Research Centre

Supreme Court of Pakistan

Quarterly
Case Law Update
Online Edition
Volume 2, Issue-II (April-June, 2021)

Published by:
Supreme Court Research Centre
Available online at:
https://www.supremecourt.gov.pk/download
s/?wpdmc=research-center-publications

www.supremecourt.gov.pk 1/36
 Research Centre
Supreme Court of Pakistan

Table of Contents
SUPREME COURT OF PAKISTAN

1. Asad Ali v. Province of Punjab ..................................................................................................................... 5

Fundamental right to form or be a member of a political party guaranteed under Article 17 of the Constitution
inherently implies in it the right to contest elections and, on success in such elections, to hold elected office for a
duration provided by law

2. Wali Jan v. Govt. of KPK.............................................................................................................................. 5

New plea cannot be allowed to be raised in the apex Court as a matter of course or right on the pretext of doing
complete justice

3. Secretary, A.L.&C. Department v. Anees Ahmad....................................................................................... 5

Decision of Departmental Promotion Committee (DPC), omitting to consider the case of a government servant
for promotion, is justiciable
Once the case of a government servant has matured for promotion while in service and is placed before the DPC
before retirement, it is incumbent upon the DPC to consider his case for promotion

4. Muhammad Jamil v. Muhammad Arif........................................................................................................ 6

Mere plea of the plaintiff (vendee) that he is willing and ready to pay the consideration, without any material to
substantiate it, cannot be accepted
Archaic rule that generally time is not essence in contracts involving sale/purchase of immoveable property, cannot
be used as a ground to grant specific performance, without considering terms of the agreement and circumstances
of the case
Vendee should offer to deposit the balance consideration in court to show his readiness and willingness

5. Punjab Public Service Commission v. Husnain Abbas............................................................................... 7

One’s legitimate expectancy cannot override or overshadow the other’s constitutional or statutory right

6. Govt. of KPK v. Muhammad Younas........................................................................................................... 8

Decisions of cases on subjective feelings of sympathy, and by not adhering to the law, make the dispensation of
justice variable and uncertain, which is an anathema to a system based upon laws

7. Lung Fung Chinese Restaurant v. Punjab Food Authority ....................................................................... 9

A provision of the law that confers arbitrary and unguided power on an executive authority is ultra vires Article
25 of the Constitution: Section 13(1)(c) of the Punjab Food Authority Act 2011 to the extent of power to seal the
premises was held to be so

8. Shahzada Qasier v. The State ....................................................................................................................... 9

“Malafide” being a state of mind cannot always be proved through direct evidence, it is often to be inferred from
the facts and circumstances of the case
Having the power to arrest is one thing, and the justification for the exercise of that power is quite another; a
police officer that makes arrest of a person must be able to justify the exercise of that power in making the arrest
apart from his having the power to do so10

9. Naveed Asghar v. The State ........................................................................................................................ 10

Gruesome nature of the offence is relevant at the stage of awarding suitable punishment after conviction, but not
at the stage of appraising evidence to determine guilt of the accused person
An accused person cannot be deprived of his constitutional right to be dealt with in accordance with law, merely
because he is alleged to have committed a gruesome and heinous offence

10. D. G. Khan Cement Company Ltd. v. Government of Punjab ................................................................ 11

Zoning of Province into positive and negative areas is a means towards achieving organized & planned industrial
growth without impinging on the social, environmental, ecological, civic and economic interests of the locals
Legislative policy of organized and planned growth synchronizes well with our constitutional values set out in the
preamble of the Constitution, as well as the Fundamental Rights and the Principles of Policy, in particular, the
right to life and dignity, promotion of social and economic wellbeing of the people and safeguarding the legitimate
interest of backward and depressed classes

www.supremecourt.gov.pk 2/36
 Research Centre
Supreme Court of Pakistan

Courts while reviewing scientific and technical determinations generally exhibit deference to institutional
competence because of the specialized nature of the subject matter

11. Shahbaz Garments (Pvt) Ltd. v. Government of Sindh ............................................................................ 13

A law enacted by one legislature (Federal or Provincial) in relation to any matter that is concurrent cannot be
altered, repealed or amended by the other legislature
Parliament was the appropriate legislature for an existing law that, in its pith and substance, was relatable to an
entry on the Concurrent Legislative List, to alter, repeal or amend it under Article 268 of the Constitution

12. State Life Insurance Corporation of Pakistan v. Atta ur Rehman......................................................... 14

Rule of uberrimae fidei, i.e., of the utmost good faith, applicable in contracts of insurance and the conditions
necessary to be established for avoiding the contract on the basis of breach of that rule explained
Section 80 of the Insurance Ordinance 2000 makes special provisions for a contract of life insurance and creates
a legal bar to be overcome by the insurer to avoid the contract under the rule of uberrimae fidei

13. Akhtar Sultana v. Muzaffar Khan ............................................................................................................ 15

Relevancy, admissibility, proof, and evidentiary value of a piece of evidence elaborated
Difference between the objection as to “mode of proof” and the objection of “absence of proof” explained

14. Tariq Ahmed v. NAB .................................................................................................................................. 16

Mode of allowing the bail petitions in NAB reference, in lieu of deposit of the amounts allegedly embezzled by
the accused persons, disapproved

15. Muhammad Arshad v. Khurshid Begum ................................................................................................. 16

Where fraud and collusion is alleged by a third person against the parties to a family suit in obtaining the decree,
an application under Section 12(2) of the Code of Civil Procedure, 1908 filed by that person in family court is
maintainable

16. Ijaz Bashir Qureshi v. Shams-un-Nisa Qureshi ....................................................................................... 17

Simple mentioning “irrevocable” in the caption of the deed of a power of attorney does not make it an irrevocable
power of attorney
An attorney cannot by himself transfer the property of principal through gift even if the deed of power of
attorney contains such power

17. Shamona Badshah Qaisarani v. Election Tribunal.................................................................................. 18

Every non-disclosure or mis-declaration of assets would not be sufficient enough to permanently disqualify a
member of the Parliament or a candidate and to declare him to be dishonest. Some non-disclosures or mis-
declarations can be termed as bad judgment or negligence but not dishonesty

18. Khalil Ullah Kakar v. Inspector General of Police .................................................................................. 19

High Court cannot exercise its jurisdiction under Article 199 of the Constitution in respect of any matter relating
to the terms and conditions of service of civil servants even if the orders of the departmental authorities are mala
fide, ultra vires or coram non judice
FOREIGN SUPERIOR COURTS
1. Brnovich v Democratic National Committee ............................................................................................ 20
Arizona voting restrictions upheld

2. Royal Mail Group Ltd (Respondent) v Efobi (Appellant) ....................................................................... 21

Racial discrimination --- adverse inference in service matters

3. Sanambar v Secretary of State for the Home Department ...................................................................... 21

Deportation of a "foreign criminal" interferes with that individual’s rights to private and family life under Article
8 of the European Convention on Human Rights

4. Triple Point Technology, Inc v PTT Public Company Ltd....................................................................... 22

The guidelines for the award of liquidated damages in case of termination of contract stated

5. Manchester Building Society v Grant Thornton UK LLP....................................................................... 23

The professional advice and the scope of duty of care of the professional advisor

www.supremecourt.gov.pk 3/36
 Research Centre
Supreme Court of Pakistan

6. General Dynamics United Kingdom Ltd v State of Libya ....................................................................... 23

The enforcement of an arbitral award against a foreign state

7. Her Majesty’s Attorney General v Crosland............................................................................................. 23

The ulterior intention is not necessary to prove criminal contempt of court

8. Test Claimants in the Franked Investment Income Group v Commissioners of Inland Revenue........ 23
That section 32(1)(c) of the Limitation Act 1980 applies only to mistakes of fact and not to mistakes of law

9. Khan v Meadows ......................................................................................................................................... 24

Doctor was held liable only for losses falling within the scope of her duty of care to advise

10. Matthew v Sedman..................................................................................................................................... 25

Midnight deadline case – calculation of limitation period

11. Pasl Wind Solutions Private Limited v. GE Power Conversion India Private Limited ....................... 26
Two indian parties can choose a foreign seat of arbitration & such foreign arbitral award is enforceable in india

12. Commonwealth of Australia v AJL20 ...................................................................................................... 26

Constitutional validity of detention of unlawful non-citizens

13. Libertyworks Inc v Commonwealth of Australia .................................................................................... 27

Registration obligations with respect to communications activities on behalf of a foreign principal are justified

14. John Shi Sheng Zhang v The Commissioner of Police ............................................................................ 28

“Foreign interference” laws are constitutional

15. A (Counsel John Christian Elden) v. B (Counsel Marie Nesvik)............................................................ 29

Basic rule “trial on the place where wrong took place, could not automatically apply to a claim arising from serious
violations of someone's integrity

16. R v Desautel ................................................................................................................................................ 29

Non-Canadians can have constitutionally-protected aboriginal rights under Canada's Constitution

17. Cathedral v Aga.......................................................................................................................................... 30

Courts are unlikely to interfere with voluntary associations

18. Corner Brook (City) v. Bailey ................................................................................................................... 31

“Release contract” be interpreted according to the words used [in a contract] their ordinary and grammatical
meaning, consistent with the surrounding circumstances

19. Reference Re Code of Civil Procedure, s. 35............................................................................................ 32

Monetary ceiling of less than $85,000 was declared too high for the Court of Québec

20. MediaQMI inc. v. Kamel ........................................................................................................................... 33

Public may continue to consult court records but will no longer have access to exhibits that have been removed

21. Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga ................................... 33
Voluntary association and making financial contributions does not in itself form a legally binding relationship

22. J E Mahlangu v Minister of Police............................................................................................................ 34

Compensation for unlawful detention

23. In the proceedings on the constitutional complaints of individuals from Germany and others.......... 35
Federal Climate Change Act is partly incompatible with fundamental rights

24. IX v WABE eV............................................................................................................................................ 36

Headscarves can be banned at work

www.supremecourt.gov.pk 4/36
 Research Centre
Supreme Court of Pakistan

Supreme Court of Pakistan The Court, after making an elaborative

discussion on the provisions of Articles 140A,
1. Asad Ali v. Province of Punjab 7, 17 and 32 of the Constitution and referring
https://www.supremecourt.gov.pk/downloads_jud to the previous relevant cases, answered the
gements/const.p._48_2019.pdf
question in affirmative, declared Section 3(1)
of the Punjab Local Government Act, 2019
Present: Mr. Justice Gulzar Ahmed, CJ,
to be ultra vires the Constitution and restored
Mr. Justice Ijaz Ul Ahsan and Mr. Justice
the Local Governments as were existing in
Sayyed Mazahar Ali Akbar Naqvi
the Province of Punjab prior to promulgation
Fundamental right to form or be a member of the said Section, to complete their term in
of a political party guaranteed under Article accordance with law.
17 of the Constitution inherently implies in
it the right to contest elections and, on 2. Wali Jan v. Govt. of KPK
success in such elections, to hold elected https://www.supremecourt.gov.pk/downloads_jud
gements/c.a._931_2020.pdf
office for a duration provided by law

In the constitution petitions filed under Present: Mr. Justice Gulzar Ahmed, CJ,
Article 184(3) of the Constitution, the Court Mr. Justice Ijaz ul Ahsan and Mr. Justice
considered the question: whether Section 3(1) Sayyed Mazahar Ali Akbar Naqvi
of the of the Punjab Local Government Act, New plea cannot be allowed to be raised in
2019, which has dissolved the local the apex Court as a matter of course or right
governments constituted under the Punjab on the pretext of doing complete justice
Local Government Act, 2013, is ultra vires
the Constitution. The Court was hearing appeal against the
judgment of the Service Tribunal. The
The Court held: “Article 17 enjoins upon the appellant agitated before the Court that the
citizens right to form associations, unions, or fact of his acquittal in the criminal case had
form or be a member of a political party. This not been considered by the Tribunal while
is a fundamental right given to the citizen by giving the impugned judgment.
the Constitution. The right to form or be a
member of a political party, nurtures in itself The Court, after noting that the said fact was
principles of democracy and liberties, which not pleaded in the memo of appeal before the
inheres in itself establishment of a popular Tribunal nor was it mentioned in the
government at the level of the State. Thus, departmental appeal, refused to interfere in
the right to form or be a member of a political the judgment of the Tribunal on that ground.
party inherently implies in it right to form or The Court held that “a party has no right to
be a member of a political party and to raise an absolutely new plea before this Court
contest elections and in succeeding such and seek a decision on it, nor could such plea
elections, to hold elected office for a duration be allowed to be raised as a matter of course
provided by law. Therefore, the local or right on the pretext of doing complete
government system established under Article justice.” The Court further held that “this
140A of the Constitution through Provincial Court in its appellate jurisdiction will not
Legislation, when translates into an elected generally determine a question of fact that
local government for a specified period of has not been pleaded or raised by the party in
time by law, cannot be dissolved before the the lower forum.” (Para 5)
period of its expiry, as such action will
3. Secretary, A.L.&C. Department v.
directly come in conflict with Article 17 of
Anees Ahmad
the Constitution read with Articles 140A, 7
https://www.supremecourt.gov.pk/downloads_jud
and 32 of the Constitution.” (Para 16) gements/c.a._40_2021.pdf

