Pre-conditions

Prosecution failed to recover any foreign currency from accused persons and it never alleged that bank transaction of Pakistani currency established link of acquitted accused persons in the business of foreign currency

Mere huge transactions of account holders in Pakistani currency in bank accounts were not sufficient to constitute a cognizable offence under Foreign Exchange Regulation Act, 1947

Initial burden always lies on the shoulders of prosecution to prove the case and without substantiating the same through tangible evidence, prosecution version becomes doubtful

High Court declined to interfere in the findings rendered by Special Tribunal which were legally correct and there was no infirmity, perversity or legal error in the order of acquittal of accused persons

Once accused was acquitted after full application of mind, even at pre-evidence stage, presumption of double innocence was attached, unless it was shown to be perverse or based on misreading of material

Appeal was dismissed in circumstances.

In a male dominated society where the female legal heirs are consistently deprived even of their 'Sharai' shares in inheritance matters, like sisters, the principle of caution in protecting the legitimate rights of the illiterate parda observing lady must be applied vigorously and rigidly

In a case of transaction of valuable property with old, illiterate/rustic village 'Parda Nasheen' lady, onus to prove the transaction, being legitimate and free from all suspicions and doubts surrounding it, can only be dispelled if the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree:- (i) that the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; (ii) that she was having independent advice from a reliable source/person of trust to fully understand the nature of the transaction; (iii) that witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and were having no conflict of interest with her; (iv) that the sale consideration was duly paid and received by the lady in the same manner; and (v) that the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/receipt, as the case may be.

Customs Appellate Tribunal ('Tribunal'), while resting upon the provisions contained in S.142 of the Customs Act, 1969 ('the Act 1969'), as well as letter No.1(19)/2012-Imp-II(Vol-1), dated 14.05.2018, allowed re-export of the banned items on the premise that the customs authorities had the power to allow re-export of banned / restricted items (i.e. foreign origin new/used mobile phones of Samsung, I-Phone, One Plus of assorted models, 10 foreign origin drones, 1 set of play station)

Held, that the exercise of jurisdiction and authority in terms of S. 142 of the Act, 1969 is dependent upon a mandatory pre-condition of a true declaration by the passengers/respondents, if so made, in terms of S. 139 of the Customs Act, 1969

Said provision requires the owner of a baggage to declare the contents of the baggage to the proper Officer of the Customs Department; it is only when a truthful declaration is made under S. 139 of the Act, 1969 that one can claim a right to be considered for invoking benefits under S. 142 of the Act, 1969, the Baggage Rules, 2006 and the letter dated 14.05.2018

Even in a case of truthful declaration in terms of S. 139 of the Customs Act, 1969, the option to re-export the goods abroad cannot be claimed as a matter of right

The plain reading of S. 139 makes it abundantly clear that in the matter of declarations, no onus is cast upon the Department to accost individual passengers for taking declarations, particularly after introduction of the channel system, which system is to the effect that a passenger passing through green channel leads to an ineluctable declaration on the part of the passenger concerned that he has no dutiable goods accompanying him to be declared

Similarly, the object of S. 142 of the Act, 1969, which is a relatively new provision and was introduced by the legislature to give a facility to the passenger(s) for temporarily leaving the baggage with the Customs Department for the purpose of being returned to him on his leaving Pakistan

Another object of S.142 may be to exclude any articles from the purview of Ss. 156 & 168, if a declaration is made under S. 139 of the Act, 1969

It is inconceivable that there would be any refund, or the right to re-export will be forthcoming, if indeed, there is a misdeclaration or no declaration at all on the part of a passenger, with a view to evade payment of duty

Clause(s) of S. 2 of the Customs Act, 1969, refer to goods specified therein and other goods notified by the Federal Government as smuggled goods

It is admitted position that SRO 1512(I)/2022 dated 26.07.2022 (SRO, 1512), prohibiting mobile phones, was in place on the fateful day, therefore, the goods squarely fell in the category of items, which items, if brought in the country, would amount to smuggling and will thus trigger the case of invocation of offences, penalties and confiscation

Since the goods apparently fall under the definition of smuggled goods in terms of S. 2(s) read with S. 16 of the Act, 1969 and SRO 1512, therefore, before the Tribunal could have embarked upon to invoke S. 142 of the Customs Act, 1969, it was incumbent upon the Tribunal to render a factual determination to the effect of implication of invocation of clause(s) of S. 2 read with S.156(1) of the Customs Act, 1969

Declaration, as envisaged under S.139, is a sine qua non for invocation of S. 142, as S. 139 creates an obligation upon every passenger to make declaration of the contents of his baggage and to answer questions with respect to baggage and articles carried by him

The failure to do so or the failure to produce baggage or any such article(s) for examination is liable to penalties and confiscation as provided by item (70) of S. 156(1)

Tribunal was also required to determine whether the mandatory declaration in terms of S.139 of the Act, 1969 was made by the respondents

The question that as to whether a declaration under S139 of the Act, 1969 was made by the respondents or an opportunity to such a declaration was provided by the customs officials at the time of apprehending the respondents, are purely factual questions, which have not been determined by the Tribunal

Highest authority for factual determination in tax/customs duty matters is the Tribunal, and as evident, the factual question of true declaration under S.139 of the Act, 1969 has not at all been adverted to by the Tribunal, which led to erroneous interpretation of S.142 of the Customs Act, 1969

Thus, the findings of the Tribunal while relying upon S.142 of the Act, 1969 are not sustainable in the eye of law

Thus, the Tribunal erred in law while passing the impugned judgment which fails to render any findings qua the factual determination

Resultantly, the question mentioned were answered in affirmative; consequently, the impugned judgment was set aside and the matter was remanded to the Tribunal for decision afresh

Special Customs Reference Application was allowed accordingly.

