Preconditions

Complainant alleged that accused was her former husband who prepared a false Nikahnamashowing her different name to reap benefits from his employer organization

Trial Court as well as High Court acquitted the accused of the charge

Validity

Original Nikahnama was produced by complainant herself before Trial Court, which demonstrated that everything was well within her knowledge from the beginning

Nikahnama in question was never sent for forensic test or to handwriting expert for verifying its genuineness

Star witness could have been custodian of the record of employer organization to depose and testify actual position along with the details of benefits if any availed on account of alleged fake Nikahnama

Neither any witness was produced nor called upon through summons of Court as prosecution witness to verify genuineness of official record

To prove guilt victim must have been motivated and inundated or swayed by disingenuous representation to act; there should be delivery of property or worthful security; the straight upshot of inducement must be altering or obliterating a valuable security or document and the act must have actuated harm/injury or impairment to victim

Acquittal was not merely a verdict of not guilty, rather it was a ratification and endorsement that the State failed to discharge burden of proof for the guilt

Such confirmation of declaring accused not guilty maintained exalted reverence

Supreme Court declined to interfere in judgments passed by the Courts below, as there was no illegality, irregularity or perversity

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

During pendency of the suit, the respondents/plaintiffs moved an application under O.XXIII Rr.1 & 2, C.P.C. seeking withdrawal of the suit with permission to file a fresh one, which was allowed by the Trial Court

The petitioner challenged the said order through a civil revision petition, which was dismissed by the revisional Court

Aggrieved thereof, the petitioner invoked the constitutional jurisdiction of the High Court for determination of the issue as to "whether the Courts below rightly exercised jurisdiction under O.XXIII Rr.1 & 2, C.P.C., in permitting withdrawal of the suit with liberty to file a fresh suit?"

Held: Respondents/plaintiffs did not disclose in detail a formal defect or any other sufficient ground as required for conditional withdrawal of the suit

Respondents/plaintiffs ought to have mentioned justifiable grounds for conditional withdrawal of the suit

Specific requirements necessary for withdrawal and filing a fresh suit was lacking, because a formal defect was a defect which could be of technical nature and could be cured through fresh suit

Mere mentioning of general grounds were not enough to allow the parties to withdraw the suit conditionally and to institute a fresh suit

Concurrent findings of the courts below were set aside and the petition was allowed, in circumstances.

The instituted suit can be withdrawn by the plaintiff and with the permission of the Court, he can file a fresh suit, but subject to some condition that the plaintiff has to show sufficient causes for conditional withdrawal of the suit or any formal defect, which may fail the suit

Now question arises that what are the conditions that not only allow a plaintiff to withdraw the pending suit, but also to file a fresh suit

Plaintiff can withdraw his suit or abandon any part of his claim and such permission can be granted to the plaintiff to withdraw his suit at any time and even during pendency of suit or appeal or at revisional stage before the High Court, subject to the condition that there are reasonable ground appearing on the face of record that due to any formal defect the suit must fail or there are sufficient grounds to believe that such defects cannot be removed through amendment as provided under O.VI R.17, C.P.C.

However, it is necessary for the plaintiff that whilst filing application under the provisions of O.XXIII Rr. 1 & 2, C.P.C. for withdrawal of suit with the permission to file fresh one, the plaintiff shall mention in detail the incurable defects in the suit or any other sufficient ground to believe that only a fresh suit is the remedy to repair the damage or defect, otherwise the suit must fail.

An application before the Rent Tribunal can only be contested by a respondent while moving an application for leave to contest in terms thereof within ten days of first appearance before the Rent Tribunal

Leave to contest can only be allowed to a respondent if his application discloses sufficient grounds for production of oral evidence

Subsection (6) of S.22 of the Act, 2009 ordains that if the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order

On the other hand, S.25 of the Act, 2009 caters the situation if the leave to contest is allowed to the respondent

Like Subsection (6) of S.22, Subsection (5) of S.25 of the Act, 2009 also find mention the term "final order".

Petitioners were aggrieved of issuance of notice by National Tariff Commission for sunset review in relation to Anti-Dumping Duty beyond five years

Validity

Relevant trigger for the purposes of a sunset review is impending expiry of Anti-Dumping Duty

It is in the context of approaching expiry of Anti-Dumping Duty that a forward-looking analysis and prospective determination is to be made as to whether the expiry may result in continuation or recurrence of dumping and injury

Such prospective or forward-looking analysis cannot take place once Anti-Dumping Duty stands expired upon completion of its five-year term

Purpose of a sunset review was to prevent dumping and injury where that was likely effect of expiry of Anti-Dumping Duty

Once Anti-Dumping Duty stood expired and had remained expired for a few months, a sunset review no longer remained a useful tool and could not be employed thereafter

High Court declared sunset review notice issued in relation to Anti-Dumping Duty that had already stood expired, as issued without lawful authority and was set-aside

Constitutional petition was allowed, in circumstances.

