Volume - V, Issue - XIX

01 - 10 - 2024 to 15 - 10 - 2024
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 FORTNIGHTLY CASE LAW BULLETIN
(01-10-2024 to 15-10-2024)
A Summary of Latest Judgments Delivered by the Supreme Court of Pakistan & Lahore High
Court, Legislation/Amendment in Legislation and important Articles
Prepared & Published by the Research Centre Lahore High Court

JUDGMENTS OF INTEREST

Sr. No. Court Subject Area of Law Page

Procedure for appointment of election tribunal
and the qualification; Condition precedent before
1. 1
appointing a sitting judge of High Court in the
Election Tribunal
Constitutional status of the President; Questions to
be referred to Supreme Court by the President;
Execution of the order passed by the Supreme
Court under Article 184(3) of the Constitution;
Scope of “review” in light of Article 188 of the
Constitution; Powers of a party head if he elects to
proceed against such a member; Procedure to be
2. adopted after declaration of defection; Counting Constitutional 2
vote of a member; Jurisdictions stipulated in Article Law
63 of the Constitution; Settled rules of
interpretation; Prime Minister advice for dissolution
of the National Assembly after submission of
Supreme resolution of no-confidence; Removal of ambiguity
Court of if any, in the law made by Parliament; History of
Pakistan proclamations in Pakistan
‫االسمیکروینشںیماملسمنیکرعتفی؛متخوبنتےکوہفمم؛االسیموہمجرہیاپاتسکنےکٓانیئ‬
3. ‫ےک تحت ذمیبہ‬20 ‫ںیم رقٓان و تنس یک روینش ںیم اقونن اسزی ےک اوصل ؛ ٓانیئ یک دہعف‬ 6
‫ٓازادیےکقحیکدحود؛ٓانیئِاپاتسکنںیمملسماورریغملسمیکرعتفی‬
Discouragement of frivolous litigation depriving
4. 8
sisters from inheritance;
Safeguards implemented to prevent the
exploitation of litigation that delay or deny the
5. 9
right of inheritance to legal heirs particularly the Civil Law
vulnerable members.
Impact of undated, without consideration Razi
Nama (agreement) by a woman, surrendering the
6. 10
right to inheritance; Adequate address by the High
Court to the core issue of inheritance denial.
Taxing event for imposing “Electricity Duty” u/s 4 of
7. the Punjab Finance Ordinance 2001 after Tax Law 11
notification issued on 25/08/2001 by the Governor
 of Punjab; Definition of “licensee”

Claim of pension is a recurring cause of action and

8. delay does not vitiate a claim; Temporary service Service Law 12
includes contractual service
Applicability of rule of lis pendence during the
9. period of dismissal and restoration of suit; The 13
effect of cancellation of mutations without notice
Legal requirements for the holder of a general
power of attorney, who intends to transfer the
10. principal’s property; The legal requirements for Civil Law 14
signing a document consisting of more than one
page.
Presumption attached to official record;
11. 15
Authority of a relationship to challenge paternity
Discrimination between employees of same
institution in violation of Article 25 of the
12. Service Law 16
Constitution of Pakistan; Award of punishment in
commensuration with magnitude of guilt
Specific performance against owner who is non-
Supreme signatory to an agreement; Effect of contributory
13. Court of 17
negligence, of a party and the court, on limitation
Pakistan period
14. Connotation of ‘offer of no contest’ 18
Effect of subsequent change in the status of a
prohibited area upon the previously acquired Civil Law
rights of allottee under the Colonization of
15. 19
Government Lands (Punjab) Act, 1912; Effect of
denial to grant of proprietary rights to an allottee
under a settlement scheme
Exclusion of time consumed by tribunal to send a
16. copy of judgment to the department from 20
computation of limitation period
Effect of belated dismissal from service, obtained
without any illegal or fake means, without
affording opportunity for personal hearing and
17. Service Law 21
regular inquiry; a standardized assessment
procedure and stage for age calculation of in
recruitment process;
Tenant cannot claim right of occupancy due to
18. pending litigation; Challenge to ownership is not a 23
simple ground to dismiss eviction claim of landlord
Civil Law
Whether executing court or the High Court can
19. scrutinize, question, or revisit the merits of original 23
case
Parameters for accepting a dying declaration as
valid evidence; Serious infirmity that destroys the
20. Lahore High credibility of the eye witness’s evidence; The Criminal Law 24
Court principle regarding proof of motive in a criminal
case
 Effect of delayed FIR and Postmortem on
prosecution case; Effect of recovery of weapons if
not properly linked to the crime; Effect of failure to
21. 25
substantiate the motive; Double presumption of
innocence when the accused acquitted by the trial Criminal Law
court
Effect of delayed FIR; Unnatural conduct of the
prosecution witnesses; Legal consequence of non-
22. 27
signing of Inquest Report by an eye witnesses;
Conclusions derived from delayed postmortem
Qualification of profit on debt from surplus funds
deposited in banks as income from business under
sub-section (2) of Section 18 of the Income Tax
23. 28
Ordinance, 2001; Interpretation of sub-section (5)
of Section 25 of Income Tax Ordinance regarding
Tax Law
pre-commencement expenditure
Duties of the Judicial or Quasi-judicial forums;
Questions to be answered in reference to
24. 29
applications u/s 133(1) of the Income Tax
Ordinance, 2001
Applicability of annual increase of 10% in
maintenance allowance, as mandated by Section
17-A(3) of the Family Courts Act, 1964, on a
compound or non-compound basis; Applicability of
25. Lahore High Section 17-A(3) of the Family Courts Act on Family Law 30
Court pending cases; Liberal interpretation of Section 17-
A(3) in favour of the beneficiaries (wife and
children)
Conditions precedent for a claim of malicious
prosecution; Definition of malicious prosecution;
26. Reasonable and probable cause in a claim for 31
malicious prosecution; Malice and its proof; Status
of ‘Charagah’ land
Civil Law
Cross-examination upon the witnesses of the
plaintiff after consolidation of suits; Legal effect of
27. consolidation of suits with similar parties and 33
subject matter; Legal consequences of passing an
order without hearing the other party
Authority of Drug Inspector to inspect business
premises related to cosmetics or seize any products
under the Pakistan General Cosmetics Act 2023,
28. Drug Laws 35
Drugs Act and the DRAP Act; Establishment of
legal partnership with reference to memorandum
of declaration by parties
The writ jurisdiction of Hon’ble High Court to
question the authority of any person holding some
Constitutional
29. office; Territorial jurisdiction of the Hon’ble High 39
Law
Court for the writ of Quo Warranto; Performance
of functions beyond the place of office.
Effect of non-registration of lease upon its
30. perpetuity or otherwise; Regulation of lease of an Civil Law 40
immovable property.
 Condonation of time limit under section 74 of the
Sales Act, 1990; Applicability of condonation of
time; Applicability of section 74 ibid Act upon
31. 41
action under section 11 of the ibid Act; The checks
upon the power of condonation of time limit;
Reversal of statutory limitation.
Repeal of pre-independence era Arbitration law;
Purpose of The Arbitration Act, 1940; Role of
Arbitration
32. Arbitration; Decision by the court upon arbitration 43
Act
matters; Applicability of CPC upon proceedings
under Arbitration Act.
Object and definition of Family Court Act, 1964;
Bar to fresh suit; Interpretation of the term ‘person’
used in section 12(2) of the Code of Civil Procedure.
33. Fraud amounts to concealments of facts; Family Law 44
Maintainability of application u/s 12(2) of CPC
before a Family Court; Framing of issues in an
application under section 12(2) of CPC.
Competent forum to decide question of title after
amendment in Section 141 of the Punjab Land
34. Revenue Act, 1967; Competency of Revenue Revenue Law 47
hierarchy to adjudicate upon partition of
agricultural land during pendency of Civil court.
Prerequisite for taking cognizance; Mutual consent
of parties and conferment of jurisdiction upon the
court; Differences between exclusive and non-
35. Lahore High exclusive jurisdiction clauses in contracts; Contract Act 48
Court Significance of ‘boiler plate clause’ in
agreements/contracts
Citizenship of minors when one of the parents is Pakistan
citizen of Pakistan; Entitlement to issue Pakistan Citizen Act,
36. Origin Card to minors when parents were refused 1951 50
due to security clearance concerns; Guidelines to
exercise jurisdiction
Competency to issue injunctive orders by Gas Utility Gas (Theft
37. Court in view of bar contained under section 29 of Control and 51
the Gas (Theft Control and Recovery) Act, 2016; Recovery) Act
Tools to unearth real cause of death; Sanctity of
38. grave in not a valid ground to deny the request of Criminal Law 53
disinterment
Proceeds of Insurance Policy are to be treated as
39. ‘’Tarka’’; the nominee cannot exclude legal heirs of Civil Law 54
the deceased.; Status of the nominee
Whether a tenant, who fails to deposit the rent, in
accordance with the terms and conditions of the
40. Civil Law 55
tenancy agreement, is entitled to the acceptance of
PLA in order to establish that he is not a defaulter?
Amended and un-amended subsection (4) of
Section 153 of the Income Tax Ordinance, 2001;
Introduction of amendment; Connotation and
41. Tax Law 56
restriction upon retrospective effect; Effect of laws
on substantive rights and obligations; Effect of
amendment vide Finance Act, 2024
 Maintainability of writ jurisdiction against interim
order of Appellate Tribunal hearing appeal u/s 67
Lahore High of the Punjab Sales Tax on Services Act, 2012;
42. 58
Court Deposit of one third of disputed amount u/s 68 of
the Punjab Sales Tax on Services Act, 2012 by the
Appellate Tribunal

LATEST LEGISLATION/AMENDMENTS

Notification No. 25/Legis./II.D-4(V); Amendment in the High Court Rules and

1. 60
Orders, Volume-IV.

SELECTED ARTICLES

Trans Parenthood in The Uk: The “Unanswered Questions” of the Mcconnell

1. 60
Litigation by Peter Dunne and Alan Brown
From Discretion to Expert Judgement: Recasting Sedimented Concepts in
2. 60
Administrative Law by Samuel Ruiz-Tagle
Artificial Intelligence, The Rule of Law and Public Administration: The Case of
3. 61
Taxation by Stephen Daly
4. Legal Persons and The Right to Privacy by Eric Descheemaeker 61
Human Resources’ Role in Data Privacy and Cyber security, Part II: Assessing Five
5. Key Areas of Risk by: Erin Schachter, Mercedes M. de la Rosa of Ogletree, Deakins, 61
Nash, Smoak & Stewart, P.C.
 1

1. Supreme Court of Pakistan

Election Commission of Pakistan through Chief Election Commissioner,
Islamabad. v. Salman Akram Raja & others and other Constitutional
Petitions.
Civil Appeal Nos. 842 and 843 of 2024
C.M. Application Nos.5387 & 5388/24
Case Under Objection No. 72 of 2024 in Constitution Petition NIL/2024
Civil Review Petition No. 318 of 2024 in Civil Appeal No.842 of 2024.
Mr. Justice Qazi Faez Isa, CJ, Justice Amin-ud-Din Khan, Justice Jamal
Khan Mandokhail, Justice Naeem Akhtar Afghan, Justice Aqeel Ahmed
Abbasi
https://www.supremecourt.gov.pk/downloads_judgements/c.a._842_2024.pdf

Facts: The appeals arose from a Lahore High Court judgment questioning the authority
of the Election Commission of Pakistan (ECP) to appoint Election Tribunals,
arguing that the Chief Justice of the Lahore High Court should have primacy in
the consultation process. The ECP contended that its appointment powers were
clearly defined in the Constitution and the Elections Act, 2017. Disputes over the
consultation led to present appeals.

Issues: i) How a matter between constitutional body and a constitutional officer holder
could be amicably resolved?
Additional Note
ii) What is the procedure for appointment of election tribunal and the
qualification criteria?
iii) What is condition precedent before appointing a sitting judge of High Court in
the Election Tribunal?

Analysis: i) The ECP is a constitutional body and the Hon’ble Chief Justice is a
constitutional office holder. Both are deserving of the highest respect. Therefore,
we had expressed our confidence that if there had been a face to face meeting and
a meaningful consultation ensued the matter could have been amicably resolved.
Additional Note
ii) To regulate the power and function of the Commission with regard to
appointment of Tribunal, procedure has been provided by section 140 of the
Elections Act, 2017 (‘the Act’), which is reproduced herein below:
140. Appointment of Election Tribunals. (1) For the trial of election petitions
under this Act, the Commission shall appoint as many Election Tribunals as may
be necessary for swift disposal of election petitions.
(2) An Election Tribunal shall comprise----
(a) in the case of an election to an Assembly or the Senate,
a person who is a Judge of a High Court; and
(b) in the case of an election to a local government, a
District and Sessions Judge or an Additional District and
Sessions Judge.

FORTNIGHTLY CASE LAW BULLETIN

 2
(3) The Commission shall appoint a sitting Judge as Election Tribunal in
consultation with the Chief Justice of the High Court concerned.
iii) In case of appointing a sitting Judge of a High Court, consultation with the
Chief Justice of the High Court concerned by the Commission is a condition
precedent. The purpose of consultation is because of the realization that the Chief
Justice is not only the administrative head of the High Court but also is in best
position to know and assess the suitability and availability of the Judges. As
several Judges are performing their functions in different Benches, therefore,
while nominating Judges, it will be convenient for the Chief Justice to consider
availability of Judges at relevant Benches. In this way, the determination of
territorial jurisdiction can also be resolved suitably.

Conclusion: i) See above analysis No.(i).

Additional Note
ii) To regulate the power and function of the Commission with regard to
appointment of Tribunal, procedure has been provided by section 140 of the
Elections Act, 2017.
iii) In case of appointing a sitting Judge of a High Court, consultation with the
Chief Justice of the High Court concerned by the Commission is a condition
precedent.

2. Supreme Court of Pakistan

Supreme Court Bar Association of Pakistan v. Federation of Pakistan,
Islamabad and others.
Civil Review Petition No. 197/2022
in Constitution Petition No. 2 of 2022
Mr. Justice Qazi Faez Isa, Mr. Justice Amin-ud-Din Khan, Mr. Justice Jamal
Khan Mandokhail, Mr. Justice Naem Akhtar Afghan, Mr. Justice Mazhar
Alam Khan Miankhel
https://www.supremecourt.gov.pk/downloads_judgements/c.r.p_197_2022_10102
024.pdf

Facts: Under Article 184 (3) of the Constitution of Islamic Republic of Pakistan,
Supreme Court Bar Association (‘the Bar Association’) filed a Constitution
Petition No.2 for ensuring that the members of the National Assembly (‘MNAs’)
were not prevented from coming to the National Assembly to vote on vote of “no
confidence” which had been presented against the then Prime Minister. It was
filed on 17.03.2022 and came up hearing before a two-member Bench of the
Supreme Court on 19.03.2022 which passed an Order. On the same day, statement
of the then Attorney-General was also recorded. Reference was not filed and the
Bench issued direction for its fixation with the Constitution Petition No.9.
Reference was filed 21.03.2022 and it was numbered. In the reference, President
sought the opinion of the Supreme Court on certain questions. After vote of no
confidence, PTI moved Constitution Petition No.2. The Registrar ordered for its
fixation with earlier Constitution Petition and the Reference. Thereafter all the
matters were heard and “short order” was passed on 17.05.2022 whose detailed

FORTNIGHTLY CASE LAW BULLETIN

 3
order was issued on 14.10.2022. Hence, the instant review petition.

Issues: i) Which questions may be referred to Supreme Court by the President of Pakistan
under Article 186 of the Constitution?
ii) Whether the President can act on his own volition?
iii) What is the constitutional status of the President?
iv) What is the constitutional status of the opinion given by Supreme Court in
response to Presidential reference?
v) Whether the order passed by the Supreme Court under Article 184(3) of the
Constitution is executable?
vi) What is the scope of “review” in light of Article 188 of the Constitution?
vii) In what circumstances a matter can be reviewed?
viii) Who is invested with the power to proceed against a member of a
Parliamentary Party who votes contrary to direction or abstain from voting?
ix) What a party head to do if he elects to proceed against such a member?
x) What procedure will be adopted after declaration of defection?
xi) Can a vote of a member be counted who does not vote or avoids from voting
contrary to Parliamentary Party’s direction?
xii) What jurisdictions are stipulated in Article 63 of the Constitution?
xiii) Whether a judge or Court can take away the jurisdiction given by the law?
xiv) What are the settled rules of interpretation?
xv) What will the legal impact if the Court itself confer jurisdiction upon itself?
xvi) Whether the Prime Minister can advise dissolution of the National Assembly
after submission of resolution of no-confidence?
xvii) Which organ of the state can remove the ambiguity if any, in the law made
by Parliament?
xviii) What is the proclamation of history of Pakistan?

Analysis: i) Article 186 of the Constitution provides that the President of Pakistan may refer
a ‘question of law’ to the Supreme Court for ‘its opinion under its ‘advisory
jurisdiction’
ii) Unless any provision of the Constitution specifically empowers the President
to act on his own volition he must act on advice as provided by Article 48(1) of
the Constitution, which states that, ‘In the exercise of his functions, the President
shall act on and in accordance with the advice of the Cabinet or the Prime
Minister’.
iii) The Constitution stipulates that the President is the, ‘Head of State and shall
represent the unity of the Republic’ (clause (1) of Article 48).
iv) Article 186 of the Constitution enables the President to seek an ‘opinion of the
Supreme Court on any question of law which he considers of public importance’,
v) An order passed by the Supreme Court (on a petition filed under Article 184(3)
of the Constitution) is binding (Article 189 of the Constitution), and it is also
executable.
vi) Article 188 of the Constitution creates a constitutional right to seek review of
any judgment or order of the Supreme Court.

FORTNIGHTLY CASE LAW BULLETIN

 4
vii) The matter of review is further attended to in the Supreme Court Rules, 1980
in its Order XXVI. Rule 1 of Order XXVI states that a review may be filed ‘on
grounds similar to those mentioned in Order XLVII, rule I of the Code’, that is,
the Code of Civil Procedure, 1908, which stipulates that a review may be filed if
there is ‘some mistake or error apparent on the face of the record, or for any
other sufficient reason’.
viii) The abovementioned clauses of Article 63A are self-executory and stipulates
that if a member of a Parliamentary Party votes contrary to its direction or
abstains from voting then its Party Head may elect to proceed against such
member.
ix) If the Party Head elects to do so the first requirement is to provide the member
‘with an opportunity to show cause as to why such declaration may not be made
against him’, that is, a declaration that the member had defected. If the member
offers a valid justification, or even in its absence, the Party Head may not want to
proceed against the member. It is within the exclusive jurisdiction of the Party
Head to declare in writing if a member has defected.
x) The declaration of defection if issued by the Party Head is then sent to the
Presiding Officer (the Speaker of the National Assembly, the Chairman of the
Senate or the Speaker of the Provincial Assembly, as the case may be), with a
copy thereof to the Chief Election Commissioner. The Presiding Officer is also
required to send the said declaration to the Chief Election Commissioner, ‘who
shall lay the declaration before the Election Commission for its decision thereon
confirming the declaration or otherwise within thirty days of its receipt by the
Chief Election Commissioner.’
xi) Article 63A does not state that the votes of any member should not be counted
nor that a member who does not vote or abstains from voting contrary to the
Parliamentary Party’s direction would automatically be deseated.
xii) Three separate jurisdictions unequivocally stipulated in Article 63A, which
were:(a) the jurisdiction of the Party Head who may or may not issue the
declaration of defection, (b) the jurisdiction of the Election Commission to decide
the matter of defection and (c) the appellate jurisdiction of the Supreme Court.
xiii) Neither a court nor a judge can take away jurisdiction given by the law.
xiv)—a) A five-member Bench had reiterated these rules in the case of
Muhammad Ismail v State (PLD 1969 Supreme Court 241), and held that this
Court can only interpret, and not legislate….
b) Another five-member Bench of this Court in the case of Baz Muhammad
Kakar v Federation of Pakistan (PLD 2012 Supreme Court 923) had emphasized
the importance of the words which were used and that words must be given their
plain meaning….
c) Another five-member Bench of this Court in the case of Gul Taiz Khan
Marwat v Registrar, Peshawar High Court (PLD 2021 Supreme Court 391),
enumerated how the Constitution is to be interpreted, which was as under:
‘‘… a settled rule of interpretation of constitutional provisions that the doctrine of
casus omissus does not apply to the same and nothing can be “read into” the

FORTNIGHTLY CASE LAW BULLETIN

 5
Constitution.’ (para.19, p. 407D)
‘… something which is manifestly absent is tantamount to reading something into
the Constitution which we are not willing to do. In our opinion, strict and faithful
adherence to the words of the Constitution, specially so where the words are
simple, clear and unambiguous is the rule. Any effort to supply perceived
omissions in the Constitution being subjective can have disastrous consequences.’
(para.19, p.407E’’
xv) If a Court confers jurisdiction upon itself it vitiates the Fundamental Right of
fair trial and due process.
xvi) The Constitution clearly mandates that once a resolution of no-confidence
against a Prime Minister is submitted the Prime Minister can no longer advise
dissolution of the National Assembly (Explanation to clause (1) of Article 58).
xvii) Parliament makes the law which the courts apply, and if there is any
ambiguity in the law a judge interprets it, but this too must be done within the
parameters of the law and as per the well settled rules of interpretation.
xviii) It proclaims that in the history of Pakistan and its Parliament only once did
a parliamentarian come close to becoming a ‘conscientious objector who took the
path of defection and deseating under Article 63A.’ The expression of such
contempt for politicians and parliamentarians is regrettable. Let us not forget that
Pakistan was achieved by politicians who had gathered under the banner of the
All India Muslim League and its Quaid (leader), M. A. Jinnah, who strictly
followed the constitutional path.

