Exceptions

Petitioner's grievance, founded on personal hardship and emotional impact of being unable to visit her sons' graves, did not amount to infringement of any constitutional right

Petitioner and the deceased adhered to the Hanafi school, and the circumstances pleaded did not fall within the recognized exceptions in Hanafi jurisprudence that permitted relocation of a grave, and the scholarly opinions to that effect, though not binding, were treated as persuasive by the High Court.

Objection raised by counsel for the appellant (insurance company) that the documents were produced by counsel of the respondent No.1 (policy holder) as such those documents could not be considered

Validity

The documents under question pertained to the record of the appellant company as well as that of respondent No.2 (bank) which had not been controverted by the appellant company through convincing evidence

Further, the other documents pertained to public record which were prepared, maintained and issued by the government and same had presumption of correctness, which official documents were per se admissible in evidence and even validity or veracity of said instruments were not under question in the present lis as such it did not have any effect on the case of the respondent No.1 (policy holder) and even the High Court had jurisdiction to take judicial notice of such public documents

Thus, the argument of counsel for the appellant being devoid of any force was repelled

No illegality or material irregularity, misreading and non-reading of evidence in the impugned judgment passed by the insurance tribunal was pointed out

Appeal being devoid of any merits was dismissed, in circumstance.

Firstly, the exception to the general rule is that where the execution is being admitted by the executor before the court in his pleadings or during evidence

Such exception is covered by Art. 81 of the Qanun-e-Shahadat, 1984

Further exceptions are also provided under Arts. 91 to 101 of the Qanun-e-Shahadat, 1984

If the attesting witnesses collude with opposite party or due to some greed or avarice refuse to cooperate with the beneficiary of document, the law gives alternative way to the beneficiary of document to prove his document under Art. 82 of Qanun-e-Shahadat, 1984 which provides that "if the attesting witness denies or does not, recollect the execution of the document, its execution may be proved by other evidence"

Therefore, a party is not required to prove document in the ordinary mode of proof and a departure from Art. 79 of ibid Order is permissible

A plenary reading of Art. 81 confirms that where the execution of a document is admitted by the executant himself, the examination of attesting witness is not necessary and a party is not under burden of proof to comply with the requirement to produce or call at least two attesting witnesses of document

Although the document is required to be attested by two witnesses but where the executant admits the execution of the document, then in terms of Art. 81 of ibid Order such document can be used against executor of document though it was required by law to be attested

The non-examination of at least two marginal witnesses would not be fatal to the case of a party due to admission by the executor of document.

In 2012, one of the legal heirs claimed that their father had gifted him the suit property through a registered gift deed made in 2004

Authenticity of the gift was doubted by other legal heirs and it was alleged that the gift deed was fabricated without the knowledge of the deceased father or other heirs

The core question for consideration before the High Court was as to "whether a registered document produced by official witness required test to proof its execution by way of Art. 79 of Qanun-e-Shahadat, 1984 and what would be the effect of essential ingredients of gift when respondents were in part possession of suit property"

Held: Petitioner (beneficiary) failed to produce any documentary evidence and call marginal witnesses, therefore, he failed to undergo the test of Art. 79 of the Qanun-e-Shahadat, 1984

Where the execution of the document is denied or disputed, it is the mandatory requirement of law of evidence i.e. Qanun-e-Shahadat, 1984 to prove the execution of such document by way of confirmation of document through at least two witnesses who have put their signatures on the document as per the qualification of Art. 17 of Qanun- e-Shahadat, 1984

No evidence came on record about the issue of possession of the respondent (brother or sister) at the time of execution of gift by father which was essential ingredient of a gift under Muslim personal laws after the other pre- requisites i.e. offer and acceptance

After setting aside the impugned judgment and decree of the appellate court the matter was remanded to the Trial Court to give fresh decision on the point of determination about the "possession" of the petitioner at the time of execution of gift deed.