www.supremecourt.gov.pk 5/36
 Research Centre
Supreme Court of Pakistan

Present: Mr. Justice Gulzar Ahmed, CJ, government servant surely has a right in law
Mr. Justice Mazhar Alam Khan Miankhel to be considered for grant of
and Mr. Justice Sayyed Mazahar Ali Akbar promotion…Once the case of respondent has
Naqvi matured for promotion while in service and
placed before the DPC before retirement, it
The Departmental Promotion Committee was incumbent upon the DPC to fairly, justly
(DPC) had not considered the case of the and honestly consider his case and then pass
respondent for promotion, stating that he had an order of granting promotion and in case it
retired by that time. The respondent filed does not grant promotion, to give reasons for
appeal in the Service Tribunal, and the the same.” (Para 9)
Tribunal by the impugned judgment directed
the department to consider the case of the 4. Muhammad Jamil v. Muhammad
respondent for pro forma promotion. The Arif
Court was hearing the department’s appeal https://www.supremecourt.gov.pk/downloads_jud
against that judgment of the Tribunal. gements/c.p._852_2020.pdf
Present: Mr. Justice Mushir Alam and Mr.
Decision of Departmental Promotion Justice Qazi Muhammad Amin Ahmad
Committee (DPC), omitting to consider the
case of a government servant for promotion, The appeal before the Court had originated
is justiciable from a suit, filed by a vendee, for specific
performance of an agreement to sell relating
Counsel for the department argued before the to certain immoveable property. The Court
Court that only the DPC was competent to examined the questions whether the time
consider the grant of promotion and in case, fixed in the agreement for payment of the
it did not consider or grant promotion, no remaining sale consideration and execution
other forum was competent to decide the of the sale deed was essence of the contract,
question of granting of promotion or pro and whether the plaintiff (vendee) was
forma promotion. The Court disagreed with willing and ready to perform his part of the
the said argument, and held that “no doubt it contract, in the facts and circumstances of the
is a function of the DPC to consider the case case.
of promotion of the government servant but
where the DPC, in violation of law and rules, Mere plea of the plaintiff (vendee) that he is
omits to consider or omits to grant promotion, willing and ready to pay the consideration,
the remedies before statutory without any material to substantiate it,
Courts/Tribunals are provided by law, and cannot be accepted
such remedies could be availed by the
aggrieved government servant and it is for The Court observed: “Agreement to sell…is
the Courts/Tribunals to consider and decide comprised of reciprocal promises and
whether the DPC has validly omitted to corresponding obligations to be performed in
consider or omitted to grant promotion in the manner provided for. A vendee cannot
accordance with law and rules.” (Para 8) seek enforcement of reciprocal obligation on
the part of vender to execute sale deed, unless
Once the case of a government servant has he demonstrate[s] that he not only has the
matured for promotion while in service and financial capacity but he was and is also
is placed before the DPC before retirement, always willing and ready to meet the
it is incumbent upon the DPC to consider same…Mere plea that he is ready to pay the
his case for promotion consideration without any material to
substantiate this plea, cannot be
The Court held that “though the law does not accepted…The amount which he has to pay
confer any vested right to a government the defendant must of necessity to be proved
servant to grant of promotion but the to be available. Right from the date of the

www.supremecourt.gov.pk 6/36
 Research Centre
Supreme Court of Pakistan

execution of the contract till the date of the Present: Mr. Justice Gulzar Ahmed, CJ, and
decree, he must prove that he is ready and Mr. Justice Ijaz Ul Ahsan
willing to perform his part of the contract.
One’s legitimate expectancy cannot
The court may infer from the facts and
override or overshadow the other’s
circumstances whether the plaintiff was
constitutional or statutory right
ready and was always ready to perform his
contract.” (Paras 17 and 18) The Punjab Public Service Commission
Archaic rule that generally time is not (PPSC) advertised certain posts of a
essence in contracts involving Government department and invited
sale/purchase of immoveable property, applications for participation in the
cannot be used as a ground to grant specific examination to be held for appointment
performance, without considering terms of against the said posts. The fact of reservation
the agreement and circumstances of the of 20% zonal quota in the advertised posts,
case which was necessary under the appointment
rules and policy, could not be mentioned in
As to the second question, the Court held: the advertisement. In the merit list issued by
“The archaic rule that generally, time is not the PPSC, the respondent Husnain Abbas
essence in contracts involving sale/purchase was notified to have qualified the
of immoveable property, could not be used as examination and interview, and his merit in
a ground to grant or otherwise specific the list was within the range of number of
performance, unless the circumstances that advertised posts, but he was not issued the
prove otherwise are highlighted and appoint letter. He filed a writ petition for
proved… [S]pecific time…set for redress of his grievance; the High Court
performance of the contract, with allowed his petition and ordered for making
consequences for both the parties committing his appointment. The PPSC, and one Samra
breach of the timeline, made time essence of Gull who had been appointed against one of
the contract.” (Paras 28 and 32) the advertised posts on the basis of 20%
zonal quota, appealed in the apex Court. The
Vendee should offer to deposit the balance
PPSC asserted that after noticing the error of
consideration in court to show his readiness
not adhering to the appointment Rules and
and willingness
policy of 20% zonal quota, the PPSC issued
The Court further held: “Specific a revised merit list, wherein the name of
plea…raised in the written statement that for Hasnain Abbas was not within range of the
failure to make the payment of the balance number of posts advertised; he was therefore
sale consideration within the period not issued the appointment letter.
stipulated in the agreement, the agreement
It was argued before the apex Court on behalf
stood rescinded and earnest amount
of Hasnain Abbas that in view of non-
forfeited…was sufficient notice to ring the
mentioning of the fact of reservation of 20%
bell of rescission, to put the Plaintiff on guard
zonal quota in the advertisement and the
to promptly offer to deposit the balance
inclusion of his name in the first merit list,
consideration in the court to show his
Hasnain Abbas had got a legitimate
bonafides, readiness and willingness to
expectancy to be appointed against the
perform his part of the reciprocal obligation.”
advertised posts on open merit basis. The
(Para 26)
Court did not accept the plea of Hasnain Raza,
5. Punjab Public Service Commission accepted the appeals of the PPSC and Samra
v. Husnain Abbas Gull, and set aside the judgment of the High
https://www.supremecourt.gov.pk/downloads_jud Court.
gements/c.a._359_2020.pdf

www.supremecourt.gov.pk 7/36
 Research Centre
Supreme Court of Pakistan

The Court held that “no vested right had or allowed the appeal and set aside the
could have accrued in favour of Respondent judgment of the High Court.
No.1 (Husnain Abbas) by virtue of an The Court held: “A plain reading of
erroneous merit list which had clearly been the…provisions [of the Policy governing
prepared on the basis of an erroneous appointment against project posts] makes it
advertisement…published in violation of the abundantly clear that contractual or adhoc
Government policy, rules and regulations put employees appointed before 24.10.2009 i.e.
in place by virtue of notification dated the date of the commencement of the Act,
25.05.2108. Only by reason of an error on the were eligible for regularization. However,
part of PPSC, it would neither be fair nor just since the post against which the Respondent
to deprive a candidate from one of the Zones was appointed, was converted to the regular
who had admittedly topped the merit list for budget in 2014, it is clear that the Respondent
zonal quota to be deprived of an appointment. falls outside the purview of the 2009 Act.
Even on balance of equities, the right of the Before the conversion of the post to the
proforma Respondent (Samra Gull) stands on regular budget, the Respondent was simply a
a better footing based upon Constitutional as project employee. Under section 2(b) of the
well as legal protections as incorporated in 2009 Act, project employees were
the notifications in question. Compared to categorically excluded from the benefit of
her case, the case of [Respondent No.1] regularization under section 3 of the 2009
Hussain Abbas at best stands on the Act. Through the Impugned Judgment, the
foundation of a legitimate expectancy which learned High Court has, in essence, extended
cannot be allowed to override or overshadow the cut-off date provided in the 2009 Act by
another right which is based upon almost four years which is not permissible
constitutional protections and statutory under the law. Courts of law are required to
provisions put in place on the basis of an interpret the law and can neither rewrite the
unmistakable constitutional mandate [under law nor read into the law something which is
third proviso to Article 27(1) of the not provided therein. No matter how
Constitution]. (Para 16) sympathetic a Court may feel towards a
litigant or a set of litigants, Courts are duty-
6. Govt. of KPK v. Muhammad Younas bound and required by the Constitution of the
https://www.supremecourt.gov.pk/downloads_jud Islamic Republic of Pakistan to adhere to the
gements/c.a._258_2020.pdf
letter of law and not decide cases based on
Present: Mr. Justice Gulzar Ahmed, CJ, and subjective feelings of sympathy which can
Mr. Justice Ijaz Ul Ahsan and Mr. Justice vary from person to person. Law and its
Munib Akhtar interpretation must be clear and consistent
Decisions of cases on subjective feelings of which is precisely why the adherence to the
sympathy, and by not adhering to the law, law is insisted upon as it lends stability to the
make the dispensation of justice variable system and increases the confidence of
and uncertain, which is an anathema to a citizens in the law and the legal system.
system based upon laws. Involvement of subjectivity has the potential
to make dispensation of justice variable and
On a writ petition filed by the respondent uncertain which is an anathema to a system
Muhammad Younas, a contract employee in based upon laws. Therefore, the Peshawar
a developmental project, the High Court had high Court in our opinion fell in grave error
directed the appellant-Government to by concluding that the Respondents were
regularise his service under the Khyber entitled to regularization under the
Pakhtunkhwa Employees (Regularization of provisions of the 2009 Act despite the fact
Services) Act, 2009. The Government that the said Act was clearly inapplicable to
appealed in the Supreme Court. The Court them.” (Para 6)

www.supremecourt.gov.pk 8/36
 Research Centre
Supreme Court of Pakistan

7. Lung Fung Chinese Restaurant v. rights under Articles 18, 23 and 25 of the
Punjab Food Authority Constitution. The power of sealing of
https://www.supremecourt.gov.pk/downloads_jud premises by the FSO, in its present form, is
gements/c.p._1331_l_2017.pdf therefore ex facie discriminatory. We,
Present: Mr. Justice Manzoor Ahmad Malik, therefore, declare that the power of the FSO
Mr. Justice Syed Mansoor Ali Shah and Mr. to “seal any premises” in section 13(1)(c) to
Justice Amin-ud-Din Khan be unconstitutional and illegal.” (Para 5)
A provision of the law that confers arbitrary
and unguided power on an executive 8. Shahzada Qasier v. The State
authority is ultra vires Article 25 of the https://www.supremecourt.gov.pk/downloads_jud
Constitution: Section 13(1)(c) of the Punjab gements/crl.p._801_l_2020.pdf
Food Authority Act 2011 to the extent of Present: Mr. Justice Manzoor Ahmad Malik,
power to seal the premises was held to be so Mr. Justice Syed Mansoor Ali Shah and Mr.
Justice Amin-ud-Din Khan
A Food Safety Officer (“FSO”) of the Punjab
Food Authority sealed the appellant’s The petitioner, having failed in obtaining the
restaurant, by a invoking his powers under relief of pre-arrest bail in lower courts,
Section 13(1)(c) of the Punjab Food agitated his grievance against his arrest
Authority Act, 2011 ("Act"). The appellant anticipated to be made by the police in a case
challenged that action of the FSO and the wherein he was alleged to have conspired
vires of the Section 13(1)(c) of the Act, in the with the other accused persons in the
High Court through filing a constitution commission of offence of murder. The
petition under Article 199 of the Constitution, petitioner was not alleged to have
but without success. The appellant impugned participated in the occurrence, as he was
the judgment of the High Court in the admittedly abroad at that time. The Court
Supreme Court. The apex Court accepted the allowed his petition and admitted him to pre-
pela of the appellant, set aside the judgment arrest bail.
of the High Court and declared the provisions
“Malafide” being a state of mind cannot
of Section 13(1)(c) of the Act, to the extent
always be proved through direct evidence, it
of power of the FSO to seal the premises,
is often to be inferred from the facts and
ultra vires the Constitution.
circumstances of the case
The Court held: “No ground or any other
The High Court had declined the relief of
legislative guideline has been given in
pre-arrest bail to the petitioner making the
section 13(1)(c) that permits or empowers the
observation that “pre-arrest bail is an extra-
FSO to exercise his discretion and invoke the
ordinary relief and can only be extended to
power of sealing. Section 13(1)(c) simply
an innocent person who is implicated in the
states that FSO can seal any premises where
case on the basis of malafide, but the
he believes any food is prepared, preserved,
petitioner has failed to point out to any
packaged, stored, conveyed, distributed or
malafide.” The Court commented upon the
sold…Nowhere does section 13(1)(c)
said observations of the High Court, thus:
provide when the sealing powers can be
“The learned High Court did not appreciate
invoked…In the absence of any legislative
that the ‘malafide’ being a state of mind
policy or guideline clearly spelling out when
cannot always be proved through direct
the sealing can take place and there being no
evidence, and it is often to be inferred from
remedial process provided against sealing,
the facts and circumstances of the
the power of sealing in the hands of the FSO
case….Despite non-availability of the
can easily be applied arbitrarily which cannot
incriminating material against the accused,
be permitted under our constitutional scheme,
his implication by the complainant and the
as any such act would offend fundamental