Conclusion: i) According to Article 186 of the Constitution, the President of Pakistan can refer
only a ‘question of law’ to the Supreme Court for ‘its opinion under its ‘advisory
jurisdiction’
ii)See above analysis No.ii
iii) Article 48 (1) of the Constitution stipulates that the President is the head of
State and he shall represent the unity of the Republic.
iv) See above analysis No.iv
v) An order passed by the Supreme Court under Article 184(3) of the Constitution
is binding in light of Article 189 of the Constitution and it is also executable.
vi) See above analysis No.vi
vii) The concept of constitutional review is also attended to in the Supreme Court
Rules, 1980 in its Order XXVI. Rule 1 of Order XXVI, according to which a
review may be filed on grounds similar to those mentioned in Order XLVII, rule I
of the Code.
viii) See above analysis No.viii
ix) See above analysis No.ix.
x) See above analysis No.x
xi) Article 63A does not exclude the vote of a violator member from counting nor
he would automatically be deseated.
xii) Article 63A of the Constitution is containing three types of jurisdiction i.e. (a)
the jurisdiction of the Party Head (b) the jurisdiction of the Election Commission

FORTNIGHTLY CASE LAW BULLETIN

 ‫‪6‬‬
‫‪and (c) the appellate jurisdiction of the Supreme Court‬‬
‫‪xiii) Statutory jurisdiction cannot be taken away.‬‬
‫‪xiv) See above analysis No xiv‬‬
‫‪xv) Self assumption of jurisdiction is violative of the principles of the‬‬
‫‪Fundamental Right of fair trial and due process‬‬
‫‪xvi) In explanation to Explanation to clause (1) of Article 58) of the Constitution,‬‬
‫‪after moving of resolution of no-confidence against a Prime Minister, he cannot‬‬
‫‪advise dissolution of the National Assembly.‬‬
‫‪xvii) In case of ambiguity in the law, a judge is invested with constitutional and‬‬
‫‪legal power to interpret it within the parameters of the law and settled rules of‬‬
‫‪interpretation.‬‬
‫‪xviii) See above analysis No. xviii.‬‬

‫‪3.‬‬ ‫‪Supreme Court of Pakistan‬‬

‫‪Federation of Pakistan and Prosecutor-General, Punjab. v. Mubarak Ahmed‬‬
‫‪Sani and another.‬‬
‫‪Criminal Misc. Application No. 1113 of 2024 [For correction in‬‬
‫‪judgment dated 24.07.2024], In Criminal Review Petition No. 2 of 2024‬‬
‫‪Mr. Justice Qazi Faez Isa, Mr. Justice Amin-ud-Din Khan, Mr. Justice‬‬
‫‪Naeem Akhtar Afghan‬‬
‫‪https://www.supremecourt.gov.pk/downloads_judgements/crl.m.a._1113_2024.pd‬‬
‫‪f‬‬

‫مختصر واقعات‪:‬‬
‫ضابطہ فوجداری ‪1898‬ء کی دفعہ ‪-561‬اے معہ سپریم کورٹ رولز ‪1980‬ء کے‬ ‫ٔ‬ ‫مجموعہ‬
‫ٔ‬ ‫یہ درخواست‬
‫ضابطہ دیوانی ‪1908‬ء کی دفعات ‪ 152‬و ‪ 153‬کے تحت دی گئی ہے۔ جو کہ فیصلہ‬
‫ٔ‬ ‫مجموعہ‬
‫ٔ‬ ‫آرڈر‪ XXXIII‬کے رول ‪6‬و‬
‫مورخہ ‪24‬جوالئی ‪2024‬ء کی تصحیح کے لئے ہے۔ اس فیصلے میں اسالمی احکامات اور آئین کی روشنی میں یہ قرار‬
‫دیا گیا کہ ختم نبوت کے عقیدے پر ایمان رکھنا ہر مسلمان کی بنیادی شرط ہے‪ ،‬اور جو شخص ختم نبوت کا انکار کرتا‬
‫ہے‪ ،‬وہ اسالمی تعریف کے مطابق مسلمان نہیں ہو سکتا۔ عدالت نے مذہبی آزادی کے حقوق کو آئینی حدود میں رہتے‬
‫ہوئے استعمال کرنے پر زور دیا اور کہا کہ کوئی بھی شخص مذہب کے نام پر کسی اور مذہب یا اس کی مقدس ہستیوں‬
‫کی تضحیک یا توہین نہیں کر سکتا۔سپریم کورٹ آف پاکستان نے ‪1974‬ء میں ہونے والی آئینی ترمیم کے حوالے سے‬
‫احمدیوں کی قانونی حیثیت اور مذہبی آزادی کے بارے میں اہم فیصلہ دیا۔ اس میں واضح کیا گیا کہ آئین پاکستان کی‬
‫دفعات ‪298-B‬اور ‪298-C‬کے تحت احمدیوں کو اپنے آپ کو مسلمان قرار دینے یا اسالمی شعائر استعمال کرنے کی‬
‫اجازت نہیں ہے۔اس فیصلے نے آئین کی مختلف شقوں کی تشریح کرتے ہوئے واضح کیا کہ احمدیوں کو اپنے عقائد کی‬
‫تشہیر میں آئینی حدود کا احترام کرنا ہو گا ۔‬
‫تنقیحات‪:‬‬
‫اسالم کی روشنی میں مسلمان کی تعریف‬ ‫‪)i‬‬
‫ختم نبوت کے مفہوم اور اس پر علماء کے اجماع کے حوالے سے کیا دالئل پیش کئے گئے ہیں۔ ؟‬ ‫‪)ii‬‬
‫اسالمی جمہوریہ پاکستان کے آئین میں اسالمی قوانین اور قرآن و سنت کی روشنی میں قانون سازی کے‬ ‫‪)iii‬‬
‫اصول کیا ہیں؟‬
‫آئین کی دفعہ ‪20‬کے تحت مذہبی آزادی کا حق کس حد تک محدود ہے؟‬ ‫‪)iv‬‬
‫کیا آئین پاکستان کی دفعات ‪298-B‬اور ‪298-C‬اسالمی اصولوں اور شریعت کی روشنی میں جائز ہیں؟ اور‬ ‫‪)v‬‬
‫ان دفعات سے احمدیوں اور قادیانیوں کو کیسے محدود کیا گیا ہے؟‬
‫‪1974‬ء میں قومی اسمبلی کی کمیٹی نے احمدیوں کے بارے میں کیا فیصلہ کیا تھا؟‬ ‫‪)vi‬‬

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 ‫‪7‬‬

‫آ ِ‬
‫ئین پاکستان میں مسلم اور غیر مسلم کی کیا تعریف بیان کی گئی ہے؟‬ ‫‪)vii‬‬
‫تجزیہ‪:‬‬
‫تعالی کی آخری نازل کی‬
‫ٰ‬ ‫اسالم کا ایک بنیادی اصول ہے کہ مسلمان وہی ہو سکتا ہے جو قرآن مجید کو ہللا‬ ‫‪)i‬‬
‫سلسلہ‬
‫ٔ‬ ‫تعالی کا آخری رسول اور نبی مانتا ہو اور آپﷺ کے بعد‬ ‫ٰ‬ ‫ہوئی کتاب اور حضرت محمد ﷺ کو ہللا‬
‫وحی کے انقطاع پر ایمان رکھتا ہو۔‬
‫ٓ‬
‫ت قرانی‬ ‫ٰ‬ ‫ٓ‬
‫امت کا اس پر اجماع کلی قطعی ہے کہ ’’خاتم النبیین‘‘ کے معنی ’’اخر النبیین‘‘ ہے اور یہ کلما ِ‬ ‫‪)ii‬‬
‫مو ّول ہیں‪ ،‬لہٰ ذا لفظ ’’خاتم ‘‘پر لفظی ابحاث‬
‫ٔ‬ ‫غیر‬ ‫ہیں‪،‬‬ ‫بھی‬ ‫الداللت‬ ‫قطعی‬ ‫ساتھ‬ ‫ساتھ‬ ‫کے‬ ‫ہونے‬ ‫الثبوت‬ ‫قطعی‬
‫غذالی نے امت مسلمہ لے اس اجماعی عقیدے کی‬ ‫ؒ‬ ‫قطعی غیر متعلقہ ‪ ،‬بے محل اور ناقاب ِل توجہ ہیں۔ امام‬
‫تصریح کرتے ہوئے کہ حضرت محمد ﷺ پر نبوت کے ختم ہونے پر ایمان کے بغیر کوئی شخص مسلمان‬
‫نہیں ہوتا‪ ،‬فرمایا‪:‬‬

‫ترجمہ‪ :‬اس لفظ (خاتم النبیین) سے اور اس کے حاالت کے قرآن سے امت نے اجماعی طور پر یہ سمجھا‬
‫ہے کہ آپ نے اپنے بعد کسی نبی کے اور کسی رسول کے کبھی نہ آنے کی بات سمجھائی ہے‪ ،‬اور یہ کہ‬
‫اس کی اور کوئی تاویل نہیں ہے‪ ،‬نہ ہی اس کی تخصیص کی گئی ہے؛ اس لئے اس کا انکار کرنے واال‬
‫امت کے اجماع کا منکر ہے۔‬
‫جمہوریہ پاکستان‘ رکھا ہے اور تصریح کی ہے کہ پاکستان کا ریاستی مذہب‬ ‫ٔ‬ ‫آئین نے ملک کا نام ’اسالمی‬ ‫‪)iii‬‬
‫اسالم ہے۔ آئین نے یہ اعالن بھی کیا ہے کہ پاکستان میں رائج تمام قوانین کو قران و سنت میں مذکور‬
‫ٓ‬
‫اسالمی احکام سے ہم آہنگ بنایا جائے گا اور یہ کہ کوئی ایسا قانون نہیں بنایا جائےگا جو ان احکام سے‬
‫متصادم ہو۔ متعدد قوانین میں یہ تصریح بھی کی گئی ہے کہ ان قوانین کی تعبیر و تشریح قرآن و سنت میں‬
‫قانون نفا ِذ شریعت ‪1991‬ء میں تمام قوانین کے لئے یہ عمومی‬‫ِ‬ ‫مذکور اسالمی احکام کے مطابق ہوگی‪ ،‬اور‬
‫ق کار) ایکٹ ‪ 2023‬ء کی‬ ‫ِ‬ ‫طری‬ ‫اور‬ ‫(عمل‬ ‫کورٹ‬ ‫سپریم‬ ‫میں‬ ‫قریب‬ ‫اصول طے کیاگیا ہے۔ چنانچہ ماضی‬
‫آئین کے ساتھ مطابقت کے متعلق فل کورٹ نے فیصلہ کیا‪ ،‬تو اس میں اس اصول کی تصریح کی گئی کہ‬
‫جہاں کسی قانون کی دو تعبیرات ممکن ہوں‪ ،‬تو عدالت اس تعبیر کو اختیار کرے گی جو قرآن و سنت میں‬
‫مذکور اسالمی احکام اور آئین میں مذکور پالیسی کے اصولوں سے ہم آہنگ ہو۔‬
‫مجموعہ‬
‫ٔ‬ ‫آئین کی دفعہ ‪20‬میں مذہبی آزادی کے حق کو قانون‪ ،‬اخالق اور امن عامہ کے تابع کیا گیا ہے اور‬ ‫‪)iv‬‬
‫دفعہ‬ ‫کی‬ ‫پاکستان‬ ‫تعزیرات‬
‫‪-295‬اے نے مذہبی جذبات مجروح کرنے اور مقدسات کی توہین کو قاب ِل سزا جرم قرار دیا ہے۔ چنانچہ‬
‫زادی رائے کے نام پر کسی کو یہ حق نہیں ہے کہ وہ کسی اور کی تضحیت کرے یا اس کے مذہبی جذبات‬ ‫ِ‬ ‫آ‬
‫ق انسانی کا بین االقوامی قانون بھی اس کی ممانعت کرتا ہے اور اقوام متحدہ کے‬ ‫کو مجروح کرے۔ حقو ِ‬
‫سیاسی و شہری حقوق کے بین االقوامی میثاق ‪1966‬ء میں اس کی تصریح کی گئی ہے۔ اسی طرح کسی کو‬
‫یہ حق نہیں ہے کہ وہ اپنے آپ کو کسی ایسے مذہب کا پیروکار ظاہر کرے جس کے بنیادی عقیدے سے ہی‬
‫وہ انکاری ہو۔ لہٰ ذا قادیانیوں کا اپنے آپ کو ’’مسلمان‘‘ یا ’’احمدی مسلمان‘‘ کہالنا درست نہیں ہے۔‬
‫وفاقی شرعی عدالت نے مقدمہ بعنوان ’مجیب الرحمان بنام حکومت پاکستان‘‘ میں تفصیلی بحث کے بعد یہ‬ ‫‪)v‬‬
‫ت پاکستان کی دفعات ‪298-B‬اور ‪298-C‬قرآن و سنت میں مذکور اسالمی‬ ‫مجموعہ تعزیرا ِ‬
‫ٔ‬ ‫فیصلہ دیا کہ‬
‫احکام سے متصادم نہیں ہیں؛ اور سپریم کورٹ نے مقدمہ بعنوان ’ظہیر الدین بنام ریاست‘ کے فیصلے میں‬
‫قرار دیا کہ مذکورہ دفعات اور شقوں میں کوئی بھی آئین میں مذکور بنیادی حقوق سے متصادم نہیں ہے۔‬
‫سپریم کورٹ نے یہ بھی واضح کیا کہ مذکورہ دفعات میں احمدیوں ‪/‬قادیانیوں کو جن اصطالحات اور‬
‫دین اسالم میں مخصوص مفہوم ہے اور جو لوگ مسلمان نہیں‬ ‫تراکیب کے استعمال سے روکا گیا ہے‪ ،‬ان کا ِ‬
‫ہیں وہ اپنے مذہبی امور میں ان کے استعمال سے مسلمانوں کو دھوکے میں ڈال سکتے ہیں جس کی اجازت‬
‫نہیں دی جاسکتی۔‬
‫جب یہ مسئلہ کھڑا ہوا تو پارلیمان میں تفصیلی مباحثہ ہوا اور ’قادیانی گروپ اور الہوری گروپ جو خود‬ ‫‪)vi‬‬
‫کو احمدی کہتے ہیں‪ ،‬کا موقف سننے اور سمجھنے کے لئے قومی اسمبلی کے پورے ایوان پر مشتمل‬
‫خصوصی کمیٹی (خصوصی کمیٹی)تشکیل دی گئی کیونکہ ایوان میں صرف ایوان کے ارکان ہی بات کر‬

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‫سکتے تھے‪ ،‬لیکن کمیٹی کسی بھی فرد کو سن سکتی تھی۔ مقننہ کی اس خصوصی کمیٹی کی کاروائی‬
‫‪5‬اگست ‪1974‬ء کو شروع ہوئی اور‪7‬ستمبر‪1974‬ء کو پوری ہوئی۔ کارروائی اس وقت کے اٹارنی جنرل‬
‫یحی بختیار نے چالئی۔ خصوصی کمیٹی میں قادیانی گروپ اور الہور گروپ کا موقف سامنے آیا اور‬ ‫جناب ٰ‬
‫نتیجتا ً اس پر اتفاق ہوا کہ وہ ’غیر مسلم ‘ہیں۔‬
‫ترجمہ‪ :‬آئین میں اور تمام قوانین اور قانونی دستاویزات میں‪ ،‬جب تک موضوع یا سیاق میں اس کے‬ ‫‪)vii‬‬
‫برعکس مفہوم نہ ہو‪:‬‬
‫’’مسلمان‘‘ سے مراد وہ شخص ہے جو ہللا کی وحدانیت اور توحید پر ایمان رکھے‪ ،‬حضرت محمد ﷺ‬ ‫(الف)‬
‫کی ختم نبوت پر مکمل اور غیرمشروط ایمان رکھے اور حضرت محمد ﷺ کے بعد کسی شخص پر‪،‬‬
‫صلح کے طور پر‬ ‫جس نے خود کو نبی کہا تھا یا کہتا ہے‪ ،‬ایمان نہ رکھے نہ ہی اسے نبی یا مذہبی ُم ِ‬
‫تسلیم کرے؛‬
‫’’غیر مسلم‘‘ سے مراد وہ شخص ہے جو مسلمان نہیں ہے اور اس کے مفہوم میں وہ شخص شامل‬ ‫(ب)‬
‫ہے جو مسیحی‪ ،‬ہندو‪ ،‬سکھ‪ ،‬بدھسٹ یا پارسی برادری سے تعلق رکھتا ہو‪ ،‬قادیانی گروپ یا الہوری‬
‫دولی ذاتوں سے تعلق رکھنے واال‬ ‫گروپ (جو خود کو ’احمدی‘ کہتے ہیں) کافرد‪ ،‬یا کوئی بَ َہائی‪ ،‬اور َج َ‬
‫شخص۔‬
‫نتیجہ‪:‬‬
‫تعالی کی آخری نازل کی ہوئی کتاب اور حضرت محمد ﷺ‬ ‫ٰ‬ ‫مسلمان وہی ہو سکتا ہے جو قرآن مجید کو ہللا‬ ‫‪)i‬‬
‫سلسلہ وحی کے انقطاع پر ایمان رکھتا ہو۔‬ ‫ٔ‬ ‫تعالی کا آخری رسول اور نبی مانتا ہو اور آپﷺ کے بعد‬
‫ٰ‬ ‫کو ہللا‬
‫حضرت محمد ﷺ پر نبوت کے ختم ہونے پر ایمان کے بغیر کوئی شخص مسلمان نہیں ہوتا۔‬ ‫‪)ii‬‬
‫آئین نے یہ اعالن بھی کیا ہے کہ پاکستان میں رائج تمام قوانین کو قرآن و سنت میں مذکور اسالمی احکام‬ ‫‪)iii‬‬
‫سے ہم آہنگ بنایا جائے گا اور یہ کہ کوئی ایسا قانون نہیں بنایا جائےگا جو ان احکام سے متصادم ہو۔‬
‫زادی رائے کے نام پر کسی کو یہ حق نہیں ہے کہ وہ کسی اور کی تضحیت کرے یا اس کے مذہبی‬ ‫ِ‬ ‫آ‬ ‫‪)iv‬‬
‫جذبات کو مجروح کرے۔‬
‫ت پاکستان کی دفعات ‪298-B‬اور ‪298-C‬قرآن و سنت میں مذکور اسالمی احکام سے‬ ‫مجموعہ تعزیرا ِ‬
‫ٔ‬ ‫‪)v‬‬
‫متصادم نہیں ہیں۔‬
‫خصوصی کمیٹی میں قادیانی گروپ اور الہور گروپ کا موقف سامنے آیا اور نتیجتا ً اس پر اتفاق ہوا کہ وہ‬ ‫‪)vi‬‬
‫’غیر مسلم ‘ہیں‬
‫اوپر تجزیہ نمبر ‪7‬دیکھیں۔‬ ‫‪)vii‬‬

‫‪4.‬‬ ‫‪Supreme Court of Pakistan‬‬

‫‪Bakht Biland Khan and others v. Zahid Khan and others.‬‬
‫‪Civil Petition No. 284-P of 2012‬‬
‫‪Mr. Justice Qazi Faez Isa, CJ, Mr. Justice Naeem Akhtar Afghan, Mr.‬‬
‫‪Justice Shahid Bilal Hassan‬‬
‫‪https://www.supremecourt.gov.pk/downloads_judgements/c.p._284_p_2012.pdf‬‬

‫‪Facts:‬‬ ‫‪Petitioners filed a civil petition against the dismissal of their civil revision by the‬‬
‫‪Honorable High Court. The petitioners' sisters inherited property from their‬‬
‫‪deceased father, but the petitioners challenged the inheritance mutation and were‬‬
‫‪unsuccessful before both the trial court and the first appellate court.‬‬

‫‪Issues:‬‬ ‫‪i) How the frivolous litigation, depriving sisters of their inheritance, could be‬‬
‫?‪discouraged‬‬
‫?‪ii) Which mode for recovery of costs is to be adopted‬‬

‫‪Analysis:‬‬ ‫‪i) The frivolous litigation initiated by them was undoubtedly encouraged by the‬‬
‫‪fact that substantial costs were not imposed on them for putting forward an‬‬

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 9
untenable claim. And, because the revenue authorities were not directed to ensure
that the shares of all the legal heirs are recorded and no legal heir is deprived of
his/her share.
ii) Therefore, leave to appeal is declined and this petition is dismissed with costs
in the sum of five hundred thousand rupees, to be paid by the petitioners, which
they should deposit with the concerned revenue authority within three months and
such authority shall distribute the same amongst those who have been deprived. If
the said amount is not deposited it shall be recovered as arrears of land revenue
and distributed in like manner.