Petitioner/accused assailed notice issued by Trial Court, whereby petitioner/accused was summoned to face trial in private complaint filed by respondent/complainant

Validity

In order to constitute offence, complainant was to disclose existence of both basic ingredients namely unlawful act "actus rea" and criminal intent "mens rea" on the part of petitioner/accused

Before issuing process, the Court was under obligation to satisfy itself for the purpose of ascertaining truth or falsehood of respondent/complaint as to the existence or non-existence of sufficient grounds to issue process against petitioner/accused

Main object of dealing with examination of complaint under S.200, Cr.P.C was to protect public from false, frivolous and vexatious complaints filed against them

Trial Court could not proceed to issue process against accused until and unless, it was satisfied that prima facie case had been made out against those who were accused of alleged criminal offence

Respondent/ complainant filed complaint as counterblast, who himself was guilty of offence for which a separate criminal case had already been registered against him and after remaining unsuccessful at all forums to achieve his nefarious designs, he filed private complaint against petitioner/accused who was pressing hard since long on the basis of criminality of respondent/complainant

High Court set aside orders passed by Trial Court as well as Lower Appellate Court as the same were in sheer violation of law

Petition was allowed, in circumstances.

Confession, whether judicial or extra judicial, must be demonstrably voluntary, made out of absolute free will and without influence of any kind, whether a threat, inducement, promise or even hope etc.

Fundamental principle regarding admissibility and assessment of a confession, judicial or extra judicial, is that it ought to be genuinely voluntary and must have been made out of one's free will

Confession must have been given freely and without any coercion or influence in any form

Ordinarily no person confesses to commission of a crime because of its consequences and there is possibility that profound effects of being in custody and exposed to physical and psychological distress and trauma associated with investigation and custody a person's rational thinking generally gets impaired

Any innocent person may confess so as to free himself from extremely distressful conditions but in exceptional and rare cases, it cannot be ruled out that an accused may voluntarily confess his guilt because of genuine remorse or regret

It becomes an even more onerous task of the court when circumstances are such that there is a likelihood of accused being exposed to influence of a person in authority, such as being in custody of a police officer and confined in the lock up of a police station.

It is also obligatory that donor divests and dissociates himself from dominion and ownership over property of gift and puts into words his categorical intention to convey ownership to donee distinctly and unambiguously with delivery of possession of property and ensure that donee has secured physical ascendency over property to constitute delivery of possession.

Evidence of a party cannot be closed under Order XVII, Rule 3, C.P.C. for non-production of evidence where the case on previous date was not adjourned at the request of such party

For the application of Order XVII, Rule 3 C.P.C. following conditions must co-exist: i) Adjournment must have been granted to the party at his request; ii) It must have been granted to it for the purposes mentioned in Order XVII, Rule 3 C.P.C.; iii) The party which has taken the time defaulted in doing the act - for which it took the time from the Court; iv) Party must be present or deemed to be present before the Court; v) There must be some material on record for decision of the case on merits and; vi) The court must decide the suit forthwith that is within a reasonable time.

While exercising appellate jurisdiction under the provisions of Service Tribunals Acts the first and foremost duty is to thoroughly examine all facts of the case and diligently address all factual and legal pleas raised by parties, and then decide whether proceedings for misconduct, initiated through show cause notice and statement of allegations, have duly been proved or not

In case penalty is imposed as a result of a regular inquiry, it is also necessary to examine inquiry proceedings and inquiry report, along with recommendations forwarded by inquiry officer/inquiry committee to competent authority for further action in accordance with law

In service appeals challenging minor or major penalties imposed upon civil servants, core issue is to evaluate gravity of charges and proof of guilt of delinquent during inquiry

Without adverting to inquiry proceedings and report, it would not be possible for Service Tribunal to reach a just and proper conclusion

Merely treating period of absence without pay in cases where punishments are imposed by competent authority other than dismissal/removal from service neither exonerate respondent from charge of misconduct nor act of misconduct is vanished on such count alone

In the present case such benefit was accorded by taking a lenient view to avoid breakup in the length of service only which did not amount to exoneration from period of absence

Supreme Court set aside order passed by Service Tribunal and service appeal filed by respondent / civil servant was dismissed

Appeal was allowed.

Essential ingredient of fornication is establishment by way of evidence of the fact that it was a willful intercourse between the parties

It is essential that for the purposes of fornication consent be established

Consent means an unequivocal voluntary agreement with the woman by words, gestures or any form of verbal or non-verbal communication, which communicates her willingness to participate in the sexual act

Consent goes to the very root of right to dignity under Article 9 of the Constitution because in a case of rape where she states that there is no consent then to impute consent, that too without evidence of the same, undermines dignity and right to privacy of a woman

Without any evidence on the fact of consent or willingness, offence of fornication cannot be made out

Consent has to be established and it cannot be assumed.

While exercising appellate jurisdiction under the provisions of Service Tribunals Acts the first and foremost duty is to thoroughly examine all facts of the case and diligently address all factual and legal pleas raised by parties, and then decide whether proceedings for misconduct, initiated through show cause notice and statement of allegations, have duly been proved or not

In case penalty is imposed as a result of a regular inquiry, it is also necessary to examine inquiry proceedings and inquiry report, along with recommendations forwarded by inquiry officer/inquiry committee to competent authority for further action in accordance with law

In service appeals challenging minor or major penalties imposed upon civil servants, core issue is to evaluate gravity of charges and proof of guilt of delinquent during inquiry

Without adverting to inquiry proceedings and report, it would not be possible for Service Tribunal to reach a just and proper conclusion

Merely treating period of absence without pay in cases where punishments are imposed by competent authority other than dismissal/removal from service neither exonerate respondent from charge of misconduct nor act of misconduct is vanished on such count alone

In the present case such benefit was accorded by taking a lenient view to avoid breakup in the length of service only which did not amount to exoneration from period of absence

Supreme Court set aside order passed by Service Tribunal and service appeal filed by respondent / civil servant was dismissed

Appeal was allowed.

