Appeal against

Appellant was convicted by a Special Court and the criminal appeal against such judgment was filed within time before the Supreme Court

However, the criminal appeal was not numbered as the Institution Officer of the office of the Supreme Court objected to its filing as the appellant had not surrendered himself

Against the said office objection, Criminal Miscellaneous Appeal ("C. M. Appeal") was filed which was put up for hearing in Chamber before a Judge of the Supreme Court, who after noting the contentions of the counsel, observed vide his order that it would be appropriate that the points were considered by a Bench of the Supreme Court, therefore the 'C. M. Appeal' be fixed before the Court for hearing

However, said appeal was not fixed in Court till today, and the appellant passed away in the meantime

Held, that it was unfortunate that despite the order of the Judge in Chamber, directing that the 'C. M. Appeal' be fixed in Court this was not done till today, that is, the same was not fixed for a period of over three years and eight months for no discernable reason

For this inordinate delay neither the appellant nor his counsel could be faulted

No one should be made to suffer on account of an act of Court, or as in this matter, on account of inaction

Even otherwise an appeal is the right of every convict

Accordingly, the 'C. M. Appeal', assailing the office objection, was allowed with the directions that the unnumbered criminal appeal filed by the appellant against his conviction be numbered, and the record of the Special Court be summoned and be put up along with the said appeal for hearing in Court.

Jurisdictional value fixed by the plaintiff-petitioner in its suit was Rs.10,000 which was never changed, therefore, in accordance with the jurisdictional value of the lis, the forum of appeal was to be determined

Admittedly, when the jurisdictional value of the suit of the plaintiff-petitioner was Rs. 10,000, the appeal was competent before the District Judge and not before the High Court though both the suits were consolidated

Value for the purposes of jurisdiction in the suit filed by the respondents was Rs. 4,94,82,480, therefore, against that decree an appeal was competent before the High Court and said appeal was filed rightly

When two suits were consolidated, the judgment could be consolidated but in each suit a separate decree was passed and an appeal was against a decree and not the judgment, therefore, the Regular First Appeal (RFA) filed against the consolidated judgment could be presumed only against the decree in the suit filed by the respondents for recovery of money in which the jurisdictional value was Rs. 4,94,82,480

Hence, the High Court had no jurisdiction to entertain and decide the appeal against a decree whereby the jurisdictional value was fixed as Rs.10,000 when the jurisdiction was with the District Judge to hear and decide the appeal

When the High Court was having no pecuniary jurisdiction and the District Judge was having jurisdiction, wrong filing of appeal before the High Court did not give the High Court the jurisdiction if in a consolidated judgment appeal against a decree in the other suit was competent before the High Court

Petition for leave to appeal was dismissed and leave was refused.

Memorandum of appeal consisting of twenty five pages containing presumptive, superficial, hypothetical and imaginary grounds that could be conceivable under the law

Dismissal of appeal under doctrine of limine control

Held, that almost anything and everything had been stated in the Memorandum of appeal except any substantive ground that may require determination/adjudication, ignoring that the determination of the amount due, was in essence, the true purpose, intent and reason for the enactment of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) as capsulated in Ss. 9(3) & 10(4) of the Ordinance

On account of such deliberate and persistent misuse of right conferred under the Ordinance and blatant abuse of the process of the law and Court, S. 10(5) was inserted in the Ordinance

In the present case, the grounds of appeal were unsubstantiated, general, vague and bald accusations not supported with any cogent prima facie evidence or material, which may require issuance of notice to the decree-holder/respondent or summoning entire record or admit present appeal in whole or in part

Retaining present appeal on the docket of the Court shall only burden the Court, postpone a writing on the wall and bring misery for the contesting parties, at least, for the decree holder

Speedy and efficacious justice was a fundamental pillar of the rule of law

Applying the doctrine of limine control, present appeal was dismissed in limine under S. 22(3) of the Ordinance read with O.XLI, R. 11, C.P.C.

