, 557, 565 to 652, 654, 698 to 703, 751 to 763, 814 to 816, 847 to 852, 856, 857, 869 to 872, 1298 & 5(R)CW/2003, 1135, 1274, 1276 to 1281(R)CW/2002, 142 to 144, 1481(R)CW/2003 Dated 12.11.2004 Appeal Nos. 1207(R)CE, 568, 570(K)CE, 1266, 1267(R)CE/2000, 39, 40(R)CE, 180(P)CE, 348, 350, 351, 352, 448, 449, 450, 451, 452, 453, 464, 467, 507, 508, 510, 511, 512, 515 to 524, 528, 530, 531, 536, 537, 556 to 653, 655, 656, 657, 677 to 737, 739 to 781, 786 to 817, 840 to 869, 895 to 903, 917, 918, 938 to 953, 965, 966, 972, 973, 1127 to 1134, 1143, 1200 to 1202, 1208(R)CE/2001, 421 to 425, 440, 446 to 473, 516, 517, 588 to 593, 663, 690, 691, 835, 836, 1264(R)CE/2002, 72, 84, 100, 101, 114, 115 & 116(R) CW/2003 Dated 2.10.2003 Appeal No. 160(K)CE/2001 Dated 26.8.2002 Note:- C.A. 1032/2004 & CP 1679-L to 1682-L/2004 & C.P. 1697 to 1699- L/2004 & CP 1028 -1049/2004 & CA 786/2005 paper books are not available. C.R.P.60-62, 64- Dr.Ghulam Murtaza. Civil Appeal Nos. Mr. Waseem Mr. Khalid Anwar, Sr. CA.792-816/2005, etc. 41 450 68/2003 in C.A.370- 371,378, 368- 369,372, 373 & 375 /2001 Vs. Federation of Pakistan and others. 370, 371, 378/2001 Dated 22.10.2001 Civil Appeal Nos. 368, 369, 372, 373, 375/2001 Dated 22.10.2001 Sajjad, Sr. ASC a/w Mr. Mehr Khan Malik in CRP 60, 61,62/03 Syed Iftikhar Hussain, Sr. ASC a/w Mehr Khan Malik in CRP 64-68/03 ASC a/w Mr. M.S. Khattak in CRP 60, 64- 68/03 451 C.R.P.81-82, 101-103, 118- 120/2003 The Managing Director Sui Southern Gas Co.Ltd . Vs. Ghulam Abbas and others Civil Appeal Nos. 533/2002 Civil Petition 1850/2002 Dated 2.5.2003 Civil Petition No. 2391, 2392 & 2394/2002 Dated 10.6.2003 Note:- CRP 118-120/2003 papers books are not available. Barrister Chaudhry Muhammad Jamil a/w M.S. Khattak, in CRP 81-82/03 Khawaja Muhammad Farooq, Mr. M.S. Khattak in CRP 101-103/03, Malik Muhammad Qayyum, ASC a/w M.S. Khattak, in CRP 118-120/03 Mr. Waseem Sajjad, Sr. ASC a/w Mehr Khan Malik in CRP 81-82/03, Muhammad Akram Sheikh, Sr. ASC a/w Mehr Khan Malik in CRP 118-120/03 R-In person in CRP 101-103/03 452 Crl.O.P.35-36, 43, 50/2003, 12, 14-15/2004 Ejaz Ali Mugheri & others Vs. Munawar Basir Ahmed, MD, Sui Southeren Gas Co.Ltd. & another Mr. Waseem Sajjad, Sr. ASC a/w Mehr Khan Malik in Cr.O.35/03, Cr.O.P.14, 15/04 Mr. Waseem Sajjad a/w Ejaz Muhammad Khan in Cr.O.P.50/03, Mr. Abdul Hafeez Pirzada, Sr. ASC a/w Mehr Khan Malik in Cr.O.P. 36/03, Syed Iftikhar Gillani a/w Mehr Khan Malik in Crl.O.P. 43/03, Cr.O.P. 12/04 Mr. Khalid Anwar a/w Mr. M.S. Khattak, AOR in Crl.O.P. 35, 36, 43, 50/03, Crl.O.P.12, 14, 14/04 Dates of hearing : 16th to 20th January, 2006. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. – In appeals No. 792 of 2005 and 148 to 167 and 174 to 178, etc. appellant questioned the judgment dated 27th CA.792-816/2005, etc. 42 November 2004, passed by Federal Service Tribunal. Relevant para therefrom reads thus:--- “11. The upshot of the whole discussion is that the appellant is a civil servant in terms of Section 2(i)(b) of the Civil Servants Act, 1973 and section 2-A of the Service Tribunals Act, 1973 and ,therefore, can invoke the jurisdiction of this Tribunal for redressal of his grievance in respect of his terms and conditions of service. The FST’s jurisdiction in the PAF Educational Institutions has been recognized by the Hon’ble Supreme Court in its judgments referred to earlier. The fact that the Appellant is considered as a civil servant for limited purpose for invoking the jurisdiction of this Tribunal, he will not be automatically entitled to all the benefits of rules, regulations which govern the civil servants Appellant shall be governed by the terms and conditions of service as laid down in AFM-540, which he accepted at the time of joining of service and any violation of the terms and conditions contained in the said Manual and if he is adversely affected he can approach the FST for redressal. The perusal of the AFM also indicates that some Government rules have been adapted by the PAF for application in these Institutions and now form part of AFM No.54-2. The employees of these Institutions shall be governed by those adopted Government rules by the Respondents and therefore, the plea of the Appellant is accepted to that extent. All the Government rules and regulations governing civil servant which do not form part of the AFM No.54-2 cannot be made applicable to him till these are adopted by the PAF Management Committee for these Institutions. Furthermore, having accepted the terms and conditions of his appointment letter Appellant is estopped from requesting for ipso facto application of Government rules and regulations to him.” 2. After hearing parties counsel, leave to appeal was granted, inter alia, to examine following questions:-- 1) Whether or not the teachers/employees of PAF Educational Institutions managed by the Managing Committees or bodies are civil servants under Section 2(1)(b) of the Civil Servants Act, 1973 or for the purpose of Section 2-A of the Service Tribunals Act, 1973? 2) Whether employees/Teachers of PAF Educational Institution can invoke the jurisdiction of the Tribunal as well as of this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan. 3) The question of validity and vires of Section 2-A of the Service Tribunals Act, 1973 on the touchstone of CA.792-816/2005, etc. 43 Article 212 and other provisions of the Constitution of Islamic Republic of Pakistan. 3. It may be noted that above questions, particularly the question cited at Sr. No.3, was likely to affect a large number of cases of the employees who are deemed to be civil servants under Section 2-A of the Service Tribunal Act, 1973 [herein after referred to as “STA, 1973”], therefore, constitution of larger bench was considered appropriate and office was directed to club all identical petitions and appeals for disposal by means of an authoritative pronouncement on the subject. Learned Attorney General for Pakistan was also asked to assist the Court, as different Constitutional provisions were likely to come under examination. 4. Learned counsel for the parties argued as follows:-- 5. Mr. Muhammad Akram Sheikh, learned Sr. ASC contended that :- a) Ultimate constitutional objective is to establish an egalitarian society, and if there was a sufficient public law element, then the concept of master and servant will not be applicable. b) Section 2-A of the STA, 1973 should be saved, instead of destroying it as it is well settled that the Court must act in favour of upholding the constitutionality of a legislation. Reliance in this behalf has been placed on Gunton v. London Borough of Richmond upon Thames [1980] 3 All ER 577, R v. Civil Service Appeal Board [1988] 3 All ER 686, Inamur Rehman v. Federation of Pakistan (1992 SCMR 563) and Farasat Hussain v. Pakistan National Shipping Corporation (2004 SCMR 1874). c) If ultimately, this Court comes to the conclusion that Section 2- A is ultra vires of the Constitution, the judgment being pronounced on its constitutionality shall be declared to have application prospectively. d) This Court is always fully empowered to provide guidelines on the issues to the Federation of Pakistan under the circumstances of the case. CA.792-816/2005, etc. 44 Reliance in this behalf has been placed on Workers of M/s Rohtas Industries Ltd. v. Rohtas Industries Ltd. (AIR 1990 SC 481) 6. Mr. Naeem Bukhari, learned ASC argued that :--- i) There is no limitation on the powers of Parliament to declare any service to be the service of Pakistan, therefore, in exercise of these powers, a declaration in terms of Section 2-A of the STA, 1973 has been made accordingly, as a result whereof every person holding a post in a statutory body and Federally controlled and managed organization shall be deemed to be in the service of Pakistan and would be treated as civil servant under the CSA, 1973, for the purpose of availing remedy under the law. In this manner, by reason of a legal fiction, the employees covered by Section 2-A of the STA, 1973 shall be deemed to be civil servants. Reliance in this behalf has been placed by him upon Mehreen Zaibun Nisa v. Land Commissioner Multan (PLD 1975 SC 397 at 433) and Siraj Din v. Sardar Khan (1993 SCMR 745 at 749). ii) The Legislature was fully conscious that Article 260 of the Constitution excludes certain persons from the definition of ‘service of Pakistan’ but in spite of it, by enacting Section 2-A of the STA 1973, for class of employees holding a post in a statutory authority and Government managed or controlled bodies and Corporations, whose cases are covered under Section 2-A, though excluded from the definition of ‘civil servant’ by providing a deeming clause indeed for this reason, ignorance is not to be imputed to the Legislature because, wisdom is always expected in favour of the Legislature, which has not to be called in question by the Courts while interpreting the law on the subject. CA.792-816/2005, etc. 45 In this behalf he relied upon Aftab Ahmed v. K.E.S.C. (1999 SCMR 197), PIA Corporation v. Koural Channa (1999 PLC (CS) 1539), Divisional Engineer Phones v. Muhammad Shahid (1999 SCMR 1526), Zahir Ullah v. Chairman WAPDA, Lahore (2000 SCMR 826), Anwar Ali Sahto v. Fedeation of Pakistan (PLD 2002 SC 101), Managing Director, SSGC Ltd. v. Ghulam Abbas, (PLD 2003 SC 724). iii) In the light of the judgments cited above, Section 2-A of the STA, 1973 is intra vires of the Constitution. However, one aspect appears to have been overlooked e.g. every person, if not holding a post, would be governed by terms of the contract, and the remedy available to such a person would be a suit for damages. Word ‘permanent post’ has been defined in Section 2(1)(e) of the CSA, 1973. Reliance is placed on State of Assam v. Kanak Chandra (AIR 1967 SC 884 rel. 886 at para 10) iv) Section 2-A of the STA, 1973 holds the field from 1997 and its constitutionality has never been challenged, therefore, at this belated stage, it would not be appropriate to strike it down. 7. Mr. M.A. Ghani, ASC contended that a) Section 2-A is applicable to those employees who do not fall within the category of worker or workman b) Article 212 of the Constitution does not cater to protect the validity of Section 2-A of the STA, 1973 and the remedy is independent of Article 212 of the Constitution because Section 2-A of the STA, 1973 itself provides a remedy. c) As regards the worker or workman, since Article 212 of the Constitution is not attracted in the case of Section 2-A and if so, Section 2-A is reduced to ordinary piece of legislation, dealing with routine cases of service and employment. CA.792-816/2005, etc. 46 d) Industrial Relation Ordinance is a special law, dealing with special class of people. Section 2-A of the STA, 1973 is an ordinary piece of legislation, thus the former is to prevail. e) Service Tribunal Act is a procedural law whereas Civil Servants Act is a substantive law. Unless corresponding amendment is made in the substantive law i.e. Civil Servants Act, they do not become civil servants and Article 212 of the Constitution would not be applicable. f) Under jurisprudence, there are two types of interpretations; one is literaligus and the other is centialigus. The Court must accept first interpretation because the legislature has said that what it means in so many words, and second interpretation can be adopted if there is ambiguity. 8. Ch. Muhammad Farooq, ASC adopted the arguments of Mr. M.A. Ghani, ASC. 9. Syed Asif Ali Shah, learned ASC argued that :--- a) Section 2-A of STA, 1973 is not in derogation of the Constitution, therefore, its constitutionality cannot be objected to. 10. Raja Muhammad Ibrahim Satti, ASC contended that :--- i) Section 2-A is intra vires of the Constitution. ii) This Court cannot examine the vires of any legislation in collateral proceedings. iii) No one, either an employee or an employer, has challenged the validity of Section 2-A of the STA, 1973. iv) In collateral proceedings, only under Article 8 of the Constitution, this Court can strike down the vires of legislative instrument. Since provision of Section 2-A of the STA, 1973 is a beneficial provision, therefore, it cannot be struck down. v) No decision by this Court can affect the petitions and appeals pending before this Court. 11. Mr. Abdul Hafeez Pirzada, learned Sr. ASC contended that:--- CA.792-816/2005, etc. 47 i) Neither any one has challenged the vires of Section 2-A of the STA, 1973 nor amongst both the parties has any one prayed for examination of its constitutionality. ii) This Court cannot widen the scope of Article 212 of the Constitution by framing a question to examine the constitutionality of Section 2-A of the STA, 1973. iii) This Court does not act in a vacuum. The Court has to take notice of these conditions in which the society is functioning. That is why it is said that no Constitution is rigid. While dealing with the case, we have to look into the ever changing circumstances of the society. 12. Mr. Tariq Asad, ASC contended that :--- a) The Court has no power of judicial review to declare any law against the Constitution, unless the test laid down in Article 8 of the Constitution is fulfilled. 13. Mr. Wasim Sajjad, learned Sr. ASC stated that:- a) Section 2-A is intra vires of the Constitution. b) If the Court has decided to examine the vires of Section 2-A of the STA, 1973, it would also be required to take into consideration the implications of the Removal from Service (Special Powers) Ordinance 2000, which covers both the categories of the employees i.e. civil servants and the workers; and this Ordinance has got the Constitutional protection, in view of 17th Amendment of the Constitution. c) The definition of ‘service of Pakistan’ under Article 260 of the Constitution is very wide and generally it is termed as ‘government service’. In this behalf he relied upon Ajit Singh v. State of Punjab (AIR 1970 Haryana 351), Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), to define the expression i.e. person performing functions in connection with the affairs of the Federation or Province. CA.792-816/2005, etc. 48 d) Article 260 of the Constitution deals only with one aspect of the service of Pakistan. Article 212 of the Constitution is an independent Article and it deals in respect of matters relating to the terms and conditions of service of the persons, who are or have been in the service of Pakistan, whereas Article 240 of the Constitution deals in respect of the service of the Federation, posts in connection with the affairs of the Federation and All Pakistan Service by or under the Act of [Majlis-e-Shoora (Parliament)]. Therefore, the Tribunal can exercise exclusive jurisdiction in respect of the employees whose cases are covered by Section 2-A of the STA 1973, notwithstanding that under Article 240 of the Constitution, their terms and conditions have been prescribed or not. e) The Court while interpreting the Constitutional provisions has to keep in mind the social set up of the country. Reliance in this behalf has been placed by him on M/s Ellahi Cotton Mills v. Federation of Pakistan (PLD 1997 SC 582) and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193). He also relied upon American Jurisprudence 2nd Edition Vol. 16 para 86 and the copy of speech of the then Law Minister Khalid Anwar, when Section 2-A was being promulgated. f) If the Court comes to the conclusion that Article 2-A of the STA, 1973 is ultra vires of the Constitution following the judgment in the case of L. Chandra Kumar v. Union of India (AIR 1997 SC 1125), it may be held that the earlier judgments passed by the Service Tribunal are valid and within jurisdiction but these can be challenged before the High Court under Article 199 of the Constitution and this Court may transfer pending, petitions for leave to appeal to the respective High Courts for treating them as Constitution Petitions under Article 199 of the Constitution for disposal. 14. Dr. Babar Awan, learned ASC contended as under:-- CA.792-816/2005, etc. 49 i) The Legislature through, Section 2-A of the STA, 1973, has validly declared the status of persons holding a post in statutory Corporations and autonomous bodies as “service of Pakistan” with the intention to protect them from arbitrary exercise of administrative discretion and in conformity with prevalent universal practice of enforcement of rule of law and protection of rights of employees. ii) Section 2-A of the STA, 1973 was inserted through an Act of Parliament, therefore, it is a valid enactment. iii) Jurisdiction of the Tribunal under Section 2-A of the STA, 1973 is to be judged in conjunction with Section 5 of the STA, 1973. iv) Jurisdiction conferred on Tribunal under Section 2-A of the STA, 1973 to adjudicate upon the grievance and claims of the persons, classified therein, does not offend the spirit of the Constitution because it is a Constitutional jurisdiction, by means of which word ‘deemed, has been inserted in law, therefore, Section 2-A of the STA, 1973 has to be protected. v) A forum of Appeal with the leave of this Court is provided under Article 212(3) of the Constitution, to this Court. vi) No law can be declared as void under the scheme of the Constitution, unless it falls within the parameters of Article 8 of the Constitution. vii) Article 37 (d) of the Constitution provides for promotion of social justice and to ensure inexpensive and expeditious justice to every citizen. Reliance in this behalf has been placed on The State v. Zia- ur-Rahman (PLD 1973 SC 49) and Hakam Qureshi v. Judges of the Lahore High Court (PLD 1976 SC 713). viii) The Federation has not come forward to do something for the poor employees of the Corporations, etc. therefore, instead of striking down Section 2-A of the STA, 1973 as a whole, instructive guidelines and directions, as deemed fit, may be issued to the Federation in view of the judgment of this Court in CA.792-816/2005, etc. 50 the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607). ix) There are a number of laws under which one segment of the society is excluded from the jurisdiction of Special Courts under a particular provision of law. Reference in this behalf can be made to NAB Ordinance, 1999. 15. Mr. Adul Mujeeb Pirzada, ASC at the very out set pointed out that i) The Federal Government itself is not interested to repeal Section 2-A of the STA 1973, as would be evident from the statement filed on its behalf by the learned Deputy Attorney General. ii) Section 2-A of the STA, 1973 is intra vires of the Constitution and it does not violate any of its provisions. iii) The principle of master and servant is violative of the injunctions of Islam, Quran, Sunnah and the Objectives Resolution. This principle is also violative of Article 14 of the Constitution being against the dignity of person, security of life and property of the individual employees, guaranteed under Article 9 of the Constitution. This principle is also discriminatory and runs against the provisions of Article 25 of the Constitution, therefore, Article 2-A of STA, 1973 is to be saved in the interest of justice. iv) Section 2-A of STA, 1973 has only provided a forum to the employees of Corporation, etc. and their cases have to be decided according to rules and regulations, governing their service, therefore, for this reason, there is no point to discuss as to whether Section 2-A of STA, 1973 is ultra vires of the Constitution or not. 16. Mr. Iftikhar Gillani, learned Sr. ASC contended as follows:- a) The class of service under Section 2-A of the STA, 1973 is distinct from civil servants as defined in Section 2(1)(b) of the CSA, 1973, therefore, neither they are in the service of Pakistan, nor they are civil servants. This distinction has been highlighted CA.792-816/2005, etc. 51 firstly in the case of Noor Mustafa Khuhro v. The Federation of Pakistan (1998 PLC (CS) 1263) and approved in Zahir Ullah (ibid) and Muhammad Nasim Turyali v. Ghulam Sarwar Khan (PLD 2005 SC 570) b) Under Article 63 of the Constitution, the Government service and the service of a statutory body has been treated at par and not distinctly, therefore, in view of the judgment in the case of Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32), it may be treated as a new specie. c) In the case of Zahir Ullah (ibid) it has been held that the employees covered under Section 2-A of the STA, 1973 have attained the status of Government servant by fiction of law, as it also includes the persons appointed on contract basis, etc, therefore, they can avail remedy before the Service Tribunal. d) As per the will of the Legislature, the employees of a Corporation have been declared to be holders of post in the service of Pakistan, therefore, whether it is right or wrong decision of the Legislature, the same has to be respected and it cannot be struck down for reasons of jurisdiction, impropriety or expediency. In this behalf he relied upon Reference by the President [No.1 of 1957] (PLD 1957 SC (Pak) 219), Kihota Hollohon v. Zachilhu (AIR 1993 SC 412), Pir Sabir Shah v. Shah Muhammad Khan (PLD 1995 SC 66) and Zulfiqar Ali Babu v. Government of the Punjab (PLD 1997 SC 11). 17. Mr. Khalid Anwar, learned Sr. ASC contended that:- a) Section 2-A of the STA, 1973 is wholly ultra vires and unenforceable. b) As per Article 260 of the Constitution, unless a person is in the service and holding a post, his case does not fall within the definition of “service of Pakistan”. c) It is a misconception that the Parliament, by means of a deeming clause, can declare that the persons holding a post under any authority or Corporation, body or organization, established by or CA.792-816/2005, etc. 52 under the Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has controlling share or interest, to be in service of Pakistan and holder of post under such authority or Corporation, body or organization shall be deemed to be a civil servant for the purpose of this Court, because no such power is available to it under Article 142 of the Constitution. d) A declaration could be given for the purpose of STA, 1973 and CSA, 1973 and even for the purpose of the Constitution but not for legislative purposes. e) According to Article 240, read with Article 260 of the Constitution, if a person who is in service of Pakistan or has been declared to be in service of Pakistan, his appointment and the terms and conditions of service shall be determined by the Act of Parliament. f) Section 2-A of the STA, 1973 has not provided any appeal to the Supreme Court, as appeal with the leave, lies before it if the conditions laid down in Article 212(3) of the Constitution are fulfilled, therefore, if it is concluded that remedy to the persons covered by Section 2-A of the STA, 1973 is before an ordinary statutory Tribunal, their remedy would lie before the High Court under Article 199 of the Constitution, being the only Article in the Constitution to safeguard the fundamental rights, there- under. g) Declaration of status of persons under Section 2-A of the STA, 1973 is for the purpose of Article 260 of the Constitution or for the purpose of STA, 1973 or CSA, 1973, therefore, all those persons, who are not holding the post, cannot be declared to be in service of Pakistan for the purpose of treating them to be civil servant under STA, 1973. h) Section 5 of the CSA, 1973 deals with the appointment in all Pakistan service or to civil service of the Federation or to a civil post in connection with the affairs of the Federation in the prescribed manner, whereas Section 6 and 7 of the CSA, 1973 deal with the probation and confirmation of a civil servant, therefore a person who is appointed on contract basis, etc. CA.792-816/2005, etc. 53 cannot be deemed to be in regular appointment and cannot be said to hold a post, as such he has no legal entitlement to avail of remedy before the Service Tribunal. i) In Ghulam Abbas case (ibid) [2003 SCMR 734], this Court has held that law of master and servant does not apply and in such situation the High Court may be approached by an employee; and if no relief is granted by the High Court, then he may invoke the jurisdiction of this Court under Article 185(3) of the Constitution. j) The workers/workmen, in presence of the Industrial Relations Ordinance 2002 [herein after referred to as “IRO, 2002”] cannot avail remedy before the Service Tribunal under Section 2-A of the STA, 1973 because the Labour laws being special law shall prevail, which is meant specially for such category of people, instead of invoking jurisdiction of the Service Tribunal, which is a general law for all intents and purposes. 18. Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan appeared on Court notice and submitted as follows:-- i) The Court cannot be estopped to examine the constitutionality of Section 2-A of the STA, 1973, at a belated stage because in the earlier judgments cited at the bar, its vires on the touchstone of the Constitution were not examined, therefore, if this Court comes to the conclusion that it is unconstitutional, the same can be declared at as such, notwithstanding the fact that the law has worked for a long time. Reliance in this behalf has been placed on Mr. Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486) and Thomas Cole Contech v. Queen (PLD 1957 PC 112). ii) It is not necessary for the Court to wait for an occasion that some one must challenge the constitutionality of a law. The Court can examine the validity/ constitutionality of the statutory provision, itself when it comes to its notice or it has been CA.792-816/2005, etc. 54 brought into notice by the parties and mere passage of time is not a criteria for the validation of the constitutionality of law. In this behalf reliance has been placed by him on Immigration and Naturalization Service v. Jagdish Rai Chandha (462 US 919 [77 L Ed. 2d 317], Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690) and Board of Intermediate and Secondary Education v. Salma Afroze (PLD 1992 SC 263). iii) If this Court comes to the conclusion that Section 2-A of the STA, 1973 is violative of any of the provisions of the Constitution, other than the chapter relating to fundamental rights, then the law is to be struck down and the declaration would be considered retrospective. It will not protect the pending proceedings. In this behalf he relied upon Ghulam Qadir v. The State (PLD 1959 SC 387), Constitution of Canada by Hog at page 1241, Fundamental Law of Pakistan by A.K. Brohi (page 591). iv) If the Court strikes down Section 2-A of the STA, 1973, being contrary to the Constitution, the workers of autonomous bodies, etc. shall avail forum of the Labour Courts and ultimately come to this Court under Article 185(3) of the Constitution. Under this provision, the threshold requirement is much lower than that of Article 212 of the Constitution. v) The employees who are in the Corporation service and whose terms and conditions of service are statutory, would be entitled to remedy in the form of a Constitution Petition and the third category, where rules of service are not statutory in nature, they can file a suit for recovery of damages. Besides, it is a cardinal principle of legal jurisprudence that mere change of a forum itself does not give rise to any vested right. Reference in this behalf can be made to Inamur Rehman (ibid). vi) Examining Section 2-A of the STA, 1973 on the touchstone of Articles 212, 240 and 260 of the Constitution, one can conclude that the law under examination has only provided a forum and CA.792-816/2005, etc. 55 not the procedure of appointment, etc. therefore, it being contrary to the Constitution deserves to be struck down. vii) Article 260 of the Constitution, while defining the expression ‘service of Pakistan’, does not provide that ‘any person employed’, rather it deals with the persons who are in service of Pakistan, in connection with the affairs of the Federation. The words “affairs of the Federation” have to be interpreted in the sense that there must be some role in the performance of the sovereign functions of the State and in absence of that a person cannot be said to be employee in the affairs of the Federation. Reference in this behalf can be made to Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244) and Aitchison College v. Muhammad Zubair (PLD 2002 SC 326). viii) Definition of ‘civil servant’ under Section 2(1)(b) of the CSA, 1973 had made number of exclusions, enumerated therein in clauses (i), (ii) and (iii), and this has been done deliberately because the persons of such categories do not fulfill the requirement of ‘in the service of Pakistan in connection with the affairs of the Federation’, under Article 260. In this behalf he relied upon Employees’ Old Age Benefit Institution v. N.I.R.C. (1988 SCMR 765) and Province of Punjab v. Punjab Labour Appellate Tribunal (2002 SCMR 836). ix) The words employed in Article 260 of the Constitution i.e. “and any other service declared to be service of Pakistan by or under the Act of [Majlis-e-Shoora (Parliament)] are required to be interpreted in the perspective of Article 260 of the Constitution. While quoting an example whether the Legislature can declare the service of a person in domestic employment to be the service of Pakistan or holding a post or office in connection with the affairs of Federation, he argued that such expression must be read in the context of the Article 260 of the Constitution. In order to reinforce his above contention, he relied upon Don Basco High School v. The Assistant Director E.O.B.I. CA.792-816/2005, etc. 56 (PLD 1989 SC 128), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Farooq Ahmed Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) and Reference No.2 of 2005 by the President of Pakistan (Hisba) (PLD 2005 SC 873). x) This Court in so many cases has made distinction between ‘service of Pakistan’ and ‘service of a Corporation’ with reference to the provisions of Article 63 of the Constitution. [disqualification of membership of Majlis-e-Shoora (Parliament)]. In support of above contention he relied upon Adil Abdul Jabbar v. Chairman Sindh Labour Appellate Tribunal [2005 PLC (CS) 956]. xi) A person, in absence of a statute or statutory rules, governing the terms and conditions of his service, is not permitted by the Constitution to approach this Court under Article 212. He relied upon Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541), Registrar, Supreme Court of Pakistan v. Wali Muhammad (1997 SCMR 141) and Muhammad Siddique v. Lahore High Court (PLD 2003 SC 885). xii) Under a deeming clause, a person covered by Section 2-A of STA, 1973 cannot be declared as civil servant, unless the nexus can be brought within the scope of a civil service and at least it should have some relevancy with the context. Reference in this behalf can be made to Commissioner of Sales Tax v. Hunza Central Asian Textile and Woollen Mills Ltd. (1999 SCMR 526), Sheikhoo Sugar Mills Ltd. v. Government of Pakistan (2001 SCMR 1376). 19. Malik Muhammad Qayyum, learned ASC contended that :- a) Section 2-A does not cover the employees whose terms and conditions are not governed by the statutory provisions of law qua the employees who fall within the definition of civil servant under the CSA, 1973 and those employees whose terms and CA.792-816/2005, etc. 57 conditions are regulated by statute, have the remedy before the Service Tribunal and by invoking the jurisdiction of the High Court under Article 199 of the Constitution, therefore, they ought to seek remedy under the Labour Laws. b) Section 2-A of the STA, 1973 has conferred jurisdiction upon the Service Tribunal, in respect of matters of the employees covered by it, being a procedural law but such jurisdiction cannot be exercised unless the terms and conditions have been regulated by a statute or statutory rules. c) For the purpose of considering a person, covered by Section 2-A of the STA, 1973, falling within the definition of civil servant, it is necessary that conditions laid down under Articles 240 and 260 of the Constitution must exists; firstly it should be a service of Pakistan actually and not by a deeming fiction; secondly, the terms and conditions of such employee must be laid down under the Act of Parliament. d) The intention of Legislature in enacting Section 2-A of the STA, 1973 was not to place the employees covered by it at a pedestal higher than that of a civil servant, including those who are employed on contractual basis and allowing remedy to the workers/labourers before the Service Tribunal merely by incorporating a deeming clause therein. In order to reinforce his arguments, he relied upon Mehreen Zaibun Nisa (ibid). 20. Mr. Kamal Azfar, ASC contended that :-- i) That the amendment introduced by Section 2-A of the STA, 1973 only relates to the change of forum but they do not alter the terms and conditions of the service of the employees, therefore, the employees whose terms and conditions are not defined by a statutory provision cannot avail of remedy before the Service Tribunal and they must avail of remedy before a forum other than the Service Tribunal. 21. Khawaja Muhammad Farooq, learned ASC argued that:-- a) Without complying with the provisions of Article 240 of the Constitution, a person cannot be declared to be in the service of Pakistan, therefore, by granting a fictional status under Section CA.792-816/2005, etc. 58 2-A of the STA, 1973, status of a civil servant cannot be granted to State managed Corporations employees, therefore, Section 2- A of the STA, 1973 be declared ultra vires of the Constitution. b) Section 2-A of the STA, 1973 also does not qualify the test laid down under Article 260 of the Constitution with reference to the definition of “service of Pakistan”, therefore, for this reason as well, it being a law contrary to the Constitution may not be allowed to hold the field any longer. c) Assuming that by means of a declaration, persons covered by Section 2-A are deemed to be in service of Pakistan, for limited purpose, amendment in the definition of civil servant under Section 2(1)(b) of the CSA, 1973 was necessary. d) As the terms and conditions of the persons, covered under Section 2-A remained same in view of the law laid down by this Court in the case of Qazi Wali Muhammad (ibid), applicable prior to amendment, they cannot invoke the jurisdiction of Service Tribunal for the redressal of their grievance in view of a deeming clause incorporated therein. e) This Court, time and again, has held that where rules of service of Corporation are not statutory, only remedy available to such employees of the Corporation is to claim damages and not reinstatement. In this behalf he relied upon number of judgments starting from Lahore Central Co-operative Bank Ltd. v. Saif Ullah Shah (PLD 1959 SC 210) and United Bank Ltd. v. Shahmim Ahmed Khan (PLD 1999 SC 990). 22. Ch. Mushtaq Ahmed Khan, learned Sr. ASC contended that :-- i) Section 2-A of the STA, 1973 is not in consonance with the provisions of Articles 240 and 260 of the Constitution, therefore, for the purpose of filing an appeal before a forum, a person cannot be treated as civil servant under this Section. ii) The provisions of Section 2-A of the STA, 1973 are against the principles of State Policy under Article 37 of the Constitution, which caste duty upon the State to provide inexpensive and CA.792-816/2005, etc. 59 speedy justice, therefore, clustering of litigation before one Tribunal, which is mostly working in Islamabad has crated a lot of problems for the employees who do not fall within the definition of civil servant, therefore, it requires to be declared as ultra vires of the Constitution. 23. Mr. Alamgir, ASC contended that :-- a) Employees of the Private Companies cannot be considered to be civil servants, therefore, declaration in this behalf is required to be made, otherwise Federal Service Tribunal has taken up the cases of such employees as well, contrary to law. 24. Mr. Shahid Anwar Bajwa, learned ASC argued that :-- i) Article 260 of the Constitution talks about three kinds of service; (1) service in connection with the affairs of Federation; (2) service in connection with the affairs of Province; and (3) service declared by the law to be service of Pakistan; but it does not deal with the post or the office for declaring the same to be service of Pakistan, whereas Article 240 of the Constitution deals in respect of categories of the service noted herein above at No. (1) and (2), therefore, the Legislature cannot declare a person to be civil servant by introducing a deeming clause. Thus, it being contrary to the Constitution deserves to be struck down. ii) First part of Section 2-A of the STA, 1973 declares service to be service of Pakistan and according to its second part, a person holding a post shall be deemed to be civil servant, whereas Article 260 of the Constitution speaks of declaring a service to be a service of Pakistan. Article 260 of the Constitution authorizes Majlis-e-Shoora (Parliament) to declare a service to be service of Pakistan but it does not enjoy any power to declare a post or office in connection with the affairs of Pakistan. Conversely, Article 240(a) of the Constitution lays down that conditions of service of a person in the service of Pakistan shall be determined in the case of service of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]. It CA.792-816/2005, etc. 60 does not speak in respect of office, therefore, second part of Section 2-A is ultra vires of the Constitution. 25. Raja Muhammad Akram, ASC contended that :-- a) Section 2-A of the STA, 1973 is intra vires of the Constitution so far it deals with the persons, whose terms and conditions have been laid down by statutory provisions and it is ultra vires in respect of persons who do not enjoy such status. b) The Service Tribunal is performing functions of judicial forum and against judgments/ orders of the Tribunal, appeal by leave of the Court is competent before this Court, therefore, appointment of its Chairman and the Members should be made with the consent of the Supreme Court of Pakistan to ensure the independence of Tribunal. c) STA, 1973 does not lay down the terms and conditions of the Members of the Service Tribunal, therefore, directives be issued to the Federal Government to prescribe their terms and conditions including qualifications for their appointment to the Service Tribunal. d) The persons, working in Corporation, as per the provisions of Section 2-A of the STA, 1973, cannot be considered to be civil servants as it would defeat their fundamental right to form association and trade union under Article 17 of the Constitution and consequential benefits arising therefrom in terms of IRO, 2002. e) Article 212 of the Constitution provides that the jurisdiction with regard to the matters relating to the terms and conditions of the persons, who are or have been in the service of Pakistan, including disciplinary matters shall exclusively vest in the Tribunal, whereas in the case of worker and the workman, whose terms and conditions are governed under IRO, 2002 cannot be deemed to be a person holding a post under the Authority or Organization as mentioned in Section 2-A. Thus such declaration being void deserves to be declared ultra vires of the Constitution. CA.792-816/2005, etc. 61 f) So far as the workman or worker are concerned, Labour Laws i.e. IRO, 2002 being a special law, prevails over the general law, as held in I.G. of Police Punjab v. Mushtaq Ahmad Warraich (PLD 1985 SC 159) and Neimat Ali Goraya v. Jaffar Abbas, Inspector/Sargeant Traffic (1996 SCMR 826). 26. Raja Muhammad Bashir, ASC argued that :-- i) Section 2-A of the STA, 1973 can be saved by interpreting it in the manner that so far it deals with the persons whose services are regulated by the statutory provisions; they can be deemed to be civil servants, therefore, to their extent it is valid law. Whereas in respect of others, whose terms and conditions of service are not governed by a statutory provision, it is contrary to the Constitution and deserves to be struck down partially. 27. M/s Hafiz S.A. Rehman ASC, Barrister Ch. Muhammad Jamil ASC, Ch. Zafar Farooq, ASC, Dr. Sohail Akhtar ASC, Raja Abdul Ghafoor ASC, Qamar-uz-Zaman ASC, Abdul Karim Kundi ASC, M.Bilal Sr. ASC, Ch. Mushtaq Masood ASC, Noor Muhammad Chandia ASC, Mian Abdul Rauf ASC and Raja Sher Muhammad Khan ASC adopted the arguments, advanced by learned Attorney General for Pakistan. 28. Mrs. Naheeda Mehboob Ellahi, learned Deputy Attorney General for Pakistan appeared on behalf of Federation of Pakistan and filed the following statement :-- “As desired by this Hon’ble Court, the undersigned contacted the Ministry of Law, Justice & Human Rights to seek specific instructions regarding the stand of the Federal Government. I have been instructed to state as follows:- i) That the vires of the legislation is a matter of this Hon’ble Court. ii) The Federal Government, is however, examining reviewing this legislation in view of the implications that it has given rise to. Sd/- Nahida Mehboob Ellahi, Deputy Attorney General for Pakistan.” 29. It would be appropriate to observe that in 1973, the Civil Servants Act, 1973 (Act No.LXXI of 1973) [herein after referred to as “CSA, 1973’] was promulgated with the following preamble:-- “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 CA.792-816/2005, etc. 62 Pakistan, and to provide for matters, connected therewith or ancillary thereto;” Section 2(1)(b) of the CSA, 1973 defines ‘civil servant’ as under:-- “Civil servant means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include:-- i) a person who is on deputation to the Federation from any province or other authority; ii) a person who is employed on contract, or on work- charged basis or who is paid from contingencies; or iii) a person who is a “worker” or “workman” as defined in the Factories Act, 1934 (XXV of 1934), or the Workman’s Compensation Act, 1923 (VII of 1923). In the above definition of the civil servant, the expression “All Pakistan Service or of a civil service of Federation” has been included, therefore, Section 5 of CSA, 1973 defines the competent authority for appointment. According to which “ Appointments to an All- Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf.” To meet the requirements of this provision of law, Federal Public Service Commission Ordinance, 1977 was promulgated in pursuance whereof the Commission was authorized to conduct tests and examinations for recruitment of persons other than officers of the Armed Forces of Pakistan, etc. 30. At this juncture it may be observed that in the same year i.e. 1973, the Service Tribunals Act, 1973 (Act LXX of 1973) was promulgated with the following preamble :-- “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 civil servants, and for matters connected therewith or ancillary thereto.” Section 2(a) defines the “civil servant” as follows:-- “ civil servant means a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973); and shall include a person declared to be a civil servant under Section 2(a);” CA.792-816/2005, etc. 63 31. Essentially, the CSA, 1973, containing the definition of “civil servant” was promulgated in pursuance of command of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as “the Constitution”], which reads thus:--- “240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined – (a) In the case of the services of the federation, posts in connection with the affairs of the Federation and All- Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]; and (b) In the case of services of a Province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly. Explanation. – In this Article, “All Pakistan Service” means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of [Majlis-e-Shoor (Parliament)]. 32. Obviously, the Administrative Tribunals were constituted under Article 212 (1)(a) of the Constitution. An appeal against their orders/judgments with the leave of the Court has been provided under sub-Article (3). For convenience same is reproduced herein below:-- “212. (1) Notwithstanding anything herein before contained the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of – (a) Matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters; (b) …………………………… (c) …………………………… (2) ………….….…………………………….……….. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal. 33. Perusal of the above definition of ‘civil servant’ reproduced earlier indicates that at least three types of persons were excluded from the definition of ‘civil servant’; firstly, those who are on deputation to the Federation from any Province or other authority; secondly, who are employed on contract, or on work-charged basis or who are paid from contingencies; and thirdly who are ‘workers’ or ‘workmen’ as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen’s Compensation Act, 1923 (VIII of 1923). CA.792-816/2005, etc. 64 34. This Court, right from 1973, when the CSA, 1973, was promulgated, had examined the definition of ‘civil servant’ in a number of cases, with reference to Section 5 of the CSA, 1973. Reference, however, may be made to the case of Mrs. M.N. Arshad v. Miss Naeem Khan (PLD 1990 SC 612). Relevant para therefrom is reproduced herein below for convenience :-- “7. A perusal of the above-quoted definition of the term ‘civil servant’ indicates that it includes a person, who is (i) a member of All Pakistan services or (ii)is a civil servant of the Federation or (iii)holds a civil post in connection with the affairs of the Federation including any such post connected with defence but does not include the persons mentioned in sub- clauses (i) and (ii) to the above clause (b), whereas the above quoted section 5 provides that the appointment to the above three categories of the persons shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. It may also be pointed out that the above-quoted section 7 of the Ordinance provides that the test and examinations for recruitment of the above three categories of persons referred to in the above clause (b) and section 5 of the Act are to be conducted as may be prescribed by rules made under Section 10 of the Ordinance. We may observe that the learned ASC has not been able to point out any rules, requiring the junior teachers to appear in the Federal Public Service Commission examination. In any case this is not the point in issue. The controversy is, as to whether respondent No.1 falls in any of the above three categories of persons, who have been defined as civil servants. Admittedly the Federation has established inter alia the college in Islamabad, which is the capital of the Federation. This has been done in the discharge of tis constitutional and/or statutory obligation as a State. In the capital of the Federation, the Federal Government discharges dual functions namely, of the Federal Government and of the Provincial Government. In the above background, it cannot be denied that respondent No.1 holds a civil post in connection with the affairs of the Federation . The Tribunal has dilated upon the above question exhaustively and has pointed out the factum that the schools and colleges were constructed by the Federation and even annual budget is provided by the Federation.” The above view has been reaffirmed in Saeed Rabbani v. Director-General Leather Industry Development Organization (PLD 1994 SC 123), Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmad (1995 SCMR, 1593), Dr. Rashid Anwar v. Federation of Pakistan (1996 SCMR 1572) and Managing Committee, P.A.F. v. Muhammad Pervaiz Akhtar (1997 SCMR 1957). It may be noted that in last mentioned case, the teachers of PAF Model Inter-College were declared to be ‘civil CA.792-816/2005, etc. 65 servants’ and with the majority opinion, the appeal filed by the Managing Committee, PAF Model Inter-College was dismissed. [Implications/reflections of the ratio decidendi of this case shall be examined in depth at a later stage while disposing of Civil Appeals, which pertains to School Teachers of PAF]. 35. From perusal of the definition of ‘civil servant’ in Section 2(1)(b) of the CSA, 1973, it emerges that in order to attain the status of a ‘civil servant’ it is necessary that the person should be member of All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation. There may be some employees who fall within the definition of ‘civil servant’ for the purpose of STA, 1973 but do not enjoy the status of All Pakistan Service or of a civil service of the Federation. Both these expressions are not synonymous, as declared by this Court in the case of Registrar, Supreme Court of Pakistan v. Wali Muhammad (1997 SCMR 141). Relevant para therefrom is reproduced herein below:-- “We would like to mention here that from the trend of arguments at the bar it appeared that two expressions ‘service of Pakistan’ and ‘Civil servants’ were treated as synonymous. This in our opinion is not so. Service of Pakistan is defined in Article 260 of the Constitution as meaning, any service, post or office in connection with the affairs of Federation or a Province. This expression also includes an All Pakistan Service and service in the Armed Forces or any other service declared under an Act of the Parliament or a Provincial Assembly as Service of Pakistan. The terms ‘Civil Servant’ is defined in the Civil Servants Act 1973 as a person, who is a member of an All Pakistan Service or of a civil service of the Federation or a person holding a civil post in connection with the affairs of Federation, including a civil post connected with the defence. However, a person on deputation to the Federation from any Province or other authority, a person who is employed on a contract or on work-charge basis who is paid from contingencies and a person who is ‘worker’ or ‘workman’ as defined in the Factories Act, 1934 or the Workmen’s Compensation Act, 1923, are expressly excluded from the category of ‘Civil Servant’. On a careful examination of the definitions of ‘Service of Pakistan’ as given in Article 260 of the Constitution and the ‘Civil Servant’ as mentioned in Civil Servants Act, 1973, it would appear that the two expressions are not synonymous. The expression ‘service of Pakistan’ used in Article 260 of the Constitution has a much wider connotation than the term ‘Civil Servant’ employed in the Civil Servants Act. While a ‘Civil Servant’ is included in CA.792-816/2005, etc. 66 the expression ‘Service of Pakistan’, the vice versa is not true. ‘Civil Servant’ as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the Constitution. To illustrate the point, we may mention here that members of Armed Forces though fall in the category of ‘Service of Pakistan’ but they are not civil servants within the meaning of Civil Servants Act and the Service Tribunals Act. The scope of expression ‘service of Pakistan’ and ‘Civil Servants’ came up for consideration before this Court in the case of Syed Abida Hussain v. Tribunal for N.A. 69 (PLD 1994 SC 60). In that case the petitioner was disqualified from contesting the general elections of 1993 on the ground that she was a person who held the office of profit in the Service of Pakistan. It was contended by the petitioner in that case that she was appointed as an Ambassador on contract for two years and as a person employed on contract was specifically excluded from the definition of civil servant the petitioner could not be disqualified. The contention was repelled by this Court in the above case as follow:- “6. It is difficult to subscribe to the contention of the learned counsel. The expression ‘service of Pakistan’ has been defined in Article 260(1) of the Constitution. It reads as follows:-- means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e- Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Minister of State, Chie Minister, Provincial Minster, Attorney-General, Advocate General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to the Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly;” Learned counsel for the petitioner rightly concedes that the post of an Ambassador is a post in connection with the affairs of the Federation. It will be seen that the definition does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled. Thus so far as the inclusion of the post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance wit the recruitment rules framed under the Civil Servants Act: consequently, the mere fact that a person is not a civil servant within the meaning of the Civil Servants Act would not put him beyond the pale of the said Constitutional definition. The contention that the case of the petitioner was covered by sub-clause (n) ibid, is entirely misconceived as ex facie it does not apply to situations where the relationship of master and servant exists between the parties. Here the petitioner was a wholetime employee of the Government and except for matters, which were specifically provided in the letter of appointment she was governed by the ordinary rules of service applicable to the civil servants. It may perhaps be of interest to mention here that these rules were framed in pursuance of the provision of Article 240 ibid. Thus the assertion on her behalf that while serving as an Ambassador CA.792-816/2005, etc. 67 she could not be treated as one in the service of Pakistan merely because her appointment to the post owed its origin to a special contract cannot be accepted. Admittedly, a period of two years has not passed since she relinquished charge of the said post. Therefore, she has been rightly held to be suffering from the disqualification laid down in clause (k) ibid. We find no merit in this petition. It is hereby dismissed. For the above discussion, it is quite clear that a person may be in the service of Pakistan but for that reason he cannot be classed as a ‘Civil Servant ‘ as well, as defined in the Civil Servants Act. The Service Tribunal established in pursuance of Article 212 of the Constitution has been conferred exclusive jurisdiction only in respect of the dispute relating to terms and conditions of the service of a '‘Civil Servant’ as defined under the Civil Servants Act, 1973 and as such the jurisdiction of the Tribunal could not be extended to any other category. “ 36. It is important to note that in the above judgments, for all intents and purposes, a person on deputation to the Federation from any Province or other authority, or a person who is employed on contract or work charge basis and is paid from contingencies and a person who is a ‘worker’ or ‘workman’ as defined in Factories Act, 1934 or the Workmen’s Compensation Act, 1923 has been expressly excluded from the definition of civil servant as defined in CSA, 1973. It is also important to note that in the judgments noted herein above, none of the employees was on contract or deputation or workman and as their terms and conditions were laid down under Article 260(1) of the Constitution, therefore, they were declared to be ‘civil servant’ Reference at this stage to Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang (PLD 1994 SC 60), would not be out of context. In the case of Qazi Wali Muhammad (ibid), relevant para of which has been reproduced herein above, this case has also been referred. In this case an Ambassador, on having qualified both the conditions of service of Pakistan and performing duties in connection with the affairs of the Federation, was found to be a ‘civil servant’. In fact, both these judgments i.e. Qazi Wali Muhammad (ibid) and Syeda Abida Hussain (ibid) clearly lay down the criteria for the purpose of treating a person to be a member of All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, etc. 37. Thus, in view of ratio decidendi of the above judgments, it can be held that a worker or a workman as defined in Factories Act, 1934 or the Workmen’s Compensation CA.792-816/2005, etc. 68 Act, 1923, notwithstanding the fact that the controlling share in the industry vests in the Federal Government, shall not be treated as civil servant. Similarly, persons on contract, even though discharging their functions in connection with the affairs of the Federation and likewise, as well as the deputationists from the Provinces to the Federal Government have not been granted protection of CSA, 1973, therefore, they were excluded from the definition of ‘civil servant’ and as per terms and conditions of the person of later category, laid down in CSA, 1973 they shall not be entitled to approach the Service Tribunal, established under Article 212 of the Constitution. It may be noted that this Court in the case of Qazi Wali Muhammad (ibid), has crystallized the proposition, leaving no ambiguity in respect of ‘civil servant’ or other persons, as per Section 2(1)(b)(i), (ii) and (iii) of the CSA, 1973 to avail remedy before the Service Tribunal in respect of their terms and conditions, being in the service of Pakistan, including disciplinary matters, as per the mandate of Article 212(1) of the Constitution. 38. It is important to note that enactment of Section 2-A of the STA, 1973 is not new to statutory regime. In this behalf, presently there are two identical provisions of law, one by Federal Legislature and one by Provincial Legislature of Sindh on the subject, implication of which will be discussed herein below. In pursuance of West Pakistan Water and Power Development Authority (Amendment) Act, 1975, (Ordinance No. LXXXIV of 1975), the West Pakistan Water and Power Development Authority (Amendment) Ordinance XVI of 1975 was amended and Section 17(1-B) of the Pakistan Water and Power Development Authority Act, 1958, was added. For the sake of convenience same is reproduced herein below:-- “[(1-B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973).] 39. Perusal of Section 17(1-B) indicates that service under the Authority was declared to be service of Pakistan and every person holding a post under the Authority, except those who are on deputation to the Authority from the Province, were deemed to be ‘civil CA.792-816/2005, etc. 69 servants’ for the purpose of STA, 1973. Significance of the amendment is that holder of a post under the Authority was declared to be in the Service of Pakistan. This Court, in the case of WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) examined the provisions of Section 17(1-A), (1-B) and (1-C) of the WAPDA Act, 1958 alongwith Sections 4 & 6 of the STA, 1973 (Act LXX of 1973) and held that jurisdiction of the Service Tribunal itself shall not be affected. Again this view was reaffirmed in the case of WAPDA v. Agha Nazim Ali (1986 SCMR 574). Similar view was reiterated in the case of WAPDA v. Javaid Ahmad (1989 SCMR 1068). Subsequent thereto, in the case of Project Director Ghotki, (WAPDA) v. Commissioner, Workmen’s Compensation Authority for the Payment of Wages Act (PLD 1992 SC 451), leave to appeal was granted to examine the question of law “whether the respondents were employees of WAPDA and as such in the service of Pakistan and their grievance, if any, could be redressed by the Service Tribunal and not by the Commissioner Workmen’s Compensation and Authority under Payment of Wages Act.” In this case, facts were that respondents were appointed as work charge employees in the projects known as ‘Salinity, Control and Reclamation Project (SCARP). On completion and successful running of the Project, these were handed over to the Government of Sindh alongwith the staff, which opted for such transfer. The Government of Sindh took them to be fresh appointees, regular in nature, and the WAPDA took the transfer as termination of their appointment with it. In this background, affected employees approached the Commissioner Workmen’s Compensation and Authority under the Payment of Wages Act, claiming gratuity, pay etc. in lieu of earned leave and notice pay. The question of jurisdiction was seriously raised but was repelled and the Authority granted them relief. This order was challenged before the High Court by invoking its constitutional jurisdiction but without any success as the High Court declined to grant relief. Consequently, the matter came up for consideration before this Court and the proposition was answered as follows:-- “9. In the position of work charge establishment under the Authority the respondents would undoubtedly be treated as in the service of Pakistan but not everyone in the service of Pakistan is a civil servant for the purposes of the Service Tribunals Act. In the Service Tribunals Act itself and in the CA.792-816/2005, etc. 70 Civil Servants Act ‘civil servant’ has been so defined as to exclude workmen. That apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority. Work charge establishment as such holds no post hence they cannot for the purposes of Service Tribunals Act be treated as civil servants. In the absence of their being civil servants, the remedy lay before the forum other than the Service Tribunal. If they fell in the definition of ‘workmen’ the authorities providing them the redress were the appropriate authorities and there was no exclusion of their jurisdiction in the case.” 40. Later on, in the case of WAPDA v. Muhammad Ashraf Naeem (1997 SCMR 1128) this Court had an occasion to examine whether West Pakistan (Industrial and Commercial Employment) Standing Orders Ordinance, 1968 would be applicable to the employees of WAPDA, notwithstanding the proviso to Section 1(4)(c) of the West Pakistan WAPDA Act 1958, and the proposition was answered as follows:--- “9. This provision of law is in two parts. By the first, service under the Authority has been declared to be a service of Pakistan. The second part, which is distinct from the first is that every person holding a post under the Authority of the type described shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. The result of this bifurcation is that the employee shall be deemed to be in service of Pakistan but not necessarily a civil servant as defined in the Civil Servants Act. If the respondent stands excluded from the definition of the civil servant as contained in the Civil Servants Act, then the statutory provision made for the civil servants will not apply. In the case in hand, it appears that the respondent is excluded from the definition of employee under the Workmen’s Compensation Act, 1923 [clause (xix) to Schedule II] whereby persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purposes of Workmen’s Compensation Act. (underlined by us to supply emphasis) 41. Whereas in the case of Wasim Ahmed Khan v. WAPDA (1997 SCMR 2000), once again the employees of WAPDA, holding post under the Authority, were deemed to be in service of Pakistan, for the purposes of STA, 1973, therefore, it was held that “removal or termination of service of such employee, falling within the mischief of Section 17(1-A) of the Act, could not be called into question under Industrial Relations Ordinance, 1969 or the Essential Services (Maintenance) Act, 1952, or under any law for the time being in force, before any Court, tribunal or commission”. In the case of CA.792-816/2005, etc. 71 Chairman, WAPDA v. Abdul Hafeez Khan (2000 SCMR 1734), it was ruled by this Court that “ every person holding a post under the WAPDA, not being a person who was on deputation to the Authority from any province, was to be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973”. Again in the case of Muhammad Ibrahim Mangrio v. Chairman WAPDA (2001 SCMR 848) this Court examined the question “as to what is the rationale behind the legislative move in relation to employees of WAPDA in the context of the Constitutional mandate, contained in Articles 260, 240 and 212 of the Constitution” and answer to the query was that “it is an admitted position that the provisions contained in Section 17(1-B) (ibid) are tantamount to making the declaration by the Legislature to the effect that the petitioners were in the ‘service of Pakistan and deemed to be civil servants for the purposes of Section 4 of the Service Tribunals Act (No.LXX of 1973). 42. Now it would be appropriate to note that earlier to promulgation of Section 2-A of the STA, 1973, by a legal fiction, Legislature similarly conferred status of ‘civil servant’ upon the employees of Corporation, etc. by means of Corporation Employees (Special Powers) Ordinance, 1978 (Ordinance No.XIII of 1978). Sections 3 and 5, being relevant are reproduced herein below for convenience sake:-- “3. Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service, a person in Corporation service appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service or reverted to his lower post or grade, as the case may be, without notice, by the President, or a person authorized by him in this behalf, on such date as the President, or as the case may be, the person so authorized may, in the public interest, direct. 4. ……………………………………………….. 5. Service of a Corporation is hereby declared to be service of Pakistan and every person in Corporation service who is removed from service or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a Corporation from any Province, shall be deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973.” 43. It may be noted that action against the employees of a Corporation was not intended to be taken generously but only in respect of those who were inducted into CA.792-816/2005, etc. 72 service from the first day of January, 1972 to the fifth day of July 1977, and were to be removed from service or reverted to lower post or grade, as the case may be, without notice, by the President or a person authorized by him in this behalf, on such date as the President, or as the case may be, the person so authorized may, in the public interest, direct. In order to provide remedy to such like persons, they were deemed to be ‘civil servants’ for the purpose of STA, 1973. It appears that said Ordinance was promulgated for limited purposes, therefore, had not covered the cases of all those employees, who were in the Corporation service or institutions, set up, established, managed or controlled by the Federal Government. [Section 2 of the Ordinance No.XIII of 1978]. The implication of Sections 3 and 5 of the Ordinance No.XIII of 1978 were examined by this Court in the cases of Mabood Khan v. Agricultural Development Bank of Pakistan (1989 SCMR 41) and Mehdi Khan v. Islamic Republic of Pakistan (1989 SCMR 345). For reference sake, relevant para from the case of Mabood Khan (ibid) is reproduced herein below:-- “5. Being not earlier to the Ordinance, in service of Pakistan, the President could not exercise in respect of such employees any power relating to the terms and conditions of their Service. Declaration by law of “any other service” as declaration having been made by section 5 of the Ordinance, the President acquired the power reserved in Article 240, by Section 3 of the Ordinance. Reading Section 5 of the Ordinance, alongwith the Constitutional provisions just reproduced, it follows that in declaring the ‘person in Corporation service’ to be ‘in service of Pakistan’, power under Article 240 of the Constitution was acquired by the President for determining their conditions of service. Nothing beyond should be read into that declaration. Next follows in section 5 of the deeming provision whereby those employees who have been dealt with under Section 3 have been provided relief/remedy in the Service Tribunal. The deeming clause is available only to those who are proceeded under Section 3 of the Ordinance and none else. On that view of the matter, as in this case action had not been taken under the Ordinance, the petitioner would not be deemed to be a civil servant for the purposes of Civil Servants Act or Service Tribunals Act. Therefore, Article 212 of the Constitution was not a bar to the petitioner seeking relief from the High Court, in its constitutional jurisdiction.” CA.792-816/2005, etc. 73 44. Likewise, in the case of Mehdi Khan (ibid), it was concluded that where an action is not taken under Section 3 of the Ordinance, the employees of the Corporation and those institutions controlled by the Government continue to be governed by their own terms and conditions as provided by or under any law or regulation. Therefore, Article 212 of the Constitution is not an impediment for them to seek relief from the High Court if they feel aggrieved by an illegal order of removal or dismissal or imposition of any other penalty by or under any law or regulation. 45. The Provincial Legislature of Sindh incorporated Section 3-E of the Sindh Service Tribunals Act, 1973, declaring “notwithstanding anything contained in any law, service of Corporation, to be the service of the Province and every person holding post in the Corporation, not being a person who is on deputation to the Corporation, shall, for the purpose of this Act, be deemed to be a civil servant”. 46. The above legislative history furnishes proof that by making declaration, Legislature is competent to declare an employee, under any Authority, Corporation, Body or Organization established by or under the Federal law, to be in the service of Pakistan, if he holds a post or office in connection with the affairs of the Federation or of a Province. Emphasis has been laid on the words “post in connection with the affairs of the Federation” as commonly used in Article 240 and 260 of the Constitution, with reference to appointment to service of Pakistan and conditions of service, and the definition of service of Pakistan. 47. Now in view of above discussion, it becomes necessary to examine relevant provisions of the Constitution, in pursuance of which Service Tribunals are established. In this behalf, Article 212 (1)(a) of the Constitution confers authority upon the appropriate Legislature to establish Administrative Courts and Tribunals. For convenience same is reproduced herein below:- “212. (1) Notwithstanding anything herein before contained the appropriate Legislature my by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of – (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; CA.792-816/2005, etc. 74 (b) ………………………………………… (c) …………………………………………. 48. At this juncture, it may be noted that under Article 323-A of the Constitution of India, the Administrative Tribunals are established. The above said Article reads as under;--- “323-A. Administrative Tribunals. – (1) Parliament may, by law, provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government.” 49. It may be pertinent to note that in the above provision of the Constitution of India, the word “post’ has been used significantly. Now the stage is ready to examine the question of validity and vires of Section 2-A of the STA, 1973 on the touchstone of Article 212 and other provisions of the Constitution. Section 2-A of the STA, 1973 is reproduced herein below:- “2-A. Service under certain Corporations, etc. to be service of Pakistan. – Service under any authority, Corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, Corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act.” 50. A plain reading of above definition indicates that this provision has impliedly included in the definition of civil servant, such persons, who stand excluded by means of clauses (i), (ii) and (iii) of Section 2(1)(b) of the CSA, 1973. It may be recalled that there are a number of persons who are serving as deputationists, contingency staff as well as workmen in connection with the affairs of the Federation of Pakistan who could not otherwise avail remedy for the redressal of their grievance before the Service Tribunal but by enacting Section 2-A in STA, 1973, persons working under any authority, Corporation, body or organization established by or under a Federal law, etc. have been made eligible to seek remedy before the Service Tribunal, notwithstanding the fact whether they are workers, workmen, permanent or temporary, holding a post on contract, CA.792-816/2005, etc. 75 etc. Prima facie, this provision of law, i.e. Section 2-A of the STA, 1973 has not advanced the cause of employees of Corporations, etc. by providing them remedy before the Service Tribunal because initially in the case of a Corporation/body, etc. if it has statutory backing, and rules are framed thereunder, its employees other than the workers, used to invoke the jurisdiction of the High Court under Article 199 of the Constitution i.e. a remedy which is always considered to be speedy, expeditious and in-expensive; whereas the employees governed by the relationship of master and servant rule used to approach the Civil Court for the redressal of their grievance while workers and the workmen were eligible to seek remedy before the local Labour Courts, functioning under the new dispensation of Industrial Relation Ordinance 2002, at the Divisional level with a right of appeal before the respective High Courts and appeal under Article 185(2) or a petition for leave to appeal under Article 185(3) of the Constitution before this Court, under which this Court enjoys vast jurisdiction, as compared to limited jurisdiction under Article 212(3) of the Constitution. 51. We have heard parties counsel at length and examined their respective contentions thoroughly, while taking into consideration the law and the judgments cited at the bar on the subject. Essentially, it would be just, fair and appropriate to examine the preliminary objections raised by learned counsel M/s Abdul Hafeez Pirzada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and others to the jurisdiction of this Court to examine the constitutionality of Section 2-A of the STA, 1973. 52. In this behalf it may be noted that this Court, in exercise of Constitutional Jurisdiction conferred upon it under various provisions of the Constitution, including Article 184, 185, 186, 187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is well settled by this time that being the apex Court, it has also been vested with inherent powers to regulate its own authority of judicial review, in as much as, that in Zafar Ali Shah v. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), it has been held by the full Court that “so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or CA.792-816/2005, etc. 76 provision of law which comes for examination before the superior Courts.” Argument by one of the learned counsel that in the absence of violation of any of the fundamental rights, guaranteed by the Constitution, Section 2-A of the STA, 1973 can be struck down only if in derogation of Article 8 of the Constitution and there is no other specific provision in the Constitution, authorizing this Court to exercise powers in this behalf is untenable on the face of it. A reference to the case of Mr. Fazlul Qader Chowdhry (ibid) would indicate that “superior Courts have inherent duty, together with the appurtenant power, to ascertain and enforce the provisions of the Constitution in any case coming before them.” In the case of A.M. Khan Leghari v. Government of Pakistan (PLD 1967 Lahore 227), it has been emphasized that “…………..in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the superior Courts as its protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provision in the absence of any bar either express or implied.” Similarly, in Messrs Electric Lamp Manufacturers of Pakistan Ltd. v. The Government of Pakistan (1989 PTD 42), it has been held that “the Parliament in England is sovereign in the real sense and it is not subject to any constraints as in England there is no written Constitution, whereas in Pakistan the Parliament is subject to constraints contemplated by the Constitution in accordance with the procedure provided therein, but so long as it is not amended the Parliament has to act within its four corners; so a statute or any of its provisions can be struck down on the ground of being ultra vires of the Constitution.” Likewise, in the case of Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it is held that “……….when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, “it is not because the judicial power is superior in degree or dignity to the legislative power” but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits.” In the case of Liaqat Hussain CA.792-816/2005, etc. 77 v. Federation of Pakistan (PLD 1999 SC 504), the conclusion was that “Court cannot strike down a statute on the ground of mala fides, but the same can be struck down on the ground that it is violative of a Constitutional provision. In Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), this Court struck down the imposition of pre-shipment inspection service charge under the Customs Act, 1969 as unconstitutional, which of course was not based on any fundamental rights. Relevant para reads as under:-- “Considering the case from all angles, although the Federal Legislature is competent to legislate for the imposition of fees within the meaning of Entry 54, in the Federal Legislative List, Fourth Schedule to the Constitution, but again as already discussed herein before, one has to see what is the nature of the legislation and whether the same could have been legislated within the ambit of the powers of the Federal Legislature. No doubt, legislation can be made to impose fee in respect of any of the matters in the Federal Legislative List, but definitely not for pre-inspection, the benefit of which has to go to the companies appointed to carry out the inspection and not to the payees of the fees. The imposition of such fee is not in lieu of services to be rendered for the benefit of its payees. ………………….. ………………. For the foregoing reasons, we are of the view that the imposition of service charge as imposed under Section 18-B of the Act towards the pre- shipment inspection is ultra vires of the powers of the Federal Legislature.” 53. Likewise, in the case of Zaman Cement Company (Pvt) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) this Court observed that “the function of the judiciary is not to question the wisdom of Legislature in making a particular law nor it can refuse to enforce it even if the result of it be to nullify its own decisions provided the law is competently made; its vires can only be challenged being violative of any of the provisions of the Constitution and not on the ground that it nullifies the judgment of the superior Courts.” In this judgment the use of expression ‘any’ has widened the jurisdiction of the Court and extended it to the extent of the violation of the any of the provisions of the Constitution including fundamental rights. Similarly in Ghulam Mustafa Ansari v. Government of Punjab (2004 SCMR 1903) it was held that “ordinarily it is not for us to question the wisdom of the Legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of CA.792-816/2005, etc. 78 some persons, unless it be violative of a constitutional provision including the fundamental rights.” 54. Adverting to the submission by Mr. Tariq Asad, ASC that Supreme Court of India has been vested with the powers to declare any law unconstitutional under Article 131-A of Indian Constitution, whereas no such powers have been conferred upon this Court under the Constitution except the powers under Article 8 of the Constitution, which are subject to violation of fundamental rights. 55. It may be pointed out that Article 131-A was inserted in the Constitution of India by means of 42nd Amendment but later on omitted by 43rd Amendment of the Constitution. However, fact remains that prior to the amendment and even now the Supreme Court of India had been examining the constitutionality of different laws and has declared them unconstitutional. Reference in this behalf may be made to Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536. In this judgment, Section 11-B of the Central Excise and Salt Act, 1944 was struck down as being violative of Article 265 of the Constitution. Reference may also be made to Marbury v. Madison [(1803 2 Law Ed. 60 (73)], which was relied upon and approved in Saiyyid Abul A’la Maudoodi v. The Govt. of West Pakistan (PLD 1964 SC 673). 56. It may be observed that in the Constitution of United States , there is no express provision, empowering the Supreme Court of United States to invalidate a statute. Nevertheless, in the case of Marbury (ibid), Chief Justice Marshall observed that “ it is, emphatically, the province and duty of the judicial department to say what the law is; those who apply the rule to particular cases, must of necessity expound and interpret that rule; if two laws conflict with each other, the Courts must decide on the operation of each; So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the Court must determine which of these conflicting rules governs the case; this is of the very essence of judicial duty; if then, the Courts are to regard the Constitution, CA.792-816/2005, etc. 79 and the Constitution is superior to any ordinary Act of the Legislature, the Constitution and not such ordinary Act, must govern the case to which they both apply.” 57. The principle laid down in Marbury case (ibid) has been followed invariably by the Courts of different jurisdictions. Reference in this behalf may also be made to the case of Australian Communist Party v. The Commonwealth [83 CLR 1 (1950-51)]. It is also to be noted that although in the Australian Constitution as well, there is no express provision, authorizing the High Court (which is the highest court of the country) to strike down a statute, yet a number of laws have been struck down by the said Court being contrary to Constitutional provisions, essentially on the basis that Constitution being the highest law every statute must conform to its parameters and where it fails to do so, it must be held repugnant to the Constitution and struck down. The Supreme Court of India expressed similar view in the case of Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC 268). Relevant para therefrom is reproduced herein below:--- “The Constitution of India which we have given to ourselves is the fundamental law of the land. The Judiciary, under the Constitution, is designed to be an intermediary body between the people on the one side and the Executive on the other. It belongs to the Judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by the Legislature. In order to keep the Executive/Legislature within the limits assigned to their authority under the Constitution, the interpretation of laws is the proper and peculiar province of the Judiciary. Constitution is the “will” of the people whereas the statutory laws are the creation of the Legislature who are the elected representatives of the people. Where the will of the legislators – declared in the statutes – stands in position to that of the people – declared in the Constitution – the will of the people must prevail. The Constitution of India provides for an elected President. House of People is elected. The State Legislators are elected. Supreme Court Judges are not elected, they are appointed under the Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges a power – called judicial review under which they may nullify unconstitutional acts of the Executive and of the elected representatives of the people assembled in the Parliament and the State Legislatures. This conclusion does not suppose that the Judiciary is superior to the Legislature. It only supposes that the power of the people – embodied in the Constitution – is superior to both. CA.792-816/2005, etc. 80 It may also be emphasized that in the Indian jurisdiction as well, learned Supreme Court struck down a statute where there was no question of violation of fundamental rights. Reference in this behalf may be made to Sundararamier & CO. v. State of Andhra Pradesh (AIR 1958 SC 468). Relevant para therefrom is also reproduced herein below for convenience:--- “Now, in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the Legislature, or because the matter itself being within its competence, its provisions offend some Constitutional restrictions. In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the Legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to the Legislature.” 58. Thus, foregoing discussion leads us to conclude that this Court is competent to examine the vires of a statute, if it has been promulgated in derogation of any of the provisions of the Constitution, apart from Article 8 of the Constitution. 59. Mr. Naeem Bukhari, learned ASC objected to the maintainability of the proceedings on the premise that Section 2-A of the STA, 1973 was promulgated as far back as 10th June 1997 by means of Service Tribunals Amendment Act No. XVII) of 1997, and it worked successfully, therefore, at this belated stage, it cannot be struck down. 60. Learned Attorney General opposed the arguments and stated that laches cannot be pleaded when a question of constitutionality of a law has been raised. 61. It is a factual position that since the promulgation of Section 2-A of the STA, 1973 its constitutionality never came under attack. However, in the instant case as noted in the paras supra, on examining the pleadings of the parties, it became necessary to examine its constitutionality. This Court in the case of Fazlul Quader Chowdhry (ibid) has held that “In any event, on questions relating to the constitutionality of actions the ground of laches cannot prevail, for there, 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.” Similarly in the CA.792-816/2005, etc. 81 case of Attorney General of Australia v. The Queen Boilermakers’ Society of Australia (PLD 1957 Privy Council 115), identical question was examined and it was held as under :--- “It is, therefore, asked, and no one can doubt that it is a formidable question, why for a quarter of a century no litigant has attacked the validity of this obviously illegitimate union. Why in Alexander’s case itself was no challenge made? How came it that in a series of cases, which are enumerated in the majority and the dissentient judgments it was assumed without question that the provisions now impugned were valid? It is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this consideration. It cannot be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provisions could not be sustained. Whether the result would have been different if their validity had previously been judicially determined after full argument directed to the precise question and had not rested on judicial dicta and common assumption it is not for their Lordships to say. Upon a question of the applicability of the doctrine of stare decisis to matters of far-reaching constitutional importance, they would imperatively require the assistance of the High Court itself. But here no such question arises. Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so for a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find express in the appropriate judgment.” 62. Learned Attorney General also relied upon Immigration and Naturalization Service (ibid) and stated that Supreme Court of United States of America struck down the power of legislative veto even through grant of such powers had become common over a span of several decades. 63. Thus, it is 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 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. 64. Preliminary objection raised in paragraph No.51 has already been attended to above. However, it may be observed that whenever there is a pure question of law, it can be raised at any time, either by the party or taken up by the Court itself, and the duty to CA.792-816/2005, etc. 82 decide in accordance with law cannot be avoided on an untenable alibi (of not having been raised by a party) i.e. ignorance of a litigant or his counsel because this duty flows from the Constitution. Reference in this behalf may be made to the cases of Abdullah Khan (ibid) and Board of Intermediate and Secondary Education (ibid). In the last mentioned case, it was observed as follows:-- “A Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter.” 65. In addition to above, perusal of Article 212(3) of the Constitution reveals that it casts duty upon the Court to specify as to whether a substantial question of law of public importance is involved, before leave to appeal is granted. Thus, it would mean that the leave can be granted only if this Court is satisfied to examine a particular aspect of the case, including the question of constitutionality of a substantive law on the basis whereof case has arisen for adjudication. In the case of Mohammad Hashim Khan v. Province of Balochistan (PLD 1976 Quetta 59), it was held that “the Tribunal under Section 5 of the said Act is deemed to be a civil court for the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure; as any other Civil Court or Tribunal, to our mind, will have jurisdiction to examine whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide.” This Court approved this view of the High Court of Balochistan in the case of Iqan Ahmad Khurram v. Government of Pakistan (PLD 1980 SC 153). Upon careful perusal of both these judgments, one can safely conclude that under Section 5 of the STA, 1973, the Service Tribunal is competent to adjudge the validity of a statute, therefore, the Supreme Court while granting leave to appeal under Article 212(3) of the Constitution, being an appellate forum, cannot logically be denied the same power as an appeal is always considered to be continuation of the original proceedings. In this behalf we are fortified by the judgment in the case of F.A. Khan v. Government of Pakistan (PLD 1964 SC 520), wherein it has been held that :-- CA.792-816/2005, etc. 83 i) When an appeal is filed, the matter becomes sub-judice and is re-heard by the appellate Court, which does not act merely as the Court of error; ii) After, there has been an appeal even though, an appellate Court simply affirms the order of Original Court the only decree or order in existence is the order of the appellate Court; iii) The Original and appellate proceedings are steps in one proceedings.” 66. This Court had an opportunity to examine identical proposition in the case of Pir Sabir Shah’case (ibid), wherein it has been held that “the doctrine that there is distinction between judicial review and appellate jurisdiction in the sense that questions of vires belong to the former and not to the latter jurisdiction is a judicially evolved doctrine, and like all judicially evolved doctrines, it is, and ought to be, flexible and capable of new application; the distinction should not be regarded as something “engraved on tablets of stone”; Foster case serves as an example in which that doctrine was effectively exploded.” High Court of Sindh in the case of Nazrul Hassan Siddiqui v. Federation of Pakistan (2000 PLC (CS) 189), after having surveyed the judgments on the point concluded that “the Federal Service Tribunal had the jurisdiction to determine the vires of a statute.” That being the case, the Supreme Court certainly would have jurisdiction to determine the vires of a statute in exercise of its jurisdiction under Article 212(3) of the Constitution. 67. It is important to note that in the cases, pertaining to WAPDA, particularly Project Director Ghotki, (WAPDA) (ibid), it was specifically held that “that apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority and as Work charge employees hold no post hence they cannot for the purposes of Service Tribunals Act be treated as civil servants. (emphasis provided); and finally it was concluded that “in the absence of their being civil servants, the remedy lay before the forum other than the Service Tribunal.” 68. The ratio decidendi of the judgments, discussed above, lays down following two basic propositions, for the purpose of ascertaining as to whether a person is in the service of Pakistan:-- CA.792-816/2005, etc. 84 a) A declaration must exist that he shall be deemed to be in the service of Pakistan. b) Such person must hold a post or office in connection with the affairs of the Federation or of a Province and includes in all Pakistan Service. 69. The view taken in the above judgments, giving rise to above proposition, was reiterated in the cases of WAPDA v. Muhammad Ashraf Naeem (ibid), Wasim Ahmed Khan (ibid), Chairman, WAPDA v. Abdul Hafeez Khan (ibid), and Muhammad Ibrahim Mangrio (ibid). In these judgments, the proposition under discussion namely, as to whether by means of a deeming clause a person can be declared to be in the service of Pakistan for the purposes of Article 260 of the Constitution, had not been examined. In this behalf it may be noted that according to Article 260 of the Constitution, the Legislature is empowered to declare any service to be service of Pakistan by or under an Act of Majlis-e-Shoora [Parliament]. This constitutional provision nevertheless does not empower the Legislature to declare any person to be in the service of Pakistan, on the basis of a legal fiction. The Legislature by using the expression “shall be deemed” has allowed to enjoy the status of civil servant, even to those persons who were excluded from its definition in terms of Section 2(1)(b) of the CSA, 1973, which also includes a person, who is a contract employee as interpreted by this Court in the case of Aftab Ahmed (ibid) followed in Zahir Ullah ‘s case (ibid). Relevant para from the last mentioned judgment is reproduced herein below for convenience:--- “The above view taken by the learned Tribunal does not appear to be correct as section 2-A which was inserted in the Service Tribunals Act, 1973 by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the learned Service Tribunal. Section 2-A ibid while providing that the service under an authority, Corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such Corporation or organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation CA.792-816/2005, etc. 85 between the employees working in such organization either as regular employees or contract employees or workmen. We are, therefore, of the view that as the appellants were covered by the provisions of Section 2-A for the purposes of availing remedy before the Service Tribunal. The fact that they were employed in the organization/Corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of inCorporation of section 2-A of the Service Tribunals Act, 1973. Accordingly, the above appeals are allowed, the order of the learned Service Tribunal is set aside and the cases are remanded to the learned Service Tribunal with the direction to decide the same afresh in the light of above observations. There will, however, be no order as to costs.” 70. Learned Attorney General pointed out that if this principle is accepted then the persons, working in the Government controlled Corporation, either on deputation or on contract basis or in the capacity of worker or workman, shall enjoy the status of the civil servant on account of the legal fiction because no such declaration is required to be made in their favour, as they are already working in the Government departments. 71. In view of above position, we are of the opinion that Article 260 of the Constitution does not mandate to Legislature to declare any person to be in the service of Pakistan, and by deeming clause to be a civil servant for the purpose of STA, 1973. We have minutely examined the earlier judgments on the point, particularly the cases of WAPDA employees, discussed above, as well as the judgment in the case of Qazi Wali Muhammad (ibid), to come to the conclusion that a person can be declared to be in service of Pakistan but not necessarily a civil servant, in terms of CSA, 1973. It was further observed in Ashraf Naeem (ibid) that “if the respondent stands excluded from the definition of civil servant as contained in Civil Servants Act, then the statutory provision made for the civil servants will not apply and such persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purposes of Workmen’s Compensation Act.” Reference in this behalf has already been made to a number of judgments. This Court in another case i.e. Divisional Engineer Phones (ibid) also examined this proposition and concluded as under :--- “The respondents in their appeals belong to the category of the person who has been declared as civil servant under Section 2-A of Service Tribunals Act, 1973, for the purpose of availing the remedy before the Service CA.792-816/2005, etc. 86 Tribunal, such persons in the absence of a corresponding amendment in the Civil Servants Act, 1973 cannot automatically become the civil servants, within the meaning of Civil Servants Act, 1973.” 