Where a party seeks condonation of delay, that party is required to explain each day's delay, as valuable right accrues to the other party and such right cannot be taken away lightly

Period of delay is condoned provided that the applying party succeeds to establish each day's delay was due to some unavoidable reason.

For a claimant to succeed in action for malicious prosecution, must plead and prove, with credible and cogent evidence, fulfillment of following ingredients: (i) plaintiff was prosecuted by defendant; (ii) prosecution ended in favour of plaintiff; (iii) defendant acted without reasonable and probable cause; (iv) defendant was actuated by malice with improbable motive and not to further the ends of justice; and (v) proceedings interfered with plaintiff's liberty and had also affected his reputation and plaintiff had suffered damages.

Petitioners/plaintiffs claimed to be tenants in shops in question and claimed that respondents/defendants had no right to dispossess them

Both the Courts below concurrently declined to grant interim injunction against respondents/defendants

Validity

For grant of temporary injunction, it was sine qua non for petitioners/plaintiffs to have on record a prima facie case regarding balance of convenience and irreparable loss with co-existence such ingredients in their favour

Mala fide attributed to respondents / defendants required evidence

Case standing in need of evidence required to be established was not a "prima facie case" for the purpose of grant of temporary injunction

Petitioners/plaintiffs were in possession of disputed property for more than three decades, which signified dilapidated condition of building and the same further led to conclusion that balance of convenience and irreparable loss was tilting in favour of respondents/defendants

Concurrent findings of Courts below could only be set aside if the same were result of misreading, non-reading of evidence or any irregularity or patent illegality committed by Courts below

Revision was dismissed, in circumstances.

Question was with regard to fixation of maintenance allowance for minor child by Family Court and maintained by Lower Appellate Court

Validity

Family Court to keep in consideration following aspects and legal requisites before passing interim and final maintenance allowance under S.17-A(1)(4) of Family Courts Act, 1964: viz: (i) basis of averments in plaint; (ii) other supporting documents on record; (iii) summoning all relevant documentary evidence; (iv) determining the estate; and (v) determining resources of the defendant

Judicial resources needed to be promptly and consistently available to litigants for core functions of fact finding, particularly when law itself was available for rescue

In all cases where occupation, job or source of income of the person was definite and identified and of such a nature remuneration, income or earnings wherefrom could be traced in a documented form then by all extent and measures, it was duty of Family Court to ascertain 'estate' and 'resources' of defendant

In all such cases where the same stood undetermined or pleadings were evasive or just formal without substantive or believable proof in such regard and by way of summoning relevant documentary evidence instead to settling with sole reliance upon pleadings / averments of parties without due application of mind and exercise of its powers specifically conferred by way of legislation

Such course was neither unusual nor was it whimsical for Family Courts to delve into relevant documentary evidence dealing with financial status of defendant to determine maintenance

High Court set aside judgments and decrees of both the Courts below to the extent of maintenance allowance of minor only and case was remanded to Family Court to decide afresh

Constitutional petition was allowed, in circumstances.

Amendment of assessment under S.122(5-A) of Income Tax Ordinance, 2001 can be made only in cases where twin conditions namely, (i) Assessment Order is erroneous; and (ii) it is prejudicial to the interest of revenue, are satisfied

If one of the two pre-requisites is absent i.e. if Assessment Order is not erroneous but prejudicial to revenue or if it is erroneous but not prejudicial to revenue, recourse cannot be had to S.122(5-A) of Income Tax Ordinance, 2001 and it cannot be invoked to correct each and every type of mistake or error in Assessment Order

Incorrect assumption of facts or incorrect application of law satisfies requirement of order being 'erroneous'

Phrase 'prejudicial to interest of revenue' has to be read in conjunction with erroneous Assessment Order

Every loss of revenue as a consequence of Assessment Order cannot be treated as prejudicial to interest of revenue

When Assessment Order is based on one of the courses permissible in law and it has resulted in loss of revenue or where two views are possible and view taken in Assessment Order is the one with which Commissioner does not agree, it cannot be treated as erroneous order prejudicial to the interests of revenue, unless view taken in Assessment Order is unsustainable in law.