In consolidated suits wherein (separate) decrees passed had different valuations i.e. the one falling within the jurisdiction of the High Court and the other in the jurisdiction of the District Court, obviously no consolidated appeal could be filed

In such a situation the appellants were required in law to file two appeals according to the value of the original suit i.e. one before the District Judge and the other before the High Court

High Court, however, while exercising its power under S.24 of the C.P.C., if a case was made out within the purview of the said section, may, in order to avoid delay in the disposal of the matter and conflicting decisions, transfer the appeal filed before the District Judge to the High Court and decide the same along with the appeal which had been competently filed before the High Court.

Accused were convicted by Trial Court under Ss. 302(b) & 392, P.P.C. and were given life imprisonment and to suffer RI for 10 years

Contention of appellants was that High Court had the jurisdiction to entertain present appeal since sentence was awarded under provisions of Penal Code, 1860

Contention of complainant was that appeal should be filed before Federal Shariat Court as FIR was lodged under S. 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979

Held, that FIR and charges were though framed under Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but sentence was awarded under P.P.C. and it was the 'charge' that determined the forum

Mere passing of sentence under Tazir is not determinative of the forum

According to S. 24(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 only sentence of less than 2 years was appealable before the High Court

Under Art. 203-DD of the Constitution and S. 24 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 appeal against acquittal in a case under S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 would come under exclusive jurisdiction of Federal Shariat Court to entertain, hear and decide appeals in such cases

Result of trial would not change the jurisdiction of the court

Appeal being non-maintainable, was transferred accordingly.

Appellant being a proposed sponsor of the company to be licensed under S.42 of the Companies Ordinance, 1984, filed application for availability of name Pakistan Community Services Association"

Said application was objected to and rejected by Junior Executive by impugned order on the ground that word "Association" was not appropriate for registration of the proposed company; as it could be opted by trade bodies only

Appellant was informed that proposed name was not available under S.37 of the Companies Ordinance, 1984 as same was "deceptive"

Appellant had filed appeal against impugned order, contending to be registered under the names similar to the proposed name, such as "Executive Development Association", "Baloch Welfare Association of Pakistan" etc.

Apart from that Page 6 of 'Availability of Name Guide" published by the Commission had provided that word "Association" could be included in the name of companies to be established on grant of licence by the Commission under S.42 of Companies Ordinance, 1984 or which were established as a trade organization under Trade Organization Ordinance, 2007

Impugned order was set aside and allowed the proposed name 'Pakistan Community Services Association" to the appellant, in circumstances.

Acceptance of such application by High Court without notice to respondent on furnishing security by appellant to cover decretal amount

Plea of respondent that he had serious reservations regarding evaluation of property furnished as security

Validity

Supreme Court, with the agreement of both the parties, treated impugned order as interim one to enable respondent to raise before High Court objections to suspension of execution proceedings and partially allowed appeal and deeming such application pending before High Court, which would decide the same afresh after hearing the respondent.

Trial Court to which reference petition under S.18 of Land Acquisition Act, 1894 was forwarded, struck off right of appellants for production of evidence

Proceedings in the case were fixed for recording of evidence of Patwari Halqa who was summoned at the instance of appellants, who had deposited his diet money

Patwari Halqa who appeared in the court, was examined in a piecemeal manner for a sufficient amount of time, but on one date when he did not appear, notice under O.XVII, R.3, C.P.C. was given to the appellants, though the case was fixed for recording the statement of Patwari Halqa

Validity

Trial Court was under legal duty to procure the attendance of Patwari as appellants had deposited his diet money as Patwari was official witness and required to be summoned by the court

Case was adjourned for recording of evidence and on the date so fixed for the evidence of Patwari and the oral evidence of the appellants, neither the appellants attended the court nor evidence was produced

Court, in such eventuality, could proceed under Rule 2 of O.XVII, C.P.C., instead of resorting to provision of R.3 of O.XVII, C.P.C.

Trial Court had incorrectly applied provisions of R.3 of O.XVII, C.P.C. because statement of Patwari was yet to be completed

No material was available on record to dismiss the suit as said provisions were not mandatory, but were permissible and discretionary in nature

Said provisions being penal, must be strictly construed and to be sparingly applied to the cases; and that too where all the requirements prescribed under the law had been fulfilled

Trial Court, in absence of the appellants, at the most, could dismiss the suit under O.IX, C.P.C. or pass any other order as it deemed fit

Since the precious rights were involved in the case, which required adjudication on merits, appellants could not be deprived of their rights on the mistaken legal advice and for the act of the court

Appeal was accepted on payment of cost and impugned order was set aside and the matter was remanded to the Trial Court for decision on merits in accordance with law within a period of two months.