Petitioners invoked original jurisdiction of High Court seeking rectification of Register of Shares of respondent / company on the basis of sale agreement executed by respondents / shareholders in their favour and sought entering their names in the Register

Validity

Requirement of transfer of shares as envisaged under S. 126(1)(b) of Companies Act, 2017 is that the person has to be an "aggrieved person"

Expression "aggrieved person" includes a transferor of shares who handed over transfer documents to transferee who lodged them with the company and the same were rejected by the company as bad delivery

So long as grievance of a member or an aggrieved person or company if there has been default or unnecessary delay in entering in the Register the fact of any person having become or ceased to be a member, an application under S. 126 of Companies Act, 2017 can be made

Cause of action to invoke provisions of S. 126 of Companies Act, 2017 arises only when the fact of any member having ceased to be a member is brought before the company or its board and there is default or delay in taking decision

Petitioners failed to furnish any evidence that they approached Board of Directors of respondent / company seeking removal

Petitioners sought directions against respondent / shareholders and Securities and Exchange Commission of Pakistan to record transfer of shareholding of petitioners in the "Company" regardless of becoming members, debenture holders or shareholders of the "Company" and without fulfilling requirement of S. 126(1)(a) of Companies Act, 2017

Petitioners could not be termed as members, debenture-holders or shareholders of respondent / Company

High Court declined to interfere in the matter as the petitioners failed to prove themselves to be members, debenture holders or shareholders of respondent / Company, who without fulfilling requirements of S. 126(1)(a) of Companies Act, 2017 could not invoke S.126(1)(b) of Companies Act, 2017

Petition was dismissed in circumstances.

In a suit for specific performance of agreement to sell, it is always of paramount consideration that plaintiff seeking equitable remedy of specific performance must be always willing and ready to perform his part of contract, and his conduct must satisfy the court that he is entitled to seek relief

Tests to be satisfied are his ability and readiness and willingness

Wisdom behind directing vendee deposit balance sale consideration is not only aimed to verify vendee's seriousness but it also safeguards rights of vendor

Such direction strikes a balance between two contracting parties.

Case is dropped/cancelled on three recognized grounds mentioned in Rule 24.7 of Police Rules, 1934 but Anti-Corruption Establishment can drop the case either on the ground that "the allegations are not established" or "judicial action is not warranted but reasonable evidence is available to initiate disciplinary action against the public servant".

Upgradation cannot be made to benefit a particular individual in terms of promoting him to a higher post or further providing him with the avenues of lateral appointment or transfer or posting

In order to justify the upgradation, the government is required to establish that the department needs restructuring, reform or to meet the exigency of service in public interest

In the absence of these pre-conditions, upgradation is not permissible.

Petitioner failed to point out the matter of public importance in seeking such information, while invoking Art. l9-A of the Constitution

Petitioner could not justify invoking of jurisdiction of High Court under Art. 199 of the Constitution

Exercise of such right to information was subject to regulation and reasonable restrictions imposed by law

Goal of Sindh Transparency and Right to Information Act, 2016 was to spread information in public interest but at the same time transparency in spreading information should be observed and system of a functionary should not be hampered

For seeking access to such information a person should bear in mind the fact that he has to mention the significance of such information by showing public interest

Transparency is absolutely necessary

Response given by Information Commission through order in question was appropriate and according to its domain to safeguard the functions and working of an organization

High Court declined to interfere in order passed by Information Commissioner in exercising its powers under Constitutional jurisdiction

Constitutional petition was dismissed, in circumstances.

Applicant / Revenue authorities filed application under O. I, R. 10, C.P.C. to be impleaded in proceedings for Scheme of Arrangement filed by petitioners / companies

Validity

Application filed under the provisions of Civil Procedure Code, 1908 was not maintainable in a Company Original Petition instituted under Companies Act, 2017

Multiple prayers were not maintainable in an application for impleading as a party

Applicant could not seek to implead another person/official without being a party himself

Requirements of R. 29 of Companies (Court) Rules, 1997 were not fulfilled

Applicant failed to establish that it was a necessary and proper party for adjudication of the matter

Every person intending to appear at the hearing of a petition was required to send notice in Form No. 6 to Court and petitioners / companies or their advocates two days prior to the hearing pursuant to R. 29(1) and (2) of Companies (Court) Rules, 1997 and no such notice was sent by applicant to the Court or the petitioners / companies despite which no application for obtaining leave of the Court had been filed as per R. 29(3) of Companies (Court) Rules, 1997

High Court declined to implead revenue authorities / proposed interveners in the proceedings

Application was dismissed, in circumstances.

