Pre-condition

Prosecutor who does not apply his independent mind while taking prosecutorial decisions or giving opinions exposes himself to a legal action by Prosecutor General under S.10(2) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 which again regards the prosecutors as public servants

Provision of S.10 (2) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 reinforces independence of criminal prosecution service that until Prosecutor General recommends, no authority in government can take action against prosecutors.

It is sine qua non for a person to be susceptible to levy of a tax, before the subsequent processes of assessment and recovery can become applicable.

For the purpose of making a gift of immovable property, under section 123 of Transfer of Property Act, 1882 transfer must be effected by a registered instrument signed by or on behalf of donor and attested by at least two witnesses.

Existence of a debt is a sine qua non for an action against surety even if it is separately and independently brought against it

Foundation or basis of claim even in suit against surety is liability of principal debtor.

Exclusion of insurance bond/guarantee as a form of security by procuring agencies of Federal Government and Provincial Government of Punjab with respect to performance or additional performance/quality assurance guarantee was permissible in terms of lawful discretion of a procuring agency provided it was specifically stated in SBDs

Bidders who participated in bidding process, subject to bidding documents, had no vested right to tender securities in a particular form of their choice that was not part of SBDs of a procuring agency as they knowingly had participated in a bidding process in accordance with the terms and conditions of SBDs

Petitioners failed to make out a case of discrimination as exclusion of insurance bond/guarantee indiscriminately applied to all bidders with reference to a particular bidding process

Where facts emanating from contractual disputes were admitted, constitutional jurisdiction under Art. 199 of the Constitution could be exercised

Act of exclusion of insurance bond/guarantee as a form of security with respect to performance or additional performance/quality assurance security by a procuring agency falling under Federal or Provincial Government of Punjab was not in conflict with the decision of ECNEC

High Court directed respondents/procuring agencies to issue fresh notice to each petitioner to furnish security in the requisite amount and form mentioned in applicable SBDs in all pending contracts, failing which each petitioner could be dealt with in accordance with the terms and conditions of applicable contract

Constitutional petition was disposed of accordingly.

During appeal, petitioners/defendants sought permission to adduce additional evidence but Lower Appellate Court declined the request

Validity

Where interest of justice and requirement of Court in adjudicating on the matter demand that such additional evidence is necessary, then the same should be allowed and recorded

Courts are not denuded of the power to summon all necessary record and also to summon witnesses so as to supply omissions from both sides

If a piece of evidence is relevant and pertinent for the decision of any issue, and it is genuine and reliable, it should not be stopped from being brought on record merely because in process employed for collection of material an irregularity or an illegality was committed

Concept of bar against filling gaps is no more available in jurisprudence of Pakistan

Courts should collect and record evidence which is authentic, consistent with pleadings and relevant to findings so as to advance and do complete justice between the parties

Interest of justice demanded that petitioners/defendant could have been allowed to bring on record documents as well as oral evidence which were otherwise of unimpeachable authenticity for resolving controversy and meeting ends of justice

Lower Appellate Court failed to exercise jurisdiction in accordance with law by disallowing the application

High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and allowed application for additional evidence filed by petitioners/defendants

High Court directed Lower Appellate Court to record additional evidence of petitioners/defendants and respondents/plaintiffs would have a right to produce any lawful evidence in rebuttal

Revision was allowed accordingly.

Existence of a debt is a sine qua non for an action against surety even if it is separately and independently brought against it

Foundation or basis of claim even in suit against surety is liability of principal debtor.

Before an aggrieved person triggers judicial review, the Constitutional Court must, at the proverbial doorsteps of judicial review, satisfy itself that "no adequate remedy is provided by law" to the petitioner.

To consider bank transaction as assets, Explanation-II to S.9 (a)(v) of National Accountability Ordinance, 1999 has put a condition that onus is on investigating officer to provide that a corresponding asset was established from the exact bank transactions in question

Otherwise, entries of bank account cannot be treated as assets.

Pleader should always be appointed in sufficient time to enable him to take copies of documents and other necessary papers, which should be furnished free of cost before commencement of trial

Such right of accused includes proper representation by pleader, which has been kept in view by the Legislature by inserting 340(1), Cr.P.C.