72. As a result of above conclusion, the appeals filed by Divisional Engineer Phones were accepted for the reason that the respondents who were admittedly appointed after creation of the Corporation, did not enjoy the status of civil servant, therefore, they could not avail the remedy in respect of disputes, relating to their terms and conditions of service before the Service Tribunal established under the Service Tribunal Act, 1973. This view has been approved in the case of Koural Channa (ibid). 73. Undoubtedly the proposition laid down in the above judgments was very important from the jurisprudential point of view but subsequent thereto liberal view was followed by this Court, allowing a person to continue to avail remedy under Section 2-A of the STA, 1973 because of the fact that its constitutionality had never been examined, otherwise, this proposition being more logical and convincing is bound to be followed subsequently in the judgments delivered from time to time. At this juncture, reference to the case of Qazi Wali Muhammad (ibid) would not be out of context, wherein this Court while examining the status of employees of the Supreme Court has held that “ the expression ‘service of Pakistan’ used in Article 260 of the Constitution has a much wider connotation than the term ‘civil servant’ employed in the Civil Servants Act; while the ‘civil servant’ is included in the expression ‘service of Pakistan’, the vice versa is not true; ‘civil servant’ as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the Constitution.” It was further observed that “to illustrate the point, it is stated that members of Armed Forces though fall in the category of ‘service of Pakistan’ but they are not civil servants within the meaning of Civil Servants Act and the Service Tribunals Act”. 74. It is equally important to observe that under Article 260 of the Constitution, a person can be declared to be in the service of Pakistan if his duties have a nexus with the affairs of the Federation, meaning thereby that a person who is playing an active role in the performance of sovereign functions of the State and exercises public powers can CA.792-816/2005, etc. 87 legitimately claim to be in the service of Pakistan. Undoubtedly the Parliament can declare any service to be service of Pakistan but subject to the condition that such declaration should not be based on a legal fiction, as done in the instant case, whereby through a deeming clause, a person of a Government controlled Corporation in terms of Section 2-A of the STA, 1973 has been declared to be in the service of Pakistan and for such reason he shall be deemed to be a civil servant. Secondly, conditions under Article 260 of the Constitution with regard to having nexus/connection with the affairs of the Federation of Pakistan have not been fulfilled. According to “Understanding Statutes” by S.M. Zafar 2nd Edition page 101, the purpose of importing a deeming clause is to impose an artificial construction of a word or phrase that would not otherwise prevail and sometimes it is to make the construction certain.” It has been further observed by the learned jurist that “if the deeming provision is invalid, all the ancillary provisions fall to the ground along with it; and if the later Act is entirely dependent upon the continuing existence and validity of the earlier Act, which is held to be unconstitutional and has no legal existence the provisions of the later Act are incapable of enforcement.” It is important to note that two important concepts have been introduced by the learned author in the construction of the provision creating a statutory fiction, namely; “statutory fiction should be carried to its logical conclusion as held in Muhammad Yasin v. Sheikh Ghulam Murtaza and another (PLD 1988 SC 163) but the fiction cannot be extended beyond the language of the section by which it is created or by importing another fiction,” therefore, to find out a solution, it has been observed that “principle of harmonization shall be attracted” and ultimately it was held that “the impact of deeming clause could be curtailed if it produces a disgraceful result.” 75. This Court had an occasion to examine the effect of a deeming clause in the case of Mehreen Zaibun Nisa (ibid), wherein the effect of a deeming clause in light of the earlier judgments was summed up as follows:--- i) When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist. CA.792-816/2005, etc. 88 ii) Where a statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. iii) At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction. iv) When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.” 76. As pointed out herein above that on promulgation of Section 2-A of the STA, 1973, the persons employed in the Government controlled Corporations, were never treated to be in the service of Pakistan, therefore, they were not allowed to enjoy the status of a civil servant. But now, by means of a legal fiction, such status has been conferred upon them notwithstanding the fact that statedly their cases are not covered by the definition of “civil servant” and on account of this legal fiction a discrimination has been created between the persons, who have been excluded from the definition of civil servant as per Section 2(1)(b) of the CSA, 1973 whereas the persons in the employment of Government controlled Corporations, either created by or under a statute, most of them incorporated under the Companies Ordinance 1984, have been declared to be in the service of Pakistan and deemed to be civil servants. Thus, it has created a classification which does not seem to be reasonable. As per the second principle, noted herein above, a deeming clause only permits to imagine a particular state of affairs but it does not mean that such imagination can be allowed to be overwhelmed, when it comes to the inevitable corollaries of that state of affairs, therefore, merely on the basis of imagination, status of a person cannot be converted, without ensuring compliance of the basic requirements. As in the case in hand, merely on the basis of a deeming clause, if a person is treated to be a civil servant, it has also to be examined whether remaining conditions, provided under the CSA, 1973 have been afulfilled, particularly, as to whether, while making appointments, CA.792-816/2005, etc. 89 provisions of Section 5 of the CSA, 1973 have been complied with or not, according to which the appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with the defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. Inevitable corollary consequent upon this provision of law and the conclusion would be that those persons, who are working in the Government controlled Corporations etc. and have been appointed in a prescribed manner, would be deemed to be in the service of Pakistan and if their status is declared to be a civil servant, only then they would be entitled to enjoy the benefits of Section 2-A of the STA, 1973, whereas the persons other than those, like persons employed on contract basis, deputationist, worker or workman, under different statutes, whose appointment has not taken place in the prescribed manner, shall not be deemed to be civil servants and merely on the basis of fiction their status cannot be enhanced essentially, in majority of cases, they have not been appointed under any statutory provision and it is also not clear as to whether their appointment had taken place under lawful authority and such Authority had exercised its discretion fairly and in good faith or there was any mala fide etc. In majority of such Corporations, the appointments are made by the functionaries who themselves have not been appointed under any statutory provision because of creation of Corporation by the Memorandum and Article of Association, duly registered with the Securities and Exchange Commission of Pakistan under the Companies Ordinance, 1984. As far as third principle, noted herein above, is concerned, the Court is required to determine the limits within which and the purpose for which the Legislature has created the fiction. Before its promulgation, a debate had also taken place in the Parliament, extracts whereof have been placed on record. A perusal whereof indicates that the objects of enacting Section 2-A was to facilitate the persons working in Government controlled Corporations in order to provide them adequate and efficacious remedy for the redressal of their grievance. But, in our considered opinion promulgation of Section 2-A of the STA, 1973 has not advanced the cause of the employees working in the Corporations, CA.792-816/2005, etc. 90 particularly where statutory backing is not available to them. Although this law was promulgated on 10th June 1997 and thereafter the Courts took sufficient time in interpreting its provisions, initially at the High Court level, subsequently before the Service Tribunal and finally before this Court but in none of the judgments, its vires were examined. However, keeping in view the socio-economic conditions, prevailing in the country, it seems that even by promulgation of Section 2-A of the STA, 1973, the said object has not been achieved. In this behalf, it may be noted that the persons who fall within the category of worker or workman, have more efficacious, adequate and speedy remedy before the Labour Court, headed by a District Judge and appeal before the High Court under the IRO, 2002 and after exhausting remedy before the High Court, a petition for leave to appeal is competent before this Court under Article 185(3) of the Constitution, the scope whereof is broader than the provisions of Article 212(3) of the Constitution, where leave can only be granted if a substantial question of law of public importance is involved. As far as the other category of the contract employees and work charged employees are concerned, they can avail the remedy of claiming compensation before the Civil Courts, functioning all over the country. Similar would be the position of deputationists, if aggrieved by an order relating to terms and conditions of service. Comparing to it, the remedy provided under Section 2-A of the STA, 1973 is more cumbersome, harsh and expensive. Moreover, it is a fact that a large number of cases have piled up before the Federal Service Tribunal, which, eventually, would take a long time in disposal and thereafter, aggrieved party, challenging the decision, with the result that the dispute shall remain pending for a considerable period, before higher forum. It may also be noted that the persons covered under Section 2-A of the STA, 1973 have been deprived of a right of appeal because earlier the view was that after exhausting departmental remedy, such persons can file appeal before the Service Tribunal but after the judgment in Ghulam Abbas’s case (ibid) an aggrieved person can directly approach the Service Tribunal for redressal of his grievance whereas it has been held by this Court that under the Islamic system of dispensation of justice, as a matter of right, one appeal should be made available. Reference in this behalf can be made to the cases Pakistan CA.792-816/2005, etc. 91 v. General Public (PLD 1989 SC 6), Chenab Cement v. Banking Tribunals (PLD 1996 Lahore 672) and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), laying down that a statute which does not provide at least one appeal is unreasonable and can be struck down. Therefore, for this reason as well, Section 2-A of the STA, 1973 seems to be unconstitutional. 77. We may also point out here that reference to the Parliamentary debate, which took place before the promulgation of Section 2-A of the STA, 1973, is not of much help because such debates can be referred to when there is any ambiguity in the statute under discussion. In this behalf reference may be made to the judgment in A&B Food Industries Ltd. v. Commissioner of Income Tax/Sales Tax (1992 SCMR 663). In the case of Pir Sabir Shah (ibid), it has been observed that “the question of constitutionality of a law, or to put it differently, whether a law is intra vires or ultra vires does not depend upon consideration of jurisprudence or of policy; it depends simply on examining the language of the Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-Constitutional law by which the Parliament purports to exercise that authority.” So far as the fourth principle is concerned, it is not attracted in the instant case because after promulgation of Section 2-A of the STA, 1973, the persons working in the Government controlled Corporations, are being treated to be in the service of Pakistan and due to this reason, they are being treated as civil servant for the purpose of STA, 1973. The purpose for which the status of civil servant was given to them has already been discussed herein above. 78. Learned counsel appearing in support of constitutionality of Section 2-A failed to produce any material to persuade us that on the basis of any statute or by means of any other statutory instrument, these persons shall be deemed to be in the service of Pakistan, therefore, they can enjoy, by means of a legal fiction, the status of a civil servant. In this context reference to the case of Saeed Rabbani (ibid) may be made, wherein this Court, after having discussed the relevant instrument like Rules of Business, etc. held that “it is the duty and responsibility of the Federal Government to organize, constitute and CA.792-816/2005, etc. 92 develope Federal agencies and institutions for research, professional or technical training or for promotion of special studies; Leather Industry Development Organization is engaged in performing such duties; as this institution is promoting industrial activity and special studies in industrial fields. It falls under item No.5 of the Industries Division as provided by the Rules of Business; therefore, as the appellant is employed with LIDO, he holds a civil post in connection with the affairs of the Federation and he is thus covered by Section 2(1)(b) of the Civil Servants Act, 1973.” It may be noted that in this very judgment, another question came up for consideration i.e. with reference to the status of the employees of LIDO, which was answered in view of the judgment in the case of Mrs. M.N. Arshad (ibid), wherein it was held as follows:--- “In Pakistan Corporations are not created by a Royal Charter but they are incorporated either by a statute like the Karachi Port Trust incorporated under the Karachi Port Trust Act, 1886, or by registration under a statute like companies under the Companies Act or associations under the Societies Act or cooperative societies under the Cooperative Societies Act or a trust under the Trust Act, etc. However, Corporations can also be created by an executive order under the authority delegated by an Act of Parliament. In Pakistan, we find such a delegation inter alia in Section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975), which provides that the Federal Government shall constitute a body to be known as the Evacuee Trust Property Board, for the management and disposal of evacuee trust property and that the Board shall be a body corporate by the name aforesaid having perpetual succession and common seal, with power to acquire, hold and dispose of property both movable and immovable, and to contract and sue and be sued in its name. It is an admitted position that the Resolution has not been passed in pursuance of any such delegated statutory power. In this view of the matter, the Board is neither a corporate body nor a juristic person competent to employ teachers. Mr. Bashir Ahmed Ansari has invited our attention to the factum that the employees of the Pakistan Broadcasting Corporation, the Pakistan Television Corporation, the WAPDA and the PIA have been held to be employees of corporate bodies and not civil servants though they are controlled by the Federal Government. This is so, for the reason that the corporate status of the above Organization has been created by virtue of a statute or by virtue of registration as a corporate body under the Companies Act.” 79. At this juncture it may also be observed that Article 260 of the Constitution has conferred authority upon the Parliament to declare any other service to be the service of CA.792-816/2005, etc. 93 Pakistan under an Act of Parliament. The words “declared” used therein is of much significance. In view of its importance, it has to be seen as to whether there was any doubt or difficulty in the definition of civil servant under Section 2-A of the STA, 1973, which persuaded the Legislature to make a declaration that the persons working in the Government controlled Corporations, etc. shall be declared to be in the service of Pakistan and incumbents, therefore, shall be deemed to be civil servants. In case, there is some doubt in respect of a state of the law, Parliament may decide to pass a declaratory Act, setting out what the law is. [“Understanding Statute” by S.M. Zafar Second Edition (Page 287)]. Essentially on the plain reading of the definition of the civil servant, both under Section 2-A of the STA, 1973 and Section 2(1)(b) of the CSA, 1973, there was absolutely no doubt. In this behalf the Parliament had also not identified any doubt as would be evident from the Parliamentary debates, which took place at the time of promulgation of Section 2-A of the STA, 1973. A declaration, however, has not been made to clarify any doubt rather by introducing a legal fiction, the persons working in Government controlled Corporations, etc. have been made civil servants for the purpose of Article 260 of the Constitution. The language employed by the Constitution, authorizing the Parliament to declare any other service as service of Pakistan, only confers authority to make a solid declaration in respect of any such service, instead of bringing it into the folds of service of Pakistan by introducing a legal fiction. 80. Now turning towards the second limb of the argument i.e. as to whether the persons working in the Government controlled Corporations, etc. in terms of Section 2-A of the STA, 1973 are performing their functions in connection with the affairs of the Federation, being one of the most important condition for attaining the status of being in the service of Pakistan. In this behalf, a criteria has been laid down in the case of Saeed Rabbani (ibid). Similarly, in the case of Salahuddin (ibid), it was held as under:--- “Now what is meant by the phrase “performing functions in connection with the affairs of the Federation or a Province.” It is clear that the reference is to governmental or state functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to CA.792-816/2005, etc. 94 economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory Corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these Corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. Examples of such statutory Corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province. …………………………………………………………... ……………………………………………………...………………………… …………………………………...… However, private organizations or persons, as distinguished from government or semi-government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regularized by laws made by the State. Accordingly, a joint- stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions, just for the reason that its functioning is regulated by law or that the distribution of its manufactured products is subject to governmental control in the public interest. The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province ; otherwise not.” This view has also been reiterated in the Aitchison College (ibid). CA.792-816/2005, etc. 95 81. Mr. Wasim Sajjad, learned Sr. ASC while relying upon the case of Salahuddin (ibid), argued that statutory Corporations are the same as the Government itself, therefore, their employees are to be treated at par with each other. 82. Argument advanced by him is not acceptable because the ratio decidendi of the judgment is that to determine as to whether a person is holding a post or office in connection with the affairs of the Federation, an element of sovereign authority and exercise of public power is essential to bring an employee or service within the scope of the words “affairs of the Federation”. Thus it is concluded that the Parliament cannot enact a law declaring any other service to be the service of Pakistan by or under any Act, without demonstrating that such declared service has nexus with the affairs of the Federation. In fact, the framers of the Constitution have restricted the power of the Parliament to declare any service to be service of Pakistan by placing an embargo that such person should also hold a post or office in connection with the affairs of the Federation. Unless this condition is fulfilled, every service cannot be declared by the Parliament to be service of Pakistan. In a number of judgments, this Court, in respect of statutory Corporations and Bodies owned or controlled by the Government, has held that such Corporations or Bodies are distinct and different from the Government and their employees are not ipso facto in the service of Pakistan. Reference in this behalf to the case of Printing Corporation of Pakistan v. Province of Sindh (1985 CLC 1486), would not be out of context, wherein it was held that “workers working in the petitioner company drawing up to Rs.1000/- in terms of the definition of ‘worker’ given in the Ordinance can be said to be in service of State; they are in fact in service of the petitioner Company. As pointed out herein above the company has the power to employ any person under the Memorandum of Association; the mere fact that the Federal Government has totally subscribed ‘A’ class shares and appoints the Directors or that it issues directives from time to time will not change the status of the petitioner workers into the status of service in State; the concept of ‘person in the service of the State’ is a very old concept and in fact is now akin to the phrase “persons in the service of Pakistan”; in this regard reference may be made to Article 242 and 275 of the Constitution, 1973; it has been CA.792-816/2005, etc. 96 consistently held by the Supreme Court that the employees of Corporations established by the Federal Government are not in service of Pakistan.” To arrive at this conclusion, reference was made to Chairman East Pakistan Industrial Development Corporation, Dacca v. Rustam Ali (PLD 1966 SC 848), Abdul Salam Mehta v. Chairman Water and Power Development Authority (1970 SCMR 40), Shahid Khalil v. Pakistan International Airlines Corporation Karachi (1971 SCMR 568), Shujauddin Ahmad v. Oil and Gas Development Corporation (1971 SCMR 566) and R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146). The judgment in the case of Printing Corporation of Pakistan (ibid) came up under consideration before this Court in the case of Printing Corporation of Pakistan v. Province of Sindh (PLD 1990 SC 452), wherein it was held that “the fact that the part of the capital has been subscribed by the Government does not, in any manner, establish that the Federal Government controls the affairs of the appellant and the workers of the appellant are in the service of the State; similarly, if the Government has provided working capital, it would be a loan to the appellant, which has to be repaid; therefore, it cannot be said by any reason or logic that by doing so the Federal Government controls the affairs of the appellant or the workers of the appellant could be considered to be in the service of the State.” It was further held that “merely by the fact that the Government owns 60 per cent share capital or the ‘A’ class ordinary shareholders representing the Government of Pakistan can appoint Directors including the Chairman, the Managing Director and the Finance Director, would not establish that the affairs of the Corporation are controlled by the Government.” 83. This Court, while interpreting the Constitutional provisions, in the case of Don Basco High School (ibid), has held that it is well established rule of construction of statute that general terms following particular ones apply only to such persons or things as are Ejusdem Generis with those comprehended in the language of the Legislature. Reliance in this behalf has also been placed on R.V. Cleworth (1864) 4.B & S.927. Relevant para therefrom is reproduced herein below:--- CA.792-816/2005, etc. 97 “In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended.” 84. In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), it was observed that “the general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed; in other words, their colour and contents are derived from their context.” Likewise, in the case of Farooq Ahmed Khan Leghari (ibid), similar observations were made. Similarly, in this very context, while disposing of Presidential Reference No.2 of 2005 (PLD 2005 SC 873), it was observed that “general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In another judgment in the case of Adil Abdul Jabbar (ibid), High Court of Sindh observed that “it also needs to be kept in view that the Service Tribunals Act is a law enacted under Article 212 of the Constitution and though the Parliament is competent to declare a person to be in the service of Pakistan, such person, must perform an element of public duty; we fail to comprehend how a clerk of a private Stock Exchange could be deemed to be performing such public service.” 85. Article 63 of the Constitution creates a disqualification for a candidate for the membership of Parliament if he is in the service of any statutory body or body, owned or controlled by the Government or in which the Government has controlling share or interest but status of such person is different, if he is in service of Government controlled Corporation and has been declared to be in the service of Pakistan. The ‘service of Pakistan’ is a broader expression which itself covers the ‘service of any body, owned or controlled by the Government or in which the Government has a controlling share or interest’. This expression would not have been used as it would have been redundant in this Article because it is well settled that redundancy cannot be attributed to a Constitutional provision. Reference in this behalf may be made to the case of Shahid Nabi Malik (ibid) and Reference No. 2 of 2005 (ibid). Therefore, both the expressions are to be considered distinctly with reference to the context, relating to the matter under CA.792-816/2005, etc. 98 discussion. It is established rule of interpretation that where the Legislature has used two different words in legislation, they must be given different meanings. Even if the words appear to be synonymous or akin to one another they should be assigned different meanings to avoid making one or the other legislative expression redundant. Reference may be made to State v. Zia-ur-Rehman (PLD 1973 SC 49) and Raja Maula Dad Khan v. West Pakistan Bar Council (PLD 1975 SC 469). From the principle highlighted herein above and as discussed in these two judgments, it is abundantly clear that Legislature, under Article 63 of the Constitution, by using the expressions ‘service of Pakistan’ and ‘service of any statutory body or any body, owned or controlled by the Government or the Government has controlling share or interest’ in it had identified the consequences, which would ultimately result in disqualification of a candidate in terms of clause (k) of Article 63(1) of the Constitution. Comparing this Article with Article 212(1)(a), expression ‘service of Pakistan’ has been employed and it does not make any reference to ‘service of any statutory body or any body, owned or controlled by the Government or in which the Government has controlling share or interest.’ Thus only those persons who are covered within the definition of ‘service of Pakistan’ in terms of Article 212(1(a) of the Constitution, can invoke the jurisdiction of the Tribunal, otherwise when the Constitution framers have used the expression ‘service of any statutory body or any body, owned or controlled by the Government or in which the Government has controlling share or interest’ along with the expression ‘service of Pakistan’ may have used it. This distinction is presumed to be in the knowledge of the Constitution framers in view of the earlier judgment of this Court in the case of Chairman East Pakistan Industrial Development Corporation, Dacca (ibid), wherein it has been held that “employees of statutory Corporations are not the Government servants.” Similarly in the case of Fazlul Quader Chowdhry (ibid), it has been held that “between amendment and adaptation there is a clear distinction and this distinction had already been the subject of discussion in judgments of Courts before this Constitution was framed; the framer of the Constitution is presumed to have been well aware of the distinction which had been accepted by the Courts; when he used the word ‘adaptation’, therefore, and omitted the CA.792-816/2005, etc. 99 word ‘amendment’ in Article 224(3), there can be little doubt that he did so deliberately; the Legislature is by presumption an ideal person and has full knowledge of the state of case law, at least the important part of it.” 86. It is important to note that intention of the framer of the Constitution had never been to provide a forum of the Service Tribunal to the employees of the Government controlled Corporations, in terms of Section 2-A of the STA, 1973. Had it been so, it could have incorporated the same in Article 212(1)(a) of the Constitution as provided under Article 323A of the Constitution of India, which reads as under:-- “323A.(1). Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government. (emphasis provided) Thus, with reference to above Article of the Constitution of India, the argument put forward by Mr. Iftikhar Gillani, learned Sr. ASC that Section 2-A creates a new and distinct class of Government servants, which is neither covered by the definition of ‘civil servant’ nor by the definition of ‘service of Pakistan’, seems to be correct. Therefore, for this reason alone Section 2-A of the STA, 1973 becomes ultra vires of the Constitution because the employees of Government controlled Corporations etc. are not covered by the definition of ‘service of Pakistan’ as provided under Article 260 of the Constitution nor their cases can be taken up under Article 212(1)(a) of the Constitution, as such the Federal Service Tribunal has no jurisdiction to grant them relief in terms of Article 212(1)(a) of the Constitution because under this provision of the Constitution, administrative tribunals are set up for the purpose of exercising jurisdiction in respect of the terms and conditions of service of those persons, who are in the service of Pakistan. The terms and conditions of service of those employees, however, are required to be specified under Article 240 of the Constitution by or under Act of the Parliament. Thus, the conclusion would be that only those persons, who are in the service of Pakistan, as discussed herein above, and if their terms and conditions are governed either by a statute CA.792-816/2005, etc. 100 or statutory rules, in terms of Article 240 of the Constitution, can seek remedy before the Service Tribunals. It can be, therefore, said in other words that as the persons, who are in service of Pakistan but whose terms and conditions of service are not governed by a statute or statutory rules, cannot invoke the jurisdiction of the Federal Service Tribunal. In this behalf in Mehboob Khan (ibid) it was observed that “it was for the first time in 1973 that it was decided to regulate the terms and conditions of the Civil Servants through a statute and to set up Administrative or Service Tribunals to adjudicate the matters in respect of the terms and conditions of Civil Servants; and to achieve this object Articles 212 and 240 were introduced in the present Constitution; this was followed by promulgation of Civil Servants Act 1973 to regulate the appointment and providing for terms and conditions of the persons in service of Pakistan; simultaneously Service Tribunal Act, 1973 was introduced; the result was that jurisdiction of all Courts excluding this Court in respect of the terms and conditions of service of the Civil Servants was excluded.” In this very judgment it was further observed that “according to this Article [240], the terms and conditions of the persons in service of Pakistan were to be determined by or under Act of Parliament while conditions of persons in service of Provinces were to be governed by or under Act of Provincial Assembly; this was the natural consequence of Article 212 because earlier the civil servants were enjoying Constitutional guarantees; the same having been excluded from the purview of the Constitution, the Parliament in pursuance of this Article proceeded to promulgate Civil Servants Act LXXI of 1973; similarly the Provinces also promulgated the Provincial Civil Servants Acts; these statutes provided the superstructure while for disciplinary matters and procedure thereof Rules were promulgated at different levels.” Reference at this stage to the case of Muhammad Shahbaz Sharif (ibid) would not be out of context, wherein it has been held that “it is true that a person may not be a civil servant within the meaning of Civil Servants Act, 1973 but may be in the service of Pakistan as is the case with an Ambassador; however, the fact remains that in such cases also appointments to and terms and conditions of offices are determined by or under the Act of appropriate legislature or by rules framed pursuant to Article 240 of the Constitution which is not so CA.792-816/2005, etc. 101 in respect of holders of Constitutional offices; apart from the fact that Syeda Abida Hussain’s case did not deal with the holder of Constitutional office and is, therefore, clearly distinguishable, on a closer analysis of the said judgment, it will be seen that one of the reason for holding that Syeda Abida Hussain was in service of Pakistan as an Ambassador was that she was governed by Rules of Service applicable to civil servants framed pursuant to Article 240 of the Constitution; similarly, the case of Mahboob Khan and 242 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 5 others (1991 PLC (CS) 415) has no relevance nor does it advance the case of the petitioner; moreover in that case also it was observed that the terms and conditions of person in service of Pakistan were to be determined by or under the Act of the Parliament or the Provincial Assembly as mandated by Article 240 of the Constitution, which shows that the determining factor as to whether or not a person is in the service of Pakistan, is as to whether his terms and conditions are determined by law made under Article 240 of the Constitution.” Similarly in Qazi Wali Muhammad’s case it has been held that the Federal Service Tribunal has no jurisdiction in cases where the terms and conditions of service of an employee in question are not or cannot be determined in terms of Article 240 of the Constitution. This view was followed by this Court in the case of Muhammad Siddique (ibid). 87. It may be noted that under Section 2-A of the STA, the Legislature has not declared the service of a person in the Government controlled organization to be the ‘service in connection with the affairs of the Federation’. It may also be noted that under Article 240 of the Constitution ‘service of Pakistan’ means “any service, post or office in connection with the affairs of the Federation.” Essentially, when a person is not holding a post in connection with the affairs of the Federation or of a Province, he would not be entitled to claim himself to be in the service of Pakistan, as discussed herein above. Likewise, there is yet another important condition i.e. he must hold a post or office in connection with the affairs of Pakistan. 88. Mr. Naeem Bukhari, learned ASC candidly conceded that if a person is not holding a post in connection with affairs of State, he would be governed by a contract and CA.792-816/2005, etc. 102 the remedy lies in damages. In this behalf it may be noted that word ‘permanent post’ as defined in Section 2(1)(e) of the CSA, 1973, means ‘a post sanctioned without limit of time.’ In the case of State of Assam v. Kanak Chandra (AIR 1967 SC 884), wherein with reference to Article 309 and 310 of the Constitution of India, the ‘post’ has been defined as follows:--- “10. In the context of Arts.309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds ‘office’ during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Art. 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post. Article 310 (2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasizes the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.” 89. In view of the criteria laid down in the above judgment, as well as the definition of ‘permanent post’, it is concluded that the persons working in the Government controlled Corporations would not be deemed to be holding a post under Section 2-A of the STA, 1973 unless there is warrant under law i.e. that a statute governs appointments and regulates terms and conditions. In this context reference may be made to the employees, who are working on contract basis or are on deputation or fall within the definition of worker or workman, but cannot be considered to be holders of the post, in order to fulfill the requirement of Article 260 of the Constitution, according to which a person will be in the service of Pakistan, if he is holding a post or office in connection with the affairs of the Federation. Similarly, Article 240(a) of the Constitution speaks in respect of services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services. In order to make out a case for the purpose of hearing before a Service Tribunal, a person falling within the scope of Section 2-A of the STA, 1973, is required to hold a post, otherwise, in absence of such mandatory condition, he would not be deemed to be in CA.792-816/2005, etc. 103 service of Pakistan. Therefore, the Service Tribunal would have no jurisdiction to grant him relief. 90. Mr. M.A. Ghani, learned ASC contended that Civil Servants Act is a substantive law which creates rights and duties whereas Service Tribunals Act is a procedural law and the persons whose cases are covered under Section 2-A of the STA, 1973 are seeking remedy under the substantive law. So long as CSA, 1973 is not amended, incorporating the category of the persons falling within the mischief of Section 2-A of the STA, they cannot claim relief. Reliance in this behalf has also been placed by him on Divisional Engineer Phones (ibid). 91. This argument has already been discussed herein above, therefore, need not be repeated. 92. Malik Abdul Qayyum, learned ASC while supporting the arguments of learned Attorney General for Pakistan argued that the efforts should be made to save the enactment instead of destroying it, therefore, he contended that by harmonizing the provisions of Section 2-A of the STA, 1973, it may be declared that the employees of the Government controlled Corporations, whose terms and conditions have been determined by means of a statute, in terms of Article 240 of the Constitution, would be considered to be civil servants, provided they can show that a post or office is held by them; secondly, the employees whose terms and conditions are not governed by a Statute but they are discharging their functions in connection with the affairs of the Federation, they can invoke the jurisdiction of the High Court under Article 199 of the Constitution for the redressal of their grievance; thirdly, the persons who are not covered under these two categories, they may be left to avail the remedy subject to their terms and conditions and; fourth category of the persons shall have the remedy before the forums provided by the labour laws. 93. Mr. Kamal Azfar, learned ASC has rightly contended that Section 2-A of the STA, 1973 only relates to change of forum but does not alter the terms and conditions of the employees, as according to him, there are Corporations who have statutory rules for the CA.792-816/2005, etc. 104 purpose of governing the affairs of their employees and some of the Corporations have got only Regulations, therefore, according to him out of both the categories, the one who fulfilled the requirement of Articles 240 and 260 of the Constitution shall have remedy before the Service Tribunal, constituted under Article 212 of the Constitution and the others may approach to the High Court or the Labour Court as the case may be. 94. The contention of Khawaja Muhammad Farooq, ASC seems to be correct that if the terms and conditions of an employee have not been determined under Article 240 of the Constitution, then they cannot seek remedy before the Service Tribunal and Section 2- A of the STA, 1973 would not be of any help to them. He further emphasized that if there are no statutory rules for governing the terms and conditions of the employees of a Corporation, they have to seek remedy by way of filing a suit for damages as this law is still holding the field. Reliance in this behalf has been placed by him on Lahore Central Co-operative Bank Ltd. v. Saif Ullah Shah (PLD 1959 SC 210) and Ms. Zeba Mumtaz v. First Women Bank Ltd. (PLD 1999 SC 1106). 95. Likewise, the argument put forward by Ch. Mushtaq Ahmed Khan, learned ASC that clustering of litigation before one Tribunal is against the principle of policy enshrined under Article 37 of the Constitution, therefore, merely for the purpose of providing a forum the employees of Government controlled Corporation/Authority cannot be considered in the service of Pakistan, is also found with force and substance. 96. Mr. Shahid Anwar Bajwa, learned ASC has also advanced convincing argument that according to Article 260 of the Constitution, the Parliament is competent to declare any service to be the service of Pakistan, subject to the condition that terms and conditions of such service shall be governed by a statute or statutory rules, under Article 240 of the Constitution and if it is not possible for the law giver to lay down the terms and conditions of the service under Article 260 of the Constitution, such service cannot be declared to be service of Pakistan. Therefore, according to him, the employees of those statutory Corporations or bodies, who do not fulfill these two tests, cannot be considered to be in the service of Pakistan nor civil servant for the purpose of availing remedy before an administrative tribunal, constituted under Article 212 of the Constitution. His CA.792-816/2005, etc. 105 argument seems to be convincing that the first part of Section 2-A of the STA, 1973, whereby the service of a statutory Corporation has been declared to be the service of Pakistan, seems to be in accordance with the Constitution subject to Articles 240 and 260 of the Constitution but second part is ultra vires of the Constitution because post or office cannot be declared to be the service of Pakistan. Since such persons do not hold any post in connection with the affairs of the Federation, they cannot be deemed to be civil servants. 97. Similarly, Raja Muhammad Akram, learned ASC was right in saying that workers or workmen, whose cases are covered under the IRO, 2002, cannot be declared to be in the service of Pakistan for the purpose of invoking the jurisdiction of the Service Tribunal because their appointment had not taken place by virtue of the terms and conditions laid down by the Legislature under Article 240 of the Constitution nor such persons shall be deemed to be civil servants because they are not holding a permanent post for the purpose of discharging their functions in connection with the affairs of the Federation. 98. Mr. Wasim Sajjad, learned Sr. ASC contended that while examining the vires of Section 2-A of the STA, 1973, it would be appropriate if the Court keeps in mind the social set up of the country, in view of the observation in the case of Arshad Mehmood (ibid) and M/s Ellahi Cotton Mills (ibid), therefore, if the status of a civil servant is conferred upon a person, covered under Section 2-A of the STA, 1973, it must be kept intact as held earlier in the case of Farid Ahmed v. Karachi Shipyard and Engineering Works Ltd. (PLD 1983 Karachi 576), Nisar Ahmed v. Secretary Ministry of Information (1984 PLC (CS) 372) and Printing Corporation of Pakistan v. Province of Sindh (1990 PLC (CS) 176). 99. Above argument, while making reference to the Constitutional provisions, discussed herein above, has no force. It may also be noted that in the judgments cited by the learned counsel, vires of Section 5 of the Corporation Employees (Special Powers) Ordinance, 1978 (Ordinance No.XIII of 1978) were not examined, therefore, merely for the reason that Legislature has declared the service of a Government controlled Corporation/Authority to be service of Pakistan and such person is holding the post in CA.792-816/2005, etc. 106 connection with the affairs of Pakistan, is not acceptable. However, in view of the principle of taking into consideration the social set up of the country, attempt should be made to extend the benefit of Section 2-A of the STA, 1973 to some of the persons, whose cases are protected by the constitutional provisions i.e. Articles 240 and 260 of the Constitution. 100. Learned counsel also contended that following the case of L. Chandra Kumar (ibid), if this Court comes to the conclusion that the provisions of Section 2-A of the STA, 1973 are ultra vires of the Constitution then, it may be held that the judgments delivered by the Service Tribunal are with jurisdiction but they can be challenged before the High Court under Article 199 of the Constitution, or recommendations be made to the Government that against the decision of the Service Tribunal, a right of appeal be given to such employees before the High Court for the purpose of disposing of the cases and; lastly any other appropriate direction, which deemed appropriate by this Court, be issued in this behalf. 101. Syed Iftikhar Hussain Gillani, learned Sr. ASC also stated that instead of striking down Section 2-A of the STA, 1973, it may be interpreted in such a way that the law should be saved and intention of the Legislature can be ascertained. Indeed, Court should refrain from entering into technicalities. He has placed reliance on Reference by the President No.1 of 1957 (ibid), Pir Sabir Shah (ibid) and Zulfiqar Ali Babu (ibid). Relevant para from the case of Pir Sabir Shah (ibid) is reproduced herein below for convenience:--- “27. The question of the constitutionality of a law, or to put it differently, whether a law is intra vires or ultra vires does not depend upon consideration of jurisprudence or of policy. It depends simply on examining the language of the constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-Constitutional law by which the Parliament purports to exercise that authority.” 102. We have examined the arguments put forward in this context and we are quite in agreement with Syed Iftikhar Hussain Gillani, learned ASC that efforts should be made to CA.792-816/2005, etc. 107 save the law by excluding those portions which appear to be contrary to any Constitutional provision. 103. Dr. Babar Awan, learned ASC also vehemently argued that as Section 2-A of the STA, 1973 has been enacted through an Act of Parliament, therefore, the same should be saved. 104. There can be no cavil with the proposition but the exception is that if any Act of the Parliament is found to be in derogation of any provision of the Constitution, it would not be allowed to hold the field because of the mandate of Constitution, which is supreme for all intents and purposes. 105. Argument by Raja Muhammad Bashir, learned ASC seems to be convincing that there are many employees of statutory Corporations whose terms and conditions of service are regulated by statutory rules, therefore, they would fall within the domain of Section 2-A of the STA, 1973, whereas the Government controlled Corporations, which have got no statutory backing nor any statutory rules governing the terms and conditions of service of their employees, they would not fall within the mischief of Section 2-A of the STA, 1973. Such persons have remedy before the Civil Courts and thirdly as far as the workers or workmen are concerned, can have recourse to the Labour Court, which is now a days being headed by a District & Sessions Judge, therefore, Section 2-A may not be declared ultra vires of the Constitution, in entirety. 106. Mr. Muhammad Akram Sheikh, learned Sr. ASC contended that undoubtedly a category of the persons not covered under the definition of civil servant stands excluded from the definition of the civil servant, has been declared to be civil servant by virtue of Section 2-A of the STA, 1973 but it should not be treated as a discrimination in view of the judgment in the case of Inamur Rehman (ibid) because so far, no argument has been advanced that due to this discrimination, injustice has been caused to some of the persons. He further stated that if at all this Court declares Article 2-A of the STA. 1973 ultra vires CA.792-816/2005, etc. 108 of the Constitution, in respect of those employees whose service conditions are not protected by statutory provisions, they would be governed by the rule of master and servant, a phenomena which has already undergone radical changes, because the intent of the Constitution is to establish an egalitarian society, where all citizens are equal and there should be no concept of master and servant between and employee and employer. Reference in this behalf has been made by him to R v. Civil Service Appeal Board [1988] 3 All E.R. 686 and Gunton v. London Borough of Richmond upon Thames [1980] 3 All E.R. 577. 107. In this behalf it may be noted that in Farasat Hussain’s case (ibid), while placing reliance on Zahir Ullah’s case, it was held that “the concept of master and servant has undergone a radical change during the last couple of years mainly due to insertion of Section 2-A in Service Tribunals Act, 1973”. It may be noted that in the said judgment as well, this Court had not examined the vires of Section 2-A of the STA, 1973, therefore, the argument of the learned counsel that this phenomena cannot be re-introduced, has no substance because if Section 2-A is declared to be un-constitutional then position prior to its insertion shall revive. So far as the judgments from the other jurisdictions, relied upon by the learned counsel are concerned, relevance of the same also depends upon the conclusion, which shall be drawn in respect of constitutionality of Section 2-A of the STA, 1973. 108. The threadbare discussion on the subject persuades us to hold :--- 1. Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under Section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation. 2. Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under Section 2(1) (b) of the CSA, 1973. 3. The cases of the employees under Section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in Section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy. 109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:- 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, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment. b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not covering by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of Section 2-A of the STA, 1973 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, which ever is earlier. e) The Service Tribunal shall decide pending cases under Section 2-A of the STA, 1973 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 aggrieved party to approach the competent forum for the redressal of its grievance.

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IJAZ AHMED CHAUDHRY CIVIL APPEAL NO. 794 OF 2006 (On appeal against the judgment dated 2.6.2005 passed by the Lahore High Court, Lahore in Civil Revision No. 1340/1994) Syed Hussain Naqvi and others … Appellants VERSUS Mst. Begum Zakara Chatha (decd) through her LRs and others … Respondents For the Appellants: Mr. Abid Hassan Minto, Sr. ASC For Respondents (1(a,b): Syed Ali Zafar, ASC For Respondents (1(c,d): Malik Muhammad Qayyum, Sr. ASC For the Applicants: Mr. M.A. Ghaffar ul Haq, ASC (In CMA No. 3420/2010) Date of Hearing: 14.04.2015 JUDGMENT IJAZ AHMED CHAUDHRY, J.- Through this appeal by leave of the Court the appellants have challenged the judgment of the Lahore High Court whereby the Civil Revision filed by them was dismissed and the judgments of the two courts below decreeing the suit filed by the predecessor-in-interest of the respondents No. 1 (a to d) were affirmed. 2. Brief facts / background of the case as mentioned in the judgment of Lahore High Court are as under:- “On 25.11.1987, respondent No. 1 (Mst. Zakara Chatha) filed a suit against respondent No. 2 (Muhammad Hussain Shah) and the petitioners (appellants herein). In the plaint it was stated that the suit land described in the plaint was allotted to respondent No. 2 in the year 1961 under Tubewell Scheme. He agreed to sell the suit land to Civil Appeal No. 794/2006 2 respondent No. 1 for a consideration of Rs.22000/-. He received a sum of Rs.105000/- and executed an agreement dated 11.5.1967. Balance was to be paid upto 30.6.1967. Possession was delivered and a general power of attorney was executed in her favour and registered on 16.5.1967. The balance amount was paid and on 27.7.1967, respondent No. 2 executed another agreement acknowledging the entire amount of consideration, delivery of possession and promising to transfer the land upon conferment of proprietary rights. Respondent No. 2 changed his mind soon thereafter. He cancelled the power of attorney by means of an ‘Abtaal Nama’ registered on 4.11.1968. He also served a notice on the same date. She replied on 18.11.1968 informing that the authority is coupled with interest and he is not competent to cancel the power of attorney. She took possession of the land which was Banjar. She then stated that she is highly educated lady and retired from government service. She was holding high offices in the education department. She left her abode in Model town, Lahore and with a lot of efforts and expenses made the land cultivable. Means of irrigation were arranged. She remained so in possession for about 11 years. When the land stood improved respondent No. 2 started making attempts to disposes her. She resisted the attempts. Litigation started. Respondent No. 2 filed a suit against her. His application for grant of temporary injunction was dismissed on 1.2.1978. His appeal was dismissed by learned District Judge on 19.2.1978. He was, however, granted injunction by the Lahore High Court in Civil Revision on 21.10.1978. In the garb of the said injunction he dispossessed her tenant namely Muhammad Ayyub on 28.12.1978. A criminal case was registered. However, respondent No. 2 managed to take possession. Proprietary rights have been conferred and a sale deed has been executed by the Provincial Government in favour of respondent No. 2 on 9.10.1985 and registered Civil Appeal No. 794/2006 3 on 21.12.1985. However, it contains a condition that respondent No. 2 will not be able to transfer the land without prior permission of the government till five years after the date of execution. However, instead of performing his part of contract, respondent No. 2 proceeded to transfer the land to the present petitioners (appellants herein) through his general attorney Syed Al- e-Hassan vide sale deed registered on 30.7.1986. Mutation No. 52 was rejected on 12.6.1986. Thereafter permission was obtained from Board of Revenue and it was attested on 28.7.1987. She stated that the petitioners were fully aware of the agreement in her favour as she had been in possession and litigating with respondent No. 2 and in the entire area the said lot is known as lot of Begum Zakira. According to her litigation was being sponsored and perused by the petitioners. With these averments she sought a decree for specific performance of the said agreement. Respondent No. 2 filed written statement on 14.6.1986, stating that he has not agreed to transfer the land to the respondent No. 1 and had not received any consideration. He denied all the contents of the plaint. The petitioners filed written statement on 28.5.1988. Their contention was that they are bonafide purchasers for consideration and without notice having purchased the land after checking the revenue records. Agreement was stated to be illegal. The suit was stated to be collusive. The factum of litigation as detailed in the plaint, however, was admitted. It was further stated that Syed Al-e-Hassan was lawfully appointed as attorney by respondent No. 2 and it was the attorney who executed the sale deed and got it registered and then obtained post fecto sanction on 28.7.1987. Issues were framed. Evidence of the parties was recorded. Learned Trial Court decreed the suit vide judgment and decree dated 1.10.1992. Learned Additional District Judge, Lodhran dismissed the first appeal filed by the petitioners on 11.10.1994. The Civil Civil Appeal No. 794/2006 4 Revision was dismissed by the Lahore High Court vide judgment and decree dated 7.2.2000. The petitioners (appellants) filed C.P. No. 524-L/2000 before this Court (Supreme Court), which was converted into appeal and allowed vide judgment dated 21.12.2004 and the case was remanded back to the learned High Court. Hence this appeal by leave of the Court. 3. Learned counsel for the appellants contends that the agreement to sell relied upon by the predecessor-in-interest of the respondent Nos. 1 (a to d) was void as the pre-conditions for entering into sale, gift etcetera required the consent of the Commissioner and Section 19 of the Colonization of Government Lands (Punjab) Act, 1912, clearly prohibits the sale of the land by a tenant when he had not attained proprietary rights; that as respondent No. 2 was allottee of the land he could not have entered into agreement to sell and the same could not create any kind of encumbrance on the said property. He added that the two documents i.e. Ex.P1 and Ex.P3 are violative of Section 19 and are void and the decree could not have been passed on the basis of the said documents against the appellants; that the respondent No. 2 could only sell the land after the proprietary rights are conferred upon him; that the power of attorney was cancelled in the year 1968 by means of an ‘Abtaal Nama’ and the same has attained finality as it was never challenged; that mala fide on the part of respondent No. 1 has been borne out; that possession of the property was admittedly taken back by respondent No. 2 from predecessor-in-interest of respondent Nos. 1 (a to d) and when she filed suit, she was not in possession. Learned counsel further added that the plaint itself discloses that respondent No. 2 by his Civil Appeal No. 794/2006 5 acts refused the performance, firstly by cancelling power of attorney on 4.11.1968, thereafter by filing a suit on 15.12.1977 and then by dispossessing the respondent No. 1 on 28.12.1978 and according to him the suit having not been brought within three years of any of the said dates, is barred by time; that the judgments and decrees of the Courts below are based on surmises and conjectures. He further added that the appellants are bona fide purchasers in terms of Section 27-B of the Specific Relief Act, 1877, and they were not aware of the sale of the property. In support of the contentions raised, learned counsel relied on Ghulam Rasul Vs. Muhammad Anwar (1969 SCMR 254), Hakim Ali vs. Ali Muhammad (1981 SCMR 993 at 996) 4. Syed Ali Zafar, learned counsel for the respondent Nos. 1(a & b) contended that the documents Ex.P1 and Ex.P3 are not void under Section 19 of the Colonization of Governments Land Act as it was a contingent agreement and could only be executed after the respondent No. 2 attained proprietary rights; that this fact has been mentioned in the agreement to sell and when respondent No. 2 had obtained the proprietary rights and permission for sale of the property from the concerned authorities, the respondent filed the suit immediately thereafter; that Ex.P3 is not sale but agreement to sell; that these types of documents do not fall under Section 19 of the Colonization Act; that the respondent No. 1 was dispossessed by the respondent No. 2 in the year 1978 whereafter a suit was filed by the respondent No. 2 and his application for grant of temporary injunction was dismissed on 1.2.1978; that there is sufficient evidence brought on record by respondent No. 1 as she had produced Khasra Girdawries from the year 1967-68 which Civil Appeal No. 794/2006 6 showed that she was in possession of the suit land during the said period and the said Khasra Girdawries were never challenged by the respondent No. 2; that though respondent No. 2 had denied the execution of the said document but the said document has been proved on record; that the appellants were not bona fide purchasers as in the written statement submitted by them they had admitted the factum of entering into agreement in para 6 and para 9 of the written statement and they were aware of the fact that respondent No. 1 was litigating with respondent No. 2; that issue No. 10 has consistently been decided by all the courts below in favour of respondent No. 1. Learned counsel in support of his contentions has relied upon Abdul Jabbar Vs. Mst. Maqbool Jan (2012 SCMR 947) & Muhammad Anwar Vs. Muhammad Aslam (2012 SCMR 345) 5. Mr. Malik Muhammad Qayyum, learned Sr. ASC for respondent Nos. 1 (c & d) has contended that the case relied upon by learned counsel for the appellants i.e. 1969 SCMR 254 was considered by this Court and this Court has overruled the same. Learned counsel relied upon Shamir Vs. Faiz Elahi (1993 SCMR 145) in support of his contention that the agreement was not a sale and mere entering into first agreement to sell was not prohibited under Section 19 of the Colonization Act. He further contended that under Section 54 of the Transfer of Property Act agreement to sell does not confer any right. Learned counsel also relied upon Commissioner Multan Division vs. Muhammad Hussain (2015 SCMR 58). Civil Appeal No. 794/2006 7 6. We have heard learned counsel for the appellants as also learned counsel for the respondents and have gone through the available record. 7. The issues involved in this appeal are four fold. Firstly, whether there was any agreement to sell between respondent No. 1 and respondent No. 2. Secondly, whether the suit filed by predecessor-in-interest of respondent Nos. 1 (a to d) was barred by time. Thirdly, whether the appellants were bona fide purchasers and fourthly, whether the transaction in question was hit by Section 19 of the Colonization of Government Lands Act, 1912 or not? 8. To prove the first issue as to whether there was any agreement to sell or not, respondent / plaintiff had produced agreement dated 16.5.1967 Ex.P1, registered power of attorney Ex.P2 and agreement dated 27.7.1967 Ex.P3. These documents were scribed by one Abdul Hameed PW-1 and were attested by Muhammad Ishfaq PW-2 and Muhammad Rafiq Lamberdar. PW-1 had candidly stated that he wrote agreement Ex.P1 on the instructions of respondent No. 2 Muhammad Hussain Shah in favour of predecessor-in-interest of respondent Nos. 1 (a to d) Mst. Zakara in respondent No. 2’s presence. He also stated that amount was paid in his presence. General power of attorney Ex.P2 was also scribed on the same day by him and on 27.7.1967 Ex.P-3 agreement was scribed. According to PW-1 the witnesses had signed in his presence and respondent No. 2 received an amount of Rs.11500/-. Muhammad Ishaq PW-2 had also admitted that all the three documents were attested by him and respondent No. 2 had signed in his presence. PW-1 and PW-2 were cross-examined at Civil Appeal No. 794/2006 8 length but nothing favourable to the appellants could be brought on record. Muhammad Hussain respondent No. 2 though denied the execution of these documents but he never got his signatures verified by hand writing expert. On the other hand, Mst. Zakara had applied for comparison of his signatures before the learned Trial Court. The said application was admitted on 2.10.1990 but the signatures could not be verified because the attendance of respondent No. 2 could not be procured. The learned High Court has rightly relied upon the entries made in register khasra girdawri Ex.P15 and observed that the possession of predecessor-in-interest of respondent Nos. 1 remained till the year 1977. The learned High Court has also rightly relied upon Ex.P10 and Ex.P11 i.e. suit filed by the respondent No. 1 for ejectment of tenant from a portion of the suit land which was decreed on 23.12.1976, Ex.P12 which is copy of an order whereby the suit filed by Muhammad Hussain respondent No. 2 against A.C. and the respondent No. 1 was dismissed for non-prosecution on 16.9.1979, Ex.P13 which is copy of an order whereby the suit for declaration filed by respondent No. 2 against respondent No. 1 regarding the suit land was dismissed as withdrawn and Ex.P14 which is copy of judgment of this Court dated 11.11.1980 in the matter of temporary injunction in the suit land and has held that the respondent No. 2 had agreed to sell the land to respondent No. 1 and agreed amount of consideration was paid, possession was delivered and change of possession took place in Rabi 1978. In view of the above, it is established that there was an agreement to sell and payment of consideration was paid to respondent No. 2. Civil Appeal No. 794/2006 9 9. The next issue is as to whether the suit filed by the predecessor-in-interest of the respondents No. 1 was barred by time or not. A bare perusal of Ex.P1 and Ex.P3 i.e. ‘Iqrar Nama’ clearly indicates that the alleged amount of consideration had been paid to the respondent No. 2, possession had been delivered and land was to be transferred in favour of the respondent No. 1 by respondent No. 2 upon execution of sale deed or attestation of mutation in his favour by the Provincial Government. No specific date for the performance of the contract was mentioned in the agreements. It is on record that respondent No. 2 acquired proprietary rights through sale deed Ex.P6 which was executed in his favour on 9.10.1985 and was registered on 21.12.1985. According to condition No. 27(A) the vendee was debarred from alienating the land by sale or otherwise within a period of five years from the said date without previous consent in writing of the Government. The land was subsequently alienated in favour of the appellants through registered sale deed dated 30.6.1986 Ex.D3. It was incumbent upon the allottee to perform his part of contract after acquiring the proprietary rights but he failed and thereafter the cause of action accrued to the plaintiff Mst. Zakara and as such the suit instituted by her was well within time. 10. So far as the question regarding the bona fide of the appellants is concerned, we have noted that the appellants were aware of the litigation between respondent No. 1 and respondent No. 2, as in reply to para 9 of the plaint, they had admitted the litigation. As the appellants were aware of the earlier contract, they should have restrained themselves from entering into subsequent Civil Appeal No. 794/2006 10 agreement with respondent No. 2. In such circumstances, they are not bona fide purchasers. 11. The last question and the point on which leave was granted in the main petition is as to whether the transaction in question is hit by Section 19 of the Colonization of Government Lands (Punjab) Act, 1912 or not? To appreciate the issue, it would be in order to reproduce the said Section 19, which reads as follows:- “19. Transfers of rights to be void.---Except as provided in section 17, none of the right or interest vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall, without the consent in writing of the (Executive District Officer (Revenue), or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy, any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collector: Provided that the right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated." 12. In Sher Muhammad Khan Vs. Ilam Din (1994 SCMR 470) land in question was situated in Colony area and the transferor had agreed to sell the corpus of land in question and had received full amount and had also delivered possession of the property. Dealing with the question as to whether the transfer in question was in violation of Section 19 of the Colonization of Government Lands (Punjab) Act, 1912, this Court, while discussing the earlier case law, has specifically held as follows:- “Now, if the document Exh.P3 is read in the light of the above definition coupled with the express words of section 19 of Colonization of Government Lands (Punjab) Act of 1912, by no stretch of imagination it can be termed as a sale deed. Its very recital starts with the words and concludes with. Civil Appeal No. 794/2006 11 Though Jiwan had received the full sale consideration in respect of the suit land and its possession delivered to respondent No.l but still its contents do not give an inkling that the document Exh.P3 is a sale-deed. Through the said document Jiwan did not transfer his tenancy rights but had only agreed to sell the corpus at the hands of respondent No.l. Therefore, the said transfer was not in violation of section 19 of Act of 1912. A similar question came for consideration before the Full Bench of this Court in Civil Appeal No.216 of 1978 decided on 16-6-1981 where in para 12 it was held:-- "On the facts of the case we are clear that the document was merely an agreement to sell the specific performance of which was postponed to a date when the grantee had acquired proprietary rights. Such a reservation in- the deed itself showed the awareness of the prohibition and recognition of its legal effect and effort op the part of contracting parties to keep this sale within the confines of the law and to act in accordance with the requirements of the law. Such an agreement to sell cannot be said to be violative of either the express provision of section 19 of the Act or of the public policy behind such a statutory provision." This view has been followed in the case of Muhammad Iqbal and others v. Mirza Muhammad Hussain and others (PLD 1986 SC 70) relied upon by the " learned counsel for the respondents and we respectfully follow the same view. The authorities cited by the learned counsel for the appellants -are clearly distinguishable and thus not relied upon.” 13. In Muhammad Anwar Vs. Muhammad Aslam (2012 SCMR 345) in similar facts, this Court has held as under:- “13. In the present proceedings, it is an admitted fact that the respondent No.2 had acquired the proprietary rights on 12-8-1979. Prior to acquiring such rights, he had agreed under an oral agreement to sell the land to respondents Nos. 1, 3 and Haitam. The terms of oral sale agreement were affirmed by the parties by executing the Iqrarname (Exh.P/1) in 1976. The contents of Exh.P/1 were merely an agreement to sell, specific performance of which was postponed to a date when the respondent No.2 was to acquire the proprietary rights. Such a reservation in the deed itself showed the awareness of the prohibition, the recognition of its legal effect and the effort on the part of the contracting parties to keep themselves well within the confines of law to act in accordance with requirements of law. Such an agreement to sell cannot be said to be violative of either the express provisions of section 19 of the Act or of the public policy behind such a statutory provision. We, for the aforesaid reasons, hold that oral agreement of sale and Iqrarnama are not hit by the provisions of section 19 of the Act.” Civil Appeal No. 794/2006 12 14. In Abdul Jabbar vs. Mabqool Jan (2012 SCMR 947) this Court while relying upon the earlier case law reported at Mst. Rehmat Bibi and others Vs. Mst. Jhando Bibi and others (1992 SCMR 1510) and Abdul Jabbar Vs. Abdullah (2006 SCMR 1541) has specifically held that “Section 19 of the Act bar “sale” and not to an agreement of sale.” In Nasir Ali Shah Vs. Ahmad Yar (2011 CLC 1566) the learned Lahore High Court in similar circumstances where vendor in prior agreement had undertaken to execute sale- deed in favour of plaintiff (prior purchaser) on grant of proprietary rights and had agreed to sell corpus of property to plaintiff, which would come into operation after grant of proprietary rights, has held that “according to terms of such prior agreement, plaintiff was carrying a risk to loose his money, if proprietary rights were not granted to vendor. According to such prior agreement, in case of failure of vendor to execute sale-deed after grant of proprietary rights, he was bound to pay to plaintiff amount specified therein in addition to earnest money already paid. Such prior agreement did not necessitate obtaining of prior permission under Section 19 of Colonization of Government Lands (Punjab) Act, 1912.” Same was the view of the learned Lahore High Court in Muhammad Aslam Vs. Muhammad Anwar (2006 YLR 2607) & Muhammad Aslam Vs. Ghulam Aslam (2002 MLD 1860) that such an agreement to sell did not fall within the mischief of Section 19 of the Colonization of Government Lands (Punjab Act), 1912 and that Provisions of Section 19 of the said Act do not debar vendors to execute agreement to sell with vendees. 15. There are concurrent findings of fact recorded by the learned courts below against the appellants. This Court in Civil Appeal No. 794/2006 13 Muhammad Shafi and others Vs. Sultan (2007 SCMR 1602) while relying on case law from Indian jurisdiction as well as from the Pakistani jurisdiction has candidly held that this Court could not go behind concurrent findings of fact “unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible.” No such thing could be brought on record to warrant interference by this Court. 16. For what has been discussed above, we do not find any merit in this appeal, which is dismissed with no order as to costs. JUDGE JUDGE Islamabad, the 14th of April, 2015 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Maqbool Baqar Mr. Justice Munib Akhtar Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal No.797 of 2013 (Against judgment dated 27.2.2013 passed by the Lahore High Court Lahore in I.C.A. No.89 of 2011) Province of Punjab through Executive District Officer (Education) Rawalpindi & another …Appellant(s) Versus Ruqia Islam …Respondent(s) For the Appellant(s): Mr. Mushtaq Ahmad Mohal, Additional Advocate General Punjab. Ikram Abbasi, L.O., C.E.O. For the Respondent(s): In Person Date of hearing: 23.1.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Ruqia Islam, respondent herein, figured at Sr. No.15 of the merit list of successful candidates for the post of Educators in pursuance to advertisement dated 7.10.2008; she alongwith other female teachers was, however, denied assumption of charge in the Government Boys High School Thata Khalil, Taxila, purportedly, on the basis of Policy No.SO (S-IV)2-34/2018 dated 23rd of August, 2008; relying upon an earlier judgment of the High Court, striking off an identical policy, she successfully impugned departmental denial through Writ Petition No.2700 of 2002; the High Court vide judgment dated 29.3.2011 directed the department to consider her for appointment in the aforesaid educational institution. An Intra Court Appeal by the Province was dismissed vide impugned Civil Appeal No.797 of 2013 2 judgment dated 27.2.2013, vires whereof are being assailed through the present appeal by leave of the Court. 2. Learned Additional Advocate General Punjab contends that in the face of the Recruitment Policy of Educators in the Government Schools 2008-2009, placing complete ban on the appointment of female candidates to apply against any category of post in Boys High/Higher Secondary School, the High Court had no jurisdiction to direct the department to accommodate the respondent in a school meant for boys; he next argued that the impugned policy is well within the remit of law inasmuch as it is designed to ensure a conducive educational environment without offending the principle of equal opportunity; he has invited attention to the eligibility of female candidates for the post of Elementary School Educator and Senior Elementary School Educator (Science/Arts) in Boys Primary and Middle Schools to argue that the impugned policy is balancedly founded upon reasonable classification, recognized by law to appropriately accommodate female teachers; he placed reliance on the cases reported as Asadullah Mangi and others Vs. Pakistan International Airlines Corporation and others (2005 SCMR 445) and Dossani Travels Pvt. Ltd. Vs. Messrs Travels Shop (Pvt.) Limited (PLD 2014 Supreme Court 1) to conclude that the High Court had no occasion to interfere with an administrative policy affair. 3. Heard. 4. We are not impressed by the position taken by the learned Additional Advocate General Punjab nor have found his reliance on the supra judgments, relevant to the facts of the present case, being rendered in an entirely different contextual backgrounds. In the supra case of Abdullah Mangi & others, candidates for the job of flight stewards, despite initial selection and training, nonetheless, were found by the respondent-air line, ineligible on account of their failure to successfully compete with their competitors and as such the argument of discrimination by the Court was repelled. Similarly, case of Dosani Travels Pvt. Ltd. is structured upon vastly distinguishable facts as well as issues arising therefrom. Before us is a female, otherwise eligible on all fours, being denied a position despite having successfully Civil Appeal No.797 of 2013 3 competed for the job as an Educator in the same category of post/functional group in Boys High/Higher Secondary School, however, with a relegated opportunity to serve in the same capacity in the primary and middle sections. The foregoing stipulation/ classification, founded on her gender alone, apparently sans any rational basis except for a dogmatic and subjective belief that she would not be able to handle students placed in a slightly higher age group, an apprehension oriented more chauvinistically than on any objective foundation, therefore, the impugned policy cannot be viewed as prudent or expedient nor reflects intelligible differentia so as to qualify the precondition of being reasonable. On the contrary, it is grievously retrogressive besides being violative of Constitutional commands. 5. Half of the human resource in the Republic comprises of women; they are mentoring, par excellence in every walk of life; it is a treasure which must be utilized for a better future. The Constitution of the Islamic Republic of Pakistan preambles rights that include equality of status as well as of opportunity; Article 27 reads as under:- “No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth …….” Under the Principles of Policy, it is further emphasized in Article 34 of the Constitution that:- “Steps shall be taken to ensure full participation of women in all spheres of national life.” The Constitution commands the Government to take meaningful and effective steps and formulate policies conducive to tap this most important human resource by ensuring congenial working environments, free from harassment or discrimination so as to facilitate female participation in the national life for a better and Civil Appeal No.797 of 2013 4 prosperous future. These cherished goals envisaged by the Supreme Law cannot be set at naught through “policies” inherently flawed as well as discriminatory. A policy manifestly inconsistent with the Constitutional commands, retrogressive in nature, and discriminatory inter se the populace is not immune from judicial review. View taken by the High Court, being well within the remit of law, does not call for interference. Appeal fails. Dismissed. Judge Judge Judge Islamabad, the 23rd January, 2020 Not approved for reporting Ghulam Raza/-

TN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR Civil Appeal No.799 of 2021 (Against judgment dated 12.11.2018 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1 208(R)(CS)/2016.) Syed Arshad Au Appellant Versus Secretary M/o Housing & Works, Islamabad & ... Respondents others For the Appellant Mr. Muhammad Ramzan Khan, ASC For Respondents # 1-4 : Mr. Sohail Mehmood, Addl. AGP Mr. Abdul Razzaq, S.C. M/o H&W For Respondents # 5-6 Date of Hearing Mr. Rashid Hafeez, ASC 22.12.2021 ORDER Guizar Ahmed, CJ. - The appellant was employed with the Ministry of Housing and Works ("the Ministry"). He was promoted as an Assistant on 06.08.2003 w.e.IT 04.08.2003. The private respondents were appointed as Assistant respectively on 19.03.1990 and 02.09.1991 in the Statistics Department, where the services were declared to be surplus. They were transferred and absorbed in the Ministry on 06.08.2003 as Assistants. Final Seniority List of Assistants (BS-14) in the Ministry was circulated vide Circular dated 31.12.2015. The name of the appellant appeared at Serial No.4 whereas the names of the private respondents were shown at Serial Nos.2 and 3. The appellant submitted representation against the Final Seniority List which was not responded to and thereafter, he filed a service appeal C.A.799/2021 2 before the Federal Service Tribunal. By the impugned judgment dated 12.11.2018, the service appeal filed by the appellant was dismissed. 2. Leave to appeal was granted by this Court vide order dated 1.2.08.2021 to consider the submissions made by the appellant's counsel as noted in the order. 3. The learned counsel for the appellant has not argued on the point which is noted in the leave granting order, rather has raised a submission that the private respondents being direct recruits their names ought to appear junior to the appellant who is a direct recruit in the Ministry and promoted as Assistant w.e.f. 04.08.2003. The learned counsel for the appellant has referred to two judgments one Abdul Qadeer Vs. Government of Pakistan and another (2005 SCMR 1560) and Director General Intelligence H Bureau Vs. Amir Mujahid Khan (2011 SCMR 389). Both the H judgments have been read and apparently, they are distinguishable for the reasons that they did not deal with the question as is argued by the learned counsel for the appellant. 4. Rule 6 of the Civil Servants (Seniority) Rules, 1993 which existed at the time when the dispute arose in the present case is as follows: "6. inter se seniority of civil servants appointed in the same calendar year—Persons appointed by transfer in a particular calendar year shall, as a class, be senior to those appointed by promotion or by initial appointment to such Posts in that year, and persons promoted to higher posts in a particular calendar year shall, as a class, be senior to those appointed by initial appointment to such posts in that year." 5. Subsequently, that rule was amended and it is admitted by the learned counsel for the appellant so also the learned counsel C.A.799/2021 3 appearing for the respondents that the subsequent amended rule is not applicable to the case in hand. 6. The very reading of the rule shows that the persons appointed by transfer in a particular calendar year shall as a class be senior to those appointed by promotion or by initial appointment to such post in that year, and persons promoted to higher post in a particular calendar year as a class be senior to those appointed by initial appointment to such post in that year. This rule makes it quite clear that persons appointed by transfer in a particular calendar year shall as class be senior to those appointed by promotion or by initial appointment to such post in that year. The appellant was promoted on 06.08.2003 w.e.f. 04.08.2003 to the post of an Assistant while the private respondents were appointed as Assistants by transfer on 06.08.2003. The rule as read above clearly shows that the private respondents were appointed by transfer on 06.08.2003 and the appellant being promoted on 06.08.2003 with effect from 04.08.2003 and both transfer and promotion having taken place in the Calendar Year 2003, those appointed by transfer will be senior to those who were promoted. It is not the case of the appellant that the private respondents were transferred at their own request. 7. In the case of Tikka Khan and others vs. Muzaffar Hussain Shah and others (2018 SCMR 332) a learned 3-Member Bench of this Court has observed as follows: "A look at the rules reproduced above would reveal that one deals with determination of seniority on appointment by transfer and the other deals with the determination of seniority on merger. A bare reading of the Rule 4 reveals that the case of the respondents is not of appointment by transfer or appointment on deputation. It is not even a case of absorption by any C.A .799/2021 4 attribute. The case of the respondents precisely is that many Ministries were abolished and reorganized in the wake of the Constitution (18th) Amendment) Act, 2010 and that they being the employees of the Ministry abolished were transferred to the Ministry reorganized. Transfer of the respondents to the Ministry reorganized cannot be seen through the prism of Rule 4 of the Rules mentioned above. Their case is fully covered by serial No. 33(6) of Estacode, Vol-I, Edition 2007. In this context, their case would be more akin to Rule 4A rather than Rule 4 of the Rules. No canons of interpretation would scratch or strike off their past service when they on abolition of the Ministry, were compulsorily transferred to the Ministry of Religious Affairs and Interfaith Harmony. Their past service has to be respected and recognized for determining their seniority, It would, thus, be unfair and unjust to treat the respondents junior to the junior most civil servants in the Ministry for none of their faults. The view taken by the Service Tribunal is, therefore, not amenable to any change or modification." In the case of Seeretaru Revenue Division / Chairman, FBR and another vs. Muharnamd Arshad Hilali (2019 SCMR 980) this Court while considering the implication of rule 6 has observed as follows: "5. The import of paragraph 6(i)(a) above appears to be quite contrary to what respondent's counsel intend to advance before us. It clearly provides that where a person is transferred to another office in a situation where it was open to him to accept or refuse such transfer, his seniority was to be reckoned from the date of his transfer to the new office. The only exception to this rule is contained in paragraph 6(i)(b). It states that where a person is compulsorily transferred to another office then he is allowed to count his service in the previous office towards his seniority in his new office. In the case of transfer of four other officers of the department, example of which has been quoted as precedent in the present case, their seniority may have been reckoned from the date of their initial appointment but nothing was brought on the record as to the circumstances in which such transfers had taken place. In the present case, one thing is clear that the respondent sought his transfer to his new office on his own volition on the basis of mutual consent with another officer of the same grade. He was not compulsorily transferred at the instance of the department, hence the recognized practice contained in paragraph 6(i)(a) of Serial No. 30, Chapter III Part II of Estacode (1989 edition) clearly disentitles him to count his previous service towards seniority in the new office. When on a principle of law one upon his transfer is not entitled to seek seniority from the date of his initial appointment then if someone else has been granted seniority in violation of such principle, which too is not clear, the same cannot be made a -I C.A.799/2021 5 ground to raise the plea of discrimination." 8. The law having been settled by this Court and also the very reading of rules 6 ibid, as it existed at the time of dispute having arisen between the parties, we are of the considered view that the private respondents having been appointed by transfer in the year 2003 and the appellant having been promoted in the year 2003 and all being promoted or being transferred to the post of Assistant, the private respondents shall acquire senior position than that of the appellant. No illegality in the impugned judgment is pointed out calling for interference by this Court. The appeal is, therefore, dismissed. Islamabad, the 22d December, 2021. Naveed Ahrnad r:L Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE JAWWAD S. KHAWAJA. MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE MAQBOOL BAQAR. Civil Appeals Nos.80-L to 109-L of 2014. (Against the judgment dated 28.10.2013 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.2974/12, 2978/12, 2979/12, 2980/12, 2981/12, 2982/12, 2983/12, 2984/12, 2985/12, 2986/12, 2988/12, 2989/12, 2990/12, 2991/12, 2992/12, 2993/12, 2994/12, 2995/12, 2996/12, 2997/12, 2998/12 ,2999/12,3000/12, 3001/12, 3002/12 and 3003 of 2012) Government of the Punjab through Chief Secretary, Lahore, etc. …Appellants (in all cases) Versus Ch. Abdul Sattar Hans. Muhammad Ayub. Nazam ud Din Anjum. Muhammad Ayub Khan. Khalid Mahmood (Dy. Accountant). Abdul Rauf Khan. Atta-ur-Rehman. Akhtar Ali. Fazal-ur-Rehman. Amjad Iqbal. Naseem Ullah. Ahmad Nadeem. Malik Ijaz Ali. Rana Zulfiqar Ali. Mian Muhammad Khalid. Muhammad Shakeel Ahmad. Talib Ul Maula. Shahid Rafique. Muhammad Yasin. Muhammad Toufeeq Gill. Irfan Ahmad. Muhammad Ashraf. Zafar Iqbal Awan. Mahmood Ahmad Sabri. Shahid Younas. Malik Qaisar. Muhammad Asif. Munir Ahmad. Asghar Ali. Muhammad Javed. …Respondents For the appellants: Mr. Mudassar Khalid Abbasi, AAG For the respondents: Ch. Amir Hussain, Sr. ASC Mr. Muhammad Aslam Zar, ASC Date of hearing: 18.03.2015. CAs-80-L to 109-L of 2014 2 Judgment Jawwad S. Khawaja, J.- These appeals are by leave of the Court. The respondents are employees of the Provincial Government. Leave to appeal was granted in these matters vide order dated 26.3.2014 which is reproduced as under:- “Refers to a judgment of this Court reported as Muzaffar Khan and others Vs. Government of Pakistan and others (2013 SCMR 304 at page 313 para 17) to contend that each Province is autonomous under the Constitution and is empowered to make its own laws and rules inter alia for civil servants and the rules framed either by the Federal Government or the Provincial Government cannot be cited to make out a case of discrimination. 2. Ch. Amir Hussain, learned ASC, has appeared for the caveats. He has raised a preliminary objection to the effect that these petitions are barred by time. Office has not submitted any report, as to whether these petitions are barred by time. Let the office make the report in this behalf. 3. Having heard the learned Addl. Advocate General, Punjab and the learned counsel for the respondents at some length, leave to appeal is granted, inter alia, to consider whether in accepting the appeals, the learned Tribunal kept in view the principle of law that a reasonable classification is permissible notwithstanding the mandate of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.” 2. We have gone through the impugned judgment rendered by the Chairman, Punjab Service Tribunal. He has proceeded on the assumption that Federal Government employees and employees of the Provincial Government should receive the same emoluments and perquisites if they are performing the same type of duties. This finding is flawed for two reasons. Firstly, we have not found any exercise undertaken by the Tribunal or indeed any other government functionary which would show that the actual work being performed by Sr. Auditors of the Audit Department who are employees of the Federal Government is exactly the same as the work being done by the Deputy Accountants employed by the Province. Secondly, it has been held by the Service Tribunal as under:- “The appellants possess the similar qualifications, nature of the duties performed are similar, work under the same roof and same officer. Similarly placed are to be treated similarly. No doubt the Provincial Govt. works independently under the Constitution but generally it follows the pay scales sanctioned by the Federal Govt. If two different pay scales are given to the Federal Govt. employees and the Provincial Govt. employees it may amount to extracting labour and exploitation under Article 3 of the Constitution of Islamic Republic of Pakistan. I tend to agree with the judgment of the Lahore High Court 2004 PLC(CS) 586 that it is violation of articles 2-A, 3, 25, 37 and 38 of the Constitution of Islamic Republic of Pakistan, 1973.” CAs-80-L to 109-L of 2014 3 The above reproduced observation, however, is also flawed because Article 3 of the Constitution has no application in the present case. We may note that the respondents who were appellants before the Service Tribunal were not conscripted in service. They had joined service voluntarily and had accepted the terms and conditions of service. It is evident that they did not compete with the Sr. Auditors (BPS-16) of the Federal Government and, therefore, cannot claim that they should be given perks and emoluments as the Sr. Auditors of the Federal Government. The question of exploitation would only have arisen if the respondents had been forcibly inducted into compulsory service. This is not the case and it appears that they had happily joined service and are enjoying the benefits of the same. 3. Thirdly, it is important to note that the Provincial Government has to remain within its own budgetary constraints. The finding of the Service Tribunal that the “Punjab Government will have to bear extra financial burden of Rs.46.44 millions, suffice to say that the service structure and financial constraints cannot stand in the way of the Constitution”. This is not a tenable position because the amounts paid by way of salaries, are extracted from the pockets of citizens by means of taxation. The Province and its Government can genuinely come to the conclusion that they are not prepared to burden the people of the Province by imposing an extra levy on them. It is not for the Service Tribunal to tell the Government of Punjab to impose additional taxes/levies for the purpose of meeting the command of the Service Tribunal. We are cognizant that there may still be duties imposed on Governments which are absolute and may require allocation or reallocation of financial resources with the object of ensuring performance of such duties. In an appropriate case this can be examined. However, this case does not raise such issues. 4. It is also important to bear in mind that Article 25 of the Constitution is only attracted where there is an apple-to-apple comparison. In the present case, this is not the position because both sets of individuals i.e. Sr. Auditors of the Federal Government (BPS-16) and Dy. Accountants of the Provincial Government (BPS-14) are not equally placed. There is an obvious criterion which differentiates the two categories i.e. they are employed by different employers with different financial and other resources. Thus a very fundamental issue of federalism has arisen in this case. If the reasoning of the Service Tribunal is upheld, tomorrow a Province or the Federation which is more affluent than CAs-80-L to 109-L of 2014 4 other Provinces and is prepared to raise the salaries of its employees or as a policy decides that government servants should be paid according to the market salaries it will not be constitutionally permissible for a Court to hold that the Province which is less affluent should pay the same emoluments and provide the same perquisites as has been done by the more affluent Province. The federation and each of the Provinces exercise independent powers as per distribution of powers set out in Chapter 1 of part V of the Constitution. This indeed is the essence of a truly federal constitutional structure. 5. In view of the above discussion, we are clear that the impugned judgment of the Service Tribunal proceeds on erroneous premises. The same is, therefore, set aside. These appeals are allowed. Judge Judge Judge ISLAMABAD. 18.03.2015. M. Azhar Malik APPROVED FOR REPORTING.