Petitioner was alleged to have committed offences of cheating, forgery, using a forged document, abetment, falsification of accounts and violation of foreign exchange restrictions

Authorities placed name of petitioner on Passport Control List

Validity

In the instant case there was no allegation that the petitioner was ever involved in anti-state activities or his visit to foreign countries was considered to be prejudicial to the State interest

Petitioner had never been refused the issuance of passport, so his case did not fall under the criteria mentioned in R.22 of the Passports Rules, 2021

As per R.22(1), the Federal Government was vested withthe powers to regulate the departure from and entry into Pakistan and also visit to foreign countries under the Act but in the instant case no approval of the Federal Government had been obtained

Allegedly, as per S.8(a) of Offences in Respect of Banks (Special Courts) Ordinance, 1984, accused could not depart from Pakistan or be employed by any person after a Special Court had taken cognizance of a scheduled offence alleged to have been committed by an accused person, and such person would not, depart from Pakistan until the case had been finally decided by the Special Court

In the case in hand, the police had not submitted challan, so Trial Court had not taken cognizance of the matter

In the instant matter liberties of a senior citizen had been curtailed on the ground of registration of FIR but challan/report under S.173, Cr.P.C, had not been submitted since last one year

Non-submission of challan within stipulated period had highly been deprecated by the Superior Courts

Retention of petitioner's name on Passport Control List was violative of his fundamental rights to due process, liberty, life, and freedom of movement which were guaranteed by the Constitution

Petition was allowed accordingly.

Interim order under section 7 of Illegal Dispossession Act, 2005 can be passed when prima facie it is established to the satisfaction of Court that accused is in unlawful possession of immoveable property and complainant is either owner or was in a lawful possession of immoveable property before dispossession.

Ex-officio Justice of Peace in exercise of powers under S.22-A, Cr.P.C., was not supposed to proceed and act mechanically by simply considering version of events narrated by a party applying for registration of FIR

In order to safeguard against misuse or abuse or such process, Ex-officio Justice of Peace had to apply his judicial mind and to satisfy himself that prima facie there was some material available on record to support such version

Proceedings before Ex-officio Justice of Peace were quasi-judicial and were not executive, administrative or ministerial to deal with the matters mechanically

Such quasi-judicial proceedings before discretion, demanded judicial observations after hearing the parties

Application under S. 22-A, Cr.P.C. was filed by complainant in order to harass and humiliate petitioner and this was never intention of Legislature

High Court set aside order passed by Ex-officio Justice of Peace as it was not in accordance with law and element of mala fide was apparent from conduct of complainant

Constitutional petition was allowed, in circumstances.

On complaint filed by respondent, Trial Court declined to initiate proceedings under S. 145, Cr.P.C. with regard to land in question

Respondent assailed order of Trial Court before Lower Appellate Court which remanded the matter to Trial Court for decision afresh

Petitioner sought quashing of complaint filed under S. 145, Cr.P.C., with regard to land in question

Validity

Respondent/ complainant wanted that his share in land in question was to be separated and handed over to him

Complaint in question fell short of legal requirements for maintaining or proceeding with the same

Question of title or claiming share or separation of share could not be determined in proceedings under S. 145, Cr.P.C.

Such aspect of the matter was rightly appreciated by Trial Court

Proceedings under S. 145, Cr.P.C. could only be initiated if there was a dispute regarding land, water or boundaries of land but such dispute should be of such a nature which had either raised or was likely to raise apprehension of breach of peace

Such proceedings could not be initiated for establishing question of title or for separation of shares amongst joint owners

Proceedings under S. 145, Cr.P.C. could only be maintainable if rival parties claimed exclusive possession against each other and such dispute turned them inimical to each other

Proceedings under S. 145, Cr.P.C. were not maintainable where contents and language of complaint spoke of a civil dispute amongst joint owners/co-owners

High Court set aside order passed by Lower Appellate Court as the matter was wrongly remanded to Trial Court

Resultantly complaint was quashed

Petition was allowed accordingly.

For maintaining petition under S. 12(2), C.P.C., and for setting aside an order / judgment / decree, aggrieved person has to establish elements of fraud, misrepresentation, or illegality committed in order / judgment / decree in question.

Petitioner assailed appointment of respondent as Member Judicial in Appellate Tribunal Inland Revenue on the ground that an FIR was registered against him

Validity

No restrictions or conditions were provided under S. 130(3) of Income Tax Ordinance, 2001 relating to character verification during probationary period of respondent

Mere involvement of a candidate in any criminal case/FIR was not sufficient to bring any clog for appointment of respondent as a Judicial Member of Appellate Tribunal Inland Revenue

Respondent was never adjudged as guilty of the charges, rather complainant of that case had entered into a compromise with him and he was acquitted on the basis thereof

No other occasion, besides registration of one FIR pertaining to any criminal liability of respondent was brought on record by petitioner

Respondent was appointed as Member Judicial Appellate Tribunal Inland Revenue by Federal Government after he qualified the Federal Public Service Commission Exam.

Petitioner was appointed under S. 130(3) of Income Tax Ordinance, 2001 read with Appointment of Income Tax Appellate Tribunal Member's Rules, 1998

Office of Member Judicial, Appellate Tribunal Inland Revenue by all intents and purpose is a public office which office is created by the State and the statute, and duties attached to the office are of a public nature

Petitioner neither challenged qualifications of respondent, as mentioned in S. 130 of Income Tax Ordinance, 2001 nor his experience

Respondent was holding public office strictly as per criteria stipulated in S. 130(3) of Income Tax Ordinance, 2001

Such requirement was duly considered by Federal Government at the time of appointment of respondent through notification of his appointment followed by memorandum which was sent to him clearly mentioning terms and conditions mentioned therein

High Court declined to interfere in the appointment of respondent

Constitutional petition was dismissed, in circumstances.

Suit by a 'financial institution' or a 'customer' can be instituted by one against the other only in case of 'default' in fulfillment of any 'obligation' with respect to any 'finance'.

There is a wide margin of appreciation of terms of "hatred" and "disaffection" and it is entirely subjective for a construction to be put on them

Their degrees may also vary considerably but that may not matter ultimately since if it is encompassed in the term in the opinion of a decision maker, it is sufficient for an offence to be cognizable.

