Review petition

Petitioner, who was an employee of Peshawar High Court, approached Supreme Court assailing dismissal of his constitution petition against his dismissal; which was also dismissed by the Supreme Court

Review was sought against said dismissal

Held: [Per Shakeel Ahmad, J.] The provisions of Rule 12 of the Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules, 1989 ('the 1989 Rules'), Rule 3 of the [Khyber Pakhtunkhwa] Civil Servants (Appeal) Rules, 1986 ('the Rules 1986'),the Appendix of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960 ('the Rules 1960"),cumulatively stipulate that the right of appeal had been provided to the petitioner and such rules would mutatis mutandis apply to the petitioner's case, which was to be heard by a Bench of two judges to be nominated by the Chief Justice, as per the statement showing delegation of powers of the Gazetted and non-Gazetted establishment under the Rules 1960

However, in exercise of powers conferred under Article 208 of the Constitution, the Peshawar High Court with the approval of the Governor Khyber Pakhtunkhwa has made the Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules, 2020 ('the Rules 2020'), and in terms of Rule 16 of the Rules 2020, if any order affecting the terms and conditions of service of a member of the establishment is passed or any penalty is imposed by legislation, an appeal shall lie to the Chief Justice; where any such order is passed or penalty imposed by the Chief Justice, other than an appeal from an order of the Registrar, an appeal shall lie to a Bench of three senior most judges of the Court

Furthermore, while the Rules 1989 stand repealed under Rule 22 of the Rules 2020, the Rules so repealed shall not affect anything duly done or suffered before these Rules

A reviewable ground would essentially be one where the decision is per incuriam or where error is so evident that it is floating on the surface of the record, having substantial impact on the final outcome of the case as happened in the instant case, thereby constituting a valid ground for review

[Per Shahid Bilal Hassan, J.] It is the responsibility of the Judges of this/Supreme Court to correct their errors, because the principles of law enunciated in their judgments are binding on all other courts in the country under Article 189 of the Constitution of Pakistan

Orders and judgments based on an erroneous assumption of material facts, or those made without adverting to a provision of law, or reflecting a departure from the undisputed construction of law and the Constitution, may amount to an error apparent on the face of the record and can be rectified

Article 188 of the Constitution of Pakistan creates the constitutional right to seek review of any judgment or order of the Supreme Court

The matter of review is attended to in the Supreme Court Rules, 1980 in Order XXVI and its rule (1) enunciates that the review may be filed on grounds similar to those mentioned in Order XLVII, Rule 1 of the Civil Procedure, Code, 1908

Order XLVII, Rule 1,C.P.C., stipulates that a review may be filed if there is "some mistake or error apparent on the face of the record, or for any other sufficient reason"

In the present case, this (Supreme) Court while handing down the judgment under review did not ponder upon the peculiar facts of the case of the petitioner and prevalent law at the relevant time, which is an error apparent on record and a solid ground to review the judgment to the extent of the petitioner's case, as it goes to the root of the case

Additionally, when the judgment sought to be reviewed has been passed by departing the relevant law on the subject the question of limitation could be ignored and the wrong done and committed has to be corrected and reviewed by condoning delay, because the rules and procedure are framed and enacted for advancement of justice

Supreme Court set-aside judgment-under-review to the extent of the petitioner as well as order passed by the High Court in constitution petition through which constitutional petition filed by the petitioner was dismissed and remanded the matter to the Hon'ble Chief Justice of the Peshawar High Court, Peshawar, to place the petitioner's appeal before the judges to be nominated by him for decision in accordance with law

Review petition was allowed accordingly.

Petitioner, who was an employee of Peshawar High Court, approached Supreme Court assailing dismissal of his constitution petition against his dismissal; which was also dismissed by the Supreme Court

Review was sought against said dismissal

Held: [Per Shakeel Ahmad, J.] The provisions of Rule 12 of the Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules, 1989 ('the 1989 Rules'), Rule 3 of the [Khyber Pakhtunkhwa] Civil Servants (Appeal) Rules, 1986 ('the Rules 1986'), the Appendix of the High Court of West Pakistan (Civil Services) Delegation of Powers Rules, 1960 ('the Rules 1960"),cumulatively stipulate that the right of appeal had been provided to the petitioner and such rules would mutatis mutandis apply to the petitioner's case, which was to be heard by a Bench of two judges to be nominated by the Chief Justice, as per the statement showing delegation of powers of the Gazetted and non-Gazetted establishment under the Rules 1960

However, in exercise of powers conferred under Article 208 of the Constitution, the Peshawar High Court with the approval of the Governor Khyber Pakhtunkhwa has made the Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules, 2020 ('the Rules 2020'), and in terms of Rule 16 of the Rules 2020, if any order affecting the terms and conditions of service of a member of the establishment is passed or any penalty is imposed by legislation, an appeal shall lie to the Chief Justice; where any such order is passed or penalty imposed by the Chief Justice, other than an appeal from an order of the Registrar, an appeal shall lie to a Bench of three senior most judges of the Court