Petitioners/taxpayers were aggrieved of show cause notices issued to them on the plea that proceedings under S.11(2) of Sales Tax Act, 1990

Validity

Allegations contained in show cause notices were based on information gathered from audited accounts and sales tax returns filed by petitioners

Allegations related to disposal of fixed assets by petitioners without payment of sales tax and claiming of inadmissible input tax against purchase made from inactive / de-registered suppliers, details whereof were mentioned in show-cause notice

Excess input tax claimed on insurance, failure to deposit sales tax on advances from customs, suppression of sales tax by way of export declaration, suppression of sales and violation of S.73(3) of Sales Tax Act, 1990, were also alleged in show-cause notice

Allegations contained in show-cause notice fell within the parameters of S.11(2) of Sales Tax Act, 1990

High Court declined to interfere in the matter as there was no jurisdictional error in show cause notices issued to petitioners and factual allegations contained therein required to be responded to by petitioners

Any adjudication by Officer of Inland Revenue, if adversely affecting rights of petitioners, could be challenged in the manner before forums provided under Sales Tax Act, 1990

Constitutional petition was dismissed in circumstances.

Besides conferring on Parliament and Provincial Assembly power of legislation in specified areas, provision of Art. 142 of the Constitution stipulates residuary jurisdiction for both the legislatures to exercise in such circumstances

When a subject is diversified and is not covered by any of the entries in Legislative Lists is termed as a residuary subject falling within residuary jurisdiction

Purpose of conferral of such jurisdiction on the Legislature is to enable it to meet a contingency arising out of dynamics of ever evolving and changing society which entail an appropriate legislative measure not otherwise specifically set out in the book

Residuary jurisdiction is resorted to only as a last resort when all entries in Legislative List(s) are exhausted, and yet subject matter of legislation is not addressed

Legislative inability over a given subject has to be established first before residuary jurisdiction is claimed over it

To determine which particular legislature is competent to legislate on a given subject involves predetermination of so many factors such as origin of the subject in Legislative List, its various themes and topics, mandate under the Constitution, legislative ability and inability, territorial bounds, etc.

In a case where both Federal and Provincial Legislatures claim jurisdiction over same subject and make a law on it, and there is a conflict between two laws, in terms of Art. 143 of the Constitution, to the extent of such repugnancy, the Federal law prevails.

Plaintiff entered into agreement with defendant for purchase of suit property and paid 30% of total consideration amount as earnest money

Contention of plaintiff was that defendant failed to transfer suit property in his favour

Validity

Held, in suit for specific performance, it was obligatory upon plaintiff to demonstrate in unequivocal terms in his pleadings as well as by his conduct throughout the proceedings that he had been always and was serious, capable, ready and willing to perform his agreed part of contract

Such readiness and willingness of plaintiff was essence of and a condition precedent for seeking specific performance of contract

In absence of the same, equitable and discretionary relief of specific performance could not be granted

Seriousness, capability, readiness and willingness to perform its agreed part of contract was the "condition precedent" for seeking specific performance, and the same could be judged from the conduct of party seeking such relief

Conduct of plaintiff, in the present case, from the very inception of suit did not reflect that he was serious, capable, ready and or willing to perform his agreed part of contract

Plaintiff filed the suit after paying 30% amount of agreed sale consideration

Conduct of plaintiff and reluctance on his part to deposit balance sale consideration despite Court order reflected his deliberate and intentional unwillingness to perform his agreed part of contract

Plaintiff dragged defendants in uncalled for litigation due to which defendants were unable to enjoy and exercise their valuable proprietary rights in respect of their own property for the last many years

High Court directed the defendants to return earnest money received by them from plaintiff and imposed special cost upon plaintiff

Suit was dismissed, in circumstances.

Court was essentially required to satisfy itself whether eye-witnesses are natural and their presence on spot could reasonably be believed

Whether testimony is free from any kind of intrinsic improbabilities and in case of an interested witness, whether any corroboration is forthcoming

Court in a case involving capital punishment should not base conviction of an accused solely on testimony of an interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstances of case

When accused is tried on a capital charge, there has to be evidence of unimpeachable character which must lead to only inference that accused is found guilty beyond reasonable doubt.

Ordinarily, courts do not interfere in policy matters however, if policy is in conflict with any provision of law or is violative of fundamental rights of citizens same can be called in question in Constitutional jurisdiction of High Court.

Some nexus with crime proceed and therefore, S.3 presupposes that some crime has been committed.

Prerequisite for invocation of S. 290 of Companies Ordinance, 1984 falls upon person filing application to prove mismanagement and oppression

Court is fully authorized to pass any order as it thinks fit with regard to regulating conduct of affairs of company or for other aspects.

Courts are empowered to declare such type of meetings to be invalid, in case they are found to be coram non judice.