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE TASSADUQ HUSSAIN JILLANI MR. JUSTICE AMIR HANI MUSLIM CIVIL APPEAL NOs. 800-L, 801-L & 802-L OF 2013 AND CIVIL PETITION NOs. 1148/2013 & 1348/2013 AND C.M.A. NOs. 278-L, 279-L/2013, 285-L/2013, 289-L/2013, 5328 TO 5333/2013, 5378/2013, 5463/2013, 5464/2013 & 5477/2013 (On appeal from the orders dated 24.6.2013 & 9.7.2013 passed by Lahore High Court, Lahore in Writ Petition No. 7253/2013 and judgment dated 15.7.2013 passed by Islamabad High Court, Islamabad in WP No. 2939/2013) Dossani Travels Pvt Ltd (CA 800-L/2013) City Travels (Pvt) Ltd (CA 801-L/2013) Super Travels Pvt Ltd (CA 802-L/2013) Usman Air Travels through its CEO (CP 1148/2013) M/s Golden Travel Services Pvt Ltd (CP 1348/2013) … Appellants/Petitioners VERSUS M/s Travels Shop (Pvt) Ltd and others (CAs 800-L, 801-L & 802- L/2013) Federation of Pakistan through Secretary M/o Religions Affairs and others (CPs 1148/2013 & 1348/2013) … Respondents For the Appellants: Mr. Afzal A. Haider, ASC (In CAs 800-L to 802-L/2013) For the Petitioners: Mr. Muhammad Ikram Ch, Sr. ASC (In CPs 1148 & 1348/2013) For the Applicants: Mr. Waseem Majid Malik, ASC (In CMA 278-L/2013) Mr. A.K. Dogar, Sr. ASC (In CMA 279-L/2013) Mr. Saeed Ullah Khan, ASC (In CMA 285-L/2013) CIVIL APPEAL NOs. 800-L, 801-L & 802-L OF 2013 etc 2 Mr. Azhar Siddique, ASC (In CMAs 5328 to 5333/2013) Mr. Mir Adam Khan, AOR Mr. Nek Nawaz Khan Awan, ASC (In CMA 5378/2013) Qari Abdur Rasheed, ASC (In CMAs 5515 to 5520/2013) For FBR: Syed Arshad Hussain Shah, ASC For SECP: Mr. Naveed Ihsan, Departmental Representative For CCP: Mr. Muhammad Bilal, Sr. ASC Mr. Babar Bilal, ASC For NADRA: Mr. Saqib Jamal, Manager Legal On Court Call: Mr. Abdul Hayee Gillani, Additional Attorney General Mr. Dil Muhammad Alizai, DAG Mr. Jahanzeb Wahla, Standing Counsel Mr. Shahzad Ahmed, Joint Secretary, Ministry of Religious Affairs Mr. Farid Khattak, Deputy Secretary, Ministry of Religious Affairs For the Respondents: Mr. A.K. Dogar, Sr. ASC Mr. Azhar Siddique, ASC Qari Abdur Rasheed, ASC Date of Hearing: 27.08.2013 ORDER For reasons to be recorded later in the detailed judgment, Civil Appeal Nos. 800-L to 802-L/2013 are allowed, Civil Petition Nos. 1148 & 1348 of 2013 are converted into appeals and allowed and C.M.A. Nos. 278-L, 279-L/2013, 285-L/2013, 289- L/2013, 5328 to 5333/2013, 5378/2013, 5463/2013, 5464/2013 & 5477/2013 are disposed of and we hold and declare as under:- i) that the order of the learned High Court dated 24.6.2013 passed in Writ Petition No. 7253/2013 is violative of the principle of trichotomy of powers, which is one of the CIVIL APPEAL NOs. 800-L, 801-L & 802-L OF 2013 etc 3 foundational principles of the Constitution of Islamic Republic of Pakistan; ii) that it is not the function of the High Court exercising jurisdiction under Article 199 of the Constitution to interfere in the Policy Making Domain of the Executive; iii) that the learned High Court in the exercise of its Constitutional jurisdiction directed selection of Hajj Group Organizers through bidding process and thereby substituted the criterion laid down in the Hajj Policy framed by the Ministry of Religious Affairs without hearing the appellants / Hajj Group Organizers and others who had already been allocated quota and had made arrangements for intending Hujjaj, which is not tenable in law; iv) that the High Court can under Article 199 of the Constitution annul an order or a Policy framed by the Executive, if it is violative of the Constitution, law or is product of mala fides. However, nothing has been placed before this Court to indicate that the Hajj Policy challenged before this Court seriously suffered from any of these infirmities; and v) that Ministry of Religious Affairs shall continue to regulate the operation of Hajj i.e. enrollment, CIVIL APPEAL NOs. 800-L, 801-L & 802-L OF 2013 etc 4 registration and allocation of quota every year in the light of a fair and transparent policy and the guidelines to be laid down by this Court in the detailed judgment. JUDGE JUDGE Islamabad, the 27th of August, 2013 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Civil Appeal No.800 of 2011 (On appeal from the judgment dated 24.10.2007 passed by the Lahore High Court, Rawalpindi Bench in Civil Revisions No. 420/2006 and 430/2006) Mst. Yawar Azhar Waheed (decd.) thr. LRs. … Appellant VERSUS Khalid Hussain etc. … Respondents For the appellant: Ch. Abdus Sattar, ASC Asst: by Kh. Azhar Rashid, ASC Mr. M.S. Khattak, AOR (absent) For R-No.4: Sardar Muhammad Aslam, ASC Ch. Akhtar Ali, AOR For R-No.5: Publication—N.R. Respondent No.6: N.R. Date of hearing: 24.10.2017 JUDGMENT DOST MUHAMMAD KHAN, J.- This appeal with the leave of the Court dated 5.8.2011 has been filed against the judgment and decree of the Lahore High Court, Rawalpindi Bench dated 24.10.2007 in Civil Revisions No.420 and 430 of 2006. 2. The brief description of the controversy is, that the respondents filed a suit for permanent injunction against the appellant CA 800/11 2 (now dead), represented by her LRs. with the plea that respondents/plaintiffs No.1 & 2 were owners in possession of House No.50 Harley Street, Rawalpindi Cantt., while other respondents were owners in possession of residential houses No.53, 54-A and 50-A respectively. 3. It is further averred in the plaint that plot No.16-B was transferred in favour of one Major Ishtiaq-ur-Rehman Khan, who sold the same through registered sale deed No.148, book No.1, volume No.163 (at page 103), registered with Sub-Registrar, Rawalpindi on 17.1.1998 to the appellant. They further alleged that under the law and rules and the condition of original transfer letter issued by the Cantonment Board, Rawalpindi to the said Major Ishtiaq-ur-Rehman was to build a residential house on the plot however, after purchase of the plot through registered deed measuring 3-k, 6-M and 44 Sq.ft., situated in Harley Street, Housing Scheme, Rawalpindi Cantt, the condition imposed was intriguingly deleted without approval of the competent authority. 4. Subsequently erection of commercial building was planned by the appellants on the plot, which was re-numbered 54 and in blatant violation and utter disregard of Cantonment Land Administration Rules, 1937 framed under the Cantonment Board Act, 1924 [hereinafter referred to as “the Act”] and also section 179 and other relevant provisions of the Act ibid, the Board granted approval to the proposed erection of commercial building for running a school. 5. Keeping in view the registered covenant the conversion of the plot from residential to commercial was in violation of the master plan and the rules, therefore, the suit was instituted in the Court of Civil Judge, Muhammad Iqbal Haral, which was dismissed on 2.12.2003. CA 800/11 3 Aggrieved by that, respondents filed appeal before the learned District Judge, who accepted the same on 24.12.2003 and remanded the case to the Trial Court after recasting certain issues with direction to decide it afresh however, the High Court in Civil Revision Petition set aside the order vide judgment dated 28.10.2004 and sent the case back to the District Appeal Court for decision on merits. After remand, the appeal was allowed on 15.4.2006. 6. This time the appellant feeling aggrieved, filed a revision petition mentioned above while cross revision petition was also filed by the respondents with regard to certain observations of the District Appeal Court. The revision petition filed by the appellant was dismissed through consolidated judgment impugned herein and the suit of the respondents was decreed. 7. From the evidence on record, the provision of the Act, the Cantonment Land Administration Rules, 1937 and the master plan, prepared initially are the deciding factors, therefore, in light of that we have to proceed and see whether those were violated or not? 8. The Cantonment Boards like any Local Government, Provincial Government or the Federal Government are bound by the law, rules, bylaws and the Constitution as well as the State obligation being signatory to the conventions signed by it and by other members of the UNO, therefore, the Cantonment Board under no circumstance could be an exception to that. 9. Under the provision of section 179 of the Act and the Administration of Cantonment Property Rules and more particularly the master plan, initially prepared and published for general information of CA 800/11 4 the public, containing all the facilities, required under the law and the rules for the residential areas, for which the Cantonment Housing Scheme was established, separate area was allotted for parks, public lavatories, disposal of refuse, animal slaughtering houses and allied facilities besides establishment of educational institutions by the Cantonment Board, to be run and managed by it, however, with the passage of time, the cursing greed to generate fund throwing the fate of the residents of the posh area to dusty wind, it allowed at random the commercialization of the residential area as is evident from the parawise comments without any hesitation to think and take a pause, submitted by the Cantonment Board in this case. The way it has acted in support of the appellant’s case extending undue favour in violation of law and rules to the prejudice of the comfort and welfare of the residents of the residential area, it threw weight behind the appellants, to perpetuate illegality, an act to be deprecated and to be condemned because Cantonment Board has become a shopping spree by commercialization of the residential area seriously violating the master plan, the law, rules and the Constitution. This approach of the Cantonment Board on no premises, much less legal one can be approved. 10. If the entire scheme of the ‘Act’ is seen, extra care has been taken of the residents of each Cantonment, even for every facility to be provided and violation thereof has been made punishable under the law to ensure the peaceful, calm and healthy living atmosphere for the residents however, each and every Cantonment in violation of its statutory duty and constitutional obligation with a greed to generate fund is rapidly converting the residential areas into commercial one, which is absolutely illegal being in blatant violation of the law and also CA 800/11 5 against the master plan, initially designed and made public for that purpose. 11. Any housing scheme by the Cantonment Board when is shown in the master plan with all necessary facilities to be provided like parks, playgrounds, public drinking water facilities, filtration of water for drinking purposes and establishment of its own educational institutions, the public was attracted, particularly, the officers from the Army and other Forces to purchase the plot so that they might live a honourable life with dignity and peace of mind. 12. In the instant case, the plot was initially allotted to Major Ishtiaq-ur-Rehman with a condition squarely mentioned in the allotment letter that it shall be used only for residential purpose and no other purpose however, this condition was deleted from the registered sale deed through which the plot was purchased by the appellants’ predecessor-in-interest, namely Mst. Yawar Azhar Waheed (deceased). 13. It is shocking that Cantonment Board approved the erection of new building for commercial purposes i.e. to run a school with hundreds of children, thus, conveniently ignored the initial condition imposed by itself that the plot shall not be used for any other purpose except residential house. The sanction was accorded blind-foldedly through third degree tactics without the sanction of law. 14. Once the master plan is notified and it is accepted by the purchaser of the plot and the Board accepts the offer of purchaser and allots the plot, thereafter, the Cantonment Board is left with no authority to bring changes in the master plan, designed for the housing scheme CA 800/11 6 unilaterally because a binding contract came into existence in such eventuality. 15. Under the provision of the Act, even if a residential building is found overcrowded, the Board has the authority to issue a notice to the owner to reduce the crowd or to face the penalty. 16. Right from the provisions of Chapter IX to Chapter XV the scheme of the provisions of the Act is directed to maintain cleanliness, proper sanitation, water supply and to take extra care of public health, security etc. however none of the Cantonment Boards within the country with exception of few, is abiding by this mandatory provision of law as well as the bylaws. The way the Cantonment Board through parawaise comments has illegally supported the cause of the appellant, would show that it is bent upon to violate the law to mint money and to generate funds but through illegal means. The present case is the classic example where the Cantonment Board in parawise comments without any hesitation has mentioned the operation of dozens of other schools and colleges in the area which too is required to be addressed and the Cantonment Board has to take action in this regard against the delinquent officers as to how these were sanctioned and were allowed to operate when it was basic obligation of the Cantonment Board to establish, manage and run its own educational institutions within the Cantonment limits and no private individual is to be permitted to operate and run such institutions. 17. The appellant purchased the plot on the basis of the allotment order, issued to the original owner of the plot by the Cantonment Board and as stated above, there was a strict condition incorporated therein that the plot shall be used for erection of residential CA 800/11 7 building thereon however, the purpose of use was in blatant violation of law was converted by the Board to commercial house, while approving the building plan, the only motive behind it was to trample the law on the subject for money and financial benefits and for no other purpose. 18. The respondents’ suit was fully justified because they are the residents of the same area situated at a little distance. If the school building is put into operation, hundreds of children would be brought in cars and other vehicles, for which there is no parking facility and even for the employees of the school, besides it would create massive pollution emitting carbon monoxide gas on daily basis. Drinking water consumption would increase manifold which is at present not even sufficient to meet the requirements of the residents of the area. Sanitation condition would be worsen because hundreds of children would definitely create multiple problems like pollution, garbage etc. The security of the area would be compromised in view of the prevailing condition in the country and the lives of the residents would be at stake as well. 19. We have gone through the evidence both documentary and oral as well as the law on the subject and the one cited by the High Court in its impugned judgment and we do not see any reason much less plausible to interfere with the well reasoned judgment of the High Court. Therefore, this appeal is dismissed with costs. 20. Copy of this judgment be sent to the Attorney General for Pakistan and Secretary Defence who shall ensure that all the private educational institutions i.e. schools, colleges, etc. constructed in the Cantonments and all the commercial buildings erected in residential areas of Cantonments throughout Pakistan shall be removed gradually, CA 800/11 8 having been constructed in violation of the law and rules as well as bylaws and the master plan and their original shape be restored. 21. Periodical reports in this regard be submitted to the Court for our perusal in Chambers, until the process is completed otherwise this Court would be constrained to issue notice to the Secretary Defence, D.G. Cantonments as to why action under the law and rules shall not be taken against them. JUDGE JUDGE Islamabad, the 24th October, 2017 Nisar/* Approved For Reporting.

I' r - —s..... SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Umar Ata Bandial Mr. Justice Ijaz ul Ahsan Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Jamal Khan Mandokhail CIVIL APPEALS NO.803 AND 804 OF 2016 (Against the order dated 2112.2015, passed by the Islamabad High court, Islamabad, in W.Ps. PJo07 and 080120101 Muhammad Shabbir. (in C.A No.80312016) Muhammad Shahid. (in C.A.No.8041201 6) .Appellants Versus Quaid-e-Azam University through its Vice Chancellor, Islamabad and others. (in both cases) Respondents For the Appellants : Qazi Shehryar Iqbal, ASC (in both cases) Syed Rifaqat Hussain Shah, AOR For the Respondents both cases) For the Federation Date of Hearing Mr. Muhammad Munir Paracha, ASC Mr. Sajid Ilyas Bhatti, Additional Attorney General for Pakistan 18.01.2022 ORDER Guizar Ahmed. CJ. - A 2-Member Bench of this Court has passed an order dated 30.04.2019, whereby it has formulated two questions of law, to be addressed and referred the matter to the then 11 ,Hon'ble Chief Justice of Pakistan for constitution of a larger Bench for answering the same. Pursuant thereto, the matter has been taken up by this larger Bench. Following are the two questions: - 1. Whether the judgments in the Air League case (supra), State Bank of Pakistan case (supra) and Sui Southern Gas Co. Ltd. case (supra) can co-exist with reference to the scope and extent of the retrospective effect doctrine. II. Whether all the decisions rendered by the Labour Court, during the interregnum period, are null and void in the eyes of law. If so, whether, and to what extent, such decisions can be extended protection by applying the de facto doctrine. flJC.'VLL..L C.As No.803404 of 20I -2- 2. The facts of the matter are that the appellant in Civil Appeal No.803 of 2016, namely, Muhammad Shabbir was employed with Respondent No. 1-Quaid-e-Azam University as Bearer, while the appellant in Civil Appeal No.804 of 2016, namely, Muhammad Shahid was employed with Respondent No. 1-Quaid-e-University as Cook. They were issued charge-sheets and statement of allegations dated 05.03.2004. The enquiry committee was constituted to conduct regular enquiry. The appellants gave reply to the charge-sheets and statement of allegations. The enquiry committee concluded the enquiry and gave its report finding the appellants guilty of the charge. On receipt of the enquiry report, the respondents issued show cause notices, which were replied by the appellants. The competent authority through order dated 21.07.2004 imposed the major penalty of compulsory retirement from service on both the appellants. The appellants filed departmental appeals and then filed service appeals in the Federal Service Tribunal, Islamabad. On announcement of judgment of this Court in the case of Muhammad Mubeen-Us-Salam and others vs. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602), whereby Section 2-A of the Service Tribunals' Act, 1973 was declared ultra vires the Constitution, the service appeals of the appellants were abated. The appellants then filed grievance petitions under Section 46 of the Industrial Relations Ordinance, 2002 (the Ordinance of 2002) in the Labour Court, Islamabad. The grievance petitions were contested by the respondents. The Labour Court through its judgments dated 24.11.2010 partly allowed the grievance petitions of the appellants by setting aside the penalty of compulsory retirement from service and converting it into withholding of two increments. The appellants were directed to be reinstated in service with back benefits. The respondents challenged the judgments of the Labour Court by filing of writ petitions in the Islamabad High Court, Islamabad. The High Court by the impugned order dated F21.1 isposed of the petitions observing as follows:- - I ___________ • 'T j 7 .. .. rt-wTj ... Ct4s No.803-804 of 2016 -3- "The next objection upon the impugned judgment is that same was issued during interregnum period after lapse of IRA, 2008 pursuant to sunset clause. This objection finds merit because impugned judgment was passed by learned Trial Court on 24.11.2010 while on that time there was no legislation in promulgation after lapse of IRA, 2008 on 30.04.2010, while during the period between 30.04.2010 to 18.07.2011 no labour law was in prevalence, therefore, learned Labour Court could not have assumed jurisdiction. This point was decided by the Hon'ble Supreme Court in case titled as "Air League PIAC Employees through President vs. Federation of Pakistan etc." (2011 SCMR 1254) wherein it was held that "during the interregnum period w.e.f 30.04.2010, when no industrial relations law was holding the field, the workers had remedy under the Ordinary Laws prevailing at that time, because in absence of a special law the ordinary/ general laws come forward to fill in the vacuum." Similarly in case "State Bank vs. Presiding Officer Labour Court, Islamabad" (Civil Appeal No.1150/2012) the Hon'ble Apex Court held that "grievance petitions decided between the period 30.04.2010 to 08.07.2011 stand revived before the learned NIRC." In the light of ratio set in by the Hon'ble Apex Court, the impugned judgment is declared to have been passed without lawful authority and jurisdiction. It is thus set aside with observation that respondent No.2 may file a grievance petition before learned NIRC under the IRA, 2012 in vogue." Relying upon Air League of PIAC Emplouees through President v. Federation of Pakistan M/O Labour and Man power Division Islamabad and others (2011 SCMR 1254) and State Bank of Pakistan throu gh its Governor/Director Human Resources & another v. Presidin g Officer, Labour Court (District & Sessions Judge) Islamabad & others (Civil Appeal ,No. 1150/2012 the High Court found that the judgments announced by the Labour Court were without lawful authority and jurisdiction and ii thus, set aside the same with observation that the appellants may file the p -.-- .. . - .... . t. r . C.As No.803-804 of 201 -4- grievance petitions before the NIRC under the Industrial Relations Act, 2012. The appellants filed civil petitions before this Court against the impugned orders of the High Court in which leave was granted vide order dated 31.03.2016, "to examine whether on account of successive legislation, the matter which had been competently initiated by the appellants (their grievance petitions) on 19.06.2006, under the valid law in force at that time was obliterated and not saved on account of IRA, 2008 and they were left remedy-less as the Labour Court according to the learned High Court stood abolished during this period, thus having no jurisdiction to decide the matter vide judgments dated 24.11.2010". 3. The appeals came up for hearing before a 2-Member Bench of this Court when the order dated 30.04.2019 was passed formulating the two aforementioned questions. 4. It is apparent from the record that the appellants have filed grievance petitions before the Labour Court under Section 46 of the Ordinance of 2002. During the pendency of the grievance petitions the Industrial Relations Act, 2008 (the Act of 2008) was promulgated and by Section 87 of this Act, the Ordinance of 2002 was repealed. Section 87(2)(b) of the Act of 2008 contained saving clause which, provided that the proceedings commenced under the repealed Ordinance were saved and were deemed to have been commenced under the corresponding provisions of the Act of 2008. The grievance petitions filed by the appellants continued before the Labour Court after promulgation of the /Act of 2008 and without any objection from the side of the respondents. The Act of 2008 in its Section 87(3) provided as follows: - "87 ..................................... (3) This Act shall, unless repealed earlier, stand repealed on 30th April, 2010". The apparent reading of the above quoted provision shows that the Act of 2008 was a temporary legislation and it provided the date on II -I. I. I which it would stand repealed. The Act of 2008, thus, stood repealed by J5 C.As No.803-804 of20J -5- its very own mandate on 30.04.2010. It seems that the grievance petitions which the appellants had filed, despite repeal of the Act of 2008, continued to remain pending before the Labour Court and the Court also continued to function and hear the grievance petitions filed by the appellants although there was no labour legislation in the field after the repeal of the Act of 2008. Ultimately, the Labour Court vide its two separate judgments, both dated 24.11.2010, allowed both the grievance petitions in terms as noted above. The judgments of the Labour Court were challenged by the respondents in the writ petitions, which were decided by the Islamabad High Court, Islamabad (the High Court) vide impugned orders dated 21.12.2015 in terms as noted above. During the pendency of the writ petitions in the High Court, the Industrial Relations Act, 2012 (the Act of 2012) was promulgated on 14.03.2012. The Act of 2012 did not make provision for establishment of a Labour Court, rather by Section 53 thereof, the Federal Government was empowered to constitute a National Industrial Relations Commission (NIRC). Section 33 of the Act of 2012, the individual grievance petitions (grievance petitions) were made to be filed and decided by the NIRC. Taking note of this change in law and also relying upon various other provisions of the Ordinance of 2002, the Act of 2008 and the Act of 2012, so also the law laid down by this Court in Air League's case (supra) and State Bank of Pakistan's case (supra), while setting aside the judgments of the Labour Court, the High Court observed that the appellants may file the grievance petitions before the NIRC under the Act of 2012. 5. Learned counsel for the appellants contended that on repeal 'of the Act of 2008 on 30.04.2010, the Act of 2012 was promulgated. Section 88 of the Act of 2012 has not only saved the grievance petitions filed by the appellants before the Labour Court but also the judgments of the Labour Court given on the grievance petitions. Learned counsel further contended that Clause (6) of Article 270AA of the Constitution, S ii C.As No.803-804 of 201 W 1973 has given continuity to the Act of 2008 and it continued to remain in force and the Labour Court has competently, passed the judgments. 6. On the other hand, learned counsel for respondents No.1 & 2 (the respondents) while relying upon Air League's case (supra) ,contended that on the date when the judgments dated 24.11.2010 were passed by the Labour Court, there was no labour laws in the field as the Act of 2008 had repealed itself on 30.04.2010. The Act of 2012 was promulgated on 14.03.20 12 and it specifically gave jurisdiction to the NIRC for determination of grievance petitions. He further contended that the Act of 2012 being a remedial and procedure legislation, it applied retrospectively from the date the Act of 2008 was repealed. 7. In Air League's case (supra) petition under Article 184(3) of 'the Constitution was directly filed before this Court with a prayer S follows: - "It is, therefore, respectfully prayed that this honourable Court may kindly be pleased to hold that IRA, 2008 stands protected up fill 30th June, 2011 by virtue of Article 270-AA of 18th Amendment of Constitution of Islamic Republic of Pakistan and respondents Nos.3 and 4 be directed to continue with the proceedings for holding of secret ballot for the determination of CBA in N accordance with law." 8. The facts of the case were that the petitioner-Air League of PIAC Employees was industry-wise Trade Union registered under the Industrial Relations Laws with NIRC. It has applied to NIRC for holding of a secret ballot for the determination of CBA. The NIRC was not proceeding with the matter for the reason that the Act of 2008 stood repealed. It was argued before the Court that Article 270AA of the Constitution has protected the Act of 2008 and the NIRC was competent to hold secret ballot for determination of CBA. The Court noted as a fact that the Provincial Assemblies of all the four Provinces have made their respective Industrial Relations Laws and also repealed the Act of 2008. cr:.:::t 1 C.As A'o.803-804 012014 -7- The Court also noted as a fact that after 30.04.2010, the Labour Courts, Labour Appellate Tribunals as well as NIRC stopped functioning for the reason that there was no legislation promulgated at Federal level. In paras 13-15 of the judgment this Court has observed as follows: - "13. It is to be noted that initially the matters relating to welfare of labour and Trade Unions were mentioned in the Concurrent Legislative List at Items Nos.26 and 27, as such the Federal Government as well as the Provincial Governments both were competent to make legislation in that behalf. The Federal Government promulgated the IRO, 1969, which was repealed by the IRO, 2002 and same was also repealed by IRA, 2008. Section 87(3) of the IRA, 2008 provided that the said Act shall unless repealed earlier, stands repealed on 30-4-2010, hence, it was a temporary legislation, which was to die on 30-4- 2010 automatically if it was not extended by legislative measure. Before the repeal of IRA, 2008, on 20-4-2010 Eighteenth Constitutional Amendment was passed, whereby the Concurrent Legislative List was abolished and the matters relating to labour and Trade Unions were transferred to legislative competence of the Provincial Governments. However, clause (6) of Article 270-AA of the Constitution provided that notwithstanding omission of Concurrent List by the Eighteenth Constitutional Amendment, all laws with respect to any of the matters enumerated in the said Lists in force, immediately before the commencement of - the said amendment would continue to remain in force, until altered, repealed or amended by the competent authority. In terms of said clause the IRA, 2008 continued to be in force notwithstanding the abolition of the Concurrent Legislative List till 30-4-2010 when in terms of section 87(3) it stood repealed. 14. Now the question for consideration is what would he implication of section 87(3) of the IRA, 2008, especially after the Eighteenth Constitutional Amendment; would it continue to be in force even after 30-4-2010 in view of clause (6) of Article 270AA. It is to be mentioned here that the temporary law is also called 1' - rrnttrr: rcrit: C.As No. 803-804 of 2016 -8- "sunset law". The sunset law has been defined in ii "World Book Dictionary" as a law requiring a government regulatory agency to undergo periodic review for its continued usefulness; a law providing that State agencies created by a Governor or a legislature be terminated after a specified period." In "Advanced Law Lexicon: 3rd Edition" the term sunset law has been defined as a statute under which a governmental agency or program automatically terminates at the end of a fixed period unless it is formally reviewed". The High Court of Sindh, in Industrial Relations Advisors' Association's case has thoroughly dealt with the implication of sunset law and the repeal of a temporary legislation. Relevant paras from the said judgment are reproduced hereinbelow:- 1179 The first question is whether the Act of 2008 is a temporary law or whether it is a permanent law. Mr. Khrzlid Anwar called it a "sunset" legislation. We have already quoted above section 87t3) of the Act of 2008. In Black's Law Dictionary "Sunset law" is defined in the following words:— "Sunset law.—A statute or provision in a law that requires periodic review of the rationale for the continued existence of the particular law or the specific administrative agency or other governmental function. The legislature must take positive steps to allow the law, agency, or functions to continue in existence bu a certain date or such will cease to exist." (Underlining added) 20. Craies on Statute Law 7th Edition, on the subject of temporary and perpetual statutes, says M as under. - "Acts are also classified, by reference to their duration, as temporary or perpetual. (a) Temporarq.---Temporary statutes are those on the duration of which some limit is put by Parliament. The Standing Orders of the House of Commons require a time clause to be inserted in such Acts. The Expiring Laws Continuance Acts always contain a specific date for the expiry of the continued Acts. ...A_.. •j.... I - r.rrsrrrrrf lr ': CAN No.803-804 of 201 MR (b) Perpetual. --Perpetual Acts are those upon whose continuance no limitation of time is expressly named or necessarily to be understood. They are not perpetual in the sense of being irrevocable." 21. Crawford's Interpretation of Laws at page 103 states as under-- "71. Permanent, or Perpetual, and Temporaru Acts.-- A permanent, or perpetual Act, is one whose operation is not limited to a particular term of time but which continues in force until it is duly altered or repealed. A temporary Act, on the other hand, is one whose life or duration is fixed for a specified period of time at the moment of its enactment and continues in force, unless sooner repealed, until the expiration of the time fixed for its duration. 22. Mr. S Zafar, in his Book Understanding Statutes primarily quoted from Crawford in respect of temporary Acts. A law may be temporary because of nature of Legislative power. For example power to legislate through Ordinances is quasi legislative powers: power is legislative but exercise is executive. The Constitution itself fixes life of such F' enactment. Then there may be Acts of Parliament which may also be temporary because either the Act itself or any other law provides for a terminal moment for the enactment. Since section 87(3) clearly stipulated a death knell moment for the Act of 2008, notwithstanding it having been enacted as an Act of Parliament it has to be treated as a temporary law and has to be given effect accordingly." 15. We are in full agreement with the conclusion F' given by the learned High Court on the question of repeal of IRA, 2008 w.e.f. 30-4-2010. It is pertinent to mention here that clause (6) of Article 270-AA provides that notwithstanding the omission of Concurrent Legislative Lists all laws with respect to any of the matters enumerated in the said lists shall continue I I I to remain in force until altered, repealed or amended by the competent authority. It is clear from the language flzr rr' : t C.As No.803-804 of20J -to- that as the Concurrent Legislative List was abolished, therefore, protection was provided to all the permanent laws enacted by the Parliament on the subjects mentioned in the said list. Although the protection was provided to IRA, 2008 by the said clause but it did not have any effect on section 87(3), which remained operative in its full force. Therefore, it killed the said Act on 30-4-2010." On the question as to what is the effect of repeal of the Act of 2008, the Court in paras 17 and 18 observed as follows:- "17. Next question, which has cropped up is that what would be effect of repeal of IRA, 2008. Learned counsel for the petitioner has vehemently argued that in terms of section 6 of General Clauses Act and Article 264 of the Constitution, the IRO, 1969, which was permanent legislation, would be revived. It is to be noted that section 6 of the General Clauses Act applies to the cases where any enactment is repealed by the General Clauses Act or any other Central Act, therefore, the same is not '1 I applicable in the instant case because of reason that IRA; 2008 was not repealed by any other legislation rather it stood repealed on the expiry of period mentioned in section 87(3) of the Act. Similarly, Article 264 of the Constitution provided that where a law is repealed or is deemed to have been repealed, by, under, or by virtue of Constitution, the repeal shall not affect the previous operation of law or anything duly done or suffered under the law; affect any right, privilege, obligation or liability acquired, accrued or incurred under the law; affect any penalty forfeiture of punishment incurred in respect of any offence committed against the law; or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment. However, it shall not revive anything not in force or existing at the time at which the repeal takes effect. Article 264 of the Constitution shall not be applicable in the instant case firstly; for the reason that the IRA, 2008 was not repealed by, under, or by virtue of the Constitution, rather it died on expiry of ----- ----- C.As No.803-804 of 204 -11- the statutory period. Secondly; the purpose of Article 264 of the Constitution is to provide protection to the operation of law, rights, liabilities accrued, and penalties incurred in respect of any repealed law and does not state that it would provide protection to the laws previously in force. Article 264 of the Constitution is in a language that deals with the effect of repeal of laws and, unless the Constitution provides otherwise, nothing will Ii be revived which was not in force or existing at the time when the repeal takes effect. The IRA, 2008, was repealed by its own force in terms of section 87(3). Had it been an Ordinance issued under Article 89 of the Constitution, on the expiry of its statutory period the repealed law would have been revived but the provisions of this Article would not be applicable here because IRA, 2008 is not an Ordinance and has been enacted by the Act of Parliament, therefore, no sooner did it lapse on 30- 4-2010, no other law earlier repealed including IRO, 11 1969 could occupy the field. In addition to it, the mandate of section 6 of General Clauses Act and Article 264 of the Constitution had not provided that on account of repeal, the law previously in field would stand revived as these provisions in broader sense had attached finality to the actions which were already done. The finding given by the High Court of Sindh that after the repeal of IRA, 2008, the IRO, 1969 came back in operation, is not tenable. Thus it is held that the IRO, 1969 would not be revived after the repeal of IRA, 2008. 18. As already stated above, the IRO, 1969 was repealed by the IRO, 2002, which then was repealed by IRA, 2008. However, the IRA, 2008 stood repealed after the completion of its statutory period provided in section 87(3) and not by any other legislation, federal or provincial, therefore, neither the IRO, 2002 nor the IRO, 1969 could revive on the strength of section 6 of the General Clauses Act or Article 264 of the Constitution. Furthermore by means of Eighteenth Constitutional Amendment the Concurrent Legislative List was abolished and the Federal Government had lost the power to legislate regarding Labour Welfare and Trade GAs No.803404 of 2016 - 12- Unions, which subject devolved upon the provinces. It is to be noted that presently, no Federal Legislation can be made on the Labour matters except recourse to the provisions of Article 144(1) of the Constitution, which provide that if one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any Act so passed may, in respect to the Province to which it applies, be amended or repealed by Act of the Assembly of that Province. The Trade Unions, which are operating within one province, can be dealt with under the Labour Laws enacted in that province and the workman can also avail the appropriate remedy provided under the said legislation." In paras 19-22 of the judgment, this Court dealt with the question t as to which provision of law will take effect after the expiry of the Act of 2008 on 30.04.20 10 and observed as follows: - "ig In view of the declaration so made hereinabove, the next question arises that after expiry of IRA, 2008 on 30- 4-2010, which provision of law would take effect for the interregnum period? It is to be noted that as stated earlier after the Eighteenth Constitutional Amendment, the Provincial Assemblies enacted the respective laws on the subject of labour and Trade Unions after about two months of expiry of IRA, 2008 and there is a vacuum for the said period. This Court had dealt with the issue of applicability of laws during the interregnum period when any law was repealed or declared ultra vires. In the case of Government of N,-WF.P. v. Said Kamal Shah (PLD 1986 SC 360) certain provisions of the N.-W.F.P., Pre-emption Act, 1950, along with some other laws were declared repugnant to Injunction of Islam and recommendations were made to bring the said laws in conformity with the Injunction of Islam, till 31st July, 1986. In pursuance of the decision of the Court, the N.-W.F.P. Pre-emption Act, I - Jr MLsJui.saJ#utsaAL_u -- '-iu i -iL, lJLJrnJisr-tl -- C.As No.803-804 of2OJ -13- 1987 was promulgated on 28th April, 1987. In terms of its section 35 the N.-W.FY. Pre-emption Act, 1950 was repealed however, the judgments and decrees passed by the Court under the Repealed Act of 1950 were saved. When the legality of a decree passed by the Civil Judge on 15th April, 1987 was questioned on the ground that the same was passed after the cut off date i.e. 31st July, 1986 and before the promulgation of N.-W.F.P. Pre- emption Act, 1987 this Court in the case of Sarfraz V. Muhammad Aslam Khan (2001 SCMR 1062) held that on 28th April, 1987 in pursuance of the directions of this Court the Act was promulgated and till then the N.- W.F.P. Pre-emption Act, 1950 was holding the field as it was repealed from the commencement of the Act, therefore, any proceedings conducted and decree passed during this period would not be rendered without jurisdiction and void; Article 203-1)(3)(b) of the Constitution of Islamic Republic of Pakistan did not provide that if any law had been declared against the Injunctions of Islam the proceedings instituted under the said law would also come to an end on the date fixed by the Court for making such law in consonance with the Injunctions of Islam; at the best its effect would be that the fresh suits of pre-emption after the stipulated date / would not be instituted under the law which has been found contrary to the Injunctions of Islam but the claimants would be entitled for the enforcement of their rights under the Muhammadan Law, like the Provinces of Sindh and Balochistan where no statutory laws governing pre-emption suits were applicable. It was further observed that undoubtedly a right of pre-emption is a substantial right of an individual and it could not be taken away merely due to repeal of law under which suit for its enforcement was filed; at the best such newly enacted law would be deemed to have retrospective effect by necessary implication because such change would only be deemed to be procedural. 20. Next question is as to whether the Industrial Relations Laws made by the provinces would have retrospective effect or not? At this stage it would be --___ C.As No.803-804 of201 -14- appropriate to have a glance on the definition of "workman" as provided in various Labour Laws. As per the Industrial Disputes Act, 1947, the 'workman" means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purpose of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute but does not include any person employed in the naval, military or air service of the Crown. The definition of 'workman remained almost the same in the subsequent Ordinances/Acts with a little addition or alteration. The same definition of 'worker' and "workman" have been provided in the Provincial Legislation made on the subject, which is holding the field. Interestingly, almost the same definition of "workman" has been provided in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, namely, "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. As the same definition of workman has been provided in the Industrial Relations Laws as well as Standing Orders, therefore, both the laws are applicable to the persons failing within the definition of "workman". Order 12(3) of the said Orders provides that in case a workman is aggrieved by the termination of a service or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the IRO, 1969. It is clear that the West Pakistan (Standing Order) Ordinance, 1968 provides rights to the workmen/ labourers whereas the Provincial Industrial Relations . Laws provide mechanism for the enforcement of the said rights and unless otherwise provided or intended, the Industrial Relations Laws are procedural in nature. / 21. The question of applicability of any law with retrospective effect has been dealt with by this Court in the case of Gui Hassan and Co. v. Allied Bank of Pakistan (1996 SCMR 237) wherein after examining plethora of CAs No.803-804 of 2016 -15- case law, Mr. Justice Saleem Akhtar, as he then was, observed that Statute providing change of forum, pecuniary or otherwise, is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it effects the existing rights or causes injustice or prejudice. The relevant para from the said judgment is reproduced hereinbelow:-- "7. It is well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless "by express enactment or necessary indictment" retrospective operation has been given. (Muhammad Ishaq v. State PLD 1956 SC (Pak.) 256 and State v. Muhammad Jamil, PLD 1965 SC 681). This principle was affirmed in Abdul Rehman v. Settlement Commissioner (PLD 1966 SC 362). However statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice the substantive right. In Adnan Afzal U. Capt. Sher Afzal (PL.D 1969 SC 187). same principle was re-affirmed and it was observed:- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus; a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this case process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not r - - C.As No.803-804 of 2016 -16 - even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural * statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively." The same view was expressed in Ch. Safdar Ali v. / Malik 1/cram Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad Au (1972 SCIWR 173), which was followed in Bashir v. Wazir All (1987 SCMR 978), Mst Nighat Y asmin v. N.B. of Pak. (PLD 1988 SC 391) and Y usuf All Khan v. Hongkong and Shanghai Banking Corporation, Karachi (1994 SCAR 1007). From the principle enunciated in these judgments it emerges that statute providing change of forum pecuniary or otherwise is procedural in nature and Fl has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice." Fl 22. At the cost of repetition, it is to be noted that the IRA, 2008 stood repealed on 30-4-2010 by virtue of its section 87(3), whereas, the provincial legislation was made on 13th June, 2010; 5th July, 2010; 14th July, 2010; and 22nd July, 2010 for the provinces of Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan, respectively. Therefore, there was a period of about two months for which there was no legislation, Federal or Provincial, in force. The Labour Laws provide the procedure and mechanism for the resolution of disputes, registration of Trade Unions and establishment of Forum for the redressal of grievance of the labourers as well as employers, therefore, it is mainly a procedural law and in I I 24. In the Indian jurisdiction, Trade Unions and Industrial Labour Disputes are mentioned at Sr. No.22 of C.As No.803-804 of 2016 -17- the light of the well-settled principles of interpretation of Statutes as mentioned above, the procedural law has retrospective effect unless contrary is provided expressly or impliedly, the same would thus be applicable retrospectively w.e.f. 1-5-2010. Further, in the Province of Sindh, the Industrial Relations (Revival and Amendment) Act, 2010, the IRA, 2008 has been revived w.e.f. 1st May, 2010, therefore, the interregnum period has already been catered for." With regard to the question of remedy to the workers, workmen or ,Trade Union after repeal of the Act of 2008 on 30.04.2010, the Court observed as follows:- "23. On the question of remedy before the NIRC, which was provided in terms of section 25 of the IRA, 2008 it is to be noted that the provision of NIRC was added for the first time in 1972 by making amendment in the IRO, 1969 by means of Ordinance IX of 1972 whereby section 22A was inserted. The same was provided in IRO, 2002 and IRA, 2008. Now, in the Province of Punjab, by means of section 47 of the PIRA, 2010 remedy has been provided before the Labour Appellate Tribunal. Similarly, in the Province of Balochistan, under section 25 of the BIRA, 2010 remedy before the Industrial Relations Commission and in the Province of Khyber Pakhtunkhwa, in terms of sections 48 and 51 of KIRO, 2010 the remedy of appeal has been provided before the Labour Court and Labour Appellate Tribunal. In the Province of Sindh, as the IRA, 2008 has been revived, therefore, in terms section 25 of the same, the provision of NIRC has been continued. In the present circumstances, after the promulgation of provincial laws dealing with the Industrial disputes, the persons having any grievance can approach the appropriate forum provided under the respective provincial laws. p Ik , - - i-•: 1L: C.As No.803-804 o(20J -18- the List-Ill of the Seventh Schedule of the Constitution of India, which form the joint domain of both the State Governments and Union Territory of India as well as the Central Government of India under those - subject, therefore, the Trade Unions Act, 1926 has been promulgated by the Parliament to deal with the matters relating to registration of trade unions and trade disputes etc., whereas, in view of the Eighteenth Constitutional Amendment, Federal Legislation is not empowered to legislate for the nationwide trade unions, except for if need be, recourse to procedure laid down in Article 144(1) of the Constitution, which provides that one or more Provincial Assemblies may by resolutions empower the Majlis-e-Shoora (Parliament) to regulate any matter not enumerated in the Federal Legislative List in the Fourth Schedule, through an Act, which may be amended by the Assembly of that Province. 25. In the Industrial Relations Laws initially the provision of NIRC was not provided till 1972 when the same was introduced by insertion of section 22A in the IRO, 1969. However, the same was provided in the subsequent legislations till IRA, 2008. Now after the promulgation of Provincial legislations in terms of Eighteenth Constitutional Amendment, the forum of Industrial Labour Commission/ Labour Appellate I Tribunal/Labour Court has been provided for. Even otherwise, persons falling within the definition of "workman" have been provided remedy in terms of West Pakistan (Standing Orders) Ordinance, 1968. Order 12(3) of the said Orders provides that in case a workman is aggrieved by the termination of a service or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the IRO, 1969. However, section 80 of the PIRA, 2010 as well as the section 82 of the KIRO, 2010 provide that all cases pending before the NIRC constituted under the repealed IRA, 2008 shall stand transferred to Tribunal/Labour Court and Registrar having jurisdiction in the matter; the NIRC shall transfer the record of all the cases and trade Unions to the Tribunal/Labour Court or Registrar; the I I I CAs No.803-804 of 2014 -19- Tribunal, Labour Court or Registrar may continue the proceedings in a case transferred under this section from the stage at which it was pending before the NIRC. Similarly, section 86 of the BIRO, 2010 provides that all appeals and applications of any kind pending in any High Court immediately before the commencement of this Ordinance shall stand transferred to the Labour Appellate Tribunals from the date of the commencement of this Ordinance and it shall not be necessary for the I Labour Appellate Tribunals to recall any witness or record any evidence that may have been recorded. As the NIRC has been abolished, therefore, new fora have been provided to the workers/workmen/labourers under the newly enacted Provincial Labour Laws. It is pertinent to mention here that the effect of change of forum has been discussed in the case of Adrian Afzal v. Sher Afzal (PLD 1969 SC 187), wherein claim for maintenance was made under section 488 of the Code of Criminal Procedure before the City Magistrate which was ultimately transferred to the Court of the District Magistrate, where the respondent moved an application that in view of the provisions of the West Pakistan Family Courts Act, 1964, published in the Gazette on the 18th of July 1964, the proceedings should be filed, as the Family Court was vested with exclusive jurisdiction under section 5 thereof. The District Magistrate on the 9th of December, 1967, accepted the plea and directed the appellant to seek his remedy before the Family Court. The matter came up before this court and this court observed that Ii the comparison of the concerned provisions indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court; Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Ultimately the Court held that the Family Courts Act had changed the forum, altered the method of C.As N0.803-804 of 20I -20- the trial and empowered the Court to grant better remedies; it has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right; according to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication; There is no such contrary indication in the West Pakistan Family Courts Act; therefore, the Act also affected the pending proceedings and the District Magistrate was right in holding that the Courts of Magistrates no longer had the jurisdiction either to entertain, hear or adjudicate Upon a matter relating to maintenance; he was, however, wrong in dismissing the application, for, if he had no jurisdiction to adjudicate, the only order he could have passed on the application was to direct that the papers be returned to the applicant for presentation in the proper Court. In view of the law laid down in the said case, it is clear that mere change of forum does not affect the rights of a person. 26. Under the Frontier Crimes Regulation, 1901 Council of Elders was provided for settling the disputes of civil nature between the individuals. Revision against the order of Council of Elders was maintainable before the Commissioner. However, . by means of the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 the Commissioner lacked jurisdiction to hear the revision and in terms of paragraph-7 of the Regulation, the matters pending before the District Court or a Civil Court, subordinate thereto or in any Tribunal stood transferred to the Court of Qazi and Majlis-e-, Shoora having jurisdiction in the matter, upon such transfer would be deemed to have been instituted therein and would be heard and determined accordingly. In the case of Mastak v. Lal (PLD 1991 SC 344), the validity of the order of the Commissioner passed in revision petition after the 18th February, 1977 when the Balochistan Civil Disputes (Shariat Application) Regulation, 1976 was extended to the area in dispute, was questioned. The Court after considering the matter in detail held as under: f t -. LLLZLTT C.As No.803-804 of 2014 -21- 11. Paragraph 7 of the Regulation definitely gives the impression that the Regulation was to have effect on the pending suits and appeals and to that extent it was retroactive. The only test laid down for Ii transfer was as to whether the dispute is tribal under the Regulation and if it was then it had to go to the Court competent to try it irrespective of the fact in which Court it was pending. Therefore, even appeals have to go back to the Court of Qazi for trial in accordance with Shariah and not to be transferred in the appellate jurisdiction of Majalis-e- Shura for disposal according to the law in force at the time the proceedings were instituted. To that extent, the express language of paragraph 7 of the Regulation makes the provisions of the Regulation applicable in the areas to which and when if is extended retroactive over all proceedings pending before any Tribunal, Court or District Court. 12. In view of the reasons given for holding that appeal for the purposes of paragraph 7 includes the Revision preferred by a party invoking the power of the Commissioner under paragraph 48 of the F.C.R. and pending suits and appeals before any District Court or a Civil Court subordinate thereto, or any tribunal, in the nature of an appeal, would be liable to be transferred to the Court of Qazi for trial in accordance with the injunctions of Shariat. The fact that the appellant had instituted the Revision in the Court of Commissioner cannot stand in the way of - such a transfer because at the time when he instituted the proceedings, that was the only remedy which could possibly be invoked by him. In the light of above case-law, it is clear that during the interregnum period w.e.f. 30-4-2010, when no Industrial Relations Law was holding the field, the workers had remedy under the ordinary laws prevailing at that time, because in absence of a special law, the ordinary/ general laws come forward to fill in the vacuum." J -_ - C.As No.803-804 of 2010 -22- 9. In State Bank of Pakistan's case (supra) the matter in issue was that the respondents therein filed grievance petitions before the Labour Court, Islamabad. The Labour Court in the respective grievance petitions passed its judgments dated 11.01.2011, 26.06.2010 and 24.03.2011. The matter came up before this Court and it was argued /that on very repeal of the Act of 2008 on 30.04.20 10, the Labour Courts, which were constituted under the Act of 2008, have ceased to exist, in that, no law for adjudication of individual grievances of workers was in existence after 30.04.2010 and the Ordinance of 2011 having been promulgated by which the Federal Government was given power to constitute NIRC and by Section 33 of the Act of 2012 has given power to NIRC to determine individual grievances of workers, the Court held that the judgments of the Labour Court were coram non judice and set aside the same and remanded the grievance petitions to the NIRC for deciding them in accordance with law. The Court in this judgment relied upon 4fr League's case (supra). 10. In Sui Southern Gas Company's case (supra), the question before this Court was whether the very Act of 2012 was ultra vires the Constitution on account of omission from the Constitution, the Concurrent Legislative List by the Eighteenth Constitutional ,Amendment, on the ground that the Parliament was not competent to legislate in the matters relating to Industrial Relations as the subject of Industrial Relations has devolved upon the Provincial Legislature. The Court after elaborate consideration came to the conclusion that the Act of 2012 was intra vires the Constitution and the Parliament was competent to promulgate the Act of 2012. The Court has dealt with the question about the fact of repeal of the Act of 2008 and promulgation of the Act of 2012 and with regard to the interregnum period has observed ( as follows: - 21. With regard to the question about the jurisdiction of the NIRC formed under Section 25 of the Industrial . ..aJ" W4 _;' 1 Y ::.uiLM'flLf::WSmr*i*ritf ti*itI C.As N0.803-804 of 2016 -23- Relations Act 2008 (which stood repealed w.e.f. 01.05.2010) in the interregnum till the promulgation of IRA 2012, suffice it to say that as held by this Court in Air League of PIAC Employees' case (supra) during the interregnum period w.e.f. 01.05.2010, when no Industrial Relations Law was holding the field, the workers had remedy under the ordinary laws prevailing at that time, because in absence of a special law, the ordinary/ general laws come forward to fill in the vacuum. Further, the IRO 2012 does not destroy any existing right, rather by means of Section 33 thereof, all the existing rights stood preserved and protected, as such, it cannot be said that it affects any right or obligation created by other laws, including any provincial law. This Court has dealt with the issue of applicability of laws during the interregnum period when any law was repealed or declared ultra vires, and it has been repeatedly held that at the best the newly enacted law would be deemed to have retrospective effect by necessary implication because such change would only be deemed to be procedural [see: Government of N.W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) and Sarfraz v. Muhammad Aslam Khan (2001 SCMR 1062)1. The Labour Laws provide the procedure and mechanism for the resolution of disputes, registration of Trade Unions' and establishment of Forum for the redressal of F grievance of the labourers as well as employers,. therefore, it is mainly a procedural law and in the light of the well settled principles of interpretation of Statutes, the procedural law has retrospective effect unless contrary is provided expressly or impliedly see: Air League of Piac Employees's case (supra)]. Thus, it is held that the IRA 2012 would be applicable retrospectively w.e.f. 01.05.2010, when the IRO 2008 ceased to exist. In para-23, the Court ultimately held as follows: - 23. For the foregoing reasons, the appeals as also the petition are dismissed and it is held as under: - (1) the Federal Legislature has extra-territorial authority but no such extra-territorial authority has been - -. C.As A'o. 803-804 of 20I -24- conferred to the Provincial Legislature by the Constitution;. (2) the Federal legislature does, but the Provincial Legislature does not, have legislative competence to legislate to regulate the trade unions functioning at trans-provincial level; (3) the matters relating to trade unions and labour disputes, etc., having been dealt with and protected under the International Conventions, are covered under Entries Nos.3 and 32 of Part-i of the FLL. Thus, the Federal Legislature has legislative competence to legislate in this regard; (4) under the command of Entry No. 13 in Part-11 of the FLL, the Federation has competence to enact laws relating to the inter-provincial matters, Entry No.18 thereof further enlarges the scope of the said Entry; therefore, the Federal Legislature has legislative competence to legislate in this regard too; (5) the IRA 2012 neither defeats the object of the Eighteenth Amendment to the Constitution nor does it destroy or usurp the provincial autonomy; (6) the IRA 2012 has been validly enacted by the Parliament and is intra vires the Constitution; (7) the workers of the establishments/ industries functioning in the Islamabad Capital Territory or carrying on business in more than one provinces shall be governed by the Federal legislation i.e. IRO 2012; whereas, the workers of establishments/ industries functioning or carrying on business only within the territorial limits of a province shall be governed by the concerned provincial legislations; (8) as we have held that the IRA 2012 is valid piece of legislation, it is held that the National Industrial Relations Commission (NIRC) formed under Section 35 of the IRA 2012 has jurisdiction to decide the labour disputes, etc., relating to the employees/ workers of companies/ corporations/ institutions/ establishments functioning in more than one Province; (9) the IRA 2012, being a procedural law, would be P applicable retrospectively w.e.f. 01.05.2010, when the IRO 2008 ceased to exist; and F '-r C.As No. 803-804 of 2014 -25- (10) M/s Shaheen Airport Services is not a charitable organization and IRA 2012 is applicable to it as it is operating in more than one Province." 11. It will be observed from the above three judgments of this Court that there is consensus of opinion that the Act of 2008 stood repealed on 30.04.2010 and from 01.05.2010 there was no law in the field of Industrial Relations either at the level of the Federation or in any of the Provinces. The Court in Air League's case (supra) as well as in SW Southern Gas Company's case (supra) has opined that in the absence of law of Industrial Relations, which being a special law, the workers' remedy would lie under the ordinary laws prevailing at that time, which will come in and fill up the vacuum. Thus, from this opinion it is clear that the Court has specifically meant that on 30.04.2010, the Act of 2008 stood repealed, it being the special law operating in the field of Industrial Relations having ceased to exist, the remedy which the workers/Trade Unions would have immediately after repeal of the Act of 2008 before the forum provided under the ordinary civil laws, which means Civil Courts and such forum was provided for the interregnum period of two months i.e. uptill the promulgation by all the four provincial legislatures their respective law of Industrial Relations. 12. In Air League's case (supra), this Court has also dealt with the question of abolition of forum provided in the Act of 2008 in matters relating to raising of grievance by workers and their Trade Unions and it was observed that NIRC, which existed under the Act of 2008 stood abolished on repeal of the Act of 2008 and new forum, which have been provided under the newly enacted provincial labour laws, will have jurisdiction to hear and decide the matters relating to the workers and their Trade Unions. In Air League's case (supra), this Court has ,specifically held that law of Industrial Relations, which specifically provides for procedure and mechanism for the resolution of disputes of registration of Trade Unions and establishment of forum for redressal of : C.A,c No.803-304 of 2014 - 26 grievances of workers and employers, is merely a procedural law, and in the light of well settled principle of interpretation of statutes, the 'procedural law has retrospective effect until contrary is provided expressly or impliedly. It was also held that when the Act of 2008 stood repealed on 30.04.2010, the Industrial Relations laws made by the respective provincial governments will become applicable from 01.05.2010. The Act of 2012 was not promulgated when the judgments in Air League's case (supra) was announced. However, when the judgment in State Bank of Pakistan's case (supra), was given, the Federal Government had promulgated the Industrial Relations Ordinance, 2011, which was holding the field and by Section 33 of the said Ordinance, NIRC was constituted and was given jurisdiction to determine individual grievances of workers. The Court held that judgments given by the Labour Court, after repeal of the Act of 2008, were coram non judice and the grievance petitions were remanded to NIRC for deciding them in accordance with law. When SW Southern Gas Company's case (supra) was decided by this Court, the Act of 2012 'was in the field and in fact its very vires was under challenged before the Court. While holding the Act of 2012 to be intra vires, the Court further proceeded to deal with the Act of 2012 and found it to be procedural law and in the light of well settled principle of interpretation of statutes that the procedural law has retrospective effect unless contrary is provided expressly or impliedly, held that the Act of 2012 has retrospective application with effect from 01.05.2010. It was also observed by the Court that the Act of 2012 does not destroy any existing right, rather by means of Section 33 thereof, all existing rights stood preserved and protected and as such, it cannot be said that it affects any right or obligation created by other laws, including any provincial law. The Act of 2012 was specifically made applicable from 01.05.2010 and the rights, which the workers or Trade Unions had, were also found to be saved. C.As No.803-804 of 2014 -27- 13. We note that law of Industrial Relations, which has been made from time to time, deals with the matters relating to adjudication of disputes of workers and employers and also provides for procedure of registration of Trade Unions and their Federations and also provides for forums for determination of their disputes. The laws of Industrial Relations promulgated by the Provincial Legislatures on repeal of the Act of 2008, were rightly held to be procedural laws in Air League's case (supra) and were rightly found to have retrospective application from 01.05.2010 and also in Sui Southern Gas Company's case (supra), this Court has rightly held the Act of 2012 to be applicable from 01.05.2010. However, as noted in Air League's case (supra) that the forum provided under the Act of 2008, i.e., the NIRC having been abolished with the repeal of the Act of 2008 and new fora have been created under the Provincial Industrial Relations laws, such new fora shall have jurisdiction to decide disputes between the workers and employers and tmatters relating to their Trade Unions. The Labour Courts, constituted under the Act of 2008, on the same analogy, also stood abolished on the repeal of the Act of 2008 and the Act of 2012 having created new forum of NIRC for dealing with the grievances, disputes of workers and employers and matters relating to the Trade Unions and their Federations in the Islamabad Capital Territory and in trans-provincial establishments and Industry from 01.05.2010, could only exercise power and jurisdiction for determination of grievances of workers and not the Labour Courts, which ceased to exist on 30.04.20 10. Thus, Air League's case (supra) so also State Bank of Pakistan's case (supra) and the Sui Southern Gas Company's case (supra) are in harmony, in so far as they propound the law about the application of the law of Industrial Relations with retrospectivity and also can co-exist, for that, in all the three cases, it was found that the forum provided under the Act of 2008 for adjudication of individual grievances of the workers ceased to exist on ,the repeal of the Act of 2008 and the respective forums provided under F - - -- -r7 . rrrrC- rr'ff------ CAs No.803-804 012014 -28- the new Industrial Relations laws made by the Provincial Governments shall have the jurisdiction to determine the individual grievances of the 'workers while by the Act of 2012, specific forum of NIRC was created for determination of the individual grievances of the workers in Islamabad Capital Territory and for trans-provincial establishments and Industry and it would alone have jurisdiction to deal with the cases of individual -:7 grievances of workers. Another ground that supports the above conclusion is that the parties to the proceedings under the repealed Act of 2008, have no vested right to have their cases heard and decided by the forum created under the Act of 2008 i.e., the Labour Court rather on promulgation of the Act of 2012, where the forum of NIRC has been created and such having been given retrospective effect from 01.05.201d, the forum of NIRC can only hear and decide the grievance petitions. -------- 14. Dealing with question No.11, about saving the judgments of the Labour Courts on application of tie facto doctrine, we may note that '.18 the Labour Courts were created as a forum for inter alia redressal of individual grievances of the workers by the Act of 2008 and until the Mt of 2008 remained in the field the Labour Courts were perfectly justified in hearing and deciding the grievance petitions filed by the workers. The Act of 2008 was repealed on 30.04.2010 and with it the forum of the Labour Court, provided under the said Act, also ceased to exist. As from 01.05.2010, the Industrial Relations laws made by the Provincial Governments came into application, while in matters of Industrial Relations relating to the Islamabad Capital Territory and trans-provincial I ,Establishments and Industry, the Act of 2012 became applicable. The inten-egnum period has already been dealt with in Air League's case (supra) so also in Si-ti Southern Gas Company's case (supra), that when the law of Industrial Relations was not operating in the field, the workers' remedy was found to be available under the ordinary laws, i.e., Civil Courts, on the principle that special law of Industrial Relations not being • •.:. •-. - - - -.. - C.As No.803-804 of 201$ -29- in existence after 30.04.2010, the ordinary laws will occupy the field and fill up the vacuum. Thus, in both the cases, it was held that the Civil Courts will be the appropriate forum in case of workers' grievance. On the same principle, it can fairly be stated that from 30.04.2010 until the 'promulgation of the Act of 2012, which was published in the Gazette of Pakistan on 14.03.2012, there was a vacuum in the field of Industrial Relations in the Islamabad Capital Territory and in matters relating to trans-provincial establishments and Industry and the special law relating to Industrial Relations being not in the field, the ordinary civil laws will come into operation and fill in the vacuum providing for remedies to workers, employers and in matters relating to registration of Trade Unions and Federation of Trade Unions. 15. Section 88 of the Act of 2012 contained repeal and saving clause and while noting that the Act of 2008 has repealed itself it provided that without prejudice to the provision of Sections 6 and 24 of the General Clauses Act, 1897 every Trade Union of an establishment or Industry located in the Islamabad Capital Territory or in more than one province and existing immediately before the commencement of the Act of 2012, which was registered under the repealed Act, shall be deemed to be registered under the Act of 2012 and its constitution shall continue in force until altered or rescinded. Further anything done, rules made, Inotification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other action taken under the repealed Act shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken as the case may be under the corresponding provisions of the Act of 2012 and any document referring ,to the repealed Act relating to Industrial Relations shall be construedi as referring to the corresponding provisions of the Act of 2012. Thus, every Trade Union registered in the Establishment or Industry located in the Islamabad Capital Territory or in more than one province, which was - : AMAMPL, C.,4s A'o.803-804 of 201è -30- existing prior to the commencement of the Act of 2012 and was registered under the repealed Act of 2003, were protected and saved with the deeming provision as having been registered under the Act of 2012 and its existence was allowed to continue in force until altered or rescinded. Similarly, rules made, notifications or orders issued, officer appointed, Court constituted, notice given, proceeding commenced, or other action taken under the repealed Act of 2008 were also saved and protected by the deeming provision making them to have been done, made, issued, appointed, constituted, given, commenced or taken under the corresponding provisions of the Act of 2012, also any document referring to the repealed Act of 2008, relating to Industrial Relations was also saved and protected to be construed as referring to the corresponding provisions of the Act of 2012. 16. The Act of 2008 stood repealed on 30.04.2010 and on the established principle of interpretation of Statutes it stood obliterated.: However, the Act of 2012 did not obliterate the transactions already undertaken pursuant to the Act of 2008 but saved them as is specifically noted in Section 88 of the Act of 2012. Thus, all transactions made under the Act of 2008, as mentioned in Section 88 of the Act of 2012, are saved and given protection of the law so also the pending grievance tpetitions of the workers before the Labour Court. The transactions saved by Section 88 ibid are those, which have been completed under the Act of 2008 while the said Act remained in the field. No sooner the Act of 2008 stood repealed on 30.04.2010, no new or fresh transaction can be found to accrue under the Act of 2008 nor was it saved by Section 88 of the Act of 2012. The Labour Court, being a creature of the Act of 2008, remained functional until the Act of 2008 remained in force and when the Act of 2008 repealed itself on 30.04.2010, the Labour Court also ceased to exist from such date. The grievance petitions filed by the appellants were ng in the Labour Court on 30.04.2010 and their status remained _________________ C.As No.803-804 of 2014 -31 - that of a pending proceeding. From 01.05.2010 NIRC was deemed to be constituted to hear grievance petitions and thus, the only forum provided' in the law to hear and decide the grievance petitions from 01.05.2010 was N1RC. 17. The de facto principle has been considered by this Court in the case of Mehram AU vs. Federation of Pakistan (PLD 1998 SC' 1445), which is as follows: - 'Principle of de facto exercise of power by a holder of the public office is based on sound principles of public policy to maintain regularity in the conduct of public business to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power by the defacto holder of the public." The same view was reiterated in the case of Malik Asad AU and others vs. Federation of Pakistan through Secretarq, Law, Justice and ,Parhamentarq Affairs. Islamabad and others (PLD 1998 SC 161), the principle of cM facto was considered and commented upon by this Court, which is as follows: - "Principle of de facto exercise of power by a holder of the public office is based on sound principles of public policy to maintain regularity in the conduct of public business to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power .by the defacto holder of the office." F' In the case of Pakistan Medical and Dental Council vs. Muhammad Fahad Malik (2018 SCMR 1956), this Court has considered the principle of defacto and observed as follows: - "22. We held above that the Amendment Ordinances had lapsed/been repealed therefore the Council constituted thereunder had ceased to exist with effect from 25.04.2016. As a necessary corollary, the CAs No.303-804 of 2016 -32- Regulations of 2016 framed under section 33 of the Ordinance of 1962 by the Council constituted under section 3 thereof, both of which were substituted by the Ordinance of 2015, also ceased to exist having been illegally and invalidly framed. However, as regards the various actions/activities/orders/decisions taken in the ordinary day-to-day business of PMDC, we find that in the instant circumstances, they are protected under the de facto doctrine, until reviewed, revised, amended or modified by the new Council to be constituted after fresh elections are conducted." In the case of Rashid All Channa vs. Muhammad Junair tFarooqui (2017 SCMR 1519), this Court on principle of cM facto has observed as follows: - "4. v) We are not persuaded by the argument of the learned counsel that the de J'ecto doctrine is attracted to the facts and circumstances of this case, which suggest that the very appointments of the Chairman and Members of the Commission suffered from serious I defects and flaws. However, the matter did not end there. The process and procedure adopted by the then Chairman and Members for undertaking the exercise of selection was replete with illegalities, departure from recognized norms and deviation from the law, rules and procedure which we have found hard to overlook or sidestep. The impugned judgment has rightly refrained from recording any findings on the basis of the de facto doctrine or discussing the same having come to the conclusion that not only was the legality of F' appointments of the Chairman and Members of the Commission open to serious question but the mode, manner and procedure adopted by the Commission for selection of recommendees was also illegal, unjust, non- - transparent and suspect." 18. In the Major Law Lexicon 4th Edition 2010, Volume 2 the de facto principle has been commented upon as follows: - -. & Ct4s No.803-804 012016 33 - "De Facto Doctrine. The 'de facto' doctrine is now well I established that the acts of the officers 'de facto' performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts offices de jure. Gokaraju Rangaraju v. State of A.P., AIR 1981 SC 1473; Also see P.K. Padmanabhan Nambiar v. Secretary to Government, General Education (P.) Deptt., AIR 1998 Ker 59, 62, 63 paras 8 to 11." 19. The common and pre-dominant feature of de facto doctrine is in relation to exercise of power by holder of the public office, when it is found to be not legally entitled to exercise or performs such power of public office, on the sound principles of public policy and to maintain regularity in conduct of public business and to save the public froth confusion and to protect the right which a person may have acquired as a result of exercise of power by holder of public office not entitled to perform or exercise such power, are saved on principle of de facto , doctrine. Thus, where the very office, on which the power is exercised by the holder of public office, has ceased to exist, as in the present case the Labour Court being creature of the Act of 2008, on 30.04.2010 having repealed itself, there was no public office by the name of Labour Court on which de facto doctrine of holder of public office could be applied. As noted above, necessary ingredients for de facto exercise of power by the holder of public office is that the office should exist in the first place. If there is no public office in existence then there is no concept in la* of holder of public office. The holder of public office will remain until public office remains. Where there is no public office in existence, there remains nothing on which de facto doctrine could be applied. The Presiding Officer of the Labour Court, when he pronounced the judgments dated 24.11.2010, in the grievance petitions filed by the appellants, did not exercise power as a de facto holder of a public office, for that, the very public office of Labour Court did not exist in law, there did not exist Larger Bench-I IsIabad 20.0 1.2022 'APPROVED FOR REPORPNO' r (J.As No.803-804 of 20,4 -34- holder of public office. Thus, when there was no Labour Court in the field on repeal of the Act of 2008 on 30.04.2010, there existed no Presiding Officer of the Labour Court as both stood abolished. From 01.05.2010, under the Act of 2012, NIRC was established and given power to address individual grievances of the workers. The NIRC only had jurisdiction to decide the grievance petitions filed by the appellants from 01.05.2010. The doctrine of de facto holder of public office not being applicable to the case in hand, the judgments dated 24.11.2010 given by the Labour Courts were patently without jurisdiction and coram non judice and could not be saved on any principle of law, including the defacto doctrine. 20. As we have come to the conclusion that the judgments of the Labour Courts were not protected either in reference to the scope of 'principle of retrospective application and also on de facto doctrine, thus, no illegality is found in the impugned order of the High Court. The same is maintained and the appeals are dismissed. Announced in open Court on - 2Vtk.January, 2022.