Furthermore, while the Rules 1989 stand repealed under Rule 22 of the Rules 2020, the Rules so repealed shall not affect anything duly done or suffered before these Rules

A reviewable ground would essentially be one where the decision is per incuriam or where error is so evident that it is floating on the surface of the record, having substantial impact on the final outcome of the case as happened in the instant case, thereby constituting a valid ground for review

[Per Shahid Bilal Hassan, J.] It is the responsibility of the Judges of this/Supreme Court to correct their errors, because the principles of law enunciated in their judgments are binding on all other courts in the country under Article 189 of the Constitution of Pakistan

Orders and judgments based on an erroneous assumption of material facts, or those made without adverting to a provision of law, or reflecting a departure from the undisputed construction of law and the Constitution, may amount to an error apparent on the face of the record and can be rectified

Article 188 of the Constitution of Pakistan creates the constitutional right to seek review of any judgment or order of the Supreme Court

The matter of review is attended to in the Supreme Court Rules, 1980 in Order XXVI and its rule (1) enunciates that the review may be filed on grounds similar to those mentioned in Order XLVII, Rule 1 of the Civil Procedure, Code, 1908

Order XLVII, Rule 1,C.P.C., stipulates that a review may be filed if there is "some mistake or error apparent on the face of the record, or for any other sufficient reason"

In the present case, this (Supreme) Court while handing down the judgment under review did not ponder upon the peculiar facts of the case of the petitioner and prevalent law at the relevant time, which is an error apparent on record and a solid ground to review the judgment to the extent of the petitioner's case, as it goes to the root of the case

Additionally, when the judgment sought to be reviewed has been passed by departing the relevant law on the subject the question of limitation could be ignored and the wrong done and committed has to be corrected and reviewed by condoning delay, because the rules and procedure are framed and enacted for advancement of justice

Supreme Court set-aside judgment-under-review to the extent of the petitioner as well as order passed by the High Court in constitution petition through which constitutional petition filed by the petitioner was dismissed and remanded the matter to the Hon'ble Chief Justice of the Peshawar High Court, Peshawar, to place the petitioner's appeal before the judges to be nominated by him for decision in accordance with law

Review petition was allowed accordingly.

By way of judgment under review the Supreme Court held that the provisos were mandatory provisions and any order passed by the Commissioner (Appeals) under section 45B(2) beyond the maximum period of 180 days was an "invalid decision."

[Per Syed Mansoor Ali Shah, J. (Majority view): First and second provisos to section 45(B)(2) of the Sales Tax Act, 1990 ("Act") are directory provisions and lapse of the statutory timeframe will not affect the proceedings before the Commissioner (Appeals) who shall conclude the appeal in accordance with law by deciding the appeal on its merits

First and second provisos to section 45B(2) of the Act are directory provisions and do not deprive the taxpayer of his right to appeal or deny the tax department the right to adjudicate the matter on merits by virtue of lapse of the maximum statutory timeframe

Inspite of the first and second provisos to section 45(B)(2) being directory provisions, the Commissioner (Appeals) must make reasonable effort to decide the appeal of the taxpayer within the maximum statutory timeframe, subject to the third proviso to section 45B(2)

In case the taxpayer unduly delays the prosecution of the appeal without sufficient cause, the Commissioner (Appeals) is well within its power to proceed ex-parte against the taxpayer

Commissioner (Appeals) must also give reasons if the appeal is not decided within the statutory timeframe under the proviso to section 45(B)(2), so that the legislative aspiration to achieve effective and efficient tax governance is also realized even though such a timeframe is only directory in nature]

[Per Ayesha A. Malik, J. (Minority view): Primary ground for filing the present review was the argument that the adjournments taken by respondent/taxpayer during the proceedings before the Commissioner (Appeals) should have been considered in terms of Section 45-B(2), third proviso of the Sales Tax Act, 1990 (Act)

Record showed that the dates of adjournment were not considered while calculating the time period under Section 45B of the Act by the Appellate Tribunal Inland Revenue, Islamabad Bench (Tribunal) or the High Court

Given that present matter was a factual matter, it was necessary for the Tribunal to consider the dates of adjournments for the purposes of calculating the delay in terms of Section 45-B of the Act

Under the circumstances, review was allowed, the judgment under review was recalled; and accordingly, the orders of the High Court and the Tribunal were set aside; and the case was remanded to the Tribunal with the directions that the appeal of the taxpayer shall be deemed to be pending and the Tribunal shall decide afresh the issue of the timeframe as prescribed in Section 45-B of the Act with reference to the adjournments sought

[Per Syed Hasan Azhar Rizvi, J. (as Referee Judge) (Majority view): First and second provisos to section 45(B)(2) of the Act should be treated as directory provisions

This interpretation effectively safeguards the tax-payer's constitutional rights while promoting efficient and fair tax governance

It serves the public interest by preventing procedural timelines from being used against tax-payers in a way that would compromise fairness and justice in the appellate system

Provisions must not be interpreted in a way that limits or undermines fundamental rights

Strict enforcement of statutory timelines for tax-payer appeals could jeopardize these rights and potentially deny tax-payers a fair opportunity to seek redressal

Therefore, declaring first and second provisos to section 45(B)(2) of the Act as directory is crucial to maintain due process and uphold the constitutional principles of justice.