Defendant sought leave to defend the suit on the plea that certification of statement of accounts did not bear name and designation of official who certified the same

Validity

One of the requirements of 'certified copy' of a statement of account was that the certification thereon should be "dated and subscribed by Principal Accountant or Manager of the Bank with his name and official title"

By virtue of S. 4 of Bankers' Books Evidence Act, 1891, such 'certified copy' was prima facie evidence of the existence of entries it reflected

If statement of account of Bank was not a 'certified copy' as per S. 2(8) of Bankers' Books Evidence Act, 1891, then it could not attract a presumption of correctness and Bank was to prove the same as any other document

Leave to defend the suit was allowed in circumstances.

Appellate jurisdiction under S. 417, Cr.P.C. can be exercised by Federal Shariat Court if gross injustice has been done in administration of criminal justice, wherein findings given by Trial Court are perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by Trial Court are wholly artificial.

If notices issued by authorities do not contain specific allegations of false statement, such notices do not fulfill criteria of violation of S.32(3) of Customs Act, 1969

Such show-cause notices are defective and no adjudication can be initiated upon same.

When question of jurisdiction goes to very root of case and renders entire proceedings coram non judice thereby vitiating the same and making judgment illegal and void and also when such question is of fundamental nature, in judicial proceedings, then same should be decided on priority basis.

Sentence cannot be suspended under S. 426, Cr.P.C. unless it is shown that conviction is based on no evidence and that there is no ultimate possibility of conviction being sustained.

In order to claim damages for malicious prosecution, plaintiff was to prove (i) that he was prosecuted by defendant, (ii) that prosecution ended in plaintiff's favor, (iii) that defendant acted without reasonable and probable cause and (iv) that defendant was actuated by malice

All these elementary set of circumstances have to accumulate or mount up and if any of them is found lacking, suit must be failed.

Proceedings under S.11 of Sales Tax Act, 1990 can only be initiated through process of audit under S. 25 of Sales Tax Act, 1990

Self-assessed amount of tax due by taxpayer in its sales tax returns can only be altered through fresh assessment of tax under S. 11 of Sales Tax Act, 1990 subject to process of selection of taxpayer through audit provided under S.25 of Sales Tax Act, 1990

Material evidence collected for show-cause notice under S. 11(2) of Sales Tax Act, 1990 needs to be credible and can at best, pass test of fair trial and due process, if it is an outcome of an inquiry or investigation envisaged under proviso to S. 25(2) of Sales Tax Act, 1990 and/or in Ss. 37/38 of Sales Tax Act, 1990

Anything short of such process not only would lead to persecution of taxpayer and may make mockery of fundamental right of fair trial.

Appeal is barred under S.17 of Arbitration Act, 1940 against a decree passed following a judgment pronounced according to award except on ground that it is excess of, or not otherwise in accordance with law.

Essential ingredients for completion of process of voluntary return are; firstly, offer has to be made before investigation has been authorized, or in other words, it has to be made at initial stage of proceedings; secondly, accused must come forward voluntarily; and thirdly, voluntary offer must be for return of assets of gain acquired or made in course or as consequence of any offence alleged to have been committed under National Accountability Ordinance, 1999

If such requirements are met by accused then Chairman NAB in his discretion may accept such offer after determination of amount due from accused

Accused, in such eventuality is discharged from all his or her liability in respect of matter or transaction in issue.

Pre-arrest bail could not be granted unless the petitioner succeeded in showing that the prosecution had been launched against him by the complainant with mala fide intention and that the police was ought to arrest him with ulterior motives of harassing and humiliating him.

For initiating criminal proceedings in cases of medical negligence, complaining person is required to show that death was due to gross negligence or recklessness of doctor.

Such conditions must be proved by prosecution else every citizen has right of liberty and cannot be put in jail without reasonable grounds.

For issuance of writ of Quo Warranto, firstly, an application has to be made by 'any' person, who need not to be aggrieved, secondly, person against whom a writ is being sought must be within territorial jurisdiction of High Court before which petition has been filed, thirdly, application must be in respect of requiring such a person to show that as to under what authority of law he claims to hold that office

Writ in the nature of Quo Warranto can only be issued if such conditions are fulfilled.