Petitioners/accused persons were aggrieved of freezing/blocking of their bank accounts; placing them in watch list and imposing restrictions on their travel for having connections with a proscribed organization

Validity

Provision of S. 11-EE of Anti-Terrorism Act, 1997, prescribed "reasonable ground to believe" standard to impose sanctions

Powers under S. 11-EE of Anti-Terrorism Act, 1997, were exercisable subject to condition that the authority must take into account all relevant facts and circumstances to form an opinion

Such opinion must be based on information received from any credible source which should be authentic and not just mere suspicion

There must evidence to establish reasonableness

The ground should be communicated to the person within three days

Authority was required to place entire material before the Court

State functionaries while discharging official functions were to ensure that no one was denied right to earn livelihood

Word "lawful" used in Art. 18 of the Constitution qualified right of a citizen in relevant field

High Court set aside freezing/blocking of accounts of petitioners as the same were illegal and void ab initio and petitioners could not be prohibited from doing lawful business

Constitutional petition was allowed accordingly.

Punishment for S. 20(1)(d) of Financial Institutions (Recovery of Finances) Ordinance, 2001, is dependent upon determination of civil liability / decree.

Appellant / bank was aggrieved of dismissal of private complaint by Banking Court filed against respondent / accused for dishonoring of cheque presented for repayment of finance

Validity

Requirement of S.20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, was different than gist of complaint filed by appellant / bank

Section 20(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, only enabled the Banking Court to frame punishment if customer / whosever, breached the terms by "dishonestly issuing cheques" towards repayment of finances or fulfilment of such obligation which was / were dishonored

Prime consideration for Court was to see whether element of dishonesty was involved or not and the later part was only consequential

Burden to prove such element of dishonesty was upon complainant which was lacking in the present complaint

There was no evidence to demonstrate such "dishonest intention" of alleged accused, even if charge was to be altered

It was not a civil case of recovery under banking jurisdiction that preponderance or cumulative effect was to be given for recovery proceedings; the process in the present case was criminal intent which led to punishment where intent of dishonesty was inevitable

High Court declined to interfere in order passed by Banking Court

Appeal was dismissed, in circumstances.

In extraordinary circumstances Magistrate may consider it necessary for reasons of security of accused or of witnesses or for any other valid ground to hold inquiry or trial in jail premises

Where Magistrate exercises his discretion to exclude public or to hold his Court in a building such as a jail, he must do so in accordance with R. 3 in Part-A of Chapter-1 in Vol-III of High Court (Lahore) Rules and Orders.

Statutory right to be released on bail flowed from the Constitutional right to liberty and fair trial under Arts. 9 & 10-A of the Constitution

Act or omission on the part of accused to delay timely conclusion of trial must be result of a visible concerted effort orchestrated by accused

Purpose and objective of law was to ensure that trial of an accused was conducted expeditiously and pre-conviction detention of accused did not extend beyond the period of one year in cases involving offences not punishable by death

If trial of accused was not concluded within one year of his detention, statutory right to be released on bail ripened in his favour

Bail was granted, in circumstances.

Banking Court dismissed suit filed by the bank under O. VII, R. 11, Civil Procedure Code, 1908, on the ground that the same was filed without observing conditions prescribed in S. 8 of the Financial Institutions (Recovery of Finances) Ordinance, 2001

Contention of the appellant/bank was that suit was instituted after passing Resolution in the meeting of Board of Governors

Validity

Record (statement of accounts etc.) indicated that in the year 2014 a certain principal amount which was credited in the account of respondent/customer was written-off by the appellant/bank showing the remaining balance as zero, whereas not a single document was found (in the record) which could prove that after passing Resolution in the meeting the suit-in-question was instituted

Besides, suit-in-question was instituted after a belated stage

Section 8 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, stipulated that the Bank could institute the suit against the respondent/customer within the prescribed period of five years with only one pre-condition of prior approval from the Board of Governors

Thus, the impugned order passed by the Banking Court was not open to debate for the High Court, for being based on sound reasoning which did not call for interference for the High Court in exercise of appellate jurisdiction

No illegality or infirmity was noticed in the impugned order and judgment passed by the Banking Court dismissing the suit filed by the appellant/Bank under O. VII, R. 11, Civil Procedure Code, 1908

Appeal filed by the Bank was dismissed, in circumstances.