Appellant company had challenged validity and legality of environmental protection order gassed by the Authority on private complaint-Contention of the company was that construction of plant in question was started in the year 1994 when Pakistan Environmental Protection Act, 1997, was not in existence and it was not possible for the appellant company to obtain approval from Environmental Protection Authority under S.12 of the Act

Company, however in order to ensure compliance of law, submitted its Environmental Impact Assessment Report to the Authority

Environmental Impact Assessment of construction of the project was to be deemed to have been approved w.e.f. four months after completion of the requisite data to the extent to which it did not contravene the provisions of Pakistan Environmental Protection Act, 1997 and the Regulations made thereunder

Company, however, had failed to obtain the mandatory permission of the Environmental Protection Authority for operation of factory under S.12 of the Act

For such violation a fine of Rs.100,000 was imposed on the company

Representative of the Authority had admitted that remaining directions given in the environmental protection order had been carried out by the company

Company was directed to approach the concerned authority for approval of operation of the unit accordingly.

On examination of Annual Audited Accounts of the appellant company, certain misstatements and omissions having been observed, appellant was proceeded against-and penalty was imposed on appellant

Validity

Appellant had presented falsely audited accounts to the Commission and had falsely stated that the accounts were audited, while same had not been audited-Appellant had indulged in fraudulent activity and was defrauding its stakeholders

Said violations constituted significant non-compliance of the law and same could not be considered mere oversight

Said misstatements and omissions were not just typographical errors, but intentional and in clear violation of the duties of the management of the appellant

Penalty imposed on appellant being insufficient, was enhanced and appellant should pay the maximum penalty of Rs.500,000 instead of Rs.100,000

Impugned order was modified accordingly.

On examination of annual accounts for the relevant year of the company, it transpired that the company had made a total investment of Rs.24.1 million in its associated company

Said investment included equity investment of Rs.14.996 million - and advance against equity of Rs.9.103 million

Notes to the said accounts had revealed that shareholders of the company had approved investment of Rs.20 million

Executive Director, dissatisfied with the response of the company to show-cause notice penalty of Rs.75,000 each on the company and its Directors under S.208(3) of the Companies Ordinance, 1984

Validity

Section 208 of the Companies Ordinance, 1984 required that a special resolution be passed by the company before making investment in its associated company, which requirement of law was unequivocal and could not be avoided

In the present case the investment in associated company had been made in the form of equity and advance for equity, both of which fell within the definition of "investment"

Notification required all listed companies to disclose investment in associated companies while issuing notice for the general meeting

Approval for investment sought by the company was in respect of equity investment amounting to Rs.20 million

Investment made in the form of advance for equity amounting to Rs.9.103 million was not approved through special resolution as required by S.208 of the Companies Ordinance, 1984

Post facto approval of investment in associated company through a special resolution being not envisaged by Companies Ordinance, 1984, penalty was rightly imposed on the company.

Examination of annual accounts of the company had shown that amount was payable to provident fund by the company which was not deposited by the company in accordance with law-Company and its Directors admitted the default, but had contended that as the company had been paying interest on the loan taken from the amount of provident fund value of the provident fund had not diminished in any manner

Director imposed penalty of Rs.5,000 on the company and each of the Directors thereof due to breach of mandatory requirements of S.227 of the Companies Ordinance, 1984-Validity

Objective of S.227 of the Companies Ordinance, 1984 was to secure the provident fund of the employees and to ensure that same was not depleted due to any exigency of the company

Directors of the company were under a duty to protect the provident fund

Violation of S.227 of the Companies Ordinance, 1984, should not have been left scot free merely on the ground that company was willing to pay the outstanding liability towards the provident fund

In the present case, loan had been disbursed to the company from the provident fund, which was blatant violation of S.227 of the Companies Ordinance, 1984

Penal provisions of S.229 of the Companies Ordinance, 1984, were rightly invoked by the Director, in circumstances.