Conclusion: i) The frivolous litigation could be discouraged by imposing substantial costs.

ii) The are to be recovered as arrears of land revenue by revenue authorities and
distributed amongst the victims.

5. Supreme Court of Pakistan

Tanvir Sarfraz Khan v. Federation of Pakistan through Director Legal,
Islamabad and others
Civil Petition No. 3381 of 2024 and C.M.A. No. 7234 of 2024 in Civil Petition
No. 3381 of 2024
Mr. Justice Qazi Faez Isa, Mr. Justice Naeem Akhtar Afghan, Mr. Justice
Shahid Bilal Hassan
https://www.supremecourt.gov.pk/downloads_judgements/c.p._3381_2024.pdf

Facts: Predecessor of the parties passed away in 2010 leaving behind a widow, sons and
daughters. When the sisters claimed their shares of inheritance in 2021, the
petitioner agreed to pay the legal shares of each legal heir as per Shariah. When
the property was evaluated the petitioner resiled and challenged his signed
consent/joint statement by filing a suit after two months of the demand of shares
by the sisters.
Issue: Safeguards implemented to prevent the exploitation of litigation that delay or
deny the right of inheritance to legal heirs particularly the vulnerable members.
Analysis: The pendency of the said suit has no effect on the estate of Sarfraz Ahmad Khan
nor can exclude the legal heirs from their inheritance. The property of a deceased
Muslim vests in his legal heirs immediately upon his death. We have repeatedly
held that the inheritance rights of the vulnerable members of society, which
include females, must be protected. Unfortunately, a practice has developed
whereby those defying shariah and the law, facilitated by some lawyers, adopt
various nefarious means, including taking the plea of pending litigation in
depriving legal heirs from what is rightfully theirs.
Conclusions: Pendency of a frivolous litigation with dishonest tactics cannot deprive legal heirs
from their right of inheritance.

FORTNIGHTLY CASE LAW BULLETIN

 10
6. Supreme Court of Pakistan
Mst. Aksar Jan and others v. Mst. Shamim Akhtar and others.
Civil Petition No. 4576 of 2023
(Against the judgment dated 03.10.2023 of the Lahore High Court,
Rawalpindi Bench passed in Civil Revision No. 100 of 2010)
Mr. Justice Qazi Faez Isa, CJ Mr. Justice Naeem Akhtar Afghan Mr. Justice
Shahid Bilal Hassan
https://www.supremecourt.gov.pk/downloads_judgements/c.p._4576_2023.pdf

Facts: Through this petition, the petitioners have assailed the order dated 03.10.2023 of
the High Court and Hon’ble Supreme Court of Pakistan set aside the order of
Hon’ble High Court and upheld the judgment passed by the First Appellate Court
as the trial court dismissed the suit of Mst. Shamim Akhtar (respondent No.1)
who has claimed her share of inheritance from the estate of her deceased husband
and sought cancellation of gift mutations.

Issues: i) What is the impact of undated Razi nama (agreement) without consideration;
therein, the right to inheritance surrendered by a woman, who had filed a suit?
ii) Whether the High Court adequately addressed the core issue of inheritance
denial?

Analysis: i) The petitioners made an attempt to show that Mst. Shamim Akhtar had given up
her claim/ right to inheritance by preparing an undated Razi Nama (agreement),
which commenced by stating that it was being executed on behalf of Mst. Aksar
Jan through her special attorney, namely, Muhammad Farooq son of Ch. Sultan
Khan, but the same was not signed by him. A fingerprint or thumb impression
purporting to be that of Mst. Shamim Akhtar was affixed on it. However, no
consideration was given to Mst. Shamim Akhtar or received by her for executing
the Razi Nama and giving up the claim to her inheritance. For the sake of
argument, if it be assumed that Mst. Shamim Akhtar had executed the Razi Nama
it was wholly without consideration which would make it inconsequential.
However, it was tendered to the Court and the learned Judge without ensuring that
Mst. Shamim Akhtar had executed it with knowledge of its contents assumed that
all of a sudden she had surrendered her rights for which she had filed a suit.
ii) On its part the High Court did not attend to the main issue, which was the
denial of inheritance, and instead concerned itself with peripheral matters. It is
now the twenty-fifth year since Mst. Shamim Akhtar, a widow, has been
struggling to get her inheritance. Bogus gift mutations were made and dated just
before the passing of her husband and then the bogus Razi Nama emerged. There
is yet another serious aspect of the case, which is that Mst. Aksar Jan joined hands
with her nephews, the petitioners No. 2 to 6, even though she stood deprived of
her own share in the inheritance of her husband; this constituted a clear conflict of
interest which regretfully the petitioners' counsel did not consider.

Conclusion: i) The undated Razi nama (agreement) without consideration executed by a

woman, who had filed a suit, has no legal value and effect upon the right of

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inheritance of a woman.
ii) The High Court has not adequately addressed the core issue of inheritance
denial.

7. Supreme Court of Pakistan

Govt. of Punjab through Secretary Irrigation and another v.
M/S Kunjah Textile Mills Ltd.& others
Civil Appeals No. 256-266 & 438-472 of 2011
Mr. Justice Munib Akhtar, Mr. Justice Syed Hasan Azhar Rizvi
Mr. Justice Shahid Waheed
https://www.supremecourt.gov.pk/downloads_judgements/c.a._256_2011.pdf

Facts: Respondents, through writ petition, challenged “Electricity Duty” imposed by the
government after issuance of notification by the Governor of Punjab in exercise of
powers under section 4 of the Punjab Finance Ordinance 2001. The writ was
dismissed by the Hon’ble single bench but was allowed in Intra Court Appeal.
The judgment was assailed before august Supreme Court of Pakistan.

Issues: (i) Which is the “taxing event” for imposing “Electricity Duty” under section 4 of
the Punjab Finance Ordinance 2001 after notification issued on 25/08/2001 by the
Governor of Punjab ?
(ii) Whether the person who generates electric power of 500 kw or more by means
of generators for their own use are “licensee” and fall in the scope of levy?

Analysis: (i) Having carefully considered the subsection, in our view the taxing event (i.e.,
leviability or the first stage) comprises the following words: “there shall be levied
and paid to Government, on the units of energy consumed for the purposes
specified in the first column of the Fifth Schedule”. In other words, the taxing
event comprises of two elements: (i) the consumption of energy units, (ii) for the
purposes specified in the first column of the Fifth Schedule. It is only when these
words are taken together that the taxing event can be sensibly gathered from
subsection (1). Reading either portion separately and (as the learned AAG would
have it with regard to the first words) on a standalone basis returns an incomplete
and, with respect, incoherent result. Contrary to what the learned AAG submitted,
s. 13 is not a general levy on electricity consumption. Rather it is on such
consumption for a specific (i.e., limited) purpose or class, as contained in the
second element. It is this composite that is the taxing event.
(ii) But what of the definition of “licensee” which specifically refers to any person
(such as the respondents) who generates electric power by means of a generator of
more than 500 KW capacity? There can be no doubt that the respondents are
within the definition of “licensee” in terms of the substitution made by the 2001
Ordinance (and are herein after referred to also as the “statutory licensee(s)”).
However, that still does not bring them within the scope of the levy. It is a
cardinal principle of taxing statutes that if more than one reasonable interpretation
is possible of the charging, or taxing, provision, then the one more favorable to
the putative taxpayer is to be adopted, i.e., the one that either takes him out of the

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charge altogether or (if such be the case) results in a reduced or lessened burden.
We assume for the moment that on the change in the definition of “licensee” one
possible, and reasonable, interpretation of s. 13 and one which brings the
respondents within the taxing event, is as put forward by the learned AAG. Even
if such be the case (and, with respect, we have serious doubts on this score as
already set out above) in our view there is another, also reasonable, interpretation
possible which does not. The second interpretation is that if the respondents are
statutory licensees, all that means is that if any of them were to supply the energy
produced by its generator of more than 500 KW capacity to another person, then
in respect of that supply the levy would be attracted in terms of the first entry of
the Fifth Schedule. It would not however mean that the self use of the energy in
and of itself would come within the levy. Put differently, the words “self use” in
the substituted definition would be only descriptive of who the statutory licensee
is (i.e., one whose supply of energy to another person would complete the taxing
event in terms of the first column of the Fifth Schedule), and not amount to a levy
of the duty on such self consumption. The levy would still require the statutory
licensee to supply the energy to some other person, i.e., the consumer in terms of
the Fifth Schedule. As is clear, this second interpretation is more favorable to the
putative taxpayer (i.e., the respondents) and would therefore, on an application of
well settled law, apply to the charge contained in subsection (1).

Conclusion: (i) See analysis (i).

(ii) The persons who generate electricity of 500 kw or above through generators
for their own use would not be within the levy.

8. Supreme Court of Pakistan

Chairman/Dean Sheikh Zayed Hospital, Lahore v. Amjad Mehmood Khan
Civil Petition No.1353-L of 2023
Mr. Justice Munib Akhtar, Mr. Justice Athar Minallah, Mr. Justice Syed
Hasan Azhar Rizvi
https://www.supremecourt.gov.pk/downloads_judgements/c.p._1353_l_2023.pdf

Facts: Respondent was appointed as an Anaesthetist on contractual basis for two years,
later his contract was regularized and he was promoted. Upon attaining the age of
superannuation, he got retired but his contract period of 4.5 years was not
included while calculating his pension benefits. First departmental representation
of the respondent was dismissed whereas his second petition remained undecided
by the department. The respondent invoked the jurisdiction of Punjab Service
Tribunal but the appeal was dismissed for want of jurisdiction, he then filed an
appeal before Federal Service tribunal which was allowed and that order is
assailed through the instant petition.

Issues: i) Whether delay affects the claim of pension or any pending lawful dues?
ii) Whether the term ‘temporary service’ includes contractual service and whether
under Article 371-A of the Civil Service Regulations contract period could be
included while calculating pension?

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Analysis: i) As far as issue of time barred representation is concerned, it has been rightly
noted by the learned Federal Service Tribunal that pension constitutes a recurring
cause of action. It has been consistently held by this court that claims constituting
payment of lawful dues constituted a recurring cause of action and delay, if any,
would not automatically vitiate a claim… Moreover, in the case of Umar Baz
Khan vs. Jehanzeb (PLD 2013 SC 268) it has been observed that the bar of laches
cannot be overemphasized in the cases where the relief claimed is based on a
recurring cause of action and that no court could dismiss a lis on account of laches
if such a decision would perpetuate injustice.
ii) The use of the phrase 'temporary service' in Article 371-A of CSR includes
contractual service. The perusal of the Article 371-A of CSR reveals that clause
(i) stipulates that government servants employed in temporary positions who have
rendered more than five years of continuous temporary service are entitled to have
such service counted towards their pension or gratuity. The use of the term
"continuous" indicates that only uninterrupted service exceeding five years
qualifies, and any prior broken periods of temporary service are to be excluded
from the calculation…. Clause (ii) provides for situations where a government
servant has rendered less than five years of continuous temporary or officiating
service. In such instances, the period of service shall also be counted towards
pension or gratuity, provided that it is immediately followed by confirmation /
regularization as a permanent employee.

Conclusion: i) Claims constituting payment of lawful dues constituted a recurring cause of

action and delay, if any, would not automatically vitiate a claim.
ii) Contractual period must be included towards the calculation of pension
provided the case falls either under clause (i) or clause (ii) of Article 371-A of the
CSR.

9. Supreme Court of Pakistan

Malik Amanullah v. Haji Muhammad Essa etc.
Civil Appeal No. 1414 of 2013
Mr. Justice Munib Akhtar, Mr. Justice Shahid Waheed, Ms. Justice
Musarrat Hilali
https://www.supremecourt.gov.pk/downloads_judgements/c.a._1414_2013.pdf

Facts: This appeal arises from a dispute over a property that respondent No.1 claimed to
have purchased from Muhammad Ibrahim in 1990 through an oral agreement,
supported by a general power of attorney. In 1997, respondent No. 1 transferred
the property to his sons. After Ibrahim's death in 1995, his son, respondent No.7,
canceled these transfers, leading respondents No. 1 to 6 to file a suit which
resulted in their favour in 2007, declaring them the rightful owners. During the
trial, respondent No. 7 sold the property to the appellant in 2003. The appellant
argued that the sale was valid since the lawsuit had been dismissed briefly before
the transaction. However, the court found the sale invalid, applying the doctrine
of lis pendens, because the suit was reinstated shortly after the sale, meaning the
property was still under legal dispute.

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Issues: i) Whether the rule of lis pendence applicable during the period of dismissal and
restoration of suit?
ii) The effect of cancellation of mutations without notice and without providing
opportunity of hearing.

Analysis: i) It is now well settled that if a suit is dismissed and then restored, the restoration
order relates back and a transfer/sale after dismissal and before restoration is
subjected to the principle of lis pendens embodied in Section 52 of the Transfer of
Property Act, 1882.
ii) Besides, the property-in-question was recorded in the names of Respondents
No.3, 5 and 6 but the Tehsildar, request from Respondent No.7, cancelled
mutations No. 167 and 170 without notice and without providing them the
opportunity of hearing which act is in contravention of Article 10-A of the
Constitution of the Islamic Republic of Pakistan, 1973 as well as contrary to the
provisions of the Land Revenue Act, 1967.

Conclusions: i) Yes, rule of ‘lis pendence’ is applicable.

ii) It is in contravention of Article 10-A of the Constitution of the Islamic
Republic of Pakistan, 1973 as well as contrary to the provisions of the Land
Revenue Act, 1967.

10. Supreme Court of Pakistan

Allah Bakhsh deceased through L.Rs & others v. Muhammad Riaz and
others.
Civil Petition No.2565 of 2023
Mr. Justice Munib Akhtar, Mr. Justice Athar Minallah, Mr. Justice Syed
Hasan Azhar Rizvi
https://www.supremecourt.gov.pk/downloads_judgements/c.p._2565_2023.pdf

Facts: Respondents No 3 to 5 filed a civil suit for declaration, specific performance and
injunction claiming that respondents No 1 and 2 being owners of the suit property
sold the same to them as well as to the petitioners No 1 and 2 vide an oral
agreement; possession was also transferred to the buyers but it was alleged that
Petitioner No 1 prepared a general power of attorney in his favour in connivance
with the sellers and later transferred the suit land in favour of his sons and sons of
petitioner No 2 vide a registered sale deed. The trial court decreed the suit, against
which an appeal was preferred which was dismissed by the first appellate court.
Thereafter the petitioners filed a Civil Revision in the High Court that too was
dismissed; hence this petition.
Issue: i) What is the legal requirement if holder of a general power of attorney intends to
transfer the principal’s property in his own favour or in favour of his relatives?
ii) What are the legal requirements for signing a document for its validity which
document consist of more than one page?

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Analysis: i) It is established law that holder of a general power of attorney must obtain
special permission from the principal when alienating the principal's property,
either in their own favor or in the name of their relatives.. . In the absence of such
permission, the legality and propriety of the alleged sale deed in favor of these
individuals is highly doubtful.
ii) Disputed sale deed is not even properly signed by the alleged attorney in
accordance with settled principles of law. In this regard, learned High Court has
rightly observed in the impugned judgment that “The petitioners/defendants
No.03 to 10 produced sale deed containing six pages and out of six pages, first
five pages have neither been signed by the alleged attorney/defendant No.03 nor
the alleged purchaser/defendant no.03 to 10 and even the two attesting witnesess,
who have signed sixth page, have not signed first five pages wherein terms and
conditions of the disputed sale deed are written. It is settled principle of law that if
the document is written on more than one page, then the parties must sign or put
their thumb impressions on each page of document or otherwise the defendant
are/were under legal obligation to connect the unsigned pages with signed/thumb
marked page by producing evidence to prove the terms and conditions of disputed
sale deed.’’
Conclusions: i) Holder of a general power of attorney must obtain special permission from the
principal when alienating the principal's property, either in their own favor or in
the name of their relatives.
ii) If the document is written on more than one page, then the parties must sign or
put their thumb impressions on each page of document.

11. Supreme Court of Pakistan

Moulvi Abdul Fateh v. Yar Muhammad and others
Civil Petition No.259-Q of 2020
Mr. Justice Yahya Afridi, Mr. Justice Shahid Waheed, Mr. Justice Aqeel
Ahmad Abbasi
https://www.supremecourt.gov.pk/downloads_judgements/c.p._259_q_2020.pdf

Facts: Respondents filed applications for grant of succession certificate and letter of
administration, against the petitioner. Initially, the applications were dismissed by
District Judge whose decision was challenged in shape of appeal before Hon’ble
High Court. Matter was remanded to Trial Court and the Trial Court again
dismissed the applications which order was again impugned by way of filing the
appeal. Hon’ble High Court again remanded the matter with the direction to
provide opportunity of producing additional evidence. After conclusion of trial,
said application were again dismissed. Order was assailed through Succession
Appeal before Hon’ble High Court which allowed the appeal. Resultantly, the
instant civil petition for leave to appeal was filed.

Issues: i) What sort of presumption is attached to official record?

ii) Which relation is invested with the legal power to challenge the paternity?

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Analysis: i) The presumption of correctness is attached to the official record in terms of
Article 91 and the relevancy of entry in public record made in performance of
duty in terms of Article 49 of the Qanun-e-Shahadat Order, 1984.
ii). This Court in the case of Laila Qayyum v. Fawad Qayum and others (PLD
2019 SC 449) and Munir Hussain v.Riffat Shamim (2023 SCMR 6) wherein it has
been held that only a putative father, within the time prescribed in Article 128 of
Qanun-e-Shahadat Order, 1984 can challenge the paternity of child.

Conclusion: i) Presumption of correctness is attached to official record.

ii) See above analysis No.i

12. Supreme Court of Pakistan

National Bank of Pakistan through its President v. Roz-ud-Din and another
Civil Petition No.3649 of 2023.
Mr. Justice Yahya Afridi, Mr. Justice Shahid Waheed and Mr. Justice Aqeel
Ahmad Abbasi
https://www.supremecourt.gov.pk/downloads_judgements/c.p._3649_2023.pdf

Facts: Through instant petition (or leave to appeal), the petitioner has impugned the
judgment dated 30.08.2021 of the learned High Court of Baluchistan, whereby the
respondent’s dismissal from service Memorandum
/F&FD/SIB1-3321, dated 15.12.2020, has been partly allowed and the impugned
memorandum is modified to the extent of penalty awarded to the respondent
"dismissal from service to that of down gradation by one step in his pay scale".

Issues: i) Whether the citizens, being employees of same institution, can be treated
discriminately in violation of Article 25 of Constitution of Pakistan?
ii) Whether punishment should be awarded in commensuration with magnitude of
guilt?

Analysis: i) Admittedly, the petitioner was employed as Officer Grade-Il, National Bank of
Pakistan, whereas, on certain allegations of omissions and irregularities regarding
ATM cash feeding, its maintenance and balancing, he was imposed with a major
penalty of dismissal from service. Record reflects that apart from petitioner, two
other employees/ officers of the Bank were also charge sheeted with same
allegations, but they were then awarded with punishment of downgrading by one
step in their pay scale, whereas, the petitioner who was also facing the same
allegations, was surprisingly awarded with a major penalty of dismissal from
service, which in our considered view is a harsh punishment and no reason
whatsoever has been assigned to single out the respondent Roz-ud-Din who has
been awarded the major punishment of dismissal from service which amounts to
clear discrimination. It is pertinent to note that nothing has been brought on record
to show that respondent Roz-ud-Din was directly responsible or has committed
any gross misconduct or negligence in respect of the allegations as contained in
the charge sheet/ show cause notice, whereas, the guilt regarding allegations and
charges in the instant case has been duly accepted through confessional statement

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by another employee of the bank namely, Baber Butt against whom a criminal
case was also registered, however, such aspect has been totally ignored while
awarding the major punishment of dismissal from service, which, on the face of it,
was otherwise not commensurate with the magnitude of the guilt and the role
assigned to respondent. Reliance in this regard has been rightly placed by the
learned Division Bench in the case of Secretary to Government of the Puniab
Food Department, Lahore and another v. Javed Iqbal and others (2006 SCMR
1120). It will not be out of place to refer to provisions of Article 25 of the
Constitution, which guarantees equality to all citizens before law and equal
protection of law.
ii) No doubt, the competent authority had jurisdiction to award any of the above
punishments to a person/ employee found guilty, but for the purpose of safe
administration of justice, such punishment should be awarded, which
commensurate with the magnitude of the guilt otherwise the law dealing with the
subject will lose its efficacy. As stated above, the other employees who were dealt
with same allegations were awarded punishment of downgraded by one step in his
pay scale, whereas, the petitioner was awarded with major penalty i.e. dismissal
from service. The Authority vested with discretion to award punishment to an
employee shall ensure that such punishment should commensurate with the
magnitude of guilt.

Conclusion: i) Article 25 of the Constitution guarantees equality to all citizens before law and
equal protection of law.
ii) Punishment to an employee shall ensure that such punishment should
commensurate with the magnitude of guilt.