Petitioner assailed appointment of respondent as Member Judicial in Appellate Tribunal Inland Revenue on the ground that an FIR was registered against him

Validity

No restrictions or conditions were provided under S. 130 (3) of Income Tax Ordinance, 2001 relating to character verification during probationary period of respondent

Mere involvement of a candidate in any criminal case/FIR was not sufficient to bring any clog for appointment of respondent as a Judicial Member of Appellate Tribunal Inland Revenue

Respondent was never adjudged as guilty of the charges, rather complainant of that case had entered into a compromise with him and he was acquitted on the basis thereof

No other occasion, besides registration of one FIR pertaining to any criminal liability of respondent was brought on record by petitioner

Respondent was appointed as Member Judicial Appellate Tribunal Inland Revenue by Federal Government after he qualified the Federal Public Service Commission Exam.

Petitioner was appointed under S. 130(3) of Income Tax Ordinance, 2001 read with Appointment of Income Tax Appellate Tribunal Member's Rules, 1998

Office of Member Judicial, Appellate Tribunal Inland Revenue by all intents and purpose is a public office which office is created by the State and the statute, and duties attached to the office are of a public nature

Petitioner neither challenged qualifications of respondent, as mentioned in S. 130 of Income Tax Ordinance, 2001 nor his experience

Respondent was holding public office strictly as per criteria stipulated in S. 130(3) of Income Tax Ordinance, 2001

Such requirement was duly considered by Federal Government at the time of appointment of respondent through notification of his appointment followed by memorandum which was sent to him clearly mentioning terms and conditions mentioned therein

High Court declined to interfere in the appointment of respondent

Constitutional petition was dismissed in circumstances.

Appellate Court/High Court on request of the respondent/Bank while the counsel of appellant/customer was occupied before another bench, directed him (appellant/customer) to deposit decretal amount (without even granting stay or admitting the appeal)

Appellant/customer moved application to recall/review the said order contending that impugned order had been passed in violation of provisions of the S. 22(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ('the Ordinance 2001')

Plea of the respondent/Bank was that the order was rightly passed in view of bar contained in S. 27 of the Ordinance 2001

Validity

Under S. 22(3) of the Ordinance 2001, the Court could consider an order for submitting security at the stage of admitting appeal and a direction for deposit of decretal amount to be issued in the event of grant of stay order, however reasonable order was required to be passed

In the present case, none of said circumstances/pre-conditions existed on the date when the impugned order was passed, or even later than such day/date

Plea of the respondent/Bank was misconceived as the bar contained in S. 27 of the Ordinance 2001 (which was subject to the provision of S. 22 of the Ordinance 2001) would be applicable to Courts and Authorities other than the Banking Courts

"Banking Court" was defined in S. 2(b) of the Ordinance 2001 in which (i) the claim does not exceed Rs. 100 million (as was in the present case); and for the trial of offences under the Ordinance 2001 the Court established under S. 5 of the Ordinance 2001 and (ii) in respect of any other case, the High Court

Whereas, in the present case, High Court as an Appellate Court was exercising jurisdiction when seized of appeal under S. 22 of the Ordinance 2001, and not of a suit under S. 9 of the Ordinance 2001

High Court on the original side also exercises jurisdiction of a Banking Court; which does not mean that the Appellate Court when seized of an appeal becomes a Banking Court

In the present case, neither the present appeal had been admitted nor any stay order had been sought nor passed

Passing of the impugned order due to an incorrect exposition of law regarding S. 22 of the Ordinance 2001 was untenable and unsustainable

High Court recalled the impugned order

Application to review/recall was allowed, in circumstances.

To accept a challenge on ground of a property as Benami one would require certain facts/circumstances which an actual owner otherwise would establish:

Held, that question involved was whether appointment of respondent fell within the ambit of Art. 199(1)(b)(ii) of the Constitution and principles and prerequisites relating to writ of quo warranto

In principle, writ of quo warranto can be instituted by a person, though he may not come within the meaning of words aggrieved person

To maintain a writ of quo warranto there is no requirement for an aggrieved person and a whistle-blower need not be personally aggrieved in the strict sense and may relay information to Court to inquire from the person holding public office

At the same time, it was essential to see whether petitioner had placed any material before High Court to attract Art.199(1)(b)(ii) of the Constitution and whether respondent lacked qualification, skill, competence, and experience to hold subject post and whether respondent was a Member of Majlis-e-Shoora and could not hold any other public office

Petitioner was not able to establish that respondent suffered from any inherent disqualification

It was for the petitioner to satisfy the High Court that appointment of respondent as Chairperson by Prime Minister was tarnished by favouritism and cronyism

Other than oral assertions and unsubstantiated allegations nothing was placed on record to support such assertion

For holding of election for appointment of Board of Directors of SSGCL it was for the competent authority to take steps in accordance with law

High Court declined to interfere in appointment of respondent as Chairperson of SSGCL

Constitutional petition was dismissed, in circumstances.

Petitioner was alleged to have committed offences of cheating, forgery, using forged document, falsification of accounts and violation of foreign exchange restrictions

Authorities placed name of petitioner on Passport Control List

Validity

Authorities failed to provide exceptional circumstances for placing name of petitioner on PCL who was a female, remained an Associate Professor and had also served as a chairperson of department of Defense Strategic Studies of Quaid-i-Azam University (QAU), Islamabad, for a long period

Petitioner remained Federal Minister for human rights, obtained bail in all cases registered against her, and had never been declared proclaimed offender

Nothing was placed on record that could indicate that Federal Government had given approval regarding placing name of petitioner on Passport Control List (PCL) as provided in R.22 (1) of Passports Rules, 2021

Placing petitioner's name on PCL was violative of her fundamental rights to due process, liberty, life, and freedom of movement which were guaranteed by the Constitution

High Court directed the authorities to remove name of petitioner from PCL as it was unjustified, illegal, without lawful authority and of no legal effect

Constitutional petition was allowed accordingly.