Oil and Gas Regulatory Authority allows provisional licensee to undertake marketing of petroleum products/refined oil products, when it completes first storage facility and area of marketing is restricted to Province, where it develops that storage/depots and so on till it completes the entire work programme, which entitles the licensee to have a licence for a longer period i.e. maximum 30 years

New licensee does not have to first complete all its entire marketing infrastructure before having license for undertaking marketing of petroleum product, establish retail outlets and filling stations during initial license period, which are a part and parcel of the work programme

Provision of R. 35 of Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016, nowhere places any embargo that licensee cannot operate retail outlets or its storages during the initial license term of three years.

Execution of predicate offence gives birth to proceeds of crime, the movement of which attracts criminal conduct of money laundering

Without commission of predicate offence there cannot be an offence of money laundering.

Execution of predicate offence gives birth to proceeds of crime, the movement of which attracts criminal conduct of money laundering

Without commission of predicate offence there cannot be an offence of money laundering.

Oil and Gas Regulatory Authority allows provisional licensee to undertake marketing of petroleum products/refined oil products, when it completes first storage facility and area of marketing is restricted to Province, where it develops that storage/depots and so on till it completes the entire work programme, which entitles the licensee to have a licence for a longer period i.e. maximum 30 years

New licensee does not have to first complete all its entire marketing infrastructure before having license for undertaking marketing of petroleum product, establish retail outlets and filling stations during initial license period, which are a part and parcel of the work programme

Provision of R. 35 of Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016, nowhere places any embargo that licensee cannot operate retail outlets or its storages during the initial license term of three years.

Lawmaker has empowered Board of Revenue to make rules to regulate appointments and other affairs mentioned in S.36 of Punjab Land Revenue Act, 1967

Only condition imposed by Legislature, on Board of Revenue, is obtaining prior approval by the Government.

Such suit if decreed, passes no title to decree holder till such time that a registered sale deed is executed in implementation of decree.

Words "in cases where in the opinion of the Commissioner the provisions of subsection (1) or subsection (2) are applicable"

Scope

Legislature requires Commissioner to form an opinion

Opinion must be expressed in writing and cannot be presumed to exist in the mind of Commissioner without finding expression in a written order.

Appellant / importer was aggrieved of criminal proceedings initiated against him by authorities for misdeclaration of value of goods and duty paid thereon

Validity

Post General Agreement Tarrifs and Trade (GATT) era S.25 of Customs Act, 1969, not only eliminated concept of economic zones for comparison and fixation of values of imported goods for customs purposes but at the same time required such valuation to be based on actual value of imported merchandise on which duty was to be assessed and had barred valuation hinged to the value of merchandise of national, or any other country's origin, or on arbitrary or fictitious values

Offense under S.32 of Customs Act, 1969, could not be constituted in absence of mens rea on the part of an importer and could not be put in operation

Provision of S.32 of Customs Act, 1969could only be invoked on an importer upon availability of deliberate act or connivance, error, omission or misconstruction

Element of mens rea was missing and no deliberate misdeclaration was apparent from the record

Authorities did not adduce any evidence to substantiate that it was a willful fault and deliberate mis-declaration

Authorities' desire to levy fine in absence of incriminating evidence could not be entertained

Merely hypothecation would not ipso facto mean that element of mens rea was present making importer liable for imposition of penalty

High Court set aside allegation of mis-declaration and imposition of fine and penalty as the same could not be sustained

Appeal was allowed, in circumstances.