13. Supreme Court of Pakistan

Ufaid Gul v. Mst. Farkhanda Ayub Khan and others
Civil Appeal No. 785 of 2022
Mr. Justice Amin ud Din Khan, Mr. Justice Muhammad Ali Mazhar
Mr. Justice Irfan Saadat Khan
https://www.supremecourt.gov.pk/downloads_judgements/c.a._785_2022.pdf

Facts: Plaintiff-appellant filed a suit for specific performance which was decreed by trial
court. District court while deciding appeal, preferred by defendant no.2, dismissed
suit to the extent of relief qua specific performance and ordered for return of
amount. Hon’ble High Court accepted Civil Revisions holding that District court
had no jurisdiction to adjudicate appeal and directed parties to approach relevant
forum. While deciding Regular First Appeal, Hon’ble High Court accepted the
same and set aside judgment of trial court. Hence appeal before Supreme Court of
Pakistan.

Issues: (i)Whether remedy of specific performance can be claimed against owner of

property when he is not signatory of the agreement?
(ii)What is the effect of contributory negligence, of a party and the court, on
limitation period?

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Analysis: (i) On merits there is absolutely no valid claim of the appellant as he entered into
an agreement with a person who has absolutely no concern whatsoever with the
suit property, only the fact that cheque of Rs:5,00,000/- was deposited in the
account of the owner i.e. defendant No.2/respondent herein does not make the
plaintiff-appellant entitled for grant of a decree for specific performance in his
favour... In these circumstances, the learned High Court has rightly accepted the
appeal and set aside the judgment and decree passed by the learned trial court in
favour of the present appellant and also taken care of the rights of the present
appellant while asking the owner of the property to return rupees one million to
the plaintiff on the ground that a cheque of Rs:5,00,000/- was deposited in the
account of the owner i.e. defendant No.2.
(ii) As per the principle laid down in Sherin and others v. Fazal Muhammad and
others (1995 SCMR 584), where a party, despite acting with reasonable diligence,
is misled by the court or fails to receive timely guidance about jurisdictional
matters, the resulting delay or error is not entirely attributable to that party. In the
present case, defendant No.2/respondent No.l initially filed the appeal before a
forum lacking pecuniary jurisdiction, i.e., the learned Additional District Judge
(West), Islamabad. However, the court itself, despite lacking jurisdiction,
entertained the appeal for a substantial period without raising the issue, thereby
contributing to the delay. This situation falls squarely within the doctrine of
contributory negligence, where negligence by both the appellant and the court
contributed to the procedural misstep. In light of this, the contributory negligence
of the court in not promptly addressing the jurisdictional defect must be
considered, and the defendant No.2/respondent No.l cannot be deprived of relief
solely on this ground.
Conclusion: (i) Plaintiff has no valid claim to seek specific performance if agreement was
entered with a person who has no concern with suit property.
(ii) If there was a contributory negligence of the person knocking the door of the
court and by the court, the person knocking the wrong door cannot be deprived of
his/her legal rights available under the law.

14. Supreme Court of Pakistan

Zulfiqar Ali v. The State thr. DAG Islamabad
Criminal Petition No. 498 of 2024
Mr. Justice Jamal Khan Mandokhail, Ms. Justice Musarrat Hilali, Mr.
Justice Malik Shahzad Ahmad Khan
https://www.supremecourt.gov.pk/downloads_judgements/crl.p._498_2024.pdf

Facts: The petitioner is an employee accused of embezzlement of certain amount and

was convicted under section 409 of the Pakistan Penal Code, 1860 as well as
section 5(2) of the Prevention of Corruption Act, 1947. His appeal to the High
Court was dismissed, leading to this petition.

Issue: i) What does ‘offer of no contest’ connotes?

Analysis: i) The offer of no contest, means that the petitioner neither agrees nor disagrees

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with the charge and with his conviction.

Conclusion: i) To accept conviction without admitting guilt or disputing charge.

15. Supreme Court of Pakistan

Member, Board of Revenue, Punjab etc. v. Sheraz Khan
Civil Petition No.148-L of 2024
Mr. Justice Amin-ud-Din Khan, Mr. Justice Athar Minallah
https://www.supremecourt.gov.pk/downloads_judgements/c.p._148_l_2024.pdf

Facts: Respondent’s father was displaced due to a Project started for Public purpose so
he was allotted a land as compensation by the Collector but due to pending civil
litigation, possession of the allotted land could not be handed over. Later another
alternate land was allotted to him and it was also confirmed that the allotted land
was free from encumbrances and was in a suitable location; possession was also
given to the allottee. The allottee later applied for proprietary rights to the allotted
land, but his application was rejected by the Additional District Collector and
thereafter all his appeals and revisions were dismissed till Board of Revenue. All
the orders against the respondent were challenged by filing a constitution Petition
before the Hon’ble High Court, which was allowed so feeling aggrieved the same
order is assailed by the petitioners.

Issues: i) Would the subsequent change in the status of a prohibited area affect the
previously accrued rights of an allottee under the Colonization of Government
Lands (Punjab) Act, 1912?
ii) Whether denial of grant of proprietary rights to an allottee under a settlement
scheme violates the fundamental right to property as guaranteed under the
Constitution of Pakistan?

Analysis: i) The rights accrued in favour of an allottee were to be determined on the basis of
the formulated terms and conditions at the time when the allotment was made. As
a corollary, the limits of the prohibited area which existed at the time of allotment
were relevant i.e when the order under section 10(4) of the Colonization Act was
passed. A subsequent change in the status of the prohibited area could not affect
or take away the already accrued rights…. The rights which had already accrued
could not have been taken away, directly or indirectly. If the limits of the
prohibited area had been extended after the allotment then it could not result in
nullifying the benefits and rights accrued in favor of the allottee under the
Scheme.
ii) Any action which takes away the rights accrued under the Scheme would
amount to arbitrary confiscation of private property rights. If the land allotted
under the Scheme is required for public purpose then the accrued rights cannot be
taken away in violation of the unambiguous command of the Constitution under
Article 24; no person shall be deprived of his or her property save in accordance
with law and that no property shall be compulsorily acquired or taken possession

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of save for a public purpose and save by the authority of law which provides for
compensation. The denial of grant of propriety rights in the case before us was
violative of the fundamental right guaranteed under Article 24 of the Constitution.

Conclusion: i) A subsequent change in the status of the prohibited area could not affect or take
away the already accrued rights.
ii) The denial of grant of propriety rights in the case before us was violative of the
fundamental right guaranteed under Article 24 of the Constitution.

16. Supreme Court of Pakistan

Government of the Punjab through Secretary Primary & Secondary
Healthcare Department, Lahore, etc. v. Dr. Muhammad Shahid Hussain
CPLA No.2753-L of 2023
Mr. Justice Yahya Afridi, Mr. Justice Syed Hasan Azhar Rizvi
Mr. Justice Shahid Waheed.
https://www.supremecourt.gov.pk/downloads_judgements/c.p._2753_l_2023.pdf

Facts: The Government of Punjab has submitted this petition under Article 212(3) of the
Constitution, seeking leave to appeal against the judgment of the Punjab Service
Tribunal, Lahore (“the Tribunal”) announced on 27th of March, 2023. The
Tribunal had granted the service appeal of the respondent under Section 4 of the
Punjab Service Tribunals Act, 1974. The Additional Advocate General argued
that the petition is within time, citing that the Tribunal had dispatched a copy of
the judgment to the relevant departmental authority on 7th July 2023, which was
received on 19th July 2023.
Issue: Whether the time consumed by tribunal to send a copy of judgment to the
department can be excluded for computation of limitation period?
Analysis: The period for filing a petition for leave to appeal under Article 212(3) of the
Constitution is computed from the date when the Tribunal's judgment is
announced in the presence of the parties, not from the date of receiving the
certified copy of the judgment. According to Section 12 of the Act, 1908, only the
time taken to obtain a certified copy of the judgment appealed from can be
deducted. The Act, 1908, does not take into account the time it takes for the
Tribunal to send a copy of the judgment, which is announced in the presence of
the parties, to the Department. It is important to note that Rule 21 of the Rules,
1975 does not specify a time frame for the Tribunal to send a copy of the
judgment to the relevant competent authority after announcing it. This means that
the Tribunal can send the judgment to the Department after the deadline for
applying for leave to appeal has passed. In this situation, allowing this time to be
excluded in the computation of the limitation period would potentially give the
Department/Competent Authority the ability to create uncertainty about the rights
of Civil Servants that have been established by the Tribunal and have become
final over time. This could be unwholesome and violate the fair trial rights
guaranteed under Article 10-A of the Constitution.

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Conclusion: Time consumed by tribunal to send a copy of judgment to the department can not
be excluded for computation of limitation period.Only the time taken to obtain a
certified copy of the judgment appealed from can be deducted.

17. Supreme Court of Pakistan

Javed Ali (in CP No.499-K/23) Sabir Ali (in CP No.519-K/23) v. Inspector
General of Police, Sindh & others
Mr. Justice Muhammad Ali Mazhar, Mr. Justice Syed Hasan Azhar Rizvi
https://www.supremecourt.gov.pk/downloads_judgements/c.p._499_k_2023.pdf

Facts: Petitioners filed Civil Petitions for leave to appeal against order passed by the
Sindh Service Tribunal maintaining departmental action against petitioners. The
petitioners pursuant to a publication applied for a vacancy in Police department,
after scrutiny and verifications appointed by the department. They were dismissed
from service due to overage at the time of appointment after 4/6 years of service.

Issues: i) What is the effect of belated dismissal from service, obtained without any
illegal or fake means, without affording opportunity for personal hearing and
regular inquiry?
ii) What is the stage for age calculation of an applicant in recruitment process?
iii) What is the rationale behind a standardized assessment procedure of job
applications, and impact of blunders in recruitment process?
iv) How and when the shortlisting and screening of candidates should be done?

Analysis: i) What we have perceived from the record is that the petitioners were not
appointed through any illegal or fake recruitment process, rather there was an
issue of being overage, which was intimated to them after about 4 to 6 years from
the date of their induction in service and they have been made the victim of this
overage issue without being intimated of any such defect at the time of applying
for the job, and after serving 4 and 6 years in the Police Department, the drastic
action of dismissal from service was taken without giving any opportunity of
personal hearing and conducting enquiry. There is nothing on record with regards
to the present petitioners which may show that the petitioners managed their
appointment through some illegal means or committed any fraud. The distress of
unemployment is rampant at a large scale in the society, therefore it necessitated
the department’s consideration of whether the petitioners’ overage by 25 days and
62 days, respectively, and their submission of job applications in hopes of
receiving age relaxation, was based on mala fide or bona fide intention.
ii) One more crucial aspect that needed to be examined by the department was the
age of the petitioners at the time of submitting their job applications. Sometimes,
the process of recruitment is delayed for an inordinate period due to which some
candidates might have crossed the age at the time of appointment but they
remained in the age bracket at the time of submitting job applications…….A
commonsensical approach is to consider the date of birth of a candidate at the
time of submitting the job application according to job qualifications mentioned

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in the advertisement.
iii) Due diligence in human resource is an all-encompassing procedure for
systematically assessing the qualifications and fitness of the candidates in the
organization, so the recruitment process should ensure that the recruitment is
based on truthful data and the applicant fulfils the criteria required for the post,
including the credentials, verification of qualification, and relevant experience, if
any. A standardized assessment procedure of job applications not only safeguards
the fairness and objectivity but also relegates the menace of bias and
discrimination in the appointment process. The blunders in the recruitment
process always have negative and deleterious impact on any organization as a
whole. It is a serious business, which cannot be achieved in a slipshod or
perfunctory manner. By and large, the recruitment process is triggered through
public announcement/advertisements in the vernacular newspapers along with all
requisite details of vacant situations and required qualifications for the post or
posts so that the interested candidates may apply to join the competitive process.
iv) The process of shortlisting or screening the job applications is not a unique
idea but it is a very common process which is put into action by the
administration department or human resource department of any organization in
order to scrutinize each application diligently to satisfy whether the application
fulfils all requisite qualifications or not. In case of any lapses, the applicant may
be called upon to correct the omissions or defects and in case the application is
not found commensurate to the terms and conditions mentioned in the
advertisement for applying the job by the candidate, then it is better to reject it at
the initial stage rather than camouflaging it or keeping it under wraps intentionally
or unintentionally or due to some recklessness..... It is therefore essential that
recruiters should verify the details of job applicants prior to making a job offer
and the ideal approach is to undertake all verifications, screening, and requisite
formalities before allowing the employee to commence work.

Conclusion: i) The drastic action of dismissal from service without giving any opportunity of
personal hearing and conducting inquiry is too harsh, when no fraud, concealment
or illegal practice at the part of candidate.
ii) The date of birth of a candidate at the time of submission of application is to be
considered for calculating the age.
iii) The recruitment process should ensure that the recruitment is based on truthful
data and the applicant fulfils the criteria required for the post, including the
credentials, verification of qualification, and relevant experience, if any. The
blunders in the recruitment process always have negative and deleterious impact
on any organization as a whole.
iv) The scrutiny of applications and shortlisting of candidates must be done at the
initial stage.

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18. Supreme Court of Pakistan
Mst. Mussarrat Shaheen v. Mst. Verbeena Khan Afroz and others
Civil Petition No.562-K of 2024
Mr. Justice Muhammad Ali Mazhar, Mr. Justice Syed Hasan Azhar Rizvi
https://www.supremecourt.gov.pk/downloads_judgements/c.p._562_k_2024.pdf

Facts: Petitioner(tenant) called in question order passed by Hon’ble High Court of

Sindh, whereby constitutional petition of respondent(landlady) was decide against
her. The eviction application of landlady, on the basis of personal needs and
default in payment of rent, was allowed by Rent Tribunal under section 15 of the
Sindh Rented Premises Ordinance, 1979 but dismissed by first appellate court.
The Hon’le High Court upheld the order of the Rent Tribunal setting aside the
order of first appellate court.

Issues: i) Whether tenant can maintain occupancy of rented premises on the ground of
initiation of a suit for declaration?
ii) Whether eviction claim of landlord on grounds of personal bona fide need and
non-payment of rent, could be dismissed simply by challenging ownership of the
property?

Analysis: i) A tenant cannot maintain occupancy of rented premises merely because he/she
has initiated a suit for declaration. In instances where the tenant asserts ownership
of the property, the legally mandated procedure requires the tenant to vacate the
premises, pursue the civil suit, and, upon a favorable judgment by the competent
court, regain possession of the property.
ii) When a landlord pursues eviction on the grounds of personal bona fide need
and non-payment of rent, such a claim cannot be dismissed simply by challenging
the ownership of the property. It is pertinent to consider that the substance of the
landlord's claim regarding the legitimate need for the property and the alleged
default in rent payment.

Conclusion: i) A tenant cannot maintain occupancy of rented premises merely because he/she
has initiated a suit for declaration.
ii) Such a claim cannot be dismissed simply by challenging the ownership of the
property.

19. Supreme Court of Pakistan

Muhammad Ain-ul-Haq v. Abdul Ali and another
(Civil Petition No.662-K of 2024)
Mr. Justice Syed Hasan Azhar Rizvi, Mr. Justice Aqeel Ahmad Abbasi
https://www.supremecourt.gov.pk/downloads_judgements/c.p._662_k_2024.pdf

Facts: The order passed by the rent controller in execution proceedings was challenged
by the petitioner before High Court through constitutional petition, contending
therein that impugned order suffers from illegality and infirmity; that petitioner
entered into an agreement for permanent tenancy and has paid premium and so, he

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cannot be evicted. The said constitutional petition stood dismissed which was
challenged before the Supreme Court.

Issue: Whether executing court or the High Court can address the grievances of the
petitioner/ tenant pertaining to the issue that original eviction order passed by the
Rent Controller was illegal?

Analysis: The Rent Controller as well as the High Court was duty bound to act solely in
accordance with the law and to enforce the eviction order, without the latitude to
scrutinize, question, or revisit the merits of original case.

Conclusion: Execution proceedings are confined to the implementation of judicial decisions

and do not extend to an examination of the substantive issues that may have been
previously adjudicated.

20. Lahore High Court

Qaisar Abbas v. The State etc.
Crl. Appeal No.250896 of 2018 and Murder Reference No.371 of 2018.
Ms. Chief Justice Aalia Neelum, Mr. Justice Asjad Javaid Ghural
https://sys.lhc.gov.pk/appjudgments/2024LHC4230.pdf

Facts: The appellant was accused of shooting victim during a dispute on the night of
August 25/26, 2015, in District Gujrat. The victim later died from his injuries at
Mayo Hospital, Lahore, leading to the registration of an FIR under Section 302 of
the Pakistan Penal Code. The appellant was convicted and sentenced to death by
the trial court. Hence; this appeal

Issues: i) What are parameters for accepting a dying declaration as valid evidence?
ii) What is serious infirmity that destroys the credibility of the eye witness’s
evidence?
iii) What is the principle regarding proof of motive in a criminal case by credible
evidence?

Analysis: i) Under Article 46 of the Qanun-e-Shahadat Order, 1984, the sanctity of a dying
declaration must be evaluated with great care and caution, and the evidence of a
dying declaration must be appreciated with due diligence. A dying declaration is a
question of fact that has to be determined by the facts of each case. A case must
be considered in all its physical environment and circumstances to discover the
truth or falsity of a dying declaration. The courts below have to be extremely
careful when they deal with a dying declaration, as the maker is not available for
cross-examination, which poses great difficulty to the accused person. A
mechanical approach of relying upon a dying declaration just because it is there is
extremely dangerous. The courts insist that the dying declaration should be of
such nature as to inspire the full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to see that the
statement of the deceased was not a result of either tutoring or prompting or a

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product of imagination. The court also must further decide that the deceased was
in a fit state of mind and had the opportunity to observe and identify the assailant.
Usually, therefore, the court looks up to the medical opinion to satisfy whether the
deceased was in a fit mental condition to make the dying declaration.
ii) Besides being highly interested, all the prosecution witnesses have also made
irreconcilable contradictions on material points, rendering their evidence
incredible. With this background, the presence of the alleged eye- witnesses on
the spot seems doubtful. This is a very serious infirmity that destroys the
credibility of the witnesses' evidence. If the evidence of these witnesses is
rejected as untrustworthy, nothing survives the prosecution case, and it would
not be safe to rely upon such evidence.
iii) The motive set up by the prosecution in the Fard Bayyan (Ex. PP) and F.I.R.
(Ex.PA) and deposed about it by Salma Bibi (PW-7) and Naveed (PW-11) have
been found by us to have remained un-proved. The prosecution case in this
regard was vague and could hardly inspire confidence. Salma Bibi (PW-7)
deposed during cross-examination that: -
“---I did not get record in my statement before the police that
any altercation was happened in between my brother Khuram
Shahzad and accused Qaiser Abbas within the area of
Sarokey---”
Therefore, the evidence led by the prosecution in connection with
motive is not sufficient for placing reliance on the testimonies of the witnesses
for committing the occurrence. Motive is a double-edged weapon for the
occurrence and for false implications. There are always different motives that
operate in the mind of the person in making false accusation. In the
circumstances, we cannot avoid the conclusion that the motive, as alleged, was
an afterthought and has not been proved by any credible evidence.

Conclusion: i) The sanctity of a dying declaration must be evaluated with great care and
caution, and the evidence of a dying declaration must be appreciated with due
diligence.
ii) Evidence of interested witnesses with contradictions render the evidence of eye
witness incredible.
iii) See analysis No.iii

21. Lahore High Court

The State v. Muhammad Iqbal, Muhammad Iqbal v. The State, etc. and
Muhammad Arshad v. Mukhtar Ahmed, etc.
Murder Reference No.185 of 2019, Crl. Appeal No.48876 of 2019, and Crl.
Appeal No.44259 of 2019
Ms. Justice Aalia Neelum, The Chief Justice and Mr. Justice Asjad Javaid
Ghural
https://sys.lhc.gov.pk/appjudgments/2024LHC4246.pdf

Facts: In this case, Muhammad Iqbal and others were accused of killing Muhammad

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Shafaat and his son, Muhammad Ijaz, over a land dispute. The prosecution
alleged that the accused fired at the victims, causing their deaths. The trial court
convicted Muhammad Iqbal, but the High Court acquitted him, raising doubts
about the credibility of the evidence, delay in lodging of FIR, and discrepancies in
witness testimonies.

Issues: i) Whether the delay in lodging the First Information Report (FIR) can cast doubt
on the prosecution's version?
ii) Whether the delayed postmortem affects the credibility of the prosecution's
case?
iii) Whether the recovery of weapons, if not properly linked to the crime, affects
the outcome of the case?
iv) Does the failure to substantiate the motive create reasonable doubt regarding
the veracity of the prosecution’s case??
v) Whether the double presumption of innocence applies when the trial court
acquits the accused?

Analysis: i) Delay in lodging the First Information Report often result in embellishment and
exaggeration, a creature of an afterthought. A delayed report not only gets bereft
of the advantage of spontaneity, but the danger of introducing a coloured version
of the incident or a concocted story as a result of deliberations and consultations
also creeps in, casting serious doubt on its veracity.
ii) The delay in conducting a postmortem examination from the time of the
commission of the offence renders the whole of the prosecution story doubtful.
iii) On perusal of the recovery memo (Ex. PP), it is found that appellant
Muhammad Iqbal got recovered the 30-bore pistol and submitted that at the time
of the incident, said 30-bore pistol was used by his son Moazzam (since P.O.)...
The firearms and tool marks examination report (Ex. PEE) reveals that 44 caliber
rifle was submitted on 25.08.2014 by Ashiq Ali 3629/C (PW-8), which matched
with seven crime empties recovered from the spot. Thus, the positive report of the
Firearms and Tool Marks Examination Report (Ex. PEE) becomes
inconsequential."
iv) A concocted story about the motive appears to have been cooked up, and it
cannot be believed only based on the complainant and prosecution witnesses’ oral
statements. As is evident from the above deposition, the prosecution has failed to
prove the motive part of the occurrence, which is shrouded in mystery. Thus, the
prosecution has failed to provide evidence of a clear motive. Motive is a doubt-
edge weapon for the occurrence and false implication.
v) Even otherwise, when a court of competent jurisdiction acquits the accused, the
double presumption of innocence is attached to their case. The acquittal order
cannot be interfered with, whereby a charge earns double presumption of
innocence.