Company which under S.245(1) of Companies Ordinance was required to prepare and transmit its quarterly accounts for relevant period, having failed to submit said accounts with the Commission within prescribed time, penalty of Rs.5,000 on each Director of the company was imposed under S.245(3) of Ordinance

Representative of the company admitted the default, but had contended that default was consequence of delay in the finalization of annual accounts of the company

Validity

Section 245 of the Companies Ordinance, 1984 had clearly stated that every listed company would transmit its quarterly accounts, whether same were audited or not

Delay in submitting account could not be condoned due to the delay in finalization of annual account

Plea that the matter could not be heard and decided by the Appellate Bench as Liquidator had been appointed by the High Court, was not tenable as penalties were imposed on the Directors of the company and not on the company; and S.316 of the Companies Ordinance, 1984 did not bar proceedings against Directors who were acting as Chief Executive/Directors of the company

Directors would pay the penalties from their own resources and not from the coffers of the company

Order accordingly.

Receiving or utilizing money received as security or deposit-Non-deposit of said amount in separate. account with Scheduled Bank

Imposition of penalty-Appeal against

On examination of the annual accounts for the relevant year of the company, it was found that the company acted in contravention of S.226 of the Companies Ordinance, 1984 as the security or the deposit of the stockist of its goods, was not kept in separate account with a Scheduled Bank

Directions issued under S.473 of the Companies Ordinance, 1984 thus were not complied with by the company

Executive Director of the Commission dissatisfied with the' response of the Chief Executive of the Company, vide impugned order imposed a fine of Rs.10,000 on him under S.495 of Companies Ordinance, 1984

Chief Executive of the Company was also directed to verify the outstanding balance of security deposits from the statutory auditors of the company and deposit the same in a separate account with a Scheduled Bank

Validity

Company was under an obligation to return the security deposits as and when demanded by the stockists of its goods-Company had failed to provide any evidence or its effort to find details of the security deposits inherited and had shown complete disregard of the requirements of the Companies Ordinance, 1984

In the present case, whether there was a contract in writing or not, all money received as security or deposit should have been kept in a special account with a Scheduled Bank

Appellant should have been penalized under S.229 of the Companies Ordinance, 1984, which was a special provision for violation of S.226 of said Ordinance as opposed to S.495 of the Ordinance, which was a general provision-Impugned order was modeled, in circumstances, to the extent of penalty imposed and maximum penalty of Rs.5000 was imposed under S.229 of the Companies Ordinance, 1984, accordingly.

Appeal had been filed against order of Executive Director of the Commission passed for inspection of books of account of the company

Maintainability

Impugned order was not issued to ascertain the swap ratio alone but had stated other grounds for carrying out inspection

Inspection under S.231(1) of Companies Ordinance, 1984 was merely a fact finding process and essentially an administrative order

No prejudice had been caused to the appellant as a consequence of the impugned order and the appeal was not maintainable in terms of S.33(1) of the Securities and Exchange Commission of Pakistan Act, 1997.

Company which under the provisions of S.245 of the Companies Ordinance, 1984 was required to prepare and transmit its quarterly accounts for relevant period having failed to transmit same within prescribed period, penalty of Rs.10,000 was imposed on each Director of the company for each default

Appellants/Directors were provided opportunity for hearing, but they failed to appear and the Executive Director of the Commission, proceeded to decide the case on merits and passed impugned order imposing penalty

Appellants failed to appear for the hearing even before Appellate Bench and their conduct was habitual

Contention of the appellants that they failed to comply with S.245 of the Companies Ordinance, 1984 on account of poor financial health of the company, was not tenable

Held, compliance with S.245 of the Companies Ordinance, 1984 was an obligation of the Directors of the company

Continuous default of S.245 of the Companies Ordinance, showed that default was wilful and deliberate

Executive Director of the Commission, in circumstances had rightly penalized the Directors who would pay the penalties from their own resources and not from the coffers of the company.

Scrutiny of refund claim of the assessee showed that an amount was deferred due to objections that invoice required verification, non filer, and date mismatched etc.

Assessee, on account of such irregularities, was charged with violation of Ss.2(14), 4, 7, 8(1), 10, 26 & 73 of Sales Tax Act, 1990 and Refund Rules, 2006

Order passed by Assistant Collector, had been upheld by Collector (Appeals)

Validity

Contention of representative of assessee that impugned order had been passed after a gap of, five and a half months from the date of hearing of arguments was substantiated from the date of dispatch

Impugned order was vacated and case was remanded to CIR (Appeals) for deciding the matter afresh, within a reasonable time.