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO.815 TO 855, 860 TO 974, 1476 TO 1487, 1601 TO 1743, 1883 TO 2015, 2089 TO 2105 AND 2204 TO 2287 OF 2016, CIVIL PETITIONS NO.2991-L, 2992-L, 2996-L, 3013-L TO 3016-L, 2997-L, 3017-L, 3018-L, 3020-L, 3026-L TO 3029-L, 3041-L TO 3049-L, 3112-L, 3171-L TO 3179-L OF 2016, 823-L TO 827-L, 918-L, 956-L TO 958-L, 991-L TO 994-L AND 1032-L TO 1034-L OF 2017, CIVIL MISC. APPLICATIONS NO.382-L TO 537-L, 1067-L TO 1077-L AND 1079-L OF 2016 (Against the judgments dated 26.12.2015, 27.10.2015, 3.11.2015, 11.11.2015, 16.11.2015, 19.11.2015, 20.11.2015, 22.12.2015, 14.1.2016, 3.2.2016, 9.2.2016, 16.3.2016, 5.5.2016, 18.5.2016, 19.5.2016, 11.5.2016, 13.5.2016, 16.5.2016, 17.5.2016, 20.5.2016, 10.5.2016, 31.1.2017, 30.1.2017, 6.2.2017, 8.2.2017, 1.2.2017 of the Lahore High Court, Lahore passed in W.P.No.15628/2015, 15618/2015, 15621/2015, 16001/2015, 16643/2015, 17036/2015, 17176/2015, 17238/2015, 17241/2015, 17243/2015, 17285/2015, 17379/2015, 17386/2015, 17387/2015, 17526/2015, 17670/2015, 17719/2015, 17768/2015, 17836/2015, 17841/2015, 17968/2015, 17970/2015, 18051/2015, 18053/2015, 18055/2015, 18089/2015, 18162/2015, 18164/2015, 18165/2015, 18166/2015, 18167/2015, 18299/2015, 18301/2015, 18302/2015, 18303/2015, 18304/2015, 18305/2015, 18306/2015, 18307/2015, 18310/2015, 18311/2015, 18312/2015, 18353/2015, 18376/2015, 18379/2015, 18417/2015, 18419/2015, 18438/2015, 18439/2015, 18441/2015, 18626/2015, 18681/2015, 18688/2015, 18746/2015, 18790/2015, 18791/2015, 18793/2015, 18795/2015, 18746/2015, 18831/2015, 18834/2015, 18853/2015, 19022/2015, 19044/2015, 19051/2015, 19257/2015, 19285/2015, 19550/2015, 19555/2015, 19557/2015, 19866/2015, 19874/2015, 19968/2015, 19994/2015, 20004/2015, 200050/2015, 20069/2015, 20071/2015, 20075/2015, 20077/2015, 20081/2015, 20097/2015, 20178/2015, 20283/2015, 20379/2015, 20538/2015, 20584/2015, 20587/2015, 20762/2015, 20887/2015, 22005/2015, 23734/2015, 23916/2015, 24147/2015, 24180/2015, 24813/2015, 28156/2015, 30300/2015, 30756/2015, 30757/2015, 30758/2015, 30759/2015, 30761/2015, 32450/2015, 32750/2015, 34503/2015, 34842/2015, 35432/2015, 18352/2015, 18356/2015, 19299/2015, 19302/2015, 19307/2015, 19310/2015, 19323/2015, 19344/2015, 19369/2015, 19376/2015, 19379/2015, 19437/2015, 19516/2015, 19517/2015, 20593/2015, 20626/2015, 20629/2015, 21189/2015, 22003/2015, 27017/2015, 28239/2015, 28814/2015, 19510/2015, 18081/2015, 18309/2015, 16465/2015, 1155/2012, 1156/2012, 1157/2012, 2264/2012, 2265/2012, 2266/2012, 2267/2012, 2268/2012, 2269/2012, 5303/2012, 5304/2012, 5305/2012, 11807/2012, 11808/2012, 22372/2015, 3401/2012, 3411/2012, 34956/2012, 39416/2015, 39928/2015, 35592/2015, 906/2016, 86/2016, 87/2016, 88/2016, 151/2016, 369/2015, 2816/2016, 2817/2016, 2831/2016, 2959/2016, 2961/2016, 3923/2016, 4406/2016, 4412/2016, 4419/2016, 4421/2016, 4442/2016, 4423/2016, 4424/2016, 4435/2016, 4440/2016, 4448/2016, 4452/2016, 4455/2016, 4456/2016, 4462/2016, 4470/2016, 4473/2016, 4480/2016, 4481/2016, 4482/2016, 4448/2016, 4486/2016, 4488/2016, 4489/2016, 4492/2016, 4499/2016, 4500/2016, 4501/2016, 4502/2016, 4503/2016, 4506/2016, 4508/2016, 4510/2016, 4512/2016, 4517/2016, 4579/2016, 4779/2016, 5108/2016, 5109/2016, 5110/2016, 5111/2016, 5115/2016, 5117/2016, 5119/2016, 5120/2016, 5121/2016, 5131/2016, 5133/2016, 5134/2016, 5136/2016, 5137/2016, 5138/2016, 5159/2016, 5161/2016, 5163/2016, 5167/2016, 5169/2016, 5171/2016, 5173/2016, 5174/2016, 5177/2016, 5178/2016, 5179/2016, 5181/2016, 5182/2016, 5183/2016, 5184/2016, 5186/2016, 5187/2016, 5188/2016, 5190/2016, 5192/2016, 5193/2016, 5195/2016, 5199/2016, 5205/2016, 5211/2016, 5213/2016, 5214/2016, 5216/2016, 5218/2016, 5219/2016, 5220/2016, 5221/2016, 5222/2016, 6102/2016, 5227/2016, 5228/2016, 5230/2016, 5232/2016, 5235/2016, 5248/2016, 5525/2016, 5620/2016, 5624/2016, 5684/2016, 6029/2016, 6030/2016, 6039/2016, 6044/2016, 6045/2016, 6046/2016, 6047/2016, 6102/2016, 6104/2016, 6105/2016, 6107/2016, 6108/2016, 6111/2016, 6116/2016, 6118/2016, 6290/2016, 6295/2016, 6298/2016, 6299/2016, 6302/2016, 6303/2016, 6305/2016, 6307/2016, 6310/2016, 6316/2016, 6376/2016, 6377/2016, 6378/2016, 7379/2016, 6677/2016, 7602/2016, C.A. No.815/2016 etc. -: 2 :- 8110/2016, 8112/2016, 8239/2016, 8734/2016, 8736/2016, 8748/2016, 8749/2016, 6028/2016, 4490/2016, 5189/2016, 5234/2016, 5410/2016, 6289/2016, 6312/2016, 6315/2016, 6317/2016, 8392/2016, 8906/2016, 8922/2016, 8923/2016, 8925/2016, 8927/2016, 8928/2016, 8929/2016, 8930/2016, 8932/2016, 8933/2016, 8935/2016, 8936/2016, 8937/2016, 8939/2016, 8940/2016, 8941/2016, 8942/2016, 8944/2016, 8945/2016, 8946/2016, 8947/2016, 8948/2016, 8949/2016, 8950/2016, 8951/2016, 8953/2016, 8954/2016, 8955/2016, 8956/2016, 8957/2016, 8958/2016, 8955/2016, 8961/2016, 8962/2016, 8963/2016, 8964/2016, 8965/2016, 9004/2016, 9033/2016, 9034/2016, 9714/2016, 9811/2016, 9814/2016, 9815/2016, 9816/2016, 9817/2016, 9818/2016, 9819/2016, 9820/2016, 9821/2016, 9822/2016, 9824/2016, 10137/2016, 10139/2016, 10140/2016, 10142/2016, 10144/2016, 10148/2016, 10149/2016, 10150/2016, 10155/2016, 10156/2016, 10157/2016, 10158/2016, 10159/2016, 10160/2016, 10161/2016, 10164/2016, 10776/2016, 11200/2016, 11203/2016, 11205/2016, 11207/2016, 11305/2016, 11308/2016, 11310/2016, 11313/2016, 11315/2016, 11597/2016, 11696/2016, 13361/2016, 13363/2016, 13375/2016, 13815/2016, 13817/2016, 13819/2016, 13840/2016, 14039/2016, 14040/2016, 14041/2016, 14042/2016, 14043/2016, 14044/2016, 14045/2016, 14047/2016, 14048/2016, 14049/2016, 14050/2016, 14051/2016, 14052/2016, 14053/2016, 14055/2016, 14056/2016, 14058/2016, 14373/2016, 14375/2016, 14630/2016, 14633/2016, 14634/2016, 14635/2016, 14634/2016, 14719/2016, 14720/2016, 14723/2016, 14724/2016, 14725/2016, 14746/2016, 14747/2016, 14748/2016, 14751/2016, 14755/2016, 14756/2016, 14757/2016, 14758/2016, 14775/2016, 14776/2016, 14779/2016, 14780/2016, 14781/2016, 14782/2016, 14784/2016, 14785/2016, 14787/2016, 16668/2016, 16671/2016, 16676/2016, 16678/2016, 16681/2016, 16696/2016, 16709/2016, 16769/2016, 167773/2016, 16843/2016, 16709/2016, 16872/2016, 16874/2016, 16886/2016, 16924/2016, 16926/2016, 16927/2016, 9714/2016, 16714/2016, 16868/2016, 12966/2016, 15459/2016, 15647/2016, 16082/2016, 16083/2016, 16242/2016, 16243/2016, 16245/2016, 16246/2016, 16248/2016, 16249/2016, 16256/2016, 16257/2016, 16258/2016, 16267/2016, 16272/2016, 16274/2016, 16275/2016, 16276/2016, 16277/2016, 16278/2016, 16280/2016, 16281/2016, 16282/2016, 16283/2016, 16334/2016, 16498/2016, 16500/2016, 16932/2016 & A.Nos.16984/2016, 16985/2016, 16986/2016, 16987/2016, 16988/2016, 16989/2016, 16992/2016, 16994/2016, 16996/2016, 16998/2016, 17000/2016, 17101/2016, 17102/2016, 17104/2016, 17105/2016, W.Ps.No.17106/2016, 17137/2016, 17144/2016, 17146/2016, 17147/2016, 17149/2016, 17151/2016, 17152/2016, 17153/2016, 17154/2016, 17156/2016, 17157/2016, 17157/2016, 17160/2016, 17161/2016, 17162/2016, 17163/2016, 17164/2016, 17165/2016, 17166/2016, 17169/2016, 17172/2016, 17175/2016, 17176/2016, 17179/2016, 17180/2016, 17194/2016, 17200/2016, 17203/2016, 17204/2016, 17205/2016, 17207/2016, 17208/2016, 17235/2016, 17236/2016, 17237/2016, 17238/2016, 16098/2016, 16990/2016, 16499/2016, 17155/2016, 17181/2016, 17191/2016, 16497/2016, 13603/2016, 17141/2016, 17158/2016, 16099/2016, 15829/2016, 15830/2016, 15832/2016, 15834/2016, 15732/2016, 15733/2016, 15753/2016, 15764/2016, 15756/2016, 15761/2016, 15763/2016, 15764/2016, 15828/2016, 16052/2016, 15590/2016, 15591/2016, 15611/2016, 15626/2016, 15627/2016, 15628/2016, 15629/2016, 15630/2016, 15631/2016, 4876/2015, 5206/2015, 5207/2015, 5208/2015, 5212/2015, 7803/2016, 6865/2015, 8541/2015, 493/2016, 4749/2016, 8118/2015, 8427/2016, 13416/2016, 491/2016, 9347/2015 and 8557/2015) In C.A.815/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Qaiser Abbas In C.A.816/2016: Member (Taxes), Board of Revenue Punjab,Lahore,etc v. Syed Fakhar Riaz In C.A.817/2016: Member (Taxes), Board of Revenue Pujnab,Lahore,etc v. Muhammad Arshad In C.A.818/2016: Member (Taxes), Board of Revenue Punjab,Lahore,etc v. Khursheed Bibi In C.A.819/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Syed Javed Hasnain Shah C.A. No.815/2016 etc. -: 3 :- In C.A.820/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Abdul Razzaq In C.A.821/2016: Province of Punjab through District Collector, Chiniot, etc v. Bilal Ahmad ,etc In C.A.822/2016: Province of Pnujab through Chief Secretary, Punjab,Lahore,etc v. Ghulam Dastagir Lak In C.A.823/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Asghar Ali In C.A.824/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Walayat Ali In C.A.825/2016: Government of the Punjab through Ministry of Finance, Civil Secretariat, Lahore, etc v. Muhammad Ameen In C.A.826/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Malik Zaheer Abbas In C.A.827/2016: Province of Punjab through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Hayat In C.A.828/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Imran Ahmad Maikan In C.A.829/2016: Province of Punjab through its Chief Secretary, Punjab,Lahore,etc v. Ch.Iftekhar Hussain Gondal In C.A.830/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Shoaib shah In C.A.831/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Mian Faisal Shafi In C.A.832/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Safdar Ali Wahla In C.A.833/2016: Government of the Punjab through its Chief Secretary,,Civil Secretariat,Lahore,etc v. Muhammad Saeed Akhtar In C.A.834/2016: Government of the Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Mian Muhammad Ashraf Kalyar In C.A.835/2016: Government of the Punjab through its Chief Secretary,,Civil Secretariat,Lahore,etc v. Mrs.Safdar Bivi In C.A.836/2016: Province of the Punjab through District C.A. No.815/2016 etc. -: 4 :- Collector,Chiniot,etc v. Khalid Mehmood,etc In C.A.837/2016: Province of the Punjab through District Collector,Chiniot,etc v. Zafar Abbas,etc In C.A.838/2016: Government of Punjab Through its Secretary Law and Parliamentary Affairs, Department, Lahore, etc v. Azmat Ali Malhi In C.A.839/2016: Government of Punjab Through its Secretary Law and Parliamentary Affairs, Department, Lahore, etc v. Saif Ullah Mangat In C.A.840/2016: Government of Punjab Through its Secretary Law and Parliamentary Affairs, Department, Lahore, etc v. Muhammad Asad Mangat In C.A.841/2016: Province of Punjab through its Chief Secretary, Lahore, etc v. Syed Nusrat Abbas Sherazi In C.A.842/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Fahad Farooq In C.A.843/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Ehtisham Suleman Zahid In C.A.844/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Mubashir Farooq In C.A.845/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Musaddaq Farooq In C.A.846/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Qasim Farooq, etc In C.A.847/2016: Province of Punjab through its Chief Secretary, Punjab ,Lahore,etc v. Fahad Farooq In C.A.848/2016: Province of Punjab through its Chief Secretary,Punjab,Lahore,etc v. Muhammad Masadaq Farooq In C.A.849/2016: Province of Punjab through its Chief Secretary, Punjab,Lahore,etc v. Haq Nawaz Malik In C.A.850/2016: Province of Punjab through its Chief Secretary,Punjab,Lahore,etc v. Rizwan ul Haq In C.A.851/2016: Province of the Punjab through its Chief Secretary Punjab, Lahore, etc v. Mian Muhammad Ashfaq In C.A.852/2016: Province of Punjab through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Qasim Farooq In C.A.853/2016: Province of Punjab Through its Chief Secretary, C.A. No.815/2016 etc. -: 5 :- Punjab,Lahore,etc v. Mian Muhammad Farooq In C.A.854/2016: Province of Punjab through its Chief Secretary, Punjab,Lahore,etc v. Abdul Khaliq In C.A.855/2016: Province of Punjab through its Chief Secretary, Punjab,Lahore,etc v. Mubashir Farooq In C.A.860/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Ahmad Suleman Zahid In C.A.861/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Mian Muhammad Farooq In C.A.862/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Tahir Mustafa In C.A.863/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Adnan Khan In C.A.864/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Akbar Virk In C.A.865/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Rameez Tariq,etc In C.A.866/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Mubashar Nawaz In C.A.867/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Mohsin Khan In C.A.868/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Anwar ul Haq In C.A.869/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Abdul Latif In C.A.870/2016: Government of Punjab Through its Secretary Law and Parliamentary Affairs, Department, Lahore, etc v. Muhammad Amin Warraich In C.A.871/2016: Province of Punjab Through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Ahmad Samar Saleem In C.A.872/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Pervaiz Rashid,etc In C.A.873/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Shafi,etc In C.A.874/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Musharaf C.A. No.815/2016 etc. -: 6 :- In C.A.875/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Syed Nasir Jamal In C.A.876/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Syed Nasir Jamal In C.A.877/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Yousaf Ali In C.A.878/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Akhtar,etc In C.A.879/2016: Province of Punjab through District Collector, Chiniot, etc v. Sardar Hassan Mahmood In C.A.880/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Mazhar Hussain Shah In C.A.881/2016: Province of Punjab through District Collector,Chiniot,etc v. Muhammad Shakeel,etc In C.A.882/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Javed Iqbal In C.A.883/2016: Province of the Punjab through District Collector,Chiniot,etc v. Mukhtar Ahmad In C.A.884/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Shahid Hayat,etc In C.A.885/2016: Government of the Punjab through Secretary Law And Parliamentary Affairs, Lahore, etc v. Asif Javaid In C.A.886/2016: Province of Punjab through District Collector, Chiniot, etc v. Rafique Ahmad Nafees, etc In C.A.887/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Abdul Hameed In C.A.888/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Ashifa Riaz In C.A.889/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Taashfeen Riaz In C.A.890/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Younas In C.A.891/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Manzoor C.A. No.815/2016 etc. -: 7 :- Ahmad Sajid In C.A.892/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Zahid Mehmood Khan In C.A.893/2016: Government of the Punjab through Secretary Law And Parliamentary Affairs, Lahore, etc v. Muhammad Riaz Khan In C.A.894/2016: Government of the Punjab through Secretary Law And Parliamentary Affairs, Lahore, etc v. Muhammad Ramzan In C.A.895/2016: Province of Punjab through District Collector, Chiniot, etc v. Muhammad Saleem, etc In C.A.896/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Farooq Nazir In C.A.897/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Masood Anwar In C.A.898/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Aftikhar Ahmad In C.A.899/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Farooq Nazir In C.A.900/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Rana Muhammad Akram Khan In C.A.901/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Muhammad Aslam In C.A.902/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Syed Muhammad Ali In C.A.903/2016: Government of the Punjab through Secretary Law And Parliamentary Affairs, Lahore, etc v. Ch.Inayat Ullah In C.A.904/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Haji Muhammad Younis In C.A.905/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Syed Ehsar ur Rehman In C.A.906/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Nasir Abbas Khan In C.A.907/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Ahmad Ejaz Khan C.A. No.815/2016 etc. -: 8 :- In C.A.908/2016: Government of the Punjab through Secretary Law And Parliamentary Affairs, Lahore, etc v. Muhammad Saad Ullah Khan In C.A.909/2016: Government of the Punjab through Secretary Law And Parliamentary Affairs, Lahore, etc v. Nasir Ali Khan In C.A.910/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Syed Afzal Hussain Shah In C.A.911/2016: Province of the Punjab through its Chief Secretary,Punjab, Lahore, etc v. Ch.Sikandar Hayat In C.A.912/2016: Province of the Punjab through its Chief Secretary,Punjab, Lahore, etc v. Muhammad Afzal In C.A.913/2016: Assistant Commissioner/Collector Samundari District Faisalabad,etc v. Rana Muhammad Farooq Saeed Khan In C.A.914/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Hafeez Ahmad Khan In C.A.915/2016: Province of Punjab through District Collector, Chiniot, etc v. Haji Abdul Mateen Khan In C.A.916/2016: Assistant Commissioner/Collector Sumundari, District Faisalabad,etc v. Rana Muhammad Bilal Farooq In C.A.917/2016: Government of Punjab through Ministry of Finance,Civil Secretariat, Lahore, etc v. Muhammad Arshad Naeem In C.A.918/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Ahmad Raza Khan In C.A.919/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Saif Ullah Khan In C.A.920/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Zafar Ullah Khan In C.A.921/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Ch.Zia Ullah Khan In C.A.922/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Bilal Zafar In C.A.923/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Khalid Mehmood Hassan C.A. No.815/2016 etc. -: 9 :- In C.A.924/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Atta Muhammad Taheem In C.A.925/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Arshad In C.A.926/2016: Province of Punjab through its Chief Secretary, Punjab,Lahore,etc v. Muhammad Ashraf Gondal In C.A.927/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Tariq Javed Anjum,etc In C.A.928/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Faheem Iqbal In C.A.929/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Tariq Mehmood In C.A.930/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Gul Muhammad In C.A.931/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Aslam Shah In C.A.932/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Aslam Shah In C.A.933/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Niaz Ahmad In C.A.934/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Anwaar Ahmad In C.A.935/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Bashir Ahmad In C.A.936/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Nazeer Ahmad In C.A.937/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Fateh Sher In C.A.938/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Nauman Ullah Khan Chathha In C.A.939/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Hamad Rasool Hanjra In C.A.940/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Asad C.A. No.815/2016 etc. -: 10 :- Zaman In C.A.941/2016: Government of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Rana Muhammad Yousaf In C.A.942/2016: Province of Punjab Through its Chief Secretary, Punjab,Lahore,etc v. Rana Mushtaq Ahmad In C.A.943/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Bin Naeem In C.A.944/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Nawaz In C.A.945/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Aftab Iqbal Pannu In C.A.946/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Khalid Mahmood Khan In C.A.947/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Syed Ali Kazmi In C.A.948/2016: Member (Taxes) Board of Revenue Punjab,Lahore,etc v. Syed Farhat Mehdi Kazmi In C.A.949/2016: Province of the Punjab through its Chief Secretary, Lahore, etc v. Akhtar Hussain @ Muhammad Akhtar Chishti In C.A.950/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Safdar Ali In C.A.951/2016: Government of the Punjab through Secretary Finance, Lahore, etc v. Muhammad Junaid Anwar Chaudhry In C.A.952/2016: Government of the Punjab through Ministry of Finance,Civil Secretariat,Lahore,etc v. Muhammad Saeed In C.A.953/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Abdul Wahid In C.A.954/2016: Assistant Commissioner, Tehsil Sambrial, District Sialkot v. Ch. Safdar Ali In C.A.955/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Muhammad Arshad In C.A.956/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Rana Muhammad Ashraf Khan C.A. No.815/2016 etc. -: 11 :- In C.A.957/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Muhammad Vakil Khan Manj In C.A.958/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Ch. Naimat Ali In C.A.959/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Zafar Pervaiz In C.A.960/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Ch. Muhammad Ishaque In C.A.961/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Zafar Mahmood In C.A.962/2016: Government of the Punjab through Chief Secretary, Lahore, etc v. Ch. Muhammad Mushtaq In C.A.963/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Zafar Pervaiz In C.A.964/2016: Assistant Commissioner/Collector, Tehsil Model Town, Lahore,etc v. Mian Haseeb Ilyas In C.A.965/2016: Assistant Commissioner/Collector, Tehsil Model Town, Lahore,etc v. Mian Mehraj Din, etc In C.A.966/2016: Assistant Commissioner/Collector, Tehsil Model Town, Lahore,etc v. Mian Muhammad Illyas Mehraj In C.A.967/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Ghulam Abbas Chatha In C.A.968/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Muhammad Akram In C.A.969/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Rauf Iqbal, etc In C.A.970/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Irshad Ali In C.A.971/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Muhammad Khan In C.A.972/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. C.A. No.815/2016 etc. -: 12 :- Muhammad Wakeel Khan In C.A.973/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Khan Muhammad Arshad Khan (Late) In C.A.974/2016: Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore, etc v. Zulfiqar Ali In C.A.1476/2016: Province of Punjab through its Chief Secretary, Lahore, etc v. Ayesha Asghar In C.A.1477/2016: Province of Punjab through its Chief Secretary, Punjab Lahore,etc v. Ghulam Abbas In C.A.1478/2016: Province of Punjab through its Chief Secretary, Punjab Lahore,etc v. Malik Allah Bakhsh In C.A.1479/2016: Province of Punjab through its Chief Secretary, Punjab Lahore,etc v. Malik Ameer Mukhtar Sangha In C.A.1480/2016: Province of Punjab through its Chief Secretary, Punjab Lahore,etc v. Mureed Hussain In C.A.1481/2016: Government of Punjab through its Secretary Law And Parliamentary Affairs Department, Punjab Lahore,etc v. Khalid Latif Mughal In C.A.1482/2016: Province of Punjab through its Chief Secretary, Punjab Lahore,etc v. Suleman Yousaf In C.A.1483/2016: Province of Punjab through its Chief Secretary, Punjab Lahore,etc v. Rizwan Yousaf In C.A.1484/2016: Province of Punjab through its Chief Secretary, Punjab Lahore,etc v. Sarfraz Ahmad Abbasi In C.A.1485/2016: Government of the Punjab through Chief Secretary, Punjab Civil Secretariat, Lahore,etc v. Muhammad Iqbal In C.A.1486/2016: Government of the Punjab through Chief Secretary, Punjab Civil Secretariat, Lahore,etc v. Zulfiqar Ali In C.A.1487/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Ajmal Khan In C.A.1601/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Tahir Abbas In C.A.1602/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Tufai In C.A.1603/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mureed Abbas C.A. No.815/2016 etc. -: 13 :- In C.A.1604/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mst. Shareen Fatima In C.A.1605/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Habibullah In C.A.1606/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mian Ghaman Hussain In C.A.1607/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Raey Zahoor Ahmad In C.A.1608/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Sarfraz In C.A.1609/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ghulam Muhammad Murtaza In C.A.1610/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Bashir Ahmad Khan In C.A.1611/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mushtaq Ahmad In C.A.1612/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ahmad alias Ahmad Ali In C.A.1613/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Hussain In C.A.1614/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Liaqat Ali In C.A.1615/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Hayyat In C.A.1616/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mumtaz In C.A.1617/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ghulam Moeen-ul-Din In C.A.1618/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Ameer In C.A.1619/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Wali Muhammad Khan In C.A.1620/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Younas In C.A.1621/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Khalid Nawaz In C.A.1622/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Raey Nadeem Abbas C.A. No.815/2016 etc. -: 14 :- In C.A.1623/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Hassan In C.A.1624/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Noor Muhammad In C.A.1625/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mst. Salamat Bibi In C.A.1626/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Hameed In C.A.1627/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Bashir Hussain In C.A.1628/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Hameed In C.A.1629/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ghulam In C.A.1630/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Fida Muhammad In C.A.1631/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Hira Fatima In C.A.1632/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mst. Raaj Bibi In C.A.1633/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mushtaq Ahmad In C.A.1634/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muneer Hussain In C.A.1635/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Fazil In C.A.1636/2016: Assistant Commissioner/Collector Tehsil Kamalia, District Toba Tek Singh, etc v. Muhammad Shahid Sohail In C.A.1637/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Aown Abbas In C.A.1638/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Abdullah In C.A.1639/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ghulam Habib In C.A.1640/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Bashir Hussain In C.A.1641/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Hayat C.A. No.815/2016 etc. -: 15 :- In C.A.1642/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Ashraf In C.A.1643/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Kausar Bibi In C.A.1644/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Ameer In C.A.1645/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Khalid Mehmood In C.A.1646/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Abdul Hameed In C.A.1647/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Fida Muhammad In C.A.1648/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Jamal In C.A.1649/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Iftikhar Ahmad In C.A.1650/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Amiran Bibi In C.A.1651/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Arshad In C.A.1652/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Niamat Ali In C.A.1653/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Wali Dad In C.A.1654/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Zulfiqar Ali Hassan In C.A.1655/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Lal Din In C.A.1656/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Bashir In C.A.1657/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Maqsood Ahmad In C.A.1658/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Bhadar Ali In C.A.1659/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Sardar Ali In C.A.1660/2016: Government of th C.A. No.815/2016 etc. -: 16 :- In C.A.1661/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Azmat Khan In C.A.1662/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Azam Khan In C.A.1663/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Akbar Khan In C.A.1664/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Sheer Muhammad In C.A.1665/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ghulam Shabbir In C.A.1666/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Abdul Waheed Khan In C.A.1667/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Falak Sher In C.A.1668/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Zeeshan Haider In C.A.1669/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Sheeren Akhtar In C.A.1670/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ali Hassan In C.A.1671/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Yaqoob In C.A.1672/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Nawaz In C.A.1673/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Jawad In C.A.1674/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Fida Muhammad In C.A.1675/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Shahid Nawaz In C.A.1676/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Maqbool Ahmad In C.A.1677/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Iqbal In C.A.1678/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Syed Farhat Mehdi Kazmi In C.A.1679/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Naseer Ahmad C.A. No.815/2016 etc. -: 17 :- In C.A.1680/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Mian Aftab Ahmad In C.A.1681/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ali muhammad In C.A.1682/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ali Raza In C.A.1683/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Nazir Ahmad In C.A.1684/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Qurban Ali Khan In C.A.1685/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Fazil In C.A.1686/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Hussain In C.A.1687/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Ramzan In C.A.1688/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Anwar In C.A.1689/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Hamza Khan In C.A.1690/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Tallat Mehmood In C.A.1691/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Sheraz Hussain In C.A.1692/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Ahmad Sher, etc In C.A.1693/2016: Member Taxes, BOR, Punjab, etc v. Muhammad Iqbal Hussain Kathia In C.A.1694/2016: Member Taxes, BOR, Punjab, etc v. Naubahar In C.A.1695/2016: Member Taxes, BOR, Punjab, etc v. Zafar Abbas, etc In C.A.1696/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Umar In C.A.1697/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Saif-ur-Rehman In C.A.1698/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Memrez Khan In C.A.1699/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Siddique C.A. No.815/2016 etc. -: 18 :- In C.A.1700/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Zubair Khan In C.A.1701/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Jamshed Ahmad In C.A.1702/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Saeed Jafar In C.A.1703/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Fazil In C.A.1704/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Gada Hussain In C.A.1705/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Haq Nawaz In C.A.1706/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Ameer In C.A.1707/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Khyber Zaman Khan In C.A.1708/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Umar Hayat In C.A.1709/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Sohail Anjum Nazir In C.A.1710/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Zafar Iqbal In C.A.1711/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Rafique Zahid In C.A.1712/2016: Member Taxes, BOR, Punjab, etc v. Sagheer Ahmad In C.A.1713/2016: Member Taxes, BOR, Punjab, etc v. Iqrar Hussain Shah In C.A.1714/2016: Member Taxes, BOR, Punjab, etc v. Muhammad Naveed Anjum In C.A.1715/2016: Member Taxes, BOR, Punjab, etc v. Ghulam Abbas In C.A.1716/2016: Member Taxes, BOR, Punjab, etc v. Muhammad Ishtiaq Akbar In C.A.1717/2016: Member Taxes, BOR, Punjab, etc v. Hameed Ullah Shah In C.A.1718/2016: Member Taxes, BOR, Punjab, etc v. Munawar Ali C.A. No.815/2016 etc. -: 19 :- Shah In C.A.1719/2016: Member Taxes, BOR, Punjab, etc v. Atta Ullah Shah In C.A.1720/2016: Commissioner Faisalabad Division, Faisalabad, etc v. Saeed Khan In C.A.1721/2016: Member Taxes, BOR, Punjab, etc v. Muhammad Ibrahim In C.A.1722/2016: Member Taxes, BOR, Punjab, etc v. Azmat Khan In C.A.1723/2016: Member (Taxes) B.O.R., Punjab, Lahore, etc v. Mushtaq Jelani In C.A.1724/2016: Member Taxes, BOR, Punjab, etc v. Syed Muratab Ali Shah In C.A.1725/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Nadir Ali In C.A.1726/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Sheikh Masood Akhtar In C.A.1727/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Saadat Husnain Khan In C.A.1728/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. ghulam Al-Syedin Khan In C.A.1729/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Zulqarnain alias Zulfiqar Ali In C.A.1730/2016: Member Taxes, BOR, Punjab, etc v. Rajab Ali In C.A.1731/2016: Member Taxes, BOR, Punjab, etc v. Miraj Khalid In C.A.1732/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Fazil In C.A.1733/2016: Member Taxes, BOR, Punjab, etc v. Ghulam Dastgeer In C.A.1734/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Aown Muhammad Khan In C.A.1735/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Barkat Ilahi In C.A.1736/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Shoukat Ali In C.A.1737/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Umar Afzal C.A. No.815/2016 etc. -: 20 :- In C.A.1738/2016: Commissioner Faisalabad Division, Faisalabad, etc v. Imran Khan In C.A.1739/2016: Commissioner Faisalabad Division, Faisalabad, etc v. Khizar Abbas In C.A.1740/2016: Commissioner Faisalabad Division, Faisalabad, etc v. Irfan Khan In C.A.1741/2016: Commissioner Faisalabad Division, Faisalabad, etc v. Muhammad Akram In C.A.1742/2016: Commissioner Faisalabad Division, Faisalabad, etc v. Zafar Iqbal In C.A.1743/2016: Government of the Punjab through its Chief Secretary, Lahore, etc v. Muhammad Sarwar, etc In C.A.1883/2016: Province of Punjab, etc v. Syed Javed Hasnain Shah In C.A.1884/2016: Province of Punjab, etc v. Fazzal Abbas In C.A.1885/2016: Province of Punjab, etc v. Nayyar Sehrish In C.A.1886/2016: Province of Punjab, etc v. Fazal Abbas In C.A.1887/2016: Province of Punjab, etc v. Muhammad Ali In C.A.1888/2016: Province of Punjab, etc v. Ghulam Abbas In C.A.1889/2016: Province of Punjab, etc v. Zafar Hayat In C.A.1890/2016: Province of Punjab, etc v. Ch. Iftikhar Hussain In C.A.1891/2016: Province of Punjab, etc v. Gul Sher In C.A.1892/2016: Province of Punjab, etc v. Ahmed Ishaq Khan In C.A.1893/2016: Province of Punjab, etc v. Zia-ur-Rehman In C.A.1894/2016: Province of Punjab, etc v. Nazir Ahmed In C.A.1895/2016: Province of Punjab, etc v. Khuda Dad In C.A.1896/2016: Province of Punjab, etc v. Muhammad Khan In C.A.1897/2016: Province of Punjab, etc v. Umer Manzoor In C.A.1898/2016: Province of Punjab, etc v. Naveed Abbas In C.A.1899/2016: Province of Punjab, etc v. Faiz Muhammad In C.A.1900/2016: Province of Punjab, etc v. Munir Hussain In C.A.1901/2016: Province of Punjab, etc v. Khalid Mehmood Shaheen C.A. No.815/2016 etc. -: 21 :- In C.A.1902/2016: Province of Punjab, etc v. Syed Mulazim Hussain Shah In C.A.1903/2016: Province of Punjab, etc v. Sajjad Hussain In C.A.1904/2016: Province of Punjab, etc v. Muhammad Feroze In C.A.1905/2016: Province of Punjab, etc v. Abrar Haider In C.A.1906/2016: Province of Punjab, etc v. Mehwish Mukhtar In C.A.1907/2016: Province of Punjab, etc v. Muqadas Saleem In C.A.1908/2016: Province of Punjab, etc v. Khan Muhammad In C.A.1909/2016: Province of Punjab, etc v. Ahmed Ali In C.A.1910/2016: Province of Punjab, etc v. Sikandar Hussain In C.A.1911/2016: Province of Punjab, etc v. Rab Nawaz In C.A.1912/2016: Province of Punjab, etc v. Musarat Iqbal In C.A.1913/2016: Province of Punjab, etc v. Faiz Muhammad In C.A.1914/2016: Province of Punjab, etc v. Sikandar Hussain In C.A.1915/2016: Province of Punjab, etc v. Rana Shaukat Hayat In C.A.1916/2016: Province of Punjab, etc v. Rana Liaqat Hayat In C.A.1917/2016: Province of Punjab, etc v. Mst. Farhat Batool In C.A.1918/2016: Province of Punjab, etc v. Riffat Abbas In C.A.1919/2016: Province of Punjab, etc v. Musharaf In C.A.1920/2016: Province of Punjab, etc v. Muhammad Hussain In C.A.1921/2016: Member (Taxes) B.O.R. Punjab, etc v. Ghulam Shabbir In C.A.1922/2016: Province of Punjab, etc v. Maqbool Ahmed Hussain In C.A.1923/2016: Member (Taxes) B.O.R. Punjab, Lahore, etc v. Sikandar Hayat Khan In C.A.1924/2016: Province of Punjab, etc v. Sardar Khaliq Nawaz In C.A.1925/2016: Province of Punjab, etc v. Ibrahim Ahmed Salim In C.A.1926/2016: Province of Punjab, etc v. Sh. M. Faisal Afzal In C.A.1927/2016: Province of Punjab, etc v. Sardar Akhtar Hayat In C.A.1928/2016: Province of Punjab, etc v. Ahmed sher C.A. No.815/2016 etc. -: 22 :- In C.A.1929/2016: Province of Punjab, etc v. Muhammad Akhtar Hayat In C.A.1930/2016: Province of Punjab, etc v. Jameel Afzal In C.A.1931/2016: Province of Punjab, etc v. Ghazala Batool In C.A.1932/2016: Province of Punjab, etc v. Sardar Bibi In C.A.1933/2016: Province of Punjab, etc v. Ahmed Zeb In C.A.1934/2016: Province of Punjab, etc v. Ahmed Salim Akbar In C.A.1935/2016: Province of Punjab, etc v. Nasim Akhtar In C.A.1936/2016: Province of Punjab, etc v. Muhammad Altaf In C.A.1937/2016: Province of Punjab, etc v. Ghulam Abbas In C.A.1938/2016: Province of Punjab, etc v. Muhammad Sher In C.A.1939/2016: Province of Punjab, etc v. Ahmed Yar In C.A.1940/2016: Province of Punjab, etc v. Muhammad Nawaz In C.A.1941/2016: Province of Punjab, etc v. Ahmed Yar In C.A.1942/2016: Province of Punjab, etc v. Ranga Khan In C.A.1943/2016: Province of Punjab, etc v. Sana Ullah In C.A.1944/2016: Province of Punjab, etc v. Muhammad Abdullah In C.A.1945/2016: Province of Punjab, etc v. Zaka Ullah In C.A.1946/2016: Province of Punjab, etc v. Faiz Suleman In C.A.1947/2016: Province of Punjab, etc v. Muhammad Mukhtar In C.A.1948/2016: Province of Punjab, etc v. Falak Sher In C.A.1949/2016: Province of Punjab, etc v. Sultan Mehmood In C.A.1950/2016: Province of Punjab, etc v. Syed Ali Raza Shah In C.A.1951/2016: Member (Taxes) B.O.R. Punjab, etc v. Farooq Jehan Begum In C.A.1952/2016: Province of Punjab, etc v. Tahira Batool In C.A.1953/2016: Province of Punjab, etc v. Tehmina Ejaz In C.A.1954/2016: Province of Punjab, etc v. Zahran Bibi In C.A.1955/2016: Province of Punjab, etc v. Sultan Ali Raza In C.A.1956/2016: Province of Punjab, etc v. Mrs. Razia Sultana C.A. No.815/2016 etc. -: 23 :- In C.A.1957/2016: Province of Punjab, etc v. Ansar Mehmood In C.A.1958/2016: Province of Punjab, etc v. Sardar Iftkhar Hussain In C.A.1959/2016: Province of Punjab, etc v. Mrs. Ghulam Zainab In C.A.1960/2016: Province of Punjab, etc v. Ambreen Iftikhar In C.A.1961/2016: Province of Punjab, etc v. Mst. Nasrin Begum In C.A.1962/2016: Province of Punjab, etc v. Ishtiaq Ullah Khan In C.A.1963/2016: Province of Punjab, etc v. Agha Abbas Shah In C.A.1964/2016: Province of Punjab, etc v. Muhammad Imran Shah In C.A.1965/2016: Province of Punjab, etc v. Nazzar Abbas In C.A.1966/2016: Province of Punjab, etc v. Maulana Muhammad Hussain In C.A.1967/2016: Province of Punjab, etc v. Shaukat Mehmood In C.A.1968/2016: Province of Punjab, etc v. Khalid Mehmood In C.A.1969/2016: Province of Punjab, etc v. Muhammad Raza In C.A.1970/2016: Province of Punjab, etc v. Ahmed Hayat In C.A.1971/2016: Province of Punjab, etc v. Abdul Waheed In C.A.1972/2016: Province of Punjab, etc v. Mst. Safia In C.A.1973/2016: Province of Punjab, etc v. 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Muhammad Akbar Khan, etc In C.A.2214/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Khaliq Dad Khan, etc In C.A.2215/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Haroon Shahzad Khan In C.A.2216/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Mst. Shahnaz Begum In C.A.2217/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Zafar Ullah Khan In C.A.2218/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Asif Naeem Khan, etc In C.A.2219/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Nadeem Akram Khan In C.A.2220/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Hafeez Begum In C.A.2221/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Ch. Ijaz Hussain, etc In C.A.2222/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Ghulam Mustafa C.A. No.815/2016 etc. -: 27 :- In C.A.2223/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Naseem Abbas In C.A.2224/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Tahir Mehmood In C.A.2225/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Nishat Akram In C.A.2226/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Shahid Mehmood In C.A.2227/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Zahid Mehmood In C.A.2228/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Mst. Ayesha Imran Rasool In C.A.2229/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Mst. Shahida Ali In C.A.2230/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Mst. Tahir Ali In C.A.2231/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Mst. Zahida Farrukh In C.A.2232/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Ahmad Hayat In C.A.2233/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Asim Muhammad Kalyar In C.A.2234/2016: Government of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Mian Fateh Muhammad Kalyar In C.A.2235/2016: Province Of Punjab through its Chief Secretary, Lahore etc. v. Ghazanfar Ali In C.A.2236/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Ahmad Yaar In C.A.2237/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Manzoor Hussain Shah In C.A.2238/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Muhammad Aslam Hayat In C.A.2239/2016: Member (Taxes), Baord of Revenue Punjab, C.A. No.815/2016 etc. -: 28 :- Lahore, etc v. Muhammad Akram In C.A.2240/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Ahmad Riaz Khan In C.A.2241/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Muhammad Aizaz Ullah In C.A.2242/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Hasnat Nasar Ullah In C.A.2243/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Muhammad Amir Aafaq In C.A.2244/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Muhammad Abdullah In C.A.2245/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Muhammad Akram In C.A.2246/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Saghir Ahmad Chaudhry In C.A.2247/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Muhammad Shoaib Shah In C.A.2248/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Mst. Riffat Bibi In C.A.2249/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Mian Muhammad Shabbi In C.A.2250/2016: Member (Taxes), Baord of Revenue Punjab, Lahore, etc v. Muhammad Afzal In C.A.2251/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Khan (deceased) through L.Rs., etc In C.A.2252/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Ashfaque Hussain Shah In C.A.2253/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Sher Muhammad In C.A.2254/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Rab Nawaz In C.A.2255/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Atta Muhammad In C.A.2256/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Sarfraz In C.A.2257/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Zulfiqar Aziz Khan In C.A.2258/2016: Province of Punjab through its Chief Secretary, C.A. No.815/2016 etc. -: 29 :- Punjab, Lahore, etc v. Bakhat Waddi In C.A.2259/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Ashraf In C.A.2260/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Samina Zafar In C.A.2261/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Faisal Saleh Muhammad In C.A.2262/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Mumtaz Hussain In C.A.2263/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Masood Iqbal Gondal In C.A.2264/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Habib Ullah In C.A.2265/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Nasir Ahmed Shah In C.A.2266/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Razia Bibi In C.A.2267/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Sumera Zafar In C.A.2268/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Mukhtar In C.A.2269/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Ahmed Khan In C.A.2270/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Maqsood Fatima In C.A.2271/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Zafar Hayat In C.A.2272/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Amina Bibi In C.A.2273/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Zubaida Khatoon In C.A.2274/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Ilyas In C.A.2275/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Hussain In C.A.2276/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Allah Yar In C.A.2277/2016: Province of Punjab through its Chief Secretary, C.A. No.815/2016 etc. -: 30 :- Punjab, Lahore, etc v. Abid Hussain In C.A.2278/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Ghazanfar Abbas In C.A.2279/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Gaffar Iqbal In C.A.2280/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Zubair In C.A.2281/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Muhammad Riaz In C.A.2282/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Sajid Hussain In C.A.2283/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Ahmed Khan In C.A.2284/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Nargis Batool In C.A.2285/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Zain Ul Abideen In C.A.2286/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Zainab Kubra In C.A.2287/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Fatima Kubra In C.P.2991-L/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Khan Skinder Khan In C.P.2992-L/2016: The Member (Taxes), Board of Revenue, Punjab, Lahore, etc v. Syed Bashir Hussain Shah In C.P.2996-L/2016: Province of Punjab through its Chief Secretary, Punjab, Lahore, etc v. Babar Fateh Kalyar In C.P.2997-L/2016: Province of Punjab through its Chief Secretary Punjab, Lahore, etc v. Mst. Sardar Bivi In C.P.3013-L/2016: Province of Punjab through its Chief Secretary Punjab, Lahore, etc v. Ghulam Shabbir In C.P.3014-L/2016: Province of Punjab through its Chief Secretary Punjab, Lahore, etc v. Mst. Bivi Rani In C.P.3015-L/2016: Province of Punjab through its Chief Secretary Punjab, Lahore, etc v. Mrs. Asma Mehtab In C.P.3016-L/2016: Government of the PUnjab through Chief Secretary, Lahore, etc v. Muhammad Ismail Qureshi In C.P.3017-L/2016: Province of Punjab through its Chief Secretary C.A. No.815/2016 etc. -: 31 :- Punjab, Lahore, etc v. Ghazanfar Ali In C.P.3018-L/2016: Province of Punjab through its Chief Secretary Punjab, Lahore, etc v. Zahra Bibi In C.P.3020-L/2016: Member Taxes Board of Revenue, Punjab, Lahore, etc v. Tahir Abbas In C.P.3026-L/2016: Province of Punjab, etc v. Muzafar Akram Gondal In C.P.3027-L/2016: Province of Punjab, etc v. Ghulam Zohra In C.P.3028-L/2016: Province of Punjab, etc v. Mazhar Hayat In C.P.3029-L/2016: Province of Punjab, etc v. Asad Hayat In C.P.3041-L/2016: Province of Punjab, etc v. Umme Laila In C.P.3042-L/2016: Province of Punjab, etc v. Ghulam Narjas Batool In C.P.3043-L/2016: Province of Punjab, etc v. Danish Raza In C.P.3044-L/2016: Province of Punjab, etc v. Hassan Shah In C.P.3045-L/2016: Province of Punjab, etc v. Mushtaq Hussain Shah, etc In C.P.3046-L/2016: Province of Punjab, etc v. Fatima Sughra In C.P.3047-L/2016: Province of Punjab, etc v. Sajjad Hussain Shah In C.P.3048-L/2016: Province of Punjab, etc v. Ghulam Zainab In C.P.3049-L/2016: Province of Punjab, etc v. Ashraf Gondal In C.P.3112-L/2016: Province of Punjab through District Collector, Jhang, etc v. Muhammad Hussain, etc In C.P.3171-L/2016: Province of Punjab through its Chief Sectetary Punjab, Lahore, etc v. Anees Zahra In C.P.3172-L/2016: Province of Punjab through its Chief Sectetary Punjab, Lahore, etc v. Muhammad Adnan In C.P.3173-L/2016: Province of Punjab through its Chief Sectetary Punjab, Lahore, etc v. Muhammad Adeel Haider In C.P.3174-L/2016: Government of the Punjab through its Chief Sectetary Punjab, Lahore, etc v. Syeda Seerat Batool In C.P.3175-L/2016: Government of the Punjab through its Chief Sectetary Punjab, Lahore, etc v. Syed Bakhtiar Ali Kazim In C.P.3176-L/2016: Government of the Punjab through its Chief Sectetary Punjab, Lahore, etc v. Syed Irfan Ali C.A. No.815/2016 etc. -: 32 :- Raza In C.P.3177-L/2016: Government of the Punjab through its Chief Sectetary Punjab, Lahore, etc v. Maqbool Fatima In C.P.3178-L/2016: Government of the Punjab through its Chief Sectetary Punjab, Lahore, etc v. Syed Ali Artaza Kazim In C.P.3179-L/2016: Government of the Punjab through its Chief Sectetary Punjab, Lahore, etc v. Syed Muhammad Kazim Shah In C.P.823-L/2017: Member (Taxes), Board of Revenue Punjab, Lahore, etc v. Ahmad Yar In C.P.824-L/2017: Member (Taxes), Board of Revenue Punjab, Lahore, etc v. Nabila Sardar In C.P.825-L/2017: Member (Taxes), Board of Revenue Punjab, Lahore, etc v. Taj Muhammad In C.P.826-L/2017: Member (Taxes), Board of Revenue Punjab, Lahore, etc v. Tariq Aziz In C.P.827-L/2017: Member (Taxes), Board of Revenue Punjab, Lahore, etc v. Muhammad Sardar Khan In C.P.918-L/2017: Govt. of the Punjab thr its Secretary, etc v. Malik Saeed Ahmad In C.P.956-L/2017: Commissioner Bahawalpur Division, etc v. Sardar Mubashar Farid, etc In C.P.957-L/2017: Govt. of Punjab through Secy. Finance & Planning, etc v. Mian Muhammad Akram In C.P.958-L/2017: Govt. of Punjab through Secy. Finance & Planning, etc v. Mian Muhammad Masood Ashraf In C.P.991-L/2017: Govt. of Punjab through Chief Secretary,etc v. Abdul Wajid In C.P.992-L/2017: Member (Taxses), Board of Revenue Punjab etc. v. Abdul Hafeez In C.P.993-L/2017: Government of Punjab thr Chief Secretary, Punjab, Lahore, etc. v. Malik Bilal Ahmad Khar In C.P.994-L/2017: Province of Punjab through Secretary Finance/Revenue, Punjab, Lahore, etc v. Meher Khatoon In C.P.1032-L/2017: Govt. of Punjab through its Secretary Finance/Revenue, Lahore, etc v. Muhammad Sajjad Ashraf C.A. No.815/2016 etc. -: 33 :- In C.P.1033-L/2017: Commissioner, Bahawalpur Division, Bahawalpur, etc v. Raja Muhammad Akram, etc In C.P.1034-L/2017: Commissioner Bahawalpur Division, Bahawalpur, etc v. Ghulam Mustafa For the appellant(s)/ petitioner(s): Rana Shamshad Khan, Addl.A.G. Mr. Faisal Fareed Hussain, Addl.A.G. Mr. M. Adnan Khan, Law Officer, BOR (In all cases except C.A.2204/2016) Nemo (In C.A.2204/2016) For the respondent(s): Mr. M. Arshad Majeed Malik, ASC Mr. M. S. Khattak, AOR (In C.As.821, 836, 843, 881 & 895/2016) Ch. Akhtar Ali (In C.A.826/2016) Mr. Shakeel-ur-Rehman, ASC Raja Abdul Ghafoor, AOR (In C.A.831/2016) Sh. Muhammad Akram, ASC (In C.As.834, 835, 879, 880, 939, 1967, 1999, 2000, 2001, 1968, 887, 1957, 1958, 1959 & 1690/2016) Nemo (In C.As.860, 1884, 1886, 1889, 1890, 1893, 1894, 1896, 1898, 1899, 1900, 1902, 1903, 1905, 1908, 1910, 1914, 1917, 1918, 1924, 1927, 1931, 1932, 1995, 2009, 2010 & 2012/2016) Syed Ali Imran, ASC (In C.As.955 to 963 & 970 to 974/2016) Mr. Abdul Razzaq, ASC Syed Rifaqat Hussain Shah, AOR (In C.As.888, 889 & 893/2016) Rana Zahid Khan, ASC a/w Rai Akhtar Saleem (In C.A.920/2016) Mian Muhammad Ashfaq, ASC In person (In C.As.923, 1926, 1962 & 1985/2016) Rana Munir Hussain, ASC (In C.As.967 & 968/2016) Mr. Babar Bilal, ASC (In C.A.1729/2016) Mr. Amjad Iqbal, ASC (In C.A.1883/2016) Mr. Hasan Raza Pasha, ASC (In C.As.1721 to 1724/2016) C.A. No.815/2016 etc. -: 34 :- In person (In C.As.2223 to 2229/2016) Date of hearing: 8.1.2019 JUDGMENT MIAN SAQIB NISAR:- The brief facts of the instant matters are that the respondents own agricultural land from which they derive agricultural income which is subject to agricultural income tax under the Punjab Agricultural Income Tax Act, 1997 (the Act) and the Punjab Agricultural Income Rules, 2001 (the Rules) framed thereunder. The petitioner-tax authority issued recovery notices to the respondents for the recovery of agricultural income tax for, inter alia, the assessment years of 2012, 2013 and 2014 (the years vary from case to case) under the Act. The respondents challenged such recovery notices by filing constitution petitions before the learned High Court(s) which (petitions) have been allowed vide impugned judgment(s), hence the instant petitions and appeals with the leave of the Court dated 24.03.2016 which reads as under:- “Leave in this cases is granted, inter alia, to consider whether Section 3B of the Punjab Agricultural Income Tax Act, 1997 (the Act) inserted by the Punjab Finance Act, 2013 (the Finance Act) being a non-obstante clause has an overriding effect on Section 3 of the Act; whether the learned Single Judge-in-Chambers has erred in law by relying upon the principle of retrospectivity and thus held that Section 3B has no retrospective effect; whether the fact that under Section 3B of the Act the tax to be paid is on the agricultural income for any assessment year as declared in the return filed under the Income Tax Ordinance, 2001 (the Ordinance), coupled with Rule 14(3) of the Punjab Agricultural Income Tax Rules, 2001 (the Rules) which provides for recovery of all amounts due within a period of two years from which the total agricultural income was first assessable, allows such tax to be recovered from assessment years prior to 1.7.2013, which is the date of C.A. No.815/2016 etc. -: 35 :- coming into force of Section 3B of the Act; whether the interpretation by the learned Judge of certain provisions of the Rules is misplaced and have no nexus to the real issues involved in the matter; whether the declaration of agricultural income in the income tax return filed under the Ordinance is sufficient for purposes of recovery of agricultural income tax as contemplated by Section 3B of the Act, and allows the authorities to dispense with the procedure for recovery of such tax as provided in the Act and the Rules, in that an assessment order vis-à-vis recovery of agricultural income tax disclosing the basis of calculation of such tax was to be passed before direct issuance of recovery notices; whether failure to pass an assessment order has deprived the respondents of the right to challenge such order under Section 7 of the Act and if not, whether the respondents were required to avail the remedy under the said section before approaching the learned High Court in its constitutional jurisdiction.” 2. We have heard the arguments of the learned counsel for the parties which are not being reproduced for the sake of brevity, rather shall be reflected in the course of this opinion. The key issues involved herein are twofold:- i. Whether Section 3B of the Act read with Rule 14(3) of the Rules applies retrospectively, allowing recovery of agricultural income tax for the assessment years prior to the date Section 3B supra was inserted into the Act; and ii. Whether the petitioner was required to follow the assessment, computation and collection procedure under the provisions of the Act and the Rules for the recovery of agricultural income tax under Section 3B of the Act, thereby depriving the respondents of a right of appeal available under the Act? C.A. No.815/2016 etc. -: 36 :- 3. In order to answer the foregoing questions, we find it expedient to reproduce below the relevant parts of Section 3 of the Act which is the charging section:- 3. Charge of agricultural income-tax.– (1) Subject to the other provisions of this Act, there shall be levied, assessed and collected each year a tax in respect of agricultural income of a tax year of an owner at the rate specified in the First Schedule to this Act. Explanation.– For the purposes of this sub-section, the cultivated land during a tax year shall be deemed to be agricultural income. (2) …………………………………………………………………. (3) ………………………………………………………………… (4) ………………………………………………………………… [Emphasis supplied] By way of amendment, Section 3B was inserted in the Act through the Punjab Finance Act, 2013 (the Finance Act) which reads as follows:- 3B. Tax on the basis of income tax return.– Notwithstanding the provisions of section 3, where any person has declared agricultural income for any assessment year in the return filed under the Income Tax Ordinance, 2001 (XLIX of 2001), the person shall pay the tax on such income at the rate specified in the Second Schedule. [Emphasis supplied] While the Finance Act was notified on 29.06.2013, as per Section 1 thereof, it (the Finance Act) came into force on 01.07.2013. Considering that Section 3B supra came into force on 01.07.2013, a question arises as to whether the petitioner could recover agricultural income tax for the assessment years prior to such date. At this juncture it is pertinent to C.A. No.815/2016 etc. -: 37 :- reiterate a cardinal principle of interpretation of statutes, particularly tax statutes, in that they (tax statutes) operate prospectively and not retrospectively unless clearly indicated by the legislature. In this regard, reference may be made to the judgments of this Court reported as Zila Council Jhelum through District Coordination Officer Vs. Messrs Pakistan Tobacco Company Ltd. and others (PLD 2016 SC 398) and Commissioner of Income Tax Vs. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279). Retrospectivity can only be attributed to a statute where it is made explicit or can be inferred by necessary implication; it cannot be presumed. In this regard it is worthy to note the relevant provisions of Section 4 of the Act and Rule 14 of the Rules which are reproduced below respectively:- “4. Assessment and collection of tax.– (1) The tax shall be assessed and collected by the Collector in such manner as may be prescribed. (2) …………………………………………………………….. (3) …………………………………………………………… (4) No assessment on the basis of return shall be made by the Collector after the expiration of two years from the end of the assessment year in which the total agricultural income was first assessable. 14. Additional assessment.– (1) If in any year for any reason- (a) any agricultural income chargeable to tax under the Act has escaped assessment; or (b) the total agricultural income of an assessee has been under assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund under the Act or these rules, the Collector of the Sub-Division may, at any time, subject to the provisions of sub-rules (2) and (3), issue a notice to the assessee containing all or any of the C.A. No.815/2016 etc. -: 38 :- requirements of the notice under rule 6 and may proceed to assess or determine, by an order in writing, the total agricultural income of an assessee or the tax payable by him, as the case may be, and all the provisions of the Act and these rules shall, so far as may be, apply accordingly: Provided that the tax shall be charged at the rate applicable to the assessment year for which assessment is made. (2) …………………………………………………………….. (3) No order under sub-rule (1) shall be made after the expiration of two years from the end of the assessment year in which the total agricultural income was first assessable.” [Emphasis supplied] Furthermore, Section 2(ac) of the Act defines “assessment year” as “the period of twelve months beginning on the first day of July next following the income year” whereas Section 2(da) thereof defines “income year” as “the financial year next preceding the said assessment year.” Accordingly, since Section 3B of the Act was effective from 01.07.2013, it is applicable to the assessment year beginning on 01.07.2014 as it is the assessment year following the income year which commenced on 01.07.2013. While undoubtedly the provision(s) inserted in the Act by way of the Finance Act were to apply prospectively, Section 4(4) of the Act read with Rule 14(3) of the Rules, albeit couched in negative terms, clearly allow for the recovery of agricultural income tax for the two years (i.e. 2012 and 2013) prior to the assessment year in which the total agricultural income was first assessable, i.e. the assessment year beginning on 01.07.2014. Hence the petitioner could recover all amounts due within a period of two years from which the total agricultural income was first assessable, i.e. the assessment years of 2012 and 2013. C.A. No.815/2016 etc. -: 39 :- 4. As regard the second issue, it is the case of the respondents that there is a mandatory process under the Act to levy, assess and collect agricultural income tax for a given assessment year which has not been so done by the petitioner-tax authority, rather the latter has simply issued recovery notices demanding the recovery of agricultural income tax which it is not allowed to do under the law. In this regard, the precise wording of Sections 3 and 3B of the Act are important and need to be considered. Section 3 ibid provides that there shall be levied, assessed and collected each year a tax in respect of agricultural income of a tax year of an owner at the rate specified in the First Schedule. This is the primary charging provision of the Act. However, according to Section 3B ibid, notwithstanding the provisions of Section 3 of the Act, where any person has declared agricultural income for any assessment year in the return filed under the Income Tax Ordinance, 2001 (the Ordinance) he shall pay tax on such income at the rate specified in the Second Schedule. The latter provision is a non obstante clause. The scope and effect of non obstante clauses have been elaborately discussed in the judgment of this Court reported as Syed Mushahid Shah and others Vs. Federal Invetigation Agency and others (2017 SCMR 1218) and in light of the ratio contained therein, while Section 3 of the Act requires agricultural income tax to be levied, assessed and collected, the non obstante clause of Section 3B thereof has been used by the legislature to give the latter provision an overriding effect over the former, dispensing with the requirement to levy, assess and collect agricultural income tax when such tax is being collected on the basis of the declared agricultural income for any assessment year in the return filed under the Ordinance as per Section 3B supra which is a self-contained and stand-alone provision. In other words, the application of Section 3B of the Act is predicated upon the agricultural income as declared by the assessee himself in his income tax C.A. No.815/2016 etc. -: 40 :- return under the Ordinance. Therefore in cases where the assessee has himself filed his income tax return in which he has declared his agricultural income, by virtue of Section 3B of the Act, the tax department is not required to levy and assess agricultural income tax and can recover the same by issuing recovery notices directly. Therefore we find that the argument of the learned counsel for the respondents that failure to pass an assessment order has deprived the respondents of the right to challenge such order under Section 7 of the Act is unfounded. 5. However, as mentioned above the application of Section 3B of the Act is based upon the agricultural income as declared by the assessee himself in his income tax return under the Ordinance. In this context, it is worthy to reiterate Section 3(1) of the Act which provides that subject to the other provisions of the Act, there shall be levied, assessed and collected each year a tax in respect of agricultural income of a tax year of an owner. Furthermore, according to Section 4(1) of the Act, agricultural income shall be assessed and collected by the Collector in such manner as may be prescribed. “Prescribed” has been defined in Section 2(g) of the Act to mean “prescribed by rules” and Section 11 of the Act states that “The Government may frame rules to carry out the purposes of this Act”. Pursuant to such power, the Rules were framed, Rule 14(1) whereof provides a certain procedure for the recovery of agricultural income tax under the Act. Therefore in the situation where an assessee has not filed his income tax return or has done so without disclosing his agricultural income, then the tax authorities are obliged to levy and assess and collect agricultural income tax (in spite of the presence of Section 3B of the Act) in terms of the aforementioned provisions of the Act and the Rules. C.A. No.815/2016 etc. -: 41 :- 5. In light of the foregoing, the petitions are converted into appeals and all the appeals are partly allowed and the impugned judgment(s) is set aside to the extent mentioned above. CHIEF JUSTICE Islamabad, the 8th of January, 2019 Approved for Reporting JUDGE JUDGE Azhar Malik

1 CA 825/15 etc. IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEAL NOS.825, 826, 1020 AND 1021 OF 2015 (Against judgment dated 12.5.2015 of the Federal Service Tribunal, Islamabad passed in Service Appeal No.983(R)CS/15, 984(R)CS/15, 442(P)CS/11) Dr. Ehsan-ul-Haq Khan (In CA 825/15) Dr. Maqbool Ahmed (In CA 826/15) Dr. Muhammad Ilyas (In CA 1020/15) Dr. Abdul Majid Khan (In CA 1021/15) … Appellants Versus Federation of Pakistan and others … Respondents (In all cases) For the appellants: Mr. Tariq Mehmood, Sr.ASC (In CA 825 & 826/15) Syed Rifaqat Hussain Shah, AOR (In CA 1020/15) Mr. Shoaib Shaheen, ASC (In CA 1021/15) Mr. Ishtiaq Ahmed Raja, ASC. For the respondents: Syed Nayab Hussain Gardezi, ASC No.1 and 2 Qari Abdul Rasheed, AOR. Date of hearing 03.11.2016 ORDER MAQBOOL BAQAR, J.-The respondents No.3, 4 (who is appellant in connected CA No.1021/15) and respondent No.5, were selected by Federal Public Service Commission (FPSC) as Veterinary Officer (BS-17) in the year 1990, and were so appointed the same year. The FPSC as per merit placed respondent No.3 and 4 senior to respondent No.5. However, in the seniority list, issued by the department on 15.10.1992, the above order of seniority was altered and respondent No.3 and 4 were placed junior to respondent No.5. It was on the basis of the said seniority list dated 15.10.1992, that in the year 1995, respondent No.5, was considered for promotion to BS- 2 CA 825/15 etc. 18,and was accordingly promoted by the departmental promotion committee. 2. In July 1999, respondent No.3, challenged the seniority of respondent No.5, before the Federal Service Tribunal, through Appeal bearing No.835(L) of 1999, and though he also sought to be promoted to BS-18 in place of respondent No.5,however, the learned Tribunal through its judgment dated 10.12.2002, directed the official respondents to determine the seniority of the parties strictly in accordance with the seniority assigned to them by the FPSC, and to place the respondent No.3 at the position, as was assigned to him by FPSC,but declined to pass any order regarding the promotion of respondent No.5. No appeal was preferred against the said judgment, the same thus attained finality. 3. On 06.2.2000, while the above appeal was pending,FPSC invited applications for the post of Quarantine Officer (BS-18). The appellant, and respondents No.3,4, and 6 (who is appellant in CA No.826 of 2015), applied for the post. The appellant and respondent No.6 passed the test, but respondents No.3 and 4 failed. The appellant and respondent No.6 were thus,on 13.12.2007, appointed as Quarantine Officer (BS-18). Having been appointed subsequent to respondent No.5, both were ranked junior to the said respondent. It may be crucial to note here that although, the appellant and respondent No.6 had been appointed as above, during the pendency of the aforesaid appeal No.835(L)/99,however they were not impleaded as respondents in the said proceedings nor was any relief thereby sought against them. 4. In compliance of the tribunal’s afore noted judgment dated 10.12.2002, and at the request of respondents No.3 and 4, the respondent department ultimately issued final seniority list 3 CA 825/15 etc. pertaining to BS-17 Officers on 17.8.2006, whereby respondents No.3 and 4, were placed at positions senior to respondent No.5. 5. In the year 2007, departmental promotion committee promoted respondent Nos. 3 and 4 to BS-18, whereupon they claimed seniority over respondent No.5 in BS-18 also. On 12.10.2010, a Provisional Seniority List was issued whereby respondent No.3 and 4 were placed as senior to respondent No.5,and to the appellant and respondent No.6 also. The appellant and the respondent No.6,challenged the said list before the learned Lahore High Court. The High Court through its judgment dated 23.11.2010, directed the department to issue the seniority list afresh after hearing the parties. In pursuance of which order a seniority list dated 6.9.2011,placing the appellant and respondent No.6 senior to respondent No.3 and 4,and keeping them all senior to respondent No.5 was issued. Such arrangement was challenged by respondent No.5. However, his objection was rejected and the position maintained. The respondent No.5 thus approached the Federal Service Tribunal, but the tribunal suspended the proceedings on the ground that similar issue was sub- judice before the High Court of Sindh, where respondents No.3 and 4 had challenged the aforesaid seniority list through a constitution petition. The said petition, was through judgment dated 08.3.2013,allowed by the High Court directing that fresh seniority list raking respondent Nos.3 and 4 senior to respondent No.5 as well as the appellant and respondent No.6 be issued. 6. The suspension of proceedings in the appeal before the Tribunal, was challenged by respondent No.5 before this Court through Civil Petition bearing CPLA No.955 of 2013, whereas the judgment dated 08.3.2013, was challenged by the appellant through CPLA No.705 of 2013. Both the petitions for leave to appeal were,by 4 CA 825/15 etc. consent,converted into appeals and allowed through order dated 28.6.2013, whereby the impugned judgment of the learned High Court was set-aside with direction that the petition filed by respondent Nos.3 and 4 be remitted to the Services Tribunal and be treated by the Tribunal as a service appeal, and the same and so also respondent No.5’s appeal pending before the Tribunal be decided expeditiously. 7. It was in terms of the impugned judgment that the above three appeals were disposed of by the learned Tribunal whereby, although the Tribunal declined to backtrack the promotion of respondent No.5, yet held the respondent Nos.3 and 4 to be senior to respondent No.5. The Tribunal further held that since respondent No.3 was, as per the merit list assigned by FPSC, senior to respondent No.5 and thus deserved to be promoted in place of the latter,the said respondent should be granted promotion by creating a superannuery post so that he may be entitled to the benefits of promotion from the date respondent No.5 was promoted. 8. We have heard the learned counsel for the parties and perused the record of the case. 9. Admittedly, the seniority list dated 15.10.1992, whereby the seniority assigned by FPSC to respondent No.3, 4 and 5 was altered by ranking respondent No.5 senior to respondent Nos.3 and 4, was upon circulation, duly signed by respondent Nos.3 and 4 without any protest. It was on the basis of the said seniority list that respondent No.5 was considered for promotion and was thus promoted to BS-18 in the year 1996. It was only after such promotion and in fact about three years thereafter that respondent No.3 filed an appeal before the Tribunal in July 1999 whereby he challenged the seniority assigned to respondent No.5 through the aforesaid seniority 5 CA 825/15 etc. list dated 15.10.1992, and also challenged his promotion to BS-18. However, the Tribunal through its judgment dated 10.12.2002 though directed the official respondents to rectify the seniority list but declined to pass any order regarding the promotion of respondent No.5 for lack of jurisdiction. The respondent No.3 felt content with the order and did not pursue his further relief regarding the said promotion. Even respondent No.4 who too had filed an appeal before the Tribunal, being appeal No.786 of 1999 in this regard, in view of the aforesaid judgment of the Tribunal, did not press his appeal. As noted earlier also, although it was during the pendency of respondent No.3’s appeal that the appellant and respondent No.6 were directly inducted in BS-18, however, neither were they impleaded in the appeal nor was any relief sought against them by respondent No.3. It is also crucial to note that in the examination held for the post to which appellant and respondent No.6 have been appointed, the respondent No.3 and 4 also participated but failed. The respondent Nos.3 and 4 never challenged the appointment of the appellant and respondent No.6 and it was atleast about seven years of the said appointment, that respondent No.3 and 4 sought seniority over appellant and respondent No.6 also, which in the facts and circumstances of the case they were/are not entitled to as appellant and respondent No.6 were appointed in BS-18 about seven years prior to the promotion of respondent Nos.3 and 4 in the said cadre, and had in fact failed in their attempt for their appointment along with the appellant and respondent No.6. 10. It may be recalled that the respondent Nos.3 and 4 signed the seniority list dated 15.10.1992 without any protest, and it was, (as can be read from the memo of appeal bearing No.835(L)/1999, filed by respondent No.3 before the Tribunal), as late 6 CA 825/15 etc. as on 20.6.1996 that representation against the aforesaid seniority list was made by the said respondent, more than three years after the date of the seniority listdated 15.10.1992, and thus it was on the basis of the said seniority list, that respondent No.5 was considered for promotion and was promoted to BS-18 vide letter dated 17.9.1996. Though through the judgment dated 10.10.2002, the Tribunal directed the department to revive the seniority of the parties as was assigned by the FPSC, but declined to pass any order with regard to the promotion of respondent No.3 from the date the respondent No.5 was promoted. No appeal was filed against the said judgment and thus the promotion of respondent No.5 to BS-18 prior to respondent Nos.3 and 4, remained intact, and in the meanwhile the appellant and respondent No.6 were, in the year 2000 selected by the FPSC for the post of Quarantine Officer (BS-18) and were so appointed accordingly. It was only in December 2007 that the respondent Nos.3 and 4 were promoted to BS-18. Indeed in terms of proviso (3) of Rule 3 of the Civil Servants (Seniority) Rules, 1993, respondent Nos.3 and 4, being senior to respondent No.5, were, upon promotion to BS-18, entitled to their original seniority but having remained indolent in the matter and not having challenged the change in the seniority list for more than three years as noted above, and further having remained satisfied with the judgment of the Tribunal and by not challenging the same, has contributed to the creation of an anomalous situation, where, in the event they are now ranked senior to respondent No.5 in BS-18,the appellant and respondent No.6, who having been appointed in BS-18 more than three years later than the promotion of respondent No.5, are certainly junior to the said respondents, and are senior to respondent Nos.3 and 4 by virtue of the latter’s promotion in BS-18 subsequent to their 7 CA 825/15 etc. appointment, shall be ranked junior to respondent No.3 and 4 which would be wholly unfair and unjust, and certainly contrary to the provision of sub-section (4) of Section 8 of the Civil Servants Act, 1973, which prescribes that seniority in a post, service of cadre, to which a civil servant is promoted shall take effect from the date of regular appointment to that post. Furthermore, the Tribunal’s judgment dated 10.12.2002, whereby it declined relief of promotion to respondent No.3 from the date the respondent No.5 was promoted, operates as res-judicata in respect of the said issue, and no such relief could have subsequently been granted, as done through the impugned judgment. In any event, as noted earlier, since although it was during the pendency of appeal No.835(L)/1999, that the appellant and respondent No.6 were appointed in BS-18, but respondent No.3 neither joined them in the appeal, nor sought any relief against them and therefore they cannot now seek to be ranked senior to them through any means. More so, when, as noted earlier, the said two respondents had participated in the selection process along with the appellant and respondent No.6, but had failed. 11. In view of the foregoing, we would disposeof the captioned appeals by directing that the seniority of the appellant and respondents Nos.3,4, 5 and 6 be assigned in the order of their promotions/appointments in BPS-18. Judge Judge Judge Announced in open Court on ___________ At Islamabad Judge 8 CA 825/15 etc. ‘NOT APPROVED FOR REPORTING’ (Aamir Sh.)