Conclusion: i) The delay in lodging the First Information Report affects the credibility of
prosecution claim.

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ii) The delay in conducting postmortem renders the whole story of prosecution
doubtful.
iii) See above analysis.
iv) Motive is a doubt-edge weapon for the occurrence and false implication.
v) The acquittal order cannot be interfered with, whereby a charge earns double
presumption of innocence.

22. Lahore High Court

Murder Reference No.399 of 2018
The State v. Irfan Haider
Crl. Appeal No.12708-J of 2019
Irfan Haider v. The State etc.
Ms.Justice Aalia Neelum, Mr. Justice Asjad Javaid Ghural
https://sys.lhc.gov.pk/appjudgments/2024LHC4083.pdf

Facts: Appellant was convicted and sentenced to death for committing Qatl-e-Amd by
the trial court. Murder reference was sent to High Court for confirmation of the
conviction and sentence while the appellant assailed his conviction through
criminal appeal.

Issues: i) What is the result of lodging delayed FIR?

ii) Which conclusion can be deduced from the unnatural conduct of the
prosecution witnesses?
iii) What is the legal consequence of non-signing of Inquest Report by eye
witnesses?
iv) What sort of conclusion can be derived from delayed postmortem?

Analysis: i) Delay in lodging the FIR often results in embellishment, a creature of an

afterthought.
ii) If their conduct is unnatural, doubt is created about the prosecution case, and
their oral evidence is not believable.
iii) The absence of these details in the inquest reports may indicate that the FIR
was not registered and was recorded later after due deliberations and consultation.
iv) The delay in conducting the postmortem examination also leads to the
conclusion that the FIR was recorded with the delay, and the FIR was not
recorded when claimed to have been recorded.

Conclusion: i) Delayed lodging of FIR results in creation of afterthought.

ii) Unnatural conduct of prosecution witnesses makes their evidence unbelievable.
iii) Non-signing of inquest report by prosecution witnesses alludes to the fact that
FIR was not registered and recorded later after due deliberations.
iv) Delay in postmortem leads to the conclusion that FIR was delayed and was not
recorded as claimed.

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23. Lahore High Court, Lahore
Commissioner Inland Revenue Sialkot v. Air Sial Limited , Sialkot
Case No. ITR No.56081/2022
Mr. Justice Abid Aziz Sheikh, Mr. Justice Sultan Tanvir Ahmad
https://sys.lhc.gov.pk/appjudgments/2024LHC4303.pdf

Facts: The respondent is a company deriving income from air transport services. Returns
of incomes filed for tax years 2017 to 2020 were treated as deemed assessment
orders ITR No.56081 of 2022 3 in terms of section 120(1) of the Ordinance. Later
on, Additional Commissioner Inland Revenue (ADCIR) initiated proceeding
under section 122(5A) of the Ordinance and passed order on 07.4.2021. The
respondent being aggrieved filed appeal before Commissioner Inland Revenue
(Appeals) (CIR-A) which confirmed the order of ADCIR on 13.7.2021. The
respondent being aggrieved filed appeal before the Tribunal, which was partially
allowed through impugned order, hence these reference applications.
Issues: i) Whether the Appellate Tribunal Inland Revenue erred in holding that profit on
debt from surplus funds deposited in banks was income from business under sub-
section (2) of Section 18 of the Income Tax Ordinance, 2001, despite the
respondent taxpayer not being a banking or financial institution?
ii) Whether the Tribunal incorrectly interpreted sub-section (5) of Section 25
regarding pre-commencement expenditure?
iii) Whether the Tribunal erred in allowing the deduction of pre-commencement
expenses from profit on debt, which is classified as income from other sources?

Analysis: i) Admittedly, the primary object and purpose of respondent company is to carry
on and operate air transport service and not to derive any profit on debt as
required under Section 18(2) of the Ordinance. No doubt, for the purpose to
achieve said object the respondent company was authorized to invest surplus
money of ITR No.56081 of 2022 7 the company in shares, stocks or securities of
any company, debentures, debenture stocks or in any investments, short term and
long term participation, term finance certificates or any other government or semi-
government securities but respondent company is specifically not allowed to
indulge in non-banking finance business, banking or an investment company or
any such business. The respondent company was incorporated on 06.06.2016
though certificate of commencement of business was issued on 26.08.2016,
however, admittedly, date of actual commencement of business is 20.12.2020
when first sales tax return was filed, hence, the profit in question accrued on
surplus money from 2017 to 2020, is before the commencement of respondent
company business.... whereas, section 39 of the Ordinance provides that income
of every kind received by a person in a tax year, if not included in any other head,
other than exempted from the tax under the Ordinance, shall be chargeable to tax
in that year under the head “income from other sources” includes “profit on debt”.
ii) From plain reading of section 25(5) of the Ordinance, it is evident that pre-
commencement expenditure means any expenditure incurred before the
commencement of a business wholly and exclusively to derive income chargeable
to tax, including the cost of feasibility studies, construction of prototypes, and

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trial production activities but shall not include any expenditure which is incurred
in acquiring land, or which is depreciated or amortized under section 22 or 24 of
the Ordinance. The word “including” in section 25(5) of the Ordinance
established that the cost of feasibility studies, construction of ITR No.56081 of
2022 14 prototypes, and trial production activities are not the only
precommencement expenditure rather the said term is wide enough to include any
expenditure incurred before the commencement of the business wholly and
exclusively to derive income chargeable to tax... The narrow and restrictive
meaning given by the Tribunal to “precommencement expenditure” under Section
25(5) of the Ordinance is not supported by law and therefore, we are of the
considered view that the expenses are covered under the head of pre-
commencement expenses under section 25(5) of the Ordinance as lawfully held
by ADCIR and CIR-A.
iii) As profit on surplus fund amount to income from other sources and expenses
are covered under the head of pre-commencement expenses under section 25(5)
of the Ordinance as discussed above, the assessing officer had lawfully disallowed
and amortized expenses against interest income under the relevant provision of
the Ordinance.

Conclusion: i) The respondent company is primarily engaged in air transport services and not
in banking or financial activities. Therefore, the income from profit on debt does
not qualify as income from business under Section 18(2) but rather falls under
income from other sources as per Section 39(1).
ii) The definition of pre-commencement expenditure in Section 25(5) is broad and
includes any expenditure incurred to derive income chargeable to tax, not limited
to feasibility studies or trial production activities. The Tribunal's restrictive
interpretation was deemed incorrect.
iii) Since the profit on debt was classified as income from other sources, the
expenses incurred were appropriately disallowed and amortized by the assessing
officer, aligning with the provisions of the Ordinance.

24. Lahore High Court

M/s Medequips v. The Commissioner Inland Revenue and 3 others
I.T.R. No. 53185-2024
Mr. Justice Abid Aziz Sheikh, Mr. Justice Sultan Tanvir Ahmad
https://sys.lhc.gov.pk/appjudgments/2024LHC4277.pdf

Facts: The court is addressing two reference applications together through a single order
issued by the Appellate Tribunal Inland Revenue in Lahore which were filed
under Section 133(1) of the Income Tax Ordinance, 2001. The applicant is
requesting the court to answer legal questions that arised from the Tribunal’s
decision.

Issues: i) What is the duty of the Judicial or Quasi-judicial forum?

ii) What questions are required to be answered in reference applications u/s 133(1)
of the Income Tax Ordinance, 2001?

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Analysis: i) The proposition of law is well settled that judicial or quasi-judicial forums
should record reasons for their conclusions and decide the matters through
speaking judgments and / or I.T.R. No. 53185-2024 I.T.R. No. 53180-2024 3
orders. This is to enable the aggrieved parties to set up their appeals, applications
or petitions as well as enabling the higher Courts to exercise their jurisdiction
properly and to appreciate the controversies in correct perspective.
ii) It is already settled that the questions required to be answered in reference-
applications include questions argued before the learned Tribunal on which the
finding has been given as well as the questions argued but no finding has been
given on such question(s).

Conclusion: i) Should record reasons for their conclusion and decide the matters through
speaking judgments.
ii) See analysis No. ii

25. Lahore High Court

Saba Gul & 02 others v. Additional District Judge, Faisalabad & 02 others
W. P. No. 7340 / 2024
Mr. Justice Shams Mehmood Mirza, Mr. Justice Abid Hussain Chattha
https://sys.lhc.gov.pk/appjudgments/2024LHC4177.pdf

Facts: The petitioners filed a suit for recovery of maintenance allowance and dowry
articles, which was partially decreed by the Family Court. Both parties filed cross-
appeals, and the matter reached the Hon’ble Supreme Court. During execution, a
dispute arose over whether the 10% annual increase in maintenance should be
calculated on a compound or non-compound basis, leading to the current petition.

Issues: i) Is the statutory annual increase of 10% in maintenance allowance, as mandated

by Section 17-A(3) of the Family Courts Act, 1964, applicable on a compound or
non-compound basis?
ii) Does Section 17-A(3) of the Family Courts Act apply to all pending cases after
its promulgation?
iii) What is the intent behind the automatic annual increase in maintenance under
Section 17-A(3)?
iv) Should Section 17-A(3) be interpreted liberally in favour of the beneficiaries
(wife and children)?

Analysis: i) The expression “the maintenance fixed by the Court shall automatically stand
increased at the rate of ten percent each year” ordinarily imply that quantum of
maintenance fixed under a decree does not remain static or constant but is a
variable figure which is meant to increase after each year. After increase of 10%
at the end of first year, a new quantum of maintenance comes in field and the
amount gets merged or amalgamated in the quantum of maintenance fixed by
Court. The process is repeated after each year till the legal entitlement of wife or
children under the decree. Therefore, annual increase of each year is required to
be calculated on the merged amount of last preceding year for the reason that 10%

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increase is intrinsically linked with the principal amount and is an inseparable part
of the decree… Hence, it is concluded that when a decree of maintenance does
not prescribe an annual increase or is silent qua calculation of prescribed annual
enhancement on principal or aggregate amount of maintenance, Section 17-A(3)
of the Act will come into operation and the Executing Court shall calculate the
due decreed amount on compound basis."
ii) " Section 17-A(3) of the Act shall apply to all pending proceedings from the
date of its promulgation.
iii) The compound calculation of maintenance not only caters for inflation and
rising cost of living but also allows to account for growing needs and
requirements of wife and children, thus, reducing the occasions to resort to Court
seeking enhancement in maintenance allowance.
iv) Maintenance must be received by those held entitled to receive the same with
dignity in terms of Article 14 of the Constitution. Even the non-discrimination
clause embodied in Article 25 of the Constitution proclaiming equal protection of
law for all citizens, creates a conscious and conspicuous exception by proclaiming
that the State is not prevented from making any special provision for the
protection of women and children. The directive Principles of Policy contained in
Articles 34, 35 and 37 of the Constitution particularly call upon the State to
ensure full participation of women in all spheres of national life; protect marriage,
the family, the mother and the child; promote special care, educational and
economic interests of backward classes; and ensure inexpensive and expeditious
justice… Therefore, it is abundantly clear that Section 17-A(3) of the Act is a
beneficial, remedial or curative provision which calls for liberal interpretation.

Conclusion: i) Annual increase of maintenance allowance is to be computed on compound

basis.
ii), iii and iv. See above analysis.

26. Lahore High Court

Asghar Ali v. Muhammad Asghar
Regular First Appeal No.28132 of 2023
Mr. Justice Ch. Muhammad Iqbal, Mr. Justice Ahmad Nadeem Arshad
https://sys.lhc.gov.pk/appjudgments/2024LHC4161.pdf

Facts: This appeal challenges a trial court judgment that partially awarded damages for
malicious prosecution. The respondent, a lambardar, filed a suit alleging that the
appellant, motivated by political rivalry, initiated a series of legal actions aimed at
revoking the respondent's government-allocated land. These actions, including
appeals and revision petitions, were claimed to be dishonest and malicious,
causing the respondent significant financial loss, reputational damage, and
emotional distress. The trial court found merit in part of the respondent’s claim,
prompting the appellant to file this appeal.
Issues: i) What are the conditions required for a claim of malicious prosecution?
ii) How malicious prosecution can be defined?

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iii) What constitutes ‘reasonable and probable cause’ in a claim for malicious
prosecution?
iv)What does ‘Reasonable and Probable cause’ connotes?
v) What is malice and how it is proved?
vi) What is the status of ‘Charagah’ land?

Analysis: i) In the case of “MUHAMMAD AKRAM versus FARMAN BIBI” (PLD 1990
Supreme Court 28), the august Supreme Court of Pakistan has laid down certain
principles for the grant or refusal of damages on account of malicious
prosecution. The first two of these conditions are required for the issue of
maintainability whereas the remaining are to be proved for success and the said
conditions must exist conjointly. These conditions are as under: -
(i) that the plaintiff was prosecuted by the defendant;
(ii) that the prosecution ended in plaintiff‟s favour;
(iii) that the defendant acted without reasonable and probable cause;
(iv) that the defendant was actuated by malice;
(v) that the proceedings had interfered with plaintiff‟s liberty and had also
affected his reputation and finally
(vi) that the plaintiff had suffered damage.
ii) The term „malicious prosecution‟ is defined in the 11th Edition of Black‟s
Law Dictionary in the following manner: -
“The institution of a criminal or civil proceeding for an improper purpose and
without probable cause. The tort requires proof of four element‟s (1) the initiation
or continuation of a lawsuit; (2) lack of probable cause for the lawsuits‟ initiation;
(3) malice; and (4) favourable termination of the original lawsuit.
A judicial proceeding, instituted by one person against another from wrongful or
improper motives, and without probable cause to sustain it. It is usually called a
malicious prosecution; and an action for damages for being subjected to such a
suit is called an action for malicious prosecution. In strictness, the prosecution
might be malicious, that is, brought from lawful motives, although founded on
good cause. But it is well established that unless want of probable cause and
malice occur no damages are recoverable. However, blameworthy was the
prosecutor‟s motives, he cannot be cast in damages if there was probable cause
for the complaint he made. Hence, the term usually imports a causeless as well as
an ill intended prosecution. It commonly, but not necessarily, means a prosecution
on some charge of crime.”
iii) The person who claimed for compensation on account of malicious
prosecution must also establish the connection between the reasonable and
probable cause and the malice. For the purposes of bringing a claim for malicious
prosecution the requirements of “absence of reasonable and probable cause” and
„malice‟ were separate requirements although they may be entwined. The proof
of absence of „reasonable and probable cause‟ must co-exist alongside „malice‟.
It is commonplace that in order to succeed in an action for malicious prosecution
the plaintiff must prove both that the defendant was activated by malice and that
he had no reasonable and probable cause for prosecution. It is also by now a

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settled law that every prosecution/inquiry which ends in the clearing of opponent
will not per-se entitle the opponent to file a suit for compensation. Successful
proceedings initiated under this law required that the original proceedings must
have been malicious and without cause.
iv) “Reasonable and Probable cause” means an honest belief in the guilt of the
accused based on a full conviction founded upon reasonable grounds, of the
existence of circumstances, which assuming them to be true, would reasonably
lead any ordinary prudent man and cautious man placed in the position of the
accuser to the conclusion that such person charged was probably guilty of the
crime imputed.
v) In other words “Malice” means the presence of some improper and wrongful
motive that is to say, some motive other than desire to bring to justice a person
whom the prosecutor honestly believes to be guilty. (…) The existence of
malicious itself is not sufficient to prove malicious prosecution but should be
accompanied by proof of absence of reasonable and probable cause and the
malice should be proved affirmatively.
vi) It is pertinent to mention here that from perusal of different Notifications
issued by the Revenue hierarchy from time to time it is obvious that the
„Charagah‟ lands have expressly been excluded from every grant, hence, its any
alienation or grant of proprietary rights thereof are not inconsonance with the
policy. Moreover, it is also an admitted fact that the „Charagah‟ land cannot be
converted into state land for its onward allotment against any sort of claim and
shall not be used for any other purpose except with the prior permission of the
Board of Revenue. Change of character of the „Charagah‟ land was subservient to
the manifestly described wider scope of public purpose.

Conclusion: i) See analysis No.i

ii) See analysis No.ii
iii) The claimant must demonstrate both the lack of reasonable and probable cause
and the existence of malice, as these are separate yet closely connected legal
elements.
iv) Reasonable and probable cause is a genuine belief in the accused's guilt, based
on credible evidence that a reasonable person would find convincing.
v) Malice refers to an improper motive beyond a desire for justice, and must be
proven alongside the absence of reasonable cause for a malicious prosecution
claim.
vi) 'Charagah' lands are explicitly excluded from grants or ownership transfers
and cannot be converted for allotment or other uses without prior approval from
the Board of Revenue, as they are designated for public purposes.

27. Lahore High Court

SAASA Corporation (Pvt) Limited v. M/s SEFAM Pvt Limited
R.F.A. No.8394 of 2023
Mr. Justice Ch. Muhammad Iqbal, Mr. Justice Ahmad Nadeem Arshad
https://sys.lhc.gov.pk/appjudgments/2024LHC4319.pdf

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Facts: The parties entered into a contract for the supply and installation of an elevator,
with a 50% advance payment made by the respondent, against which dispute
arose between the parties and both parties filed suits, which were consolidated,
and the trial court partially decreed in favor of M/s Sefam while dismissing
Saasa's claims.

Issues: i. Whether the defendant has the right to cross-examine the witnesses of the
plaintiff after consolidation of both suits?
ii. What is the legal effect of consolidating suits with similar parties and subject
matter?
iii. Does failing to provide an opportunity for cross-examination violate fair trial
rights?
iv. Can the court pass orders without hearing the other party, and what is its legal
consequence?

Analysis: i) "After framing fresh consolidated issues it is mandatory under Order XVIII of
CPC for the trial court to fix the case for cross examination upon the witnesses of
the respondent/plaintiff/PWs but no fair opportunity was granted which is blatant
violation of aforesaid provision of law."
ii) "It is well-settled by a long chain of authorities that the consolidation of the
suits can be ordered by the Court in exercise of its inherent powers... The purpose
of the consolidation is to avoid multiplicity of litigation to eliminate award of
contradictory judgments and to prevent the abuse of the process of the Court."
iii) The compound calculation of maintenance not only caters for inflation and
rising cost of living but also allows to account for growing needs and
requirements of wife and children, thus, reducing the occasions to resort to Court
seeking enhancement in maintenance allowance.
iii) Non-providing opportunity to cross examine the witnesses is violative of the
principles of fair trial
iv) "It is settled principle of law that no one should be condemned unheard and if
any adverse order is passed without affording an opportunity of hearing to the
opponent party, such order is termed as illegal and passed in violation of the
principle of ‘due process of law’ as enshrined in Article 10-A of the Constitution
of the Islamic Republic of Pakistan, 1973.

Conclusion: i) After framing fresh consolidated issues it is mandatory to give clear opportunity
for cross examination.
ii) The purpose of the consolidation is to avoid multiplicity of litigation to
eliminate award of contradictory judgments and to prevent the abuse of the
process of the Court.
iii) & iv) See above analysis.

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28. Lahore High Court
Amir Mahmood v. The State and another
Crl. Misc. No. 44858-B/2024
Mr. Justice Tariq Saleem Sheikh, Mr. Justice Muhammad Amjad Rafiq
https://sys.lhc.gov.pk/appjudgments/2024LHC4209.pdf

Facts: The petitioner is applying for pre-arrest bail in an FIR concerning alleged
regulatory violations in cosmetics manufacturing. During a facility inspection, a
drug inspector found five medicated cosmetic products without valid
manufacturing licenses. The products were confiscated, and samples were sent for
testing, which revealed they were unregistered and contained allopathic
ingredients. Consequently, the finished goods store was sealed, and the FIR was
registered after receiving approval from the appropriate quality control authority.
Issues: i) What does the Drugs Act, 1976 regulate?
ii) What does Section 17 of ibid Act empower the government to do?
iii) What do Sections 18 and 19 of ibid Act cover for Inspectors?
iv) What does Clause (a) of Section 18(1) of the ibid Act allow Inspectors to do?
v) What authority does Clause (b) of Section 18(1) grant to Inspectors?
vi) What does Clause (f) of Section 18(1) allow Inspectors to seize?
vii) What authority does Clause (h) of Section 18(1) give to Inspectors?
viii) What was the purpose of the DRAP Act enacted in 2012?
ix) What do Sections 7 and 27 of the Act outline regarding the DRAP's powers
and the associated offences?
x) What must Provincial Inspectors do if they find a contravention under Clause
(6) of Schedule-V of DRAP Act?
xi) How does Section 29 of DRAP Act direct Inspectors to address offences?
xii) How do the Drugs Act and the DRAP Act define "drug" and "medicated
cosmetics"?
xiii) What is the purpose of the Pakistan General Cosmetics Act, 2023?
xiv) How does Section 2(j) of the Pakistan General Cosmetics Act define "general
cosmetic"?
xv) How does the legal framework differentiate between "medicated cosmetics"
and "general cosmetics"?
xvi) What are the key types of partnerships in business law?
xvii) What is a Partnership of Skill and Capital?
xviii) How is profit-sharing determined in a Partnership of Skill and Capital?
xix) What is the definition of a partnership under the Partnership Act 1932 in
Pakistan?
xx) What does "business" include in the context of a partnership?
xxi) How partnership relationship arises under Partnership Act?
xxii) What does Section 6 of Partnership Act state about determining the
existence of a partnership?
xxiii) What are the consequences outlined in Section 27 for violations of Section
23(1)(a)(vii) of the Drugs Act?