According to category "A", names of those persons are placed who are involved in taking part in anti-state activities and under category "B"names of those persons are placed who have been refused passport under the rules other than anti-state activities specified in R.6 (a) of Passports Rules, 2021.

Components of offence under S. 14(2) of Foreigners Act, 1946, include entry into Pakistan for an illegal purpose and doing so knowingly

Actus reus of offence is entering Pakistan illegally and mens rea is intent to enter for an illegal purpose

Intent to seek refuge to save one's life is not an illegal purpose

Where facts established that a foreigner entered into Pakistan to save her life and sought asylum fearing persecution in her home country, such action did not constitute an illegal purpose within the meaning of S. 14(2) of Foreigners Act, 1946

Orders passed by two Courts below were not in accordance with law and had disregarded protection of life and liberty afforded by Art. 9 of the Constitution to any person for the time being in Pakistan

Both the Courts below also failed to appreciate that a foreigner who entered Pakistan as a refugee to save her life from persecution in home country and to seek asylum in a third country in accordance with international law was not liable for a criminal offence under S. 14(2) of Foreigners Act, 1946

High Court set aside orders passed by two Courts below

High Court directed Federal Government to prescribe a mechanism in consonance with Art. 31 of Refugee Convention, 1951, to enable refugees to voluntarily report upon arrival in Pakistan that they would seek refuge and wished to register with UNHCR to seek asylum in a third country

High Court further directed the Government to frame SOPs to direct police authorities to release an accused refugee under S. 169 of Cr.P.C. or file an appropriate report under S. 173 of Cr.P.C., or file an appropriate application under S. 494 of Cr.P.C. to withdraw from prosecution of foreigner, depending on the stage when once refugee status of foreigner is recognized by UNHCR and application for grant of asylum is under process or has been approved

High Court quashed FIR against petitioner/accused as there was no evidence establishing that she had knowingly and illegally entered into Pakistan instead of entering Pakistan as a refugee to save her life

High Court directed Federal Government to issue an exit permit to petitioner/accused forthwith

Constitutional petition was allowed, in circumstances.

Specific privilege was given under S. 9 of Specific Relief Act, 1877, to person in possession to take action promptly in case he was dispossessed

Such suit entitled plaintiff to succeed simply by establishing and proving following facts: (i) plaintiff was in possession; (ii) plaintiff had been dispossessed by defendant; (iii) dispossession was illegal and without adopting due course of law; (iv) dispossession took place within six months of filing the suit; and (v) question of title either of plaintiff or of defendant could not be raised or adjudicated upon such case, under S. 9 of Specific Relief Act, 1877

Though revisional jurisdiction of High Court is sparingly used and normally concurrent findings of the fora below are not disturbed but in case complete misreading and non-reading of evidence by Trial Court and Lower Appellate Court is observed and the findings recorded by Trial Court and Lower Appellate Court are found to be inconsistent with evidences produced by the parties or where legal propositions are not correctly interpreted, then revisional jurisdiction of High Court has to be exercised in order to secure ends of justice

High Court set aside judgments and decrees passed by two Courts below and decreed the suit filed by petitioners/plaintiffs

Revision was allowed, in circumstances.

Rights can be categorized in three kinds i.e. Fundamental rights or those rights which are conferred upon a citizen by Constitution of Pakistan

Legal rights are those rights which are conferred upon a person by any law / statute other than the Constitution

Vested rights accrue to a person due to an act or omission, action or inaction of another person

Petitioners in Constitutional jurisdiction are required is to first establish that they have suffered a legal grievance or they have wrongly been deprived or they have wrongly been refused something which they were otherwise legally entitled to and it is only after establishment of such right, followed by its violation or refusal by public functionaries and it would be thereafter that he/she may be held entitled for the issues of a desired writ

For maintaining Constitutional petition under Art.199 of the Constitution, petitioner has to establish that any of his fundamental rights conferred upon him by the Constitution or legal right conferred by any other law / statute or vested right accrued by an act or omission of another person have been violated.

Powers under S. 5(5) of Federal Investigating Agency Act, 1974 are based on four ingredients: (i) property has some nexus with investigation/alleged offence; (ii) there is likelihood that the property is to be removed, transferred or otherwise disposed of before an order passed by appropriate authority for its seizure is obtained; (iii) by issuing an order in writing directing the owner or any person who is for the time being in possession thereof not to remove, transfer or otherwise dispose of such property in any manner; and (iv) the order has to be subject to any order made by the Court having jurisdiction in the matter

Powers bestowed upon members of FIA under S. 5(5) of Federal Investigating Agency Act, 1974, are not unfettered, rather are subject to certain restrictions and limitations, required to be used sparingly and in cases of exceptional nature.

Applicant/director/Chief Executive Officer of company under winding up sought stay of proceedings on the plea of formulation of revival plan and intention of induct further capital

Validity

Two conditions were required under S. 313 of Companies Act, 2017 to be satisfied for bringing an order of stay of winding up in existence (i) filing of an application either of the Official Liquidator or of any creditor or contributory or of the registrar or the Commission or a person authorized by it for stay of winding up proceedings; (ii) proof to the satisfaction of the Court that all proceedings in relation to the winding up ought to be stayed

If such two conditions were satisfied, High Court had discretion to stay winding up proceedings, either altogether or for a limited time by imposing appropriate terms and conditions

Consequence of winding up order was that all assets of the company would come under the control of Court and management of company would vest with liquidator instead of Directors and Chief Executive of the company

Applicant/director did not have any locus standi to file such petition

Only official liquidator was empowered under S. 337(e) of Companies Act, 2017 to institute or defend any suit, prosecution or other legal proceedings in the name and on behalf of the Company under liquidation

High Court declined to interfere in the matter as the application was not filed as per requirement of S. 313 of Companies Act, 2017 rather the same was filed by director/Chief Executive and that too without any authorization

Winding up proceedings were still underway and staying of the proceedings at such stage would cause delay in liquidation process and prejudice to the rights of other creditors, if any, as protected under S. 314 of Companies Act, 2017

Application was dismissed, in circumstances.