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CIVIL PETITION NO.826 OF 2016 (On appeal from the judgment dated 01.02.2016 passed by the Islamabad High Court, Islamabad in ICA No.249 of 2015 Asjad Javed @ Javed Akhtar …Petitioner VERSUS Federation of Pakistan thr. Secretary Interior, Islamabad and others. …Respondents For the Petitioner Sardar Muhammad Latif Khan Khosa, Sr.ASC. Ch. Akhtar Ali, AOR. For the Respondents: Mr. Sohail Mehmood, DAG. Mr. M.S. Khattak, AOR (R.1-2) Mr. Razzaq A. Mirza, Addl. AG Pb. (R-4) Date of hearing 18.04.2017 O R D E R MAZHAR ALAM KHAN MIANKHEL, J.- This petition for leave to appeal has arisen out of judgment dated 01.02.2016 of the Islamabad High Court, Islamabad whereby the Intra Court Appeal of the respondent was allowed by the learned Division Bench in the following manner: “In view of the above, we hold that the petition filed by the Respondent No.1 was not maintainable under Article 199 of the Constitution. We, therefore, allow the instant appeal and set-aside the impugned order. In order to claim any entitlement under Section 12 or any grievance relating to section 9(4) of the Ordinance, the Respondent No.1 shall be at liberty to approach the Competent Authority as defined C.P.826/2016 2 in clause (C) of section 2 of the Ordinance. We expect that if the respondent No.1 makes a representation to the Competent Authority the later shall consider the same, and thereafter proceed in accordance with the law.” 2. Learned counsel for the petitioner contended that the petitioner being a convict of the Crown Court in United Kingdom was entitled to be released as he has served out much of his corporal sentence of imprisonment by extending the remissions under section 12 of the Transfer of Offenders Ordinance, 2002 (XXXVII of 2002). He further argued that the High Court has fallen into an error of law by allowing the Intra Court Appeal of respondent in this behalf. 3. Learned Deputy Attorney General while supporting the judgment of the learned Division Bench of the High Court submitted that writ petition of the petitioner to seek remissions in his sentence of imprisonment was not maintainable and was rightly dismissed by the learned Division Bench of the High Court. He further argued that the petitioner is also entitled for the remissions under the relevant law in this behalf but for that purpose he was supposed to approach the concerned authority as was asked by the High Court. 4. Learned counsel for the parties were heard and the record of the case was perused. Perusal of the record would reveal that petitioner was arrested in United Kingdom on 23.12.2003 under the offence of conspiracy to supply drugs (196 kilogram of the powder containing Cocaine). He was tried and convicted by the Crown Court of United Kingdom (U.K.) and thereby was sentenced to imprisonment for a period of twenty five years on 23.7.2004. After serving about 6 years and 28 days sentence in U.K. petitioner was transferred to Pakistan pursuant to an agreement entered into between Government of Islamic Republic of Pakistan and Government of United Kingdom of Great Britain for C.P.826/2016 3 transfer of prisoners in view of the transfer of Offenders Ordinance 2002 (XXXVI of 2002) and was admitted in Central Prison Karachi on 21.8.2010. Thereafter, he managed to get himself released with the collusion of Mr. Ali Muhammad Malik, Section Officer (Law), Government of Pakistan, Ministry of Interior, Islamabad, but was arrested again on the intervention of Government of United Kingdom of Great Britain. The petitioner-convict through Constitutional Petition had questioned his arrest and also sought his release from the prison which was partially allowed but the Division Bench of the High Court by allowing the I.C.A. set aside the impugned order passed in the Writ Petition. Hence instant petition. 5. Before we proceed further it would be worthwhile to reproduce the relevant provisions of Transfer of Offenders Ordinance, 2002 (XXXVII of 2002). 2. Definitions.—In this Ordinance, unless there is anything repugnant in the subject or context.- (a)……………………………….. (b)………………………………. (c) “Competent Authority” means the Secretary, Ministry of Interior and Narcotics Control (Interior Division) or any other person as the Competent Authority may be notified in official Gazette, authorize to exercise powers and perform functions, of the Competent Authority under this Ordinance; (d) ……………………………. .. .. AND “9. Inspector-General of Prisons to have the custody of an offender transferred to Pakistan.- (1)Every offender being transferred to Pakistan from any specified country, upon an order under Section 4 shall be formally handed over to the Inspector C.P.826/2016 4 nominated by the Competent Authority and the concerned Inspector-General of Prisons shall have the authority to keep such offender in custody in any place as may appear to him to be appropriate for giving effect to the sentence of imprisonment imposed on such offender in such specified country for the period of the sentence as if it were a sentence imposed by a Court in Pakistan. (2) The enforcement of the sentence of imprisonment imposed on any offender who is transferred to Pakistan under sub-section (1) shall be governed by the laws of Pakistan. (3) Notwithstanding anything contained in sub- section (2) the Competent Authority shall, unless otherwise specified in the agreement, be bound by the legal nature and duration of the sentence of imprisonment imposed on any offender transferred to Pakistan under sub-section (1). (4) Where the legal nature and duration of the sentence of imprisonment imposed on any offender transferred under sub-section (1), is incompatible with any law of Pakistan, it shall be lawful for a Court of competent jurisdiction in Pakistan to adopt such sentence to make it compatible with laws of Pakistan provided however that the sentence as adopted by such Court in Pakistan corresponds, as far as practicable, to the sentence imposed on such offender in the specified country from which such offender was transferred to Pakistan. AND 12. Remission and President’s powers to grant pardon.—(1) An offender who is transferred to Pakistan in terms of section 9 shall be subject to any remission of the sentence of imprisonment, imposed on him in the C.P.826/2016 5 specified country where he was convicted, to which he may have become entitled to on the date of his transfer in accordance with the laws relating to remission of a sentence in force in such specified country. 2. Nothing in this Ordinance shall be so construed as to limit or take away the power of the President to grant pardon or remission of sentence to any offender under Article 45 of the Constitution of the Islamic Republic of Pakistan or by any other authority under any law of Pakistan for the time being in force.” (Emphasis supplied) 6. Perusal of the above provisions of law regulating the Transfer of Offenders would reveal that the convict by competent Court of Law of specified country can be transferred to Pakistan pursuant to mutual agreement between the two countries and if the convict is transferred to Pakistan then he would be governed by the laws of Pakistan as if it was a sentence imposed by a Court in Pakistan and in case the sentence awarded to the convict is not compatible with the laws of Pakistan, a Court of competent jurisdiction in Pakistan can adopt such a sentence to make it compatible with the law of Pakistan. As far as pardon/remissions in the sentence of imprisonment awarded to an Offender is concerned, it can also be granted/extended to him under the Laws of Pakistan and he can also claim any remission of his sentence of imprisonment to which he became entitled to on the date of his transfer in accordance with law relating to the remissions of sentence in such specified country. When we asked the learned Senior ASC, is there anything in black and white to reflect that the offender had earned any remission during his imprisonment in U.K, he could not lay hand on any such order of the concerned authorities in U.K. We also asked the learned Senior ASC as to whether the offender was ever refused any remission, he had C.P.826/2016 6 earned, while serving his sentence of imprisonment in Pakistan but again he was unable to refer to any such refusal. Yes; the petitioner has to be dealt with under the law of the land to serve out his remaining sentence as provided in section 9(2) of the Transfer of Offenders Ordinance, 2002 (XXXVII of 2002) which also makes him entitled for grant of pardon or remission of sentence by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan or by any other authority under any law of Pakistan for the time being in force as provided in Section 12(2) of the Transfer of Offenders Ordinance, 2002 ( XXXVII of 2002) but for that purpose he has to approach the concerned authority as defined in the Law to ask for the relief. 7. For what have been discussed above we are of the considered view that the learned Division Bench of the High Court while handing down the impugned judgment has not committed any illegality or irregularity. Resultantly, this petition having no merits is hereby dismissed and the leave asked for is refused. 8. The above are the reasons for our short order of even date which reads as under:- “For the reasons to be recorded later, this petition being without merit is dismissed.” Judge Judge Judge Bench:-III Islamabad April 18, 2017 Approved for reporting (Saeed Aslam)

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 827 OF 2020 (On appeal against the judgment dated 04.03.2020 passed by the Peshawar High Court, Peshawar in Writ Petition No. 5281- P/2019) Government of KPK through Chief Secretary and others …Appellant(s) VERSUS Syed Sadiq Shah and others …Respondent(s) For the Appellant(s): Mr. Atif Ali Khan, Addl. A.G KP Mr. Amanatullah Qureshi, Deputy Secretary Finance, KPK For Respondents (1-10): Qazi Jawad Ehsanullah, ASC For the Respondent (11): Mr. Aftab Javed, Sr. Research Officer, PHC Date of Hearing: 04.03.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellant has called in question the vires of the impugned judgment dated 04.03.2020 passed by the Peshawar High Court, Peshawar, whereby the Writ Petition filed by the respondents was allowed and they were held entitled to ad-hoc relief allowance at the rate of 5% of the running basic pay. 2. Briefly stated the facts of the matter are that for the fiscal year 2019-20, the Federal Government in the annual budget had granted 10% ad-hoc relief allowance to the employees of Federal Government from BPS 1 to BPS 16, while 5% ad-hoc relief allowance was granted to the employees of BPS 17 to BPS 20. These allowances were given on running basic pay. The Government of Khyber Pakhtunkhwa while drawing analogy from Civil Appeal No. 827/2020 -: 2 :- the said grant announced increase in salaries vide notification dated 11.07.2019, however, it made a distinction that 5% ad-hoc relief allowance will be provided to employees of BPS 17 to BPS 19 but the same was not made available to those employees of the Provincial Government who were already drawing special allowances including Special Judicial Allowance, subject matter of issue in dispute. As the respondents being employees of BPS 17 to BPS 19 of Peshawar High Court were already drawing Special Judicial Allowance, therefore, they were denied the said 5% ad-hoc relief allowance. Being aggrieved by the notification, they challenged the impugned notification before the Peshawar High Court, Peshawar, by filing a Constitutional Petition on the ground that the notification in question is discriminatory in nature and is issued in defiance of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, hence, not sustainable in the eyes of law. During the proceedings before the High Court, it was hotly contested from both ends, however, the High Court accepted the Constitutional Petition vide impugned judgment dated 04.03.2020 mainly on the ground that the allowance in question has been extended to all similarly placed employees across the board, hence, refusal of the said allowance to the respondents cannot be said to have been made under reasonable classification based upon the principle of intelligible differentia, therefore, it is violative of Article 25 of the Constitution. The Government of KPK challenged the impugned judgment by filing Civil Petition wherein leave to appeal was granted by this Court vide order dated 22.09.2020. Hence, the instant appeal by leave of this Court. 3. Learned Additional Advocate General, KPK, inter alia, contended that the respondents are already getting special judicial allowance, which is already disproportionate to the employees of BPS 1 to 16 and when it is calculated along with basic salary, it becomes hefty; that the very purpose of the impugned notification was to compensate the other employees similarly placed in BPS 1- 16 to eliminate chances of disparity and as such there was reasonable classification based on intelligible differentia; that every Province has to grant financial benefits within their own financial resources, otherwise, if the impugned allowance is granted at random to each and every employee, it would create further Civil Appeal No. 827/2020 -: 3 :- discrimination resulting into financial burden upon the provincial government. He lastly contended that the impugned judgment is defective in law, hence, not sustainable in the eye of law and may be set at naught. 4. On the other hand, learned counsel for the respondent Nos. 1 – 10 defended the impugned judgment. The crux of arguments advanced was that pursuant to the impugned notification, the Government of KPK has divided the employees of one category into sub-categories, which is against the intent of law. He added that this disparity by dividing the employees of the same department into sub-classes is violative of the law laid down by this Court in I.A. Sherwani Vs. Government of Pakistan (1991 SCMR 1041) and Government of Punjab Vs. Mubarik Ali Khan (PLD 1993 SC 375). 5. We have heard learned counsel for the parties and have perused the record. 6. The questions involved in this appeal are three fold, (i) whether the classification in question was based on intelligible differentia and contrary to Article 25 of the Constitution of Islamic Republic of Pakistan, (ii) whether the executive authority can classify and sub-classify the employees only to the extent to grant certain extra benefits, (iii) whether the High Court while exercising the power of judicial review has the authority to interfere in policy matters of government. 7. Firstly, we will discuss first two questions as these two are interrelated and conjoined in a manner that these cannot be separated from each other. The crux of the issues also lies in understanding the term ‘intelligible differentia’, therefore, it would be in order to discuss as to what does the term “intelligible differentia” mean. The dictionary meaning of “intelligible” is well articulated or enunciated and loud enough to be heard, can be understood, whereas the word “differentia” means an attribute that distinguishes one entity from other, especially an attribute that distinguishes one species from others of the same genus. According to the book ‘Legal Terms & Phrases, 2013 Edition’, the word “intelligible differentia” means an attribute by which a species is distinguished from all other species of the same genus, or, a distinguishing mark. In literal words, the expression “intelligible Civil Appeal No. 827/2020 -: 4 :- differentia” means difference capable of being understood, a factor that distinguishes a class from another which is capable of being understood. In the case of Dr. Mobashir Hassan Vs. Federation of Pakistan (PLD 2010 SC 265), this Court defined “intelligible differentia” in the following terms:- “As far as `intelligible differentia' is concerned, it distinguishes persons or things from the other persons or things, who have been left out. The Indian Supreme Court, while relying upon the statement of Professor Willis in Charanjit Lal v. Union of India (AIR 1951 SC 41), observed that "any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest u upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed". Same principle has been highlighted in Shazia Batool v. Government of Balochistan (2007 SCMR 410). 59. Thus, keeping in view the above principles and the definition of classification "intelligible differentia" means, in the case of the law differentiating between two sets of the people or objects, all such differentiations should be easily understood as logical and lucid and it should not be artificial or contrived.” 8. Undeniably equality is one of the magnificent cornerstones of a society, which has been followed in each and every system to run the state, however, a special emphasis has been laid down in a democratic state. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, guarantees to every person the right to equality before the law and the equal protection of the laws. The expression “equal before law” is a declaration of equality of all persons irrespective of gender, race, religion, colour, caste, creed, status and language etc, implying thereby the absence of any privilege in favour of any individual. The guiding principle of this Article is that all persons and things similarly circumstanced shall be treated alike both in respect of privileges conferred and liabilities imposed. Equality before law means that amongst equals should be equal and equally administered and that like should be treated alike. Hence what it forbids is discrimination between persons who are substantially in similar circumstances or conditions. However, this Article does not forbid different treatment of un-equals. The rule is rather that alike should be treated equally and that unlike should Civil Appeal No. 827/2020 -: 5 :- be treated differently. As a matter of fact all persons are not alike or equal in all respects. Application of the same laws or yardstick uniformly to all of them will, therefore, be inconsistent with the principal of equality. To avoid that situation laws must distinguish between those who are equals and to whom they must apply and those who are different and to whom they should not apply. In fact identical treatment in unequal circumstances would amount to inequality. So a reasonable classification or sub-classification is only not permitted but is necessary if society is to progress. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the authority. It is now well established law that persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference. Article 25 forbids class legislation but it does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The classification however must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation. The principle of equality does not mean that every law, policy matter, notification, administrative or executive order etc must have universal application to all the persons who by nature, attainment or circumstances are not in the same position. The varying needs of different classes of persons require different treatment. In order to pass the test for permissible classification two conditions must be fulfilled i.e. (i) the classification must be founded on an intelligible differentia which distinguishes persons or things those are grouped together from others left out of the group, (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved. However it must disclose that there must be a substantial basis for making the classification and there should be a nexus between the basis of classification and the object of action under consideration based upon justiciable reasonings. Through the impugned notification, the relief of 5% was denied to those employees of BPS-17 to BPS-19, who are already drawing special allowances in the name of Health Professional Allowance, Special Judicial Allowance, Scheduled Post Allowance, Technical Allowance, Prisons Allowance and Prosecution Allowance. Civil Appeal No. 827/2020 -: 6 :- The reason of this classification as furnished by the appellant was due to financial impediment as the employees from BPS-17 and above being officers are in receipt of more salary than those of the employees from BPS 1 to BPS 16, which in common parlance is called disproportionality in the salary of the employees. As narrated above, in order to pass the test for permissible classification two conditions must be fulfilled i.e. (i) the classification must be founded on an intelligible differentia, and (ii) the intelligible differentia must have a rational nexus with the object sought to be achieved. Articles 29 to 40 in Chapter 2 of the Constitution of Islamic Republic of Pakistan are the “Principles of Policy”. These principles of policy are the directive principles to achieve the cherished goal of a welfare state. Article 38(e) makes it mandatory for the Government that it shall “reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan;” In a way, it is the duty of the Government to remove the disproportionality in the salaries of various classes of employees who are in service of Pakistan. The impugned notification was impliedly in consonance with the spirit of the Constitution, therefore, the learned High Court ought to have refrained from interfering in it. To further strengthen what has been stated above, it would be in order to refer to the recent judgment of this Court in the case of House Building Finance Company Ltd. Vs. Muhammad Irfan Khan (2020 SCMR 98). In this case, the House Building Finance Company had granted financial relief to one group of employees while denied the relief to the other group of employees. The respondents in this case, who were deprived of the financial relief, went to High Court and succeeded in getting the relief. However, this Court while allowing the appeal of the department has held as under:- “To arrive at the conclusion as noted in para-12 as reproduced above, no rational basis has been identified as to how the 'Officers and Executive' cadre which does not enjoy a statutory protection of collective bargaining could be equated with the workmen cadre in service of HBFCL. We have also noted that Government of Pakistan in a recent fiscal year, 2019-2020 increased the salary from Grade-01 to Grade-16 employees and revision was ordered to the extent of 10% whereas for the Gazetted Officers of Grade-17 to Grade-20 the increase was only ordered to the extent of 05% and salary of BPS-21 and above was not increased. Even we have noted that no increase was considered in respect of the armed personnel on account of the financial crunch faced by the State of Pakistan. As such, financial Civil Appeal No. 827/2020 -: 7 :- exigency as has been expressed above, do empower the employer to consider different yardstick for revision in the salary of different categories of its employees. All employees cannot claim to be treated alike irrespective of their grades, domain and class. There is a clear distinction between the employees covered by the labour laws and other statutory dispensation vis-a-vis employees in 'Executive and Officers' cadre. This principle was so held in Sail Ex-Employees Association case (Supra). In a case reported Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad (1997 SCMR 1026) and Farman Ali v. State (1997 SCMR 1026 = 1997 PLC (C.S.) 903) it was held by this Court that grouping for good governance by the employer of its employees serving in BPS-01 to BPS-16 into one category and those serving in BPS-17 to BPS-22 to another category for the purpose of granting greater monetary benefit, cannot be challenged on ground of arbitrariness or unreasonable classification and as violative of Article 25 of the Constitution.” (Underlined to lay emphasis) 9. In Muhammad Shabbir Ahmed Nasir Vs. Secretary, Finance Division (1997 SCMR 1026), a five Member Bench of this Court has candidly held that classification on the basis of low paid or high paid employees placed in different grades, irrespective of functional similarity, is a reasonable classification and BPS 1-16 and BPS 17-22 can be grouped into two different classes. It would be advantageous to reproduce the relevant portion of the judgment, which reads as under:- “12. In the light of the rationale laid down by this Court in I.A. Sherwani's case (supra) the grouping by the Government of its employees serving in BPS 1 to 16 into one category, distinct from the category of those serving in BPS 17 to 22 for the purposes of granting greater monetary benefit to the former category could not be challenged on the grounds of arbitrariness or unreasonable classification. A glance on the old pay scales of employees serving in BPS 1 to 22 will show that there was substantial difference between the minimum and maximum amount of pay drawn by the employees serving in BPS 1 to 16 as compared to those serving in BPS 17 to 22. Therefore, if the Government, decided, while revising upward the pay scales of its employees in BPS 1 to 22, to extend more monetary benefit to the low-paid employees by putting them in a separate category, the classification did not suffer from any infirmity. In our view the categorization of the employees on the basis of low-paid and high-paid employees was a reasonable classification and did not suffer from any arbitrariness.” 10. With the passage of time, the scope of interpretation of statutes has been broadened especially with reference to interpretation of certain expressions of law while keeping in view the Civil Appeal No. 827/2020 -: 8 :- attributes of modern society in juxta position. Intelligible differentia is an exception to the basic principle of equality based upon the principle of natural justice in more refined manner to provide equality amongst the subjects of the society and while introducing certain legal expressions with an intent to bring the society close to equality eliminating the chances to face the atrocities of economical pressure which has squarely affected the society at large around the globe. Our country is not an exception rather is facing more financial constraints, therefore, the applicability of the said legal term seems to be in the interest of safe dispensation of justice. The said object has been achieved by the Government of KPK through impugned notification. Hence, the intelligible differentia existed between the two sets of employees and such differentia was logical and lucid and cannot be termed as artificial or arbitrary. 11. Now, we will advert to the third question i.e. whether the High Court under the garb of judicial review has the power to interfere in policy matters of government. The process of judicial scrutiny of the legislative acts on the touchstone of the Constitution is called "Judicial Review". The doctrine of judicial review is the enforcement of the rights assured and guaranteed under the Constitution through Constitutional remedies. It is one of the great assets of federalism, and is the protector of the fundamental rights. The fundamental object of judicial review is to exert a great moral force upon the legislature to keep it within the limits of the Constitution and the law and to save the people from the unreasonable executive actions. This Court in a number of cases has held that the Constitutional courts being guardian of the Constitution have the power to judicially review the executive actions and the conduct of the public authorities but the same should be on the touchstone of fairness, reasonableness and proportionality. It is a matter of fact that our constitution is based upon principle of trichotomy of powers. However, the power of judicial review is an added attribute of the judiciary. The Courts while exercising power of judicial review must not violate the right of any other organ of the state and remain within the prescribed limits as disclosed in the Constitution of Islamic Republic of Pakistan, 1973. Though the Constitution is based upon federal system of government but the Provinces are autonomous in many respects rather after 18th Civil Appeal No. 827/2020 -: 9 :- Amendment, the horizon of autonomy of the Provinces has been widened especially with reference to financial matters by way of abolishing the concurrent list to some extent. As each Province has its limited quota under the National Finance Commission Award and the Provinces are supposed to run its affairs within the prescribed financial limits, hence, the impugned notification can be safely termed as subject of the policy to compensate the employees getting disproportionate salary as compared to the respondents. In view of the facts and circumstances narrated above, we are of the considered view that the learned High Court has passed the judgment in disregard of the powers and the law, hence, the impugned notification is declared to be legal and rightly issued in accordance with law. 12. For what has been discussed above, this appeal is allowed and the impugned judgment of the Peshawar High Court, Peshawar, dated 04.03.2020 is set aside. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 4th of March, 2021 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MAQBOOL BAQAR CIVIL APPEALS NO.833 TO 835/2006 AND CIVIL REVIEW PETITION NO.117/2006 IN CIVIL PETITION NO.2535/2001 (Against the judgment dated 4.7.2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in RSA Nos.123, 102 and 122/1971 – On review of this Court’s order dated 18.5.2006 passed in C.P.No.2535/2001) 1. Jan Muhammad etc. Vs. Mst. Sakina Bibi etc. In CA 833/2006 2. Jan Muhammad etc. Vs. Mst. Sughran Begum etc. In CA 834/2006 3. Mst. Jiwani etc. Vs. Riazul Hassan etc. In CA 835/2006 4. Malang Khan (decd) through LRs Vs. Mst. Sughran Begum (decd) through LRs In CRP 117/2016 For the appellant(s): Ch. Mushtaq Ahmed Khan, Sr. ASC Mr. M. S. Khattak, AOR (In CAs 833 to 835/2006) Nemo (In CRP 117/2006) For the respondent(s): Ex-parte (In CA 833/2006) Nemo (For respondent No.1 in CA 834/2006) Nemo (For respondents 33, 34, 36, 43, in CA 835/2006) Ex-parte (For other respondents in CAs 834 & 835/2006) Not represented (In CRP 117/2006) Date of hearing: 03.01.2017 … ORDER MIAN SAQIB NISAR, CJ.- These appeals, with the leave of the Court, entail common facts and question of law. The matter has its genesis in pre-emption suits initiated by the predecessors-in- C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 2 :- interest of the respondents against the predecessor-in-interest of the appellants pre-empting the sale concluded vide sale deed executed on 23.7.1966 and registered by the registering authority on 27.6.1968. The suits were filed on 25.4.1968 and 30.7.1968 (note:- as mentioned in the consolidated judgment of the learned Trial Court). The appellants as vendees resisted the suit on the point of limitation claiming that the period of limitation would commence from the date of execution of the sale deed and not from its registration, thereby rendering the suits time-barred; they also challenged the superior right of pre- emption of the respondents-plaintiffs. After framing issues and recording evidence the learned Trial Court vide consolidated judgment and decree dated 17.7.1969 was pleased to decree both the suits. It held that they were within time for the starting point of limitation was the date of registration of the sale deed and not the date of its execution; the respondents’-plaintiffs’ superior right of pre- emption was categorically recognized. On appeal, this judgment and decree was reversed and the suits were dismissed on the ground that the two rival pre-emptors did not possess a superior right of pre- emption in respect of the suit property as against the appellants. Revision petitions by the respondents were accepted and the learned High Court vide impugned judgment categorically held that the period of limitation would start from the date of registration of the sale deeds rather than execution thereof; and that the plaintiffs had a superior right of pre-emption. Leave in these cases was granted vide order dated 18.5.2006 in the following terms:- “With a view to examining the contention as to whether sale of right to cultivate amounts to sale of land C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 3 :- amenable to pre-emption leave to appeal is granted. Meanwhile status quo as to possession be maintained.” 2. Learned counsel for the appellants argued that according to the provisions of Section 47 of the Registration Act, 1908 a sale deed would operate from the date of its execution and not registration. This point has already been determined in the judgment of this Court rendered in Civil Appeal No.540-L of 2009 titled Meraj Din and another Vs. Muhammad Sharif and anotaher in which it was held that the starting point of limitation shall be the date of registration of the sale deed and not the date of execution. The relevant part of the judgment reads as under:- “In those cases where possession has not been delivered and/or the sale deed has been executed but not registered as yet, obviously a pre-emptor would have no notice that sale had taken place, thereby enabling him to exercise his right. In those cases the first part of Article 10 of the Limitation Act would have no application, rather the case(s) would fall within the second part thereof beginning from the word OR “where the subject of the sale does not admit of physical possession, when the instrument of sale is registered.” It is instructive to remember that a document required to be registered can be presented to the registrar within four months from the date of its execution as per Section 23 of the Registration Act. Thus for example, if a document is executed on 1.1.2000 and is presented for registration on the last date of the four months allowed for the presentation thereof and it takes a further one month to be registered according to the law, in this manner about five months may be lost and yet the pre-emptor would have no notice of the sale; the right of the prospective pre-emptor to file a suit within a period of one year C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 4 :- cannot thus be curtailed by excluding this whole period from the calculation which is what would happen if we took the date of execution of the sale deed to be the starting point for purposes of limitation; further the provisions of Section 47 of the Registration Act cannot be read into the clear language of Article 10 of the Limitation Act which specifically mandates “when the instrument of sale is registered” meaning thereby that limitation begins to run from the date of the registration.” Be that as it may, this was not a point on which leave was granted. Learned counsel has not pressed the point on which leave was granted, rather he has conceded that cultivation rights can be sold and are therefore/thereafter pre-emptible. 3. Learned counsel for the appellants has instead raised an absolutely new point today, stating that, according to the notification No.196-B dated 28.2.1944 issued by the Government of Punjab (the notification) no right of pre-emption shall exist in any local area to which the Colonization of Government Lands (Punjab) Act, 1912 (the Colonization Act) has been or may thereafter be made applicable, therefore, the land in question, falling within the colonization area being a part of the Bahawalpur District, the right of pre-emption cannot be exercised by the respondents as per the provisions of Section 8(2) of the Pre-emption Act, 1913 (the Pre-emption Act). He relied upon the judgments reported as Muhammahd Siddique and others Vs. Muhammad28 Sharif and others (2012 SCMR 1387) and Abdul Majeed through L.Rs. and others Vs. Sher Din through L.Rs. (2015 SCMR 620). When confronted with the fact that leave was never granted on this point, learned counsel argued that this being a pure question of law, the Court could always decide the matter on the C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 5 :- basis thereof regardless of whether or not leave had been granted on that point. This question lies at the root of the case the Court confronts today. To decide whether a new point can be raised by the appellants’ counsel today which was neither agitated at any stage of the proceedings nor a ground set out in the memo of appeal and for which leave was not granted we feel it is expedient to evaluate the law on the subject. In this context Order XIX Rule 5 of the Supreme Court Rules, 1980 (the Rules) prescribes “The appellant shall not, without the leave of the Court, rely at the hearing on any grounds not specified in his petition or appeal and the concise statement”. In the judgment reported as Abdul Hameed and others Vs. Muzamil Haq and others (2005 SCMR 895) this Court held:- “18. Coming to the objection of respondent's learned counsel that since question of waiver was not raised before the High Court and it has not been specifically urged in the memo. of appeal before this Court, therefore, the appellants' learned counsel is estopped to raise this point we feel that this objection in the facts and circumstances of this case has no force firstly because before the High Court it was the respondent No.1 who had filed the appeal and there was no occasion for the appellants to raise this issue and since the suit had been dismissed by the first Court of appeal only on Issue No.1. The High Court were touched this issue and reversed the finding on Issue No.4. Secondly, in terms of Order XIX, rule 5 of the Supreme Court Rules, 1980 this Court has discretion to allow an appellant to raise any ground not specified in the memo. of appeal. The said Rule reads as under:-- "(5) The appellant shall not without the leave of the Court, rely at the hearing on any grounds not C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 6 :- specified in his petition of appeal and the concise statement." The same question (whether a new point may be raised before the Apex Court) was considered in the case reported as Mst. Shamim Akhtar Vs. Syed Alam Hussain and others (1975 SCMR 16) and this Court after noting the practice of the Privy Council and of this Court (note:- the Rules were not in vogue at that time) came to the following conclusion:- “It is no doubt true that the general practice of this Court following the Privy Council practice, has been as suggested by the learned counsel; but this is not an inflexible rule, and there may well be cases in which this Court, in the interest of justice, may be constrained to depart from this practice, although such cases will, no doubt, be extremely rare. This Court has undoubtedly the power, under the Constitution itself, to do complete justice and, therefore, it has never tied itself down in such a manner as to deprive itself of this power… It would thus appear that it is not correct that this Court has never departed from this rule of practice. It cannot, therefore, be maintained that any and every departure from this rule no doubt a salutory rule-would result in the exercise of a jurisdiction not possessed by the Court and thereby constitute an error apparent on the face of the record. The jurisdiction is there; but whether, and in what circumstances, the Court will exercise it, is an entirely different matter.” (Emphasis supplied) In Dr. Zulfiqar Haider Vs. Riaz Mahmud (PLD 1992 SC 238) this Court came to the following conclusion:- C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 7 :- “It is true that a pure question of law which does not involve an inquiry into facts, even if it is raised for the first time, can be considered by this Court. But this concession is subject to the condition that leave to raise and argue such a point must be granted by this Court. In other words, even a pure question of law, which was not raised earlier, can be canvassed only by the leave of this Court.” (Emphasis supplied) In Gatron (Industries) Limited Vs. Government of Pakistan and others (1999 SCMR 1072) and Caltex Oil (Pakistan) Ltd. Vs. Collector, Central Excise and Sales Tax and others (2006 SCMR 1519), the same principle has been reaffirmed adding that it is the duty of the Court to apply the correct law to meet the ends of justice. Furthermore, in The State through Advocate-General, Sindh High Court of Karachi Vs. Raja Abdul Rehman (2005 SCMR 1544), this Court held that:- “10. After going through the aforesaid cited cases, the conclusion or the inference which is to be drawn is that the arguments at the appellate stage would in normal and in ordinary course governed by the leave granting order and any question or point not referred to in the leave granting order for consideration would not be permitted to be agitated and considered at the stage of final arguments of the appeal. However, this Court in the case of Khushdil and 3 others v. The State PLD 1981 SC 582 pronounced that this Court in exercise of its power to do complete justice would be competent to examine points other than those on which leave was granted. In view of the pronouncement of this Court it is to be noted that there is no rigid on the established rule relating to the power of this Court to allow raising of a question or point on which leave to appeal was not C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 8 :- granted and normally or in ordinary course it would not permit raising of point/question not mentioned in the leave granting order but in exceptional cases for doing complete justice, it would permit or allow the appellant to agitate a point/question not mentioned in the leave granting order.” We are clear in our minds that the appellants do not have a right to raise an absolutely new plea before this Court and seek a decision on the basis thereof. Nor can such plea be allowed to be raised and the case decided accordingly as a matter of course or right on the pretext of doing complete justice. The leave of this Court in this context is mandatory but the considerations for the purposes of granting leave to raise a new point depend upon the facts and circumstances of each case. This Court has the discretion to grant leave at the time of hearing an appeal in which leave has been granted on a different point(s) and to consider such point of law, including for instance the question of inherent jurisdiction, undoubtedly being a pure question of law; even if not earlier taken up in any proceedings including those before the Supreme Court. This could very well apply to the point of limitation too where such plea was not dependent upon any factual determination. However, those cases which require a factual foundation and adjudication for the purposes of settling a legal issue cannot be said to be pure questions of law and the same cannot be allowed to be raised before this Court for the first time. In the context of the rule supra we have examined the point raised by the learned counsel and the notification and the judgments upon which reliance has been placed; suffice it to say that in order to attract the said notification the foundational question is whether the property in issue is situated in a colony area or not. This foundational fact was C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 9 :- required to be pleaded and determined if the appellants wanted to defeat the pre-emption right of the respondents on this ground, but from the present record it is clear that nothing of the sort was ever done or attempted to be done. From the learned Trial Court up till this Court no opportunity was availed, nor any exercise carried out to seek any amendment in the written statement to join an issue in this context, nor was this point raised in the memo of appeal etc. Therefore, the argument that the plea now sought to be raised is a pure question of law is absolutely unfounded and misconceived. As regards the reliance placed upon Abdul Majeed’s case (supra), it may be mentioned that the defendants of that case (the vendees) in their written statement took up the plea that the property in question was situate in a colony area and, therefore, the plaintiffs did not have the right of pre-emption. Accordingly an issue was framed in this regard as is clear from the judgment of this Court when it mentions “The said suit was resisted. On the divergent pleadings of the parties, issues were framed, including Issue No.1 as to whether the land in dispute was not pre-emptable (sic)…” Furthermore, this Court gave a factual finding in that case based upon the consideration of evidence, particularly the statement of DW- 1, the Patwari that “…Chak No.21-A/NP was carved out from three existing basties and is within "the Colony Area", In the Revenue Record, the owner was identified as "Sarkar Dault Madar" as is evident from Exh.D-10”. However, in the instant cases, this factual aspect was never addressed in the defence of the appellants and therefore the notification and Section 8(2) of the Pre-emption Act are of no avail to them. The point now raised is not a pure question of law and, therefore, we decline to grant leave to the appellants to raise this plea at this stage of the proceedings before this Court for the first time. These appeals are C.As. No.833 to 835/2006 & C.R.P.No.117/2006 in C.P.No.2535/2001 -: 10 :- dismissed. As regards Civil Review Petition No.117/2006, we do not find that a case for review has been made out and it is accordingly dismissed. CHIEF JUSTICE JUDGE Announced in open Court on 14.2.2017 at Islamabad Approved For Reporting Waqas Naseer/* CHIEF JUSTICE

SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Guizar Ahmed, CJ Mr. Justice Muhammad Ali Ma.zhar 2) 'CIVIL APPEAL NO.835 OF 2021 [Against the judgment dated 14.11.2017, passed by the Khyber Pakhtunkhwa Service Tribunal, Peshawar in Appeal No.34 of 2014] Government of Khyber Pakhtunkhwa through Secretary Health, Civil Secretariat, Peshawar and others. . . .Appellant(s) Versus Dr. Liaqat Ali and others. Respondent(s) For the Appellant(s) Mian Shafaqat Jan, Additional Advocate General, KP Zia Ullah, Deputy Secretary, Health Department, KP For Respondent No.1 Sh. Riazul Haque, ASC Date of Hearing 06.01.2022 ORDER GULZAR AHMED, CJ.- The Respondent No.1 (the respondent) was allowed deputation to Saudi Arabia in September, 2006 for two years, which was subsequently extended upto 20.09.2010. The respondent, on expiry of this extended period, again applied for further extension, which was refused. The respondent did not report for duty. Consequently, disciplinary proceedings were initiated against him and ultimately vide order dated 17.03.2012, he was removed from service. After filing of departmental appeal, the respondent filed / service appeal before the Khyber Pakhtunkhwa Service Tribunal, Peshawar (the Tribunal). The Tribunal in the impugned judgment dated 14.11.2017, noted as a fact that L 'I I S I CA.835 of 2021 before imposition of penalty of removal from service on the respondent all codal formalities were observed, however, considering 24 years' service to his credit, the Tribunal found that the respondent is entitled to grant of retirement benefits and imposition of penalty of removal from service is harsh. The Tribunal proceeded to modify the penalty of removal from service into that of compulsory retirement. 2. Learned Additional Advocate General, KP contends that the respondent did not report for duty at all and the show cause notice issued to him was also not replied by him. The enquiry was conducted in which too he did not participate. The / respondent by his own conduct has admitted of wilfully remaining absent from duty and continued his employment in Saudi Arabia despite the period allowed by the appellants stood terminated on 20.09.2010, 3. We note that imposition of penalty is in the domain of the competent authority, for that, the competent authority is fully empowered to impose such penalty upon its employee on finding him guilty of commission of misconduct as it considers appropriate and normally the Court will not interfere in such exercise of power by the competent authority. The conversion of penalty imposed by the competent authority will require a strong justifiable reason beyond what is stated by the Tribunal in the impugned judgment. The Court is not empowered to I arbitrarily and whimsically find the penalty imposed by the / competent authority to be harsh merely, on the ground that the -2 respondent has put in 24 years' of service and is entitled to U CA.835 of 2021 grant of retirement benefits. The quantum of punishment has to be left with the competent authority and the Court cannot without any strong reason interfere with the same. The interference in the matter of punishment will be without jurisdiction when strong reasons are not assigned to support the same. The reference in this regard is made to the cases of Government of the Pun jab through Chief Secretary vs. Muhammad Arshad and 2 others (2020 SCMR 1962), Deputy / Postmaster General, Central Punjab Lahore and another vs. Habib Ahmed (2021 SCMR 584), Director General Federal Directorate and another vs. Tanveer Muhammad and another (2021 SCMR 345) and Divisional Superintendent, Postal Services, Faisalabad and others vs. Muhammad Zafarullah (2021 SCMR 400). 4. We, therefore, find that the Tribunal was not / justified in reducing the penalty imposed by the competent authority of removal from service on the respondent into compulsory retirement, as the same is not supportable in law. Consequently, while allowing the appeal, the impugned judgment to the extent of modifying the penalty of removal from service into compulsory retirement is set aside and the penalty of removal from service is restored. I -3 Bench-I Islamabad 06.0 1.2022 Rabba APPROVED FOR REPORTING' ni/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Iftikhar Muhammad Chaudhry, CJ Mr. Justice Jawwad S. Khawaja Mr. Justice Ijaz Ahmed Chaudhry Civil Appeals Nos. 83 and 84 of 2006. (Against the judgment dated 16.3.2005 passed by the High Court of Sindh, Karachi in Const. P. D-739 of 1993 and D-754 of 1996) Fauji Fertilizer Company Ltd. Thr. its Factory Manager … Appellants VERSUS National Industrial Relations Commission thr. Chairman etc. … Respondents For the appellants: Mr. Khalid Anwar, Sr. ASC Raja Abdul Ghafoor, AOR assisted by Barrister Muhammad Anas Makhdoom Adv. For the respondents: Mr. Abid Hassan Minto, Sr. ASC Ch. Akhtar Ali, AOR Respondent No.2 in CA 83/06) Respondent No.3-37, 39-40, 42-114 in CA 84/06 Other respondents: Ex-parte. Date of hearing : 16.5.2013. ***** JUDGMENT Iftikhar Muhammad Chaudhry, CJ._ These appeals by the leave of the Court have been filed against the common judgment dated 16.03.2005 passed by the High Court of Sindh at Karachi in Constitution Petitions No. D-739/1993 and D-754/1996. CAs 83-84/06 2 2. The facts necessary for disposal of the listed appeals are that appellant in the titled appeals, namely, Fauji Fertilizer Company Ltd. (successor of M/s Pak Saudi Fertilizer Company Ltd.) [hereinafter referred to as “the company”], is a company incorporated under the Companies Ordinance, 1984, and is engaged in the manufacturing and marketing of Urea Fertilizer. The company used to enter into contracts with separate independent contractors for the execution of work of bagging urea and connected activities like insertion, filling and stitching of bags as well as their loading. For separate periods M/s Shahbaz & Co.; M/s M.B.K. Jalbani (Pvt) Ltd.; M/s Workman Associates; M/s Mohammad Hussain & Co.; Abdul Majeed & Co. and M/s Technical Associates were engaged by the company. As per terms and conditions of the contracts, the contractors were to engage the workers and provide their services to the company. The workers’ wages were paid by the contractors. However, the contractors were remunerated on the basis of volume of urea handled. During the period from 1984 to 1986, when M/s Shahbaz & Co. was the bagging and loading contractor, the employees of the contractor formed a union under the name and style of ‘Pak Saudi Fertilizers Ltd. Bagging and Loading Contractors Mazdoor Union’ [hereinafter referred to as “contractor’s union”], which was also declared a CBA by the Registrar of Trade Unions, Hyderabad. Previously, the union had used the office of ‘Pak Saudi Fertilizer Employees’ Union’ [hereinafter referred to as “employees’ union”] for affecting the settlement with regard to the terms and conditions of services of workmen employed by M/s Shahbaz & Co. After the registration of contractor’s union as CBA, the contractor entered into fresh settlement with it on 09.05.1985. In the CAs 83-84/06 3 year 1989, the contractor’s union served the charter of demand on the management of the company and M/s M.B.K. Jalbani, the then contractor. However, the company approached the National Industrial Relations Commission [NIRC] by means of proceedings under section 22A(8)(g) of the Industrial Relations Ordinance, 1969 [hereinafter referred to as “IRO 1969”] along with an application under regulation 32(2C) of the National Industrial Relations Commission (Procedure & Functions) Regulations, 1973 [hereinafter referred to as “the regulation 1973”]. Thereafter, a settlement was affected between M/s M.B.K. Jalbani and the contractor’s union and the grievances of workers were redressed. Later on, M/s Workman Associates, the then contractor, also entered in to a settlement with the contractor’s union vide memorandum of settlement dated 07.10.1991. On 08.03.1992, the contract was awarded to M/s Workman & Co., which entered in to a settlement with the contractor’s union on 09.03.1992. On 15.03.1992, the contractor’s union filed proceedings before NIRC against M/s Workman & Co as well as the company, alleging therein that the company was not justified in awarding the contract to one Muhammad Aslam, the Managing Partner of M/s Workman Associates; that the lock-out affected in relation to 112 workers (Respondents No. 3 to 114 in Constitution Petition No. D-739/1993) employed by the Contractor were illegal; and that settlement dated 9.3.1992, whereby the wages/ benefits of the workers were reduced, was an attempt to circumvent the earlier settlement dated 7.10.1991, and was as such illegal. The learned Member NIRC, Karachi vide the order dated 15.03.1992, inter alia, directed that the payments of wages continued to be made as per settlements dated 7.10.1991 and to lift the lock-out CAs 83-84/06 4 of workers, if any. Initially, the said petition was filed against the company and M/s Workman Associates, however, M/s Workman and Company was also impleaded by means of an application under Order 1 Rule 10, CPC. In their reply, the company denied the existence of a relationship of employer and employee between the company and the members of the contractor’s union on the ground that the members of the contractor’s union were the employee of the contractor and that there was no lock-out. Ultimately the Member NIRC, Karachi vide order dated 10.04.1992 concluded that the management of the company was not responsible for making payments of wages to the workers/members of the contractor’s union but rather, M/s Workman and Co. were liable to make such payments in accordance with settlement dated 09.03.1992 and that, prima facie, there was no proof of coercion in execution of the said settlement. Being aggrieved from the said order, the contractor’s union filed an appeal before the full bench of NIRC, Islamabad, wherein the company raised an objection with regards to the locus standi of the union to file the appeal, being the CBA in the establishment of M/s Shahbaz and Co.; it also objected that there was no relationship of employer and employee between the members of contractor’s union and the company; and that the order appealed against was an interim order. It was further alleged that as per the contract executed between the company and the contractors, the payment to the contractors would be made on the basis of per ton of bagging and loading of the urea and connected activities. However, the workers started resorting to slow down tactics in work due to which the contractor was not in a position to make fixed payments of wages to the workers, who also filed a case under Section 22A(8)(g) of CAs 83-84/06 5 IRO 1969 before the NIRC Bench, Karachi with a prayer to direct the members of the contractor’s union to call off their slowdown in work and restore normalcy to the production process. The Commission, vide order dated 30.04.1992, directed the workers to call off their slowdown. Against the said order the contractor’s union filed an appeal before the full bench of NIRC, wherein, M/s Workman and Co. claimed that the workers were in fact the employees of the company and not of the contractor. The learned full bench of NIRC, vide order dated 03.03.1993, declared that the members of the contractor’s union were employees of the company and directed the management of the company to make payments to the workers. The case was, however, remanded to the single bench of NIRC at Karachi for determining the issue pertaining to the alleged lock-out of 112 workers. The company being aggrieved and dissatisfied with the said judgment challenged the same before the High Court of Sindh at Karachi by means of Constitution Petition No. D-739 of 1993 wherein the learned High Court, vide order dated 18.03.1993, passed a status quo order. 3. In the mean time, members of the contractor’s union (respondents No. 3 to 114) filed separate applications under section 25A of the IRO 1969 before the Labour Court VII, Sukkur, which were registered as applications No. 36/92 to 147/92. The grievance of the applicants/workers was that they were working in the factory premises of the company, involved in the manufacturing of urea and that their job was to clean the machines and perform other manual work, which was of a permanent nature, and that the entire work was done by 362 workers, who were frisked/searched by the chowkidaars of the company, as such, for all intents and purposes they were the CAs 83-84/06 6 employees of the company. It was further alleged by the workers that they were locked-out and that some of the office bearers of the union were kidnapped and their signatures were forcibly obtained on the contract/settlement dated 09.03.1992. The Labour Court, after recording of evidence and hearing the parties, allowed all the grievance applications vide its decision dated 24.04.1996. The company being aggrieved of the said order, preferred appeals under section 37(3) of IRO 1969 before the Sindh Labour Appellate Tribunal, Karachi, which were dismissed in limine by means of a common order, dated 16.05.1996. The company assailed the said order before the High Court of Sindh, Karachi, by means of Constitution Petition No.D- 754/1996. Both the petitions, namely, Constitution Petition No.D- 754/1996 and Constitution Petition No.D-739/1993 were heard together by the learned High Court and by means of impugned judgment dated 16.03.2005, the CP No.D-754/1996 was dismissed and accordingly the CP No.D-739/1993 stood dismissed as having become infructuous. The company assailed the said judgment before this Court by means of Civil Petitions for leave to appeal No.2103 and 2104 of 2005 which were converted into Civil Appeals No. 83 and 84 of 2006 as leave was granted on 26.01.2006. 4. Mr. Khalid Anwar, learned Sr. ASC submitted on behalf of M/s Fauji Fertilizer Company Ltd. that the NIRC at the request of respondent union, vide interim order dated 14.03.1992, directed the company to continue paying the wages to the workers but the same was vacated on 30.04.1992, on the ground that, prima facie, the contractor was liable to make payments and not the company. Being aggrieved from the said order, the contractors’ union filed appeal CAs 83-84/06 7 before the full Bench of NIRC, which decided on 3.3.1993 declaring that the members of the contractors’ union were employees of the company, however, the case was remanded to the Single Bench. In the meanwhile, the workers/members of the contractor’s union made a switch in strategy and on 19.07.1992, approached the Labour Court through applications under Section 25A of IRO 1969 on the identical facts and the same cause of action. According to him, although the complaints were made by individual workers that all applications were filed through one Abdul Haq, the then Secretary General of contractor’s union. Thus, it is obvious that the contractor’s union played a key role in the same. 5. The learned counsel further submitted that under section 22A(11) and (12) of IRO 1969, once a matter is pending before the NIRC, the Labour Court has no jurisdiction in the said matter. According to him, the Labour Court in order dated 24.04.1996, pointed out that the workers had approached the NIRC and therefore, it should have refrained from assuming jurisdiction in the matter. There was no evidence to establish that a government owned factory would enter into a sham contract merely to deny workers their legitimate dues under the Labour Laws. 6. Mr. Abid Hassan Minto, Sr. ASC, appearing on behalf of respondents No.3 to 114 submitted that the application under section 22A(8)(g) read with section 15 of IRO 1969 and regulation 32(2C) of the Regulation 1973, was filed for the enforcement of its rights granted under sections 26(1) & (3) and 28 of the IRO 1969, as the company resorted to an illegal lock-out with mala fide intention to compel the office bearers of the contractor’s union to sign a settlement CAs 83-84/06 8 for reduction of wages and benefits available to the workers. The contractor’s union did not espouse the cause of removal from employment in terms of Standing Order No. 12(3) of the SO Ordinance, 1968. On the other hand, the respondents No. 3 to 114 were removed orally by the company without assigning any reason, as required under the S.O. No.12(3) ibid, as such, they approached the Labour Court by means of grievance applications under section 25A of the IRO 1969 for reinstatement with full back benefits. According to the learned counsel, the civil proceedings before the NIRC filed by the contractor’s union was for the enforcement of its own rights, whereas, the grievance applications filed by the individual workers were for their reinstatement. Therefore, the Labour Court rightly assumed jurisdiction and the learned High Court confirmed the same. 7. In this regard, it is to be noted that the proceedings filed before the NIRC were initiated by the contractor’s union against M/s Workman & Co as well as the company alleging therein that the company was not justified in awarding the contract to one Muhammad Aslam, the Managing Partner of M/s Workman Associates. The illegal lock-out by the company to the effect of 112 workers was also challenged through the same petition before the NIRC. Whereas the grievance applications under section 25A of the IRO 1969 were filed against the company with the following prayer:- “It is, therefore, prayed that this Honourable Court may be pleased to direct the respondents to reinstate the applicants with full back benefits with cost of this application.” CAs 83-84/06 9 The argument of learned counsel for the appellant that applications filed before NIRC as well as before the Labour Court are identical, therefore, the Labour Court could have not entertained the petition, does not appeal to mind. Though the facts of both the proceedings were similar due to having arisen from common circumstances but both the proceedings were initiated by separate entities i.e. the contractor’s union and the individual workers; and the prayers made in both the proceedings were absolutely different as mentioned above. Thus, it is held that both the proceedings were independent and the Labour Court had rightly assumed the jurisdiction in terms of section 25A of the IRO 1969 to redress the grievance of the workers. 8. Learned counsel for the appellants next submitted that the complaint before the NIRC was filed by members of the contractor’s union who were employees of the contractor and not of the company and therefore cannot claim to be employees of the company. The grievance of the workers in the said complaint was regarding the alleged lock-outs of 192 members, who were subsequently reduced to 112. Although vague allegations were made, it was never specifically claimed that they were the employees of the company. Reference in this behalf has been made to the cases of Muhammad Sharif v. Punjab Labour appellate Tribunal (Civil Appeal No.39 of 1977), Souvenir Tobacco Co. Ltd. v. Najammuddin (PLD 1977 Karachi 250), Mian Munir Ahmad v. The State (1985 SCMR 257), Farid Ahmad v. Pakistan Burmah Shell Ltd. (1987 SCMR 1463), Nasir Jamal v. Pak Suzuki Motor Company Ltd. (2000 PLC 52), M/s Hinopak Motors Ltd. v. Chairman Labour Appellate Tribunal (2000 PLC 89) and Steel Authority Of India Ltd. v. Union of India (AIR 2001 SC 3527). CAs 83-84/06 10 9. The learned counsel next submitted that before the Labour Appellate Tribunal, the company specifically raised the objection that under the Labour Laws there can be only one CBA in one establishment. As the company has its own CBA, the CBA of the contractor cannot claim its members to be employees of the company. 10. According to the learned counsel in the definition of employer provided in section 2(viii) of IRO 1969, there are three ingredients: firstly, the employer; secondly, the workman; and thirdly, that there must be a contract of employment. Learned counsel submitted that the phrase ‘directly or through a contractor’ provided in the definition of worker in section 2(xxviii) means not a contractor’s employee but the employees of an employer whether they are directly recruited or recruited through a contractor. Unless this interpretation is given, the definition of employer becomes meaningless. The concept of a contractor is separately established, in terms of which, if the contractor is carrying on work at some factory then those factory premises are also deemed to be his premises. Merely because the contractor’s workmen are working in the premises of the company, does not convert them into the workmen of the company as per the definition of “industrial establishment” mentioned in section 2(f)(iv) of the Industrial and Commercial Employment (Standing Orders) Ordinance 1968 [hereinafter referred to as “the SO Ordinance, 1968”]. 11. Learned counsel for the respondent-workers submitted that the workers were directly involved with the affairs of the company, as they used to stitching, filling and loading of urea bags, cleanings of machines, insertion of polythene into bags, etc., which are CAs 83-84/06 11 the jobs connected with the manufacturing process as defined under section 2(g) of the Factories Act, 1934. The land, building, machines, raw materials, finished goods, etc., were the properties owned, managed, controlled by the company through its occupiers/manager. The hire and fire authority including settlement of wages and benefits of the workers rest with the company and the so called contractors were engaged for their personal gain. The work of the respondent workers was supervised, controlled and looked after by the incharge of bagging and loading department and his subordinate staff/supervisors. He further contended that the contractors were changed from time to time but the workers including the respondents No.3-114 continued in the employment of the company. The jobs done by them namely cleaning of machines floor etc. were also connected with the manufacturing process within the premises of the factory. Therefore, the workers were the employees of the company. He relied upon the case of M/s Euro Ceramics Ltd. v. Registrar of Trade Union (1996 PLC 45), M/s Dawood Cotton Mills v. Sindh Labour Appellate Tribunal (SBLR 2004 Sindh 614), M/s Basti Sugar Mills v. Ram Ujagar (AIR 1964 SC 355) and Hussainbhai Calicut v. Alath Factory (AIR 1978 SC 1410). 12. In the first instance it would be appropriate to look at the definitions of “employer”, “worker” and “establishment” provided in various statutes. As per the definition in section 2(viii) of IRO 1969, “employer” in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment. This definition of employer has to be read in juxtaposition with the CAs 83-84/06 12 definition of “worker” provided in section 2(xxviii) which provides that worker and workman means any person not falling within the definition of employer who is employed in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied. As per this definition, the phrase ‘directly or through a contractor’ means employees of an employer whether they are directly recruited or recruited through a contractor. The word “establishment” has been defined in section 2(ix) to mean any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry. Reference may also be made to section 2(c) of SO Ordinance, 1968 which provides that ‘employer’ means the owner of industrial or commercial establishment to which [the said] Ordinance applies. Section 2(f)(iv) ibid, inter alia, provides that ‘industrial establishment’ means the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes, the premises in which, or the site at which, any process connected with such execution is carried on. The learned High Court in the impugned judgment had also referred to section 2(h) of the Factory Act, 1934, which provides that “worker” means a person employed directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work whatsoever, incidental to connect with the subject of the manufacturing process. 13. At this juncture, it would be appropriate to have a glance at the case-law referred to by the learned counsel for the appellant. In CAs 83-84/06 13 the case of Souvenir Tobacco Co. Ltd. v. Najammuddin (PLD 1977 Karachi 250) the employees of Canteen Managing Committee were declared not to be the employees of the company on the ground that according to the Karachi Factories Canteen Rules, 1953 read with the contents of the settlement, the affairs of the canteen of the company were directly under the control and the management of the Canteen Managing Committee and it was held that the application for re-instatement should have been filed against the said Committee and not against the company. In the case of Mian Munir Ahmad v. The State (1985 SCMR 257) the company used to run a beverage bottling at their factory and for the manufacturing of its product (Pepsi Cola) employed its own workers, who were on the pay-roll of the Factory. But certain other works were entrusted to contractors who employ their own labour. During the season in question the contract of loading and unloading the material in the Factory was awarded by the company to one Abdul Hamid Contractor, who had employed his own labour for the said work, who had nothing to do with the company, directly or indirectly. The employees of the contractor filed criminal complaints against the Managing Director of the company (appellant therein). The appellant approached the High Court for quashment of proceedings but the petition was dismissed on the ground that the High Court had no jurisdiction to exercise its inherent powers under section 561A, Cr.P.C., to quash proceedings pending before a labour Court as the same was not a Court subordinate to the High Court. The matter came to this court where the question for consideration was that whether the High Court had no jurisdiction under section 561-A, Cr.P.C. in respect of the proceedings pending before the Labour Court, CAs 83-84/06 14 which was dealing with the case ‘in its capacity as a Section 30 Magistrate’. A 3-Member Bench of this Court allowed the appeal and quashed all the criminal complaints. It was further observed that the contractor had employed its own labour they were not on the pay-roll of the Factory. The management of the Factory was not even aware of the number of the workers employed by the contractor or about the terms and conditions of their appointment or service. As such the Factory Management was not required to issue them any attendance tickets under the relevant law, i.e. section 2 of Schedule 2(g) of the W.P. Standing Orders Ordinance. In the case of Farid Ahmad v. Pakistan Burmah Shell Ltd. (1987 SCMR 1463) the respondent company owned a number of petrol pumps and stations in Karachi, most of which were run by dealers appointed by the company, whereas, some others were run and managed by contractors. Appellant, the employee of the contractor, was terminated by the then contractor. The said termination order was challenged by the appellant in the Labour Court through a Grievance Petition under section 25A of the IRO, but the same was dismissed on the ground that there was no privy of contract between him and the company. Appeal filed by him before the Labour Court was accepted and he was ordered to be reinstated. The said order, though was complied with by the company, but was challenged before the High Court through a writ petition. The writ petition was allowed observing, inter alia, that the appellant was not an employee of the respondent company. In spite of the above judgment the appellant continued to work at the petrol pump. Afterwards, the then contractor, again terminated the services of the appellant. Thereupon, the appellant filed a criminal complaint before CAs 83-84/06 15 the NIRC against the company and its 3 officers u/s 53(1-A) of the IRO, complaining “unfair labour practice”. The matter came up before this Court when leave was granted to consider as to whether or not the appellant was an employee of company and whether it was open to the High Court to have decided this question in exercise of its constitutional jurisdiction as it involved a question of fact. A 5-member Bench of this Court, after relying upon the cases of Mian Munir Ahmad (ibid) and D.C. Works Limited v. State of Saurashtra (AIR 1957 SC 269), on the ground that the contractor was not only the person who had employed the appellant but also the person who had the power of hiring and firing the employees, assigning works to be taken from them, etc., held that the appellant was not employees of the company but that of the contractor. In the case of Mehmood Hussain v. Presiding Officer, Punjab Labour Court (2012 SCMR 1539) a 2-member bench of this Court held that the question of relationship between the owners of company and the persons employed by its contractors, had already been decided by this Court in the case of Mian Munir Ahmad (supra) wherein it was held that such persons were not the employees of the company but those of the contractor who has hired them, therefore, the claim made by the respondent from the appellant was not tenable in law. The ratio of the above case-law is that the employees of the contractor shall not be the employees of the company if: - (a) they are under the control and management of the contractor and not that of the company; (b) they are not on the pay-roll of the company and the management of the company is not even aware of the number of the workers employed by the CAs 83-84/06 16 contractor or about the terms and conditions of their appointment or service; and (c) the contractor has the power of hiring and firing the employees, and assigns works to them and the company has no concern with it. 14. Turning towards the case-law referred to by the learned counsel for the respondents, it is to be noted that in the case of M/s Euro Ceramics Ltd. v. Registrar of Trade Union (1996 PLC 45) the Balochistan High Court after considering the cases of Mian Munir Ahmad (supra) and Farid Ahmad (supra) held that in order to determine the status of the workers it is to be seen that whether the contractor engaged the workers for running of the affairs of the company or through those workers, it was carrying out another independent work which had no concern with the production, etc., of the company. It was further held that contractor had engaged the labour not for doing the job other than which was being carried out in the factory; and inference can also be drawn that a device was adopted to deprive the employees from their legitimate right to form a trade union. In the case of M/s Dawood Cotton Mills v. Sindh Labour Appellate Tribunal (SBLR 2004 Sindh 614) a Division Bench of the High Court of Sindh again considered the same question in the light of the law laid down in the cases of Mian Munir Ahmad (supra) and Farid Ahmad (supra). The Court distinguished the said judgments on the ground that the workers were required to work in the weaving department of the company which constituted one of the principle organs of a textile mill; the machines were belonged to the company and the raw material was also supplied by them; and the said section was controlled by the weaving master. The Court relied upon the case CAs 83-84/06 17 of Hussainbhai Calicut v. Alath Factory (AIR 1978 SC 1410) = (1978 LLJ 397) to hold that the workers employed through contractor were the employees of the company. The said judgment of the High Court was assailed through civil petition for leave to appeal in the case of M/s Dawood Cotton Mills v. Sindh Labour Appellate Tribunal (Civil Petition No.309/2004, etc.) but this Court maintained the finding of the High Court. In the case of Pakistan Telecommunication Company Limited v. Muhammad Zahid (ICA No.164 of 2002) a Division Bench of the High Court, while dealing with the question as to whether the employees engaged by the PTCL through a contractor (Telecom Foundation) were the employees of PTCL or not, it was held that it is trite law that whether employees are engaged directly or through a contractor, they would be deemed to be the employees of the establishment for whose benefit they perform functions. The said decision was upheld by the Supreme Court in the case of Pakistan Telecommunication Company Limited v. Muhammad Zahid (2010 SCMR 253), declaring the employees of Telecom Foundation to be employees of the PTCL. 15. It would also be advantageous to consider cases on the issue in hand from the Indian jurisdiction. In the case of M/s Basti Sugar Mills v. Ram Ujagar (AIR 1964 SC 355) the Indian Supreme Court has held that the word ‘employed by the factory’ are wide enough to include workmen employed by the contractors of the factory. In the case of Silver Jubilee Tailoring House v. Chief Inspect (AIR 1974 SC 37) = [(1974) 3 SCC 498] certain employees claim the status of regular workers in a tailoring house “as employed in the establishment” within the meaning of Section 2(14) of the Shops and CAs 83-84/06 18 Establishments Act. On the question as to whether there existed employer-employee relationship between the workers and the Management, the Court pointed out that the control test, which is normally adopted for considering the said question is not an exclusive test or a decisive test. If the ultimate authority over the performance of the work of the employee rested in the employer so that he is subject to the supervision of the principal employer, would be sufficient. In the case of Hussainbhai, Calicut v. The Alath Factory Thezhilali Union, Kozhikode (AIR 1978 SC 1410) = [(1978) 4 SCC 257] the Indian Supreme Court laid the test for determining the workmen employed by the independent contractor to work in employer’s factory. The said issue relates to hiring workmen through contractors by an industry manufacturing ropes. The Supreme Court pointed out to the admitted fact that the work done by the contract labour was an integral part of the industry concerned and the workmen were broadly under the control of the Management. The relevant para therefrom reads as under: - “5. The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contract is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor. Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court CAs 83-84/06 19 must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.” In the case of Catering Cleaners of Southern Railway v. Union of India (AIR 1987 SC 777) = [(1987) 1 SCC 700], on the issue of contract labour engaged for cleaning catering establishments and pantry cars in Southern Railway, the Indian Supreme Court pointed out that the work of cleaning catering establishments and pantry cars is necessary and incidental to the industry or the business of the Southern Railway; the employment was of perennial nature and that the work required employment of sufficient number of whole-time workmen. It was directed that those workmen, who were previously employed by the contractor on the same wages and conditions of work as were applicable to those engaged in similar work in Western Railway, be absorbed without waiting for the decision of the Central Government. In the case of Sankar Mukherjee v. Union of India (AIR 1990 SC 532) = [(1990) (Supp) SCC 668], the Indian Supreme Court considered the notification by the Government of West Bengal prohibiting the employment of contract labour in various departments including the job of loading and unloading of bricks from the wagons and trucks in Brick Department. The Court pointed out that the bricks handled by the Brick Department were used in furnaces of the company as refractory and incidental to the industry carried on by the company. Even though the petitioners therein were not doing the job of stacking the bricks, there was no denial or any averment or material to show that the job of loading and unloading of bricks was not incidental or alike to the stacking of the bricks; on the other hand, the workers performing those jobs which were of perennial nature, were to be CAs 83-84/06 20 treated alike. The workers doing the job of loading and unloading from the wagons and trucks in the Brick Department are to be treated on par with those who were doing the job of cleaning and stacking in the said Department. There was no reason as to why others doing the same job should be treated differently. In the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers’ Union (AIR 2000 SC 1508) = [(2000) 4 SCC 245] the Court held that no single or substantive test could be confined or concretized as a fixed formula of universal application in all class or category of cases. Although some common standards could be devised, the mere presence of one or more or their absence of the same cannot, by itself, be held to be decisive of the whole issue, since every case has to be decided on the peculiar aspects of a particular case. That being the position, in order to safeguard the welfare of the workmen, the veil may have to be pierced to get at the realities. In the case of Steel Authority Of India Ltd. V. Union of India (AIR 2001 SC 3527) the Court held that even in case of contract labour, there can be adjudication as to the regularization of the employment by the Industrial Court/Tribunal. If the contract is found to be not genuine, but a mere camouflage, the so called contract labour will have to be treated as employee of the principal employer, who shall be directed to regularize the services of the contract labour in the establishment concerned. In the case of Mishra Dhatu Nigam Ltd. v. M.Venkataiah (AIR 2003 SC 3124) = [(2003) 7 SCC 488] the Indian Supreme Court held that where in discharge of a statutory obligation of maintaining a canteen in an establishment the principal employer availed the services of a contractor, the contract labour would indeed be the employees of the principal employer and that CAs 83-84/06 21 such cases do not relate to or depend upon the abolition of contract labour. In the case of Ram Singh v. Union Territory, Chandigarh (AIR 2004 SC 969) = [(2004) 1 SCC 126] the Court reiterated that in determining the relationship of employer and employee, even though ‘control’ test is an important test, it is not the sole test. It was further observed that it is necessary to take a multiple pragmatic approach weighing up all the factors for and against the employment instead of going by the sole test of control. An “integration” test is one of the relevant tests. It is applied by examining whether the person was fully integrated into the employer’s concern or remained apart from and independent of it. The other factors which may be relevant are, who has the power to select and dismiss, to pay remuneration, deduct insurance contributions, organise the work, supply tools and materials and what are the “mutual obligations” between them. The Court further held that the mere fact of formal employment by an independent contractor will not relieve the master of liability where the servant is, in fact, in his employment. In that event, it may be held that an independent contractor is created or is operating as a subterfuge and the employee will be regarded as the servant of the principal employer. In the case of Workmen of Nilgiri Coop. Mkt. Society Ltd. V. State of T.N. ( AIR 2004 SC 1639) = [(2004) 3 SCC 514] after referring to the case of Ram Singh (supra) the Court reiterated that the test of organization or of control and supervision are the only decisive test and different tests have to be applied in different facts and circumstances; ultimately all relevant facts have to be integrated in considering the said question. Relevant portion therefrom is reproduces hereinbelow: - CAs 83-84/06 22 “37. The control test and the organisation test, therefore, are not the only factors which can be said to be decisive. With a view to elicit the answer, the court is required to consider several factors which would have a bearing on the result: - (a) who is the appointing authority; (b) who is the paymaster; (c) who can dismiss; (d) how long alternative service lasts; (e) the extent of control and supervision; (f) the nature of the job e.g. whether it is professional or skilled work; (g) nature of establishment; (h) the right to reject.” 16. The crux of the above case-law is that: - (a) the word ‘employed by the factory’ are wide enough to include workmen employed by the contractors of the company; (b) the employees of the contractor shall be the employees of the company if the contractor engaged the workers for running of the affairs of the company and not for some other independent work which has no concern with the production of the company; (c) if the employees are working in a department of the company which constituted one of the principle organs of the company, the machines belong to the company, the raw material is supplied by the company and the said department is controlled by the supervisors of the company, the employees of the contractor shall be the employees of the company; (d) the employees, engaged directly or through a contractor, would be deemed to be the employees of the company for whose benefit they perform functions; CAs 83-84/06 23 (e) even though ‘control’ test is an important test, it is not the sole test; a multiple pragmatic approach weighing up all the factors for and against the employment has to be adopted, including an “integration” test; and (f) if the contract is found to be not genuine and a device to deprive the employees from their legitimate rights/benefits, the so called contract employees will have to be treated as employee of the company. 17. Normally, the relationship of employer and employee does not exist between a company and the workers employed by the Contractor; however, in the case where an employer retains or assumes control over the means and method by which the work of a Contractor is to be done, it may be said that the relationship of employer and employee exists between him and the employees of the contractor. Further, an employee who is involved in the running of the affairs of the company; under the direct supervision and control of the company; working within the premises of the company, involved directly or indirectly in the manufacturing process, shall be deemed to be employees of the company. 