Plaintiffs were aggrieved of running an educational institution by defendants in a residential area in a residential accommodation

Plaintiffs sought interim injunction against defendants from running the school

Validity

Residential accommodation per regulation 25 5.2 of Karachi Building and Town Planning Regulations, 2002, could only be used for educational purposes if width of road upon which residential accommodation was located was not less than 100 feet wide, as well as plot size must not be less than 1500 square yards

None of the two exceptions applied as the property did not face a 100 feet wide road and neither was converted to an amenity otherwise

Property in question could not be put to education purposes due to the road-width requirement

Onus was upon defendants to prove that in order to run college in a residential neighborhood, they had complied with all codal formalities envisaged under the statute

Defendants did not comply with statutory prescriptions as far as building byelaws and Master Plan was concerned

Right of education was indispensably a fundamental right enshrined under the Constitution but it did not lead to or give rise to any particular right to the defendants to establish an institution in a residential house

Prior permission from Master Plan Department as well as objections of inhabitants of surrounding area were not considered

Neither the Constitution nor any statute conferred or vested any right in the defendants that they could be given any special treatment allowing them to run a College for profit in complete defiance/disregard of Karachi Building and Town Planning Regulations, 2002

Plaintiffs made out a prima facie case, balance of convenience also laid in their favor and acts of defendants were calculated to cause irreparable loss to plaintiffs

High Court confirmed interim injunction in favour of plaintiffs

Application was allowed, in circumstances.

For purposes of any tax year in relation to which either Income Tax Ordinance, 1979 or Income Tax Ordinance, 2001 is applicable, a necessary precondition for any debt to qualify as bad debt is for the taxpayers to have written off such debt in its books and accounts for such tax year as bad debt

Such written off amount in lieu of bad debts then determines ceiling of bad debt in lieu of which adjustment can be sought in relation to a particular tax year

Treatment in the books and accounts of debt in relation to which taxpayer seeks a deduction on account of it being bad debt as having been written off in relevant tax year is a necessary precondition

Once such condition is met, the second condition to be satisfied is reasonability of belief that such written off debt is irrecoverable

Where a taxpayer has not written off debt within its own books and accounts for relevant tax year for having become irrecoverable, question of seeking deduction for such debt as bad debt does not arise.

Petitioner was father of minor girl who was deprived of custody and guardianship of his minor daughter on the plea that respondent who was his mother-in-law had better economic condition than him

Validity

Father could not be declared unfit to serve as guardian of his own child whom he had brought into the world, merely because he was poor or uneducated or that his relatives or relatives of his former spouses were better educated or financial better off or possessed better accommodation

Only relevant consideration was bond of love and affection between the parent and the child and willingness of the parent to look after wellbeing of the child

No evidence, material or basis for Family Court were available to determine that petitioner was unfit to act as a guardian for the person or property of his own daughter

To appoint another guardian in his stead while he was alive and well and eager and willing to act as a guardian of his own daughter, who was already deprived of her natural mother, was in breach of provisions of Ss. 19(b) & 41(1)(e) of Guardians and Wards Act, 1890

No third party, caregiver or guardian could be appointed a guardian in the stead of a biological parent of the child while biological parent was alive and not found unfit by Family Court to act as guardian of his or her own child

High Court directed Chief Commissioner in his capacity as Provincial Government for purposes of Islamabad Capital Territory to put together panel of duly qualified professional psychologists and psychiatrists who could be consulted by Family Courts seized of guardianship matters

High Court further directed that Chief Commissioner, Islamabad Capital Territory would ensure that such professionals were compensated for the services that they provide to Family Courts in assessing needs of children subject to guardianship decisions

High Court set aside judgment and decrees passed by two Courts below and declared petitioner as sole guardian of his minor daughter

Constitutional petition was allowed accordingly.

Interference with preliminary report of Delimitation Committee or order of Election Commission of Pakistan could not be made at the instance of former elected representatives on the ground that new delimitation would make his or her winning prospects bleak in elections or that an area where he or she was popular was no longer a part of the constituency from which he or she wanted to contest the elections

Delimitation of constituencies was to be carried strictly in accordance with the provisions of Chapter-III in Elections Act, 2017 as well as Chapter-III of Election Rules, 2017

Boundaries of electoral constituencies could not be altered at the whims of politicians

High Court declined to interfere in the matter as essential prerequisites for issuing a writ of certiorari did not appear to be satisfied

Constitutional petition was dismissed, in circumstances.