No incriminating material was confronted in summons and no notice or proceedings under Ss. 18, 21 & 22 of Benami Transactions (Prohibition) Act, 2017, respectively were disclosed

Powers under S. 18 of Benami Transactions (Prohibition) Act, 2017, could be exercised only after taking cognizance of the matter under the law

At initial stage summons were not envisaged under S. 21 of Benami Transactions (Prohibition) Act, 2017

After insertion of Arts. 19A & 10A in the Constitution, it could not be termed as notice under S. 22 of Benami Transactions (Prohibition) Act, 2017

It was fundamental right of a person proceeded against under law that information regarding mandatory proceedings and necessary information/material requiring action under the law was duly provided and confronted in show-cause notice

Any notice proposing legal action under the law was not enforceable if it lacked mandatory details

High Court declared that summons for calling petitioner to give statement and affidavit was without jurisdiction and in absence of any lawful authority

Constitutional petition was allowed accordingly.

Powers under S. 5(5) of Federal Investigating Agency Act, 1974 are based on four ingredients: (i) property has some nexus with investigation/alleged offence; (ii) there is likelihood that the property is to be removed, transferred or otherwise disposed of before an order passed by appropriate authority for its seizure is obtained; (iii) by issuing an order in writing directing the owner or any person who is for the time being in possession thereof not to remove, transfer or otherwise dispose of such property in any manner; and (iv) the order has to be subject to any order made by the Court having jurisdiction in the matter

Powers bestowed upon members of FIA under S. 5(5) of Federal Investigating Agency Act, 1974, are not unfettered, rather are subject to certain restrictions and limitations, required to be used sparingly and in cases of exceptional nature.

In order to invoke jurisdiction of High Court under Art. 199(1)(a) and (c) of the Constitution, petitioners are required to cross caveats of 'aggrieved person' or 'locus standi' and absence of 'adequate remedy' provided by law.

Event or stage when said phrase may come into play and is given some meaning is when a Commissioner examines return of a tax payer, he may have some queries which might be tempting to call record as he may not be able to reconcile and/or resolve them through return statement

Such queries must be understood and settled to the satisfaction of the Commissioner before he can make up his mind further

Audit is nowhere in the scheme when such questions come for consideration after going through the returns while the Commissioner acts under 25(1) of Sales Tax Act, 1990

Record may satisfy curious mind but queries must be genuine at the time of calling the record which could not have been answered without going through the record required

Record calling cannot be a roving exercise and cannot be a courtesy call either.

In case for confirmation of resolution of reduce share capital, question for consideration were; should the Court refuse its sanction to the reduction out of regard to the interest of those members of public who were induced to take shares in the company; was reduction fair and equitable between classes of shareholders; whether reduction was shared by all; was it designed to work justly and equitably; and whether such reduction did not involve diminution of liability in respect of unpaid capital or payment of any shareholder of any paid of capital

Evidence regarding loss of capital was present and non-representation of available assets

None of such impediments existed in the case of the Company

Proposed reduction in share capital was resolved by the company itself, which would not adversely affect the interest of shareholders

High Court approved the scheme of reduction and the proposal for reduction of share capital was confirmed

Petition was allowed accordingly.

Petitioners were aggrieved of proceedings initiated by authorities on the allegation of obstructing tax recovery process

Plea raised by authorities was that petitioners had alternate remedy of appeal available to them

Validity

Objection taken to maintainability of constitutional petition by authorities was without substance, as order passed by authorities was without jurisdiction and the matter was rightly agitated in a petition under Art.199 of the Constitution, without availing statutory right of appeal

Petition under Art.199 of the Constitution was maintainable against show-cause notice which was without jurisdiction and lawful authority

Petitioners were slapped with criminal liability without adopting course of action as provided in Federal Excise Act, 2005

High Court apprehended that if such course was allowed as a matter of routine, that would bring chaos and would displace criminal jurisprudence

Questions raised by petitioners were of paramount importance, viz, in presence of proper procedure provided for adjudication of criminal trial, imposition of fine in the garb of penalty through an executive order would amount to high handedness on the part of authorities and would be without lawful authority

High Court in exercise of Constitutional jurisdiction set aside show-cause notices and orders-in-original passed against petitioners

Constitutional petition was allowed, in circumstances.

Notice under S.122(9) of Income Tax Ordinance, 2001 did not lie if assessment order was not erroneous so as to be prejudicial to the interest of the revenue

Only such two factors were attracted S.122(9) of Income Tax Ordinance, 2001 and would be maintainable, otherwise it was not valid and barred by law

Show-cause notice did not show that Additional Commissioner issuing the notice elaborated erroneous elements in assessment order and a resultant prejudice caused to the Revenue

Both the terms could not be segregated and apply independently

It had to be mentioned by the Additional Commissioner pointing out erroneous assessment and resultant prejudice which did not find mentioned in show-cause notice in question

High Court set aside show-cause notice and remanded the matter to Additional Commission Income Tax to consider issue of assessment as erroneous so as to cause prejudice to revenue initially

High Court directed the Authority to proceed to decide on merits only after he would reach the conclusion that elements of S.122(5A) of Income Tax Ordinance, 2001, were attracted

Constitutional petition was allowed accordingly.