18. In the instant case, the employees of the contractor were involved in running the affairs of the company such as filling and loading of urea bag as well as cleaning of machines and floors, therefore, for all intents and purposes, they are employees of the company through the contractor. 19. As regards to the lock-out it was submitted by the learned counsel for the petitioner that as per definition of “lock-out” contained CAs 83-84/06 24 in section 2(xvi) of IRO 1969, the concept of lock-out only applies in relation to the employees of the company and not to the employees of the contractor. 20. Section 2(xvi) ibid provides that ‘lock-out’ means the closing of a place of employment or part of such place or the suspension, wholly or partly, of work by an employer, or refusal, absolute or conditional, by an employer to continue to employ any number of workmen employed by him where such closing, suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and conditions of or affecting employment; 21. In light of the above definition, we are in agreement with the learned counsel that the lock-out only applies to the employees of the company. However, as we have already declared that the respondents are employees of the company, therefore, the CBA of contractor’s union was rightly aggrieved from the said lock-out. Thus, the learned Labour Appellate Tribunal has rightly redressed the grievance of the respondent employees. 22. The learned counsel further submitted that the Constitution Petition No. D-739/1993 was admitted to regular hearing and a stay was granted. However, the same was dismissed by a two-line order that it had become infructuous merely because the other petition namely CP No. D-754/1996 against the order passed by Labour Appellate Tribunal had been dismissed. He argued that this was a manifest error and the petition should have been decided on merits. CAs 83-84/06 25 23. It is to be noted that when the constitution petition arising out of the proceedings of Labour Court was dismissed, the main grievance of the employees was redressed as such the other constitution petition had become infructuous. 24. Learned counsel for the appellant has also submitted that the Labour Court directed for reinstatement of respondents in service with full back benefits in terms of agreement/settlement dated 31.01.1991 which was valid up to 27.01.1993, but according to him the said agreement was terminated on 22.02.1992, therefore, they are not entitled for back benefits after the said date. In this behalf it is to be noted that notwithstanding expiry of agreement between employer and employees, their relationship shall be governed under SO Ordinance, 1968, as they have attained status of permanent employees by the efflux of time. 25. These are the reasons of our short order of even date, whereby the listed appeals were dismissed with costs. Chief Justice Judge Judge Islamabad, the 16th May, 2013 Nisar/* Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 840 OF 2017 (On appeal against the judgment dated 10.02.2017 passed by the Lahore High Court, Lahore in RSA No. 135/2010) Sardar Muhammad (deceased) through LRs … Appellants Versus Taj Muhammad (deceased) through LRs and others …Respondent(s) For the Appellants: Mr. Salman Mansoor, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent (1): Malik Muhammad Kabeer, ASC Date of Hearing: 06.04.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- C.M.A. No. 2175/2022 Through this application, the applicant seeks setting aside of the ex-parte order. For reasons mentioned in this application and subject to all just exceptions, this CMA is allowed and the ex-parte order is set aside. Civil Appeal No. 840/2017 2. Through this appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973, the appellants have assailed the judgment dated 10.02.2017 passed by the learned Single Judge of the Lahore High Court, Lahore whereby the Regular Second Appeal filed by the respondents was allowed, the judgment and decree of the learned Appellate Court dated 29.04.2010 was set aside and the CIVIL APPEAL NO. 840 OF 2017 -: 2 :- judgment and decree of the learned Trial Court dated 07.11.2009 was restored. 3. Briefly stated the facts of the case are that respondent Nos. 1 to 3 purchased land measuring 37 kanals 9 marlas in Chak No. 148 GB, Tehsil and District Toba Tek Singh through mutation No. 1072 dated 17.11.2013 for a total sale consideration of Rs.450,000/-. Later on, the said respondents exchanged the suit property with respondent Nos. 4 & 5 against their corresponding land measuring 33 kanals 4 marlas situated in Chak No. 161/GB, Tehsil Gojra, District Toba Tek Singh vide mutation No. 1073 dated 23.12.2003. On 08.03.2004, the predecessor-in-interest of the appellants namely Sardar Muhammad filed a suit for possession through pre-emption on the ground of having superior right of pre-emption being a co-sharer of the disputed property. The suit was contested by the respondents/defendants. Out of the divergent pleadings of the parties, the learned Trial Court framed as many as seven issues and ultimately vide judgment and decree dated 07.11.2009 dismissed the suit. The predecessor-in-interest of the appellants filed an appeal before the learned Additional Sessions Judge, Toba Tek Singh/Appellate Court, who vide judgment and decree dated 29.04.2010 accepted the appeal and set aside the judgment and decree of the learned Trial Court. Being aggrieved, the respondents/defendants filed Regular Second Appeal before the learned Lahore High Court, who vide impugned judgment accepted the same, set aside the judgment and decree of the learned Appellate Court and restored that of the learned Trial Court. Hence, this appeal. 4. At the very outset, learned counsel for the appellants contended that the appellants/plaintiffs had proved both Talb-e- Muwathibat and Talb-e-Ishhad in accordance with law but the learned High Court brushed it aside by treating the performance of Talabs as concocted story merely on the basis of unfounded presumption. Contends that the notice of Talb-e-Ishhad was duly dispatched through registered post and in this regard the Postman, Branch Postmaster and Postmaster of Post Office Kachehri were produced in evidence as PW-1 to PW-3 CIVIL APPEAL NO. 840 OF 2017 -: 3 :- respectively. Contends that the receipts of the registered envelop were duly exhibited in evidence. Contends that the respondents/defendants have failed to highlight an obvious deficiency in the performance of Talb-e- Ishhad. Lastly contends that the learned High Court has arrived at the wrong conclusions without applying the law applicable thereto and the same is the result of mis-reading and non-reading of evidence, therefore, the same may be set at naught. 5. On the other hand, learned counsel for the respondents defended the impugned judgment by stating that the learned High Court has passed a well reasoned judgment, which is based on correct appreciation of the evidence available on the record, therefore, the same needs no interference. Contends that the evidence of Zafar Iqbal, Postman (PW-1) clearly reveals that the notice of Talb-e-Ishhad was affected only on one defendant namely Muhammad Bashir, therefore, such service was not a service in the eye of law. 6. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance. 7. There is no denial to this fact that the right of pre-emption is a very weak right. To succeed in a suit for pre-emption the first and the foremost condition is that the plaintiff has to plead that before filing of suit he had fulfilled the requirements of Talabs and thereafter he has to prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad. For proving Talb-e-Muwathibat there must be specific time, date and place of knowledge pleaded in the plaint. Thereafter, the same shall be followed by sending of notice through registered post, which shall be served on the defendants. The learned High Court has rightly held that if performance of single talab skips or not proved, the superstructure and edifice of the suit falls on the ground. It was the claim of the predecessor-in-interest of the appellants Sardar Muhammad that he came to the knowledge of the disputed sale on 23.12.2003 at about 01:00 pm while he was sitting in front of his drawing room in Chak No. 293/GB. Anwar Ahmed (PW-5) came to him and informed about the disputed sale to which he promptly alleged CIVIL APPEAL NO. 840 OF 2017 -: 4 :- his right of pre-emption and therefore made Talb-e-Muwathibat. However, his stance was controverted by the respondents/defendants who said that they had purchased the property from Mst. Ameena Begum etc. Balqees Bibi and Mumtaz Bibi were real sisters of the plaintiff Sardar Muhammad while Ameena Begum was her sister-in-law. Rashid and Arshad were his real nephews while Samina was his niece and being closely related to the said Mst. Ameena Begum etc, the plaintiff knew about the sale of the disputed property. Ashiq Ali (DW-3) was attesting witness of the sale mutation No. 1072 dated 17.11.2013 whereby land measuring 37 kanals 9 marlas was sold to the respondents/defendants. He in categorical terms stated that the sale consideration was paid in the presence of the plaintiff. The said Ashiq Ali had no enmity with the plaintiff nor had he any blood relations with the defendants. Anwar Ahmed (PW-5) was tenant/lessee of the plaintiff, who used to cultivate the agricultural land of the plaintiff situated in his khewat. This fact was also admitted by the plaintiff. In this eventuality, the evidence of said Anwar Ahmed is not free from doubt. To prove the notice of Talb-e-Ishhad, although the plaintiff had produced Zafar Iqbal, Postman as PW-1. However, a bare perusal of his statement shows that the notices were not directly delivered to the defendants Taj Muhammad and Raj Muhammad. The postman stated that it was defendant Muhammad Bashir, who had received the notices on behalf of the other two defendants Taj Muhammad and Raj Muhammad. Similarly, the notice sent to Abdul Jabbar, defendant, was received by defendant Abdul Ghafoor. This fact was also admitted by the plaintiff himself in paragraph 5 of his amended suit filed by him before the learned Trial Court. In a similar case reported as Munawar Hussain Vs. Afaq Ahmed (2013 SCMR 721) this Court has held as under:- “So far as Talb-e-Ishhad is concerned, admittedly the service on one of the two petitioners-defendants/vendees namely Muhammad Akram was not personally effected and according to learned counsel for the respondent, it was effected on his brother and co-vendee Munawar Hussain appellant. The afore-referred service is not a service in the eyes of law. It is not the case of respondent/plaintiff either that service of notice of Talb-e-Ishhad on the said vendee was made through registered post acknowledgement due. The contention that service on the co- CIVIL APPEAL NO. 840 OF 2017 -: 5 :- vendee should be presumed as service in law is not backed by any provision of law and therefore, is not tenable.” 8. In Mir Muhammad Khan Vs. Haider (PLD 2020 SC 233) the pre-emptor could not prove that the notice of Talb-e-Ishhad was ever served on the vendee. The five members bench of this Court categorically held that “it fell upon the pre-emptor in the case to prove that the notice had been delivered. By failing to prove the same or even producing the postman who allegedly delivered the notice, the pre-emptor failed to establish the sending or receipt of the notice for the performance of Talb- e-Ishhad.” In view of the law laid down by this Court, it was the plaintiff/pre-emptor who had to prove that the notice had been delivered to all the defendants but he himself admitted that same was not the case. The service of Talb-e-Ishhad is a prerequisite and if the performance of the same is not proved beyond any shadow as well as in the prescribed form, then the whole structure falls on the ground. In these circumstances, the learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the appellants has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. 9. For what has been discussed above, this appeal having no merit is dismissed and the impugned judgment passed by the learned High Court is upheld meaning thereby that the judgment and decree of the learned Trial Court dated 07.11.2009 shall remain intact. JUDGE JUDGE Islamabad, the 6th of April, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL APPEALS NO. 843 TO 863 AND 969 TO 970 OF 2012 AND CIVIL APPEALS NO. 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CIVIL PETITIONS NO. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. (On appeal against the judgments dated 23.04.2012, 2.4.2014, 29.5.2012, 12.06.2012, 15.5.2012, 25.4.2013, 30.05.2013, 11.9.2013, 16.9.2013, 27.6.2013, 14.5.2014, 10.6.2014, 15.5.2014, 3.6.2014 and 23.9.2015 of the Lahore High Court, Lahore, Lahore High Court, Rawalpindi Bench, Peshawar High Court, Peshawar and High Court of Balochistan Quetta in W. P. Nos. 3002, 3519/ 2010, 256/11, ICA.87/10, WP. 4208/10, 5468/10, ICAs. 232/11, 258/10, WPs. 1229/09, 23067/09, 2130/10, 15724/10, 3751/10, 3752/10, 21755/10, 23465/10, ICAs. 87/2010, 248/10, 249/10, 257/10, WPs. 9878/10, 15813/10, 15918/10, 16844/10, 15638/11, ICAs. 233/11, 234/11, WPs. 4146/10, 3173-P/12, 3172-P/12, 3174-P/12, 3239-P/12, 3240-P/12, 1297-P/12, 3032-P/12, 3283-P/13, 3321-P/12, 3362-P/12, 3378-P/12, 122-P/13, 1279-P/12, 1499-P/12, 1349-P/14, 1746-P/14, 207-M-P/14, 1393/14 and CP. 811/2015). DCO/Chairman District Recruitment Committee, Khanewal and others. EDO (Education), Lodhran/Member Recruitment Committee, Lodhran and others. DCO/Chairman District Recruitment Committee, Sahiwal and others. DCO/Chairman District Recruitment Committee, Sahiwal and others. DCO/Chairman District Recruitment Committee, Faisalabad and others. DCO/Chairman District Recruitment Committee, Hafiz Abad and others. DCO/Chairman District Recruitment Committee, Hafizabad and others. DCO/Chairman District Recruitment Committee, Bahakkar and others. Secretary Govt. of the Punjab Education Deptt., Lahore, etc. DCO/Chairman District Recruitment Committee, Nankana Sahib and others. Province of the Punjab through Secretary (Schools) and others. CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 2 Govt. of the Punjab thr. Secy. Education, Lahore and others. EDO (Education) Member Executive Committee, Lodhran and others. EDO (Education) Member Executive Committee, Lodhran and others. EDO (Education), Multan and others. EDO (Education), Multan and others. DCO Jhang and others. Govt. of Punjab thr. Secy Education, Lahore and others. Executive District Officer (Education) Khanewal and others. DCO/Chairman District Recruitment Committee, Bhakkar and others. DCO/Chairman District Recruitment Committee, Bhakkar and others. DCO/Chairman District Recruitment Committee, Bhakkar and others. EDO (Education) Chakwal/Member Recruitment Committee, etc. EDO (Education) Chakwal/Member Recruitment Committee, etc. The Secy. Govt. of Punjab Education Department, Punjab, Lahore, etc. District Co-ordination Officer Bahawalnagar and another. District Co-ordination Officer Bahawalnagar and another. District Co-ordination Officer Bahawalnagar and another. District Co-ordination Officer Bahawalnagar and another. Secy. School Education Department, Govt. of Punjab Lahore, etc. District Education Officer (Male) Charsadda and others. District Education Officer (Male) Peshawar and others. District Education Officer (Male) Peshawar and others. District Education Officer (Male) Peshawar and others. District Education Officer (Male) Peshawar and others. Provincial Govt. thr. Secy (E&S) Education, Peshawar, etc. Director Education FATA, Peshawar and others. Director Education FATA, Peshawar and others. Director Education FATA, Peshawar and others. CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 3 Additional Chief Secretary FATA, Peshawar and others. Additional Chief Secretary FATA, Peshawar and others. Secretary to Govt. of KPK (E&S) Education Peshawar and others. Govt. of KPK thr. Chief Secretary, Peshawar and others. District Education Officer, Peshawar and others. District Education Officer, Peshawar and others. District Education Officer, (Male) Dir Lower and others. Govt. of KPK thr. Chief Secretary, Peshawar and others. Muhammad Siddique and others. …Appellant(s)/Petitioner V E R S U S Kishwar Sultana and others. Mst. Imtiaz Khadim and others. Nasim Akhtar and others. Muhammad Ejaz Kamran and another. Mst. Shazia Ambreen and others. Nazra Batool and others. Nazra Batool and others. Samina Bibi and others. Muhammad Asghar and others. Mst. Azra Bano and others. Asif Ali and others. Saira Younas and others. Mst. Sanobar Tabassum and others. Sheikh Irfan Ahmad and others. Nasir Abbas and others. Muhammad Imran Hussain and others. CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 4 Nasim Akhter. Ayisha Mumtaz and others. Mst. Zubaida Nazli and others. Abdul Ghaffar Noon and others. Saeeda Malik and others. Mehboob Alam Khan and others. Sajid Mumtaz and others. Altaf Hussain and others. Mst. Yasmeen Tahira and others. Adeela Afzal. Adeela Afzal. Atta-ul-Ghafoor, etc. Talib Hussain, etc. Samina Sikandar and another. Muslah ud Din and others. Raees Khan. Abid Hussain and another. Inayatullah. Saeedullah. Contre Research of Education thr. Zafar Iqbal. Shabana and others. Mst. Naheeda Nizam. Shakirullah and others. Tariq Aziz and others. Rifaqat Khan and others. Mst. Shakeela Naz and others. Mst. Neelam Waris. Syed Ibne Abbas. Iftikhar Ali and others. CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 5 Latif ur Rehman and others. Zia-ur-Rahman and others. Mst. Mehreen Hayat. The Secretary, Govt. of Balochistan, Education Department, Quetta and others. …Respondent(s) For the Appellant(s): Mr. Mudassar Khalid Abbasi, AAG, Pb. Mr. Waqar Ahmed Khan, Addl. A. G. KPK. Majeedullah, Legal Representative DE(E&SE) Peshawar. Fazl-e-Khaliq, Legal Representative DEO (Male) Sawabi. For the respondents : Mr. Ijaz Anwar, ASC. (in CAs. 145-P to 147-P/14 and 128-P/14). Molvi Ejaz-ul-Haq, ASC. (in CAs.843, 844, 850, 854, 969, 856 and 859/2012) Syed Wasat-ul-Hassan Shah, ASC (in CA. 843/12) Mr. Abdul Rehman Siddiqui, ASC (in CMAs.1490 and 6497/14) Mr. M. Siddique Khan Baloch, ASC (in CMAs. 2366-2367/16) Rehmanullah, In person. Farooq Ahmed, In person. Musharaf Shah, In person. M. Ishaq, In person. M. Zia-ul-Haq, In person. (in CA. 145-P/2014). On Court’s Notice: Mr. Sohail Ahmed, DAG. Date of Hearing: 08.04.2016 (Judgment Reserved) **************************** CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 6 J U D G M E N T EJAZ AFZAL KHAN, J.- These appeals with the leave of the Court have arisen out of the judgments dated 23.04.2012, 29.5.2012, 12.06.2012, 15.5.2012, 25.4.2013, 30.05.2013, 11.9.2013, 16.9.2013, 27.6.2013, 14.5.2014, 10.6.2014, 15.5.2014, 3.6.2014 and 02.04.2014 of the Lahore High Court, Lahore, Lahore High Court, Rawalpindi Bench, Rawalpindi and Peshawar High Court, Peshawar whereby they dismissed the Intra Court Appeals and Writ Petitions filed by the appellants. Civil Petition No. 3774 of 2015 has arisen out of the judgment dated 23.09.2015 of the High Court of Balochistan, Quetta whereby the petition filed by the petitioner was dismissed in limine. 2. As the points urged in these appeals as well as petitions are identical, we dispose them of by this single judgment. 3. The learned AAG, Punjab appearing on behalf of the appellants contended that Skill Development Council was established under the National Training Ordinance, 1980 and the rules made thereunder, for providing technical and vocational training and not for awarding any certificate or diploma in the fields of art, craft, education or physical education; and that the Skill Development Council overstepped its limits by offering courses in the fields mentioned above and issuing certificates or diplomas therein. He next contended that since the certificates or diplomas issued by the Skill Development Council do not conform to the course, curriculum or training required for art, craft, education or physical education, any appointment made on the basis of such certificate or diploma being against the provisions of the Ordinance CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 7 and rules made thereunder is liable to be annulled. Even the National Training Board, the learned AAG maintained, constituted under the Ordinance cannot issue any directive to protect any such diploma or certificate when its role in the whole affair is recommendatory. The learned AAG to support his contention also placed reliance on the letter No: SO(SE-IV)4-461/09 dated 16.08.2010 issued by the Secretary Schools Education Department, Govt. of Punjab. 4. The learned Additional A.G. KPK endorsed the arguments of learned AAG, Punjab. 5. Learned ASC appearing on behalf of respondents contended that where respondents have qualified diplomas or certificates under the aegis of Skill Development Council in the fields of art, craft, education or physical education, their appointments were rightly made on the basis of such diplomas and certificates in various departments of Government, therefore, no exception could be taken to their appointments at this stage. Such appointments, the learned ASC contended, cannot be undone even under the doctrine of locus poententia, when not only decisive steps have been taken, but valuable rights have also accrued to the respondents. Learned ASC went on to argue that many respondents whose appointments have been made on the basis of diplomas or certificates issued by the Skill Development Council, also possessed requisite qualifications at the time of their appointments and many acquired it after their appointments, therefore, their appointments cannot be undone, even if it is assumed that the diplomas or certificates issued by the Council have no statutory sanction. CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 8 6. We have gone through the record carefully and considered the submissions of learned AAG Punjab, learned Addl. AG, KPK as well as learned ASCs for the respondents. 7. What is National Training Board? What is Skill Development Council? What is vocational training? Answer to these questions and allied thereto are fully answered by Section 2 of the Ordinance which reads as under:- ”Definitions. – In this Ordinance, unless there is anything repugnant in the subject or context. – a) “establishment” means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry; b) “industry” means any business, trade, manufacture, calling, service, employment or occupation; c) “institution” means a school, college or institute, by whatever name called, imparting vocational training; d) “National Board” means the National Training Board constituted under section 3 ; da) “National Trade Testing Board” means National Trade Testing Board constituted by the National Training Board under sub-section (2) of section 4 ; e) “prescribed” means prescribed by regulations made under this Ordinance; f) “Provincial Board” means a Provincial Training Boards constituted under sub-section (2) of section 5; CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 9 fa) “Provincial Trade Testing Board” means provincial Trade Testing Board constituted by the Provincial Training Board; fb) “Skill Develop Council” means the Skill Development Council, constituted by the National Training Board under sub-section (2) of section 4; fc) “Technical Education and Vocational Training Authority” means the Technical Education and Vocational Training Authority constituted by the Provincial Government; g) “Vocational training” means training in any physical and professional skill, trade, calling or occupation”. 8. What are the functions of National Training Board are enumerated in Section 4 of the Ordinance which reads as under :- “4. Functions of the National Board.—(1) The National Board shall -- i) collaborate with the source of labour market information as determined from a survey of establishments with a view to assessing on a continuing basis existing and future training needs, both local and foreign; ii) systematically study existing training programmes with respect to their relevance, duration and size and recommend such measures to be taken as seem desirable to improve the quality of training; iii) establish criteria for evaluating and determining training programmes and facilities; iv) develop training syllable and establish and specify national training standards and trade testing rules to ensure horizontal and vertical mobility; CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 10 v) supervise such training programmes are funded from the Federal budget; vi) prepare national training plan, programs and projects in view of local as well as foreign requirements and monitor their implementation; vii) recommend to the Federal Government means for financing training programmes; viii) promote and finance training of establishment based or institution-based training officials and instructor’s; ix) organize and conduct seminars and work- shops for various types of personnel associated with training activities’; x) collect and compile statistics related to training; xi) co-ordinate the working of Provincial Boards and Technical Education and Vocational Training Authority; xii) review existing and propose legislation on vocational training and recommend necessary legislative provisions with the concurrence of the Provincial Boards and Technical Education and Vocational Training Authority; xiii) issue to establishments, Provincial Boards, Technical Education and Vocational Training Authority or institutions for compliance directives within the framework of the approved plans and projects; xiiia) assist and establish institutions in collaboration with private sector to promote technical, vocational and in-plant training and skill development; CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 11 xiiib) undertake registration and licensing of all establishment, organizations or institutions which are offering or providing vocational training; xiiic) develop system and conduct trade testing and certification of skilled workers who have received vocational training through any source or acquired skills through experience or informal system; xiv) do all other acts necessary for carrying out the purposes of this Ordinance; (2) The National Board may set up such administrative and technical committees, skill development councils, authorities, trade testing boards or other such bodies for the efficient performance of its functions, and entrust to such committees, skill development councils, authorities, trade testing boards or other such bodies such functions as it may consider necessary.” 9. Functions of Skill Development Council have been dealt with by Rule 6 of the Rules of Business of Skill Development Council, 2013 which reads as under :- “6. Functions of the Council: The Council will perform following functions : a) Provide a productive link between employers, employees, training providers and trainees; b) identity training needs of the geographical area, analyze and orientalize training needs and arrange training, retraining as well as skill up-gradation through contracted arrangement with public and private training institutes/establishments and in-plant training mode. c) Develop National Vocational Qualifications for prescribed levels from pre to post education of CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 12 technical/professional skills and knowledge based on employment and industry/market need analysis and submits for approval of NTB. d) Assure quality training for youth and already employed persons by preparing courses, setting standards, developing Quality Management System and final trade testing and certification, Trade Testing and certification up to six months duration will be carried out by SDC with the concurrence of National Training Board and the courses more than six months duration will be conducted by the NTB/PTB. e) Develop the potential of work-force by increasing their standard of skill and basic education so as to increase productivity, quality of product and to meet the needs of both domestic and international market. f) Motivate employers to operate as investor in human capital, so as to encourage organizations to invest in people through participation in skill development programmes besides arranging skill competitions for enhancing the popularity of vocational training in all areas and improving proficiency of skilled workers as well as promote self employment by providing loan to winners. g) Support informal sector i.e. Ustad-Shagird system through provision of training for skill enhancement and trade testing. Provide skill training and structured education to working children at small garages and workshops to protect child Labour and bring them into main stream of vocational education and training. h) Develop and implement special training programme for women, children of industrial workers and under privileged youth to prepare CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 13 them for gainful employment or to engage in some income generating activities to raise their standard of living and social up lifting through self employment. i) Develop and arrange specialized training programme in information Technology for un- employed educated youth (Matriculate- Graduate) to provide them maximum employment opportunities locally and abroad. j) Introduction and promotion of distance learning, computer based training and new training technologies including video conferencing through support and affiliation with international institutions/Universities involving local institutions. k) Customized training programme for the rehabilitation of expatriates and employers being declared surplus due to privatization as well as downsizing programmes of the Government. l) Any other programme and activity to promote technical vocational education and training in the country with the approval of NTB.” 10. How the Council shall conduct its business or what is procedure therefor has been chartered out in Rule 7 of the above mentioned rules which reads as under :- “7. Procedure to Conduct Business : a) The SDCs shall set its targets regarding number of trainees to be trained in various Vocational Qualifications from proficiency and competency based certificate and diploma level for better employment opportunities to the trainess. CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 14 b) The SDCs shall identify the training need through surveys, direct interaction with employer associations/individual employers and keeping in view the local and international market trend. c) The SDCs shall design and Develop the training programmes through technical committees comprised of representatives from business organizations and training providers and will arrange the training of educated youth and already employed at various public and private training institutes including industry individually or with group of institutes on contractual basis. d) The Selection of the Institute/Training Providers will be made keeping in view the facilities available at the institute)s) and the contents of the course. e) The Council will recommend registration of public and private institutes including industry based training institutes to NTB/PTB as covered under National Training Ordinance 2002. f) Training programme will be announced in the newspapers and selection of trainees will be made by the SDCs on merit with the help of participating institutes. g) The SDC shall also register and impart training to school leavers Matric dropouts, educated and uneducated unemployed, child trainee and other workers in the formal and informal sectors for the purpose of imparting training and skill up grading in all programmes sponsored by the Government or any other donor agency or body. h) The SDC will charge at an average 10% service charges from the training institutes for each training programme to cover the cost of CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 15 advertisement, brochure, registration and certification and other expenses of the Council. The rate of service charges may be reduced or increased keeping in view the nature and potential of the training programme. However, the fee structure should be on cost recovery basis. i) The Council will develop a mechanism to provide financial assistance in shape of repayable loan, free sponsorship to the deserving trainees/government servants and their employees but number of such cases would depend on the availability of funds. j) The Council may issue to the trainee a trainee card which may be used as the basis for reimbursing the training cost to the training institution or employer where training is to be imparted. A system of training credit for crediting training cost to the training provider may be established. k) The Council will draw its own action plan for attaining the objectives and making the Council to operate on a self financing basis with the approval of NTB. l) All SDCs will forward the following to NTB. a) Annual Training Plan by 1st Week of December every year. b) Six month progress report and expenditure statement. c) Yearly progress report. m) The Chairman shall appoint a Director SDC, subject to approval of the Council, who will be responsible for administering and implementing the decisions of the Council and who will be fully accountable to the Council for all his actions. The Director will also act as Secretary of the Council. CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 16 n) For smooth and efficient administration and implementation of the affairs of the Council, the Chairman will contract tasks and assignments. o) The Council will constitute various committees for the smooth functioning of the work. p) The Chairman will be the ex-officio Chairman of all committees formed by the Council. q) The Director will be the ex-officio Secretary of all committees constituted by the Council. r) The SDC may delegate any or all of its power to the Chairman, or any member or committee(s) appointed by it subject to such conditions as it may deem fit. s) The Chairman shall use the powers of the council in its absence or whenever the council is not in session subject to confirmation of all the decisions taken in exercise of the powers under this provision, of the Council in its next meeting.” 11. Letter dated 16.08.2010 of the Secretary Schools Education Department, Govt. of Punjab is also relevant which reads as under :- “Govt. of the Pakistan, Ministry of Labour and Manpower National Training Bureau, Islamabad vide No.1(57)NTB-TT&C/2009/66 dated 2.6.2010 has replied that ‘Skill Development Councils (SDCs) were established and their Rules of Business were framed by the Ministry vide No.3/2/2001-TT-II dated 17.7.2002. These Rules of Business authorize SDCs to conduct courses and issue certificate for only 06 months duration with the concurrence of National Training Board. Diplomas of Art and Craft, Oriental Teacher and Physical Education are not including in the list CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 17 provided by the Govt. of Pakistan, Ministry of Labour and Manpower, National Training Bureau, Islamabad (list attached). Therefore, awarding of such diplomas by SDCs is complete violation of Rules of Business of SDCs.” 12. A careful reading of the above quoted provisions of the Ordinance and the Rules would reveal that domain of the National Training Board and Skill Development Council is clearly demarcated by the provisions of the Ordinance and Rules made thereunder. The purpose behind the establishment of Board is to provide technical education and vocational training in any physical and professional skill, trade, calling or occupation. The Board does not do all this in a vacuum. It makes a survey and systematic study of the market to assess the existing and future training needs, both at local and foreign level and establishes criteria for evaluating and determining training programmes and facilities. After doing so, it develops syllabi, establishes and specifies national training standards and trade testing rules to ensure horizontal and vertical mobility, develops system and conducts trade testing and certification of skilled workers who have received vocational training through any source or acquired skills through experience and informal system, as is provided in Section 4 of the Ordinance. The Skill Development Council as the very name suggests focuses on labour, market, information and launches technical education and vocational training in any physical and professional skill, trade, calling or occupation so that the people who cannot acquire higher or specialized education may get opportunities of employment, according to the needs and requirements of the market. Art, craft, education and physical CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 18 education are well beyond the domain of the Council and capacity of its faculty. It thus could not launch programmes in any of these fields. The Board and the Council travelled beyond what they were established for by launching programmes falling exclusively in the domain of art, craft, education or physical education. The letter reproduced above also clearly demarcated the domain of the Board and the Council. In spite of that the Council issued certificates and diplomas in such fields, even in respect of the courses of one year duration. Another amazing and intriguing fact is that appointments have been made on the basis of such diplomas and certificates in the educational institutions without caring to know that the Council does not have the power and competence to launch such programmes, courses and curriculums and issue certificates and diplomas in this behalf. The education being a specialized field having many dimensions in today’s context could not thus be left to the faculty which did not have specialized qualification and training therefor. Persons on the peak of Education Department went into deep slumber. Even if a few of them were awake, they watched the sight and spectacle with hands folded and legs crossed. By the time they realized and raised hue and cry, the water had gone above their heads. Yes, it is never too late to mend but what to do! Retain them, is the answer of the protagonists of status quo. Don’t worsen the bad if correction is possible, is the answer given by those who are guided by prudent and progressive outlook. We deliberated over the pros and cons of the answers thus given. The solution we have come out with is simple! Let them continue, if they besides the certificates or diplomas, issued by the Council, possess the requisite or equivalent CAs. 843 TO 863 AND 969 TO 970 OF 2012 AND 263-L TO 265-L OF 2013 AND 984, 127-P AND 129-P TO 134-P AND 136-P TO 141-P AND 143-P TO 148-P OF 2014 AND CPs. 1353-L OF 2012 AND 3474 OF 2015 AND CMAs. NO. 1378 OF 2014 AND 6497 OF 2014. 19 qualifications. Let those also continue, who improved their qualifications even thereafter. Those who could not improve their qualification up till now should improve it within a period of one year, which would be reckoned from the date of commencement of the next available academic session of the respective programme. We, therefore, allow the appeals, convert the petitions into appeals and allow them in the terms mentioned above. Judge Judge Judge Announced in open Court at Islamabad on 28.04.2016. Judge ‘Not approved for reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sh. Azmat Saeed Mr. Justice Mushir Alam Mr. Justice Sajjad Ali Shah Civil Appeals Nos. 845-846 of 2010 AND CAs Nos. 596-L to 599-L of 2013 A/W CMAs Nos. 4548/2014 & 3891/2015. (On appeal against the judgment dated 26.10.2009 Passed by Federal Service Tribunal, Islamabad in Appeal No. 751 (R) CS/2007) Abu Bakar Farooq (In CA 845/10) Pakistan Railways thr. its Chairman, M/o Railways, Ibd. (In CA 846/10 & 597-L/13) The Secretary M/o Railways etc. (In CAs 596-L & 598-L a/w CMAs 4548/14, CMA 3891/15) Salman Sadiq Sheikh & others (In CA 599-L/13) … Appellant(s) /Applicant(s) Versus Muhammad Ali Rajpar & others (In CA 845-486/10 & CA 599-L/13) Fiaz Ali Shah (In CA 596-L & CMA 4548/14) Anwar Saeed Dawar (In CA 597-L/13) Asghar Ali Bhutto (In CA 598-L & CMA 3891/2015) … Respondent (s) In CA No. 845/2010 For the Appellant (s) : Mr. Abdul Rahim Bhatti, ASC Mr. M.S Khattak, AOR For the Respondent No. 1 : Mr. Muhammad Akram Sheikh, Sr. ASC For the Respondent No. 2, 3 : Mr. Muhammad Abbas Mirza, ASC In CA No. 846/2010 : For the Appellant : Mr. Muhammad Abbas Mirza, ASC For the Respondent No. 1 : In Person In CA No. 596-L & 598-L of 2013: For the Appellant (s) : Mr. Muhammad Abbas Mirza, ASC For the Respondent No. 1 : N.R. For the Applicant : Mr. Muhammad Munir Paracha, ASC (In CMA No. 3891/2015) In CA No. 599-L/2013 For the Appellant (s) : Mr. Muhammad Siddique Awan, ASC For the Respondent No. 1 : In person For the Respondent No. 2,3 : Mr. Muhammad Abbas Mirza, ASC Date of Hearing : 31.01.2019 CAs 845 of 2010 etc 2 Judgment Sajjad Ali Shah, J. These appeals, with the leave of this Court, have been filed against the judgment of the Federal Service Tribunal whereby the said Tribunal while allowing the appeal of the respondent Muhammad Ali Rajpar directed the appellant-Department to regularize his services from the date of his Adhoc appointment with all back benefits. It appears that on the strength of this judgment, the Tribunal granted the same benefits to three other similarly placed officers who are respondents in Civil Appeals No. 596-L to 598-L of 2013 whereas the appellant in Civil Appeals No. 845/2010 & 599-L of 2013, though were not party before the Tribunal but have been adversely affected and therefore have independently impugned the same judgment on the basis of principle laid down by this Court in the case of H. M. Saya & Co., Karachi vs. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65). 2. Briefly, the Respondent No.1 on 10.11.1990, was appointed as Assistant Mechanical Engineer (AME) in Pakistan Railways on adhoc basis for a period of six months or for such extended period as may be sanctioned and/or till the nominees of Federal Public Service Commission becomes available, whichever is earlier. The appointment letter further covenanted that the Respondent would apply through proper channel to the Federal Public Service Commission for selection and appointment to the post in question on regular basis as and when the said post was advertised by the Commission. It appears that the Respondent continued his services as adhoc employee and in the meanwhile invoked the constitutional jurisdiction of Lahore High Court by filing writ petition No. 144 of 1998 seeking regularization of his service. However, the adhoc service of the respondent was CAs 845 of 2010 etc 3 terminated on 30.06.2000 and from 01.07.2000 he was appointed on contract for a period of two years or till the joining of Federal Public Service Commission’s nominee. The Respondent continued on contract till 01.07.2002 and thereafter his services were dispensed with. It appears that on 8.5.2003 Lahore High Court while deciding the said petition divided the cases of all similarly placed petitioners into two categories (i) qualified adhoc appointees (ii) adhoc appointees lacking qualification and then directed the department to refer the case of qualified adhoc appointees to the Federal Public Service Commission for considering their cases in accordance with law without any discrimination. Consequently, the Respondent on the recommendation of the Federal Public Service Commission dated 22.11.2006 was offered a temporary post of Assistant Mechanical Engineer (BS-17) in terms of his appointment letter dated 12.01.2007. The Respondent thereafter on 20.02.2007 requested the Ministry of Railways to regularize his services rendered as adhoc employee right from 10.11.1990 till date and also to treat the period between 01.07.2002 to 22.11.2006 (during which period he was unemployed) as spent on duty. The Representation was rejected by the department vide letter dated 16.05.2007 which led the Respondent to approach the Services Tribunal which after hearing the parties not only directed the Appellant Pakistan Railways to regularize the period of adhoc appointment from 10.11.1990 to 31.06.2002 but also to treat the period from 01.07.2002 to 31.07.2007 during which the Respondent remained unemployed as spent on duty and held the Respondent entitled to the payment of full back benefit for the said period. The Tribunal further directed to reckon his services for the purposes of seniority amongst his colleagues w.e.f. 11.07.1990. It appears that respondents in Civil Appeals No. 596-L to 598-L of CAs 845 of 2010 etc 4 2013 whose cases were akin to respondent Muhammad Ali Rajpar also applied to the Tribunal for the same relief and the Tribunal allowed their appeals and granted them the same benefit as was granted to the respondent Muhammad Ali Rajpar. Whereas Civil Appeals No. 845/2010 and 599-L/2013 have been filed by the employees who were adversely affected due to reckoning of the respondents’ service from the date of their adhoc appointment. This order not only led the department to impugn it before this Court vide CA No. 846/2010, 596-L, 597-L & 598-L of 2013 but also led the other employees who’s seniority was adversely effected to impugn the same by filing CA No. 845/2010 and CA 599 L/2013. 3. The common question for granting leave in all these cases was to consider as to whether respondents could be granted seniority with effect from the date of their adhoc appointment. 4. Learned ASC appearing for Pakistan Railways as well as other Appellants who have been adversely affected through the impugned judgment contended that the impugned judgment of the Service Tribunal is bad as it not only directs the regularization of services rendered by Respondent as adhoc employee which is against the principles settled by this Court in number of judgments but also directs counting of the period during which the Respondent did not serve Pakistan Railways as spent on duty with all back benefits. Learned ASC referred to various clauses of Respondent’s appointment letter dated 12.01.2007 which provided that his regularization will be considered as first appointment and he would rank junior most in his cadre/service and he would be considered regular employee of Pakistan Railways from 22.11.2006, the date on which Federal Public Service Commission recommended the Respondent for regular appointment. It was CAs 845 of 2010 etc 5 further pleaded that one of the covenant also provided that the Respondent would not claim any seniority over the regular appointees of the commission who may have joined the service during the period the Respondent was on adhoc appointment. It was lastly contended that the order of the Tribunal was further bad because the private Petitioners were condemned unheard by disturbing their seniority and placing the Respondent senior to them. It was therefore, jointly submitted that the impugned order could not be sustained. 5. On the other hand Mr. Muhammad Akram Sheikh, Senior ASC appearing for the Respondent Muhammad Ali Rajpar straightaway conceded that he would not support the portion of impugned order of the tribunal whereby the Respondent was allowed the payment of full back benefits for the period w.e.f. 01.07.2002 to 31.01.2007. However, Senior ASC contended that the tribunal has corrected a wrong committed by the department by keeping the respondent as adhoc employee for a period of almost 10 years. It was further contended that adhoc employment of the Respondent could not have been unilaterally switched to as contract employee and, therefore, respondent was entitled to the benefit of the period during which he was kept out of service at least for the purposes of seniority. Learned ASC while placing reliance on the judgment of this court in the case of Dr. Naveeda Tufail vs. Govt. of Punjab (2003 SCMR 291) contended that adhoc employment for such a long period creates a genuine impression in the mind of an employee that he would be retained on regular basis and that the adhoc appointment for such a long period without taking steps for fulfilling vacancies through the process of selection amounts to misusing that authority for which the respondent could not be punished by depriving him from the CAs 845 of 2010 etc 6 benefit of the services he rendered. Mr. Sheikh learned Senior ASC further while placing reliance on the judgment of this Court in the case of Ikram Bari vs. NBP (2005 SCMR 100) contended that retaining a person on adhoc basis for such a long time is nothing but sheer exploitation and it is the duty of the state to ensure the elimination of all forms of exploitation and on failure of the state the courts must come to the rescue of the person so exploited and in this case the Tribunal has taken care of such exploitation. Learned ASC appearing for the rest of the respondents who were given the benefit of continuation of service on the basis of impugned judgment have adopted the submission of Mr. Sheikh. 6. We have heard the learned ASC for the appellants as well as for the respondents perused the record and the case law cited at bar. 7. The position as it emerges from the record appears to be that the respondent was inducted into service as Assistant Mechanical Engineer in Pakistan Railways (BS-17) in the year 1990 as an adhoc employee for a period of six month or for such extended period as may be sanctioned, however, his status as of adhoc employees was extended from time to time till the year 2000. Thereafter his services were acquired on contract for a period of only two years and in July 2002, as evident from the respondent’s representation dated 20.4.2004, his services were terminated as he twice failed to qualify or absented himself from the selection process conducted by the Federal Public Service Commission. The record further reflects that on 12.1.2007 the said respondent on the recommendation of Federal Public Service Commission was offered regular appointment to the same post. The letter of appointment/regularization of service inter alia contained the following conditions:- CAs 845 of 2010 etc 7 i) Your regularization will be considered as your first appointment. As such you will be the junior most in your cadre/service. You will be considered regular employee of Pakistan Railways w.e.f. 22-11-2006. ii) You will not claim any seniority over the regular appointees of the commission who may have joined the service during your period of adhoc appointment. iii) Your pay in BS-17 will be fixed in accordance with the extant rules and your previous service on adhoc basis in Railway will be counted for the purpose of service qualifying for pension, pay leave and other retirement benefits as admissible under the rules. iv) to viii) …” 8. In this backdrop the respondent accepted his regularization/appointment and effected joining accordingly. The respondent soon after submitting his joining made representation for treating the period between 1st July 2002 to 22nd November 2006, during which he remained out of service, to be treated as on duty. It appears that the representation did not find favour with the Department and consequently the respondent approached the Service Tribunal which through impugned order not only regularized the intervening period but also granted seniority, promotion and allied benefits. 9. The law relating to the initial appointments to all Pakistan services, the service of the Federation and the post in connection with the affairs of the Federation in basic scale 16 and above, except those which under the Federal Public Service Commission (Function) Rules, 1978 do not fall within the purview of the Commission, as detailed in Rule 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (“Rules of 1973”) explicitly provides that such appointments could only be made on the basis of test and examination to be conducted by the Commission. CAs 845 of 2010 etc 8 10. The adhoc appointments to the post falling within the purview of the Commission in terms of Rule 19 of the “Rules of 1973” could be made only in cases where the appointing authority has placed the requisition with the Commission for regular appointment and during the intervening period which normally is consumed by the Commission for undertaking the process of selection and recommending the names of the candidates for regular appointment, the appointing Authority as a “stop gap” arrangement considers it to be in public interest to fill the post urgently may after obtaining prior clearance of the Commission fill the vacancy on adhoc basis for a period of six months or less. Even while filling a vacancy on adhoc basis the appointing authority has to adopt the procedure as is provided in Part-III of the “Rules of 1973”. Since the appointments on adhoc as provided under the law being a “stop gap” arrangements, therefore, as provided in Section 11(3) of the Civil Servants Act, 1973 stand terminated either on the expiry of the period for which such adhoc appointment was made or on the appointment of a person recommended by the Commission. It is for this reason that such adhoc appointee does not acquire a right to claim his seniority in accordance with Section 8 of the Civil Servants Act, 1973 vis-à-vis the civil servants who are appointed on regular basis on the recommendation of the Commission after going through the selection process. 11. It may be true that in some cases, like the instant one the adhoc appointment is prolonged for years altogether either for ulterior motives or by convenience in gross violation of Rule 19 of the “Rules of 1973” as well as Rule 3 of the Federal Public Service Commission (Functions) Rules, 1978, and such prolonged adhoc appointment may lure the appointee to continue with the full knowledge that this marriage of convenience would ultimately CAs 845 of 2010 etc 9 break to his detriment for such adhoc appointment does not create any right in favour of the incumbent to compel the authority to regularize his appointment. In fact the authority has no such power to regularize the service of an adhoc appointee because the only door to enter the arena of all Pakistan services detailed in Rule 10 of “Rules of 1973” is through Public Service Commission. 12. Coming to the submissions of learned Sr. ASC for the Respondents that continuation of Respondent’s service on adhoc basis for such a long time was nothing but a sheer exploitation which needs to be remedied by the Court. Mr. Sheikh backed his submissions by heavily relying and taking us through various portions of the judgment delivered by this Court in the case of Ikram Bari vs. National Bank of Pakistan (2005 SCMR 100). Suffice it to observe that in the said case services of daily wages employees in various categories who had served the Bank for number of years, were terminated by the National Bank of Pakistan on the ground that they were still in the category of temporary employees and it was in that context that this Court had observed that “an employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever condition it was offered by the Bank. It was further observed that such prolonged temporary retention of the employees by the Bank was nothing but sheer exploitation and the State as required by the Constitution was bound to ensure the elimination of all forms of exploitation”. It is also important to note that in the said case the method/procedure or the Authority of the Bank regarding appointment of the employees whose services were terminated was not in question, whereas in the instant case the very Authority of the Government to recruit a person to the service of Pakistan/Federation on regular basis in cases where the process CAs 845 of 2010 etc 10 falls within the sole domain of the Public Service Commission, did not exist. 13. The fact of the matter remains that neither the adhoc employee has right to hold the post beyond the period for which he was appointed nor the government has a right to continue with such adhoc appointees for such a long period. This situation arises only when the government violates the provision of Rule 3 of the Federal Public Service Commission (Functions) Rules, 1978 and without placing a requisition before Commission for regular appointment fill the post on adhoc basis and then keep on extending the period of such adhoc appointment and the adhoc appointee knowing fully well that his adhoc appointment is not in accordance with the prescribed method of appointment and is only a “stop gap” arrangement, till recruitment in accordance with the prescribed method of Appointment is made, clings to such post. Such conduct of the government has always been deprecated by the Courts but such short coming/non adherence to the legal requirements by the competent authority can earn no benefit for the incumbent for the simple reason that bestowing the benefits of regular appointment upon an ad hoc employee would not only amount to regularizing unlawful appointment and providing premium to the beneficiary of such wrong but would also amount to opening another door of entry into service of Pakistan by frustrating the only prescribed mode of appointment through the Commission. 14. The view of this Court regarding the status of adhoc appointees and their claim to seniority, right from the inception has remained consistent. This Court in the case of Muhammad Afzal vs. Government of the Punjab (1982 SCMR 408), held as follows:- CAs 845 of 2010 etc 11 “We propose taking up the question of the nature and effect of ad hoc appointment first because it is common to the first three appellants and to some of the respondents. Their appointments as Assistant Engineers were expressed to be ad hoc, temporary, not conferring any right to seniority etc. The word ‘ad hoc’ has the dictionary meaning of ‘For a particular object’. The object as appearing from the appointment of the appellants as well as that of some of the respondents was that their appointments were made and were to last only as long as regular appointments in accordance with the prescribed Rules were not made. The moment the regular appointments in accordance with the procedure prescribed were made, such appointments were to terminate. Ad hoc appointments truly so called being not in accordance with the Rules applicable to the service cannot receive either recognition or protection by reference to any of the Rules because they do not imply appointments to the service as such. Such appointments being outside the purview of the rules cannot for any purpose be treated as conferring a benefit under the Rules. It follows that if the appellants and some of the respondents were truly ad hoc appointees for a certain period they cannot on the basis of Rules claim their seniority from that date whether it was continuous or not”. 15. In the case of Naila Khalid vs Pakistan (PLD 2003 SC 420), this Court has held as under: Undoubtedly, the petitioner was appointed as lecturer on ad hoc basis as a stopgap arrangement for tenure of six months or till the availability of a nominee by F.P.S.C. Ad hoc appointment of a person does not confer any right or interest to continuous appointment, seniority, or promotion. It is held by an incumbent till a person is regularly selected by the Public Service Commission for the post held by an ad-hoc appointee. It is well-settled that the services of such appointee can be dispensed with at any moment without assigning any reason. Section 11 of the Civil Servants Act, 1973 CAs 845 of 2010 etc 12 specifies cases in which the service of a civil servant may be terminated without notice. Precisely, it deals with the termination of service of a civil servant during the initial or extended period of probation, on the expiry of initial or extended period of employment or if the appointment is made ad hoc terminable on appointment of a person on the recommendation of the selection authority. On the appointment of such person it would appear that no right as to continuation of service vests in a person appointed on ad hoc basis. Only safeguard provided in subsection (3) of section 11 is that services of such appointee shall be liable to termination on fourteen days’ notice or pay in lieu thereof. 16. Likewise in the case of Muhammad Wasay Tareen vs. Chief Justice of Balochistan (2005 SCMR 464), this Court after examining the case law in respect of adhoc appointments came to the following conclusion:- “The words ‘ad hoc appointment’ as defined by clause (a) of subsection (1) of section 2 of the Balochistan Civil Servants Act No. IX of 1974, mean the appointment of a duly qualified person made otherwise than in accordance with prescribed method of recruitment, pending recruitment in accordance with such method. Such an appointment cannot be equated with regular appointment. It is meant for a particular object. The ad hoc appointment by its very definition, is of a qualified person but is not in accordance with rules prescribed for regular appointment for which the recommendation of the Public Service Commission is necessary. There is no rule which can entitle the ad hoc appointee to be confirmed in a vacancy during the subsistence of lien of another person on such vacancy. In some cases, it may continue unless regularized by the competent authority in accordance with law. In Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156, it was held that mere continuance of employment of a temporary CAs 845 of 2010 etc 13 employee for two years or more in service did not ipso facto convert the appointment into permanent one. In the case of Mrs. Naila Khalid v. Pakistan through Secretary Defence and others PLD 2003 SC 420, it was laid down that ad hoc appointment did not confer on an appointee any right or interest to continuous appointment, seniority or promotion and that service of such an appointee could be dispensed with at any moment without assigning any reason. A somewhat similar view was taken in the cases of Mian Muhammad Afzal (supra), Ghulam Sarwar v. Province of Punjab 1982 SCMR 46 Chief Secretary, Government of the Punjab, Lahore and another v. Abdul Majeed 2001 SCMR 1971 and Muhammad Azam Khan and others v. Government of N.W.F.P. through Chief Secretary, N.W.F.P Peshawar and 4 others 1998 SCMR 204, Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408, Saifuddin v. Secretary to Government of the Punjab and others 1982 SCMR 877, Farida Khanum v. Federation of Pakistan through Secretary, Education, Islamabad C.P. No. 957 of 1999, decided by this Court on 16.6.1999 and Amjad Ali v. Board of Intermediate and Secondary Education and others 2001 SCMR 12 We may also observe that the ad hoc appointment by its very nature is different from that of appointment on probation as held in the case of Muhammad Siddique Ahmed Khan v. Pakistan Railways 1997 SCMR 1514”. 17. This Court, even in the case of Naveeda Tufail vs. Government of Punjab (2003 SCMR 291), relied by Mr. Sheikh Sr. ASC after in depth examining the appointments made on adhoc basis for lengthy periods had concluded in the following terms:- “There is no cavil to the proposition that an ad hoc employee has no right to hold the post beyond the period for which he was appointed and it is also not right for the Government to continue ad hoc CAs 845 of 2010 etc 14 appointments for number of years without undertaking the exercise of selection on regular basis in the prescribed manner. The ad hoc appointment is appointment of a duly qualified person made otherwise in accordance with prescribed method of recruitment and is made only in exceptional circumstances. This stopgap arrangement as a temporary measure for a particular period of time does not by itself confer any right on the incumbent for regular appointment or to hold it for indefinite period but at the same time if it is found that incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, he would carry the right to be considered for permanent appointment through the process of selection as the continuation of ad hoc appointment for considerable length of time would create an impression in the mind of the employee that he was being really considered to be retained on regular basis. The ad hoc appointment by its very nature is transitory which is made for a particular period and creates no right in favour of incumbent with lapse of time and the appointing authority may in his discretion if necessary, make ad hoc appointments but it is not open for the authority to disregard the rules relating to the filling of vacancies on regular basis in the prescribed manner. We may observe that practice of making appointments on ad hoc basis for continuous period without taking steps for fulfilling the vacancies through the process of selection in the prescribed manner amounts to misuse the authority and this Court at more than one occasions observed that the appointments on ad hoc basis should be discouraged and except in exceptional circumstances, it should not be allowed to continue beyond the period for which the appointment was initially made. The appointments in the public sector is a trust in the hands of public authorities and it is their legal and moral duty to discharge their function as trustee with complete CAs 845 of 2010 etc 15 transparency as per requirement of law so that no person who is eligible to hold such posts, is excluded from the process of selection and is deprived of his right of appointment in service”. 18. In the circumstances, the order of the Federal Service Tribunal is found against the principles settled by this Court and could not be sustained. 19. These are the reasons for our short order of even date, reproduced herein below, whereby we had allowed these appeals:- “For the reasons to be recorded separately, these Civil Appeals are allowed and the impugned judgments/orders of the learned Federal Service Tribunal are set aside”. Judge Judge Islamabad, the 31st January, 2019 A. Rehman Judge Approved for Reporting.

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Dost Muhammad Khan Mr. Justice Umar Ata Bandial Civil Appeals No.861 to 863 of 2007. (on appeal from judgment of High Court of Sindh, Karachi, dated 19.4.2006, passed in Misc. Appeals No.2,3&4/1989) Wella Aktineesellschaft (in all cases) …Appellant Versus Shamim Akhtar & others (in all cases) … Respondents For the appellant: Mr. Anwar Mansoor Khan, Sr. ASC, assisted by Mrs. Umaima Khan, Advocate. For respondent No.1: Mr. Arshad Ali Chaudhry, ASC/AOR. Respondent No.2: Ex parte. Date of hearing: 24.4.2015 JUDGMNET Anwar Zaheer Jamali, J.- These appeals, with leave of the Court in terms of the order dated 08.03.2007, arise out of the judgment passed in Miscellaneous Appeals No. 02/89, 03/89, 04/89, which were heard and disposed of together by the learned Single Judge in chambers of the High Court of Sindh at Karachi vide impugned judgment dated 19.04.2006, and consequently three orders dated 21.09.1988, passed by the Registrar of Trademarks, Karachi (Respondent No. 2), in rectification petitions bearings numbers 17/86, 18/86 and 19/86, were upheld. C.A No.861 of 2007, etc. 2 2. The facts leading to the present litigation may be succinctly put forth as follows. The appellant M/s Wella Aktineesellschaft, is a company registered under the laws of the Federal Republic of Germany, who inter alia carries on the business of manufacturing and exporting cosmetic items etc. On 19.07.1971, the appellant got registered two marks, “WELLAFORM” (word) and “WELLAFLEX” (word), bearing registration numbers 55811 and 55812, respectively. Additionally, the appellants already had the registered trademark in respect of “WELLA with Device”, bearing registration number 8376, dated 28.09.1949 (hereinafter collectively referred to as the “Trademarks”). The aforesaid Trademarks were all registered under Class – 3, as being “soap, perfumery, essential oils, cosmetics, products for cleaning, conditioning and embellishing the hair, including hair shampoos, dry shampoos, hair lotions, hair dressing creams, hair care products, hair sprays, permanent waving solutions, bleaching preparations, neutralizing agents, hair dyes, hair colouring products, hair fixing preparations, hair toning preparations, hair setting lotions”. The appellant also duly applied for the renewal of “WELLAFORM” and “WELLAFLEX” trademarks, which were renewed up till 19.07.1993.With respect to the trademark “WELLA with device”, their registration was also renewed from 28.09.1986 up till 28.09.2001. C.A No.861 of 2007, etc. 3 3. The appellant, however, could not freely sell their products in Pakistan, in relation to which these Trademarks were registered, from the year 1979 to 1985 due to ban on the import of these products as per the Import Policy Orders 1979-80, 1980-81, 1981-82, 1982-83, 1983-84 and 1984-85 issued by the Ministry of Commerce, Government of Pakistan. 4. As it transpires from the record the Respondent No. 1, which is claimed to be a partnership concern carrying on the business of manufacturing and trading in cosmetics and allied products, as per their claim started using the trademark “WELLA” since the year 1984 and subsequently applied for its registration through T.M.A. No. 87457 in Class-3, which application for registration met with an objection that the Trademarks of the appellant, bearing Nos. 8376 (“Wella with Device”), 55811 (“WELLAFORM”) and 55812 (“WELLAFLEX”) conflicted with the trademark “WELLA” sought to be registered. Thus, on 09.08.1986, Respondent No. 1, filed rectification applications bearing numbers 17/86, 18/86 and 19/86, regarding “WELLAFORM”, “WELLAFLEX” and “WELLA with device”, respectively, before Respondent No. 2, seeking expunction of these registered Trademarks, as according to Respondent No. 1, the appellant had registered these Trademarks without any bona fide intention to use them in relation to the goods falling in class-3 and had in fact failed to use them since their registration. C.A No.861 of 2007, etc. 4 5. In the above background, further proceedings were held before the Registrar, Trademarks, Karachi (Respondent No. 2) and through orders dated 21.09.1988, the Trademarks issued in favour of the appellant were cancelled/removed on the ground that the appellant neither used, nor took any steps to use them, as even if import of such classified goods was banned, alternative measures, such as appointing a registered user or assigning their Trademarks, could have been adopted, as was being done by other foreign proprietors of trademarks under similar circumstances. It was held that in the light of extended period of non-use of these Trademarks for over five years, sufficient proof existed that the appellant had no intention of using them in Pakistan. 6. Aggrieved by the aforementioned orders of Respondent No. 2, the appellant preferred three miscellaneous appeals, under section 76 of the Trade Marks Act, 1940, before the High Court of Sindh at Karachi, which were heard and dismissed through the impugned judgment dated 19.04.2006 and, thus, the orders of the Registrar, Trade Marks, Karachi, were upheld. 7. We have heard the arguments of Mr. Anwar Mansoor Khan, learned Sr. ASC for the appellant and Mr. Arshad Ali Chaudhry, learned ASC for respondent No.1, while respondents No.2 has been proceeded ex-parte. The learned Sr. ASC for the appellant initially made reference to the leave granting order passed in these C.A No.861 of 2007, etc. 5 connected appeals, wherein, for this purpose, reference was made to the case of Cooper’s Incorporated v. Pakistan General Stores & another (1981 SCMR 1039). On facts, his submission was twofold. Firstly, that the timeframe prescribed under section 37(1)(b) of the Trademarks Act 1940 (hereinafter referred to as “the Act of 1940”) for deciding the issue of removal of some trademark from the Register of Trademarks on the ground of its continuous non-use for five years, was to be computed from the date within one month from the date of application, which in the instant case were submitted by the respondent No.1 on 09.8.1986, but against it, the respondent No.2 as well as the learned Single Judge in chambers of the High Court of Sindh in their respective orders/judgment computed this period from the year 1971, which is patently contrary to the spirit of the applicable law. Disputing the findings on non-use of Registered Trademarks, he made reference to a bunch of documents to show the active use of their Registered Trademarks by the appellant Company in Pakistan during the year 1984 to 1986, which fact, according to him, brought their case out of the purview of penal consequences provided under section 37(1)(b) (ibid). In the same context, he also laid stress upon the use of word “bonafide” and contended that unless the Registrar could find some ulterior or malafide motive of the appellant in the purported non-use of their trademarks during the requisite period of five years upto the date of C.A No.861 of 2007, etc. 6 one month before the date of application, the said penal provision could not have been invoked against them. In support of his next submission that it was due to continued ban on the import of goods of the specified classification of Registered Trademark, under the Import Policy Orders for the year 1979-80 to 1984-85, imposed by the Ministry of Commerce, Government of Pakistan, that the appellant were helpless to carry on the business of their registered trademark goods in class-3 in Pakistan, he also made reference to the relevant import policy orders of this period. Further, in this context, he placed reliance upon the judgment in the case of Procter and Gamble Ltd. V. Registrar of Trade Marks (1988 CLC 252), which lays down as under:- “From the above discussion it is quite clear that whether "special circumstance" existed in a case which justified non-user of the mark by the registered proprietor within the meaning of section 37(3) of the Act is to be decided with reference to the facts and circumstances of each case. The important factor however, to be kept in mind while deciding the above fact is whether the actual non-user of the trade mark resulted on account of any intention on the part of the registered proprietor to abandon the mark or on account of certain other factor which would amount to special circumstances for such non-user. Here, again, while considering the other factors, it is not merely the attendant or attached circumstance to any particular individual business which is relevant but a special circumstances of the kind which affects or applies to all the traders in that particular trade. In other words if peculiar or abnormal circumstances exist which has resulted in the non-use of the trade mark and over which the registered proprietor had no control then the requirement of section 37(3) regarding existence of special circumstance for non-use of the mark shall be deemed to have been fulfilled. It will thus be seen that if there are circumstances which make ordinary uses of C.A No.861 of 2007, etc. 7 international trade impracticable then such circumstance would amount to existence of a 'special circumstance' resulting in the non-user of the mark by the registered proprietor. In the case before me it is common case between the parties that there existed from the beginning a complete ban on the import of detergent in Pakistan. These restrictions on the import of detergent in Pakistan are not restricted to affect the business of any particular individual but all the traders dealing in the import of detergent are affected by these restrictions. I am, therefore, of the view that non-use of mark by the appellant on the goods is the result of import restriction on such goods, which constituted a special circumstance within the meaning of section 37 the Trade Marks Act, and, therefore, the Registrar was not justified in ordering removal of their mark from the register.” (also see AIR 1973 Bombay 191). 8. Conversely, Mr. Arshad Ali Chaudhry, learned ASC for respondent No.1 contended that it is an admitted position from the case record that the three Registered Trademarks, regarding which respondent No.1 had moved applications under section 37(1)(b) (ibid) against the appellant, were registered in their favour on 28.9.1949, 19.7.1971 and 19.7.1971, respectively, but in Pakistan there was no use of these trademarks by the appellant Company throughout the subsequent period. Thus, the conclusion recorded by the respondent No.2 in his order dated 21.9.1988, as upheld by the High Court in its impugned judgment dated 19.4.2006, is based on proper appreciation of facts and correct interpretation of law. As regards the import policy orders issued by the Ministry of Commerce, Government of Pakistan during the year 1979-80 to 1984-85, neither the learned ASC disputed its genuineness nor the fact that the C.A No.861 of 2007, etc. 8 classified products of the appellant under their registered Trademarks squarely fell under class-3 in respect of soap, perfumery, essential oils, cosmetics, products for cleaning conditioning and embellishing the hair, including hair shampoos, dry shampoos, hair lotions, hair dressing creams, hair care products, hair sprays, permanent waving solutions, bleaching preparations, neutralizing agents, hair dyes, hair colouring products, hair fixing preparations, hair toning preparations, hair setting lotions etc, thus covered by the banned imposed under such import policies. The learned ASC when confronted with the documentary evidence showing the engagement of appellant company based in Germany in making sells and supply of their products in Pakistan under the registered trademarks soon after lifting of ban and also making correspondence with businessmen in Pakistan for manufacturing their products under a license etc, again he could not show anything from the record to rebut these documents or the contents of the affidavit of Mr. Helmut Stollreiter, Head of the Legal Department of the appellant company dated 02.12.1986, filed by him alongwith the objections of the appellant to the applications under section 37(1)(b)(ibid), moved by respondent No.1 before respondent No.2 for removal of registered trademarks of the appellant, showing that genuine efforts were made by the appellant company during the years 1984 to 1986 for securing business for their products in Pakistan. He, however, argued that as a C.A No.861 of 2007, etc. 9 bonafide businessman respondent No.1 after making honest search had started the use of the trademark “WELLA” on his products since the year 1984 and had spent substantial amount over the promotion of his business under such trademark, therefore, they being aggrieved person, no ulterior motive could be attributed to them in moving such applications before the respondent No.2, which were fully in conformity with relevant provisions of the Act of 1940. In support of his arguments, he referred various cases as also cited in the impugned judgment. 9. Having considered the respective submissions of the learned ASCs and scanned the material placed on record, in the first place, we deem it appropriate to reproduce hereunder the provisions of section 37 (ibid), which read thus:- 37. Removal from register and imposition of limitations on ground of non-use: (1) Subject to the provisions of Section 33, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application in the prescribed manner by any person aggrieved to a High Court or to the Registrar, on the ground either- (a) That the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of Section 36 apply, by the company concerned, and that there has in fact been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being C.A No.861 of 2007, etc. 10 up to a date one month before the date of the application; or (b) that up to a date one month before the date of the application, a continuous period of five years or longer elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being Provided that, except where the applicant has been permitted under subsection (2) of Section 10 to register an identical or nearly resembling trade mark in respect of the goods in question or where the Tribunal is of opinion that he might properly be permitted so to register such a trade mark, the Tribunal may refuse an application made under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trade mark is registered. (2) Where in relation to any goods in respect of which a trade mark is registered: (a) the circumstances referred to in clause (b) of sub- section (1) are shown to exist so far as regards non- use of the trade mark in relation to goods to be sold, or otherwise traded in, in a particular place in Pakistan (otherwise than for export from Pakistan), or in relation to goods to be exported to a particular market outside Pakistan; and (b) a person has been permitted under sub-section (2) of Section 10 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold, or otherwise traded in, or in relation to goods to be so exported, or the Tribunal C.A No.861 of 2007, etc. 11 is of opinion that he might properly be permitted so to register such a trade mark, on application by that person in the prescribed manner to a High Court or to the Registrar, the Tribunal may impose on the registration of the first mentioned trade mark such limitations as it thinks proper for securing that that registration shall cease to extend to such use. (3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates.” 10. A careful reading of the above reproduced provision of law qua the scheme of the Act of 1940 reveals that it is a penal provision aimed to work as deterrent for those, seeking Registration of any trademark under the Act of 1940 with some ulterior motive, which they do not intend to use or there had been in fact no bonafide use of their trademark in relation to those goods for a specified period. But for seeking the relief of removal/revocation of a registered trademark under section 37(1)(b) (ibid), specific minimum timeframe of five years has been provided during which there had been no bonafide use of such trademark by its proprietor, which is to be computed from a date one month before the date of application submitted by any aggrieved person in this regard. In the present case, as mentioned earlier, the three identical applications under section 37, 38 and 46 of the Act of 1940 were submitted by respondent No.1 for seeking removal of registered trademarks of the C.A No.861 of 2007, etc. 12 appellant on 09.8.1986, precisely, with the same assertions that there was no bonafide use thereof from the side of appellant for a period of over five years by that time and since the year 1984, Trademark “WELLA” was honestly used by the respondent No.1, thus, the three registered trademarks No.8376, 55811 and 55812 in class-3 of the registered trademarks were prejudicial to their interest and liable to be removed/cancelled. 11. As against the above claim of the respondent No.1, a detailed reply was submitted by the appellant company before the Registrar on 24.12.1986, duly supported with the affidavit of their Legal Advisor, wherein these allegations were strongly refuted both on law and facts on the basis of documentary evidence, which, on the one end furnished sufficient proof about the sincere efforts for use of Trademarks by the appellant company after lifting of ban on the imports of such classified goods by the Ministry of Commerce, Government of Pakistan, from the year 1984-85 and before that barring the import of their goods under class-3, on the basis of import policy for the years 1979-80 to 1984-85. The Registrar Trademark/respondent No.2, in his orders dated 29.8.1988 seems to have totally overlooked such documentary evidence furnished by the appellant in support of their claim, so also the effect of import policy orders, which, to say the least, show that non-use of these trademarks by the appellant during the crucial period within five C.A No.861 of 2007, etc. 13 years was under special circumstances due to such legal bar and not malafide, thus, furnished presumption of bonafide non-use of trademarks by them during such period. If these documents which have remained unchallenged and un-rebutted, are taken into consideration then there remains no continuous period of non-use of trademarks for five years before the date of filing application by respondent No.1 for removal/revocation of trademarks of the appellant, which is a condition precedent under the relevant provision of law for pressing into service its penal consequences. As regards the other defence offered by the appellant to justify their non-use of trademarks during the period 1979-80 to 1984-85, i.e. the import policy orders issued by the Ministry of Commerce, Government of Pakistan, again, we find that the import policies for that period, copies whereof have been placed on record, substantiated the claim of the appellant in this regard, while the ratio of judgment in the case of Cooper’s Incorporated (supra) further lend full support to their case. In this matter the Court, dealing with a case under section 10 of the Act of 1940 qua plea of acquiescence, held as under:- “As the respondent has deliberately copied the appellant's registered trade mark, it could have succeeded before the Deputy Registrar only if it had roved honest concurrent use, of the mark 'Jockey' or "other special circumstances" within the meaning of this subsection. But, the Deputy Registrar has given a categorical finding that the respondent had dishonestly copied the appellant's trade mark. Therefore, the first question is whether C.A No.861 of 2007, etc. 14 there is any error in this finding. 'The burden of proving an error in this finding was or: the respondent, but Mr. Thaker only relied on the fact that the appellant had not been able to sell its products in Pakistan, because of import restrictions. Now, although the appellant has not been selling it products in Pakistan because of import restrictions, this does not entitle the respondent to copy the appellant's trademark, because by doing so, it is deceiving the public into thinking that its products are the products of the appellant. And, on the other hand, it would appear that the respondent did not produce any evidence before the Deputy Registrar to show that its use of the mark `Jockey' was honest, therefore, as pointed out long by the Privy Council in Subbiah v. Kumeraval (1) the fact that the respondent has copied the appellant's mark cast on it a heavy burden' to show that its use of the appellant's mark was honest. But, as it has not produced any such evidence, it follows that it had dishonestly copied the appellant trade mark and, the High Court would not have been justified in interfering with Deputy Registrar's finding that the respondent had dishonestly copied the appellant's trade mark.” 12. Looking to the case of respondent No.1 for grant of requisite relief, claimed by them in their applications under section 37 of the Act of 1940, submitted before respondent No.2, it is also relevant to mention that in the year 1984 for the first time they had started using the trademark “WELLA” for their products under class- 3, when the three registered trademarks of the appellant were already in field for a considerable long period. In such circumstances, mere assertion of respondent No.1 that adoption of such trademark was after due search undertaken by them and bonafide, is not free from serious doubts. More so, in the circumstances when no material C.A No.861 of 2007, etc. 15 in support of such plea was placed on record and the trademarks of the appellant were well known and recognized internationally. It may also be added here that the burden of proof regarding the two material facts, (a) whether there was no bonafide use of the Registered Trademarks by the appellant for a continuous period of five years upto a date one month before the date of the application without any lawful excuse or special circumstances as envisaged under section 37(3) ibid, and (b) whether the attempt of respondent No.1 for seeking registration of word “WELLA” as their trademark was bonafide, was squarely upon respondent No.1, which was to be proved beyond reasonable doubt, so as to invoke its penal consequences against the appellant, but, as discussed above, they failed to discharge. 13. In addition to it, the observations of Respondent No.2, contained in his orders dated 21.9.1988, that in case of ban on goods in class-3 under the import policies issued by the Ministry of Commerce, government of Pakistan for the years 1981-82 to 1984- 85, the appellant could have appointed some registered user under section 39 of the Act of 1940, or they could have assigned their trademark by invoking section 28 of the Act of 1940, or granted license to some person to avoid the penal consequences of section 37(1)(b) ibid, are equally without force as the Act of 1940 does not envisage any such compulsion to avoid the consequence of C.A No.861 of 2007, etc. 16 Government ban, which could be justly and fairly considered as special circumstances in the trade within the meaning of section 37(3) ibid and not to any intention of appellant to abandon or not to use their trademarks. 14. The upshot of above discussion is that the High Court in its impugned judgment as well as the Registrar/respondent No.2, in his orders dated 21.9.1988, wrongly invoked the provisions of section 37(1)(b) of the Act of 1940 for ordering removal of registered trademarks of the appellant. 15. Foregoing are the reasons for our short order dated 24.4.2015, passed in these appeals, which reads as under:- “Having heard the arguments of the learned ASCs for both the parties, for the reasons to follow separately, these appeals are allowed, the impugned judgment and the three orders dated 21.9.1988, passed by Respondent No.2 are set aside. Resultantly, Rectification Cases No.17, 18 and 19 of 1986 are dismissed and the registered trademarks of the appellant are restored.” Islamabad, 24th April, 2015. Approved for reporting. تﻗادﺻ Judge Judge Judge