www.supremecourt.gov.pk 9/36
 Research Centre
Supreme Court of Pakistan

insistence of the Police to arrest him are the straightaway only because he has been
circumstances which by themselves indicate nominated as an accused person in an FIR or
the malafide on the part of the complainant in any other version of the incident brought
and the Police, and the accused need not lead to the notice of the investigating officer by
any other evidence to prove malafide on their any person until the investigating officer
part.” (Paras 4 and 6) feels satisfied that sufficient justification
exists for his arrest. The investigating
Having the power to arrest is one thing, and
officers should not mechanically make the
the justification for the exercise of that
arrest of a person accused of having
power is quite another; a police officer that
committed a cognizable offence, rather they
makes arrest of a person must be able to
must exercise their discretion in making the
justify the exercise of that power in making
arrest of such person judiciously by applying
the arrest apart from his having the power
their mind to the particular facts and
to do so
circumstances of the case and consciously
The Court, with regard to the police power to considering the question: what purpose will
arrest a person accused of having committed be served and what object will be achieved
a cognizable offence, observed: “No doubt, a by arrest of the accused person?” (Para 5)
police officer has, under Section 54 of the
9. Naveed Asghar v. The State
CrPC, the power to arrest a person who has https://www.supremecourt.gov.pk/downloads_jud
been involved in any cognizable offence or gements/j.p._147_2016.pdf
against whom a complaint has been made or Present: Mr. Justice Manzoor Ahmad Malik,
credible information has been received or a Mr. Justice Mazhar Alam Khan Miankhel
reasonable suspicion exists of his having and Mr. Justice Syed Mansoor Ali Shah
been so concerned. Having the power to
arrest is one thing but the justification for the The Court was hearing appeal of three
exercise of that power is quite another. A persons who were convicted by the lower
police officer that makes arrest of a person courts for the charge of committing murder
must be able to justify the exercise of that of five persons of a family by slitting open
power in making the arrest apart from his their throats through a sharp edged weapon.
having the power to do so. He cannot make The incident was unseen, having been
arrest of a person, only because he has the occurred in the house of the deceased persons
power to do so. He must also show sufficient at the night hours; the Court after reappraisal
grounds for making the arrest. Article 4(1)(j) of the prosecution evidence came to the
of the Police Order, 2002 states this legal conclusion that the prosecution had failed to
position when it prescribes that it is the duty prove the charge against the appellants
of every police officer to "apprehend all though legally admissible and reliable
persons whom he is legally authorised to circumstantial evidence, beyond reasonable
apprehend and for whose apprehension doubt in accordance with the law. The Court,
sufficient grounds exist". And Rule 26.1 of thus, allowed the appeal and acquitted the
the Police Rules, 1934 explains this by appellants of the charge.
providing that the authority given under
Section 54 of the CrPC to the police to arrest Gruesome nature of the offence is relevant
without a warrant is permissive and not at the stage of awarding suitable
obligatory. As per the said Rule whenever punishment after conviction, but not at the
escape from justice or inconvenient delay in stage of appraising evidence to determine
completion of the investigation or guilt of the accused person
commencement of the trial is likely to result
The Court observed: “The ruthless and
from the police failing to arrest, they are
ghastly murder of five persons is a crime of
bound to do so, but in no other cases.
heinous nature; but the frightful nature of
Ordinarily no person is to be arrested

www.supremecourt.gov.pk 10/36
 Research Centre
Supreme Court of Pakistan

crime should not blur the eyes of justice, beyond reasonable doubt”, a standard of
allowing emotions triggered by the proof required in criminal cases in almost all
horrifying nature of the offence to prejudge common law jurisdictions. An accused
the accused. Cases are to be decided on the person cannot be deprived of his
basis of evidence and evidence alone and not constitutional right to be dealt with in
on the basis of sentiments and emotions. accordance with law, merely because he is
Gruesome, heinous or brutal nature of the alleged to have committed a gruesome and
offence may be relevant at the stage of heinous offence. The zeal to punish an
awarding suitable punishment after offender even in derogation or violation of
conviction; but it is totally irrelevant at the the law would blur the distinction between
stage of appraising or reappraising the arbitrary decisions and lawful judgments. No
evidence available on record to determine doubt, duty of the courts is to administer
guilt of the accused person, as possibility of justice; but this duty is to be performed in
an innocent person having been wrongly accordance with the law and not otherwise.
involved in cases of such nature cannot be The mandatory requirements of law cannot
ruled out. An accused person is presumed to be ignored by labelling them as technicalities
be innocent till the time he is proven guilty in pursuit of the subjective administration of
beyond reasonable doubt, and this justice. One guilty person should not be taken
presumption of his innocence continues until to task at the sacrifice of the very basis of a
the prosecution succeeds in proving the democratic and civilised society, i.e., the rule
charge against him beyond reasonable doubt of law. Tolerating acquittal of some guilty
on the basis of legally admissible, confidence whose guilt is not proved under the law is the
inspiring, trustworthy and reliable price which the society is to pay for the
evidence…It is, therefore, duty of the court protection of their invaluable constitutional
to assess the probative value (weight) of right to be treated in accordance with the law.
every piece of evidence available on record Otherwise, every person will have to bear
in accordance with the settled principles of peril of being dealt with under the personal
appreciation of evidence, in a dispassionate, whims of the persons sitting in executive or
systematic and structured manner without judicial offices, which they in their own
being influenced by the nature of the wisdom and subjective assessment consider
allegations. Any tendency to strain or stretch good for the society.” (Para 35)
or haphazardly appreciate evidence to reach
a desired or popular decision in a case must 10. D. G. Khan Cement Company Ltd. v.
be scrupulously avoided or else highly Government of Punjab
deleterious results seriously affecting proper https://www.supremecourt.gov.pk/downloads_jud
gements/c.p._1290_l_2019.pdf
administration of criminal justice will follow.”
(Para 10) Present: Mr. Justice Manzoor Ahmad Malik
and Mr. Justice Syed Mansoor Ali Shah
An accused person cannot be deprived of
his constitutional right to be dealt with in The case before the Court had stemmed from
accordance with law, merely because he is a Notification issued by the Industries,
alleged to have committed a gruesome and Commerce and Investment Department,
heinous offence Government of the Punjab (“Government”),
under Sections 3 and 11 of the Punjab
The Court emphasised the importance of the Industries (Control on Establishment and
rule of law and the constitutional right of Enlargement) Ordinance, 1963
every person to be treated in accordance with (“Ordinance”), introducing amendments in
law thus: “[I]n a criminal trial an accused an earlier Notification to the effect that
person cannot be convicted on the basis of establishment of new Cement Plants, and
mere “suspicion” or “probability” unless and enlargement and expansion of existing
until the charge against him is “proved

www.supremecourt.gov.pk 11/36
 Research Centre
Supreme Court of Pakistan

Cement Plants shall not be allowed in the an area to be either positive or negative area
“Negative Area” falling within the Districts or zone as the case maybe…Zoning of the
Chakwal and Khushab of the Punjab Province into positive and negative areas is a
province. means towards achieving organized and
planned industrial growth without impinging
The Court considered, inter alia, the on the social, environmental, ecological,
questions: (i) Does the Government’s civic and economic interests of the locals.”
decision of issuing the Notification lack (Para 4)
statutory authority, and (ii) does the factual
grounding for issuing the Notification Legislative policy of organized and planned
compromise its legal validity? The Court growth synchronizes well with our
answered both the questions in negative and, constitutional values set out in the preamble
in the course of examining the said questions, of the Constitution, as well as the
discussed the Precautionary Principle in Fundamental Rights and the Principles of
Dubio Pro Natura, and the concepts of Policy, in particular, the right to life and
climate change, climate justice, water justice, dignity, promotion of social and economic
inter-generational justice and climate wellbeing of the people and safeguarding
democracy, in addition to the scope of the the legitimate interest of backward and
authority of the Government to classify depressed classes
“Negative Area” under the Ordinance in the
The Court further observed: “Organized and
context of fundamental rights guaranteed by
planned growth in the world today would
the Constitution.
undoubtedly mean “sustainable development”
Zoning of the Province into positive and and the terms prejudicial to national interest,
negative areas is a means towards achieving injurious to health and source of nuisance
organized and planned industrial growth would naturally encompass the pressing
without impinging on the social, issues of the time i.e., climate change;
environmental, ecological, civic and environmental degradation; food and health
economic interests of the locals safety; air pollution; water pollution; noise
pollution; soil erosion; natural disasters; and
The Court observed: “Organized and planned desertification and flooding having an
industrial growth is unquestionably in the appreciable impact on public health, food
public interest and is effectively regulated safety, natural resource conservation,
through section 3 of the Ordinance…The environmental protection, social equity,
discretion of the Government to permit the social choice, etc. The authority to regulate
setting up or enlargement of an industrial land use, introduce zones or negative or
undertaking under section 3 is structured positive areas, has been recognized as the
according to the conditions spelled out in police power of the state, asserted for public
section 3(b) of the Ordinance... [S]ection 3(b) welfare. The legislative policy of organized
refers to the area where the Government has and planned growth, under the Ordinance,
already satisfied itself on the basis of the also synchronizes well with our
information available to it and after making constitutional values, set out in the preamble
such inquiry as to whether the industrial of the Constitution, as well as the
undertaking to be established or enlarged is Fundamental Rights and the Principles of
prejudicial to national interest, or injurious to Policy, in particular, the right to life and
health of the residents of the local area in dignity, promotion of social and economic
which the industrial undertaking is proposed wellbeing of the people and safeguarding the
to be set up or enlarged, or is a source of legitimate interest of backward and
nuisance for the residents of the local area in depressed classes.” (Para 5)
which the industrial undertaking is proposed
to be set up or enlarged and may declare such

www.supremecourt.gov.pk 12/36
 Research Centre
Supreme Court of Pakistan

Courts while reviewing scientific and Court enunciated the following principles of
technical determinations generally exhibit constitutional law:
deference to institutional competence
A law enacted by one legislature (Federal or
because of the specialized nature of the
Provincial) in relation to any matter that is
subject matter
concurrent cannot be altered, repealed or
The Court held: “The courts while reviewing amended by the other legislature
scientific and technical determinations
The Court observed: “The first point to note
generally exhibit deference to institutional
in relation to the Concurrent List (or any
competence because of the specialized nature
matters as are otherwise concurrent), and it is
of the subject matter. There is a risk that the
of fundamental constitutional importance, is
courts will unravel layers of careful scientific
that it is only the legislative field that is
work as a result of their combined ignorance
concurrent and not the laws made by the
and judicial second-guessing while
respective legislatures. Each law is distinct
reviewing science-based regulatory
and peculiar to the legislature that makes it
decisions. However, scientific complexity
and it cannot be “acted upon”, i.e., amended,
does not provide excuse to evade judicial
substituted, altered or repealed by the other
scrutiny as it needs to be ensured that
legislature.” (Para 6)
Government does not transgress its mandate
or does not mangle scientific results to Parliament was the appropriate legislature
produce certain outcomes. Judicial oversight for an existing law that, in its pith and
of specialized administrative decision- substance, was relatable to an entry on the
making is necessary to obviate the possibility Concurrent Legislative List, to alter, repeal
of capture and incompetence. Accordingly, or amend it under Article 268 of the
we keep ourselves restricted to the rationality Constitution
of the Government’s decision.” (Para 14)
The Court held: “Article 268 provided that
the appropriate legislature for any particular
11. Shahbaz Garments (Pvt) Ltd. v. existing law could alter, repeal or amend it.
Government of Sindh What then was the appropriate legislature for
https://www.supremecourt.gov.pk/downloads_jud
gements/c.a._65_k_2019.pdf an existing law that, in its pith and substance,
Present: Mr. Justice Mushir Alam, Mr. was relatable to an entry on the Concurrent
Justice Maqbool Baqar and Mr. Justice List, i.e., could alter, repeal or amend it? The
Munib Akhtar answer was provided in Article 243 [sic–143]
as it stood on the commencing day of the
The Court was hearing the appeals that had 1973 Constitution… As Article 243 [sic–143]
arisen under the Sindh Employees’ Social made clear, a provincial law made under the
Security Act, 2016. The 2016 Act had 1973 Constitution in relation to any matter
replaced the Provincial Employees’ Social relatable to any entry of the Concurrent List
Security Ordinance, 1965 as applicable in the was void to the extent of its repugnancy with
Province of Sindh. The Court, in the case, any federal law so made or any existing law
considered certain constitutional dimensions, that, in its pith and substance, was so
starting from the promulgation of the 1965 relatable. In other words, a Provincial
Ordinance as provincial legislation under the Assembly could not alter, repeal or amend an
1962 Constitution to its continuance as existing law that in its pith and substance was
existing law under Article 268 of the 1973 relatable to an entry on the Concurrent List.
Constitution first as a federal law and then, It followed that only Parliament could do so,
after the 18th Amendment, as provincial i.e., it was the appropriate legislature in
legislation and, ultimately, its replacement in relation to such existing laws. In other words,
Sindh by the 2016 Act. In that discourse, the such laws stood allocated to the Federation

www.supremecourt.gov.pk 13/36
 Research Centre
Supreme Court of Pakistan

and this was so regardless of whether the The Court set out certain extracts from a
existing law would have been regarded as a well-known treatise on the subject of
“federal” or “central” law or a “provincial” Insurance law, namely, MacGillivray on
law under whatever constitutional Insurance Law (14th ed., 2018), and held that
dispensation it had been first enacted.” (Para “a breach of the duty will allow the insurer to
6) avoid the contract only if (a) the fact not
disclosed was material to the insurer’s
12. State Life Insurance Corporation of
appraisal of the risk; (b) was known or
Pakistan v. Atta ur Rehman
https://www.supremecourt.gov.pk/downloads_jud
deemed known to the insured; (c) but was not
gements/c.a._350_2020.pdf known or deemed known to the insurer; (d)
and it is for the insurer to show that the
Present: Mr. Justice Umar Ata Bandial, Mr. nondisclosure induced it to make the contract
Justice Sajjad Ali Shah and Mr. Justice on the relevant terms.” (Para 4)
Munib Akhtar Section 80 of the Insurance Ordinance
Rule of uberrimae fidei, i.e., of the utmost 2000 makes special provisions for a contract
good faith, applicable in contracts of of life insurance and creates a legal bar to
insurance and the conditions necessary to be overcome by the insurer to avoid the
be established for avoiding the contract on contract under the rule of uberrimae fidei
the basis of breach of that rule explained
The Court noted that “Section 80…makes
The Insurance Tribunal had decreed the certain special provisions for a policy of life
insurance claim of the respondent lodged by insurance,” and held that, under Section 80,
him regarding the life insurance policy of his “[a]fter two years, a life insurance policy
predecessor with the appellant, an insurance cannot be avoided on the ground of any
company, and the High Court had dismissed falsity or inaccuracy in, or of, any statement
the appeal of the appellant by means of the made of the sort indicated in the provisions,
judgment impugned before the Supreme unless the insurer is able to show that (a) the
Court. Before the apex Court, the primary statement was on a material matter or
plea taken by the appellant, while referring to suppressed facts that it was material to
Section 75 of the Insurance Ordinance 2000, disclose; (b) it was made fraudulently by the
was that there had been a breach of the duty insured; and (c) the insured knew at the time
of utmost good faith by the insured. It was of making the statement that it was false or
submitted that the insured had made a suppressed facts that it was material to
material concealment by not disclosing his disclose. The conditions are cumulative, i.e.,
coronary disease, which vitiated the policy the failure by the insurer to establish any one
and allowed the appellant to avoid the same. of them is fatal for the defence (and the onus
In the said background, the Court considered lies on the latter).” (Para 8)
some aspects of the rule of uberrimae fidei,
i.e., of the utmost good faith. The Court The Court held that “Section 80 creates a
observed: “Contracts of insurance belong to legal bar which has to be overcome by the
that limited category which are regarded as insurer, if it can do so in terms thereof. The
being uberrimae fidei, i.e., of the utmost bar itself is automatic and, given that it is
good faith. This rule was developed over triggered merely by passage of the stipulated
centuries by the common law in its many period, hardly requires any evidence to be led
facets and aspects and was regarded as by the claimants. It is for the insurer to take
fundamental to insurance law. Section 75 the plea that it is not hit by the bar, and then
merely codified the central aspect of the rule.” establish its case by leading appropriate
(Para 4) evidence that the three conditions stipulated
therein exist.” (Para 8)