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xxiv) What is a key requirement for granting pre-arrest bail according to
precedents?

Analysis: i) The Drugs Act is a special law that regulates the import, export, manufacture,
storage, distribution, and sale of drugs.
ii) Section 17 of the Act empowers the Federal or Provincial Government to
appoint qualified individuals as Federal or Provincial Inspectors within designated
local limits to enforce the Act.
iii) Section 18 outlines the powers conferred upon these Inspectors, while section
19 details the procedures they must follow when seizing any drug or article under
section 18.
iv) Clause (a) of section 18(1) of the Drugs Act authorizes the Inspector, with the
permission of the licensing authority, to inspect any premises where drugs are
manufactured (including the plant), the manufacturing process, the means used for
standardizing and testing the drugs, and all relevant records and registers.
v) Clause (b) of section 18(1) empowers the Inspector to inspect any premises
where drugs are sold, stocked, exhibited for sale, or distributed, along with the
storage arrangements and all relevant records and registers.
vi) Clause (f) of section 18(1) allows the Inspector to seize any drug, materials
used in its manufacture, and any other articles, such as registers, cash memos,
invoices, and bills, which he has reason to believe may provide evidence of an
offence punishable under the Drugs Act, or the rules made thereunder.
Vii) Clause (h) of section 18(1) grants the Inspector the authority to lock and seal
any factory, laboratory, shop, building, storehouse, or godown, or any part
thereof, where any drug is being manufactured, stored, sold, or exhibited for sale
in violation of the said Act or the rules.
viii) In 2012, Parliament enacted the DRAP Act (XXI of 2012) to establish the
Drug Regulatory Authority of Pakistan (“DRAP”) 2 “to provide for effective
coordination and enforcement of the Drugs Act and to bring harmony in inter-
provincial trade and commerce of therapeutic goods, and to regulate,
manufacture, import, export, storage, distribution, and sale of therapeutic goods.”
ix) Section 7 of the Act describes the DRAP’s powers and functions. Section
27(1) states that the offences shall be such as specified in Schedule-III, and
section 27(2) provides that the prohibitions specified in Schedule-II shall be
punishable in accordance with Schedule-III.
x) Schedule-V of the DRAP Act outlines the powers of Inspectors. Clause (6) of
Schedule-V stipulates that the Provincial Inspector, upon finding any
contravention of the DRAP Act or the Drugs Act, shall, unless otherwise directed
by the Board, always refer the case to the Provincial Quality Control Board3 and
seek orders regarding the action to be taken in response to such infringements.
xi) Section 29 states that the Inspector shall take cognizance of offences in the
manner specified in Schedule-IV.
xii) The Drugs Act defines the term “drug” in section 3(g) and the DRAP Act in
section 2(xii) read with Schedule-I. The DRAP Act separately defines “medicated

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cosmetics” in Schedule-I. According to it, they include “cosmetics containing
drugs and are defined as articles containing active drug ingredients intended to be
rubbed, poured, sprinkled, or sprayed on, or introduced into, or otherwise applied
to the human body or part thereof for cleansing, beautifying, promoting
attractiveness, or altering the appearance, and articles intended for use as a
component of any such articles; except that such term shall not include soap.”
xiii) Parliament has also enacted the Pakistan General Cosmetics Act, 2023
(XLIII of 2023), to regulate the quality, standard, labeling, packing,
manufacturing, storage, distribution, and sale of general cosmetics.
xiv) Section 2(j) of the Act defines “general cosmetic” to mean “any substance
intended to be used to clean, improve or change of complexion of skin, hair, nails
or teeth and include the beauty preparations for make-up, perfume, skin cream,
skin lotion nail polish, nail paint, soap, shampoo, shaving cream, gel, sun care and
deodorant also include any article intended for use as a component of general
cosmetics or any other item declared by the [Pakistan General Cosmetics
Regulatory] Authority for the purposes of this Act.”
xv) Thus, the legal framework distinguishes between “medicated cosmetics” and
“general cosmetics.” The DRAP Act governs the former, while the latter falls
under the Act of 2023. There is no overlap between these two categories.
xvi) In business law, a partnership is a formal arrangement between two or more
individuals to operate a business and share its profits and liabilities. There are
various types of partnerships, each defined by the partners’ roles, responsibilities,
and liabilities. When no fixed period is prescribed for the partnership’s duration, it
is considered a partnership at will. Conversely, when the partners establish a fixed
duration for the partnership, it ends upon the expiration of that period. If the
partners continue the partnership after the fixed period has expired, it transitions
into a partnership at will.
xvii) A Partnership of Skill and Capital, also known as a Partnership of Labour
and Capital, is a business arrangement where one partner provides the financial
capital, and the other contributes skill or expertise to manage the business. This
mutually beneficial structure allows each partner to contribute what they possess
in abundance. The capitalist partner supplies the necessary funds but typically
does not engage in daily operations, while the working partner manages the
business using their skills and knowledge.
xviii) The profit-sharing arrangement is based on the contributions of both
partners and is defined in the partnership agreement. Due to their financial risk,
the capitalist partner usually receives a portion of the profits proportionate to their
investment. On the other hand, the working partner earns their share based on the
value of their expertise and labour. These terms vary, and the agreement can
allocate profits in any way that reflects the contributions and roles of the partners.
This type of partnership allows both parties to focus on their strengths: the
capitalist providing financial backing and the working partner managing the
business. The clear division of responsibilities often leads to more efficient
operations.

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xix) In Pakistan, partnerships are governed by the Partnership Act 1932 and,
where it is silent, by the Contract Act 1872. Section 4 of the Partnership Act
defines a “partnership” as “the relation between persons who have agreed to share
the profits of a business carried on by all or any of them acting for all.”
Consequently, a partnership must be formed to conduct a business, which must be
legal.
xx) “Business” encompasses every trade, occupation, and profession6 and is not
undertaken for personal pleasure. The essential feature of a partnership is the
concept of mutual agency, where each partner acts as an agent for the others in
business matters.
xxi) Section 5 of the Partnership Act stipulates that the partnership relationship
arises from a contract, not status.
xxii) Section 6 provides that in determining whether a group constitutes a firm or
whether an individual is a partner, the actual relationship between the parties must
be evaluated based on all relevant facts. Explanation 1 clarifies that sharing
profits or gross returns from jointly held property does not automatically establish
a partnership. Explanation 2 further states that receiving a share of business
profits or payments linked to profits does not make someone a partner by itself. In
particular, the following payments do not create a partnership: (a) by a lender of
money to persons engaged in or about to engage in any business, (b) by a servant
or agent as remuneration, (c) by the widow or child of a deceased partner, as an
annuity, or (d) by a previous owner or partowner of the business, as consideration
for the sale of goodwill or a share thereof.
xxiii) Section 23(1)(a)(vii) of the Drugs Act prohibits any person from exporting,
importing, manufacturing for sale, or selling any drug that is either unregistered or
not in compliance with registration conditions. Section 27 prescribes punishment
for such offences.

Conclusion: i) See analysis No.i.

ii) Allows the government to appoint qualified inspectors to enforce its provisions
within specific areas.
iii) define the powers of inspectors and the procedures for seizing drugs or
articles.
iv) this provision allows Inspectors to inspect drug manufacturing premises and
related records for compliance.
v) The Inspectors inspect drug sales and storage premises for compliance.
vi) Seize drugs and related materials that may serve as evidence of violations.
vii) To lock and seal premises involved in the unlawful manufacture, storage, or
sale of drug
viii) To coordinate and enforce drug regulations and facilitate inter-provincial
trade of therapeutic goods.
ix) Both provisions define the DRAP's powers and specify the offences and
penalties related to drug regulations.

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x) To refer any contravention to the Provincial Quality Control Board for further
action.
xi) The procedures for Inspectors to take cognizance of offences as specified in
Schedule-IV.
xii) The Drugs Act and DRAP Act define "drug" and "medicated cosmetics," the
latter including cosmetics with active drug ingredients for body application,
excluding soap.
xiii)To regulates the quality, labeling, and sale of general cosmetics.
xiv) Any substance for cleaning or enhancing skin, hair, nails, or teeth, including
various beauty products.
xv) separates "medicated cosmetics" and "general cosmetics," with each category
governed by its respective regulations.
xvi) Partnerships can be classified as partnerships at will or fixed-duration, with
the former continuing indefinitely and the latter ending after a set period unless
renewed.
xvii) A Partnership of Skill and Capital involves one partner providing financial
resources while the other contributes expertise, allowing each to leverage their
strengths for mutual benefit.
xviii) Profit-sharing in a Partnership of Skill and Capital is based on each partner's
contributions, promoting efficient operations through clear responsibilities.
xix) See analysis No.xix.
xx) See analysis No.xx.
xxi) From a contract, not status.
xxii) The actual relationship between parties must be evaluated to determine
partnership status, clarifying that certain payments do not establish a partnership.
xxiii) Section 27 outlines penalties for breaching Section 23(1)(a)(vii), which
prohibits dealing with unregistered drugs.
xxiv) The fear of arrest for ulterior motives is crucial for granting pre-arrest bail.

29. Lahore High Court

M/S Z A Corporation v. Federation of Pakistan etc.
W.P.No.57829/2024
Mr. Justice Abid Aziz Sheikh
https://sys.lhc.gov.pk/appjudgments/2024LHC4073.pdf

Facts: The petitioner through the instant constitutional writ challenged the appointment
of chairman of a Federal organization appointed at Islamabad.

Issues: i) When the writ jurisdiction of Hon’ble High Court could be invoked to question
the authority of any person holding some office?
ii) What is the territorial jurisdiction of the Hon’ble High Court for the writ of
Quo Warranto?
iii) Whether a person can perform functions beyond the place of his/her place of
office?

Analysis: i) The High Court may if it is satisfied that there is no other adequate remedy

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provided by law on the application of any person, make an order requiring the
person within the territorial jurisdiction of the Court holding or purporting to hold
public office to show under what authority of law, he claims to hold that office.
ii) The words “within the territorial jurisdiction of the Court holding or purporting
to hold public office” would lead to the ineluctable conclusion that for the
purpose of writ of quo warranto, a person against whom, constitutional petition
has been filed, must be holding or purporting to hold public office within a
territorial jurisdiction of that Court.
iii) A person may perform functions within the territorial jurisdiction of the Court,
even if, he is not holding public office within the territorial jurisdiction of said
Court, hence constitutional petition may be maintainable in said Court
considering the dominant object for filing of writ petition, however, in case of
writ of quo-warranto under Article 199(1)(b)(ii) of the Constitution, a person must
hold or purported to hold public office within territorial jurisdiction of Court,
where constitutional petition has been filed.

Conclusion: i) Where the Hon’ble High Court is satisfied that there is no other adequate
remedy the Hon’ble High Court may issue a writ of Quo Warranto.
ii) The Hon’ble High Court may issue writ of Quo Warranto against a person
holding or purported to hold public office within territorial jurisdiction of Court.
iii) A person may perform functions within the territorial jurisdiction of the
Court, even if, he is not holding public office within the territorial jurisdiction of
said Court.

30. Lahore High Court

Riaz Ahmad etc. v. Secretary to Govt. of the Punjab etc.
F. A. O. No. 29323 of 2021
Mr. Justice Masud Abid Naqvi
https://sys.lhc.gov.pk/appjudgments/2024LHC4104.pdf

Facts: The appellants/applicants moved before the Hon’ble High Court against dismissal
of an application by learned District Court. They moved an application under
section 11 of Punjab Waqf Properties Ordinance, 1979 with the averments that
disputed land was “Patta Dawami” and is not a Waqf land as notified by Auqaf
department.

Issues: i) What is effect of non-registration of lease upon its perpetuity or otherwise?

ii) How is the lease of an immovable property regulated; whether it could be in
perpetuity?

Analysis: i) For ascertaining & adjudging this question if a particular lease is perpetuity or
otherwise, the Hon’ble Supreme Court of F.A.O. No. 29323 of 2021 5 Pakistan in
a case reported as Government of Sindh and others Vs Muhammad Shafi and
others (PLD 2015 SC 380) held that:- ………
“After the enforcement of the two enactments referred to above, however,
the question of determination of whether a lease is one in perpetuity or not stands

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simplified. Section 17 of the Registration Act ibid mandates certain instruments to
be compulsorily registerable and subsection (d) of section 17 provides in the list
of such documents “a lease of immoveable property from year to year, or for any
term exceeding one year, or reserving a yearly rent.” The effect of nonregistration
of such instruments is provided by Section 49 of the Registration Act in the
manner:
……………………………………
……………………………………
Similarly it is clear from Section 107 of TPA that a lease of any property
beyond one year could only be effected by a registered instrument (note:-subject
to the exemption qua other leases orally made coupled with delivery of
possession). This is the express and unequivocal mandate of the law. It is settled
principle of law that whether law requires an act to be done in a particular
manner, it has to be done accordingly and not otherwise. At this point, we may
also add that if an act is done in violation of law, the same shall have no legal
value and sanctity, especially when the conditions/circumstances which may
render such an act invalid have been expressly and positively specified in law (see
section 49 ibid)………..”
ii) The lease of immovable property is defined under Section 105 of the Transfer
of Property Act, 1882 which regulates and determines the relationship of lessor
and lessee and unambiguously stipulates that lease of immovable property is a
transfer of a right to enjoy such property, made for certain time, express or
implied, or in perpetuity in consideration of price paid or promised and the
transferor is called lessor, the transferee is called lessee, price is called the
premium and money, share of crops, service or any other thing of value to be
rendered periodically or on specified occasion to the transferor by the transferee.
So, the essential features of lease are the transfer of interest to enjoy property with
exclusive possession by the transferor to the transferee for certain time or in
perpetuity for consideration of price paid or promised etc.

Conclusion: i) As per the analysis already made upon issue (i)

ii) As per the analysis already made upon issue (ii)

31. Lahore High Court

M/s. Mehr Dastgir Leather and Footwear Industries (Pvt) Limited v.
Federation of Pakistan through Secretary Ministry of Finance & others
W.P No.15793 of 2022
Mr. Justice Shahid Karim
https://sys.lhc.gov.pk/appjudgments/2024LHC4061.pdf

Facts: The petitioner-company is contesting show cause notices issued by the tax
department, despite the matter being previously resolved in their favor by higher
courts. While the company had secured legal rulings supporting their tax refund
claims, the department did not process the refunds. Following complaints, the
department introduced new justifications, alleging the suppliers were blacklisted,

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which contradicted prior court rulings. The petitioner contends that these new
notices revisit issues already settled, making them both unjust and retaliatory.

Issues: i) What is ‘condonation of time limit’ under section 74 of the Sales Act, 1990?
ii) To whom power is vested to condone time limit?
iii) Where condonation of time limit applies?
iv) Whether provision of section 74 ibid Act is applicable to the action under
section 11 of the ibid Act?
v) What are the checks upon the power of condonation of time limit?
vi) Whether any guidelines are provided under section 74 ibid Act for extending
time limitation?
vii) Whether statutory limitation can be reversed?

Analysis: i) Section 74 provides that: “74. Condonation of time-limit.– Where any time or
period has been specified under any of the provisions of the Act or rules made
there under within which any application is to be made or any act or thing is to be
done, the Board may, at any time before or after the expiry of such time or period,
in any case or class of cases, permit such application to be made or such act or
thing to be done within such time or period as it may consider appropriate.
Provided that the Board may, by notification in the official Gazette, and subject to
such limitations or conditions as may be specified therein, empower any
Commissioner to exercise the powers under this section in any case or class of
cases.”
ii) The above provision grants power to the Board to permit an act or thing to be
done within such period or time as it may be considered appropriate.
iii) This condonation applies where any time or period has been specified under
any provision of the Act or rules within which any application is to be made or
any of the act or thing is to be done. The condonation may under peculiar
circumstances permit such act or thing to be done within an extended period of
time.
iv) Quite clearly, this provision does not apply to an action being taken under
section 11 (now repealed) which relates to assessment of tax and recovery of tax
not levied or short levied or erroneously refunded.
v) From a reading of section 74 of the Act, it can be discerned that there have to
be reasonable and rational grounds which should compel the Board to make an
order in the nature of the one envisaged by section 74. It is not an automatic
exercise of power or a request made by an officer of Inland Revenue. (…)It is not
enough for FBR to simply condone the time limit and this must be supported by
reasons and on the basis of documents which would show that there were
circumstances beyond the control of officers of Inland Revenue at the relevant
time which constrained them from taking action under the normal time limit.
vi) it has been held that no guidelines or parameters have been mentioned in
section 74 of the Act and the least that FBR should do is to provide reasons for
extending the limitation period.

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vii) There cannot be unbridled reversal of statutory period of limitation as legal
rights have come to accrue in the registered person.

Conclusion: i) See analysis No.i.

ii) Federal Board of Revenue (FBR).
iii) Extension granted under specific circumstances.
iv) Provision not applicable.
v) Section 74 requires reasonable grounds and supporting documents to justify
time limit condonation, not merely a request or automatic approval.
vi) No guidelines provided but FBR required explicit reasoning.
vii) No unbridled reversal of statutory period of limitation.

32. Lahore High Court

M/S 7Sky Digital Marketing Pvt. Limited v. M/S ASR Builders & another.
Civil Revision No.326 of 2024.
Mr. Justice Mirza Viqas Rauf
https://sys.lhc.gov.pk/appjudgments/2024LHC4069.pdf

Facts: This Civil Revision is against the order of the Trial Court by which two separate
legal petitions of petitioner and respondent No.1 relating to the same core issue
have been consolidated and court framed a single set of consolidated issues.

Issues: i) The Arbitration Law of pre-independence era and how it repeals.

ii) What is the purpose of The Arbitration Act, 1940?
iii) The role of Arbitration.
iv) How the court decide matter under the ibid ‘Act’?
v) Whether the provisions of Civil Procedure Code (CPC) is applicable to the
proceedings under the ibid ‘Act’?

Analysis: i) It would not be out of context to mention here that before independence, there
was no specific law on resolution of the disputes through arbitration and it was
only invented in the first instance in British Rules through Indian Arbitration Act
1899. In the year 1940, for the first time, comprehensive and uniform law on the
subject was introduced in the shape of “Act, 1940” by virtue of which, the
previous law i.e. the Indian Arbitration Act, 1899 was repealed alongwith second
schedule of the “CPC”.
ii) The purpose of the “Act, 1940” was to provide a domestic tribunal for
settlement of disputes by and between the parties and provide expeditious relief
strictly unhampered by the rules or procedure laid down in the “CPC” and The
Evidence Act, 1872, which is now Qanun-e-Shahadat Order 1984.
iii) The arbitration procedures are in fact consolatory in nature and the arbitrator
is a person in whom the parties repose their confidence. In other words, the
arbitration is one of alternate modes of resolution of the disputes interse the
parties.
iv) There is no cavil that in terms of Section 33 of the “Act, 1940” any party to an
arbitration agreement desiring to challenge the existence or validity of an

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arbitration agreement or an award or to have the effect of either determined may
apply to the court and the court shall decide the question on affidavit. The proviso
to Section 33 of the “Act, 1940”, however, ordains that where the court deems it
just and expedient, it may set down the application for hearing and other evidence
also, and it may pass such order for discovery and particulars as it may do in a
suit.
v) Section 41 of the “Act, 1940” provides procedure and powers of the court and
in terms of Sub-Section (a) of Section 41 of the “Act, 1940”, the provisions of
“CPC” are applicable to all the proceedings before the court under the “Act,
1940”. Needless to mention that the applicability of the provisions of “CPC” are
not meant to hamper the arbitration proceedings but for ensuring the advancement
of ends of justice.

Conclusion: i) See analysis No.i.

ii) Provide a domestic tribunal for expeditious settlement of dispute free from
constraint of CPC and QSO, 1984.
iii) Arbitration is a trusted alternative dispute resolution, fostering collaboration
between parties.
iv) The parties may challenge the validity of arbitration agreements or awards in
court, and the court shall decide on affidavit and may with the provision for a
hearing, evidence and discovery if deemed necessary.
v) The provisions of CPC is to facilitate arbitration proceedings related while
promoting the pursuit of justice.