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, HCJ Mr. Justice Mian Saqib Nisar Mr. Justice Amir Hani Muslim Mr. Justice Iqbal Hameedur Rahman Mr. Justice Khilji Arif Hussain Civil Appeal No.870/2014 (On appeal from judgment of High Court of Sindh, Karachi dated 12.6.2014, passed in CP No.B-2072/2014) and C.M.A. No.1099 of 2016 (Application by respondent No.1 to grant one-time permission to go abroad) and C.M.As No. 3545, 3557 and 5173 of 2014 (applications for impleadment) Federation of Pakistan through Secretary, M/o Interior. Appellant Vs. General (R) Pervez Musharraf and others Respondents For the appellants : Mr. Salman Aslam Butt, Attorney General for Pakistan For the applicants : Mr. Tariq Asad, ASC (CMA-3545/14) : Mr. Inam-ur-Rahim, ASC (CMA-5173/14) : Sh. Ahsan-ud-din, ASC(CMA-3557/14) For respondent No.1 : Dr. Muhammad Farough Naseem, ASC Assisted by Faisal Fareed Hussain, Adv For FIA : Mr. Qaiser Masood, Addl. Dir. Law. Malik Javed, Asst. Dir. Law. Date of hearing : 16-03-2016 JUDGMENT Anwar Zaheer Jamali, C.J.- This civil appeal, with leave of the Court, arises out the judgment dated 12.6.2014, passed by C.A No.870/2014, etc 2 learned Division Bench of the High Court of Sindh, Karachi, in C.P No. 2072/2014, whereby the said petition filed by respondent No.1 was disposed of in the following manner:- “(a) The Memorandum No.12/74/2013-ECL, dated 5th April 2013, placing the name of General (retired) Pervez Musharraf on Exit Control List is struck down. (b) Since the direction contained in this judgment is self- executory, therefore, the operation of this judgment is suspended only for fifteen days, during which the respondents, if so desire, may file appeal in the honorable Supreme Court. (c) Pending applications are also disposed of accordingly.” 2. Brief facts leading to this litigation are that on 21.4.2014, respondent No.1 had instituted the above referred Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (in short “the Constitution”) before the High Court of Sindh, Karachi, with the following prayer:- “a) declare the memorandum bearing No.12/74/2013-ECL dated 5.4.13 (Annex D) and the letter No.ECL/12/74/2013- ECL dated 2.4.14 (Annex-L) to be completely without jurisdiction, unconstitutional, illegal, void ab initio and of no legal effect, while quashing the same and clarifying that the petitioner is free to travel within, without or outside Pakistan and any order of the Court is self executory and is to be implemented forthwith by the Respondents and all functionaries superior or sub-ordinate to them; b) permanently and pending disposal of the main petition suspend the operation of the memorandum bearing No.12/74/2013-ECL dated 5.4.13 (Annex D) and the letter No.ECL/12/74/2013-ECL dated 2.4.14(Annex L) while C.A No.870/2014, etc 3 restraining the Respondents, their officers, agents and cronies and all functionaries superior or subordinate to them from hampering, hindering and stopping the Petitioner’s movement within, without or outside Pakistan in any manner whatsoever, while further mandating them not to take any adverse action against the Petitioner; c) award costs and special costs; d) award any other relief deemed fit.” 3. In a nutshell, the grievance of respondent No.1 was that inclusion/placement of his name in the Exit Control List (ECL) and refusal to withdraw his name from it was without jurisdiction, illegal and, inter alia, violative of Articles 3, 4, 9, 10A, 14 and 15 of the Constitution, thus, liable to be struck down. 4. The appellant and the proforma respondents No.1 to 3, in their comments, challenged the maintainability of the petition before the High Court of Sindh and contended that inclusion of name of respondent No.1 in the ECL on 05.4.2013 was in compliance of the observation of the High Court of Sindh, contained in its order dated 29.03.2013, and further directions issued by the Supreme Court of Pakistan in this regard vide order dated 08.04.2013 to the Federal Government. Thus, there was no justification for its removal, unless such directions were withdrawn. 5. The High Court in its impugned judgment had taken note of all these relevant aspects of the case; the case-law cited at the bar, and came to the conclusion that once the petition before the Apex Court, wherein the interim order directing the Federal Government C.A No.870/2014, etc 4 to include the name of respondent No.1 in ECL was finally disposed of vide order dated 03.7.2013, for all intent and purposes the interim order dated 08.4.2013 ceased to operate. More so, as by this order, no protection was provided to it and it was clear legal position that on passing a final order or judgment in the proceedings, all interim orders will merge into it and will stand vacated, unless so protected by the Court, which is not the position in the instant case. At leave stage, this Court, while taking note of the relevant facts, has formulated following points for consideration:- 3. After hearing the learned Attorney General for Pakistan and the learned ASC representing respondent No. 1, we grant leave to consider, inter alia, whether:- (i) The order of this Court dated 8.4.2013 was not an interim order that merged into the final order of 3.7.2013 but an independent and final as regards the restriction on the respondent’s travel abroad, and thus the principle of merger was not attracted? (ii) The High Court could have struck down the Office Memorandum of 5.4.2013, issued expressly in compliance with the order of the High Court dated 29.3.2013 duly re-affirmed by this Court on 8.4.2013? (iii) Without modification or reversal of the order of this Court of 8.4.2013 the Respondent can be permitted to leave the country? (iv) The said Memorandum having been passed in compliance with the order of the High Court was not covered by clause (f) of Rule 2 of the Exit from Pakistan (Control) Rules, 2010? C.M.A. No. 3565 of 2014 4. This C.M.A. is allowed and operation of the impugned judgment is suspended. However, the appeal, arising out of this petition, be fixed for hearing within one month, subject of availability of Bench.” 6. We have heard the arguments of learned Attorney General for Pakistan on behalf of the appellant. His sole contention is that inclusion of name of respondent No.1 in the ECL vide letter C.A No.870/2014, etc 5 No.12/74/2013 ECL, dated 05.4.2013 issued by the Ministry of Interior, was solely on the basis of such direction contained in the order dated 08.4.2012, which despite final disposal of the petition vide judgment dated 03.7.2013, still holds the field. His further submission is that the interim order passed in the proceedings, issuing direction to the Federal Government for placement of name of respondent No.1 in the ECL, will not, ipso facto, stand vacated upon final disposal of the petition, unless specifically so ordered by the Court. 7. Responding to the arguments of learned Attorney General for Pakistan, learned ASC for respondent No.1 strongly contended that the submissions of learned Attorney General that despite final disposal of the petitions, the interim order passed therein will remain operative is entirely misconceived and ill-founded inasmuch as if the intention of the Court at the time of final disposal of the petition had been to protect or keep intact the arrangements made under the interim order passed in the proceedings, there could have been a specific reference in this regard in the final order, which is admittedly not the position in case in hand. In support of his arguments that interim order passed during the proceedings of a case will stand merged/vacated, unless so protected in the final order, he placed reliance upon plethora of case-law, which has been already intelligently scanned, summarized and discussed in the impugned judgment. Concluding his submissions, learned ASC C.A No.870/2014, etc 6 strongly urged for the dismissal of this appeal, being devoid of merits. 8. We have perused the material placed on record and carefully considered the submissions of learned Attorney General and the learned ASC. As their whole arguments revolve around the applicability of ad-interim order dated 08.04.2013, in the wake of final order dated 03.07.2013, therefore, before discussing their respective contentions, it will be useful to reproduce hereunder the operative part of these two orders respectively, which read as under:- Order dated 08.04.2013 “8. The Counsel representing the petitioners particularly Mr. A.K. Dogar and Mr. Hamid Khan, have submitted that the respondent General Rtd. Pervaiz Musharraf be taken into custody to ensure that he remains available within the country for the purpose of trial under Article 6 of the Constitution read with the provisions of High Treason (Punishment) Act, 1973. We, however, of the opinion that in the first instance, notice of these petitions be served on the said respondent for tomorrow. The inspector General of Police, Islamabad and, if necessary, the Inspectors General of Police in the Provinces, shall ensure service on the aforesaid respondent. The Secretary, Interior shall also make sure that if the name of the aforesaid respondent General Rtd. Pervaiz Musharraf is not already on the Exit Control List, this shall be done forthwith and a compliance report of this order shall be submitted in Court during the course of the day. The Federation and all its functionaries shall also ensure that the respondent does not move out of the jurisdiction of Pakistan until this order is varied/modified.” C.A No.870/2014, etc 7 Order dated 03.7.2013 “3. We are consciously, deliberately and as submitted by Mr. Muhammad Ibrahim Satti, learned Senior Advocate Supreme Court for the respondent, not touching the question of “abrogation” or “subversion” or “holding in abeyance the Constitution” or “any conspiracy in that behalf” or indeed the question of suspending or holding the Constitution in abeyance or the issue as to abetment or collaboration in the acts mentioned in Article 6 of the Constitution. This is so because any finding/observation or view expressed by us may potentially result in prejudice to the Inquiry/Investigation or subsequent trial should that take place as a result of such investigation. 4. The Federal Government has, as noted above, proceeded in furtherance of its constitutional obligation envisioned in Article 6 of the Constitution and for the present this suffices in terms of the said Article and the reliefs respectively sought by the petitioners in these petitions. We, therefore, dispose of these petitions in the above terms with the observation that the Federal Government shall proceed as per undertaking dated 26.06.2013, reproduced above without unnecessary delay.” 9. The perusal of order dated 08.4.2013, reveals that it was passed in Civil Petition No.2255/2010 and four other connected petitions No.14, 16, 17 and 18 of 2013, filed by different parties against respondent No.1, as an ad-interim arrangement before even issuing notices of such proceedings to him. As could be seen from its language and tenor, the purpose of this order was to ensure the name of respondent No.1 in the ECL forthwith as an interim arrangement during the course of the day. Thereafter, the proceedings were held on several dates of hearing after due notice to C.A No.870/2014, etc 8 respondent No.1 and as a result, upon the statement of learned Attorney General for Pakistan dated 26.06.2013, reproduced in the opening paragraph of the order dated 03.7.2013, the petition was disposed of in terms of the undertaking given by the Federal Government, without any further directions to keep the ad-interim order dated 08.4.2013 alive/intact. The submission of the learned Attorney General that letter dated 05.4.2013, issued by the Ministry of Interior, cannot be withdrawn unless the interim order dated 08.4.2013 was modified or withdrawn is on the face of it totally ill- founded, as the letter placing the name of respondent No.1 in the ECL was issued three days prior to the said order on the basis of some observations contained in the order dated 29.03.2013, passed by the High Court of Sindh in Criminal Bail Application No.262 and 263 of 2013, whereby respondent No.1 was granted transitory bail for a limited period of 21 days with the condition that till such time he would not leave the country without permission from the Trial Court. Thus, it cannot be said that it was the interim order dated 08.4.2013, which formed basis of such action from the appellant against respondent No.1 or the appellant needed any further instruction, in this regard form the Apex Court. In due course, all matters relating to the custody of an accused, restricting his liberty or freedom of movement are to be dealt with by the Courts ceased of the criminal cases against him or by the Federal Government in terms of the Exit from Pakistan (Control) Ordinance, 1981 and the C.A No.870/2014, etc 9 rules framed thereunder. The superior Courts are, therefore, normally reluctant in passing orders of such nature, except in some exceptional circumstances, which is not the position here at this stage, as understandably the Respondent No.1 is facing trial before different criminal Courts/Special Court for the charged offences, which are competent to regulate all issues as regards his custody. 10. During the hearing of this appeal, we have more than once enquired from the learned Attorney General for Pakistan the stance of the Federal Government as to whether they intend to retain the name of respondent No.1 in the ECL for any valid reason in terms of the Exit from Pakistan (Control) Ordinance, 1981, and the rules framed thereunder, as reportedly several criminal cases against him are sub judice before different Courts/Special Court, but he was unable to come out with any specific instructions from the Federal Government in this regard, except that the inclusion of name of respondent No.1 in the ECL vide Ministry of Interior letter dated 05.4.2013 is solely on account of directions issued by the Court and for no other reason. In order to appreciate such arguments of learned Attorney General for Pakistan, we have also perused the said letter of the Ministry of Interior available in the Court file at Page-92, which reads thus:- “GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR **** No.12/74/2013-ECL Islamabad, the April 5, 2013 MEMORANDUM Subject: PLACEMENT OF EXIT CONTROL LIST. C.A No.870/2014, etc 10 It has been decided to place the name of General (Rtd) Pervez Musharaf (Passport # AJ0848364- Diplomatic) , on Exit Control List under Section 2 of Exit from Pakistan (Control) Ordinance, 1981. 2. All concerned are requested to take immediate action in the matter. (Mazhar Javed Rana) Section Officer (ECL) Tel:9208179” 11. A plain reading of this letter reveals that it was issued on 05.4.2013 i.e. three days before the ad-interim order referred to by the learned Attorney General for Pakistan without disclosing any reason and it also does not contain reference of any order or directions of the High Court or the Apex Court in this regard. Thus, looking to the legal position, as elaborately discussed by the High Court in the impugned judgment with reference to the case-law from Pakistani and Indian jurisdiction, and having analyzed peculiar facts and circumstances of the case, we have no hesitation to hold that the moment final order dated 03.7.2013, disposing of all the five connected petitions, was passed by this Court without extending any protection to the ad-interim order dated 08.4.2013, the same stood merged into the final order and lost its efficacy and operation forthwith. 12. Apart from the above discussion, considering the question of inclusion or retaining the name of respondent No.1 in the ECL, thereby restricting his freedom of movement, we also cannot C.A No.870/2014, etc 11 lose sight of the fact that under Article 15 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the Country, which cannot be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for this purpose. More so, when Article 4 of the Constitution further guarantees right to every individual, to be dealt with in accordance with law. It will be pertinent to mention here that in the shape of Exit from Pakistan (Control) Ordinance, 1981, read with Exit from Pakistan (Control), Rules, 2010, a complete mechanism is provided for the situation, which needs to restrict the movement of any person from going abroad, where there is lawful and valid justification for this purpose. But in the instant matter such option has not been exercised as yet by the Federal Government upon independent application of mind to the case of respondent No.1 or by the Special Court constituted under Article 6 of the Constitution or the other Courts of law where respondent No.1 is facing proceedings relating to different criminal cases registered against him. 13. Admittedly, order dated 08.04.2013 was passed before issuing notice of the petitions to Respondent No.1 and it was ad- interim or to say it interim or temporary in nature. The words ‘ad- interim’ and ‘interim’ have been defined in Black’s Law Dictionary (9th Edition) as under: “ad interim: In the meantime; temporarily.” C.A No.870/2014, etc 12 “interim: Done, made, or occurring for an intervening time; temporary or provisional.” From the above connotation of these two words, it is safely deducible that the above referred order, for all intent and purposes, was a temporary order, which stood merged/vacated in terms of the final order dated 03.07.2013. 14. The perusal of impugned judgment reveals that the learned Division Bench of the High Court of Sindh Karachi, has correctly appreciated the relevant facts of the case, aptly taken into consideration the case-law cited at the bar, and recorded valid and cogent reasons for granting requisite relief to the Respondent No.1, thereby striking down the memorandum No.12/74/2013-ECL dated 05.4.2013, issued by the Ministry of Interior. Not only this, but mindful of the sensitive nature and political hype of the issue, as an abundant precaution, it had also suspended the operation of impugned judgment for a period of 15 days to enable the appellant and proforma respondents to avail any other appropriate remedy, including their right to challenge the impugned judgment before the Apex Court. Still the appellant took no independent stance/decision in the matter, except following the remedy of challenging the said judgment in this appeal, which, as discussed above, is devoid of merits. 15. Foregoing are the reason for our short order dated 16.3.2016, which read as under:- C.A No.870/2014, etc 13 “We have heard the arguments of learned Attorney General for Pakistan on behalf of the Appellant and Dr. Farough Naseem, learned ASC for Respondent General (R) Parvez Musharraf. For the reasons to be recorded separately, this appeal is dismissed. However, this order will not preclude the Federation of Pakistan or the Special Court, seized of the proceedings under Article 6 of the Constitution against Respondent General (R) Parvez Musharraf, from passing any legal order for regulating his custody or restricting his movement. 2. The Misc. Applications for impleadment as party are dismissed, having become infructuous. CMA No.1099/2016, is not pressed by the learned ASC for the respondent, which is dismissed accordingly.” Islamabad, 16th March, 2016. Not approved for reporting. تقادص Chief Justice Judge Judge Judge Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, HCJ MR. JUSTICE RAJA FAYYAZ AHMED MR. JUSTICE CH. IJAZ AHMED Civil Appeal No.778 of 2005 (On appeal from the judgment dated 30.3.2005 passed by the High Court of Sindh, Karachi in C.P. No. D-652/ 2004) The Commissioner of Income Tax …. Appellant Versus M/s Eli Lilly Pakistan (Pvt.) Ltd. …. Respondent CAs No. 876-879 of 2005 (On appeal from the judgment dated 2.3.05 passed by High Court of Sindh, Karachi in CPs 643-646/04) The Commissioner of Income Tax …Appellant Versus M/s Honda Shahra-e-Faisal (AOP) Resp.in CA 876/05 Sh. Muhammad Amjad Maqbool in CA 877/05 Sh. Muhammad Mubashir in CA 878/05 Sh. Muhammad Afzal Maqbool in CA 879/05 CAs No. 1601-1625 of 2006 (On appeal from the judgment dated 5.10.06, 24.1.06, 26.1.06, 16.3.06, 24.3.06, 12.4.06, 29.3.6, 30.3.06, 21.4.06, 7.4.06, 28.3.06, 9.5.06, 10.8.06, passed by High Court of Sindh, Karachi in CP No.379/05, CP No. D 378/05, 1707/5, ITRA No.245-247/06, 169/06, ITR No.177-179/06, ITRA No.196-196 A/06, 197-198/06, 256/06, 203/06, 26/06, 225/06, 224/06, 235/06, 239/06, 230-231/06, 264/06, D-652/04, CP 643/04) The Commissioner of Income Tax …Appellant Versus M/s Aero Asia International (Pvt.) Ltd. Res. in CA 1601/06 CA 778-2005 ETC 2 M/s Fauji Oil terminal & Distribution Co. Ltd. in CA 1602/06 M/s Gul Ahmed Energy Ltd. in CA 1603/06 M/s Nippon Safety Glass Pak (Pvt.) Ltd. in CA 1604-06/06 M/s G.T.N. Fabrics (Pvt) Ltd. in CA 1607/06 M/s N.C.R. Corporation in CAs 1608-10/06 M/s Amin Textile Mills Ltd. in CAs 1611-14/06 M/s Jehangir Siddiqui & Co Ltd. in CA 1615/06 M/s Khayaban-e-Iqbal (pvt) Ltd. in CA 1616/06 M/s Packages Ltd. in CA 1617/06 M/s SAF Textile Mills Ltd. in CA 1618-19/06 M/s Fahad Security Service Ltd. in CA 1620/06 M/s Al-Rehman Security Services Ltd. in CA 1621/06 M/s Al-Fatah Security Services Ltd. in CA 1622-24/06 M/s Sui Southern Gas Ltd. in CA 1625/06 CAs No. 2670-2687 of 2006 (On appeal from the judgment dated 22.8.06, 31.5.06, 15,9.06, 26.9.06, 22.9.06, 28.9.06 passed by High Court of Sindh, Karachi in ITR Nos. 404-406, 492/06, 272/06, 436-439/06, 450-452/06, 512-513/06, 263/06, 298/06, 307-308/06) The Commissioner of Income Tax …Appellant Versus M/s B.P. Industries Ltd. Resp.in CA 2670-72/06 M/s Pakistan Refinery Ltd. in CA 2673/06 M/s Haji Muhammad Suleman in CA 2674/06 M/s Oxyplast (Pvt) Ltd. in CAs2675-78/06 M/s Maroof Security Services (Pvt) Ltd. in CAs 2679-81/06 M/s Zever Chemical Ltd. in CAs 2682-83/06 M/s Sui Southern Gas Ltd. in CA 2684/06 M/s Hashoo Holding (Pvt) Ltd. in CA 2685/06 M/s Rupali Bank Ltd. in CA 2686-87/06 CAs No. 585-595 of 2007 (On appeal from the judgment dated 19.10.06, 28.11.06, 14.11.06, 14.11.06, 13.10.06, 26.9.06, 10.10.06, 17.10.06, 17.11.06, passed by High Court of Sindh at Karachi in ITRA No.490/06, 49/06, 555/06, 559/06, 539/06, 510-511/06, 536-537/06, 541/06, 558/06) The Commissioner of Income Tax …Appellant Versus M/s Evian Fats and Oil (Pvt) Ltd. Res. in CAs 585-586/07 M/s Dawlance (Pvt) Ltd. in CA 587/07 M/s Baba Farid Sugar Mills Ltd. in CA 588/07 M/s Model Homes in CA 589/07 M/s Zever Chemical Ltd. in CAs 590-91/07 M/s Mehran Sugar Mills Ltd. in CAs 592-93/07 M/s Irfan Iqbal Puri in CA 594/07 M/s Zed Pak Cement Factory Ltd. in CA 595/07 CA 778-2005 ETC 3 CAs No. 706-707 of 2007 (On appeal from the judgment dated 21.11.06 and 24.01.07, passed by High Court of Sindh, Karachi in ITRA No.472-473/06) The Commissioner of Income Tax …Appellant Versus Daud Ahmed Res. in both cases CAs No. 1369-1404 of 2007 (On appeal from the judgment dated 24.1.07, 11.1.07, 20.2.07, 21.5.07, 24.1.07, 6.2.07, 12.9.07, 18.5.07, 26.4.07, 22.10.07, passed by High Court of Sindh, Karachi in ITRA No.603/06, 590/06, 23-24/07, 613- 614/06, 5-7/07, 604/06, 211/06, 73/07, 92-115/07) The Commissioner of Income Tax …Appellant Versus M/s Waken Hut (Pvt) Ltd. Res. in CA 1369/07 M/s S.R.S Industrial Corp. (Pvt.) Ltd. in CA 1370/07 M/s Kashmir Corporation (Pvt) Ltd. in CAs 1371-72/07 M/s Ahmed Ibrahim Agency (Pvt) Ltd. in CAs 1373-74/07 M/s Condor Security Services (Pvt) Ltd. in CAs 1375-77/07 M/s Nadeem Brothers in CA 1378/07 M/s Al Fatah Security Services (Pvt.) Ltd. in CA 1379/07 M/s Haseeb Spinning Mills Ltd. in CA 1380/07 M/s Muhammad Saeed Transporters in CA 1381-83/07 M/s Dost Muhammad Transporters in CA 1384-86/07 M/s Abdul Rashid Transporters in CA 1387-89/07 M/s Arshad Hussain Transporters in CA 1390-92/07 M/s Muhammad Imran Transporters in CA 1393-95/07 M/s Ali Agencies Distributors Medicine in CA 1396/07 M/s Muhammad Saleem Transporters in CA 1397-99/07 M/s Muhammad Jawaid Transporters in CA 1400-01/07 M/s Muhammad Ramzan Transporters in CA 1402-04/07 CAs No. 459-501 of 2008 (On appeal from the judgment dated 22.10.07, 30.11.06, 26.10.07, 31.10.07, 17.12.07, passed by High Court of Sindh, Karachi in ITR No.233 - 265/07, 576-577/06, 578/06, 197/07, 230 - 232/07, 380-382/07) The Commissioner of Income Tax …Appellant Versus M/s S.C. Jhonson and sons (pvt) Ltd. Resp. in CA 459/08 M/s Pak. Security Services Ltd. in CA 460-465/08 M/s Global Security Pakistan Ltd. in CA 466/2008 M/s Shahzad Security Services (pvt) Ltd. in CA 467-70/08 M/s Bawany Air Products Ltd. in CA 471-474/08 CA 778-2005 ETC 4 M/s Naurus (Pvt) Ltd. in CA 475-477/08 M/s Security & Management Services Ltd. in CA 478-80/08 M/s Rhone Poulene (Pvt) Ltd. in CA 481-83/08 M/s Industrial Chemicals (Pvt) Ltd. in CA 484/08 M/s Gama Silk Mills Ltd. in CA 485/08 M/s Pakistan Emerging Ventures Ltd. in CA 486/08 M/s Aluminum Company of Pakistan Ltd. in CA 487/08 M/s Continental Furnishing Co. Ltd. in CA 488/08 M/s Mass Advertising (Pvt) Ltd. in CA 489/08 M/s Superior Security Guards Ltd. in CA 490-91/08 M/s Sibaro Agencies (pvt) Ltd. in CA 292-494/08 M/s Pak. Hi Oils (Pvt) Ltd. in CA 495/08 M/s General Trading Establishment in CA 496/08 M/s Tin Box in CAs 497-498/08 M/s Blitz Security Services (Pvt) Ltd. in CAs 499-501/08 CAs No. 783-791 of 2008 (On appeal from the judgment dated 3.4.08, 2.4.08, passed by Islamabad High Court, Islamabad in RA No. 50-52, 56-58/07, 62/07, 63/07) The Commissioner of Income Tax …Appellant Versus M/s National Highway Authority Resp. in CAs 783-788/08 M/s Security Investment Bank Ltd. in CAs 789-791/08 CAs No. 803-1039 of 2008 (On appeal from the judgment dated 3.4.08, 2.4.08, 7.4.08, 14..4.08, 10.4.08, passed by Lahore High Court, Multan Bench in PTR Nos. 10/07, 10/06, 27/06, 35/06, 04/07, 64/07, 11-12/07, 23-25/07, 30-33/07, 47-52/07, 61/07, 63/07, 16/08, 19/08, 42/08, 09/07, 17/07, 18/07, 54-56/07, 76/07, 59/07, 26-27/08, 30/08, 386/06, 372/07, 405-406/07, 531/07, 533/07, 550-51/07, 612-14/07, 661- 63/07, 674/07, 698/07, 849/07, 880-81/07, 532/07, 534/07, 540/07, 1-3/08, 513/07, 629/07, 635/07, 707- 10/07, 816/07, 821/07, 469-471/07, 630-33/07, 773/07, 777-780/07, 805-808/07, 830-831/07, 886-888/07, 334- 339/07, 511-12/07, 625-26/07, 636-39/07, 715/07, 123/07, 202/07, 206/07, 221-22/07, 241-42/06, 251- 52/07, 355/06, 360/06, 374-375/07, 413/06, 464/07, 505-507/07, 580-584/07, 593-596/07, 679/07, 841/07, 882-885/07, 208/06, 356/06, 592/07, 172-173/07, 289- 290/07, 347-348/07, 359/07, 415/07, 418-421/07, 459/07, 461/06, 465/07, 446/07, 467-468/07, 495- 499/07, 519-520/07, 640/07, 642-644/07, 684/07, 793/07, 823-824/07, 837-838/08, 842-844/07, 852- 864/07, 37/07, 78/08, 114/07, 151-154/07, 166-171/07, 174/07, 248-250/07, 262-263/05, 118/06, 23-24/07, 34- CA 778-2005 ETC 5 36/07, 102/07, 177-179/07, 183-184/07, 189/07, 244/07, 294/07, 358/07, 391-92/07, 462-63/07, 734/07, 4/08) The Commissioner of Income Tax …Appellant Versus Khalid Javed Resp. in CA 803/08 Intizar Ali Prop. M/s Bismillah in CA 804/08 Munazza Iqbal in CAs 805-06/08 M/s Circle ‘M’ Co. (Pvt) Ltd. in CA 807/08 Rana Shahid Hussain, in CA 808/08 Khalid Javed, Prop. Laureates Public School in CAs 809-10/08 M/s Jalandhar Autos Workshop Multan in CAs811-813/08 Allah Diya Sh. in CA 814/08 Muhammad Khalid in CA 815/08 M/s Chaudhry Electronics Distt. Pakpattan in CA 816/08 M/s Pakistan Poultry Enterprises in CA 817/08 Muhammad Amin in CA 818/08 Mistry Ilam Din Repair Works in CA 819/08 M/s Karam Pansar Store, Pakpattan in CA 820, 22, 23/08 M/s Javed Iron Store in CA 821/08 Ch. Abdul Rehman in CA 824/08 Zia ur Rehman in CA 825/08 Three Star Paper Cone, Industries in CA 826/08 M/s Sh. Muhammad Abbas in CA 827/08 Mudassar Hussain in CA 828/08 Zia ul Hassan Siddiqui in CA 829/08 M/s Shafique Building Material Store in CA 830/08 M/s Safdar Naeem in CA 831/08 M/s Lucky Steel in CAs 832-34/08 Nishat Merzia Khanum in CA 835/08 Akhtar Ali Ansari in CA 836/08 M/s Honda Breeze Multan in CA 837-839/08 M/s Phalia Sugar Mills in CA 840/08 M/s Ibrahim Fibers Ltd. in CA 841/08 M/s Imperial Electrical Company ltd. in CAs 842-43/08 M/s Hybrid Techniques (Pvt) Ltd, Lahore in CA 844/08 M/s Crescent Steel & Allied Products Ltd in CA 846/08 M/s Shams Textile Mills Ltd. in CA 847/08 M/s Fine Gas Co. (Pvt) Ltd. in CAs 848-50/08 M/s Hajra Textile Mills Ltd. in CAs 851-53/08 M/s Resham Textile Mills Ltd. in CA 854/08 M/s Sarfraz Yaqoob Textile Mills Ltd in CA 855/08 M/s Sui Northern Gas Pipelines Ltd in CA 856-58/08 M/s Hybrid Techniques (Pvt) Ltd, Lahore in CA 859/08 M/s Rupail Ltd, Lahore in CA 860/08 Prime Commercial Bank, Ltd in CA 861/08 M/s Security Solutions (Pvt) Ltd. in CA 862-64/8 M/s Airsys ATM Ltd. in CA 865/08 M/s Idrees Cloth House in CA 866/08 M/s Sh. Shahid Rashid in CA 867/08 M/s Malik Manzoor Hussain & Co. in CA 868-71/08 Mian Muhammad Zahoor in CA 872/08 Tariq Garments, Lahore in CA 873/08 CA 778-2005 ETC 6 M/s Ammar Medical Complex Ltd. in CA 874/08 M/s Ammar Medical Complex Ltd in CAs 875-76/08 Kh. Khawar Rashid in CAs 877-80/08 Shahzad A. Mumtaz in CA 881/08 Siddiqui Brothers (Pvt) Ltd. in CAs 882-85/08 M/s Reem Rice Mills (Pvt) Ltd in CAs 886-89/08 M/s Muhammad Saeed in CA 890/08 M/s Punjab Oil Mills Ltd in CA 891/08 M/s Ravi Spinning Mills Ltd in CAs 892-94/08 M/s Thal Industries Ltd. in CAs 895-900/08 M/s Airsys ATM Ltd in CAs 901-02/08 M/s Kh. Mahboob Elahi in CAs 903-06/08 M/s Kh. Shahid Rashid in CAs 907-10/08 M/s Four Star (Pvt) Ltd in CA 911/08 M/s Moto Travel (Pvt) Ltd in CA 912/08 M/s Indus Fruit Products Ltd in CA 913/08 M/s Taiwan Chinese Restaurant (Pvt) Ltd in CA 914/08 M/s Asim Siddique Associates in CA 915/08 M/s Micko Industrial Chemicals (Pvt) Ltd in CA 916/08 M/s Lipa Security Services (Pvt) Ltd in CA 917-18/08 M/s Hafeez Shafi Tanneries (Pvt) Ltd in CAs 919-20/08 M/s Asif Paint Industries in CA 921/08 M/s Riasat Ali in CA 922/08 M/s Honda Fort (Pvt) Ltd in CAs 923-24/08 M/s Mohammad Sarwar in CA 925/08 M/s Newage Plastic (Pvt) Ltd in CA 926/08 M/s Ahad Fibers (Pvt) Ltd in CAs 927-29/08 M/s Tayyab Textile Mills (Pvt) Ltd in CA 930/08 M/s Sahil Ltd. in CA 931/08 M/s Hermes on Line (Pvt) Ltd in CAs 932-34/08 M/s Anjum Atta Sheikh in CAs 935-38/08 M/s Akaasul Musaffa (Pvt) Ltd in CA 939/08 M/s Muhammad Hafeez Khan in CA 940/08 M/s Best Foods USA (Non resident) in CAs 941-44/08 M/s Premier Rice Mills Gujrat in CA 945/08 Ch. Riasat Ali in CA 946/08 Mian Pervaiz Akhtar in CA 947/08 M/s Amin Sajjad Heera in CAs 948-49/08 M/s Pak. Pipe Steel Industries in CA 950/08 M/s International Currency Exchange in CA 951/08 M/s Allah Walay Jewelers in CA 952/08 Muhammad Yousaf in CA 953/08 Faisal Metal Works in CA 954/08 M/s PCA Cargo (Pvt) Ltd. in CA 955/08 Imran Shafi Curtain Point in CA 956/08 M/s Muhammad Farooq Prop. Jinnah Autos in CAs 957-59/08 M/s Feed Industries (Pvt) Ltd in CA 960/08 M/s Ch. Engineering Co. in CA 961/08 M/s Honda Homes in CA 962/08 M/s Muhammad Asif Prop. Honda Palace in CAs 963-65/08 M/s Aslam Flour Mills (Pvt) Ltd in CAs 966-968/08 M/s Sonex Metal Industries (Pvt) Ltd in CAs 969-70/08 M/s Gojra Tannery in CAs 971-972/08 CA 778-2005 ETC 7 M/s K.K. Chicks in CA 973/08 M/s Sonica Plastic Industries in CA 974/08 M/s Butt Traders Commission Agent in CAs 975-76/08 M/s Mahboob Elahi & Sons in CA 977/08 M/s Khyzer Hayat in CA 978/08 M/s Gujranwala Gas in CAs 979-80/08 M/s Nasir Pervaiz Hardware Store in CA 981/08 M/s Nasim Impex Cloth House in CA 982/08 M/s Mahmood Ali in CA 983/08 M/s Ch. Rice Mills in CA 984/08 M/s Muhammad Latif Kunda Maker in CA 985/08 M/s Zaka Ullah, Saif Ullah PEPSI Agency in CA 986/08 M/s Mahboob Elahi & Sons (Pvt) Ltd in CAs 987-88/08 M/s Shahid Hardware Store in CAs 989-91/08 Ejaz-ul-Haq in CAs 992-94/08 Javed Iqbal in CA 995/08 Gondal Traders in CA 996/08 Madina Traders in CA 997/08 M/s Abdul Rauf & Brothers in CA 998/08 M/s ICARO (Pvt) Ltd. in CA 999/08 M/s Kohinoor Smith (Pvt) Ltd in CA 1000/08 M/s Ravi Security Guard (Pvt) ltd in CA 1001/08 M/s Kh. Electronics (Pvt) Ltd in CAs 1002-3/08 Mrs. Saleh Ahmed in CAs 1004-5/08 Mst. Mumtaz Begum in CA 1006-7/08 M/s Siza International (Pvt) Ltd in CAs 1008-11/08 M/s International Manpower Lahore Cantt. in CA 1012/08 M/s Taq International Cargo Services (Pvt) in CAs 1013-15/08 M/s Bright Career School in CAs 1016-17/08 M/s Nafees Legler Denim Mills Ltd in CA 1018/08 M/s Dawchem (Pvt) Ltd in CA 1019-20/08 M/s ICARO (Pvt) Ltd. in CA 1021-23/08 M/s Essena Foundation (Pvt) Ltd in CA 1024/08 M/s Ghulam Rasool Co. (Pvt) Ltd in CAs 1025-27/08 Mrs. Sobia Haroon in CA 1028/08 M/s Shera Films Corp. Lahore in CA 1029/08 M/s Buro Interiart (Pvt) in CA 1030/08 M/s Ghousia Embroidery Lahore in CA 1031/08 M/s Sargodha Textile Mills Ltd in CA 1032/08 M/s Misto Industries (Pvt) Ltd in CA 1033/08 M/s H. H. Associates, Lahore in CAs 1034-35/08 M/s A. R. Tannery, Kasur in CA 1036/08 M/s Salamat School System, Lahore in CA 1037/08 M/s Popular Medical Service, Lahore in CA 1038/08 M/s Security Solutions (Pvt) Ltd. in CA 1039/08 CAs No.1148-1150 of 2008 (On appeal from the judgment dated 12.3.2008 passed by Lahore High Court, Rawalpindi Bench in TR Nos. 60/07, 100-101/06) CA 778-2005 ETC 8 The Commissioner of Income Tax …Appellant Versus Qamar-uz-Zaman (in all cases) …Respondent CIVIL PETITION No.1245 OF 2008 (On appeal from the judgment dated 13.3.08 passed by Lahore High Court, Rawalpindi Bench in TR No.110/06) The Commissioner of Income Tax …Petitioner Versus M/s Attock Refinery Ltd, Morgah, Rwp. …Respondent CAs No.1492-1509 of 2008 (On appeal from the judgment dated 10.4.2008 passed by Lahore High Court, Lahore in PTR Nos. 460-61/06, 453/06, 500/07, 617-18/07, 817-818/07, 832-833/07, 868-70/07, 889-93/07) The Commissioner of Income Tax …Appellant Versus M/s Jhelum Valley Coal (Pvt) Ltd Resp..in CAs 1492-93/08 Mian Maqsood Ahmed C/o Mumtaz Foundry in CA 1494/08 Mst. Ghazala Roohi C/o Ittefaq Co. in CA 1495/08 M/s M.E.C. Engineering Works (Pvt) Ltd in CAs1496-97/08 Sami Ullah Sheikh in CAs1498-99 M/s Millat Enterprises (Pvt) Ltd in CA 1500/08 Muhammad Aslam Rahi in CA 1501/08 M/s Aized Beverage Industries (Pvt) Ltd in CA 1502/08 M/s Mohsan Rashid (Pvt) Ltd. in CAs 1503-4/08 M/s Faisalabad Education Foundation in CAs 1505-13/08 CAs No. 1847-1849 of 2008 (On appeal from the judgment dated 17.9.2008 passed by Lahore High Court, Lahore in ITRA Nos. 230-32/07) Commissioner (Legal Division) …Appellant Versus Cherat Electric Ltd. Karachi …Res. in all cases CAs No. 2257-2281, 2283-2311 of 2008 (On appeal from the judgment dated 23.9.2008 passed by Lahore High Court, Lahore in PTR Nos. 35-36/08, 106-108/08, 207/08, 316-18/08, 338-39/08, 438/08, 47/08, 63-67/08, 98-99/08, 133-36/08, 163/08, 165- CA 778-2005 ETC 9 74/08, 253/08, 274/08, 348/08, 409/08, 432-33/08, 25/08, 175-76/08, 250/08, 252/08, 320/08, 323/08, 325/08, 327/08, 330-31/08, 333/08, 335/08) The Commissioner of Income Tax …Appellant Versus Zameer Parvez Shah Resp. in CA 2257-58/08 Ali Raza Ayub in CA 2259/08 Muhammad Saleem Akhtar in CA 2260/08 M/s Faisal Hospital in CA 2261/08 M/s Masood Textile Pvt. Ltd. in CA 2262/08 M/s Asghar & Son (Pvt) Ltd. in CA 2263/08 Muhammad Saleem in CA 2264/08 M/s Jawad Traders in CA 2265/08 Misbahuddin Zaighum in CA 2266/08 Saifuddin Moazzam in CA 2267/08 Muhammad Iqbal in CA 2268/08 M/s Highland Travel (Pvt) Ltd. in CA 2269/08 Muhammad Faheem Qureshi in CA 2270/08 M/s Muhammad Amin in CA 2271-74/08 Rashid Ahmad in CA 2275-76/08 Abid Hassan Minto in CA 2277-78/08 Suleman Zafar Siddiqui in CA 2289/08 Masood Ali Khan in CA 2280/08 M/s N.B. Modaraba Management Co. Ltd. in CA 2281-92/08 Sultan Hussain Batalvi in CA 2293/08 M/s Ansari Variety Store in CA 2294/08 M/s Time & Tune Lahore in CA 2295/08 M/s Rehman A Fitting & Pipe Ind. In CA 2296/08 M/s Nadeem Zoki, Photographer in CAs 2297-98/08 M/s Pak Forest Industries (Pvt) Ltd. in CA 2299/08 Sikandar Gulzar in CA 2300-01/08 Shahid Hussain in CA 2302/08 Salman Hussain Batalvi in CA 2303/08 M/s Empire Developers in CA 2304/08 M/s Mian Aftab Ahmad in CA 2305/08 M/s S.B. Tools in CA 2306/08 M/s Pak. Pink Carpets (Pvt) Ltd. in CA 2307/08 M/s Mechanized Construction of Pakistan in CA 2308/08 M/s Fine Steel Mills in CA 2309/08 M/s Punjab Surgical Sale Centre in CA 2310/08 M/s Continental Banking (Pvt) Ltd. in CA 2311/08 CA No. 1322 of 2007 (On appeal from the judgment passed by Lahore High Court, Lahore in W.P. No. 3474/03) C.B.R. thru. Its Chairman and others Appellants Versus M/s Siara Industries Respondent CA 778-2005 ETC 10 CAs No. 115-118 of 2008 (On appeal from the judgment dated 24.9.07 passed by Peshawar High Court, Peshawar in TR Nos. 32-35/07) The Commissioner of Income Tax …Appellant Versus M/s Muhammad Alam Fertilizers Respondent in all CA No. 1491 of 2008 (On appeal from the judgment dated 10.4.08 passed by Lahore High Court, Lahore in PTR No.147/05) The Commissioner of Income Tax …Appellant Versus M/s Sultan Trading Company …Respondent CAs No.7-9 2008 (On appeal from the judgment dated 22.10.08 passed by Peshawar High Court in TRs No.61-63/07) The Commissioner of Income Tax …Appellant Versus M/s Frontier Sugar Mills Respondents in all CAs No. 1984- 2046 of 2007 (On appeal from the judgment dated 18.5.07 passed by High Court of Sindh at Karachi in ITRA Nos. 42-70/07, 126-128/07, 129-140/07, 142-147/07, 170-171/07,187- 195/07, 120-121/07) The Commissioner of Income Tax …Appellant Versus A.C.B. (Pvt) Ltd. Resp. in CA 1984/07 M/s B.M.A Capital Management in CA 1985-86/07 M/s Invest Capital & Security (Pvt) Ltd. in CA 1987-88/07 M/s Al-Khalid Security Services, Ltd. in CA 1989-91/07 M/s Hyder Security Services (Pvt) Ltd. in CA 1992-95/07 M/s Defender Security Services in CA 1996-98/07 M/s Zim’s Security (Pvt) Ltd. in CA 1999-2000/07 M/s Modaraba Al-Tijarah in CA 2001-03/07 M/s Beep Guard (Pvt) Ltd. in CA 2004-06/07 M/s Mars Security Services (Pvt) Ltd. in CA 2007-10/07 M/s Plastiko Industries (Pvt) Ltd. in CA 2011-12/07 M/s Ahmed Estate (Pvt.) Ltd. in CA 2013/07 M/s Ibrahim Agencies (Pvt) Ltd. in CA 2014-15/07 M/s National Institutional Facilitation in CA 2016-18/07 M/s Shamsher Security Guards (Pvt) Ltd. in CA 2019-22/07 CA 778-2005 ETC 11 M/s Safety & Security (Pvt) Ltd. in CA 2023-26/07 M/s Farid Construction in CA 2027-32/07 M/s Noor Muhammad Shahzada & Co. in CA 2033/07 M/s Steelex (Pvt) Ltd. in CA 2034/07 M/s Shafique Textile Mills (Pvt) Ltd. in CA 2035/07 M/s Security Two Thousand (Pvt) Ltd. in CA2036-39/07 Agha Irshad Ahmad Khan in CA 2040/07 Nobel Security Operation (Pvt) Ltd. in CA 2041-42/07 Riaz Ahmad Tata in CA 2043/07 M/s Butt Sons Fisheries in CA 2044-45/07 M/s Ibrar Shoes Industries in CA 2046/07 CAs No. 291-292 of 2008 (On appeal from the judgment dated 31.10.2007 passed by High Court of Sindh, Karachi in ITRA No.149-150) The Commissioner of Income Tax …Appellant Versus M/s Islam Oil Mills Resp. in CA 291-92/08 CAs No. 1099-1101 of 2008 (On appeal from the judgments dated 10.4.2008 passed by Lahore High Court, Multan Bench in PTR No.9-11/08 The Commissioner of Income Tax …Appellant Versus Mst. Nusrat Sultana Respondents in all Civil Petitions No.12-13 of 2009 (On appeal from the judgment dated 23.9.08 passed by Peshawar High Court, Peshawar In TR Nos. 33-34/08) The Commissioner of Income Tax … Appellant Versus Hakim Abdul Waheed Afghani Dawakhana … Respondent in all CAs No. 30-32 of 2009 (On appeal from the judgment dated 31.10.2008 .passed by High Court of Sindh, Karachi in IRTA Nos. 985-86/08 and 397/07) The Commissioner of Income Tax …Appellant Versus M/s Lahmayar International Resp. in CA 30-31/09 M/s Meezan Bank (Pvt) Ltd. in CA 32/09 CA 778-2005 ETC 12 CAs No. 33-57 of 2009 (On appeal from the judgment dated 23.9.2008 passed by Lahore High Court, Lahore in PTR Nos.17-19/08, 31/08, 77-78/08, 147-150, 206/09, 226-31/08, 264-68/08, 384/08, 399-400/08) The Commissioner of Income Tax …Appellant Versus M/s Ali Bricks Company in CA 33-34/09 M/s Saleemi Brothers Khad Dealer in CA 35/09 M/s Tatrapack Pakistan Ltd. in CA 36/09 M/s Iftikhar Ahmad printers in CA 37/09 M/s Haji Corporation in CA 38/09 M/s Master Traders Khad Dealers in CA 39/09 M/s Haroon Textile Industries in CA 40/09 M/s Zafar Iqbal Printers in CA 41/09 M/s Amjad Autos in CA 42/09 M/s Mughal Industries in CA 43/09 M/s Pattoki Sugar Mills in CA 44-49/09 M/s Umar Fabrics in CA 50-54/09 M/s Madina Autos in CA 55/09 M/s Rana Faisal Rauf in CA 56/09 M/s Sarfraz & Co. in CA 57/09 CAs No. 112-113 of 2009 (On appeal from the judgment dated 4.11.08 passed by Peshawar High Court, Peshawar in TR No.108-109/07) The Commissioner of Income Tax …Appellant Versus Jack & Jell Public School Respondent in all CAs No. 122-123 of 2009 (On appeal from the judgment dated 6.11.2008, passed by Peshawar High Court, Peshawar in TR No.84, 98/06) The Commissioner of Income Tax …Appellant Versus Haji Muhammad Amin Resp. in CA 122/09 Nisar Ahmad in CA 123/09 CAs No. 163-164 of 2009 (On appeal from the judgment dated 9.4.2008 passed by Islamabad High Court, in ITR Nos.842-843/08) The Commissioner of Income Tax …Appellant Versus CA 778-2005 ETC 13 M/s Agriculture Development Bank Resp. in CA 163/09 M/s Sun Gas (Pvt) Ltd. in CA 164/09 CAs No.281-283 of 2009 (On appeal from the judgment dated 1.12.2008 & 19.11.08 passed by Peshawar High Court, Peshawar in TR No.21/07, 74-75/07) The Commissioner of Income Tax …Appellant Versus M/s Allied Pak Industries (Pvt) Ltd. Resp. in CA 281/09 M/s Abasin Auto Store in CA 282-83/09 CAs No.1102-1110 of 2008 (On appeal from judgment dated 10.4.08, passed by Lahore High Court, Multan Bench in PTR Nos. 12/08, 1/08, 14-16/08, 25/07, 127/07, 175-176/07, 9-10/08, 11/07) Commissioner of Income Tax …Appellant Versus Sheikh Asghar Mehmood Resp. in CA 1102/08 M/s Umar Khalid & Co. in CA 1103/08 M/s Punjab Printing Mills (Pvt) Ltd. in CA 1104-06/08 M/s Dawchem (Pvt) Ltd. in CA 1107/08 Muhammad Umar in CA 1108/08 M/s International Manpower Lahore in CA 1109-10/08 For the appellants/: Sardar Muhammad Latif Khan Khosa petitioners Attorney General for Pakistan assisted by Sardar Muhammad Ghazi, DAG Mr. Zubair Khalid, ASC Mr. Abdul Waheed, ASC Sardar Shahbaz Khosa, Advocate Mr. Muhammad Ilyas Khan, Sr. ASC (C.As. No.803-864, 912-1039, 2251-2311, 874-894/2008) Mr. M.Bilal, Sr. ASC Ch. Akhtar Ali, AOR. (C.As. No. 163-164/2009) Raja Muhammad Bashir, Sr. ASC Mr. Mehr Khan Malik, AOR (C.As. No.291-292, 1149 & 1150/2008) Mr. Akhtar Ali Mehmood, ASC CA 778-2005 ETC 14 (in CA 876-79/05, 1602/06, 1617-1619/06, 587-593/07, 1381-1395/07) Mr. A.S.K. Ghauri, AOR (CA 778/05, 1601/06, 1608-1614, 1616, 1624, 1625, 2670-73, 2686-87/06, 585-86, 1369-1377, 1379-1404, 1984-2046/07, 459-501/08 Mr. Shahid Jameel, ASC (in CA 707/07, 33-57/09, CPs 12-13/09, Mr. M.S. Khattak, AOR. (in CA 707/07, 112-113, 122-123/09 and, CPs 12-13/09) Mr. Muhammad Farid, ASC (C.As. No. 1620-1624/2006) Syed Arshad Hussain, ASC (C.A. No.2673/2006) Hafiz Muhammad Idrees, ASC (CA 355/09) Raja Abdul Ghafoor, ASC/AOR (C.P. No. 1245/2008 & C.As. No. 1322/2007, & 115-118 & 1491-1513/2008 Mr. Mehmood A. Sheikh, ASC/AOR (C.A. No.7-9/2009) Ch. Akhtar Ali, AOR (CA 1604-1607, 1615, 2677-2682/06, 590, 591, 594/07, 783-791/08) Mr. Mumtaz Ahmed, Member (Legal), FBR Nemo. (in the remaining cases) For the respondents: Mr. Mansoor-ul-Arifin, Sr. ASC (C.As. No. 876-879/2005) Mr. Israr-ul-Haq, ASC (CA 32/09 Mr. Rehan Hassan Naqvi, ASC & Ms. Lubna Pervez, ASC (CA 1611-15/06, 587/07) Mr. Badar Villani, ASC (CA 459/08) CA 778-2005 ETC 15 Mr. Umar Mehmood Kasuri, ASC (CAs 865, 901, 902 & 914/08) Mr. Salman Akram Raja, ASC Mr. Ejaz Muhammad Khan AOR: (CAs 50-54/09) Mr. Sirajuddin Khalid, ASC (CAs 826, 837-839, 1025-1027/08 Dr. Farough Naseem, ASC (CA 1602/06) Mr. Muhammad Rashid Qamar, ASC (CA 163/09) Mr. Noor Muhammad Chandio, ASC (CA 895-900/08) Kh. Ibrar Majal, ASC (CAs 966-968/08) Mr. Zaeem-ul-Farooq Malik, ASC (CA 926/08) Mr. Hamid Shabbir Azar, ASC (CA 848/08) Qari Abdur-Rashid, ASC Ch. Muhammad Akram, AOR (CA 2261/08) Syed Naveed Andrabi, ASC Mr. Faizur Rehman, AOR (CA 778/05 & 941-944/2008) Mr. Shafqat Mehmood Chohan, ASC Mian Muhammad Akhtar, ASC (CA 669, 670, 919,928, 962, 2263/08 & 38,39/09 Mr. Farhat Nawaz Lodhi, ASC (C.P. No. 1245/2008) Mr. Hakam Qureshi, ASC Ch. Akhtar Ali, AOR (CA 1149/08) Mr. Fauzi Zafar, ASC (CA 921, 952-960/08) Mr. Abdul Rehman Siddiqui, ASC CA 778-2005 ETC 16 Mr. Arshad Ali Chaudhry, AOR (CA 475-77 & 89/08) Mr. Muhammad Shoaib Abbasi, ASC Mr. G.N. Gohar, AOR (CA 115-118/08) Mr. Irfan Ahmad Sheikh, ASC (CA 923-924/2008) Mr. Iqbal Suleman Pasha, ASC (CA 1625,2684/06 & 592-93, 1369, 2007- 2010, 2016-18/07 & 1847-1849/08) Mr. Shahbaz Butt, ASC (CAs 841, 856-858, 891,911,916,971, 972, 1002, 1003, 1099, 1100, 1502, 1505-1512, 2281, 2292, 2114-2115/2008, 36/09 & CP 12/09) Mr. Muhammad Iqbal Hashmi, ASC Mr. Faizur Rehman, AOR (CAs 825,854, 1008-1010, 1013-15, 1111, 1491, 1500, 1501, 2264, 2304/08) Ms. Edwina Williams (in person) (CAs 112-113/09) Nemo (in the remaining cases) Dates of hearing: 15th, 16th, 17th, 21st, 22nd and 28th April & 4th, 5th, 11th & 19th May, 2009 JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, C.J. – In Civil Appeals No. 876 to 879/2005, leave to appeal was granted, inter alia, to examine whether the provision contained in subsection (5A) of section 122 of the Income Tax Ordinance, 2001, (hereinafter referred to as the Ordinance) inserted w.e.f. 1st July 2003 was procedural in nature and was retrospective in operation or otherwise. 2. The above four appeals arise out of a judgment of the Sindh High Court passed in Constitution Petitions No. D-643 to D-646 of 2004. CA 778-2005 ETC 17 The respondent M/S Honda Shahra-e-Faisal, an association of persons, namely, Shaikh Afzal Maqbool, Shaikh Mubashir Maqbool and Shaikh Amjad Maqbool, respondents in Civil Appeals No. 877, 878 & 879 of 2005 derived income from sale of spare parts and workshop receipts. The assessments in respect of the aforesaid respondents pertaining to the assessment year 2002-2003 were finalized on 20.05.2003 under section 59(1) of the Income Tax Ordinance, 1979 (hereinafter referred to as the repealed Ordinance). The Additional Commissioner of Income Tax, Range- II, Companies Zone-I, Karachi initiated proceedings under section 122 (5A) of the Ordinance calling upon the respondents to show cause as to why the above finalized assessments be not amended. Aggrieved thereof, the respondents filed Constitution Petitions before the High Court of Sindh taking the plea that since subsection (5A) of section 122 was inserted by the Finance Act, 2003 dated 17.06.2003, effective from 01.07.2003, therefore, the same could not be given retrospective effect and consequently it would not be applicable to the assessments finalized before 01.07.2003. The learned High Court, vide its judgment dated 02.03.2005 (hereinafter to be referred to as the Honda Shahra-e-Faisal) allowed the petitions and held that the provision contained in subsection (5A) of section 122 of the Ordinance, inserted with effect from 01.07.2003 was not retrospective in operation. It was held that the assessments finalized before the said date could not be reopened/revised/ amended in exercise of the jurisdiction conferred upon the income tax authorities under the above provision. Thus, the impugned notices were declared to be without jurisdiction, illegal and void ab initio and were quashed along with the relevant proceedings, hence the above appeals by the department by leave of this Court. CA 778-2005 ETC 18 3. The Constitution Petitions, which are the subject-matter of C.As. No. 1601 to 1603 of 2006 were also filed in the High Court of Sindh against the issuance of show cause notices in more or less similar circumstances and were decided on the basis of Honda Shahra-e-Faisal. 4. Civil Appeals No. 1604 to 1625, 2670 to 2683, & 2685 to 2687 of 2006; 585 to 595, 706, 707, 1369 to 1404, & 1984 to 2046 of 2007; 291, 292, 459 to 499, 870 & 1847 to 1849 of 2008, 30 to 32 of 2009 also arise out of judgments of the High Court of Sindh passed in the tax references filed by the appellants. Here too, the judgment in Honda Shahra-e-Faisal was followed. 5. Civil Appeals No. 803 to 839 of 2008 arise out of judgments of the Lahore High Court, Multan Bench delivered in the tax references filed before it on the following question of law: - “Whether on the facts and circumstances of the case, the learned ITAT was justified in holding that section 122(5) of the Income Tax Ordinance, 2001 brought into statute through Finance Act, 2003 is not applicable to the assessments completed before the promulgation of the Income Tax Ordinance, 2001, whereas the amendment brought in through Finance Ordinance, 2002 in subsection (1) of section 122 extends the applicability of section 122 to the assessments completed under the provisions of the Income Tax Ordinance, 1979 as well.” 6. Vide judgment dated 2.4.2008, a learned Division Bench of the Lahore High Court at Multan, following the law laid down in Honda Shahra-e-Faisal answered the aforesaid question in the affirmative and held that section 122(5A) did not have retrospective effect qua the assessments finalized before 1.7.2002, and as such could not be reopened/revised or amended in the exercise of jurisdiction under section 122(5A) of the Ordinance. Resultantly, the tax references were rejected. CA 778-2005 ETC 19 7. Civil Appeals No. 840 to 1039, 1104 to 1127, 1491 to 1513, 2257 to 2311 of 2008, 7 to 9, 33 to 57 of 2009 arise out of judgments of the Lahore High Court, Lahore delivered in the tax references filed before it wherein it was held that the assessment orders framed by the Deputy Commissioner of Income Tax could not be amended or modified under any of the two subsections, namely (5) and (5A) of section 122 of the Ordinance. It was further held that the language of section 122 applied only to assessment orders finalized by the Commissioner in respect of the taxpayers for the tax year and not to the assessment orders made by the DCIT for the assessment years 2002-2003 and earlier. All the tax references were rejected. 8. Civil Appeal No. 1322 of 2007 arises out of judgment of the Lahore High Court, Lahore passed in Writ Petition filed against the show cause notice issued to the respondent. In this case, the Lahore High Court held that the impugned show cause notice, which was issued under the Ordinance as amended by SRO No.633(I)/2002 dated 14.9.2002 was not sustainable in law after the above SRO was declared ultra vires the Ordinance by this Court in the case of Commissioner of Income Tax v. Kashmir Edible Oils Ltd (2006 SCMR 109). It was also held that the subsequent insertion of these amendments through the Finance Act, 2003 also did not cure the illegality of the amendments made in the Ordinance through the said SRO. It was noted that the impugned show cause notice could not be issued under the Ordinance as it existed at the time of its enforcement, i.e., prior to any amendments whether made under the SRO or the Finance Act, 2003. As such, the impugned show cause notice was declared to be illegal and of no legal effect. CA 778-2005 ETC 20 9. Civil Appeals No. 1148 to 1150 and 1245 of 2008 arise out judgments of the Lahore High Court, Rawalpindi Bench delivered in the tax references filed before it wherein it was held that the Ordinance applied to the tax year commencing from 1.7.2002. The provisions of section 122(5) as on that date neither covered the assessments finalized under the repealed Ordinance nor the operation of law was made retrospective in various corresponding provisions. The new law was more favourable to the taxpayers as against the revenue department terms, which was apparent from the terms, such as ‘taxpayer’ vis-à-vis ‘assessee’. 10. Civil Appeals No. 500, 501 & 783 to 791 of 2008, and 163 and 164 of 2009 arise out of judgments of the Islamabad High Court, delivered in the tax references filed before it. The learned Islamabad High Court disposed of the tax references in the light of the law laid down in Honda Shahra-e-Faisal. 11. Civil Appeals No. 115 to 118 of 2008, 112, 113, 122, 123 & 281 to 283 of 2009 and Civil Petitions No. 12 & 13 of 2009 arise out of judgments of the Peshawar High Court, delivered in the tax references filed before it. The learned Peshawar High Court adhered to the exposition of law made by the Sindh and the Lahore High Courts and held that subsection (5A) of section 122 of the Ordinance inserted with effect from 1.7.2003 was not applicable to the assessments finalized before 1.7.2003 because subsection (5A) had no retrospective effect and, therefore, the assessments finalized before 1.7.2003 could not be reopened/revised/amended in exercise of jurisdiction under section 122 (5A) of the Ordinance. 12. In the appeals arising out of the judgments of the High Courts (Lahore High Court, Lahore, Multan, Rawalpindi & Bahawalpur Benches, CA 778-2005 ETC 21 Islamabad High Court and the Peshawar High Court) leave was granted by this Court to examine, inter alia, the scope, effect and validity of subsections (1), (5), (5A) of section 122 of the Ordinance inserted w.e.f. 1.7.2003 by the Finance Act, 2003. 13. To illustrate the factual mattress upon which the tax references were founded, we narrate here the facts of one case from the Multan Bench. The assessments in respect of Khalid Javaid, respondent in C.A. No. 803/2008 relating to years 1998-1999, 1999-2000 & 2002-2003, completed on 30.10.2000, 29.9.1999 and 15.1.2003 respectively, were framed and finalized under section 62 of the repealed Ordinance before 1.7.2002, i.e. the date on which the Ordinance was enforced. The IAC concerned issued show cause notice dated 19.6.2004 to the respondent for imposition of correct amount of tax for the aforesaid years under section 122(5) of the Ordinance. The respondent challenged the show cause notice in appeal before the Commissioner of Income Tax (Appeals), Multan. In his order dated 29.3.2005, the Commissioner, placed reliance on the judgment of the High Court of Sindh in Honda Shahra-e-Faisal, allowed the appeal of the respondent and cancelled the amended assessment orders passed under section 122 of the Ordinance. Thus, the original assessment orders finalized under section 59 of the repealed Ordinance were restored. The Commissioner decided the issue on the legal plane and gave no finding on other grounds of appeal. The CIT Multan Zone then agitated the matter before the Income Tax Appellate Tribunal, Lahore Bench, but without any success and the order of the Commissioner was upheld. The CIT Multan Zone thereafter filed tax reference (TR No. 10/2007) before the Lahore High Court, Multan Bench with the following question of law for determination by the said Court: - CA 778-2005 ETC 22 “Whether on the facts and circumstances of the case, the learned ITAT was justified in holding that section 122(5) of the Income Tax Ordinance, 2001 brought into statute through Finance Act, 2003 is not applicable to the assessments completed before the promulgation of the Income Tax Ordinance, 2001, whereas the amendment brought in through Finance Ordinance, 2002 in subsection (1) of section 122 extends the applicability of section 122 to the assessments completed under the provisions of the Income Tax Ordinance, 1979 as well.” 14. Vide judgment dated 2.4.2008, a learned Division Bench of the Lahore High Court, Multan Bench, following the law laid down in Honda Shahra-e-Faisal answered the aforesaid question in the affirmative and held that section 122(5A) had no retrospective effect qua the assessments finalized before 1.7.2002 and as such could not be reopened/revised or amended in the exercise of jurisdiction under section 122(5A) of the Ordinance. Resultantly, the tax references were rejected. It is noteworthy that all the cases were decided on the legal issue and not a single case was decided on merits. 15. The moot point in these appeals is the retrospective application or otherwise of the provisions of section 122(1), (5) & (5A) of the Ordinance. A common contention of the learned counsel for the appellants was that the High Courts were not right in holding that the said provisions had no retrospective effect. According to the learned counsel, the said provisions were procedural in nature, they did not create any charge or levy any tax and merely dealt with the machinery of assessment, therefore, as held in Commissioner of Income Tax v. Mahaliram Ramjidas (AIR 1940 Privy Council 124), in interpreting provisions of this kind the rule was that such construction should be preferred which made the machinery workable. CA 778-2005 ETC 23 16. Mr. M. Ilyas Khan, learned counsel for the appellants in C.A. No. 803/2008 contended that section 122(1) as amended by the Finance Ordinance, 2002 was part of the Ordinance from the very date of enforcement, i.e. 1.7.2002. He submitted that subsection (1) was an enabling provision and the power of amendment conferred therein was to be exercised subject to other provisions of section 122 while subsections (5) & 5A) were procedural in nature and non-charging provisions but were to be read in conjunction with subsection (1), which explicitly provided for the amendment of assessment already finalized under the repealed Ordinance. He submitted that reference to various sections of the repealed Ordinance in subsection (1) of section 122 of the Ordinance clearly showed the intention of the legislature to apply the provision relating to amendment of assessment retrospectively with the rider that an assessment could be amended subject to time-limits provided in subsections (2) & (4A). Subsection (5A) of section 122 would be attracted on fulfillment of the twin conditions, namely, the erroneousness of the assessment and its being prejudicial to the interest of revenue to the assessments relating to the income year ending on or before 30.6.2002 finalized before 1.7.2003 under the repealed Ordinance, the date of insertion of the above subsection. On the other hand, if the applicability of subsection (5A) were restricted to the orders treated to be issued under the Ordinance alone, it would render the words ‘erroneous in so far it is prejudicial to the interest of revenue’ a surplusage against the legislative intent. Subsections (5) and (5A) were procedural provisions as the same fell in Chapter X of the Ordinance, which related to procedure. It was well- settled principle of interpretation of fiscal statutes that only charging provisions would not be given retrospective effect but the procedural CA 778-2005 ETC 24 provisions could well be applied retrospectively. The retrospectivity of a statute was either expressly conferred or could be inferred by necessary implication therein. The charging provisions were to be construed strictly, whereas the procedural provisions were to be interpreted liberally. He also pressed into service other principles of interpretation of statutes, namely, every word in a statute to be given a meaning, a statute to be read as a whole, words to be construed in accordance with the intention, a law should be interpreted in such a manner that it should be saved rather than destroyed, the courts lean in favour of upholding constitutionality of legislation and would be extremely reluctant to strike down laws as unconstitutional, enactments dealing with procedure are always retrospective in the sense that they apply to the pending proceedings, the rule that fiscal statutes should be construed strictly was applicable only to a charging provision or a provision imposing penalty, scheme of the law is to be examined in its totality in order to arrive at a correct conclusion, no provision is to be considered in isolation, court may modify language of statute to give effect to manifest and undoubted intention of the legislature, procedural matters would not operate retrospectively if they touch a right in existence at the time of passing of the legislation, where retrospective effect to a statute is not given expressly, one must, apart from the language employed, look to the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former state of the law, and what was that the legislature contemplated, etc. He referred to Halsbury’s Laws of England, vol. 36, 3rd edition, p. 423, Craies on Statute Law, fifth edition, p. 370, 371, Maxwell’s Interpretation of Statutes, p. 228, Hakim Khan v. Government of Pakistan (PLD 1992 SC 595), etc. He further argued that with the repeal of the Ordinance (of CA 778-2005 ETC 25 1979), no right was accrued to or conferred upon the assessees nor had they acquired any right inasmuch as section 122(1) clearly provided that the assessments made or deemed to have been made were open to amendment within a specified time-limit. Erroneous assessment prejudicial to the interest of revenue could not be termed a past and closed transaction. He submitted that the Commissioner was the authority empowered to amend or further amend an assessment, and though he was empowered to delegate his powers or functions under section 210, but by virtue of amendment made in the said section by insertion of subsection (1A), he was debarred from delegating his powers of amendment of assessment contained in subsection (5A) of section 122 to a taxation officer below the rank of Additional Commissioner of Income Tax. He further submitted that the power of amendment envisaged under subsection (5) was original in nature while the one under subsection (5A) was revisional in nature. He adopted the reasoning of a learned Single Judge of the High Court of Sindh in the case of Fauji Oil Terminal and Distribution Co. Ltd. Karachi v. Additional Commissioner/Taxation Officer (2006 PTD 734) that once an assessment order was treated as issued under section 120 or was actually issued under section 121, then the same could be amended or further amended on fulfillment of conditions specified in subsection (5) only and on no other ground, and that subsections (1), (3) and (5) were to be read together and not in isolation. He lastly submitted that the assessees or the taxpayers were not fair in disclosing their true incomes. There were countless cases of concealed income, etc. The assessees were not prepared to face the realities and instead of approaching the department, they filed writ petitions in the High CA 778-2005 ETC 26 Courts against the law laid down in Pak Arab Fertilizers (Pvt.) Ltd. v. Deputy Commissioner Income Tax (2000 PTD 263). 17. Mr. Akhtar Ali Mehmood, ASC, learned counsel for the appellant in C.A. No. 876/2005 submitted that retrospectivity of the provisions of the Ordinance was evident from the actions being taken according to the scheme of the said Ordinance. In support of his submission, the learned counsel placed reliance on an order of the Commissioner of Income Tax whereby he delegated powers to the Taxation Officers (Additional Commissioner, etc.) passed after the enforcement of the Ordinance. He further referred to the case of Commissioner of Income Tax, Multan v. Munazza Iqbal, the subject- matter of C.As. No. 805 & 806 of 2008 in which relief was allowed to the respondent, though the case was not covered by SRO No. 633(I)/2002 dated 14.9.2002. He also placed on record a copy of the order dated 13.1.2009 passed by this Court in the case of Commissioner (Legal Division), Large Taxpayer Unit v. M/S Shaheen Air International (C.Ps. No. 511-K to 513-K of 2008 decided on 13.01.2009). This case related to rectification of assessment orders under section 221 of the Ordinance, passed on 25.10.1999 in respect of assessment years 1997-98 and 1998- 99 as well as the assessment order dated 25.5.2000, in respect of assessment year 1999-00. In this case, the appellate authority as well as the Income Tax Appellate Tribunal had taken the view that the provisions of section 221 were applicable to assessments made after the enforcement of the Ordinance and therefore the power of rectification could only be exercised within the time-limit of four years laid down in section 156 of the repealed Ordinance. CA 778-2005 ETC 27 18. Mr. Shahid Jamil Khan, ASC, learned counsel for the appellant submitted that under sections 65 and 66A of the repealed Ordinance read with section 6 of the General Clauses, 1897 an assessment could be amended, revised or reassessed subject to the provisions of law where it was found that the exact or proper tax, levied under the charging section, was not assessed, and no sanctity was attached to the assessment orders. The taxpayer did not have any vested right in a case of escaped income, or an erroneous assessment, etc. The power of the State to levy tax was protected by virtue of section 6 of the General Clauses Act, 1897. Section 122 provided machinery for the enforcement of charging provisions, therefore, the same were not debarred from being applied retrospectively. He relied upon the case of Nawabzada Muhammad Amir Khan (PLD 1961 SC 119) to emphasize that it was the duty of the Court to protect the right of the State by having recourse to the principles of harmonious construction and reconciling the conflicting provisions, or by curing the flaws in the language employed by the lawmaker. He referred to Salmon v. Duncombe (11 AC 634) where it was held that the machinery sections were to be liberally construed and if the incidence of tax was clear, the machinery sections should be so construed as to make the realization of the proper tax possible. He submitted that the defects in the language of the law could not be made a basis to defeat the intention of the legislature or to prevent the realization of tax that was in fact due. 19. Mr. M. Bilal, Sr. ASC for the appellants in C.A. No. 163- 164/2009 and Raja Abdul Ghafoor, ASC/AOR for the petitioner in C.P. No. 1245/2008 & and appellants in C.As. No. 1322/2007, & 115-118 & 1491- CA 778-2005 ETC 28 1513/2008 adopted the arguments advanced by M/S M. Ilyas Khan and Akhtar Ali Mehmood, ASCs. 20. Syed Naveed Andrabi, ASC for the respondent in C.A. No. 778 of 2005 made the following submissions: - (1) At the time of promulgation of the Ordinance, about 1000 amendments were made to make the new law in line with the repealed Ordinance. The entire complexion of the law was changed (2) Subsection 1 of section 122 of the Ordinance was an independent provision which had no nexus with subsection (5- A); (3) The pending proceedings initiated under the provisions of the repealed Ordinance were saved under subsection (4) of section 239 of the Ordinance; and (4) Vested rights had accrued to the assessees before the enforcement of the Ordinance, 2001, hence, the income tax authorities, under the Ordinance, 2001 did not have any lawful authority to reopen the assessment orders passed in favour of the assessees by the authorities under the repealed Ordinance. Reference was made to the cases of Kashmir Edible Oil Ltd v. Federation of Pakistan [2005 (91) Tax 480 Lahore] = 2005 PTD 1621 and United Builders Corporation, Mirpur v. Commissioner Income-tax, Govt. of Azad J & K (1984 PTD 137) = 49 (tax) 34. 21. Mr. Mansoorul Arifin, ASC, learned counsel for the respondent in C.A. No. 876 to 879 of 2005, supporting the impugned judgment of the High Court of Sindh in Honda Shahra-e-Faisal, made the following submissions: - (1) The Ordinance, as originally promulgated, brought about change in its approach towards and treatment of the taxpayers by introducing a liberal tax regime, e.g., under section 120 of the Ordinance, where a taxpayer furnished a return of income, CA 778-2005 ETC 29 the Commissioner shall be taken to have made an assessment of the taxable income. This changed approach lay at the foundation of the Ordinance and was the touchstone to judge the validity of the subsequent actions; (2) The provisions of section 122 clearly showed that the legislature, through a conscious application of mind, kept outside the ambit of the provisions of the Ordinance the assessments of the period ending on 30.6.2002. It was only through an arbitrary amendment process, undertaken through the Finance Ordinance, 2002, the SRO dated 14.9.2002 and the Finance Act, 2003 that the assessments of the period preceding the enforcement of the Ordinance were brought within its pale; (3) Subsection (5A) was applicable to the tax year 2003 and onward because the Ordinance was operative from 1.7.2002, therefore, the same could not be applied to the assessments of the period preceding its enforcement unless the law specifically so provided. Reference was made to the cases of Calcutta Discount Co. v. Income-Tax Officer [(1952) 21 ITR 579 (Calcutta)], Niranjanlal Ramballabh v. Commissioner of Income-Tax, Madhya Pradesh [(1953) 23 131)], Commissioner of Income-Tax v. Maharaja Pratap Singh Bahadur [(1956) 30 ITR 484 (Patna)], Chairman, Central Board of Direct Taxes v. V.S. Malhotra [(1981) 129 ITR 543 (Delhi)] and N.S. Bindra’s Interpretation of Statutes, Eighth Edition 1997, p. 628; (4) The Commissioner was empowered to amend an assessment by insertion of subsection (5) by means of SRO No. 633(I)/2002 dated 14.9.2002, but the same ceased to have effect after the said SRO was rescinded by SRO No. 608(I)/2003 dated 24.6.2003 in pursuance of the judgment of this Court in the case of Kashmir Edible Oils Ltd (supra); (5) There was nothing in section 239, which indicated that the legislature intended to revive section 66A of the repealed Ordinance, hence the subsequent amendments introduced in section 122 with a view to achieving the same object were of CA 778-2005 ETC 30 no legal effect, hence proceedings initiated under section 122(5A) in respect of the assessments completed under the repealed Ordinance were unlawful, which were also hit by the principle of past and closed transactions; and (6) Subsection (5) was not a mere procedural provision, which could be applied retrospectively. Rather, the said provision, if applied retrospectively, would affect the accrued rights of the assessees, hence the same would be prospective in its operation. Reference was made to an order passed by this Court in an unreported case titled Inspecting Additional Commissioner of Income Tax v. Zakaria H.A. Sattar Bilwani, Karachi (C.P. No. 643-K to 647 of 2007 decided on 15.7.2008) wherein it was held that vested rights accruing to an assessee in respect of assessments for the years 1988-89 and 1989-90 finalized on 29.6.1989 and the assessments of 1990-91 and 1991-92 finalized before 30.6.1992 could not be taken away in exercise of powers conferred by an amending provision, namely, section 17B of the Wealth Tax Act, 1963 effective from 30.6.1992. 22. Dr. Farough Naseem, learned counsel for the respondent in C.A. No. 1602/2006 raised the following contentions: - (1) The substantive laws would always be prospective while the procedural matters would be retrospective, but where the procedural laws affected past and closed transactions or existing, accrued, concluded, vested or substantive rights, the same would not be retrospective unless and until the statute expressly provided for retrospective application of the law. Thus, the power to revise or reopen any concluded assessment envisaged in subsections (5) or (5A) of section 122 of the Ordinance could not be applied retrospectively. He referred to a number of judgments of the superior Courts of Pakistan and India, including Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Mushtaq Ahmed v. District Manager, Govt. Transport Service (1982 SCMR 965), WAPDA v. Capt. CA 778-2005 ETC 31 Nazir Hussain (1986 SCMR 96), Glaxo Laboratories Ltd. V. Inspecting Assistant Commissioner of Income Tax (PLD 1992 SC 549), Mrs. Anjuman Shaheen v. Inspecting Assistant Commissioner of Income Tax (1993 PTD 1113 & 1232), Monnoo Industries Ltd v. C.I.T. (2001 PTD 1525), Delhi Cloth and General Mills Ltd v. Income Tax Commissioner, Delhi (AIR 1927 PC 242), etc; (2) Reopening/ revision/amendment of assessments was penal in nature as the process would expose the taxpayers to penal consequences, hence the issue fell within the domain of substantive law and was not a matter of mere procedure. On that account, the principles governing interpretation of penal provisions would be applicable in the matter of amendment, reopening or revision of concluded assessments; (3) It was well-settled that if there was any doubt about prospectivity or retrospectivity of a particular provision, the Court would resolve it in terms of prospectivity; (4) The provision of section 34 of the Income Tax Act, 1922 was not pari materia with section 122(5A). The case of Mahaliram Ramjidas (supra) was incorrectly relied upon by the appellants as the Privy Council did not decide the issue of retrospectivity of section 34 of the Income Tax Act, 1922; (5) A bare reading of the entire section 122 would show that sub- section (4) of section 122 pertained to the amendment under subsection (1) or subsection (3), while in subsection (5) reference was only made to the amendment under subsection (1) or the further amendment under sub-section (4). Again in subsection (6), the legislature had consciously made a distinction between amended orders passed under subsection (1), subsection (4) or subsection (5-A), clearly establishing that the intention of the legislature was to create distinct categories. Hence the inescapable conclusion was that sub- section (1) was independent from subsection 122 (5-A). This was further endorsed from a reading of subsection (5-B), which specified a time-limit for the action under subsection (5- A). Time-limit under subsection (1) was not made applicable to CA 778-2005 ETC 32 subsection (5-A). This would thus again endorse the contention that sub-section (5-A) was a category completely distinct from subsection (1). This was also established from the fact that the provision of sub-section (5-A) only was made subject to the provision of sub-section (9) and not subsection (1). 23. Mr. Shafqat Mehmood Chohan, ASC, learned counsel for the respondents in C.A. No. 669/2008 etc., made the following submissions: - (1) It is necessary to see the scheme of law regarding assessment year and the assessee. This law was enforced on 1st July, 2002. According to subsection (3) of section 1 of the Ordinance, the Ordinance of 1979 was to be repealed on the date the former came into force as envisaged by section 238; (2) The Ordinance was applicable to the activities of the assessment year commencing from 1.7.2002 and not to the activities of the period preceding its enforcement when the previous law was holding the field; (3) Under section 122, only the Commissioner was the competent authority to amend an assessment or to further amend an amended assessment whereas the impugned notices were issued by officers of the income-tax department below the rank of the Commissioner, therefore, the notices were not issued competently; (4) This section imposed additional liability, hence, it was a penal section creating charge itself because it was different from the previous section i.e. section 66A according to which taxpayer meant any representative of a person who derived an amount chargeable to tax under the repealed Ordinance; (5) Every assessment order could not be amended, so while touching the rights of the taxpayer or assessee, there were two conditions, so these conditions itself spoke about the rights of an assessee; and CA 778-2005 ETC 33 (6) Section 5-A was pari materia with section 66A and the limitation under the repealed Ordinance for section 66A was four years from the date of the order sought to be revised. 24. Mr. M. Iqbal Hashmi, ASC, learned counsel for the respondents in C.A. No. 825/2008 etc., argued as under: - (1) Section 122(1) authorized the Commissioner to amend assessment orders passed under sections 59, 59A, 62, 63 and 65 of the repealed Ordinance; (2) The amendment of assessment involved computation of taxable income, which, in respect of period ending on or before 30.6.2002 was to be done under the repealed Ordinance by virtue of subsection (1) of section 239 of the Ordinance. Thus, in case of any conflict between an earlier and a later provision, more specifically between section 122(1) and section 239(1), the subsequent provision would prevail; (3) By virtue of section 122(8), section 122(5) would be applicable to income chargeable under the Ordinance as the definition of ‘definite information’ did not include the income chargeable under the repealed Ordinance in it; and (4) The alternative submission of the learned counsel was that the appeals be remanded to the Income Tax Appellate Tribunal, as the same were decided, not on merits, but on the legal issue, viz., the prospective applicability of section 122(1), (5) or (5A). 25. Mr. Sirajuddin Khalid, ASC, learned counsel for the respondents in C.A. No. 826/2008 etc., filed copies of notices issued by the Inspecting Additional Commissioner of Income Tax under section 122 of the Ordinance in respect of assessment years 1995-96, 1996-97, 2000- 01. He made the following arguments: - (1) Amendment of assessment or reassessment was alien to the provisions of section 122 of the Ordinance up to the assessment year 2002-03; CA 778-2005 ETC 34 (2) The words ‘tax’, ‘taxable income’, and ‘taxpayer’ used in subsection (6), as defined in section 2(63), 2(64) & (266) of the Ordinance did not include the period of assessment occupied by the repealed Ordinance. Thus, the assessments of the period up to the repeal of the Ordinance of 1979 did not fall within the scope of section 122 of the Ordinance; (3) By virtue of section 239(1), the provisions of the repealed Ordinance relating to computation of total income and tax payable thereon shall apply as if the Ordinance had not come into force. Therefore, the power to amend an assessment envisaged in section 122(1), (5) or (5A) of the Ordinance would not be available in respect of the assessment orders passed under the repealed Ordinance; (4) Section 122(1) would be invoked only if an assessment order was issued or treated as issued; (5) The assessment order treated as issued under section 120 or issued under section 121 sought to be amended must be an order of the Commissioner, but if such order merged into an appellate or revisional order, then it would not be amenable to the provisions of section 122(5A); and (6) The orders passed in appeal, revision or reference would be outside the purview of section 122(5A) as the Ordinance did not contain any provision parallel to subsection (1A) of section 66A of the repealed Ordinance. 26. Mr. Shahbaz Butt, ASC, learned counsel for the respondents in C.A. No. 841/2008 etc., filed written submissions along with a comparative chart of different provisions of the income tax laws, i.e. The Income Tax Act, 1922, the repealed Ordinance and the Ordinance, the Ordinance as per its original text when it was enforced, the amendments made through the Finance Ordinance, 2002, the amendments made through SRO No. 633(1)/2001 dated 14.09.2002, the amendments made CA 778-2005 ETC 35 through the Finance Ordinance, 2002 and the Finance Act, 2003. He made the following arguments: - (1) Notwithstanding the amendment made in subsection (1) of section 122, or the addition of subsection (5) or subsection (5A), the provisions of section 122 could not be invoked in respect of income year ending on 30th June, 2002; (2) Subsections (1), (2) and (3) of section 239, as originally enacted, specifically related to the income year ending on 30th June, 2002 while subsection (4) thereof related specifically to pending proceedings; (3) Subsection (2) of section 239 laid down that in making assessment in respect of any income year ending on or before the 30th day of June 2002, the provisions of the repealed Ordinance relating to the computation of total income and the tax payable thereon shall apply as if this Ordinance had not come into force; (4) The key word ‘assessment’ was defined in both the Ordinances, i.e. the repealed Ordinance as well as the Ordinance (of 2001). The word ‘assessment’ as substituted by the Finance Ordinance, 2002, included ‘re-assessment’ and ‘amended assessment’, which being the cognate expressions, were to be construed accordingly. If the above definition was read with section 239(1), it would indicate that an amended assessment would also fall within the connotations of assessment and shall apply accordingly; (5) The words “to ensure that the taxpayer is liable for the correct amount of tax for the tax year to which the assessment order relates” occurring in section 122(1) of the Ordinance were omitted by means of the Finance Act, 2003. The said words referred to the charging provision as contained in the Ordinance where a charge was created on the basis of tax year as compared to assessment year used in the repealed Ordinance; (6) Section 239 (1), (2) and (3) created charge in accordance with the provisions of the repealed Ordinance. Subsection (1) of CA 778-2005 ETC 36 section 239 specifically stated that the computation of total income and tax payable thereon shall be that of the repealed Ordinance. Therefore, any charge thus created would be dealt with under the provisions of the repealed Ordinance and not under the Ordinance (of 2001); (7) The power of amendment given in subsection (1) of section 122 was not an independent power for the reason that the provisions of this section were controlled by its opening words “subject to this section”. Further, this section, as it existed till the tax year ending on 30th June 2003, was addressed to the taxpayer, which was alien to the income tax proceedings under the repealed Ordinance, and when it created charge, it addressed to the tax year, which was an alien connotation to the income tax proceedings under the repealed Ordinance. Thus, in this background, the charge created through amendment in respect of a tax year, was missing in respect of an assessment year; (8) Keeping in view the original text of subsection (5), as it stood at the time of enforcement of the Ordinance, the assessments completed under any of sections 59, 59A, 62, 63 or 65 of the repealed Ordinance were not covered by it; (9) Though such assessments were brought within the scope of subsection (5) by means of SRO No. 633(I)/2002 dated 14.9.2002, yet after its rescission by SRO No. 608(I)/2003 dated 24.6.2003, the same fell out of the scope of subsection (5); and (10) Given the definition of ‘taxpayer’ in section 2(66) of the Ordinance, an assessee as defined in section 2(6) of the repealed Ordinance was alien to the provisions of section 122, hence the same did not apply to an assessee within the contemplation of the repealed Ordinance, particularly so when the two terms, ‘taxpayer’ and ‘assessee’ were not interchangeable. Thus, the relevant provisions did not have retrospective effect. CA 778-2005 ETC 37 27. Mr. Muhammad Shoaib Abbasi, ASC for the respondents in C.A. 115-118/2008 submitted that his case was covered by section 122(5A) and the relevant provisions could not be given retrospective effect. He adopted the arguments of Mr. Shahbaz Butt. 28. Mr. Izharul Haq Siddiqui, ASC for the respondents in C.A. No.475-477/2008 adopted the arguments advanced on behalf of the respondents. 29. Mr. Hamid Shabbir Azar, ASC for the respondent in C.A. No.846/2008 submitted that his case was covered by section 122(5A). He adopted the arguments of the learned counsel for the respondents. 30. Mr. Irfan Ahmed Sheikh, ASC for the respondent in C.A. No. 923-924/2008 submitted that the definition of assessment included re- assessment under section 2(5) read with section 239(1) & (2) and its application could not be attracted to the cases in which assessments had already been finalized. 31. Mr. Hakam Qureshi, ASC learned counsel for the respondent in C.A. No. 1149/2008 adopted the arguments of Mr. Muhammad Iqbal Hashmi. He stated that when there were two or more interpretations, then in fiscal laws, the Court would adopt the interpretation favouring the taxpayer. 