www.supremecourt.gov.pk 14/36
 Research Centre
Supreme Court of Pakistan

The Court while dismissing the appeal “relevant” if it is logically probative or dis-
concluded: “In the present case, the appellant probative of the fact-in-issue, which requires
did not take the plea that the bar contained in proof. On the other hand, a fact is
s. 80 did not apply in the facts and “admissible” if it is relevant and not excluded
circumstances of the case. Even otherwise, by any exclusionary provision, express or
there is nothing on the record to show that the implied… Mode of proof is the procedure by
non-disclosure by the insured…was which the “relevant” and “admissible” facts
fraudulent. On any view of the matter the have to be proved….[A] “relevant” and
statement made by him [the insured] could “admissible” fact is admitted as a piece of
not be taken by the appellant to defeat the evidence, only when the same has been
policy and avoid the contract.” (Para 9) proved by the party asserting the
same…Once a fact crosses the threshold of
13. Akhtar Sultana v. Muzaffar Khan “relevancy”, “admissibility” and “proof”, as
https://www.supremecourt.gov.pk/downloads_jud mandated under the provisions of the Qanun-
gements/c.p._3249_2015.pdf
e-Shahadat, would it be said to be admitted,
Present: Mr. Justice Mushir Alam, Mr. for its evidentiary value to be adjudged by the
Justice Yahya Afridi and Mr. Justice Qazi trial court. The evidentiary value or in other
Muhammad Amin Ahmed words, weight of evidence, is actually a
qualitative assessment made by the trial
The petitioner had sought for leave to appeal
judge of the probative value of the proved
from the apex Court of the country against
fact. Unlike “admissibility”, the evidentiary
the concurrent judgments of three courts
value of a piece of evidence cannot be
below decreeing the civil suit filed by the
determined by fixed rules, since it depends
respondents for declaration of their
mainly on common sense, logic and
ownership rights of the suit property, and
experience and is determined by the trial
disputing the validity of two gift mutations
judge, keeping in view the peculiarities of
and a sale deed in favour of the petitioner and
each case. (Paras 10-14)
of the deed of general power of attorney on
the basis of which the said mutations and sale Difference between the objection as to
deed had purportedly been got sanctioned “mode of proof” and the objection of
and registered. The apex Court, in the interest “absence of proof” explained
of justice, examined the findings of the courts
below in the light of evidence produced by The Court held: “It is also important to note
the parties in the suit, and declined the leave that the objection as to “mode of proof”
sought for holding that the petition was bereft should not be confused with the objection of
of factual and legal merit. Before making the “absence of proof”. Absence of proof goes to
said examination, the Court elaborated the the very root of admissibility of the
concepts of relevancy, admissibility, proof document as a piece of evidence; therefore,
and evidentiary value of a piece of evidence, this objection can be raised at any stage, as
particularly the documentary one. the first proviso to Article 161 of the Qanun-
e-Shahadat commands that “the judgment
Relevancy, admissibility, proof, and must be based upon facts declared by this
evidentiary value of a piece of evidence Order to be relevant, and duly proved”. In
elaborated other words, when the Qanun-e-Shahadat
provides several modes of proving a relevant
The Court observed: “The expression
fact and a party adopts a particular mode that
“relevancy” and “admissibility” have their
is permissible only in certain circumstances,
own distinct legal implications under the
the failure to take objection when that mode
Qanun-e-Shahadat as, more often than not,
is adopted, estops the opposing party to raise,
facts which are relevant may not be
at a subsequent stage, the objection to the
admissible. On the one hand, a fact is
mode of proof adopted. However, when the

www.supremecourt.gov.pk 15/36
 Research Centre
Supreme Court of Pakistan

Qanun-e-Shahadat provides only one mode required by the Court and for that he has to
of proving a relevant fact and that mode is make out a case in accordance with the law
not adopted, or when it provides several applicable thereto; he cannot be allowed or
modes of proving a relevant fact and none of required to barter his freedom.” (Para 2)
them is adopted, such a case falls within the The Court observed that in the case of Talat
purview of “absence of proof”, and not Ishaq v. NAB (PLD 2019 SC 12)
“mode of proof”; therefore, the objection considerations for grant of post arrest bail to
thereto can be taken at any stage, even if it an accused confronting charge under the
has not earlier been taken. (Para 13) NAB Ordinance have clearly been illustrated,
therefore, an accused facing indictment in a
14. Tariq Ahmed v. NAB NAB reference has to qualify the parameters
https://www.supremecourt.gov.pk/downloads_jud set down in the said case for grant of relief of
gements/c.p._1017_2021.pdf
bail to him. The Court converted the petitions
Present: Mr. Justice Mushir Alam, Mr. into appeals and allowed the same, setting
Justice Yahya Afridi and Mr. Justice Qazi aside the orders impugned, and directed the
Muhammad Amin Ahmed High Court for deciding the bail petitions
Mode of allowing the bail petitions in NAB afresh on merit having regard to the law
reference, in lieu of deposit of the amounts declared in Talat Ishaq case.
allegedly embezzled by the accused persons,
disapproved 15. Muhammad Arshad v. Khurshid
Begum
In the petitions for leave to appeal, the Court https://www.supremecourt.gov.pk/downloads_jud
gements/c.p._1530_2019.pdf
examined the legality of the orders passed by
the High Court of Sindh whereby that High Present: Mr. Justice Mushir Alam, Mr.
Court had allowed the bail petitions both pre Justice Yahya Afridi and Mr. Justice Qazi
as well as post arrest, in different NAB Muhammad Amin Ahmed
references, in lieu of deposit of the amounts Where fraud and collusion is alleged by a
allegedly embezzled by the accused persons. third person against the parties to a family
The Court disapproved the said mode suit in obtaining the decree, an application
adopted by the High Court for deciding the under Section 12(2) of the Code of Civil
bail petitions, and held that “a wholesale Procedure, 1908 filed by that person in
treatment of motions seeking bails, pre-arrest family court is maintainable
as well as post arrest, in an omnibus manner,
in isolation to the distinct facts and The petitioner being aggrieved of attachment
circumstances of each case as well as of his property in execution of a decree
different legal regimes applicable thereto, passed by a family court and confirmed by
fails to commend our approval.” (Para 3) the appellate court in a family suit filed by
respondent No.1 (wife) for recovery of
The same bench of the apex Court in another maintenance, dower and dowry against
case, Maqbool Ahmed v. NAB respondent No.6 (her husband) filed an
(https://www.supremecourt.gov.pk/downloa application under Section 12(2) of the Code
ds_judgements/c.p._3031_2021.pdf), of Civil Procedure, 1908 in the appellate
involving the identical issue held: “Such court for setting aside the said decree,
directions for release of an accused on bail alleging fraud and collusion against them in
have since been held by this Court as ultra obtaining the said decree to infringe his
vires in judgments more than one. An proprietary rights in the property purchased
accused seeking bail desires transfer of his by him from respondent No.6. The said
custody from Superintendent of the Jail, application was dismissed by the appellate
where he is confined, to his surety who court, treating it to be not maintainable under
undertakes his production as and when the Family Courts Act, 1964, and the

www.supremecourt.gov.pk 16/36
 Research Centre
Supreme Court of Pakistan

constitution petition filed by the petitioner in it unredeemedly vitiates the very solemnity
the High Court against that order of the of adjudication, a wrong that cannot be
appellate court also failed. The petitioner countenanced and must be remedied through
knocked at the door of the apex Court of the dynamic application of equitable principles
country for redress of his grievance by filing of law.” (Para 4)
petition for leave to appeal.
16. Ijaz Bashir Qureshi v. Shams-un-
The Court, thus, considered the question: Nisa Qureshi
https://www.supremecourt.gov.pk/downloads_jud
whether exclusion of the provisions of the gements/c.a._1498_2016.pdf
Code of Civil Procedure 1908, barring Present: Mr. Justice Mushir Alam, Mr.
sections 10 and 11 thereof, stood in Justice Sardar Tariq Masood and Mr. Justice
impediment to the petitioner’s approaching
Amin-Ud-Din Khan
the Family Court for reexamination of the
judgment within the contemplation of section The appeal before the Court had arisen of a
12 (2) of the Code? The Court answered the civil suit filed by the appellant for declaration
question in negative, and held that the of his ownership rights in the suit property
application filed by the petitioner under and challenging a gift deed executed by his
Section 12 (2) of the Code was maintainable. mother, holding a purported irrevocable
In reaching that conclusion, the Court power of attorney on his behalf as well as on
observed: “The exclusion of normal rules of behalf of his other siblings, in favour of the
procedure and proof, applicable in civil respondent (his sister). The trial court had
plenary jurisdiction for adjudication of decreed the suit, but the High Court reversed
disputes in proceedings before a Family the judgment of the trial court in appeal and
Court, is essentially designed to circumvent dismissed the suit. The appellant knocked at
delays in disposal of sustenance claims by the door of the Supreme Court, by filing
the vulnerable; this does not derogate its appeal against the judgment of the High
status as a Court nor takes away its inherent Court. The apex Court took up two questions
jurisdiction to protect its orders and decrees for determination: (i) Does the writing
from the taints of fraud and ‘irrevocable’ on the caption of the deed make
misrepresentation as such powers must vest the power of attorney ‘irrevocable’? and (ii)
in every tribunal to ensure that stream of Can an attorney transfer the property of
justice runs pure and clean; such intendment principal through gift? The Court answered
is important yet for another reason, as at the questions in the following terms:
times, adjudications by a Family Court may
involve decisions with far reaching Simple mentioning “irrevocable” in the
implications/consequences for a spouse or a caption of the deed of a power of attorney
sibling and, thus, there must exist a does not make it an irrevocable power of
mechanism to recall or rectify outcome of attorney
any sinister or oblique manipulation,
therefore, we find no clog on the authority of The Court held that “Its nature is to be
a Family Court to reexamine its earlier determined by the Court [even] when it is
decision with a view to secure the ends of written irrevocable…..[T]he test is where
justice and prevent abuse of its jurisdiction agent has himself an interest in the property
and for the said purpose, in the absence of which forms subject matter of the agency, the
any express prohibition in the Act, it can same cannot be terminated to the prejudice of
borrow the procedure from available avenues, such interest, in the absence of any express
chartered by law…Impact of fraud practiced contract. Admittedly, the power of attorney
upon tribunals exercising plenary or limited subject matter of this suit was not given for
jurisdictions, respectively, cannot be consideration, therefore, it cannot be termed
procedurally classified as in all jurisdictions as irrevocable general Power of Attorney. It

www.supremecourt.gov.pk 17/36
 Research Centre
Supreme Court of Pakistan

was simply General Power of Attorney with Parliament or a candidate and to declare
the powers of transfer the property through him to be dishonest. Some non-disclosures
sale etc. including through gift…[S]imply or mis-declarations can be termed as bad
[by] mentioning in the caption of a power of judgment or negligence but not dishonesty
attorney “irrevocable” it does not become an
irrevocable power of attorney.(Para 6) The Court was hearing an appeal against a
judgment passed by the Lahore High Court
An attorney cannot by himself transfer the whereby that High Court had dismissed the
property of principal through gift even if the constitution petition filed by the appellant
deed of power of attorney contains such and upheld the order of the Election Tribunal,
power rejecting the nomination papers of the
appellants to contest election for a seat of a
Regarding the second question, the Court
Provincial Assembly and declaring her to be
observed: “[I]n our view the gift can be made
not honest and thus disqualified to contest
by the owner/principal only. The agent
elections under Article 62(1)(f) of the
cannot [by] himself or herself transfer the
Constitution, on the basis of non-mentioning
immoveable property of principal through
of her agricultural property which she had
gift on the basis of any power of attorney
inherited from her parents.
even if the power of attorney contains the
powers to transfer the property through gift. The Court examined, inter alia, the question:
These powers can only be used for whether the non-mentioning of such property
completion of codal formalities of the gift by the appellant in her nomination papers
which must be [made] by the owner/principal was sufficient enough to declare her to be
himself/herself. The attorney cannot transfer dishonest and to disqualify her permanently
the property of principal [by] himself/herself in terms of Article 62(1)(f) of the
to anyone through gift and if that transfer is Constitution. The Court answered the
[made] by the attorney himself/herself, that is question in negative while concluding that
[an] invalid transfer. (Para 7) “No wrongdoing was associated with the
acquisition of the property or its retention,
The Court concluded that the respondent had
therefore,…the act of non-mentioning of the
not claimed that the gift of the suit property
property could not have been termed as
was made by the principal (appellant) rather
dishonest act, rather it could only be termed
she claimed the gift to have been made by the
as bad judgment or negligence but certainly
attorney, of the share of the appellant in the
not dishonesty.” (Para 9)
suit property, therefore, the gift is invalid to
the extent of the share of the appellant. With The Court, after referring to certain previous
the said findings, the Court allowed the cases, held that “every nondisclosure or mis-
appeal, set aside the judgment of the High declaration would not be sufficient enough to
Court and restored that of the trial court. permanently disqualify a member of the
Parliament or a candidate. The purpose and
17. Shamona Badshah Qaisarani v.
intention needs to be seen behind the
Election Tribunal
https://www.supremecourt.gov.pk/downloads_jud
nondisclosure or mis-declaration. The
gements/c.a._1399_2019.pdf returned candidate would be disqualified
Present: Mr. Justice Umar Ata Bandial, Mr. only when if he/she has dishonestly acquired
Justice Qazi Muhammad Amin Ahmed and assets and is hiding them to derive certain
Mr. Justice Sayyed Mazahar Ali Akbar benefits. If the non-disclosure or mis-
Naqvi declaration is such that it gives an illegal
advantage to a candidate then it would lead
Every non-disclosure or mis-declaration of to termination of his candidature….[M]erely
assets would not be sufficient enough to the fact that a candidate has not declared an
permanently disqualify a member of the