The exceptions to this rule are when the findings are based on insufficient evidence; misreading of evidence; non-consideration of material evidence; patent errors of law; consideration of inadmissible evidence; abuse of jurisdiction; when the conclusions drawn are perverse and based on conjectural presumptions

The erroneous decisions of fact are ordinarily not revisable and the mere fact that the High Court may differ on a question of fact or mixed question of law and fact is not a valid ground for interfering with concurrent findings.

Objectives sought to be achieved by the New York Convention underscore the "pro-enforcement bias" informing the Convention, guiding the Courts towards a "narrow reading" of the grounds of defence listed in the Convention, particularly, the public policy ground

Ground of defence that the arbitrator's decision is erroneous in law or fact is, therefore, not provided in the Convention; it cannot be read into in any ground of defence provided in the Convention, particularly, the public policy ground, by a "liberal reading" instead of a "narrow reading" thereof

An expansive construction of the public policy ground "would vitiate the Convention's basic effort to remove preexisting obstacles to enforcement

Recognition and enforcement of a foreign arbitral award may be refused by the courts of Pakistan on the public policy ground only where it would violate the most basic notions of morality and justice prevailing in Pakistan

Public policy ground cannot be used to examine the merits of a foreign arbitral award or to create more grounds of defence that are not provided for in the Convention, such as misapplication of the law of Pakistan by the arbitrator in making the award or the arbitrator's decision being contrary to the law of Pakistan.

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the "New York Convention"), Arts. III & V

International commercial arbitration

Foreign arbitral award

Non-interference by domestic courts in Pakistan

Exceptions

The New York Convention implemented in Pakistan by the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 ('the 2011 Act'), contains no ground as to the invalidity of a foreign award or its being against the law of the Contracting States, to refuse its recognition and enforcement and thus leaves no room for the courts of a Contracting State to enter into the exercise of examining the merits of a foreign award on the points of facts or law

In accordance with its objective, the New York Convention grants the Courts of the Contracting States the discretion to refuse to recognize and enforce a foreign arbitral award only on the grounds listed in Article V of the Convention and places the burden to prove those grounds on the party opposing the recognition and enforcement of the award

Article V(1) provides five grounds whereby the recognition and enforcement of an award may be refused at the request of the party against whom it in invoked, and Article V(2) lists two further grounds on which the Court may refuse enforcement on its own motion

Ultimate burden of proof, however, remains on the party opposing recognition and enforcement

It is, therefore, only when the party against whom the award is invoked discharges this burden that a challenge may be sustained against the recognition and enforcement of an award

Language of Article V for refusing recognition and enforcement of foreign arbitral awards is permissive and not mandatory, and the exceptions stated therein are exhaustive and construed narrowly in view of the public policy favouring the enforcement of such foreign arbitral awards

Courts may nonetheless recognize and enforce the award even if some of the exceptions exist.

Given the drastic consequences that flow from it, Article 8(3)(a) of the Constitution must be given a narrow and restricted meaning and application.

Second proviso of S. 516-A of the Criminal Procedure Code, 1898, empowers the Court that if dangerous drug, intoxicant, intoxicating liquor or any other substance is seized or taken into custody under any law for the time being in force, the Court either suo motu or on an application and under its supervision and control is to obtain and prepare sample of the property for safe custody and production before it or to any other Court and cause destruction of the property under a certificate issued by it in that behalf

Third proviso clarifies that on production of such sample before the Court in relation to the proceedings of the offence, the sample will represent the whole property having been produced in Court

Normally entire property secured or seized by the investigation officer is required to be produced in the Court, however, there are some exceptions to the general rule as provided under second and third provisos

Discretion vested in the Court under the said provisos is to be exercised judiciously by giving notice to all concerned and taking into consideration the peculiar facts and circumstances of each case in order to safeguard the available right of the parties

In the present case, vehicle-in-question which was filled with huge quantity of 48000 liters flammable furnace oil parked at an open space of police station which could be dangerous not only for police officials but also for people whose houses and shops were located around the police station

Petitioner was owner of the vehicle-in-question (oil tanker) as disclosed by the Investigating Officer, who had no objection if the vehicle-in-question was handed over to him (petitioner)

No other claimant of the vehicle-in-question was before the (High) Court, therefore, the same i.e. Oil tanker was directed to be released to the petitioner, with certain conditions, upon his furnishing solvent surety in the sum of Rs. 5,00,000/- (contrary to Rs. 50,00,000/- as directed by the Trial Court)

Petition, filed by the owner of the oil tanker, was allowed, in circumstances.