Appellants were license holders to provide cellular services who were aggrieved of order passed by Pakistan Telecommunication Authority to suspend services on grounds of law and order situation

Validity

Pakistan Telecommunication Authority was not vested with power under S.54(2) of Pakistan Telecommunication Reorganization Act, 1996 to cause suspension of mobile cellular service

Such provision could only be invoked in eventualities described therein, i.e., (i) war or (ii) hostilities against Pakistan by any foreign power or (iii) internal aggression or (iv) defense or security of Pakistan

Apprehensions relating to public safety, law and order or happening of an untoward incident, could not attract S.54(2) of Pakistan Telecommunication Reorganization Act, 1996

High Court set aside actions, orders and directives issued by Federal Government or Pakistan Telecommunication Authority as same were inconsistent with provisions of S.54(3) of Pakistan Telecommunication Reorganization Act, 1996 which were illegal, ultra vires and without lawful authority and jurisdiction

Federal Government or Pakistan Telecommunication Authority was not vested with power or jurisdiction to suspend or cause suspension of mobile cellular services or operations on grounds of national security except as provided under S.54(3) of Pakistan Telecommunication Reorganization Act, 1996

Appeal was dismissed in circumstances.

Upon acceptance of offer of auction purchaser and deposit of remaining balance amount in compliance with orders of Court, sale of mortgaged property in favour of auction purchaser becomes confirmed.

Lease of immovable property, according to S.105 of Transfer of Property Act, 1882, is transfer of right to enjoy such property

To create a lease or sublease, a right to exclusive possession and enjoyment of property had to be conferred on another person

If there was no parting with the possession, neither sublease nor subletting could be achieved.

Upon acceptance of offer of auction purchaser and deposit of remaining balance amount in compliance with orders of Court, sale of mortgaged property in favour of auction purchaser becomes confirmed.

In order to prove charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus rea of crime have to be necessarily established; in case any of them if found missing, offence cannot be constituted whereby mens rea in context to misuse of authority means, to act in disregard of law with conscious knowledge that act was being done without authority of law which resulted into illegal gain or undue benefit.

Burden can be discharged by adducing evidence of a definite character which can either directly prove fact of benami or establish circumstances unerringly raising an inference of such fact

Guiding factors for the court to determine whether a transaction is benami or not stated.

Accused being a student of 10th class and a minor, had no motive to kill the deceased, he only fired a first single shot in order to save himself from being a victim of un-natural lust of deceased

Accused repeated second five shots as he saw that the accused was trying to catch him, and such circumstances cannot be said as exceeding right of self defence as repetition of shots might have been as a result of grave fear.

Appellant was aggrieved of order passed by single Judge of High Court declaring respondent to be entitled to proforma promotion with all back benefits

Validity

Conditions required to be fulfilled for being eligible to be considered by appointing authority in respect of benefits of proforma promotion were; (i) person must be a civil servant; (ii) he/she was entitled to promotion from a particular date and; (iii) was wrongfully prevented from rendering service to Federation in a higher post for no fault of his/ her

Only if the appointing authority was satisfied that such three conditions were met then a direction could be issued for extending benefits of pay and allowances through proforma promotion

Single Judge of High Court could not make a declaration regarding entitlement of respondent regarding proforma promotion, as the respondent had approached High Court by invoking Constitutional jurisdiction for implementing judgment passed by Federal Service Tribunal, which did not include any determination or direction regarding grant or entitlement of proforma promotion

Direction for extending benefits through proforma promotion was within the exclusive domain of appointing authority who had to be satisfied that the conditions were fulfilled for passing an order or direction

Division Bench of High Court set aside the order passed by Single Judge of High Court

Intra-court appeal was allowed in circumstances.

Determining factors.

Plea of adverse possession (before it was declared violative of Islamic injunctions) was primarily meant to provide a defence against a suit.for possession filed by a legal owner

Title of legal owner was not extinguished on account of adverse . possession

Plaintiffs, in order to prove their title on the basis of adverse possession, were supposed firstly to identify the lawful owner of suit property and then to show that their possession , was openly hostile and adverse to such legal owner

Plaintiffs, in their suit, had neither identified the lawful owner nor claimed that they themselves were in actual physical possession of disputed land

Plaint expressly stipulated that land, being claimed by plaintiffs was open land

Any claim of exclusive possession of such land, particularly when the land was not walled off but was being utilized for a communal purpose, must be considered with a lot of skepticism

Such claim should not be accepted except where there was un­controvertible proof in its support

If there was no identifiable owner in whom title of suit property was vested, it must be held in the circumstances that the property vested in entire community and was available for communal use

Such conclusion found support from testimony of witnesses produced by both sides, who had confirmed that suit land was, in fact being used for a communal purpose viz. a bus stand

Both the courts below had not taken note of the circumstances of the case and had proceeded on erroneous premises and also on a 'misreading of evidence

Neither plaintiffs nor defendants had any title in or exclusive right to the suit land

Judgments and decrees passed by both the courts below, though concurrent, were not legally sustainable and were set aside

Resultantly suit filed by plaintiffs was dismissed

Revision was allowed accordingly.