www.supremecourt.gov.pk 18/36
 Research Centre
Supreme Court of Pakistan

asset in the nomination papers would not end of the High Court in the Supreme Court. The
in his disqualification but it has to be seen apex Court considered, inter alia, the
whether the act of non-disclosure of the asset question: whether the constitution petitions
is with dishonest intent or not and only if were maintainable before the High Court in
there is dishonest intent behind the view of the specific bar contained in Article
nondisclosure, the candidate would be 212(2) of the Constitution of the Islamic
disqualified. It is the credibility of the Republic of Pakistan, 1973.
explanation that would be the determining
factor as to whether non-disclosure of an The Court, after making an elaborative
asset carries with it the element of dishonesty discussion on the provisions of Article 212 of
or not…[T]here can be many examples the Constitution and referring to the previous
where it can be safely said that an omission relevant cases, answered the question in
on the face of it is not dishonest. Omission to negative. The Court observed: “Article
list an inherited property or the pensionary 212(2) of the Constitution specifically places
benefits received by one's spouse or the plot an embargo on all other courts except Service
allotted by the government in Tribunal to grant an injunction, make any
acknowledgment of services rendered are order or ‘entertain’ any proceedings in
some of the instances which cannot be said respect of any matter relating to the terms and
that a member intentionally concealed its conditions of service even if they are mala
disclosure in order to cover some financial fide, ultra vires or coram non judice…The
wrongdoing. Suchlike omissions at best word ‘entertain’ used in Article 212(2) of the
could be categorized as bad judgment or Constitution is of significance importance.
negligence but not dishonesty.” (Paras 7-8) This means that any petition or proceeding
relating to the terms and conditions of service
18. Khalil Ullah Kakar v. Inspector even should not be entertained by the High
General of Police Court in its constitutional jurisdiction under
https://www.supremecourt.gov.pk/downloads_jud Article 199 of the Constitution. In view of the
gements/c.a._909_2020.pdf facts and circumstances of this case,
entertaining and then proceeding with the
Present: Mr. Justice Gulzar Ahmed, CJ, Mr. constitutional petitions amounts to defeating
Justice Ijaz Ul Ahsan and Mr. Justice the express Constitutional mandate under
Sayyed Mazahar Ali Akbar Naqvi which Tribunal is vested with jurisdiction to
High Court cannot exercise its jurisdiction deal with the matters of civil servants.”
under Article 199 of the Constitution in (Paras 8-9)
respect of any matter relating to the terms
and conditions of service of civil servants The Court further observed: “The
even if the orders of the departmental jurisdiction conferred on the High Courts
authorities are mala fide, ultra vires or under Article 199 of the Constitution is an
coram non judice extraordinary relief and the same has to be
exercised in aid of justice and not to interfere
The High Court had allowed the constitution in jurisdictions of other statutory forums.
petitions filed, under Article 199 of the When the law has provided an adequate
Constitution, by the respondents (some remedy, constitutional jurisdiction under
Deputy Superintendents of Police in Article 199 of the Constitution cannot be
legal/prosecution branch) and directed the exercised…[T]endency to bypass remedy
Provincial Police Officer to issue a joint provided under relevant statue by resorting to
seniority list of Deputy Superintendents of constitutional jurisdiction is to be
Police of all cadres/branches, and the discouraged so that legislative intent is not
appellants (Deputy Superintendents of Police defeated.” (Para 11)
in other branches) challenged that judgment

www.supremecourt.gov.pk 19/36
 Research Centre
Supreme Court of Pakistan

Foreign Superior Courts of elections and the perceived legitimacy of

the announced outcome.” Justice Alito said
SUPREME COURT OF USA that the court was not announcing an ironclad
standard for lower courts to apply in cases
1. Brnovich v Democratic National challenging voting restrictions. “As this is
Committee our first foray into the area, we think it
https://www.supremecourt.gov/opinions/20pdf/19-
1257_new_4g15.pdf sufficient for present purposes to identify
certain guideposts that lead us to our decision
Coram: in these cases.” He proceeded to sketch out
Roberts CJ, Thomas, Breyer, Alito, five guideposts:
Sotomayor, Kagan, Gorsuch, Kavanaugh,
and Barrett JJ  the burden imposed by the challenged
restriction must be substantial
Arizona voting restrictions upheld  courts should consider “the degree to
which a challenged rule has a long
At issue, in the case, were two Arizona laws: pedigree or is in widespread use in
one banned the collection of absentee ballots the United States”
by anyone other than a relative or caregiver,
 “the size of any disparities in a rule’s
and the other threw out any ballots cast in the
impact on members of different racial
wrong precinct. A federal appeals court
or ethnic groups is also an important
struck down both provisions, ruling that they
factor”
had an unequal impact on minority voters
 courts must consider all of the ways
and that there was no evidence of fraud that
voters can cast ballots
would have justified their use.
 courts should consider the state’s
The Supreme Court, however, reinstated the reason for the restriction
state laws, declaring that unequal impact on
minorities in this context was relatively In dissent, Justice Elena Kagan wrote that the
minor, that other states have similar laws and majority had done violence to the Voting
that states don’t have to wait for fraud to Rights Act, a civil rights landmark.
occur before enacting laws to prevent it. The “Wherever it can, the majority gives a
6-3 vote was divided along ideological lines. cramped reading to broad language. And
Justice Samuel Alito wrote the decision for then it uses that reading to uphold two
the court’s conservative majority. He election laws from Arizona that discriminate
concluded that the relevant part of the Voting against minority voters.” “What is tragic
Rights Act of 1965 can be used to strike here,” she wrote, “is that the court has (yet
down voting restrictions only when they again) rewritten — in order to weaken — a
impose substantial and disproportionate statute that stands as a monument to
burdens on minority voters, effectively America’s greatness and protects against its
blocking their ability to cast a ballot. “Where basest impulses. What is tragic is that the
a state provides multiple ways to vote, any court has damaged a statute designed to bring
burden imposed on voters who choose one of about ‘the end of discrimination in voting.’”
the available options cannot be evaluated Justice Kagan said the majority’s list of
without also taking into account the other guideposts amounted to a recipe for voter
available means.” Justice Alito wrote that suppression. “The list — not a test, the
states have a legitimate interest in rooting out majority hastens to assure us, with delusions
fraud. “Fraud can affect the outcome of a of modesty — stacks the deck against
close election, and fraudulent votes dilute the minority citizens’ voting rights,” she wrote.
right of citizens to cast ballots that carry “Never mind that Congress drafted a statute
appropriate weight. Fraud can also to protect those rights — to prohibit any
undermine public confidence in the fairness

www.supremecourt.gov.pk 20/36
 Research Centre
Supreme Court of Pakistan

number of schemes the majority’s non-test of the actual decision-makers gave evidence.
test makes it possible to save.” The Supreme Court emphasized that
tribunals should be free to draw, or decline to
SUPREME COURT OF UK draw, inferences in the case before them
using their common sense. In deciding
2. Royal Mail Group Ltd (Respondent) whether to draw an adverse inference from
v Efobi (Appellant) the absence of a witness, relevant
https://www.supremecourt.uk/cases/docs/uksc-
2019-0068-judgment.pdf considerations will naturally include whether
the witness was available to give evidence,
Coram: what evidence the witness could have given,
Lord Hodge (Deputy President), Lord Briggs, what other evidence there was bearing on the
Lady Arden, Lord Hamblen, Lord Leggatt points on which the witness could have given
evidence and the significance of those points
Racial discrimination --- adverse inference in the context of the case as whole. How such
in service matters matters should be assessed cannot be
encapsulated in a set of legal rules.
The Appellant, Mr Efobi, worked as a
postman for the Respondent, Royal Mail. He The Supreme Court held that the
was born in Nigeria and identifies as a black employment tribunal in the present case
African and Nigerian. He has qualifications cannot be faulted as a matter of law for not
in computing and wished to obtain a drawing the adverse inferences (that Mr
managerial or technical role within Royal Efobi argued for) from the fact that none of
Mail. He applied unsuccessfully for over 30 the actual decision-makers gave evidence. In
such jobs. He, therefore, brought a claim any case, even if those inferences had been
against Royal Mail in the employment drawn, the facts that the recruiter had been
tribunal alleging that the rejection of his aware of Mr Efobi’s race and that the
applications was the result of direct or successful candidate was of a different race
indirect discrimination because of his race. from him would not, without more, have
He also made allegations of racial enabled the employment tribunal to conclude
harassment and victimization. that, in the absence of any other explanation,
that there had been discrimination. Hence the
The law imposed a two-stage test in burden of proof did not shift to Royal Mail to
discrimination cases. At the first stage, the explain its decisions and the tribunal was
claimant had the burden of proving facts entitled to dismiss the claim.
from which the tribunal could conclude, in
the absence of an adequate explanation, that 3. Sanambar v Secretary of State for
an unlawful act of discrimination had been the Home Department
committed. If the claimant did not prove such https://www.supremecourt.uk/cases/docs/uksc-
facts, the claim failed. If the claimant proved 2019-0086-judgment.pdf
such facts, the burden shifted to the employer
to explain the reason(s) for its treatment of Coram:
the claimant and to satisfy the tribunal that Lord Reed, President; Lord Hodge, Deputy
race (or another protected characteristic) President; Lord Sales; Lord Stephens; Sir
played no part in those reasons. Unless the Declan Morgan
employer satisfied this burden, the claim Deportation of a "foreign criminal"
succeeded. interferes with that individual’s rights to
private and family life under Article 8 of the
Mr Efobi argued that the employment European Convention on Human Rights
tribunal should have drawn inferences
adverse to Royal Mail from the fact that none

www.supremecourt.gov.pk 21/36
 Research Centre
Supreme Court of Pakistan

The appellant is a national of Iran. He was reasonably be said to afford the appellant
born in 1995. He arrived in the UK with his some assistance in terms of integration.
mother in 2005, having been given indefinite There was ample material to justify the
leave to remain. He has no family ties with Upper Tribunal’s conclusion that the
Iran, although he speaks Farsi with his obstacles to the appellant’s integration in Iran
mother. However, he went on to commit a were not very significant.
number of criminal offences in UK. In 2013,
the Secretary of State decided that he could Accordingly, having regard to the UT’s
be deported to Iran, finding that the public careful consideration of the Üner criteria, the
interest in deportation outweighed other seriousness of the appellant’s offending and
factors and would not breach his right to continuing risk of future offending, the
private and family life under Article 8 of the Upper Tribunal was entitled to conclude that
European Convention on Human Rights. the deportation of the appellant would not be
disproportionate or that there were very
He succeeded in overturning the Secretary of compelling reasons to prevent it. It gave
State’s deportation decision on appeal to the relevant and sufficient reasons for its
First-tier Tribunal (FtT). However, the Upper conclusion. There was substantial material to
Tribunal (UT) set aside the FtT’s decision on support its view that the interference with the
the basis the FtT had made a material error of appellant’s private and family life was
law. Thus, he approached to the Supreme outweighed by the public interest in the
Court of UK. prevention of crime.

The Supreme Court concluded that the UT 4. Triple Point Technology, Inc v PTT
gave careful consideration to the particular Public Company Ltd
circumstances of the appellant’s situation. It https://www.supremecourt.uk/cases/docs/uksc-
2019-0074-judgment.pdf
considered the nature and seriousness of the
offences, the background of previous
Coram:
offending, and the continuing risks of re-
offending despite the rehabilitative measures Lord Hodge (Deputy President), Lady
the appellant had undergone in custody. The Arden, Lord Sales, Lord Leggatt, Lord
UT accepted that the appellant had an Burrows
established private and family life in the UK The guidelines for the award of liquidated
and was socially and culturally integrated. It damages in case of termination of contract
did not, however, accept that there were very stated
significant obstacles to the appellant’s Termination of a contract will only have a
integration in Iran. It acknowledged that the prospective effect on the parties’ rights and
appellant had not been in Iran since he was obligations. If an entitlement to liquidated
nine, was used to the life in and relative damages has accrued at the time of
freedoms of the UK, could not read or write termination, such termination should not
Farsi and would have difficulty in obtaining deprive the employer of its right to recover
employment or training. On the other hand, such damages, unless the contract clearly
the appellant spoke Farsi. He was provides. Unless the contract provides clear
academically capable, able to articulate wording to the contrary, the accrual of
himself appropriately and ambitious. He was liquidated damages comes to an end on
not utterly isolated from Iranian culture, termination of the contract. After the contract
particularly because of his mother’s ties to is terminated the parties must seek damages
the country. While her ties were not his ties, for breach of contract under the general law.
the fact that she had visited Iran, retained a The employer is at liberty to prove any claim
connection to the country and had a close that it might have for unliquidated damages.
friend there were factors which could

www.supremecourt.gov.pk 22/36
 Research Centre
Supreme Court of Pakistan

5. Manchester Building Society v https://www.supremecourt.uk/cases/docs/uksc-

Grant Thornton UK LLP 2021-0099-judgment.pdf
https://www.supremecourt.uk/cases/docs/uksc-
2019-0040-judgment.pdf Coram:
Lord Lloyd-Jones, Lord Hamblen, Lord
Coram: Stephens
Lord Reed (President), Lord Hodge The ulterior intention is not necessary to
(Deputy President), Lady Black, Lord prove criminal contempt of court.
Kitchin, Lord Sales, Lord Leggatt, Lord
Burrows The criminal contempt of court is a conduct
The professional advice and the scope of which goes beyond mere non-compliance
duty of care of the professional advisor with a court order and involves a serious
interference with the administration of
The Supreme Court affirmed that the justice. It must be proved that the accused
appellant suffered a loss falling within the
knew of the court order and deliberately
scope of the duty of care assumed by
professional advisor, having regard to the breached it. It is not necessary to prove an
purpose for which it gave its professional ulterior intention to interfere with the
advice. The professional advisor is liable for administration of justice.
the loss suffered by the appellant on account
of advice given by him. The court considered 8. Test Claimants in the Franked
that the more appropriate test should be in the Investment Income Group
case of negligent advice given by a Litigation v Commissioners of
professional adviser one looks to see what Inland Revenue
risk the duty was supposed to guard against https://www.supremecourt.uk/cases/uksc-2016-
and then look to see whether the loss suffered 0229.html
represented the fruition of that risk.
Coram:
6. General Dynamics United Kingdom Lord Reed, President Lord Hodge, Deputy
Ltd v State of Libya President Lord Carnwath Lord Lloyd-
https://www.supremecourt.uk/cases/docs/uksc- Jones Lord Briggs Lord Sales Lord
2019-0166-judgment.pdf Hamblen

Coram: That section 32(1)(c) of the Limitation Act

Lord Lloyd-Jones, Lord Briggs, Lady 1980 applies only to mistakes of fact and not
Arden, Lord Burrows, Lord Stephens to mistakes of law.