33. Lahore High Court

Mst. Misbah Iftikhar & another v. Mst. Aleesa and 3 others
Writ Petition No.1234 of 2023
Mr. Justice Mirza Viqas Rauf
https://sys.lhc.gov.pk/appjudgments/2024LHC4133.pdf

Facts: Suit of respondent No 1 for recovery of dower etc. against respondents No 2 and 3
was partly decreed and respondent No1 was held entitled to recover a house as
part of dower alongwith other reliefs. Feeling aggrieved respondents 2 and 3
preferred an appeal in which the decree to the extent of house was maintained by
the Learned Appellate court thereafter respondent No1 filed an execution petition.
The petitioners filed an application under section 12(2) of CPC before the
Learned Appellate court claiming their ownership qua the suit property which
application was dismissed; the same judgment was assailed by the petitioners.

Issues: i) What is the object of Family Court Act, 1964?

ii) Definition of Family Court and their Establishment.
iii) Can an Additional District Judge acting as an appellate court under the Family
Courts Act of 1964 decide an application under Section 12(2) of the Code of Civil
Procedure?
iv) Is fresh suit barred if a judgment or decree is obtained through fraud?

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v) Interpretation of the term ‘person’ used in section 12(2) of the Code of Civil
Procedure.
vi) Whether Concealments of facts amounts to fraud?
vii) Whether application under section 12(2) of Code of Civil Procedure could be
moved before a Family Court?
viii) Whether issues should be framed in an application under section 12(2) of
Code of Civil Procedure when fraud and misrepresentation is alleged?

Analysis: i) As per preamble of the "Act, 1964", it was enacted to make provision for the
establishment of Family Courts for the expeditious settlement and disposal of
disputes relating to marriage and family affairs and for matters connected
therewith.
ii) Section 2 deals with the definitions clause and it defined "Family Court" as
under :-
"(b) "Family Court" means a Court constitute under this Act"
Section 3 of the "Act, 1964" mandates the Government of Punjab to
establish Family Courts, which reads as under :-

"S. 3. Establishment of Family Courts.- (1) Government shall

establish one or more Family Courts in each District or at such other
place or places as it may deem necessary and appoint a Judge for
each of such Court:
Provided that at least one Family Court in each District, shall be
presided over by a woman Judge to be appointed within a period of
six months or within such period as the Federal Government may,
on the request of Provincial Government, extend;
(2) A woman Judge may be appointed for more than one District and
in such cases the woman Judge may sit for the disposal of cases at
such place or places in either District, as the Provincial Government
may specify.
(3) Government shall, in consultation with the High Court, appoint
as many woman Judges as may be necessary for the purposes of
sub-section 1."
iii) It would not be out of context to mention here that a Family Court is a Civil
Court in every aspect despite the exclusion of the provisions of the "C.P.C."
with exception to Sections 10 & 11 and the Qanun-e-Shahadat Order, 1984 by
virtue of Section 17 of the "Act, 1964". Though in terms of Rule 3 of the Family
Courts Rules, 1965, the courts of the District Judge, the Additional District
Judge are also designated as Family Courts alongwith the Civil Judge but
ordinarily functions of Family Courts are assigned to the Civil Judge and the
District Judge and the Additional District Judge acts as appellate court as is
evident from the bare reading of Section 14 of the "Act, 1964".
iv) Prior to insertion of subsection (2) in section 12 of the "C.P.C." one has to

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institute a suit for setting aside of a judgment, decree or order obtained by
practicing fraud upon the court but with the introduction of subsection (2),
fresh suit was barred.
v) By virtue of subsection (2) of Section 12 of the "C.P.C." any person can
challenge the validity of judgment, decree or order on the plea of fraud,
misrepresentation or want of jurisdiction by filing an application to the court
which passed the final judgment, decree or order. The term "person" used in
subsection (2) has wider import and cannot be narrowly interpreted, so as to
restrict it to refer to only a judgment debtor or his successors but it should be
read to include any person adversely effected even though not a party to the
proceedings wherein such decree, judgment or order is passed.
vi) The scope of Section 12(2) of "C.P.C." is not narrow but wider enough. It
is not restricted to the judgment, decree or order obtained while playing fraud
with the court but it also extends to the cases where a judgment, decree or
order has been obtained by the parties through fraud interse by concealment of
true facts.
vii) In the case of FOZIA MAZHAR versus ADDITIONAL DISTRICT
JUDGE and 2 others (2021 CLC 270) in somewhat similar facts and
circumstances this Court held as under :- "6. In view of the above, If for the
sake of arguments this Court considers that application section 12(2) of the
Code of Civil Procedure, 1908 was not maintainable due to non- applicability
of C.P.C., even then the learned Judge Family Court in a case where as decree
or order has been obtained through fraud, deceits, misrepresentation or on any
of such grounds, the learned Judge Family Court can competently entertain
such an application under the inherent jurisdiction, which is presumed and
considered to be vesting in all Courts, Tribunals or authority of even limited
jurisdiction, because it is a settled principle of law that fraud vitiates the most
solemn proceedings even and the decrees, orders or the judgments obtained in
pursuit of these intentions or actions are to be reviewed, reversed, recalled or
upset. This rule is based on the principle that an authority if can do act or pass
an order, judgment or decree, it can undo it also but with some exceptions
also, if the authority has been defrauded in the passing of that act, order or
judgment. In addition to the above, the general rule that power of review does
not exist unless it is expressly conferred by law, has got two well-established
exceptions i.e. (i) a court has inherent jurisdiction to set aside judgment or
order which it had delivered without jurisdiction; (ii) a court or authority has
the power to review an order or judgment obtained by fraud……’’…… After
having an overview of the principles laid down in the above cited judgments
no cavil left to hold that despite an embargo in terms of Section 17 of the
"Act, 1964" there is no legal impediment in the way of an aggrieved person
moving an application under Section 12(2) of the "C.P.C." before the Family
Court.
viii) Suffice to observe that though it is not a principle of universal application
that in each and every case, the court is bound to frame the issues before

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deciding the fate of an application under Section 12(2) of the "C.P.C." but
where misrepresentation and fraud have been alleged and prima facie a case is
made out, in such an eventuality said application should have not been
dismissed summarily.
Conclusion: i) The main object is expeditious settlement and disposal of disputes relating to
marriage and family affairs.
ii) See above analysis No ii.
iii) the Additional District Judge acts as appellate court as is evident from the bare
reading of Section 14 of the "Act, 1964".
iv) Fresh suit is barred.
v) See above analysis No v.
vi) Scope of provisions of Section 12(2) of CPC includes decree or order
obtained by the parties through fraud interse by concealment of true facts.
vii) There is no legal impediment in the way of an aggrieved person moving
an application under Section 12(2) of the "C.P.C." before the Family Court.
viii) See above analysis No viii.

34. Lahore High Court

Muhammad Naeem, Advocate etc. v. The Member (Judicial-II), BOR Punjab,
Lahore etc.
Case No: Writ Petition No.59198 of 2024
Mr. Justice Ch. Muhammad Iqbal
https://sys.lhc.gov.pk/appjudgments/2024LHC4125.pdf

Facts: This case involves a challenge to the validity of an order dismissing a review
petition related to two partition applications for joint land in a specific area. The
proceedings were initially sine die adjourned due to a pending civil suit, leading
to subsequent review applications that faced further adjournments. Additional
Deputy Commissioner (Revenue) on application, directed timely decisions, but
the Member Board of Revenue, Punjab dismissed appeal and Review application.
Ultimately, prompting the filing of a writ petition to contest the latest decision by
the Board of Revenue.

Issues: i) Which forum is competent to decided Question of Title after amendment in

Section 141 of the Punjab Revenue Act,1967?
ii) Whether during pendency of the suit before Civil Court, the Revenue hierarchy
has jurisdiction to adjudicate the matter pertaining to partition of Agricultural
land?

Analysis: i) Section 141 of the Act ibid was substituted through the Punjab Land Revenue
(Amendment) Act, 2015 with the following provision:
“3. Amendment in Section 141 of Act XVII of 1967.— In the said Act, for
Section 141, the following shall be substituted

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“141. Question of title of holding — If a question of title in the holding is
raised in the partition proceedings, the Revenue Officer shall inquire into the
substance of such question and decide the matter after hearing the parties.”
Now after the aforesaid amendment in respect of the partition between the parties
at the time of incorporation of inheritance mutation, if the parties/co- sharers are
agreed for the scheme of private partition then the Revenue Officer shall affirm
the scheme otherwise he shall immediately commence the proceedings of
partition of the joint holding and complete the same within thirty days. If any
question of title in the holding arises during the partition proceedings, the
Revenue Officer under Section 141 of the Act ibid is fully competent to decide
this issue after hearing the parties and the decision of Civil Court is not required
in this regard.
ii) As far as this plea of the petitioners that civil suit is pending and during the
pendency of the suit before the Civil Court, the revenue hierarchy has no
jurisdiction to adjudicate the matter, suffice it to say that as per Section 141 of the
Land Revenue Act, 1967 if a question of title in the holding is raised in the
partition proceedings, the Revenue Officer shall inquire into the substance of
such question and decide the matter after hearing the parties.

Conclusion: i) After the Punjab Land Revenue (Amendment) Act, 2015 The Revenue Officer
under Section 141 of the Punjab Revenue Act,1967 is fully competent to decide
the issue of title after hearing the parties and the decision of Civil Court is not
required in this regard.
ii) During pendency of the suit before Civil Court, the Revenue hierarchy has
jurisdiction to adjudicate the matter pertaining to partition of Agricultural land.

35. Lahore High Court

Sadiq Poultry Farms (Private) Limited etc. v. First Habib Modaraba
Civil Original Suit No.06 of 2023.
Mr. Justice Jawad Hassan
https://sys.lhc.gov.pk/appjudgments/2024LHC4053.pdf

Facts: A suit was filed under Section 9 of the Financial Institution (Recovery of
Finances) Ordinance, 2001, seeking multiple forms of relief, including the
recovery of some amount plus interest due to defendant’s breach of terms of the
agreements. Defendant filed leave to defend and raised objection upon the
maintainability of the suit on the basis of the territorial jurisdiction clause in the
agreement, which was decided.

Issues: i) What is the prerequisite before taking cognizance or adjudicating upon an

issue?
ii) Whether through a jurisdiction clause in an agreement, jurisdiction can be
conferred to specific court with mutual consent of the parties at dispute?
iii) What are the key differences between exclusive and non-exclusive jurisdiction
clauses in contracts?
iv) What is significance of a ‘boiler plate clause’ used in agreements/contracts?

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Analysis: i) It is a well-entrenched and settled principle of law that before delving into
matter in issue, a Court/Tribunal has to make sure that it has jurisdiction to ponder
upon such issue.
ii) The Supreme Court of Pakistan in “EDEN BUILDERS (PVT.) LIMITED,
LAHORE Versus MUHAMMAD ASLAM and others” (2022 SCMR 2044) (the
“Eden Builders case”) has held that the “parties cannot be restrained to enforce
their right in an ordinary court of law but if by mutual agreement between the
parties a particular court having territorial and pecuniary jurisdiction is selected
for the determination of their dispute, there appears to be nothing wrong or illegal
in it or opposed to public policy”… exclusive jurisdiction clauses enunciate a
choice by parties to limit the place of institution of the suit to one forum.
Jurisdiction clauses, therefore, relate as to which Courts would hear a dispute.
iii) The issue of exclusive jurisdiction for determination and enforcement of
contractual rights and obligation has been discussed by learned Division Bench in
“FAYSAL BANK LIMITED versus Messrs USMAN ENTERPRISES and
another” (2023 CLD 1563), relevant portion thereof reads as” “There are two
broad categories under forum selection clauses and this categorization is
depending on the intention of the parties to a contract as expressed in the language
of the forum selection clause. A contract may contain an exclusive jurisdiction
clause or a non-exclusive jurisdiction clause. Traditionally, a clear cut distinction
could be traced out in common law jurisdictions between an exclusive jurisdiction
clause and a non-exclusive jurisdiction clause. Under a traditional exclusive
jurisdiction clause the parties to a contract agree that disputes arising out of the
contract will be decided exclusively by the court chosen by the parties while
under a traditional non-exclusive jurisdiction clause parties to a contract agree
that a particular court or courts will be having the jurisdiction to decide a matter
pertaining to the contract however such a clause meant a preferable jurisdiction
meaning thereby that jurisdiction of other courts was not ousted altogether.
7. In the modern contracts this clear cut traditional distinction between an
exclusive jurisdiction clause and a non-exclusive jurisdiction clause has faded
away with the passage of time due to multiple factors including increasing use
and growing litigation in relation to such clauses, more sophistication in drafting
contracts and a variation in interpretation of these clauses specially a
nonexclusive jurisdiction clauses by court of different jurisdictions. This scenario
has led to situations where sometimes a non-exclusive jurisdiction clause gives
rise to same effects as that of an exclusive jurisdiction clause. In such a scenario
the traditional distinction between these clauses seems to be an illusory one.
Nevertheless, a distinction can be drawn and ascertained on the basis of the
content and scope of the contractual bargain of the parties to a contract….”
iv) It is now a settled and recognized law in Pakistan, that all commercial and
banking contracts/agreements contain a number of “boilerplate clauses”, which
are often seen as standard add-ons to the main terms and conditions of the
contract. One such “boilerplate clause” relates to jurisdiction and choice of law,

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and although these can be relatively straightforward when both parties are based
in the same jurisdiction, they deserve proper consideration, particularly when the
parties to the contract are based in different jurisdictions….Such clauses are
drafted taking into account the common economic and geographic convenience of
the parties.

Conclusion: i) Court/Tribunal has to make sure that it has jurisdiction.

ii) If by mutual agreement between the parties a particular court having territorial
and pecuniary jurisdiction is selected for the determination of their dispute, there
appears to be nothing wrong.
iii) See above analysis No iii.
iv) Boilerplate clauses, which are often seen as standard add-ons to the main
terms and conditions of the contract deserve proper consideration.

36. Lahore High Court

Majida Naz v. National Database and Registration Authority and 02 others
Case No. Writ Petition No.700 of 2021
Mr. Justice Shakil Ahmad
https://sys.lhc.gov.pk/appjudgments/2021LHC10249.pdf

Facts: Through this writ petition under Article 199 of Constitution of Pakistan 1973, the
petitioner has approached the High Court after refusal of NADRA to issue
Pakistan Origin Card (POC) to her minor daughters.

Issues: i) What is citizenship by descent and whether the minors can claim Citizenship of
Pakistan due to citizenship of any one of their parent?
ii) What should be preferred, in case of conflict between an Act and its rules?
iii) Parameters to exercise discretion by an authority.

Analysis: i) Provisions of section 5 (Pakistan Citizenship Act, 1951) are reproduced

hereunder for the facility of ready reference: - “5. Citizenship by descent.-
Subject to the provisions of section, a person born after the commencement of this
Act, shall be a citizen of Pakistan by descent if his [parent] is a citizen of Pakistan
at the time of his birth. Provided that if the [parent] of such person is a citizen of
Pakistan by descent only, that person shall not be a citizen of Pakistan by virtue of
this section unless- (a)that person’s birth having occurred in a country outside
Pakistan, the birth is registered at a Pakistan Consulate or Mission in that country,
or where there is no Pakistan Consulate or Mission in that country [at the
prescribed Consulate or Mission or] at a Pakistan Consulate or Mission in the
country nearest to that country; or (b)that person’s [parent] is, at the time of the
birth, in the service of any Government in Pakistan”. Bare reading of above
suggests
ii) Any SOP or even rules framed under statute cannot go beyond the scope of
Act. Reliance in this regard may safely be placed on case reported as “Suo Moto
Case No.11 of 2011” (PLD 2014 Supreme Court 389), “Khawaja Ahmad Hassaan

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v. Government of Punjab and others” (2005 SCMR 186), “Messrs. Mehraj Flour
Mills and others v. Provincial Government and others” (2001 SCMR 1806) and
“Muhammad Uneeb Ahmed v. Federation of Pakistan through Secretary, Ministry
of Science and Technology, Islamabad and others” (2019 MLD 1347). In Mehraj
Flour Mills case supra, it was held as under; “There is no cavil with the
proposition that the rule shall always be consistent with the Act and no rule shall
militate or render the provisions of Writ Petition No.700 of 2021 6 the Act
ineffective. The test of consistency is whether the provisions of the act and that of
rule can stand together. Main object of rule is to implement the provisions of the
Act and in case of conflict between them the rule must give way to the provisions
of the act. In any case, the rules shall not be repugnant to the enactment under
which they are made”.
iii) The provisions of section 24-A as inserted in General Clauses (Amendment)
Act, 1997 contemplate that where, by or under any enactment a power to make
any order or give any direction is conferred on any authority, office or person,
such power shall be exercised reasonably, fairly, justly and for the advancement
of the purpose of the enactment.

Conclusion: i) A person who is born after the commencement of the Act, shall be citizen of
Pakistan if his parent is citizen of Pakistan at the time of his birth.
ii) The rules shall not be repugnant to the enactment under which they are made
iii) See above analysis No iii.

37. Lahore High Court

SNGPL through G.M v. Muhammad Awais SDO Highway
Writ Petition No.2284 of 2024
Mr. Justice Shakil Ahmad
https://sys.lhc.gov.pk/appjudgments/2024LHC4220.pdf

Facts: The petitioner department filed this writ petition against the order passed by the
learned Additional District Judge/Judge Gas Utility Court directing petitioner to
restore gas supply of respondent subject to payment of restoration fee.

Issues: i) Whether section 29 of the Gas (Theft Control and Recovery) Act, 2016 bars the
jurisdiction of Gas Utility Court to issue injunction?
ii) The bar contained u/s 29 of the Act of 2016, when attracted?
iii) When and how Gas Utility Court could exercise Inherent Jurisdiction u/s 151
of CPC?
iv) Whether an allottee of Government residence is successor-in-interest for
recovery of gas utility arrears?
v) Whether it is a valid excuse for non-compliance of an order that the same is
against the law?
vi) Whether intentional and continuous non-compliance of court orders under
self-assumption of illegality, attracts the initiation of contempt proceedings?

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Analysis: i) If a plaintiff, applicant or appellant as the case may be, deposits a sum due so
assessed against him by Gas Utility Company with the Gas Utility Court within a
period of thirty days at the time of filing of suit, application or appeal, the Gas
Utility Court may pass an order either prohibiting or requiring Gas Utility
Company from disconnecting or restoring the supply of gas to plaintiff/applicant
or appellant.
ii) Bar so contained in section 29 of the 2016 Act, thus would be attracted where
plaintiff/applicant/appellant fails to deposit the sum so assessed against him by
Gas Utility Company with the Gas Utility Court.
iii) Gas Utility Court may conveniently invoke its inherent jurisdiction and
powers as granted by Section 151 of the CPC, in light of Section 5 of the 2016
Act, which stipulates that, subject to the provisions of the Act, Gas Utility Court
in the exercise of its jurisdiction shall have all the powers vested in a Civil Court
under the Code of Civil Procedure, 1908. It may therefore be resolved
conveniently that where no sum due has been assessed by Gas Utility Company
against a plaintiff, the Gas Utility Court despite the bar contained in section 29 of
the Act, still has got inherent powers in view of section 151 of the CPC which
mandates that nothing in the Code shall be deemed to limit or otherwise affect the
inherent powers of the Court to make such orders as may be necessary for the
ends of justice and to prevent abuse of the process of the Court.
iv) Undeniably, the house that has been allotted to respondent is a Government
owned premises and respondent can also not be considered as successor-in-
interest as defined under clause ‘n’ of sub-section 1 of section 2 of the 2016 Act,
whereby while defining the term successor-in-interest it has been specifically
mentioned that the term successor-in-interest would not include a person who
occupies such premises merely as a tenant. Admittedly, no sum due as defined
under clause ‘o’ of sub-section 1 to section 2 of the 2016 Act has ever been
assessed against the respondent as the respondent has not so far purchased or
received gas for self-consumption.
v) This stance, on the face of it, is misconceived rather contumacious. When an
injunctive order directing the petitioner to restore the supply of gas has been
passed by the trial court, the same must have been obeyed by the petitioner so
long as the order remains intact………it would hardly allow the petitioner to
make itself a judge of the validity of the order passed against it, and by his own
act of disobedience to consider the same as illegal. Such tendency or practice, if
allowed to be prevailed, will weaken the public confidence on the integrity of
courts while administering the cause of justice. Whether an order is right or
wrong, it is duty of the parties to obey the order or get the same set aside by the
higher court. If a party to a proceeding considers that the court while passing an
injunctive order has committed an error in the understanding of law applicable, or
in its application, he can only resort to the remedy available to him in accordance
with law. Non-compliance of injunctive order by a party on the basis of self-
serving assumption that the same has been passed erroneously, would tend to the
subversion of orderly administration of civil Government……..The obedience

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that has to be given to the orders of the Court, can hardly be made dependent on
parties’ opinion as to their propriety.
vi) Intentional and continuous non-compliance of the order of court by the
petitioner on the basis of self-assumed opinion that the order has been passed in
derogation of provisions of law, would hardly justify inaction on the part of
petitioner qua the compliance of injunction order passed by the trial court. Such
conduct would rather be legitimately considered as contumacious in the first place
exposing the petitioner to the initiation of contempt proceedings which as per
learned counsel for the respondent have been initiated before the learned trial
court and the same are still to be adjudicated upon by the learned trial court, and
at the same time such conduct of the petitioner disentitles the petitioner to the
equitable and discretionary relief under Article 199 of the Constitution
particularly where impugned order passed by trial court has been held to be
passed in accordance with law. Therefore, no indulgence can be shown to the
petitioner owing to his contumacious conduct that can hardly be condoned as
extraordinary constitutional jurisdiction of this Court falls within the realm of
equitable and discretionary jurisdiction.