Appellants claimed benefit of refund of input tax to the tune of Rs.9,46,111, but out of that amount, Processing Officer rejected the claim for Rs.277,200 after lapse of more than three years

Tax paid by the appellants on the purchase was refundable as input tax, but the department did not sanction such refund on the ground of law of blacklisting and suspension of registration pertaining to the tax period concern

No authority had been cited to support the proposition that if the person from whom the exporter purchased the goods was found to be blacklisted, the input tax that had been charged by the seller from the exporter; and had been deposited into the government treasury, could not be refunded

Assistant Collector's order by which sales tax registration of supplier had been suspended, could not operate retrospectively

Rejection of refund claim on alleged "suspension of registration of supply" alone, was totally illegal and absolutely arbitrary, which sounded arrogantly, whimsical and discriminatory, when different treatments were meted out to different applications under exactly the same circumstances; and that too by the same Adjudicating Officer

Impugned adjudication order-in-original as well as order-in-appeal, being palpably illegal and void, passed without jurisdiction and lawful authority, were set aside

Deputy Commissioner of Sales Tax (Refund), was directed to sanction appellants' pending sales tax refund claim under the provisions of Sales Tax Act, 1990.

However, subsequent development, such as the completion of the probationary, period, the performance of functions of the appellant on various projects and his repatriation to his parent department after his deputation, would all go to show that appellant had acquired the status of a confirmed and permanent employee; and his services could not be terminated, otherwise than due process of law

With the passage of time and the happening of the said developments, said clause of the appointment letter had become an anachronism as the appellant had acquired a status of a confirmed and permanent employee

Neither a show-cause notice was issued to the appellant nor any disciplinary proceedings in any other manner were initiated against him

Simplistic approach of having recourse of said clause of appointment letter, was not only illegal, but was also mala fide

Impugned order was set aside and appellant was reinstated in service, however, authorities were not burdened with grant of back-benefits to the appellant, when the appellant had contributed substantially to prolonging the pendency of appeal and he could not be allowed premium of his own default.

Appellant was proceeded against on the allegation that he was directed to arrest an accused and to submit challan in the case, but he failed to follow directions of his senior officers and in that way he had committed misconduct

Appellant was issued show-cause notice and regular inquiry was conducted into the charges against him

Appellant was awarded penalty of reduction in pay by two stages

Appellant, in appeal against said order before Service Tribunal had alleged that matter relating to arrest of said accused had also remained pending before other police officer prior to posting of appellant, but action had been taken only against appellant, which was act of discrimination

Appellant had also raised serious objections against the manner in which inquiry was conducted by A.S.P. who was a new-coiner and had failed to associate appellant with the proceedings and had not given him any opportunity to cross-examine any witness

Appeal was accepted and case was remanded to concerned Authority for fresh disciplinary proceedings against appellant accordingly.

Appellant was removed from service after issuing him show-cause notice on charges of misconduct, breach of discipline, inefficiency and corruption

Major penalty of removal from service was imposed on appellant without holding inquiry against him and minor penalties imposed on him in the past were made basis for imposing said major penalty of removal from service

Validity

Minor penalties awarded to employee in the past could not be made basis for imposing major penalty of dismissal from service and major penalty could not be imposed without holding a regular, inquiry into allegations so levelled

Impugned order was set aside with direction to reinstate employee with back-benefits.

Petty offence of charging excess amount of Rs.30 from certain passengers for which appellant was not even punished, had been used against appellant after 8 years to prove charge of corruption against him

If appellant had committed any offence as alleged, why the Departmental Authority had slept over it and had not taken any action against appellant at that time

Entire proceedings against appellant were beyond apprehension as to why Department had to revive past and closed events to dismiss its employees without resorting to proper proceedings and failed to hold any enquiry even in a case of major penalty

Illegal acts of Authorities could not be condoned

Allowing appeal impugned order was set aside by Service Tribunal with direction to reinstate appellant in service from date of his dismissal with all back-benefits.