The enforcement of an arbitral award This appeal arises in the course of long-
against a foreign state running proceedings known as the Franked
Investment Income ("FII") Group Litigation.
The Supreme Court affirmed that for
enforcement of arbitral award against a The FII Group Litigation brings together
foreign state it is mandatory that the many claims concerning the way in which
defendant state received notice of the advance corporation tax and corporation tax
proceedings against it so that it had adequate used to be charged on dividends received by
time and opportunity to respond to UK-resident companies from non-resident
proceedings of whatever nature which subsidiaries. The Respondents to this appeal
affected its interests.
are claimants within the FII Group Litigation
7. Her Majesty’s Attorney General v whose cases have been selected to proceed as
Crosland test claims on certain common issues ("the

www.supremecourt.gov.pk 23/36
 Research Centre
Supreme Court of Pakistan

Test Claimants"). These issues are being that time instead began to run in 2001, when
determined in phases, with the courts’ the Court of Justice decided that other
decisions affecting not just the other claims aspects of the UK tax regime breached EU
within the FII Group Litigation, but law. The Court of Appeal found in favour of
potentially also a number of other sets of the Test Claimants on this issue.
proceedings brought by corporate taxpayers
against the Commissioners for Her Majesty’s On appeal to the Supreme Court, HMRC
Revenue and Customs ("HMRC") argued that section 32(1)(c) of the Limitation
Act 1980 applies only to mistakes of fact and
The Test Claimants’ case is that the not to mistakes of law, or alternatively that
differences between their tax treatment and the Test Claimants could reasonably have
that of wholly UK-resident groups of discovered their mistake more than six years
companies breached the EU Treaty before they issued their claims in 2003. On
provisions which guarantee freedom of either approach, a proportion of the claims
establishment and free movement of capital. would be time-barred.
They seek repayment by HMRC of the tax
wrongly paid, together with interest, dating 9. Khan v Meadows
https://www.supremecourt.uk/cases/docs/uksc-
back to the UK’s entry to the EU in 1973. 2019-0011-judgment.pdf

Restitutionary claims for the recovery of Coram:

money must normally be brought within six Lord Reed, President Lord Hodge, Deputy
years from the date on which the money was President Lady Black Lord Kitchin Lord
paid. As an exception to that general rule, Sales Lord Leggatt Lord Burrows
section 32(1)(c) of the Limitation Act 1980 Doctor was held liable only for losses falling
provides that, in respect of an "action for within the scope of her duty of care to advise
relief from the consequences of a mistake",
the limitation period only begins to run when In 2006, the appellant, Ms Meadows,
the claimant "has discovered the … consulted her GP practice to establish
mistake … or could with reasonable whether she was a carrier of the haemophilia
diligence have discovered it." gene. Following blood tests, she was
negligently led to believe by the respondent,
Before the Court of Appeal, the Test Dr Khan, that she was not a carrier. In fact,
Claimants argued that, where a claimant is the tests only confirmed that she did not
seeking to recover money paid under a herself have haemophilia. In 2010, Ms
mistake of law, the effect of section 32(1)(c) Meadows became pregnant with her son,
is to postpone the commencement of the Adejuwon. Shortly after his birth Adejuwon
limitation period until such time as the true was diagnosed as having haemophilia.
state of the law is established by a judicial Subsequent genetic testing confirmed Ms
decision from which there lies no right of Meadows was a carrier of the gene. Had Ms
appeal. In their cases, the Test Claimants said Meadows known that she was a carrier, she
that this was when, in 2006, the Court of would have undergone foetal testing for
Justice of the European Union decided that haemophilia when she was pregnant. This
relevant aspects of the UK tax regime were would have revealed the foetus was affected.
incompatible with EU law. HMRC argued Ms Meadows would then have chosen to

www.supremecourt.gov.pk 24/36
 Research Centre
Supreme Court of Pakistan

terminate her pregnancy, and her son would Lord Hodge, Deputy President Lady
not have been born. Arden Lord Sales Lord Burrows Lord
Stephens
It is not in dispute that Dr Khan is liable in Midnight deadline case – calculation of
negligence for the costs of bringing up limitation period
Adejuwon attributable to his haemophilia.
The dispute between the parties arises from This appeal concerns the calculation of
the fact that Adejuwon was also born and limitation periods. The issue is whether,
subsequently diagnosed with autism, a where a cause of action accrues at, or on the
condition which is unrelated to his expiry of, the midnight hour at the end of a
haemophilia. The question is whether Dr day, the following day counts towards the
Khan is liable for all costs related to calculation of the limitation period.
Adejuwon’s disabilities arising from the
The appellants are the current trustees of a
pregnancy or only those associated with his
trust (the "Trust"). They replaced the
haemophilia. The High Court held that Dr
respondents, who were the trustees of the
Khan was liable for costs associated with
Trust until their retirement in 2014. The Trust
both Adejuwon’s haemophilia and autism.
had a shareholding in Cattles plc, a listed
The Court of Appeal allowed Dr Khan’s
company. In April 2008, Cattles plc
appeal, finding her liable for costs associated
published an annual report and a rights issue
with Adejuwon’s haemophilia only. In so
prospectus containing misleading
doing, it considered the scope of duty
information. Trading in Cattles plc’s shares
principle as illustrated in SAAMCO as
was subsequently suspended, and in
determinative of the issue.
February 2011, schemes of arrangement
The Supreme Court unanimously dismisses were approved in respect of Cattles plc and a
the appeal. It holds that there is no principled subsidiary, Welcome Financial Services Ltd
basis for excluding clinical negligence from ("Welcome"). A scheme of arrangement, in
the ambit of the scope of duty principle. Dr this context, is a court-sanctioned agreement
Khan is liable only for losses falling within between a company and its creditors.
the scope of her duty of care to advise Ms Because of the misleading information in the
Meadows on whether or not she was a carrier annual report and prospectus, the Trust had a
of the haemophilia gene. She is not liable for claim against Cattles plc and Welcome under
costs associated with Adejuwon’s autism. the schemes. Under the scheme of
Lord Hodge and Lord Sales give the lead arrangement in relation to Welcome (the
judgment with whom Lord Reed, Lady Black "Welcome Scheme"), a valid claim could
and Lord Kitchin agree. Lord Burrows and have been made up to midnight (at the end of
Lord Leggatt each give a concurring the day) on Thursday 2 June 2011.
judgment.
The respondents did not make a claim in the
10. Matthew v Sedman Welcome Scheme on or before 2 June 2011.
https://www.supremecourt.uk/cases/docs/uksc- The appellants therefore commenced
2019-0080-judgment.pdf proceedings in negligence and breach of trust
against the respondents (the "Welcome
Coram:
Claim") by a claim form issued on Monday 5

www.supremecourt.gov.pk 25/36
 Research Centre
Supreme Court of Pakistan

June 2017. Under the Limitation Act 1980, purposes of limitation, thereby prejudicing
actions brought in tort, contract, and breach the claimant and interfering with the time
of trust cannot be brought after the expiration periods stipulated in the Limitation Act 1980.
of six years from the date on which the cause However, in a midnight deadline case, even
of action accrued. The respondents contend if the cause of action accrued at the very start
that the Welcome Claim was issued out of of the day following midnight, that day was,
time and is therefore statute-barred. for practical purposes, a complete undivided
day. Realistically, there is no fraction of a day.
The issue in this appeal, therefore, is whether The justification in relation to fractions of a
Friday 3 June 2011, the day which day therefore does not apply in a midnight
commenced immediately after the expiry of deadline case.
the midnight deadline for bringing a claim in
the Welcome Scheme, counts towards the The Welcome Claim was therefore brought
calculation of the six-year limitation period. out of time. Lord Stephens gives the only
If Friday 3 June 2011 is included, the judgment, with which all members of the
limitation period expired six years later, at Court agree.
the end of Friday 2 June 2017. In that case,
the Welcome Claim was brought out of time. THE SUPREME COURT OF INDIA
If Friday 3 June 2011 is excluded, then the 11. Pasl Wind Solutions Private Limited
limitation period expired six years later, at v. GE Power Conversion India
the end of Saturday 3 June 2017. However, Private Limited
in order to bring the Welcome Claim, a claim MANU/SC/0295/2021
https://indiankanoon.org/doc/79928496/
form must be issued. That can only be done
when the court office is open. The office is Before:
shut at the weekend. The parties therefore Hon'ble Judges/Coram: Rohinton Fali
agree that if Friday 3 June 2011 is excluded, Nariman, B.R. Gavai and Hrishikesh Roy
the final day on which proceedings could be The two Indian parties can choose a foreign
brought is Monday 7 June 2017. In that case, seat of arbitration and such foreign arbitral
the Welcome Claim was brought within the award is enforceable in India.
six-year limitation period and is not statute-
The Supreme Court affirmed that nothing
bared.
stands in the way of party autonomy in
The Supreme Court unanimously dismisses designating a seat of arbitration outside India
the appeal. In a midnight deadline case, there even when both parties happen to be Indian
is a complete undivided day following the nationals. The two Indian parties can choose
expiry of the deadline, which should be a foreign (non-Indian) seat of arbitration. An
included when calculating the limitation award issued by an arbitral tribunal in such
period. The reason for the general rule that circumstances would be enforceable in India
the day of accrual of the cause of action and that the parties could also seek interim
should be excluded from the reckoning of relief in India.
time is that the law rejects a fraction of a day.
The justification for that rule is HIGH COURT OF AUSTRALIA
straightforward; it is intended to prevent part 12. Commonwealth of Australia v
of a day being counted as a whole day for the AJL20

www.supremecourt.gov.pk 26/36
 Research Centre
Supreme Court of Pakistan

https://eresources.hcourt.gov.au/downloadPdf/202 The High Court agreed with the

1/HCA/21
Commonwealth and allowed the appeal. The
Coram: Court, by majority, held that sections 189(1)
Kiefel CJ, and Gageler, Keane, Gordon, and 196(1) of the Act validly authorise and
Edelman, Steward and Gleeson JJ require the detention of an unlawful non-
Constitutional validity of detention of citizen until the actual event of their removal
unlawful non-citizens from Australia or grant of a visa. Detention
so authorised and required does not involve
The Court, in this case, considered the constitutionally impermissible punishment
constitutional validity of detention of of the detainee by the Executive because it is
unlawful non-citizens under the Migration reasonably capable of being seen as
Act, 1958 (“the Act”). The respondent, a necessary for the legitimate non-punitive
Syrian citizen, arrived in Australia in May purposes of segregation pending
2005 as the holder of a child visa. On 2 investigation and determination of any visa
October 2014, his child visa was cancelled on application or removal. The authority and
character grounds under section 501(2) of the obligation to detain is hedged about by
Act. Having become an ‘unlawful non- enforceable duties, including that in section
citizen’, the respondent was detained on 8 198(6), that give effect to these legitimate
October 2014, as required by section 189(1) non-punitive purposes and mean that the
of the Act. The primary judge of the Federal duration of detention is capable of
Court held that the respondent’s continuing determination. Upon performance of these
detention was unlawful because the hedging duties by the Executive, detention is
Executive had not removed him from to be brought to an end. Non-performance by
Australia “as soon as reasonably practicable” the Executive erases neither these duties nor
in accordance with section 198(6) of the Act the legitimate non-punitive statutory
and that his detention was not for the purpose purposes which they support. Rather, judicial
of removal from Australia. The Federal power compels performance by the
Court considered that the period of detention Executive of its duties, through the remedy
authorised and required by the Act ceases of mandamus, so as to enforce the supremacy
when removal should have occurred had the of the Parliament over the Executive.
Executive acted with all reasonable despatch.
This reading of the Act was thought to be 13. Libertyworks Inc v Commonwealth
compelled by a need to observe the of Australia
https://eresources.hcourt.gov.au/downloadPdf/202
limitations on the Parliament’s power to 1/HCA/18
authorise detention by the Executive flowing
from the separation of judicial power Coram:
effected by Chapter III of the Constitution. Kiefel CJ, and Gageler, Keane, Gordon,
The Commonwealth appealed this decision Edelman, Steward and Gleeson JJ
to the High Court on the basis that the Registration obligations with respect to
detention was lawful because it was communications activities on behalf of a
authorised and, indeed, required by section foreign principal are justified
196(1) of the Act. The President of the plaintiff, a private think-
tank, met with the Executive Director of the