Adjudicating authority i.e. Commissioner Inland Revenue in violation to legal provision as it stood then on 01-07-2009 selected case of respondent / taxpayer for audit taxpayer and subsequently under S.122(1) & (5) of Income Tax Ordinance, 2001 created an additional tax liability

In order to initiate such like proceedings "definite information" was required

Merely on the basis of presumptions and assumptions proposed income was supposed which was against the mandate of S.122(5) of Income Tax Ordinance, 2001

Without any definite information within the scope of S.122(5) of Income Tax Ordinance, 2001 proceedings were initiated and merely on the basis of assumptions the liability was created

High Court declined to interfere in the matter as Appellate Authority and Appellate Tribunal Inland Revenue rightly recorded findings against the decision of adjudicating authority

Reference was dismissed in circumstances.

Petitioners assailed election of Stewards of Race Course Club on the plea that they had informed respondent regarding contesting of election and sought return of their withdrawal letters

Validity

Only requirement for communication of revocation of proposal was that the same came into knowledge of the person to whom it was made

Revocation of withdrawing from contesting elections made by petitioners to respondent was duly communicated to him and came into his knowledge who himself admitted such factum in his affidavit

Respondent at one hand did not handover withdrawal letters of petitioners before holding of Annual General Meeting (AGM) and on the other hand, elected ten candidates as Stewards without consent and without giving right to vote

Such act of respondent was not only violative to Art. 27 of Articles of Association of the Club but also was against principle of corporate democracy denying right of vote of petitioners to participate in AGM

Court was empowered under S. 160 of Companies Act, 2017, to declare election of all directors or any one or more of them invalid if it was satisfied that there had been material irregularity in its holding

High Court declared that proceedings at AGM were not in accordance with law and were invalid in terms of S. 136 of Companies Act, 2017

High Court also declared that in terms of S. 160 of Companies Act, 2017 elections of directors were invalid

High Court directed respondents to hold AGM afresh for the elections of Stewards of the Club in accordance with law and Articles and Memorandum of Association of the Club

Constitutional petition was allowed accordingly.

Only precondition to invoke provision of S. 94, Cr.P.C. is that Court is to be satisfied that production of document or thing is necessary for just decision of case

Scope of S. 94, Cr.P.C. is very wide and word "whenever" suggests that Court could exercise its power conferred to it at any stage of inquiry or trial.

Aggrieved bidder cannot be expected to submit meaningful grievance petition without knowing breakdown of marks awarded to it and other bidders for each category of evaluation criteria contained in bidding documents

In absence of detailed breakdown, it is impossible for a bidder to know grounds on which to challenge evaluation report before Grievance Redressal Committee

Withholding of such information causes prejudice to bidder's rights in proceedings before Grievance Redressal Committee

Bid evaluation report merely sets out total marks obtained by each bidder

Absence of detailed breakdown of marks awarded to each bidder for each component of evaluation criteria is not in accord with requirements of fairness and transparency.

Claim for specific performance of contract seeks grant of discretionary relief in terms of Ss. 12 & 22 of Specific Relief Act, 1877

Such relief has to be granted only in the interest of fairness and to dispense justice in accordance with law

One who seeks equity must do equity

Conduct of claimant before and after filing of suit should be such that it does not disentitle him from being recipient of equitable relief.

No independent right or entitlement has been created under Federal Government Employees Housing Authority Act, 2020, in favour of registered members of the Authority to claim allotment of a plot at the expense of interest of public at large

Basis of allotment under FGEHA Act, 2020 is membership of FGEHAuthority on voluntary basis

Acquisition of land, launching a scheme and distribution of acquired land are solely governed and regulated under approved policy of Federal Government

Such policy has to meet threshold of public purpose and has to serve and be in conformity with public interest and cannot operate in derogation of fundamental rights of public at large.

Knowledge and consent of director, partner or officer of company, corporation or firm regarding offence has to be proved by prosecution.

Implied right guaranteed by Art. 10 of the Constitution is that grounds of arrest must exist before arrest takes place.

Suit for specific performance of agreement to sell is discretionary relief; it is obligatory upon plaintiff to demonstrate in unequivocal terms in his pleadings, as well as by his conduct throughout the proceedings that he has always been and is still ready and willing to perform his agreed part of contract.