Family Courts were established for "expeditious settlement" and "disposal of disputes" arising out of "marriage" which were between the "spouses" and the "family affairs" which were outcome of marriage

Two exceptions to the question of locus standi were created in the cases of guardianship in which the paramount consideration was the welfare of minors; and in cases where the parents of a deceased daughter would sought recovery of dowry articles since they were the ones who had given those articles to the deceased.

Employees of a statutory body whose conditions of service are not regulated by rules/regulations framed under the Statute but only by Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through Constitutional jurisdiction (of High Court)

Such employees are governed by the principle of 'Master and Servant'; however there are exceptions to such canon: first, the statutory body has violated service rules or regulations framed by it under the powers derived from the statute and there is no adequate or efficacious remedy; second, the body has disregarded procedural requirements and principles of natural justice while taking action in a service matter; third, there is a statutory intervention

Rule of 'Master and Servant' is not applicable to those cases also where there is violation of any law holding the field and such is an independent ground for judicial review but it may be considered an extension of the third exception

Expression "violation of law" does not confine to violation of any specific provision of a statute.

General rule is that a Constitutional petition under Art.199 of the Constitution is not maintainable against show-cause notice

Certain exceptions existed against such general rule

Exceptions under which Constitutional petition against a show-cause notice is maintainable are where notice in question is without jurisdiction/lawful authority, is non-est in eyes of law, patently illegal, issued with premeditation or without application of mind for extraneous reasons; where aggrieved person does not have adequate and efficacious remedy; issues of show-cause notice violate any Fundamental Rights of aggrieved person and where there is an important question of law that requires interpretation of any fiscal law or any other substantive law.

Plain reading of S.14(1) of the Pakistan Citizenship Act, 1951 ('the Act'), clearly showed that as a general rule, a Pakistani citizen who was also a citizen/national of any other country shall lose his citizenship of Pakistan unless he renounced his citizenship/ nationality of the other country

Government of Pakistan had specified certain other countries in terms of S.14(3) of the Act such that on acquisition of citizenship of said countries a citizen of Pakistan did not automatically lose his nationality of Pakistan as per S.14(1) of the Act

No guidelines existed in respect of the discretion available to the Federal Government under S.14(3) of the Act

Unqualified power vested with the Government in such regard was inconceivable in a democratic government working under the Constitution

Discretion ought to be guided and qualified in order to meet the requirements of sound administrative policy

Supreme Court directed that while all the orders passed and notifications issued till date [in terms of S.14(3) of the Act] were to be kept intact and considered valid, the Federal Government shall formulate the guidelines and parameters for the exercise of power under S.14(3) of the Act

Order accordingly.

Circumstances in which the principle of open trial could be departed from enumerated.

Disclosure of information in regard to the functioning of Government must be the ordinary rule while secrecy must be an exception, justifiable only when it was demanded by the requirement of public interest

Right to information could not be restrained merely on the basis of speculative possibility of harm or prejudice to public order; but the information must be of such nature as would create real and substantial risk of prejudice and harm to public order

Where the State was protecting information relating to a matter of public importance, the Court had to perform a balancing exercise between two competing dimensions of public interest, namely the right of the citizen to obtain disclosure of information which competed with the right of the State to protect the information on the basis of exceptions

After weighing one competing aspect of public interest against the other, the court had to decide where the balance laid

Where the Court came to the conclusion on the balance and under the principle of proportionality that disclosure of information would cause greater injury to the public interest, than its non-disclosure, the Court would hold the objection to the disclosure and not allow the document to be disclosed, but if on the other hand, the Court found that balance between two competing interests laid the other way, the Court would order for disclosure of document

Same balancing test would apply where the right to disseminate information conflicted with private interest of an individual and Court would have to determine whether public interest would prevail over private interest.