www.supremecourt.gov.pk 27/36
 Research Centre
Supreme Court of Pakistan

American Conservative Union (“ACU”), a the opinion of the Court in the absence of a
corporation in the United States of America case advanced against the validity of the Act
which holds an annual political conference on that basis.
called the Conservative Political Action
Conference (“CPAC”), and it was agreed that 14. John Shi Sheng Zhang v The
the plaintiff and the ACU would collaborate Commissioner of Police
https://eresources.hcourt.gov.au/downloadPdf/202
in a CPAC event to be held in Australia in 1/HCA/16
2019. In August 2019, the plaintiff was asked
by the Attorney-General’s Department to Coram:
consider whether it was required to register Kiefel CJ, and Gageler, Keane, Gordon,
Edelman, Steward and Gleeson JJ
its arrangements with the ACU under the Act.
“Foreign interference” laws are
The questions before the Court was whether constitutional
the Foreign Influence Transparency Scheme
The plaintiff, an Australian citizen born in
Act 2018 (“the Act”) was invalid, to the
China, was employed at the New South
extent it imposed registration obligations Wales Parliament. In the context of an
with respect to communications activities, on ongoing investigation, officers of the
the ground that it infringed the freedom of Australian Federal Police (“AFP”) obtained
political communication implied by the search warrants issued under section 3E of
Constitution. the Crimes Act 1914 purporting to authorise
search and seizure of material relevant to
The High Court answered the primary offences against section 92.3(1) and (2) of
question stated for its opinion to the effect the Criminal Code. Corresponding orders
relating to material seized were made under
that the provisions of the Act respecting
section 3LA of the Crimes Act following
communications activity by a person who execution of those warrants. In a proceeding
acts on behalf of a foreign principal were not in the High Court’s original jurisdiction, the
invalid on the ground that they infringed the plaintiff sought writs of certiorari quashing
implied freedom. A majority of the Court each warrant and each order together with a
found that the Act, in its requirement of mandatory injunction requiring the
destruction or return of the seized and copied
registration where communications activity
material. He also sought declarations of
is undertaken on behalf of a foreign principal, invalidity of section 92.3(1) and (2) of the
burdened the implied freedom but held that Criminal Code on the basis that they
the burden was justified. The provisions were infringed the implied freedom of political
held to have a legitimate purpose, namely to communication.
achieve transparency as a means of
The question before the Court concerned the
preventing or minimising the risk that foreign
validity of section 92.3(1) and (2) of the
principals will exert influence on the Criminal Code, which criminalised reckless
integrity of Australia’s political or electoral foreign interference, and the validity of three
processes. The provisions were proportionate search warrants and corresponding orders
to the achievement of that purpose. The issued in respect of suspected offences
majority concluded that other questions, against section 92.3(1) and (2).
concerning the extent of the Secretary’s
The High Court unanimously held that the
power to require information from a person plaintiff’s argument that each warrant failed
prior to or after registration, did not arise for to comply with section 3E(5)(a) of the

www.supremecourt.gov.pk 28/36
 Research Centre
Supreme Court of Pakistan

Crimes Act because it was “unclear” as to the arising from serious violations of someone's
identity of the foreign principal was integrity, submitted in connection with
untenable. As to the constitutional challenge, criminal proceedings. The choice of law
the Court found that the plaintiff, in failing to must consequently be made based on the
assert that the word “covert” would be starting point in Norwegian international
incapable of being read down to ensure private law – the Irma Mignon formula. The
validity, implicitly acknowledged that parts EU's choice-of-law rules in Rome II could
of section 92.3(1) supporting the offences not lead to any other result. The Supreme
against section 92.3(1) to which each warrant Court also found that the case was most
related had some valid operation. That being strongly connected with Norway. It was
so, his argument that those offences do not emphasised that the wrongdoer is a
exist was rejected without need of Norwegian citizen, and that the claim for
determining the constitutional argument he aggravated damages had been decided by a
presented. Accordingly, the Court held that Norwegian court in connection with the
the warrants were not wholly invalid on any criminal proceedings. The connection to The
of the identified grounds and otherwise the Bahamas was remote, and was only due to
remaining substantive questions reserved the ship being registered in this state. The
were unnecessary or inappropriate to answer. wrongdoer's appeal against the Court of
Appeal's decision of the claim for aggravated
SUPREME COURT OF NORWAY damages was dismissed.
15. A (Counsel John Christian Elden) v. SUPREME COURT OF CANADA
B (Counsel Marie Nesvik)
https://www.domstol.no/globalassets/upload/hret/ 16. R v Desautel
decisions-in-english-translation/hr-2021-955-a.pdf https://decisions.scc-csc.ca/scc-csc/scc-
csc/en/item/18836/index.do
Coram:
Justices: Matningsdal, Falkanger, Ringnes, Coram:
Arntzen, Bergh Wagner CJ and Abella, Moldaver,
Karakatsanis, Côté, Brown, Rowe, Martin
Basic rule “trial on the place where wrong and Kasirer JJ.
took place, could not automatically apply to
a claim arising from serious violations of Non-Canadians can have constitutionally-
someone's integrity protected aboriginal rights under Canada's
Constitution
A US woman was raped by a Norwegian
citizen on a Bahamas-registered cruise ship In October 2010, Desautel, a citizen and
sailing in international waters. The assailant resident of the United States of America, shot
was convicted in the District Court and the a cow ‑ elk in British Columbia. He was
Court of Appeal of Norway. The aggrieved
charged with hunting without a licence
person was also awarded aggravated
damages of NOK 150 000, under the contrary to section 11(1) of British
Criminal Procedure Act. So, the question Columbia’s Wildlife Act (“the Act”) and
before the Supreme Court of Norway was hunting big game while not being a resident
that which country’s law was applicable for a of the province contrary to section 47(a) of
claim for aggravated damages after a sexual the Act. The trial judge held that Desautel
assault on board a Bahamas-registered cruise was exercising an Aboriginal right to hunt for
ship in the international waters.
food, social and ceremonial purposes
The Supreme Court found that the basic rule guaranteed by section 35(1) of the
on the place where the wrong took place
could not automatically apply to such claims

www.supremecourt.gov.pk 29/36
 Research Centre
Supreme Court of Pakistan

Constitution Act, 1982. The Crown’s two by aboriginal peoples at the hands of
subsequent appeals were dismissed. colonizers’”.

The Crown appealed to the Supreme Court In her dissenting opinion, Justice Côté held
raising a constitutional question, whether the that only Aboriginal groups in Canada could
relevant provisions of the Act are of no force be entitled to the protections of section 35(1),
or effect with respect to Desautel, by reason as the intent of the provision in 1982 had
of an Aboriginal right within the meaning of been to protect the rights of Aboriginal
section 35(1) of the Constitution Act. groups that were participants in and members
of Canadian society, rather than of modern-
The Court, by majority, held that persons day successor groups located outside of
who are not Canadian citizens and who do Canada. She further held that, even if the
not reside in Canada can exercise an Lakes Tribe were an Aboriginal people of
Aboriginal right that is protected by section Canada under section 35(1), the evidence led
35(1) of the Constitution Act. Rowe, writing at trial was insufficient to meet the continuity
for the majority, held that on a purposive requirement of the Van der Peet test
interpretation of section 35(1) of the necessary for establishing an Aboriginal
Constitution Act, the expression “aboriginal right to hunt in the Sinixt traditional
peoples of Canada” means the modern‑day territories in British Columbia. In particular,
successors of Aboriginal societies that Côté J. stated that the trial judge made a
occupied Canadian territory at the time of “legal error” in concluding that that the chain
European contact, and this may include of continuity had not been broken, given
Aboriginal groups that are now outside what she characterized as “no direct evidence
Canada. As Desautel is a member of the between 1930 and 1982 and between 1982
Lakes Tribe, which is a modern successor of and 2010” of the exercise of an Aboriginal
the Sinixt, and as Desautel’s claim satisfies hunting right in British Columbia by the
the Van der Peet case test for an Aboriginal Lakes Tribe. Justice Côté was joined by
right under section 35(1) of the Constitution Justice Moldaver on this latter point and he
Act, sections 11(1) and 47(a) of the Act are concluded that Desautel had not
of no force or effect with respect to him. The demonstrated that the practice of hunting had
majority held that it is consistent with the sufficient continuity to establish an
purpose of reconciliation and section 35(1) of Aboriginal right under the test set out in Van
the Constitution Act to include “Aboriginal der Peet.
peoples who were here when the Europeans
17. Cathedral v Aga
arrived and later moved or were forced to https://decisions.scc-csc.ca/scc-csc/scc-
move elsewhere, or on whom international csc/en/item/18895/index.do
boundaries were imposed”. The majority
noted that the displacement of Aboriginal Coram:
Wagner CJ and Abella, Moldaver,
peoples as a result of colonization is well-
Karakatsanis, Côté, Brown, Rowe, Martin
acknowledged and that “an interpretation and Kasirer JJ.
that excludes Aboriginal peoples who were
forced to move out of Canada would risk Courts are unlikely to interfere with
voluntary associations
‘perpetuating the historical injustice suffered

www.supremecourt.gov.pk 30/36
 Research Centre
Supreme Court of Pakistan

The respondents were expelled from the https://decisions.scc-csc.ca/scc-csc/scc-

congregation of the Ethiopian Orthodox csc/en/item/18962/index.do
Tewahedo Church of Canada St. Mary
Cathedral after a dispute arose about a Coram:
movement within the church which some Wagner, Richard; Abella, Rosalie Silberman;
considered to be heretical. The respondents Moldaver, Michael J.; Karakatsanis,
brought an action against the appellants, the Andromache; Côté, Suzanne; Brown,
church and members of its senior leadership, Russell; Rowe, Malcolm; Martin, Sheilah;
seeking a declaration that their expulsion was Kasirer, Nicholas.
null and void, and other relief. The motion “Release contract” be interpreted according
judge through a summary judgment to the words used [in a contract] their
dismissed the action, determining that the ordinary and grammatical meaning,
expelled members failed to allege or provide consistent with the surrounding
evidence of an underlying legal right. The circumstances.
Court of Appeal allowed the appeal by the
expelled members, holding that the written On March 3, 2009, Mrs. Bailey struck Mr.
constitution and bylaws of a voluntary Temple while driving her husband’s car. Mr.
organization constitute a contract setting out Temple, an employee of the City of Corner
the rights and obligations of the members and Brook in Newfoundland and Labrador, was
the organization. It concluded that the parties performing road work at the time. He sued
entered into a mutual agreement to abide by Mrs. Bailey for the injuries he sustained.
the governing rules and that whether there Meanwhile, the Baileys sued the City for the
had been a breach of contract on the basis of damage to the car and the injuries Mrs.
failure to comply with the rules was a Bailey sustained. On August 26, 2011, the
genuine issue requiring a trial. Baileys settled with the City and signed a
The Supreme Court unanimously held, “release”. The release stated that the Baileys
“[j]urisdiction to intervene in the affairs of a agreed to exempt the City from any past,
voluntary association depends on the present or future claims of any kind related to
existence of a legal right which the court is the accident.
asked to vindicate. Here, the only viable In the years that followed, Mr. Temple’s
candidate for a legal right justifying judicial lawsuit against Mrs. Bailey continued. In that
intervention is contract. The finding of a lawsuit, Mrs. Bailey filed a claim against the
contract between members of a voluntary City, in which she asked the judge to order
association does not automatically follow the City to pay Mr. Temple for her, should
from the existence of a written constitution she be found responsible for his injuries. This
and bylaws. Voluntary associations with is known as a third party claim, because the
constitutions and bylaws may be constituted City in this case was not a party to the lawsuit
by contract, but this is a determination that but was being drawn into it. The City
must be made on the basis of general contract objected to the third party claim and argued
principles, and objective intention to enter the release prevented Mrs. Bailey from trying
into legal relations is required. In this case, to get the City to pay. The judge agreed with
evidence of an objective intention to enter the City. But on appeal, the Court of Appeal
into legal relations is missing. As such, there agreed with Mrs. Bailey. The City then
is no contract, there is no jurisdiction, and appealed to the Supreme Court of Canada.
there is no genuine issue requiring a trial.” The Supreme Court explained that a release
The Court allowed the appeal and restored is a contract and should be interpreted
the order of the motion judge granting according to general principles of contract
summary judgment and dismissing the action. law as set out in the Court’s previous decision
of Sattva Capital Corp. v. Creston Moly Corp.
18. Corner Brook (City) v. Bailey These principles require courts to give“the

www.supremecourt.gov.pk 31/36
 Research Centre
Supreme Court of Pakistan

words used [in a contract] their ordinary and powers granted to the Court of Québec with
grammatical meaning, consistent with the respect to certain administrative decisions.
surrounding circumstances known to the The court system across Canada is essentially
parties at the time of formation of the the same. This is thanks to the Constitution,
contract”. The surrounding circumstances which divides provincial and federal
consist only of objective evidence of the facts government powers. Each province has a
at that time. It does not include the subjective three-level court system: provincial (or lower)
intentions of the parties, meaning what may courts, superior courts, and appeal courts.
have been going on in their minds at the time. The Constitution recognizes that provinces
The Supreme Court agreed with the City and are responsible for administering justice in
allowed the appeal. The Court concluded the their respective jurisdictions. This includes
release that Mrs. Bailey had signed prevented organizing and maintaining the civil and
her from making the third-party claim against criminal provincial courts, as well as civil
the City. procedure in those courts. Section 96 of the
Constitution mentions special types of courts
19. Reference Re Code of Civil
in Canada, known as the “superior courts”.
Procedure, s. 35
https://decisions.scc-csc.ca/scc-csc/scc-
These courts are the highest courts in a
csc/en/item/18933/index.do province and benefit from a special protected
Coram: status. In Quebec, the Superior Court and the
Wagner, Richard; Abella, Rosalie Silberman; Court of Appeal are the “superior courts”.
Moldaver, Michael J.; Karakatsanis, The federal government has a certain amount
Andromache; Côté, Suzanne; Rowe, of power over those courts. For instance, the
Malcolm; Martin, Sheilah federal government is responsible for
appointing superior court judges.
Monetary ceiling of less than $85,000 was
declared too high for the Court of Québec. The Supreme Court’s answers to the
questions:
The Supreme Court of Canada was asked to
decide if a change to the Code of Civil On the first question, the majority of the
Procedure in Quebec infringed on the judges concluded that article 35 was
constitutionally protected jurisdiction of unconstitutional. They noted that when the
superior courts. In 2016, the provincial Constitution was enacted in 1867, the
government changed article 35 of the Code monetary ceiling for lower courts was $100.
of Civil Procedure to raise the monetary Based on expert evidence, they agreed that
value of cases that could be heard by the this amount would be equivalent to between
Court of Québec from any amount under $63,698 and $66,008, Canada-wide, today.
$70,000 to any amount under $85,000. The However, they said that establishing this
Court was also asked if certain powers of the amount is only a first step in the analysis, and
Court of Québec, pertaining to appeals of that a determination on whether the new
administrative decisions, infringed on the ceiling amount was actually too high
powers of the Superior Court. depended on several other factors. The
majority concluded that the monetary
Superior Court judges in Quebec disagreed increase gave the Court of Québec the
with the increase. They said that giving the exclusive jurisdiction to handle too wide a
Court of Québec the exclusive power to hear range of legal matters. This, they said,
cases involving amounts of less than $85,000 prevented the Superior Court from exercising
violated section 96 of the Constitution. They its constitutionally protected right to decide
argued that the Superior Court should have on many legal matters at the heart of Quebec
retained the power to hear cases of $70,000 private law.
and above. They also contested the appeal