Interest of owners of immovable properties in amenity plots, reserved for convenience and comfort of residents, was a right enforceable by invoking Constitutional jurisdiction of High Court

Sanctioned Master Plan, showing such amenity plots/area, could not be altered without inviting objections or obtaining "No Objection Certificates" from residents

Any modification in plan which would alter or radically change sanctioned scheme to take away the comfort or convenience provided through amenity plots/area, was a fraud upon residents, who purchased immovable properties on a representation through sanctioned plan

High Court set aside the action of converting Amenity plot reserved for playground into residential plots, as the same was result of arbitrary exercise of power

High Court directed the respondents to restore amenity plot reserved for playground

Constitutional petition was allowed, in circumstances.

Petitioner company was running a broadcasting television channel and was aggrieved of show cause notice issued by Pakistan Electronic Media Regulatory Authority prohibiting broadcast of television drama namely "Jalan" and directed to off the air the same

Validity

Council of Complaints was empowered to receive and review complaints made by persons or organizations from general public against any aspects of programs broadcast or distributed by a station

Council was to then make its recommendations to Pakistan Electronic Media Regulatory Authority

Legislature was aware that freedom of expression was a fundamental right given by Constitution and all legislation was subordinate to it

Such was the reason that safeguarded against any arbitrary action and the same was built into the legislation

Authority was empowered to take action against a licensee, however a two tier process was prescribed to ensure that an opinion (on complaints) from a diverse range of people was sought before action was taken

If not elimination, such diverse opinion would ensure mitigation of personal bias of an individual in a decision making process

High Court set aside the notice issued by Pakistan Electronic Media Regulatory Authority as due process of law was not complied with in its issuance

Appeal was allowed, in circumstances.

Deceiving and taking over delivery of property belonging to one person through dishonest inducement, which causes loss to the person deceived is the foremost factor to constitute act of cheating.

Gaining any benefit or favour, either by public office holder vested with authority or for any other, is a pre-condition for constituting an offence under S.9(a)(vi) of National Accountability Ordinance, 1999.

Only if ingredients of offences described in one of the clauses in S.9(a) of National Accountability Ordinance, 1999, are fulfilled, only then S.9(a)(xii) of National Accountability Ordinance, 1999, is attracted.

Such can only become offence under National Accountability Ordinance, 1999, if it is caused due to deceit, fraud or dishonestly

Merely causing loss, regardless of its quantum does not constitute a criminal offence.

Across the board accountability can only be achieved, if there is no perception that accused persons are treated differently

Bureau must be able to demonstrably justify why some accused are arrested while others are treated differently.

Commission may at any time for reasons to be recorded carry out search and inspection of any premises for the purposes of enforcing any provision of Competition Act, 2010.

If accused of offence punishable under Control of Narcotic Substances Act, 1997, is sentenced to imprisonment for a term exceeding three years only then Court can order that his assets derivable from trafficking in narcotics substances be forfeited.

While acquiring land for any other purpose, the productivity of land being acquired was to be taken into consideration as against the purpose of acquisition

Decision was not to be based on desire or convenience

Such formula for acquiring land may cost more but approach is futuristic to save generations for years as fertile land can be saved.

There should not be any intention to cause death of deceased.

Petitioner was a foreign company and sought winding-up of respondent company on the allegation that it was unable to pay its debts

Validity

If a company did not comply with Ss. 451 & 452 of Companies Ordinance, 1984, it was debarred from agitating any right through legal proceedings with respect to any contract or other transaction

Petitioner company registered abroad did not fulfil requirements of Ss. 451 & 452 of Companies Ordinance, 1984

Implications provided in S. 456 of Companies Ordinance, 1984, ensued the effect whereof petitioner was not competent to file petition for winding up

Appointing any attorney was inconsequential as the attorney was to act on behalf of the company which could not initiate legal proceedings

Petition was dismissed in circumstances.

In all documents related to financial matters, it was the mandate of Art. 17 of the Qanun-e-Shahadat, 1984 that such documents must be proved by the production of two witnesses who had signed such documents in token of its execution.