32. The learned Attorney General for Pakistan appeared on behalf of the Federal Government and filed concise statement. He stated that there would be no governance system at all in the country if the incomes were not properly assessed and the taxes not collected, causing prejudice to the public revenues. He argued as under: - (1) No vested rights had accrued to the assessees in the matter of reopening, revising or amending of their assessments of the CA 778-2005 ETC 38 pre-2001 Ordinance period as nobody could be allowed to gain premium on his mala fide acts, such as incorrect or collusive assessments, concealed income, etc; (2) The impugned provisions were meant to modify the charge of tax offered by a taxpayer/assessee to actual tax chargeable and payable and to crystallize the correct charge as per the charging sections where there was mistake or error, or evasion, mis-declaration, tax fraud, or wrong application of law resulting in inaccurate charge of tax made, in the return of income; (3) It was not a new concept, but was there in the Income Tax Act 1922 (sections 34 & 34A) as well as in the repealed Ordinance (sections 65 & 66A) and was now on the statute book in the form of section 122 of the Ordinance; (4) Correction of assessment in favour of the taxpayer through rectification, appeal or revision was provided in sections 221, 127, 122A of the Ordinance. However, as no right of appeal was provided to the revenue department against an erroneous order of the tax authority, though the taxpayer had such right, errors of judgment operating against the revenue department would continue without remedy if provision like section 122 were not introduced; (5) Subsections (5), (5A) and (9) laid down the parameters within which such powers would be exercised. Subsections (2), (4), (4A) and (5B) provided time limits and subsection (8) restricted the meaning of “definite information”, as used in sub-section (5) ibid. Thus, the legislature did not cast any additional burden, any new charge or duty on the subject, it merely clarified that amendment could be made on fulfillment of twin conditions of erroneousness and prejudice to the revenue; (6) Similar provisions on amending the duty and taxes assessment were also available in the Customs Act (S.32) and the Sales Tax Act 1990 (Section 36). If a “person” paid tax with the return of income based on proper computation of total income, and proper application of tax rate; there is then no CA 778-2005 ETC 39 issue as no appeal, no amendment, and no correction will be needed, as it would be accurate charge of tax; (7) Subsections (5) and (5A) of section 122 were non-charging sections and were procedural in nature, therefore, the same were retrospective in operation; (8) These provisions were also to be read in conjunction with section 122(1) which provided explicitly amendment of assessment already finalized under the repealed Ordinance; and (9) The provisions of subsections (5) or (5A) were not pari materia to sections 65 or 66A of the repealed Ordinance, though certain conditions were transported into the said subsections. But, in any case, the two sets of provisions were different, inasmuch as the IAC could cancel or annul an assessment under section 66A, but the Commissioner could not pass such an order under subsection (5A); (10) The application of the tax rate was protected under section 239(1) of the Ordinance, and same tax rate was applicable in respect of the assessments amended under the provisions of section 122; (11) The case law on the issue of retrospectivity referred to by the learned counsel for the respondents was not relevant. 33. We have heard the learned Attorney General for Pakistan and the learned counsel for the parties and have gone through the relevant case law cited by them at the bar. 34. It may be observed that the Ordinance is the third major enactment governing the taxation laws. It was preceded by the Income Tax Ordinance, 1979, repealed on the enforcement of the Ordinance on 1.7.2002, and the Income Tax Act, 1922, one of laws adapted under the Indian Independence Act, 1947 on the eve of creation of Pakistan, which in turn was repealed by the Ordinance of 1979. The Preamble to the Ordinance states that it is expedient to consolidate and amend the law CA 778-2005 ETC 40 relating to income tax and to provide for matters ancillary thereto or connected therewith. The decision of these appeals turns mainly on the true construction of section 122 of the Ordinance. We, therefore, undertake a brief survey of the legislative process, through which the provisions of this section have passed in taking their present shape and form, insofar the same is relevant for the purposes of adjudication of the controversy raised in these appeals. Section 122, as incorporated in the Income Tax Ordinance, 2001 (Ordinance No. XLIX of 2001) provided as under: - “122. Amendment of assessments.- (1) Subject to this section, the Commissioner may amend an assessment order treated as issued under section 120 or issued under section 121 by making such alterations or additions as the Commissioner considers necessary to ensure that the taxpayer is liable for the correct amount of tax for the tax year to which the assessment order relates. (2) An assessment order shall only be amended under subsection (1) within five years after the Commissioner has issued or is treated as having issued the assessment order on the taxpayer. (3) Where a taxpayer furnishes a revised return under subsection (6) of section 114 - (a) the Commissioner shall be treated as having made an amended assessment of the taxable income and tax payable thereon as set out in the revised return; and (b) the taxpayer’s revised return shall be taken for all purposes of this Ordinance to be an amended assessment order issued to the taxpayer by the Commissioner on the day on which the revised return was furnished. (4) Where an assessment order (hereinafter referred to as the “original assessment”) has been amended under subsection (1) or (3), the Commissioner may further amend, the original assessment within the later of – (a) five years after the Commissioner has issued or is treated as having issued the original assessment order to the taxpayer; or (b) one year after the Commissioner has issued or is treated as having issued the amended assessment order to the taxpayer. CA 778-2005 ETC 41 (5) An assessment order shall only be amended under subsection (1) and an amended assessment for that year shall only be further amended under subsection (4) where the Commissioner – (a) is of the view that this Ordinance has been incorrectly applied in making the assessment (including the misclassification of an amount under a head of income to claim tax relief, an incorrect claim for exemption of any amount or an incorrect claim for a refund; or (b) has definite information acquired from an audit or otherwise that the assessment is incorrect. (6) As soon as possible after making an amended assessment under subsection (1) or (4), the Commissioner shall issue an amended assessment order to the taxpayer stating – (a) the amended taxable income of the taxpayer; (b) the amended amount of tax due; (c) the amount of tax paid, if any; and (d) the time, place, and manner of appealing the amended assessment. (7) An amended assessment order shall be treated in all respects as an assessment order for the purposes of this Ordinance, other than for the purposes of subsection (1). (8) For the purposes of this section, “definite information” includes information on sales or purchases of any goods made by the taxpayer, and on the acquisition, possession or disposal of any money, asset, valuable article or investment made or expenditure incurred by the taxpayer. In pursuance of section 1(3) of the Ordinance, it came into force w.e.f. 1.7.2002. By the Finance Ordinance1, 2002, enacted simultaneously with effect from the same date, i.e. the date of enforcement of the Ordinance, the following amendments2 were made in section 122: - In subsection (1), the words and figures “or issued under section 59, 59A, 62, 63 or 65 of the repealed Ordinance, were inserted. 1 Printed as “Act” in the Income Tax Manual published by the Federal Board of Revenue. The National Assembly was not in existence at the relevant time, so no Act could be passed. 2 Large scale amendments were made in the Ordinance overall. CA 778-2005 ETC 42 [The Commissioner’s power to amend an assessment was also made applicable to the assessments orders passed under certain sections of the repealed Ordinance.] Words “as many times as may be necessary” were inserted in subsection (4) [The scope of power of amendment of assessments made under subsection (1) or (3) was enlarged.] 35. By SRO No.633(I) /2002 dated 14.9.2002, the following new subsection (4A) was inserted into section 122: - “An amended assessment shall only be made within six years of the date of original assessment. [Six years’ time-limit from the date of the original assessment was provided for an amended assessment, by which expression it appears that the original assessment could be amended by the Commissioner within a period of six years] In subsection (5), in clause (a), after the word “Ordinance”, the words “or the repealed Ordinance” were inserted. [Thus, the assessments of pre-2001 Ordinance period were included.] In subsection (5), in clause (b), for the words “assessment is incorrect” the words “income has been concealed or inaccurate particulars of income have been furnished or the assessment is otherwise incorrect” were substituted. [The scope of amendment of assessment was stated.] After subsection (5), new subsection (5A) was also inserted into section 122: - “5(A) Where a person does not produce accounts and records, or details of expenditure, assets and liabilities or any other information required for the purposes of audit under section 177, or does not file wealth statement under section 116, the Commissioner may, based on any available information and to the best of Commissioner’s judgment; make an amended assessment.” CA 778-2005 ETC 43 [Certain eventualities were provided where the Commissioner may pass an amended assessment order.] In pursuance of the judgment of this Court in the case of Kashmir Edible Oils Ltd3 (supra), the aforesaid SRO was rescinded by SRO No.608 (I) /2003 dated 24.6.2003 with which the amendments made in the Ordinance stood withdrawn. 36. The Ordinance was next amended by the Finance Act, 2003.The amendments introduced in section 122 are as under: - The words “to ensure that the taxpayer is liable for correct amount of tax for the tax year to which the assessment order relates” were omitted from subsection (1). New subsection (4A) was inserted as under: - “(4A) In respect of an assessment made under the repealed Ordinance, nothing contained in subsection (2) or, as the case may be, subsection (4) shall be so construed as to have extended or curtailed the time-limit specified in section 65 of the aforesaid Ordinance in respect of an assessment order passed under that section and the time-limit specified in that section shall apply accordingly. [The time-limit already provided in section 65 of the repealed Ordinance was incorporated into the statute with respect to the assessment orders passed under that section. In fact, the amendment earlier brought about by the SRO dated 14.9.2002 was reincorporated with a change in the time-limit] Subsection (5) was substituted as follows: - “(5) An assessment order in respect of tax year, or an assessment year, shall only be amended under sub-section (1) and an amended assessment for that year shall only be further amended under sub-section (4) where, on the basis of definite information acquired from an audit or otherwise, the Commissioner is satisfied that – 3 Discussed in later part of the judgment to see its effect on the issues involved in these appeals. CA 778-2005 ETC 44 (i) any income chargeable to tax has escaped assessment; or (ii) total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund; or (iii) any amount under a head of income has been misclassified.” [A part of the provisions of section 65 of the repealed Ordinance, earlier not included in the Ordinance, was brought on the statute book in the form of this subsection, that is to say, the grounds for additional assessment given in that section, were enacted here. To this extent, the provisions of section 65 and subsection (5) are pari materia.] New subsection (5A) was inserted as under: - “(5A) Subject to sub-section (9), the Commissioner may amend, or further amend, an assessment order, if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue.” [The Commissioner was empowered to amend or further amend an assessment on two other considerations, namely, the erroneousness of an assessment, or its being prejudicial to the interest of revenue. An assessment earlier amended under section 65 of the repealed Ordinance was also made liable to be amended or further amended under this subsection. While exercising power under this subsection, taxpayer was to be provided with an opportunity of hearing as provided in subsection (9) To the extent of the grounds provided under this subsection for amending or further amending an assessment, this subsection is pari materia with section 66A of the repealed Ordinance.] New subsection (5B) was inserted as under: - “(5B) Any amended assessment order under sub-section (5A) may be passed within the time-limit specified in sub-section (2) or sub-section (4), as the case may be.” [Time-limits provided earlier were made applicable to amendment of assessments to be made under subsection (5A).] CA 778-2005 ETC 45 Words and figures “subsection (1), subsection (4) or subsection (5A)” were added in subsection (6). [The amended assessment order in terms of subsection (6) was to be issued in three categories, namely, amended assessment order passed under subsections (1), (4), or (5A). Amended assessments orders passed under subsection (3) would not be required to be issued in terms of subsection (6)] In subsection (8), the words, “receipts of the taxpayer from services rendered or any other receipts that may be chargeable to tax under this Ordinance” were added. Thus, the phrase “definite information” was further elaborated. 37. A perusal of the overall provisions of section 122, as amended from time to time, shows that the Commissioner is empowered to amend an assessment order by making such alterations or additions as he considers necessary. The power of amendment is to be exercised in the manner provided in section 122, which stipulates certain restrictions on the exercise of such power. The power of amendment can be exercised in respect of an assessment order treated as issued under section 120 or issued under section 121, or issued under section 59, 59A, 62, 63 or 65 of the repealed Ordinance. The assessment order can be amended within five years after the Commissioner has issued or is treated as having issued the assessment order on the taxpayer while an amended assessment order can be amended or further amended within a period of one year after the Commissioner has issued or is treated as having issued the amended assessment order to the taxpayer. The time limit provided in section 65 of the repealed Ordinance would be available in respect of an assessment order passed under that section. Under subsection (5), an CA 778-2005 ETC 46 assessment shall only be amended, or an amended assessment shall only be further amended on the basis of definite information acquired from an audit or otherwise, where the Commissioner is satisfied that any income chargeable to tax has escaped assessment, or total income has been under-assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund, or any amount under a head of income has been misclassified. So, there has to be definite information with the Commissioner, e.g. information on sales or purchases of any goods made by the taxpayer, receipts of the taxpayer from services rendered or any other receipts that may be chargeable to tax under the Ordinance and on the acquisition, possession or disposal of any money, asset, valuable article or investment made or expenditure incurred by the taxpayer. Such information must have been received from a certain source. Such information must stipulate a case of escaped assessment, under- assessment, assessment at too low a rate, excessive relief or refund, or misclassification of a head of income. Subsection (5A) also empowers the Commissioner to amend, or further amend an assessment order if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue, but before doing that, he shall provide the taxpayer with an opportunity of being heard. Power to amend or further amend an assessment order is also subject to the time-limit of five years or one year. 38. At this stage, it is necessary to have a glance at the provisions of section 239, the savings clause of the Ordinance because in the context of transition to a new phase of law, particularly where an existing law is repealed, the savings clause is always of pivotal nature, inasmuch as it CA 778-2005 ETC 47 serves as a bridge to make the transition smooth. Subsections (1), (2) and (3) of section 239, as originally enacted, provided as under: - “(1) The repealed Ordinance 1979 shall continue to apply to the assessment year ending on the 30th day of June 2003. (2) In making any assessment in respect of any income year ending on or before the 30th day of June 2002, the provisions of the repealed Ordinance relating to the computation of total income and the tax payable thereon shall apply as if this Ordinance had not come into force. (3) Where any return of income has been furnished by a person for any assessment year ending on or before the 30th day of June 2003, proceedings for the assessment of the person for that year shall be taken and continued as if this Ordinance has not come into force. “ The above subsections were amended by the Finance Ordinance, 2002 as under:- “(1) Subject to subsection (2), in making any assessment in respect of any income year ending on or before the 30th day of June, 2002, the provisions of the repealed Ordinance in so far as these relate to computation of total income and tax payable thereon shall apply as if this Ordinance had not come into force. (2) The assessment, referred to in subsection (1), shall be made by an income tax authority which is competent under this Ordinance to make an assessment in respect of a tax year ending on any date after the 30th day of June, 2002, and in accordance with the procedure specified in section 59 or 59A or 61 or 62 or 63, as the case may be, of the repealed Ordinance. (3) The provisions of subsections (1) and (2) shall apply, in like manner, to the imposition or charge of any penalty, additional tax or any other amount, under the repealed Ordinance, as these apply to the assessment, so however that procedure for such imposition or charge shall be in accordance with the corresponding provisions of this Ordinance.” CA 778-2005 ETC 48 Thus, as per original subsection (1) of section 239 – (i) The repealed Ordinance was applicable to assessment year ending on 30th June, 2003; (ii) The repealed Ordinance governed the computation of total income and the tax payable thereon in respect of any income year ending on or before the 30th day of June 2002; and (iii) The repealed Ordinance was applicable to proceedings in respect of assessment for the year ending on or before the 30th day of June 2003. After the aforesaid amendment brought about by the Finance Ordinance, 2002, the authority competent to make an assessment in respect of a tax year ending on or before the 30th day of June, 2002 under the Ordinance was empowered to make an assessment in respect of a tax year ending on any date after the 30th day of June, 2002, in accordance with the procedure specified in sections 59, 59A, 61, 62 or 63 of the repealed Ordinance. The imposition or charge of any penalty, additional tax or any other amount, under the repealed Ordinance would also be governed by the aforesaid provisions. In subsection (2) of section 239, assessments under sections 59, 59A, 62 or 63 were referred to [whereas in subsection (1) of section 122, apart from the assessments under sections 59, 59A, 62 or 63, assessment under section 65 of the repealed Ordinance was also included.] 39. According to the learned counsel for the respondents, the previous laws envisaged additional assessment where any income chargeable to tax had escaped assessment, or was under assessed, or assessed at too low a rate, or was the subject of excessive relief (section 34 of the Income Tax Act, 1922 and section 65 of the repealed Ordinance). It was contended that the provisions of subsection (5) of section 122 in CA 778-2005 ETC 49 particular were pari materia with the provisions of section 65 of the repealed Ordinance to that extent, and the legislature being aware of the previous state of the law, consciously did not enact a similar provision in section 122(1) as originally enacted and also omitted to save section 65. Therefore, subsequent reference to that section, or for that matter, the other sections of the repealed Ordinance, in section 122(1) was of little significance. They vehemently contended that section 65 having not been saved, the provisions of section 122(1), and particularly the provisions of subsections (5) and (5A) could not be applied retrospectively so as to reopen, revise or amend the assessments finalized under the repealed Ordinance. On the other hand, the learned counsel for the appellants stated that lacuna, if any, in the savings clause stood cured with the amendment of subsection (1) of section 122 and introduction of subsection (5). 40. We have given our anxious consideration to this aspect of the matter. To facilitate an easy analysis, the three provisions are juxtaposed with the help of the following comparative chart: - COMPARATIVE CHART OF CORRESPONDING PROVISIONS Income Tax Act, 1922 Section 34 Income Tax Ordinance, 1979 Section 65 Income Tax Ordinance 2001 Section 122 34. Income escaping assessment: If for any reason income, profits or gains chargeable to income-tax have escaped assessment in any year or have been assessed at too low a rate, or have been 65. Additional assessment.- (1) If, in any year, for any reason,- (a) any income chargeable to tax under this Ordinance has escaped assessment; or (b) the total income of an assessee has been under assessed, or assessed at too low a rate, or has been the 122. Amendment of assessments.- (1) Subject to this section, the Commissioner may amend an assessment order treated as issued under section 120 or issued under section 121, or issued under section 59, 59A, 62, 63 or 65 of the repealed Ordinance, by making such alterations or additions as the Commissioner considers necessary. (2) An assessment order shall only be amended under subsection (1) within five years after the Commissioner has issued or is treated as having issued the assessment order on the taxpayer. CA 778-2005 ETC 50 the subject of excessive relief or refund under this Act, the Income-tax Officer may, at any time within one year of the end of that year, serve on the person liable to pay tax on such income, profits, or gains, or in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or reassess such income, profits or gains, and the provisions of this Act, shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub- section: Provided that the tax shall be charged at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment, as the case may be: Provided further that subject of excessive relief or refund under this ordinance; or (c) the total income of an assessee and the tax payable by him has been assessed or determined under sub- section (1) of section 59 or section 59A or deemed to have been so assessed or determined under sub- section (1) of section 59 or section 59A, the Deputy Commissioner may, at any time, subject to the provisions of sub- sections(2), (3) and (4), issue a notice to the assessee containing all or any of the requirements of a notice under section 56 and may proceed to assess or determine, by an order in writing, the total income of the assessee or the tax payable by him, as the case may be, and all the provisions of this Ordinance shall, so far as may be, apply accordingly: Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessment is made. (2) No proceedings under sub-section (1) shall be initiated unless definite information has come into the possession of the Deputy Commissioner and he has obtained the previous approval of the Inspecting Additional Commissioner of Income Tax in writing to do so. Explanation.- As used in this sub-section, "definite information" (3) Where a taxpayer furnishes a revised return under sub-section (6) of section 114 - (a) the Commissioner shall be treated as having made an amended assessment of the taxable income and tax payable thereon as set out in the revised return; and (b) the taxpayer’s revised return shall be taken for all purposes of this Ordinance to be an amended assessment order issued to the taxpayer by the Commissioner on the day on which the revised return was furnished. (4) Where an assessment order (hereinafter referred to as the “original assessment”) has been amended under sub- section (1) or (3), the Commissioner may further amend,1[as many times as may be necessary, the original assessment within the later of – (a) five years after the Commissioner has issued or is treated as having issued the original assessment order to the taxpayer; or (b) one year after the Commissioner has issued or is treated as having issued the amended assessment order to the taxpayer. (4A) In respect of an assessment made under the repealed Ordinance, nothing contained in sub-section (2) or, as the case may be, sub-section (4) shall be so construed as to have extended or curtailed the time limit specified in section 65 of the aforesaid Ordinance in respect of an assessment order passed under that section and the time-limit specified in that section shall apply accordingly. (5) An assessment order in respect of tax year, or an assessment year, shall only be amended under sub-section (1) and an amended assessment for that year shall only be further amended under sub-section (4) where, on the basis of definite information acquired from an audit or otherwise, the Commissioner is satisfied that– (i) any income chargeable to tax has escaped assessment; or (ii) total income has been under- assessed, or assessed at too low a rate, or has been the subject of excessive relief or refund; or (iii) any amount under a head of income has been misclassified.] (5A) Subject to sub-section (9), the Commissioner may amend, or further amend, an assessment order, if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue. CA 778-2005 ETC 51 where the assessment made or to be made is an assessment made or to be made on a person deemed to be the agent of a non-resident person under section 43, no notice under this subsection shall be issued after the expiry of one year of the end of that year. Provided further that unless definite information has come into his possession, the Income-tax Officer shall not initiate proceedings under this subsection without obtaining the previous approval of the Inspecting Assistant Commissioner of Income-tax in writing. includes information in respect of sales and purchases, made by the assessee, of any goods, and any information regarding acquisition, possession or transfer, by the assessee, of any money, asset or valuable article, or any investment made or expenditure incurred by him. (3) Notice under sub- section (1), in respect of any income year, may be issued within ten years from the end of the assessment year in which the total income of the said income year was first assessable: Provided that, where the said notice is issued on or after the first day of July, 1987, this sub-section shall have effect as if for the words "ten years" the words "five years" were substituted. (3A) Where a notice under sub-section (1) is issued on or after the first day of July, 1982, no order under the said sub-section shall be made after the expiration of one year from the end of the financial year in which such notice was served. (5B) Any amended assessment order under sub-section (5A) may be passed within the time-limit specified in sub-section (2) or sub- section (4), as the case may be. (6) As soon as possible after making an amended assessment under sub-section (1), sub-section (4) or sub-section (5A), the Commissioner shall issue an amended assessment order to the taxpayer stating – (a) the amended taxable income of the taxpayer; (b) the amended amount of tax due; (c) the amount of tax paid, if any; and (d) the time, place, and manner of appealing the amended assessment. (7) An amended assessment order shall be treated in all respects as an assessment order for the purposes of this Ordinance, other than for the purposes of sub-section (1). (8) For the purposes of this section, “definite information” includes information on sales or purchases of any goods made by the taxpayer, receipts of the taxpayer from services rendered or any other receipts that may be chargeable to tax under this Ordinance,] and on the acquisition, possession or disposal of any money, asset, valuable article or investment made or expenditure incurred by the taxpayer. (9) No assessment shall be amended, or further amended, under this section unless the taxpayer has been provided with an opportunity of being heard.” 41. There is force in the contention of the learned counsel for the respondents that the concept of additional assessment on the ground of escaped income, etc., as prevalent under the repealed Ordinance, or previously under the Income Tax Act, 1922, and also available in other jurisdictions (e.g. section 147 of the Indian Income Tax Act, 1961), was not legislated under the Ordinance as originally framed and promulgated. It CA 778-2005 ETC 52 appears that the Ordinance was drafted in post haste and the draftsman omitted to incorporate this important provision. This observation is supported from the fact that the Ordinance was subjected to speedy, successive and large scale amendments, particularly at its very inception. It may be seen that section 238 provided that the Ordinance shall come into force on a date to be appointed by the Federal Government by notification in the official gazette. Accordingly, vide notification (SRO No. 381(I)/2002) dated 16.6.2002, the Ordinance came into force with effect from the first day of July 2002, but with more or less 1000 amendments inserted by the Finance Ordinance, 2002, as calculated by the learned counsel for the respondents. Soon thereafter, the Federal Government, in the purported exercise of power under section 240, a provision meant for removal of difficulties, came up with SRO No. 633(I)/2002 dated 14.9.2002, whereby amendments of substantive nature were made in different provisions of the Ordinance, e.g. sections 114, 121, 122, 137, 141, 161, 221 & 239, which changed the entire complexion of the law. The SRO also provided that for making any assessment for the year beginning on the first day of July, 2002, or making any deduction or collection of tax for the year beginning on the last day of July, 2002, the Ordinance would have effect accordingly. 42. The validity of the aforesaid SRO was called in question in various writ petitions filed before the Lahore High Court. A learned Single Judge of that Court allowed the writ petitions and declared the SRO in question ultra vires the Ordinance. The matter came up for consideration before this Court in the case of Kashmir Edible Oils Ltd (supra). This Court held that merely because the Federal Government was vested with the power to remove the difficulties in giving effect to any of the provisions of CA 778-2005 ETC 53 the Ordinance did not empower the Government to go ahead with making amendments or repealing the provisions of the Ordinance. It was held that section 240 of the Ordinance had placed an embargo that the order passed by the Federal Government for removal of difficulties would not be inconsistent with the provisions of the Ordinance. Therefore, the Federal Government exceeded its powers of delegated legislation as contemplated by section 240 of the Ordinance and thus the said SRO could not co-exist with the original provisions of the Ordinance, many of which were sought to be amended thereby. However, it was observed that since the question of validity and effect of amendment in section 122 of the Ordinance by the Finance Act No. 1 of 2003 was not directly involved, therefore, the same was not examined in those proceedings.4 It is noteworthy that retrospectivity or otherwise of the provisions of section 122 remained undetermined by this Court in Kashmir Edible Oils Ltd. (supra). The effect of the above decision of this Court on the cases pending either before this Court, or before any other authority or Court would be that the proceedings initiated in pursuance of the amendments of the SRO period, i.e. 14.9.2002 to 30.6.2003 would abate, inasmuch the very provisions of the Ordinance under which the proceedings were initiated were declared ultra vires and rendered null and void ab initio. However, the proceedings initiated on the basis of the provisions of the Ordinance, as amended from time to time, minus the provisions of the SRO period, would be in the field and subject to the decision of these appeals. This consideration in view, the learned counsel for the appellants frankly conceded that the appeals relating to the SRO period were not competent. They, therefore, requested that C.As. No. 1617, 1622-1624, 2673 & 2675-2678 of 2006, and C.As. No. 497, 498, 4 Emphasis supplied. CA 778-2005 ETC 54 911, 916, 1002, 1003, & 2282–2292 of 2008 may be allowed to be withdrawn. Accordingly, these appeals are dismissed as withdrawn. 43. At this juncture, we advert to the questions whether section 122 of the Ordinance is a procedural or substantive provision, whether it is to be applied prospectively or retrospectively, and whether assessees or taxpayers have acquired any right that their assessments finalized under the repealed Ordinance, being past and closed transactions, shall not be opened or amended under this provision? The learned counsel for the parties hotly contested the issue, the learned Attorney General for Pakistan on behalf of the Federal Government supporting the stance of the appellants that the provisions of the section were machinery provisions and not substantive as no tax or charge was levied thereby, therefore, the same were retrospective in operation and being procedural in nature applied to the assessments orders passed under the repealed Ordinance, moreso as the assessees had no vested right in the matter of reopening of the previous assessments. To resolve these issues, we revert to the case- law cited at the bar, but would suffice to refer to only some of them in the paragraphs next following. 44. In the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) the issue before this Court was the applicability of the West Pakistan Family Courts Act, 1964 to the proceedings commenced before the Act came into force. In holding that the Act brought about only procedural changes and did not affect any substantive right, therefore, according to the general rule of interpretation, that a procedural statute was to be given retroactive effect unless the law contained a contrary indication, Hamoodur Rehman, C.J., speaking for the Court, dilated upon the issue as under: - CA 778-2005 ETC 55 “The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving (1905 A C 369) is that "if the matter in question be a matter of procedure only", the provisions would be retrospective. "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act", then "in accordance with a long line of authorities extending from the time of Lord Coke to the present day", the legislation would not operate retrospectively, unless the Legislature had either "by express enactment or by necessary intendment" given the legislation retroactive effect. To the same effect are the observations of Jessel, master of the Rolls, in the case of In re: Joseph Suche & Co. Limited ((1875) 1 Ch. D. 48), where it was observed that as "a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is on exception to that rule, namely, that these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights." The question for consideration there was regarding the right of a secured creditor of a company to prove for the full amount of his debt without deducting the value of his securities in the course of the winding up. That was held to be, in substance, a right of action for the recovery of a debt and, therefore, section 10 of the English Judicature Act was held not to apply retrospectively. The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, page 581, as follows :- “As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions.” In this judgment, the Court also considered the question as to what were matters of procedure and held as under: - “The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying CA 778-2005 ETC 56 that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favorably incline towards giving effect to such procedural statutes retroactively.” 45. In a subsequent judgment of this Court reported as Nabi Ahmed v. Home Secretary (PLD 1969 SC 599) where the case of Adnan Afzal (supra) was also relied upon, the issue of retrospectivity was examined at still greater length. It is pertinent to refer to the following paragraphs from the said judgment:- “21. In England, the basic sentiment of revulsion against injustice is strengthened by the jealousy of Courts to preserve their jurisdiction uncontaminated by extra-judicial considerations. They regard all considerations, whether political, administrative or even legislative, if they are not embodied in the law itself, as subordinate, if not entirely extraneous, to the judicial outlook. In the United States of America, emphasis on the constitutional separation of power is added. In the words of the American Jurisprudence, 16th Volume, page 771, Art. 429: "The position has been taken, however, in some jurisdictions that when an action is once commenced, jurisdiction is purely a judicial question, and it is unconstitutional, under the doctrine of the separation of the powers of Government, for the Legislature to attempt to usurp the judicial function by interfering legislation to oust the jurisdiction of the Court." ------------------------------ 22. One more consideration which appeals to me is that law abiding members of society regulate their lives according to the law as it exists at the time of their actions, and they expect the law to be steadfast and reliable See Hughes and others v. Lumley and others ((1854) 4 E & B 358). They assess and weigh the consequences according to the demands of existing law, including the requirements implicit in the existing system of law, and are entitled to feel, cheated if the law later lets them down by taking away or reducing their rights, or increasing their burdens. As pointed out by Willes, J. in Phillips v. Eyre (22 L T 869) at p. 876 "Retrospective laws are no doubt prima facie of questionable policy, and contrary to the general principle that legislation by CA 778-2005 ETC 57 which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law." Further: "Blackstone, J., 1 Com. 46, describes laws ex post facto of this objectionable class as those by which after an action indifferent in itself is committed, the Legislature then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had, therefore, no cause to abstain from it, and all punishment for not abstaining must of consequence be cruel and unjust'." 23. Justice Holmes of America has emphasized that law should be reliably ascertainable-this is important for law abiding persons, so that they may arrange their lives accordingly, but it is equally, if not more, important for wrong-doers in order to know their chances in law. The learned Judge has said in his address delivered in 1897 that- " . . if we take the view of our friend the bad man, we shall find that he does not care two straws for the axioms of deductions, but that he does want to know what the Massachusetts or English Courts are likely to do in fact. I am much of his mind. The prophecies of what the Courts will do in fact, and nothing more pretentious, are what I mean by the law." What the Courts will do tomorrow depends a great deal on the answer to the question: To whom the appeal lies. This is why, to my mind, the Privy Council held in Colonial Sugar Co., that there was no difference between changing the forum of an appeal and altogether abolishing it. A past and closed transaction must be taken to have been concluded according to the law in force at that time, and the ultimate legal consequences of a legal duty or a legal right arising there from must, according to Justice Holmes, mean to the parties to it, "a prophecy". Civilization is in justice bound to respect that ‘prophecy', because the need for such prophecy is a creation of a civilized society. 24. People do not mind changes in law, if only the procedure is altered without altering the substance of the law. True, it is not easy to draw a line between substantive and procedural law, but the task is not impossible if the essential difference is kept in mind. According to Salmond’s Jurisprudence, 12th Edition of 1966 at page 128- "The law of procedure may be defined as that branch of the law which governs the process of litigation . . . . . All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matter." CA 778-2005 ETC 58 Thus: " .. a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party,' 'rules defining the remedy . . . . as those which define the right itself,' that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law," and, as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the change of forum- "If in the process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice." The rule regarding retrospectivity of statutes, as stated in Halsbury’s Laws of England, Vol. 36, 3rd Edition, at pp. 423 & 426 runs as under: - “The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie, prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the Legislature.” “The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of the Parliament. “It is presumed, moreover, that procedural statutes are intended to be fully retrospective in their operation, that is to say, are intended to apply not merely to future actions in respect of existing causes, but equally to proceedings instituted before their commencement. Thus, provisions regulating, or empowering the court to regulate, the course of proceedings, affect proceedings pending at their commencement, unless an intention to the contrary is clearly shown.” “…. the Courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement.” In the instant case, the learned counsel for the parties were on common ground on the above exposition of the law, inasmuch as every one agreed that the substantive laws apply prospectively unless the statute expressly or implied provided that it would be applied retrospectively, the procedural laws are generally retrospective and apply to the pending proceedings with CA 778-2005 ETC 59 the rider that if they affect the existing or accrued right, they would not apply retrospectively, unless of course the legislature intended to do so by express words or necessary implication. However, the learned counsel were at variance on the issue whether after the repeal of the Ordinance of 1979, the respondents had acquired any vested right, or a right had accrued to them on account of the repeal of the Ordinance of 1979, so as not to touch the assessment orders passed under the repealed Ordinance, particularly when section 65 of the repealed Ordinance, though stood saved under the original Ordinance, was not saved while introducing amendments in the Ordinance. In a somewhat similar context, in the case of Inspecting Additional Commissioner of Income Tax v. Zakaria H.A. Sattar Bilwani, Karachi (C.P. No. 643-K to 647 of 2007 decided on 15.7.2008), this Court noted that section 17-B introduced in the Wealth Tax Act, 1963 by means of Finance Act, 1992 was enacted to initiate proceedings in the interest of revenue. It was held that the amendment brought about by insertion of section 17-B was not merely procedural but also conferred powers to recall cases to the extent that was not available earlier which, by its very nature, was substantive in nature, therefore, it did not operate retrospectively. In this case, the case of Commissioner of Income Tax v. Eastern Federal Insurance Company [(1982) 46 Tax 6 (SC. Pak)] was also noted wherein the amendment brought about by the Finance Act, 1975 extended the period for re-opening of a case from four to six years. It was held that the amendment would not be applicable to the cases in which the period of four years had already expired on the ground that the vested right of the party after expiry of four years could not be taken away and therefore the amendment was not attracted to the case of CA 778-2005 ETC 60 the assessee. The following portion of the judgment was quoted with approval: - “15. Keeping these principles in view, we are of the opinion that, even though the amending provisions in question, were a part of the procedural laws, they cannot be given retrospective effect, in the facts of the present case. There is no dispute between the parties that, but for the amendments, the business profits for the chargeable accounting period in question, were not liable to be assessed on 31.1.1958. On the expiry of the period of four years under section 14, the assessee had, therefore, clearly acquired a right and the assessment for the said period became a past and closed transaction. This right could not, therefore, be taken away by giving retrospective operation to the amended statutory provisions extending the period for assessment. The contentions advanced on behalf of the appellant are without substance. We, accordingly, agree with the judgment under appeal.” The introduction of time-limit within which an assessment can be amended in both the Ordinances (section 65 of the repealed Ordinance and section 122 of the Ordinance) is a statutory recognition of the protection against arbitrary power of reopening or amending an assessment after the expiry of the prescribed period. Therefore, it could not be said that in reopening the assessments already completed no right of the assessee/taxpayer was involved. 46. It was contended by Mr. Mansoorul Arifin that the provisions of section 122 of the Ordinance relating to amendment of assessment were pari materia with those of section 166A of the repealed Ordinance. He submitted that with the promulgation of the repealed Ordinance and repeal of the Income Tax Act, 1922 with effect from 1.7.1979, the provision akin to section 66A, viz., section 34A of the Act of 1922 was not saved by section 166 of the repealed Ordinance nor such a provision was enacted in the later enactment. Section 66A was inserted into the repealed Ordinance by the Finance Ordinance, 1980 with effect from 1.7.1980. The erstwhile CA 778-2005 ETC 61 Central Board of Revenue,5 vide Circular No. I(48)/II/1/79, dated 17.2.1981 stated that section 66A of the repealed Ordinance had no retrospective application. The said provisions were considered by a learned Division Bench of the Lahore High Court in the case of Monnoo Industries Ltd v. C.I.T. (2001 PTD 1525). It was held that section 66A of the repealed Ordinance was not procedural in nature and, therefore, it could not have retrospective effect to touch the assessments completed before its incorporation into the statute book, particularly in view of the fact that revisional provisions were not saved by the savings clause contained in section 166 of the repealed Ordinance providing for repeal and savings of the late Income Tax Act, 1922. Thus, the assessments pending at the time of enforcement of the repealed Ordinance had to be dealt with as if the repealed Ordinance had not come into force and the assessments finalized before 1.7.1980 could not be reopened under section 66A of the repealed Ordinance. It may be observed that section 66A of the repealed Ordinance provided for revision of the assessment orders, hence generally speaking it was pari materia, not with section 122 but with section 122A of the Ordinance, which provided for revision of the proceedings under the Ordinance. Subsection (5) is pari materia with section 65 of the repealed Ordinance inasmuch as the grounds earlier provided for additional assessment were made the grounds for amendment or further amendment under that subsection while section 66A of the repealed Ordinance qua grounds for revision is pari materia with subsection (5A). In any event, the High Court in the above case held that section 66A of the repealed Ordinance was not procedural in nature and, therefore, it could not have 5 Renamed as Federal Board of Revenue. CA 778-2005 ETC 62 retrospective effect to touch the assessments completed even though it was not saved under section 166 of the repealed Ordinance. 47. As put by the Privy Council in the case of Mahaliram Ramjidas (supra), and also reiterated by this Court in the cases of Khan Bahadur Amiruddin v. West Punjab Province (PLD 1956 FC 220) and Muhammad Amir Khan v. Controller of Estate Duty (PLD 1961 SC 119), there is a distinction between provisions which impose taxes and those which provide for the machinery by which tax is assessed and realized. The provisions relating to imposition of tax are to be strictly construed in favour of the subject so that if there be any substantial doubt, it has to be resolved in his favour. But the machinery sections are to be liberally construed. If the incidence of tax be clear, the machinery sections should be so construed as to make the realization of the proper tax possible. They should not be so construed as to defeat the intention of the legislature and to prevent the realization of the tax that is in fact due. However, in our view, the provision is impregnated with an essential attribute, which affects an accrued right of an assessee or a taxpayer that after efflux of a certain period of time, his assessment will not be opened or amended. Therefore, the section cannot be applied retrospectively unless the legislature has by express words or necessary implication intended to give it retrospective effect. Our burden, therefore, in the light of the contentions of the learned counsel for the parties is to find from the provisions of the Ordinance whether the legislature intended to apply provisions of section 122 retrospectively, either by express words, or by necessary implication, and what treatment the Ordinance envisaged to be given to the proceedings pending under the repealed Ordinance, including additional assessment CA 778-2005 ETC 63 under section 65, which, to an extent, is pari materia, with the provisions of subsection (5) of section 122. 48. The learned counsel for the appellants vehemently contended that there was clear distinction between the charging sections (in this case sections 4 to 8 of the Ordinance) and the procedural or machinery provisions, section 122 being one of them. While the former sections were to be construed strictly, liberal approach was required to be adopted in the interpretation of the procedural or machinery provisions, so as to make the machinery workable and the realization of the tax possible. On the other hand, the learned counsel for the respondents took the position that an element of addition of liability was woven into the overall provisions of the Ordinance, particularly into the machinery sections, including section 122, therefore, the same could not be given retrospective effect. Having anxiously considered the matter, the view we are inclined to take is that the provision is impregnated with the potential of adding to the liability of the taxpayer, therefore, the same is not a mere matter of procedure. It has already been held that the taxpayers/assessees have a right that their assessments will not be reopened after the expiry of the statutory period of five years. 49. As to the non-incorporation into the original Ordinance of the concept of “additional assessment on the grounds of escapement of income, etc.” in the former laws, (later introduced into the Ordinance under subsection (5), or for that matter various other provisions of the repealed Ordinance, the legislature realizing the flaws in the law, immediately took in hand the work of filling the lacunae and supplying the omissions on successive reviews of the law in its present state. Thus, on the very day of CA 778-2005 ETC 64 the enforcement of the Ordinance, i.e. 1.7.2002, the words and figures, “or issued under sections 59, 59A, 62, 63 or 65 of the repealed Ordinance” were inserted in subsection (1) of section 122 along side many other amendments and the assessment orders passed under those sections were brought within the pale of the amendment power. Likewise, on insertion of subsection (5) by the Finance Act, 2003, the pari materia provisions of section 65 (escapement of income from assessment, etc.) were brought on the statute book. These omissions were, however, earlier curable with the unamended provision of subsection (1) of section 239 on the statute book, which provided that the repealed Ordinance shall continue to apply to the assessment year ending on the 30th day of June, 2003, but became incurable with the substitution of that provision with subsections (1), (2) and (3) of section 239 by the Finance Ordinance, 2002 and the Finance Act, 2003, which omitted the en block applicability of the repealed Ordinance to the relevant assessments. Had the unamended provision of subsection (1) of section 239 continued on the statute book, no difficulty would have arisen regarding the treatment of assessment orders passed in respect of the assessment year ending on 30th June 2003. In such eventuality, the assessments up to the said period would have been governed under the repealed Ordinance, while the assessments of the post enforcement period of the Ordinance of 2001 would be governed under the latter Ordinance. 50. M/S Sirajuddin Khalid and M. Iqbal Hashmi, ASCs argued that the terms ‘tax’, ‘taxable income’ and ‘taxpayer’ as defined in section 2(63), (64) & (66) respectively were restricted to the Ordinance as they did not contain any reference to the corresponding or pari materia provisions in the repealed Ordinance, hence the provisions of the Ordinance could not CA 778-2005 ETC 65 be applied to the assessments completed under the repealed Ordinance. The relevant provisions are reproduced below: - “2(63) “Tax” means any tax imposed under Chapter II, and includes any penalty, fee or other charge or any sum or amount leviable or payable under this Ordinance.” (64) “Taxable income” means taxable income as defined in section 9.” (66) “Taxpayer” means any person who derives an amount chargeable to tax under this Ordinance and includes --.” A bare perusal of the above provisions shows that here too the draftsman failed to create any link between these provisions and the relevant provisions of the repealed Ordinance. 51. This brings us to the question how this Court can come to the rescue of the draftsman who has left so much to be desired in the Ordinance. To find an answer, reference is made to the case of Muhammad Amir Khan v. Controller of Estate Duty (PLD 1961 SC 119) where this Court considered the question whether the Finance Act of 1956 was not ultra vires the Central Legislature and, in any case, even if the Finance Act of 1956 was ignored the proper duty calculated on the basis of determination by the Controller could be realised in spite of the defective wording of section 57 as it stood before its amendment by the Finance Act of 1956. Another question considered in this case was whether this Court could modify section 57 so as to bring it in accord with the rest of the Act and the intention of the Legislature. The Court dealt with the above questions in the following manner: - “We are satisfied that this is a case where the Court can modify the language of an enactment. It will be observed that there cannot be the slightest doubt in the present case as to the intention of the Legislature. In fact, it is admitted on behalf of the appellants that the failure to make a consequential amendment in section 57 could only be due to a slip. After providing the Controller could determine value subject to an appeal to the Appellate Tribunal the Legislature could CA 778-2005 ETC 66 not possibly have intended that duty should be paid only on the account which was filed by the accounting party itself. All that has happened is that the draftsman failed to refer in section 57 to the provisions relating to determination in accordance with the amended Act. That we can modify the language of an Act to give effect to the manifest and undoubted intention of the legislature is a proposition which is well supported by authority and well justified in reason. As stated in Crawford on Statutory Construction (section 201 p. 348): "If the true meaning of the legislature appears from the entire enactment, errors, mistakes, omissions and misprints may be corrected by the Court, so that the legislative will may not be defeated. As a result, spelling, grammar, numbers and even words, may be corrected. This, as already stated, is simply making the strict letter of a statute yield to the obvious intent of the Legislators. But it must clearly, or at least with reasonable certainty, appear that the error is in fact one before the Court will be justified in making the proper correction or amendment or the Court will invade the province of the legislature and exercise legislative power. But when satisfied of the error, the Court may make the necessary correction. In accord with this principle, an erroneous description may be made to describe the thing actually intended or a misnomer made to name the thing really meant." In Maxwell's Interpretation of Statutes the rule is thus stated on p. 229, 1953 Edition: "Where the language of the statute, in its ordinary meaning and grammatical constructions, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence." In Salmon v. Duncombe and others (11 A C 634), their Lordships of the Privy Council said "It is, however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used. And they have set themselves to consider, first, whether any substantial doubt can be suggested as to the main object of the legislature, and, secondly, whether the last nine words of section 1 are so cogent and so limit the rest of the statute as to nullify its effect either entirely or in a very important particular." There being no doubt in the present case that the duty which the legislature intended to be realized was that which was to be CA 778-2005 ETC 67 determined in accordance with the provisions of the Act. We find we have jurisdiction to modify section 57 so as to rectify the draftsman's mistake and to read in it references to the Controller and the Appellate Tribunal, etc., and we would hold that the proper duty could be realized in spite of the defective wording of section 57. Stress was laid during argument on the rule that statutes imposing taxes should be strictly construed. Any effort to invoke the aid of this rule in the present case is misconceived. There is a distinction between provisions which impose taxes and those which provide for the machinery by which tax is assessed and realized. The provisions relating to imposition of tax are to be strictly construed in favour of the subject so that if there be any substantial doubt it has to be resolved in his favour. But the machinery sections are to be liberally construed. If the incidence of tax be clear the machinery sections should be so construed as to make the realization of the proper tax possible. They should not be so construed as to defeat the intention of the legislature and to prevent the realization of the tax that is in fact due. The distinction stated above was recognised by the Federal Court of Pakistan in Khan Bahadur Amiruddin and others v. West Punjab Province (P L D1956 FC 120), where the learned Judges while dealing with a case under the Punjab Immovable Property Tax Act said: "The Act in question is no doubt a Taxing Act and unless the liability to be taxed is clear the interpretation should be in favour of the subject. But no question of interpretation arises regarding section 3, which, in unambiguous terms, determines the liability of the lands to be taxed. The provisions that have to be interpreted are those relating to the machinery of the assessment and in respect of such provisions of a taxing Act the Privy Council in Income-tax Commissioner v. Mahabi Ramjidas AIR 1940 P C 124, observed that that construction should be preferred which makes the machinery workable." We also agree with the contention of the learned Attorney-General that in spite of the defective wording of section 57 duty could be realized on account of section 58-D. This section empowers the Controller to issue a notice of demand when duty has been determined in consequence or in pursuance of an order passed under the Act. In accordance with this section therefore once the Controller determines the value of the property and the duty that is due, he would have authority to issue a notice of demand. It has been urged on behalf of the appellants that this empowers only the issue of notice and does not contain any specific provision as to the realization of the duty. It appears to us to be involved in the authority to issue notice that the amount mentioned in the notice can be realized. We may mention before concluding the contention pressed before us by Mr. Suhrawardy that the Controller and the Government were only taking advantage of a technicality inasmuch as the High Court may very well have allowed Writ Petition No. 39/55 and may have granted a writ forbidding the Controller from taking further steps. We CA 778-2005 ETC 68 may point out that it is only the appellants who have been trying to take advantage of a technicality and they have failed. The liability of payment of estate duty arose in the year 1952 when Sir Muhammad Akbar Khan died and in accordance with the Estate Duty Act the value of the estate of Sir Muhammad Akbar Khan was to be assessed by the Controller. The amendment of 1953 had come into force before the year allowed to the Central Board of Revenue for reference to the High Court expired. The Controller admittedly had on account of the amendment the power to determine value. The appellants had objected to the exercise of jurisdiction on the ground of a drafting error. This objection though conceded in a limited form by the Advocate-General of Pakistan in 1955 had no force and is now being overruled. The effect of the judgment is that proceedings before the Controller shall have their ordinary and natural course.” Thus, in the course of interpretation of statutes, this Court while ascertaining the manifest, undoubted and true will and intent of the legislation, is fully competent and empowered not only to fill the lacuna or supply the omissions, but also to point to the deficiencies or the excesses that have crept into the legislation due to the unskilfulness of the draftsman against the legislative will. 52. In the instant appeals, as noted earlier, leave to appeal was granted to examine the scope, effect and validity of section 122. The learned counsel for the respondents had to devote considerable time in arguing excessive and repetitive power to amend vested in the Commissioner at the cost of arbitrariness. The learned counsel vehemently contended that arbitrary powers were given to the Commissioner to amend an assessment and the draftsman failed to properly depict the legislative intent in this regard, which was to confer the power of amendment of assessment on the Commissioner simpliciter. Though, in response the learned counsel for the appellants contended that subsection (1) of section 122 was an enabling provision and the power of amendment was to be exercised subject to the constraints and restrictions imposed on it in the remaining parts of the section, but the fact remains that the power presents CA 778-2005 ETC 69 a draconian façade to a taxpayer. To begin with, subsection (1) invests the Commissioner with the power to amend an assessment order by making such alterations or additions as he considers necessary. Next, subsection (3) says that the Commissioner shall be treated as having made an amended assessment of the taxable income and tax payable thereon as set out in the revised return furnished by a taxpayer in terms of subsection (6) of section 114. Under subsection (4), where an assessment order has been amended under subsection (1) or (3), the Commissioner may further amend it as many times as may be necessary over a period of five years after the issuance of the assessment order, or a period of one year after the issuance of amended assessment order. Ambiguity abounds in the subsection. Under this subsection, the Commissioner may further amend an assessment 100 times or 1000 times within the five years time- limit. The order passed under subsection (1) will be an amended assessment order. The revised return filed under subsection (3) shall also be treated as an amended assessment. One is left wondering from which assessment order the period of five years, or one year will be computed, from the date of the revised return, which in itself is an amended assessment order under subsection (3)(a), or an order amending assessment for the first time, or the hundredth time under subsection (4). Subsection (4A) is another patch work done for the limited purpose of saving the time-limit prescribed in section 65 of the repealed Ordinance for dealing with the assessments made under that provision. Again, this would not have been required had the unamended provision of section 239(1) of the Ordinance continued on the statute book. No doubt, subsection (5) stipulates the conditions under which the power to amend an assessment is to be exercised, but its placement in the section suggests, though CA 778-2005 ETC 70 incorrectly, as if it is an independent power of amendment. If the grounds for amendment or further amendment were provided in subsection (1) itself, or the same were suffixed immediately after it, it would be easily comprehended. The absurdity, inconvenience and hardship are manifest. Then is subsection (5A), which provides that the Commissioner may amend, or further amend an assessment order, if he considers that the assessment order is erroneous in so far it is prejudicial to the interest of revenue. Indeed, it is an independent power, apart from the power of amendment contained in subsections (1), (3) & (4). That is why, the draftsman provided in subsection (5B) the time-limit within which this power was to be exercised. In this subsection, separate reference to subsection (9) – affording of opportunity of hearing to the taxpayer, is made. From the language of subsection (9), the provision appears to be applicable to the section as a whole and would be attracted to innumerable amendments or further amendments of assessments envisaged therein. The reference does not depict the legislative intent. 53. It was conceded by the learned counsel for the appellants that subsection (5A) provided an independent power of amendment or further amendment of assessment. Mr. M. Ilyas Khan stated that the power under subsection (5) was original in nature while that under subsection (5A) was revisional in nature. In fact, the grounds for amendment or further amendment provided in this subsection were the grounds for revision under section 66A of the repealed Ordinance. Now, the assessment orders are subject to a double revision. One is by the Commissioner under section 122A where no specific ground for revision is provided, but is to be made on an inquiry conducted in the matter. The other is by the Regional Commissioner under section 122B in a matter relating to issuance of an CA 778-2005 ETC 71 exemption or lower rate certificate with regard to collection or deduction of tax at source under the Ordinance. Here too, an impression of excessive powers surfaces. Then, the Ordinance provides in section 221 for rectification of mistakes, inter alia, by the Commissioner. Subsection (1A) specifically empowers the Commissioner to amend any order passed under the repealed Ordinance by the Deputy Commissioner, etc. There is a need to review the language, content and scope of the power to amend and further amend an assessment, the power to revise an assessment and the power to rectify mistakes envisaged in these sections so as to make it in line with the legislative intent of consolidating the law relating to income tax so as to make it easily comprehensible to the convenience of the taxpayers. 54. A perusal of section 65 of the repealed Ordinance shows that a period of five years was provided for issuing notice to an assessee to initiate proceedings for additional assessment in the cases of escapement of income from assessment, etc. Time-limit of five years, with certain changes is also envisaged under subsections (2) & (4) of section 122 of the Ordinance within which power to amend an assessment may be exercised. Keeping the former and the present states of law in view, the irresistible conclusion appears to be that the assessments completed under the repealed Ordinance ought to be governed by the old law while the assessments of the post-enforcement period of the Ordinance are to be governed by the new law. This treatment of the two sets of assessments would also avert the anomaly that would be created if the assessments of the period up to 30th June, 2003 were excluded from the operation of the previous law on account of its repeal, and not included in the new law on account of its being prospective in application. It appears CA 778-2005 ETC 72 that the respondents have been trying to take advantage of the technicalities, but we are afraid, they must fail. If their cases do not fall within the ambit of provisions of section 122 on account of the same being prospective, they cannot exclude their assessments from the purview of section 65 of the repealed Ordinance merely because of the lapse of the draftsman who omitted subsection (1) of section 239 at the amendment stage. Had the provisions of subsection (1) of section 239 of the Ordinance continued on the statute book, there would have been no ambiguity and no difficulty at all. In that eventuality, the assessments up to the period ending on 30th June 2002 would be governed by the relevant provisions of the repealed Ordinance as if the Ordinance had not come into force. 55. At this stage, we may take up another contention of the learned counsel for the appellants that in some of the cases, the writ petitions were filed in the High Court against the issuance of show cause notices by the taxation officers though appropriate remedies were available to them under the law in the form of appeal/revision before the concerned Income Tax authorities. It was contended that instead of availing the aforesaid remedies, the assessees/taxpayers directly filed the writ petitions and the High Courts also incorrectly entertained the same, though the same were not maintainable. On the other hand, the learned counsel for the respondents submitted that the writ petitions were filed against the issuance of show cause notices on the ground of lack of authority and jurisdiction in the Income Tax authorities under the Ordinance. It was also submitted that the contention of the learned counsel for the appellants was of no significance particularly when the High Courts in a large number of tax references also reached the same conclusion that the provisions of CA 778-2005 ETC 73 section 122 of the Ordinance were prospective in operation and the relevant assessments could not be reopened under those provisions. 56. In Commissioner of Income Tax v. Hamdard Dawakhana (Waqf) (PLD 1992 SC 847) this Court quoted with approval the observation in an earlier case6 that the tendency to bypass the remedy provided in the relevant statute and to press into service constitutional jurisdiction of the High Court was to be discouraged, though in certain cases invoking of such jurisdiction instead of availing the statutory remedy was justified, e.g. when the impugned order/action was palpably without jurisdiction and/or mala fide. It was further held that to force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper. In the said case, the appellant had opted to avail of the hierarchy of the forums provided for under the repealed Ordinance up to the stage of filing of appeal before the Tribunal, but then instead of making a reference to the High Court, filed a Constitution Petition in the High Court. It was observed that once a party opted to invoke the remedies provided for under the relevant statute, he could not at his sweet will switch over to constitutional jurisdiction of the High Court in the mid of the proceedings in the absence of any compelling and justifiable reason. Incidentally, that is not the position in the instant cases where some of the respondents directly filed writ petitions in the High Courts and challenged the competence and validity of the show cause notices issued to them. Here, the ratio of the judgment of this Court in Murree Brewery Co. Ltd v. Pakistan (PLD 1972 SC 279) is more pertinently attracted. In this case, the appellant challenged the very jurisdiction of the Capital Development Authority acting under the Capital Development Authority Ordinance, 1960 6 C.A. No. 79-K of 1991 CA 778-2005 ETC 74 to make the impugned acquisition under the Ordinance. It was held that if the appellant succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would be an exercise in futility. It was further held that the rule that the High Court would not entertain a writ petition when other appropriate remedy was yet available was not a rule of law barring jurisdiction, but a rule by which the Court regulated its jurisdiction. It was noted that one of the well recognized exceptions to the general rule was a case where an order was attacked on the ground that it was wholly without authority. Where a statutory functionary acted mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction had power to grant relief to the aggrieved party. It was also observed that the appeal under section 36 was limited to a matter which was within the jurisdiction of the authority concerned and the scope of the Ordinance. It was concluded that the question of jurisdiction was a matter for review, which was based not on the merits but on the legality of the lower authority’s proceedings. In the instant cases too, the jurisdiction of the Income Tax authorities to issue the impugned show cause notices was successfully brought under challenge before the High Courts and it was found that the notices were not competently issued in view of the prospective application of the provisions of section 122 of the Ordinance. The case of Pak Arab Fertilizers (Pvt.) Ltd relied upon by Mr. M. Ilyas Khan was not relevant, as no factual controversies were involved in the writ petitions filed by the respondents in these matters. The objection of the learned counsel, in the light of the above well-settled law, is overruled. 57. In the light of the above discussion, we uphold view of the Sindh High Court taken in Honda Shahra-e-Faisal and followed by the CA 778-2005 ETC 75 other High Courts as also the Income Tax authorities that the provisions of section 122 of the Ordinance are prospective in their application and do not apply to the assessment of a year ending on or before 30th June, 2002. On that account the appeals are bound to fail and the impugned judgments would be upheld. However, the learned High Courts have not adverted to the question of treatment of assessments of the period preceding the enforcement of the Ordinance. As already noted, section 65 of the repealed Ordinance provided a period of five years for additional assessment and such assessments were to be dealt with under the said provision in accordance with original section 239(1) of the Ordinance. The learned High Courts failed to take into consideration this aspect of the matter and did not direct that the assessments completed under the repealed Ordinance would be subject to the provisions of the said Ordinance, as originally provided in unamended section 239(1), but not clearly and properly provided in the Ordinance at the amendment stage. We fill this lacuna in the impugned judgments and direct that the assessment of any year ending on or before 30th June, 2002 would be governed by the repealed Ordinance and shall be dealt with as if the Ordinance had not come into force. In taking this view, we are fortified by a passage from the Maxwell on Interpretation of Statutes, 10th Edition (1953), p. 228, which reads as under: - “Where rights and procedure are dealt with together, the intention of the legislature may well be that the old rights are to be determined by the old procedure, and that only the new rights under the substituted section are to be dealt with by the new procedure.” 58. Mr. Shahid Jameel Khan, learned counsel for the appellants in C.A. No. 44 to 49 of 2009 stated that the issue for adjudication in these appeals before the High Court related to section 12(18) of the Ordinance in CA 778-2005 ETC 76 respect of assessment years 1999-2000 to 2002-2003, which was not touched upon by the learned Judges in the impugned judgments. He, therefore, submitted that the proceedings, which were the subject-matter of the said appeals were required to be remanded to the High Court for decision in accordance with law. He further submitted that the assessments relating to 1994-1995 and 1999-2000 were to be governed under section 122 of the Ordinance. Therefore, to that extent, the appeals would be dealt with in the light of the decision of this Court in other appeals. 59. As to Civil Appeals No. 50 & 51 of 2009, Mr. Shahid Jameel Khan, learned counsel for the appellants stated that the issue for adjudication before the High Court related to section 221 of the Ordinance, i.e. rectification of assessments of the year 1998-1999, but the same was not touched upon by the learned Judges in the impugned judgments. Likewise, in respect of assessments 2000-2001, 2001-2002 and 2002- 2003 the issue for adjudication before the High Court related to disallowance of interest expense, which too was not touched upon by the learned Judges in the impugned judgments. Only one assessment year, i.e. 1998-1999 related to section 122. He, therefore, submitted that the appeals to the extent of section 221 and disallowance of interest expense may be remanded to the learned High Court for decision according to law. 60. There is force in the submissions of the learned counsel. Accordingly, the appeals are partly allowed and the impugned judgments set aside to the above extent. The proceedings are remanded to the learned High Court for decision in accordance with law. As to section 122, the appeals will follow the decision of this Court in other appeals. CA 778-2005 ETC 77 61. The learned counsel next submitted that C.A. No. 1099 to 1101 of 2008 were inadvertently clubbed in the High Court with section 122 cases, though these appeals related to rectification of assessment orders under section 221 of the Ordinance. We have examined the case files and have gone through the grounds of PTR No. 9, 10 & 11 of 2008 filed before the High Court. The assessments in these cases were rectified under section 221 and refunds of different sums of money were created. Subsequently, the assessments were reopened under section 122(5A) on the ground of being erroneous and prejudicial to the interest of revenue. The order was upheld in appeal before the Commissioner. However, the Appellate Tribunal allowed the appeal of the assessee. Consequently, the statements filed by her under sections 115(4) and 143B in respect of assessment year 2002-2003 were accepted and the rectification made under section 221 was revived. The precise contention of the learned counsel for the appellant was that the learned High Court decided these cases along with the connected cases on the issue of prospectivity or retrospectivity of section 122, and did not go into the actual controversy raised in these cases, i.e. the rectification of the relevant assessments, therefore, the appeals were required to be remanded to the High Court for decision in accordance with law. We uphold the contention of the learned counsel. Thus, the appeals are partly allowed and the cases remanded to the learned High Court for decision in accordance with law. Obviously, if any question pertaining to the application of section 122 be raised, the same would be governed by this judgment. CA 778-2005 ETC 78 62. Mr. M. Ilyas Khan, Sr. ASC, learned counsel for the appellants in C.A. No.826 & 1102 of 2008 submitted that these appeals may be delinked as a different question of law was involved in it. Mr. Sirajuddin Khalid, ASC, learned counsel for the respondent in C.A. No.826/2008 subscribed to the submission of the learned counsel for the appellant. Order accordingly. 63. Mr. Shahid Jameel Khan, ASC further submitted that C.A. No.113/2009 was required to be delinked as a different question of law was involved therein. We have examined the case file and have found that the said appeal involves the common question of law relating to prospectivity or retrospectivity of section 122 of the Ordinance. Therefore, the same cannot be delinked and will be governed by this judgment. 64. In the result, the titled appeals and petitions will be governed by the following orders: - (1) Civil Appeals No. 1617, 1622-1624, 2673 & 2675-2678 of 2006, and Civil Appeals No. 497, 498, 911, 916, 1002, 1003, & 2282–2292 of 2008 are dismissed as withdrawn with the observation that the assessment of any income year ending on or before 30th June 2002 shall be governed by the repealed Ordinance as if the Ordinance had not come into force as held in Para 54 above. (2) Civil Appeals No. 1099 to 1101 of 2008 and Civil Appeals No. 44 to 51 of 2009 are partly allowed, the judgments of the High Court are set aside and the matters remanded to the concerned High Court for decision according to law. (3) Civil Appeals No. 826 & 1102 of 2008 are delinked and adjourned to a date in office. CA 778-2005 ETC 79 (4) All the remaining civil appeals and civil petitions are dismissed with no order as to costs. CHIEF JUSTICE JUDGE JUDGE Islamabad Announced on ___________. CHIEF JUSTICE APPROVED FOR REPORTING

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 886 OF 2014 (On appeal against the judgment dated 16.06.2014 passed by Election Tribunal, Lahore in Election Petition No. 262/2013) Muhammad Yaqoob Nadeem Sethi … Appellant VERSUS Muhammad Ilyas Khan etc …Respondents For the Appellant: Mr. Muhammad Shahzad Shoukat, ASC For Respondent (1): Syed Hamid Ali Shah, ASC Date of Hearing: 30.05.2016 JUDGMENT FAISAL ARAB, J.- In the General Elections held on 13.5.2013 on for Provincial Assembly constituency PP-175 Kasur-I, the appellant was declared returned candidate whereas the respondent No. 1 was runner-up. The appellant secured 33758 votes whereas 29149 votes were bagged by respondent No. 1. The respondent No. 1, however filed election petition alleging that the appellant in connivance with the polling staff and the Returning Officer adopted illegal and corrupt practices and indulged in bogus voting. Both the parties adduced evidence in support of their respective pleas. During the pendency of the election petition, the respondent No. 1 applied for inspection of the election record under Section 45 of Representation of the People Act, 1976, which was allowed and thereafter also moved an application under Civil Appeal No. 886/2014 2 Section 46 of the Act which was also allowed vide order dated 17.4.2014. In pursuance of such order, the Election Tribunal appointed a retired District & Sessions Judge as Commission to inspect the election record and submit his report. The Commission duly submitted its report. Relying on the Commission’s report, the Election Tribunal allowed the election petition and declared the election as a whole void and ordered to hold bye-election in the constituency. Aggrieved by such decision, the appellant has filed the present appeal. 2. Learned counsel for the appellant contended that the inspection report submitted by the Commission shows that the appellant secured 32603 votes and respondent No. 1 bagged 28621 votes, which result is more or less the same as was in the first count i.e. 33758 votes as against 29149 votes, yet, the Commission recommended re-election on the grounds, which could not have been made basis for invalidating the election result. He added that in his report, the Commission found that 25 counterfoils did not contain thumb impressions of the voters; 4 counterfoils did not contain CNIC numbers of the voters; 2947 counterfoils did not contain signatures of the Presiding Officer; 1127 counterfoils did not have the stamp of the Presiding Officers and 19771 counterfoils did not contain the signatures and stamps of the Presiding Officers. He submitted that this was ascertained from the counterfoils of 92659 votes that were polled whereas no objection was raised with regard to any ballot paper that was declared valid. He further added that all valid votes duly contained signatures as well as stamps of the Presiding Officers. He submitted that when Civil Appeal No. 886/2014 3 no ballot paper that was counted by the Commission in favour of the appellant was challenged as bogus and all votes were duly accounted in favour of the candidates in whose favour they were polled then merely because 23,845 counterfoils of such votes did not contain the CNIC numbers and thumbs impression of the voters of the constituency could not be made basis to nullify the election result. He submitted that had the 23,845 counterfoils been sent to NADRA for verification of CNIC numbers and thumb impressions of the voters and the outcome of such verification would have shown that a significant number of these counterfoils did not contain thumb impression of the voters of the constituency then it would have been a different case but in the present case no such verification was sought by respondent No. 1 nor any substantial change in the ratio between the result of two vote count was noticeable. He maintained that in the circumstances there was substantive compliance of all the requirement under Representation of the People Act, 1976 and the result of the election ought not to have been nullified. In support of his arguments, he relied upon the cases of Bhai Khan Vs. Shakeel (2009 SCMR 594), Muhammad Khan Vs. Nazir Ahmed (2003 SCMR 1911), Muhammad Asghar Vs. Shah Muhammad Awan (PLD 1986 SC 542), Abdus Sattar Rana Vs. S.M. Zaidi (PLD 1968 SC 331), Abdul Hafeez Khan Vs. Muhammad Tahir Khan Loni (1999 SCMR 284 at 295) and Jamshaid Ahmed Khan Vs. S.D.M/Assistant Commissioner (PLD 1987 SC 213). 3. Learned counsel for the respondent No. 1, on the other hand, argued that election result was nullified by applying the Civil Appeal No. 886/2014 4 provisions of Section 70 of Representation of the People Act, 1976. He submitted that the Commission’s report shows that elections in the Constituency were not held in fair and transparent manner and its proof lies in the analysis of the counterfoils of the ballot papers made by the Commission in his report. He submitted that the Election Tribunal rightly held that election was rigged. 4. Except for the Commission’s report, the learned counsel for respondent No. 1 did not draw our attention to any other piece of evidence from which it could be gathered that the appellant or his agent or any polling staff indulged in bogus voting on the polling day. With regard to Commission’s report, we have noticed that the respondent No. 1 did not even seek verification of any set of ballot papers from NADRA. Each and every ballot paper that was declared valid by the Commission contained the signatures and stamps of the Presiding Officers. The tally of counterfoils of the votes cast in the constituency stood at 92837 and corresponding to this figure, the number of votes polled were 92659. There was difference of merely 178 votes and that too the votes count was less then the counterfoils. So the question of stuffing of the ballot boxes with bogus votes also does not arise. As the appellant’s winning margin was 3982 votes, the difference of 178 missing votes would have made no impact on the final result. Hence nothing substantial came on record of the Election Tribunal which would have justified nullifying the election result. The impugned judgment was, therefore, liable to be set aside. Civil Appeal No. 886/2014 5 5. Vide short order dated 30.05.2016 we had allowed this appeal and these are the reasons of the same. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 30th of May, 2016 Approved For Reporting Khurram