Public order was a reasonable exception under law to Art. 19A of the Constitution.

Proviso to S.47(f) of Employees' Old-Age Benefits Act, 1976 provided that said Act was not applicable to workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies

Engineering department of National Airlines (a statutory body) did not fall within the ambit of proviso to S.47(f) of said Act as it also provided repair and maintenance services to airplanes of airlines other than that of the National Airlines, and also to Pakistan Navy and Air Force

Engineering department of National Airlines, therefore, did not come within the ambit of the proviso to S.47(f) of the Employees' Old-Age Benefits Act, 1976, meaning that the Act was applicable to said department.

Proviso to S.47(f) of Employees' Old-Age Benefits Act, 1976 provided that said Act was not applicable to workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies

Engineering department of National Airlines (a statutory body) did not fall within the ambit of proviso to S. 47(f) of said Act as it also provided repair and maintenance services to airplanes of airlines other than that of the National Airlines, and also to Pakistan Navy and Air Force

Engineering department of National Airlines, therefore, did not come within the ambit of the proviso to S. 47(f) of the Employees' Old-Age Benefits Act, 1976, meaning that the Act was applicable to said department.

Bar on filing of suit by one partner of an existing unregistered partnership firm against the other partner for enforcement of rights

Exceptions

Scope and interpretation of three exceptions to the bar on filing of suit provided under S. 69(3)(a) of Partnership Act, 1932 detailed.

Doctrine of merger did not apply, where an appeal/revision/writ had been dismissed because of non-prosecution; or lack of jurisdiction; or lack of competence/ maintainability; or was barred by law; or barred by time; or because of withdrawal of the matter by the party; or due to lack of locus standi; or where it was decided on the basis of a compromise, if the very basis of the compromise by the party to the lis or even a stranger showing prejudice to his rights was not under challenge on the ground of fraud; or it was rendered infructuous or disposed of as having borne fruit; or due to abatement; or where the writ was dismissed on the ground of availability of alternate remedy; or where the writ was dismissed on the point of laches

Said exceptions were also be attracted to the decision(s) of the Supreme Court, where applicable

Where, however a case fell within the said exceptions the forum for an application under S.12(2), C.P.C. was the one against whose decision the matter had come and been disposed of by the higher forum in a manner stated in the said exceptions.

Bar on filing of suit by one partner of an existing unregistered partnership firm against the other partner for enforcement of rights

Exceptions

Scope and interpretation of three exceptions to the bar on filing of suit provided under S. 69(3)(a) of Partnership Act, 1932 detailed.

Prospectus framed by public educational institution was essentially an administrative policy statement of the respective institution and settled judicial trend was to exercise judicial restraint in interfering with matters dealing with policy decisions of educational institutions

Such general rule of judicial restraint was not absolute and exceptions existed where the impugned action(s) or inaction of the educational institution was ultra vires , mala fide or against fundamental rights of citizens or where the same offended principles of reasonability.

Income Tax Appellate Tribunal had held that interest on securities was assessable as ordinary business income and not as a separate head of income under S. 17 of Income Tax Ordinance, 1979

Order passed by Income Tax Appellate Tribunal was maintained by High Court

Validity

Exception was provided under S. 32 of Income Tax Ordinance, 1979, for computation of income set out in S. 17 of Income Tax Ordinance, 1979, which included S. 17(1)(a) of Income Tax Ordinance, 1979

High Court had correctly held that Banks were justified in adopting method of accounting which was hybrid and had been consistently used by Banks

Various heads of income were enumerated in S. 15 of Income Tax Ordinance, 1979, for the purpose of charge of tax and computation of total income

Interest on securities and income from business were classified as separate heads, respectively under S.15(b) & (d) of Income Tax Ordinance, 1979

Charging section for interest on securities was S. 17 of Income Tax Ordinance, 1979, and on income from business or profession was S.22 of Income Tax Ordinance, 1979

Income from the two heads were to be separately assessed regardless of whether the interest on securities was earned as a part of business of assessee

Appeal dismissed.