Petitioner assailed detention of his uncle under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, by the authorities

Validity

Order under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, could not be based on conjectures and surmises and was to be based on concrete and tangible evidence

Grounds on the basis of which detention of a person was issued must be supported by sufficient and cogent material of the nature as would satisfy an ordinary prudent person to justify issuance of an order of preventive detention

It was only where there was sufficient and cogent material against a person that issuance of a preventive detention order could be justified

This was essential prerequisite for issuing an order under S. 3 of West Pakistan Maintenance of Public Order Ordinance, 1960, and the same was lacking against the detenue in the present case

High Court directed the authorities to release the detenue as preventive detention order against him was unlawful, issued without application of independent mind and resultantly the same was set aside

Constitutional petition was allowed in circumstances.

Petitioner was aggrieved of withdrawal of provisional affiliation of his college by Federal Board of Intermediate and Secondary Education

Validity

Show cause notice and order in question were issued by one of the Directors of the Board, who was vested with no authority under Federal Board of Intermediate and Secondary Education Act, 1975, to issue such show cause notice or order in question

Even if show cause notice and order for withdrawal of affiliation was issued by Director on the direction of Chairman, the Chairman was also vested with no authority to issue the order, as power to withdraw affiliation were vested with the Board of Governors and was to be exercised after grant of prior approval from Federal Government in accordance with S. 8(2)(f) of Federal Board of Intermediate and Secondary Education Act, 1975, after ordering an inspection for such purpose

High Court set aside order of withdrawal of affiliation as the same was coram non judice

Constitutional petition was allowed, in circumstances.

Test was not whether criminal proceedings instituted on false and frivolous allegation had reached the court rather would be that such proceedings had reached a stage at which damage to plaintiff resulted

High Court set-aside judgment and decree passed against plaintiff and remanded the case to Trial Court to decide the suit afresh after recording evidence of parties in accordance with law on the subject

Appeal was allowed accordingly.

Respondent/contemnor was a politician who during a public speech passed derogatory remarks against a Judge conducting a criminal trial

High Court issued contempt notice to respondent/contemnor who tendered his apology to the words used by him during public speech

Validity

Question of tendering an apology becomes relevant when Court upon conclusion of proceedings was satisfied that charge of contempt had been established, and no case was made out to extend benefit of doubt

Satisfaction of Court was the foundational principle in such regard

Apology might not be expressly tendered, but Court could be satisfied that its bona fides stood impliedly established by conduct or written submissions of contemnor

Satisfaction of Court could not be restricted to any particular mode, form or nature of an apology

Court was to be satisfied that contemnor regretfully acknowledged having committed contempt and such acknowledgment must appeared to be bona fide

Court could be satisfied, even if an unconditional apology was not been tendered

Speech of respondent/contemnor was not followed by any other action and only actus reus was speech in question

High Court declined to refuse extending benefit of doubt to respondent/contemnor

Conduct of respondent/contemnor unambiguously manifested acurative effect

High Court did not dispute bona fide of regretful acknowledgment on the part of respondent/contemnor manifested through his conduct, tendering appearances before High Court explaining his stance and reiterating it by executing affidavit in apology

Despite extending benefit of doubt, the apology tended by respondent/contemnor was bona fide and High Court did not form a different opinion

High court discharged respondent/contemnor from contempt notice

Contempt proceedings were withdrawn in circumstances.

Authorities sought recovery of penalty and surcharge from taxpayer in exercise of powers under S.11(1) of Income Tax Ordinance 2001

Appellate Tribunal Inland Revenue set aside the order of such recovery

Validity

For imposition of penalty under S.33 of Sales Tax Act, 1990, and default of surcharge under S.34 of Sales Tax Act, 1990, authorities could invoke provisions of S.11(1) of Sales Tax Act, 1990, issue show-cause notice and could pass assessment order, if registered person had either failed to file return by due date or having filed return by due date, had paid an amount which for some miscalculation was less than the amount of tax actually payable

Both the eventualities triggering action under S.11(1) of Sales Tax Act, 1990, were non-existent

High Court declined to interfere in order passed by Appellate Tribunal Inland Revenue as show-cause notice and subsequent order in original passed by Assessing Officer were rightly set aside

Reference was dismissed, in circumstances.

Contract is an agreement having a lawful object, entered into voluntarily by two or more parties each of whom intends to create one or more legal obligations between them

Basic requirements of valid and enforceable contract are offer, acceptance, exchange of consideration and mutuality of obligations

Fundamentally important ingredient of valid contract is that it should be between parties who are competent to contract

Intention of parties to a contract must be looked at to determine where a contract has come into existence

Essential elements for any sale transaction are (a) payment of sale price of property, movable or immovable, or promise to pay the same by buyer or seller, and (b) delivery of possession of property

In case such two essential terms of sale of immovable property can be determined on the basis of contents of agreement between parties with certainty, it may constitute a valid agreement of sale between parties which subject to discretion of Court can be directed to be specifically performed

Basic test for resolving whether parties reached consensus ad idem for concluding a contract is to ascertain whether parties had consensus on all material points at the time agreement was executed between parties.

National Database and Registration Authority Employees (Service) Regulations, 2002, were framed under section National Database and Registration Authority Ordinance, 2000 and were duly published in official gazette, therefore, fulfilled requirement of statutory rules of service.

Condition that is sine qua non for recording an FIR under S. 154, Cr.P.C. is that there must be information and that information must disclose commission of cognizable offence

Provision of S. 154, Cr.P.C. is mandatory and concerned officer is duty bound to register an FIR on the basis of information disclosing commission of a cognizable offence.