www.supremecourt.gov.pk 32/36
 Research Centre
Supreme Court of Pakistan

As such, the majority concluded the 21. Ethiopian Orthodox Tewahedo

monetary ceiling of less than $85,000 was Church of Canada St. Mary
too high for the Court of Québec. They also Cathedral v. Aga
said the provincial government failed to https://decisions.scc-csc.ca/scc-csc/scc-
prove that access to justice was facilitated by csc/en/item/18895/index.do
the increase in the monetary ceiling for cases
heard by the Court of Québec. Coram:
Wagner, Richard; Abella, Rosalie Silberman;
20. MediaQMI inc. v. Kamel Moldaver, Michael J.; Karakatsanis,
https://decisions.scc-csc.ca/scc-csc/scc- Andromache; Côté, Suzanne; Brown,
csc/en/item/18904/index.do
Russell; Rowe, Malcolm; Martin, Sheilah;
Kasirer, Nicholas
Coram:
Wagner, Richard; Abella, Rosalie Silberman; Voluntary association and making financial
Moldaver, Michael J.; Karakatsanis, contributions does not in itself form a
Andromache; Côté, Suzanne; Brown, legally binding relationship.
Russell; Rowe, Malcolm; Martin, Sheilah;
Kasirer, Nicholas Five Toronto-area churchgoers sued their
former church, the Ethiopian Orthodox
Public may continue to consult court Tewahedo Church of Canada St. Mary
records but will no longer have access to Cathedral, for having expelled them from the
exhibits that have been removed. congregation. This followed the Church
having appointed them as part of a committee
The main question for the Supreme Court
to investigate a movement within the
was whether the public can still have access
congregation that was said to go against its
to exhibits in court records once a lawsuit has
beliefs. When the committee concluded its
ended and the parties have removed their
investigation, it made recommendations to
exhibits from the court record.
the senior leadership of the Church. However,
In Quebec, the Code of Civil the Archbishop and other senior leaders of
Procedure gives any member of the public the Church did not follow the committee’s
the right to access court records. The Code of recommendations. The five churchgoers
Civil Procedure also contains a provision voiced their dissatisfaction, and in the end,
dealing with the removal of exhibits filed in the Church decided to expel them. They took
a court record. During proceedings, parties the Church to court over this and asked to be
may withdraw their exhibits if all of them reinstated.
consent. Once the proceedings have ended, Canada’s highest court said the Court of
parties have one year to retrieve their exhibits. Appeal made an error in finding that a
If they do not, the exhibits may be destroyed. contract was formed between the Church and
The majority of the judges of the Supreme the churchgoers. It noted that many informal
Court of Canada has upheld the finding of the agreements that people undertake do not
Court of Appeal. They said that once parties necessarily result in a contract. An essential
retrieve their exhibits at the end of a component for the formation of a contract
proceeding, members of the public may was missing in this case, which was the
continue to consult court records, but will no intention to create legal rights and
longer have access to exhibits that have been obligations towards one another.
removed. In this unanimous decision, the judges of the
Supreme Court noted that in the pursuit of
The Supreme Court also emphasized that the common goals, many voluntary associations
general rule is that court proceedings and have rules, and sometimes even a
records are open and public. constitution, bylaws and a governing body to
adopt and apply the rules. These are practical

www.supremecourt.gov.pk 33/36
 Research Centre
Supreme Court of Pakistan

measures to help in the pursuit of shared he wanted to oppose the bail application. The
objectives. But, they do not in and of magistrate postponed the case and ordered
themselves give rise to contractual that Mahlangu and Mtsweni remain detained
relationships between the individuals who
until their next appearance. Mahlangu later
join. To illustrate their point, the judges said:
“the members of the local minor hockey testified that the magistrate did not tell them
league, or a group formed to oppose they had a right to oppose the prosecutor’s
development of green spaces, or a bible study request for a postponement. They were later,
group, for example, do not enter into after eight months, released once the true
enforceable legal obligations just because perpetrators of the crimes were arrested and
they have joined a group with rules that the Director of Public Prosecutions declined
members are expected to follow.”
to prosecute them.
Joining a congregation or voluntary
association and making financial Following their release, Mahlangu and
contributions does not in itself form a legally Mtsweni started proceedings in the High
binding relationship. Court to hold the Minister of Police liable for
the violation of their constitutional rights, for
CONSTITUIONAL COURT OF SOUTH psychological trauma and loss of income
AFRICA arising from their wrongful arrest, torture and
22. J E Mahlangu v Minister of Police eight month detention. The High Court
https://collections.concourt.org.za/bitstream/hand accepted that the constitutional rights of
le/20.500.12144/36662/Judgment%20%20Mahlan
gu%20and%20Another%20%20v%20Minister% Mahlangu and Mtsweni were violated by the
20of%20Police%20CCT%2088- police and that their arrests were unlawful.
20.pdf?sequence=13&isAllowed=y The court did find, however, that the Minister
Coram: of Police was not liable for their eight month
Jafta J, Khampepe J, Madlanga J, Mathopo
AJ, Mhlantla J, Theron J, Tshiqi J and Victor detention. This was because their detention
AJ. ceased to be unlawful when the magistrate
ordered their continued detention at their first
Compensation for unlawful detention
court appearance the day after their arrest.
In 2005, a family was brutally murdered in
The High Court therefore said the Minister
their home in Mpumalanga. A few days later,
was not liable for their lost income and any
the police entered Mahlangu’s home without
psychological trauma they suffered after the
a warrant and arrested him for the crime. He
magistrate ordered their continued
was tortured until he made a false confession.
incarceration. The appeal to the Supreme
He also falsely implicated his neighbour,
Court of Appeal remained unsuccessful.
Mtsweni, who was arrested without a warrant
the same day. It later emerged that the police A unanimous Constitutional Court said the
had no evidence to implicate Mahlangu or High Court and Supreme Court of Appeal
Mtsweni in the crimes and did not explain incorrectly found that the Minister was not
their constitutional rights to them before their liable for the entire period of detention.
arrest. The following day, they were taken to According to the judgment, investigating
the magistrate’s court. Neither was officer knew there was no evidence aside
represented by a lawyer but both asked to be from the false confession to justify keeping
released on bail. However, the prosecutor, on Mahlangu and Mtsweni in detention. He had
the basis of false confession, asked the a duty to disclose to the prosecutor that he
magistrate to postpone the hearing because knew the confession was obtained through

www.supremecourt.gov.pk 34/36
 Research Centre
Supreme Court of Pakistan

torture and that Mahlangu and Mtsweni had The Court denied the standing of the non-
been unlawfully arrested. His decision to individual plaintiffs and rejected most of the
keep this information from the prosecutor remaining plaintiffs’ arguments but held that
was unlawful. The duty to disclose this the current version of the Act violates the
information existed for the entire period that fundamental rights of the individual
Mahlangu and Mtsweni were kept in plaintiffs residing in Germany. The
detention. His failure to inform the Constitutional Court’s central finding is that
prosecutor of the false confession while they the existing provisions are unconstitutional
were detained was the sole reason why they because they irreversibly offload major
continued to remain in jail. The fact they did emission reduction burdens onto periods
not apply for bail after their first appearance after 2030, thereby violating the plaintiffs’
did not change the fact there was never a fundamental rights in the future. It was held
lawful reason to detain them in the first place. that every amount of CO2 that is allowed
The Minister was therefore ordered to pay today narrows the remaining options for
Mahlangu and Mtsweni compensation for the reducing emissions in compliance with the
entire period of their eight month detention obligations to limit the increase in the global
and violation of their constitutional rights. average temperature to well below 2°C and
The Minister was also ordered to pay their preferably to 1.5°C above pre-industrial
legal costs. levels. Thus, the more permissible the Act is
today, the more it reduces the options for
FEDERAL CONSTITUTIONAL COURT future generations. The reduction of options
OF GERMANY in turn affects the exercise of every type of
23. In the proceedings on the freedom rights because virtually all aspects
constitutional complaints of of human life involve the emission of
individuals from Germany and greenhouse gases and are thus potentially
others threatened by far more drastic restrictions
https://www.bundesverfassungsgericht.de/Shared
Docs/Entscheidungen/EN/2021/03/rs20210324_1b after 2030. Therefore, the legislature should
vr265618en.html have taken precautionary steps to mitigate
Coram: these major burdens in order to safeguard the
President Harbarth, and Paulus, Baer, Britz, individual plaintiffs’ fundamental freedom
Ott, Christ, Radtke, and Härtel
rights. To that end, the existing statutory
Federal Climate Change Act is partly provisions on adjusting the reduction
incompatible with fundamental rights pathway for CO2 emissions from 2031
onwards were insufficient to ensure that the
The Federal Climate Change Act 2019 (“the
necessary transition to climate neutrality is
Act”) makes it obligatory to reduce
achieved in time. The Court also emphasizes
greenhouse gas emissions by at least 55% by
Germany’s international responsibility in the
2030 relative to 1990 levels and sets out the
global climate crisis and notes that a state
reduction pathways applicable during this
cannot evade its responsibility by referring to
period by means of sectoral annual emission
the greenhouse gas emissions of other states.
amounts. The plaintiffs asserted that the Act
The constitutional climate goal arising from
was too weak to effectively contain the
Article 20a is more closely defined in
consequences of the climate crisis today and
accordance with the Paris target as being to
in the future.
limit the increase in the global average

www.supremecourt.gov.pk 35/36
 Research Centre
Supreme Court of Pakistan

temperature to well below 2°C and impact on migrant women it was also capable
preferably to 1.5°C above pre-industrial of constituting discrimination on the grounds
levels. For this target to be reached, the of ethnic origin. The second woman
challenged the legality of the instruction
reductions still necessary after 2030 will
given to her by her employer, a company
have to be achieved with ever greater speed operating drugstores, to refrain from wearing,
and urgency. The legislature must enact in the workplace, conspicuous, large-sized
provisions by 31 December 2022 that specify political, philosophical, or religious signs.
in greater detail how the reduction targets for She claimed that the company’s internal rules
greenhouse gas emissions are to be adjusted violated her freedom of religion and that the
for periods after 2030. company’s policy did not enjoy
unconditional priority over the freedom of
religion and had to further be subject to a
EUROPEAN COURT OF JUSTICE
proportionality test.
24. IX v WABE eV The European Court in its ruling held that
C‑804/18 and C‑341/19 certain prohibitions in relation to the wearing
https://curia.europa.eu/juris/document/document. of religious symbols could be justified under
jsf?text=&docid=244180&pageIndex=0&doclang specific circumstances. “[I]ndirect
=en&mode=req&dir=&occ=first&part=1&cid=21
58975
discrimination on the grounds of religion or
belief resulting from an internal rule of an
Before:
undertaking prohibiting, at the workplace,
K. Lenaerts, President, R. Silva de Lapuerta,
the wearing of visible signs of political,
Vice-President, A. Prechal, M. Vilaras, E.
philosophical or religious beliefs with the
Regan, L. Bay Larsen, N. Piçarra and A.
aim of ensuring a policy of neutrality within
Kumin, Presidents of Chambers, T. von
that undertaking can be justified only if that
Danwitz, C. Toader, M. Safjan, F. Biltgen
prohibition covers all visible forms of
(Rapporteur), P.G. Xuereb, L.S. Rossi and I.
expression of political, philosophical or
Jarukaitis, Judges
religious beliefs.” The Court however did
Headscarves can be banned at work provide for a limit to such prohibitions by
The matter before the Court resulted from further holding that a “prohibition which is
referrals from the Labour Court of Hamburg limited to the wearing of conspicuous, large-
and the Federal Labour Court of Germany, sized signs of political, philosophical or
which had requested the European Court religious beliefs” would be liable to
consider whether the dismissal of two constitute direct discrimination on the
Muslim women from their employment over grounds of religion or belief and could not, in
their non-compliance with orders to refrain any event, be justified.
from wearing their hijab was compliant with
EU law on equal treatment in employment *****
and occupation. Contact Info:
The first woman was dismissed from her Email: [email protected]
employment at a childcare facility following Phone: +92 51 9201574
her refusal to comply with a rule prohibiting Research Centre
employees from wearing any visible political, Supreme Court of Pakistan
philosophical, or religious sign at the
Disclaimer--The legal points decided in the
workplace when they are in contact with the judgements other than that of the Supreme Court of
children or their parents. She challenged her Pakistan have been cited for benefit of the readers; it
dismissal on the grounds that the prohibition should not be considered an endorsement of the
directly targeted the wearing of the Islamic opinions by the Supreme Court of Pakistan. And,
headscarf and therefore constituted direct please read the original judgments before referring
them to for any purpose.
discrimination, and that given its greater

www.supremecourt.gov.pk 36/36