Conclusion: i) The bar contained in section 29 of the Gas (Theft Control and Recovery) Act,
2016 does not restrict the power of the Gas Utility Court to issue injunctions.
ii) Such bar would be attracted only when the plaintiff default in deposit of the
sum assessed against him by the court.
iii) See above analysis at no. (iii).
iv) An allottee of Govt. residence is not a successor-in-interest in terms of the Gas
Act, 2016.
v) It is not a valid excuse for non-compliance of any order that the same is against
the law, it has to be complied with unless remedy available to him in accordance
with the law is availed.
vi) Such conduct would rather be legitimately considered as contumacious in the
first place exposing the petitioner to the initiation of contempt proceedings.

38. Lahore High Court

Muhammad Zareen v. Learned Addl: Sessions Judge, etc.
Crl. Misc.No.3303-M of 2024
Mr. Justice Shakil Ahmad
https://sys.lhc.gov.pk/appjudgments/2024LHC4274.pdf
Facts: Brother filed an application for Exhumation of the dead body of his sister as he
had suspicion quo administering poison to her, which application was accepted.
The same order was assailed by the petitioner through a revision petition which
was dismissed; feeling aggrieved, the petitioner assailed both the orders.

Issues: i) Exhumation and Post Mortem as tools to unearth real cause of death.
ii) Does disinterment of a buried body justify to determine the cause of death,
despite concerns of disrespect to the sanctity of grave?

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Analysis: i) Guidance has been sought from the case reported as “Ameer Afzal Baig v.
Ahsan Ullah Baig and others” (2006 SCMR 1468), wherein it was observed that
the legal heir had a right to get the suspicion removed, more particularly, when
exhumation by itself could never lead to involvement of someone unless
postmortem is conducted and report is positive. It may further be observed that
exhumation and thereafter post-mortem examination merely are the tools to
unearth the real cause of death of deceased.
ii) In order to uncover the fact as to whether one met natural or unnatural death
particularly where a doubt has been created in the mind of real brother of the
deceased, it is rather more sacred and necessary for the sake of justice justifying
disinterment of the dead body. Mere fact that dead body had already been buried
and its exhumation may cause disrespect to the dead body, in no way be counted
as a good and valid ground to deny the request of disinterment particularly where
disinterment is necessary to advance the cause of justice.

Conclusion: i) Exhumation and thereafter post-mortem examination merely are the tools to
unearth the real cause of death of deceased.
ii) Mere fact exhumation may cause disrespect to the dead body, in not a valid
ground to deny the request of disinterment.

39. Lahore High Court

Mst. Razia Begum v. Public at Large, etc.
(Civil Revision No.44347 of 2023)
Mr. Justice Ahmad Nadeem Arshad
https://sys.lhc.gov.pk/appjudgments/2024LHC4198.pdf

Facts: Petitioner, being the mother of deceased/ insurance policy holder, filed an
application for issuance of succession certificate which was dismissed by the trial
court while directing the Insurance Corporation to pay the entire amount to the
nominee/ widow of deceased policy holder. Feeling aggrieved, petitioner filed an
appeal which was also dismissed. So, the petitioner challenged decisions of both
the courts below by filing civil revision u/sec. 115 CPC.

Issue: (i) Whether the proceeds of Insurance Policy are to be treated as ‘’Tarka’’?
(ii) Whether the nominee can exclude all the legal heirs of the deceased insured
person and the nomination itself operates as a gift or will?
(iii) Whether the status of the nominee is only to collect the policy proceeds and
distribute the same amongst the legal heirs?

Analysis: (i) Section 72 of the Insurance Ordinance, 2000 authorizes and empowers the
policy holder to nominate a person or persons to whom the money secured by the
policy shall be paid in the event of his death, but this provision of law does not
exclude the legal heirs to inherit the assets, including the policy proceed of the
deceased according to the principle of Muhammadan Law, because the reason is
that there is a constitutional guarantee enunciated in the Constitution of the
Islamic Republic of Pakistan, 1973, that no law can be made which is contrary to
the injunctions of Quran and Sunnah.

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(ii) It is nowhere mentioned that after the death of nominee the amount would be
disbursed amongst the legal heirs or legal representatives of the nominee. Hence,
it clarifies that the nomination shall not operate as a gift or will because had the
nomination been a gift or will, then after the death of the nominee the amount
would devolve on the heirs of nominee rather than the heirs of policy holder.
(iii) It is an established principle of law that a nominee, if appointed, does not
become the sole owner of the assets left by the deceased but he/she is only
authorized to collect the amount or to hold the property of the deceased as an
administrator and then to distribute the same amongst all the legal heirs. The
nomination does not make the nominee as donee nor the nomination amounts to a
gift, in the absence delivery of possession of the property gifted.

Conclusion: (i) The proceeds of Insurance Policy falls within the ambit of ‘’Tarka’’.
(ii) Nomination itself does not operate as Gift or Will and so, the nominee cannot
exclude legal heirs of the deceased.
(iii) The status of the nominee is only to collect the policy proceeds and distribute
the same amongst the legal heirs.

40. Lahore High court

Atif Munawar v. Additional District judge, etc.
W.P.No.10130/2024
Mr. Justice Anwar Hussain
https://sys.lhc.gov.pk/appjudgments/2024LHC4099.pdf

Facts: The petitioner filed an ejectment petition under the Punjab Rented Premises Act,
on the basis of a written tenancy, on the grounds of default in payment of monthly
rent, subletting, and damage to the rented premises. Leave to appear and contest
the ejectment petition (“PLA”) was filed by the respondent wherein he took the
plea that he is not a defaulter. Special Judge (Rent) declined the PLA on the
ground that rent has not been paid in accordance with the terms and conditions of
the tenancy agreement which was to be paid through bank account of the
petitioner. An appeal was preferred by the respondent under Section 28 of the
Act, which was accepted on the ground that the tenancy was valid till 31.01.2027
and allegations of sub-letting as well as damage to rented premises require
recording of evidence, therefore, he is entitled to leave to defend hence, this
constitutional petition.

Issue: Whether a tenant, who fails to deposit the rent, in accordance with the terms and
conditions of the tenancy agreement, is entitled to the acceptance of PLA in order
to establish that he is not a defaulter?

Analysis: i) Once the respondent admitted that he has not paid the monthly rent in
accordance with the terms and conditions of the tenancy agreement, there was
no room for allowing the PLA of the respondent enabling him to lead
evidence after framing of issue qua default or other grounds of eviction…a

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court cannot allow a party to deviate from the terms and conditions of the
contract, rather, it is a duty of the Court to intervene where enforcement of an
agreement between the parties is required. It is also not permissible for the
Courts to excuse any of the parties from the consequence of the contract that
they have freely and voluntarily accepted, even if they are shown to be
onerous or oppressive.

Conclusion: i) See above analysis No. i

41. Lahore High Court

M/s K&N’s Foods (Pvt.) Ltd. v. Federation of Pakistan, etc.
Writ Petition No.43578 of 2024
Mr. Justice RAHEEL KAMRAN
https://sys.lhc.gov.pk/appjudgments/2024LHC4192.pdf

Facts: The case involves two companies which were granted tax exemption certificates
for supplying goods without payment of tax. However, these exemptions were
proposed to be revoked through notices issued by the Commissioner Inland
Revenue in Lahore, due to legal amendments that allowed for reduced tax rates.
Eventually, the exemption certificates were revoked, and the companies were
instructed to apply for new certificates with a reduced tax rate. Hence; this
petition.

Issues: i) What is subsection (4) of section 153 of the Income Tax Ordinance, 2001
before substitution?
ii) What is amended subsection (4) of section 153 of ibid Ordinance?
iii) How the amendment was introduced in subsection (4) of ibid Ordinance?
iv) Have there any restriction on legislative power to enact civil laws with
retrospective effect?
v) What does ‘retrospective effect’ connotes?
vi) What is the effect of laws on substantive rights and obligations?
vii) What are the two rules for courts to avoid retrospective laws affecting vested
rights or past transactions?
viii) What is the effect of amendment vide Finance Act, 2024?

Analysis: i) Prior to substitution through Finance Act, 2024, sub-section (4) of section 153
of the Ordinance was as under: - “(4) The Commissioner may, on application
made by the recipient of a payment referred to in sub-section (1) and after making
such inquiry as the Commissioner thinks fit, may allow in cases where tax
deductible under sub-section (1) is [not minimum], by an order in writing , any
person to make the payment,-- (a) without deduction of tax; or (b) deduction of
tax at a reduced rate Provided that the Commissioner shall issue certificate for
payment under clause (a) of sub-section (1) without deduction of tax within
fifteen days of filing of application to a [company] if advance tax liability has
been discharged: Provided further that the Commissioner shall be deemed to have
issued the exemption certificate upon the expiry of fifteen days to the aforesaid

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company and the certificate shall be automatically processed and issued by Iris:
Provided also that the Commissioner may modify or cancel the certificate issued
automatically by Iris on the basis of reasons to be recorded in writing after
providing an opportunity of being heard.”
ii) The amended sub-section (4) reads as follows: - “(4) The Commissioner may,
on application made by the recipient of a payment referred to in sub-section (1)
and after making such inquiry as the Commissioner thinks fit, may allow in cases
where tax deductible under sub-section (1) is not minimum, by an order in writing
, any person to make the payment after deduction of tax at reduced rate but such
reduction shall not exceed eighty percent of the rate specified in the said Division:
Provided that the Commissioner shall issue reduced rate certificate within fifteen
days of filing of application to a company if advance tax liability has been
discharged: Provided further that the Commissioner shall be deemed to have
issued the reduced rate certificate upon the expiry of fifteen 5 W.P No.43578 of
2024 W.P No.49585 of 2024 days to the aforesaid company and the certificate
shall be automatically processed and issued by Iris: Provided also that the
Commissioner may modify or cancel the certificate issued automatically by Iris
on the basis of reasons to be recorded in writing after providing an opportunity of
being heard.”
iii) The aforementioned amendment was introduced through the Finance Act,
2024 published in the Gazette of Pakistan on 30.06.2024 which was to come into
force from 01.07.2024.
iv) No doubt there is no restriction on the legislative powers to enact civil laws
with retrospective effect. A legislature that is competent to make a law on a
particular subject also has the power to legislate such a law with retrospective
effect and can, by legislative authorization, even take away vested rights.
v) Hence, when a legislature gives retrospective effect to a law, either by express
provision or by necessary implication, no protection can be afforded to vested
rights contrary to that law. Similarly, when a legislature enacts a law with
retrospective effect, the person affected cannot plead the imposition of a
previously non-existent civil obligation as a ground for declaring the law invalid.
vi) However, every statute that relates to substantive rights and obligations should
be deemed prospective unless, by express provision or necessary implication, it
has been given retrospective effect.
vii) By now it is well settled that the Courts must lean against giving a statute
retrospective effect that affects vested rights and/or past and closed transactions
by adhering to two rules: first, if two interpretations are reasonably possible, the
one that saves vested rights and/or past and closed transactions should be adopted;
and second, no statute should be construed to have retrospective effect to a greater
extent than its language necessarily requires.
viii) The Finance Act, 2024 through which the amendment in question is
introduced has been made effective from 01.07.2024. There is no provision of the
Finance Act, 2024 that expressly or by necessary implication gives any
retrospective effect or application to the amended section 153(4) of the

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Ordinance. (…)The amendment introduced through the Finance Act, 2024 is
applicable on all exemption certificates issued after its effective date i.e.
01.07.2024.

Conclusion: i) See analysis No.i

ii) See analysis No.ii
iii) Through the Finance Act, 2024 published in the Gazette of Pakistan on
30.06.2024.
iv) No restriction on legislature to enact retrospective laws, including the taking
away of vested rights.
v) When a legislature enacts a law with retrospective effect, vested rights cannot
be protected, and affected individuals cannot challenge the law based on
previously non-existent obligations.
vi) Every law concerning substantive rights is presumed to be prospective unless
explicitly made retrospective.
vii) Courts lean interpretations that protect vested rights and past transactions
unless a statute clearly mandates retrospective effect.
viii) No retrospective effect.

42. Lahore High Court

Faisalabad Electric Supply Company Ltd. v.
The Chairman Punjab Revenue Authority, etc.
W.P. No. 48782 of 2024
Mr. Justice Raheel Kamran
https://sys.lhc.gov.pk/appjudgments/2024LHC4283.pdf

Facts: Petitioner/Faisalabad Electric Supply Company Ltd. had challenged order of

Appellate Tribunal, Punjab Revenue Authority through writ petition. The
respondent had directed the petitioner to deposit one third (1/3rd) of the disputed
amount of withholding tax within 30 days.

Issues: (i). Whether writ petition is maintainable against interim order of Appellate
Tribunal hearing appeal under section 67 of the Punjab Sales Tax on Services Act,
2012?
(ii) Whether Appellate Tribunal can order deposit of one third of disputed amount
u/s 68 of the Punjab Sales Tax on Services Act, 2012?

Analysis: i) As regards the other objection qua maintainability of the writ petition against an
interlocutory order, suffice it to observe that there is no absolute bar on
entertaining a petition under Article 199 of the Constitution against an order
which is interlocutory in nature, if the same is corum non judice or without
jurisdiction. Indeed, such constitutional jurisdiction is equitable and discretionary
in nature which should sparingly be exercised to interfere whenever an interim
order is challenged. Such judicial policy is meant to curtail delays, piecemeal and
fractured litigation at various fora at the same time. However, in exceptional
circumstances, such as cases involving a flagrant violation of law, a clear

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wrongful exercise of jurisdiction or a manifest and grave injustice, intervention of
this Court in interlocutory orders may be warranted on application of an
aggrieved person where the law applicable provides no other remedy.
(ii) Section 68 of the Act governs deposit of the tax determined while appeal is
pending. That provision postulates that the person who has filed appeal is
required, pending the appeal, to deposit the admitted amount of tax based on the
return filed under section 35 or as may be determined by the Commissioner
(Appeals) or the Appellate Tribunal where such return has not been filed. In other
words, authority of the Appellate Tribunal to grant stay against recovery of the
total amount of tax is curtailed or restricted by the requirements to deposit, during
pendency of the appeal, the admitted amount of tax or the amount determined by
the Commissioner (Appeals) and the Appellate Tribunal. The above restrictions or
limitations specified in section 68 ibid are not similar to sub-sections (5) & (6) of
section 67A of the Act that mandate the tax to be paid in accordance with the
order of the Appellate Tribunal assailed therein during pendency of the Tax
Reference and apply for refund if the tax liability is ultimately reduced by the
High Court or until the decision by the Supreme Court. However, while an appeal
is pending before it under section 67 of the Act, an Appellate Tribunal is
empowered under section 68 ibid to compel deposit of only such amount of tax
demanded under the Act which falls within the following three categories:
i) the admitted amount of the tax based on the return filed under section 35
of the Act
ii) the amount of tax determined by the Commissioner (Appeals)
iii) the amount of tax determined by the Appellate Tribunal.
... However, on literal construction of section 68 ibid, the requirement to compel
deposit of the amount of tax determined by the Commissioner (Appeals) pose a
number of problems: firstly, such construction would render redundant the
authority of Appellate Tribunal under section 67(3) of the Act to stay recovery of
the tax pursuant to the order being appealed against; secondly, if such amount of
tax is compelled to be deposited at the stage of pendency of appeal before the
Appellate Tribunal, it may also render the provision of sub-section (5) of section
67A of the Act superfluous; thirdly, the requirement of deposit of tax in such
manner before determination of liability by the first extra-
departmental/independent forum i.e. the Appellate Tribunal may be treated as
unreasonable restriction on the right of access to justice and fair trial right
embodied in Article 10A of the Constitution; and finally, determination of the tax
amount by the Commissioner (Appeals) cannot ordinarily be equated with the
determination made by the Appellate Tribunal, therefore, to that extent literal
construction of section 68 of the Act would render it ex facie discriminatory as the
discrimination in such a case ensues from the lack of classification and similar
treatment extended to dissimilarly or differently placed appellants. At the same
time, redundancy cannot be attributed to the legislative expression in section 68
ibid qua deposit tax pursuant to determination made by the Commissioner
(Appeals).

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Conclusion: (i) If any order is passed by the Appellate Tribunal in flagrant violation of law, in
the absence of an alternate remedy, the same may be assailed by an aggrieved
party in constitutional jurisdiction under Article 199.
(ii) Section 68 of the Act is construed narrowly and read down to the extent of
condition qua deposit of the amount of tax determined by the Commissioner
(Appeals) in the manner that recovery of only such amount of tax shall be
compelled as has been determined on the basis of judicial precedent(s) of this
Court or the Supreme Court of Pakistan settling the controversy raised.

LATEST LEGISLATION/AMENDMENTS

1. Vide Notification No. 25/Legis./II.D-4(V); Amendment was made in the High

Court Rules and Orders, Volume-IV sub-rule (ii) of Rule-5, Part-B of
Chapter-12

SELECTED ARTICLES

1. CAMBRIDGE LAW JOURNAL

https://www.cambridge.org/core/journals/cambridge-law-journal/article/trans-
parenthood-in-the-uk-the-unanswered-questions-of-the-mcconnell-
litigation/1488B48B44A31EF8D2EBB07B457BB309

Trans Parenthood in The Uk: The “Unanswered Questions” of the Mcconnell

Litigation By Peter Dunne And Alan Brown

This article considers three “unanswered questions” raised by R. (McConnell) v

Registrar General for England and Wales (AIRE Centre Intervening) [2020] EWCA Civ.
559, which held that a trans man (with a Gender Recognition Certificate) who gave birth
must be registered as “mother” on his child’s birth certificate. This article considers
these questions to clearly situate McConnell within the context of the UK’s legal regimes
concerning access to fertility treatment, gender recognition and legal parenthood in cases
involving assisted reproduction. The article argues that clearly establishing the current
legal position will provide the proper context to facilitate any subsequent legal reforms.

2. CAMBRIDGE LAW JOURNAL

https://www.cambridge.org/core/journals/cambridge-law-journal/article/from-discretion-
to-expert-judgement-recasting-sedimented-concepts-in-administrative-
law/5D33C6599C971E1B6750F67BC71BF953

From Discretion To Expert Judgement: Recasting Sedimented Concepts In

Administrative Law By Samuel Ruiz-Tagle

This article re-examines the traditional account of administrative decision-making under

wide conferrals of statutory power. The received wisdom in such cases is that public
officials exercise “discretion”, usually defined as freedom of choice. Based on a doctrinal

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 61
study of the English planning system and related case law, this paper contends that the
notion of discretion as choice obscures one of the defining characteristics of modern
government. That is, the making of public decisions tackling practical problems with
intelligent and expert judgment under legal standards set out in legislation and further
developed by the courts. More widely, the paper discusses the foundational role of tacit
knowledge and decision-making expertise in public administration.
3. CAMBRIDGE LAW JOURNAL
https://www.cambridge.org/core/journals/cambridge-law-journal/article/artificial-
intelligence-the-rule-of-law-and-public-administration-the-case-of-
taxation/CF6FDEE4F7620A567DE56DBDA71BCD3B

Artificial Intelligence, The Rule Of Law And Public Administration: The Case Of
Taxation By Stephen Daly

It is now a cliché to highlight that whilst artificial intelligence (AI) provides many
opportunities, it also presents myriad risks to established norms. Amongst the norms
considered in the literature, the Rule of Law unsurprisingly features. But the analyses of
the Rule of Law are narrow. AI has the capacity to augment as well as to undermine
fidelity to the ideal of the Rule of Law. Rather than viewing AI only as a threat to
important norms, this article’s core argument is that AI should also be presented as an
opportunity to meet their demands. It uses the Rule of Law in tax administration to
support this argument.

4. CAMBRIDGE LAW JOURNAL

https://www.cambridge.org/core/journals/cambridge-law-journal/article/legal-persons-
and-the-right-to-privacy/C98CE419E681D6A570E897BF129B8907

Legal Persons And The Right To Privacy By Eric Descheemaeker

This article examines what the state of the law regarding the tortious protection of the
privacy of corporations tells us about the concept of a legal person. Given that non-
human persons are capable of having an interest in at least their informational privacy,
logic would seem to dictate that they should be recognised such a right protecting their
personality. In reality, the law is most hesitant to concede the right to privacy to non-
natural persons (the same being true of reputation). This suggests that, for the dominant
strand of the law at least, despite the rhetoric, legal persons do not really have rights of
personality; in other words, that they are not really persons.

5. NATIONAL LAW REVIEW

https://natlawreview.com/article/human-resources-role-data-privacy-and-cybersecurity-
part-ii-assessing-five-key

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Human Resources’ Role in Data Privacy and Cyber security, Part II: Assessing Five
Key Areas of Risk by: Erin Schachter, Mercedes M. de la Rosa of Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.

Navigating employee data privacy and risk management is a vital function of HR. By
assessing these key areas—developing a solid framework, ensuring employee
understanding, monitoring data flows, comprehending internal requirements, and
addressing critical employee life cycle moments—HR professionals can better safeguard
both employee data and the organization as a whole. Fostering a culture of privacy and
accountability can help maintain employee trust and the integrity of the organization.

FORTNIGHTLY CASE LAW BULLETIN