Income Tax Appellate Tribunal had held that interest on securities was assessable as ordinary business income and not as a separate head of income under S. 17 of Income Tax Ordinance, 1979

Order passed by Income Tax Appellate Tribunal was maintained by High Court

Validity

Exception was provided under S. 32 of Income Tax Ordinance, 1979, for computation of income set out in S. 17 of Income Tax Ordinance, 1979, which included S. 17(1)(a) of Income Tax Ordinance, 1979

High Court had correctly held that Banks were justified in adopting method of accounting which was hybrid and had been consistently used by Banks

Various heads of income were enumerated in S. 15 of Income Tax Ordinance, 1979, for the purpose of charge of tax and computation of total income

Interest on securities and income from business were classified as separate heads, respectively under S.15(b) & (d) of Income Tax Ordinance, 1979

Charging section for interest on securities was S. 17 of Income Tax Ordinance, 1979, and on income from business or profession was S.22 of Income Tax Ordinance, 1979

Income from the two heads were to be separately assessed regardless of whether the interest on securities was earned as a part of business of assessee

Appeal dismissed.

High Court has identified the circumstances where opportunity of hearing was not required: (i) When an authority was vested with wide discretion; (ii) When the maxim 'expression unius est exclusion alterius' was involved; (iii) Where absence of expectation of hearing existed; (iv) When compulsive necessity so demanded; (v) When nothing unfair could be inferred; (vi) When advantage by protracting proceedings was tried to be reaped; (vii) When an order did not deprive a person of his right or liberty; (viii) In case of arrest, search and seizure in a criminal case; (ix) In case of maintaining academic discipline; (x) In case of provisional selection to an academic course and (xi) In case of enormous malpractices in selection process.

Courts had the power to permit the identity of a party or a witness to be withheld from public disclosure where that was necessary in the interests of justice

Interests of justice were not confined to the court's reaching a just decision on the issue in dispute between the parties

Was necessary in the first place to recognise that the administration of justice was a continuing process

In some cases, for example, anonymity of a party or a witness may be necessary in view of risks to them or because they may suffer commercial ruin if their identity became known

Would be in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about him/her where there was no public interest in it being publicised.

Provisions of S.489-F, P.P.C. would not be attracted where the accused had made arrangements with the bank to ensure that cheque would be honoured, or where the bank was at fault in dishonouring the cheque.

Exceptions to the immunity to witnesses rule included perjury, contempt of court, professional misconduct and liability for the wasted costs of the other side

Said exceptions were all, in their different ways, in support of the courts' interest in witnesses behaving properly: telling the truth, obeying court orders or respecting the undertakings given to the court, behaving professionally so as to justify the courts' confidence in their expertise and not wasting the time of the court or the other parties

Said exceptions were there to encourage and oblige the witness to perform his/her duty to the court and they were not there to protect the interests of the witness's client

Exception which was being made in the present case was to protect the interests of the client, which was a significant departure from existing principles

Appeal was dismissed, accordingly.

General principles that no conviction could be based on retracted confession, or conviction could not be made solely on basis of a confessional statement

Exceptions

Confession, on the first instance, to appear voluntary and true secondly the contents of the confession were to be corroborated by other pieces of evidence and prosecution had to produce some reliable evidence to establish the commission of the offence; and further to connect the accused with its commission.

Provisions of S.103, Cr.P.0 were not applicable in instances where recovery was made at the site during course of incident; where recovery was made from a running vehicle or train or at a public thoroughfare, and where circumstances of the case made it impossible to procure private persons from the public to become witnesses.