Therefore, if the Senior Advocate had some pressing family engagement, then any of the other ASCs could have attended and proceeded with the present case

Moreover, section 6 of the Supreme Court (Practice and Procedure) Act, 2023 now enables engagement of other counsel in a review petition, which was not permissible earlier

Supreme Court observed that in the circumstances, it was not persuaded to adjourn the case, however, in the interest of justice and only by way of indulgence it was doing so; that no further request for adjournment would be entertained, and it was expected that the case would proceed on the next date

Case was adjourned accordingly.

Petitioner (tax payer) was charged to tax under section 111(1)(b) of the Income Tax Ordinance, 2001 ('the Ordinance') by the Assessment Officer

Appeal filed by the petitioner before the Commissioner Inland Revenue was dismissed

Aggrieved, the petitioner filed the ITA before the Appellate Tribunal Inland Revenue which was allowed, and against the said order, the respondent (department) filed Income Tax Reference before the High Court which was allowed

Finally the petitioner filed civil petition before the Supreme Court which was dismissed, hence the present review petition

Contentions of petitioner were that he had submitted his returns with all the necessary details and nothing was concealed; that all the necessary documents including the foreign income and assets statement along with the bank statement and foreign loan documents were e-filed which were available at e-Portal of E-FBR; that all these documents were supplied to the respondent through post as well, but the same were not considered by the fora below; that even otherwise, copies of the relevant documents were to be obtained from London, which could not be obtained in time on account of Covid-19 restrictions; that immediately upon receiving the documents they were produced before the Tribunal in order to substantiate his stance; that such documents were not new evidence, rather the same were in support of the information already available at e-Portal, but the High Court had ignored the factum of availability of these documents at e-Portal and had wrongly considered them as fresh ones; that while arguing the matter before the Supreme Court, the petitioner tried his best to highlight all these facts and to establish that the High Court had erred in law by considering the documents as new evidence, but no proper opportunity was provided to him by the Supreme Court

Validity

[Per Jamal Khan Mandokhail, J. [Majority view]: High Court while deciding the Reference declared that the documents provided to the Tribunal were new evidence

Petitioner had raised all legal and factual grounds in his petition before the Supreme Court, but it seems that the grounds urged by the petitioner escaped the attention of the Supreme Court while deciding the civil petition

Petitioner claimed that the findings of the fora below raised serious questions of law and facts, therefore, reappraisal of the record was necessary in the best interest of justice, but the needful was not done by the Supreme Court at the time of hearing his petition

This raised sufficient reasons to accept the contentions of the petitioner

Even otherwise, no prejudice would be caused to the respondent (department), if an opportunity of hearing was provided to the petitioner

Review petition was allowed; and the order under review passed by the Supreme Court was re-called with the direction that Civil Petition shall be restored to its original number and be fixed for hearing]

[Per Syed Hasan Azhar Rizvi, J. [Minority view]: Petitioner had not raised any ground as envisaged under Rule 1 of Order XXVI of the Supreme Court Rules, 1980 read with Order XLVII of the Code of Civil Procedure

Petitioner had failed to establish that he had discovered any new and important matter which after the exercise of due diligence was not within his knowledge or could not be brought to the notice of the Court at the time of passing of the order or judgment

After a careful examination of the leave refusing order in the Civil Petition, as well as that judgment of the High Court, no compelling reasons were found to entertain the present review petition

High Court had diligently addressed all issues raised thoroughly and decided the case on the basis of facts and grounds

All pleas raised in present review petition had already been addressed by the High Court and were duly considered by the Supreme Court while passing the order under review

Moreover petitioner had failed to establish any mistake or error apparent on the face of the record warranting a review

Review petition was dismissed.]

Petitioner (tax payer) was charged to tax under section 111(1)(b) of the Income Tax Ordinance, 2001 ('the Ordinance') by the Assessment Officer

Appeal filed by the petitioner before the Commissioner Inland Revenue was dismissed

Aggrieved, the petitioner filed the ITA before the Appellate Tribunal Inland Revenue which was allowed, and against the said order, the respondent (department) filed Income Tax Reference before the High Court which was allowed

Finally the petitioner filed civil petition before the Supreme Court which was dismissed, hence the present review petition

Contentions of petitioner were that he had submitted his returns with all the necessary details and nothing was concealed; that all the necessary documents including the foreign income and assets statement along with the bank statement and foreign loan documents were e-filed which were available at e-Portal of E-FBR; that all these documents were supplied to the respondent through post as well, but the same were not considered by the fora below; that even otherwise, copies of the relevant documents were to be obtained from London, which could not be obtained in time on account of Covid-19 restrictions; that immediately upon receiving the documents they were produced before the Tribunal in order to substantiate his stance; that such documents were not new evidence, rather the same were in support of the information already available at e-Portal, but the High Court had ignored the factum of availability of these documents at e-Portal and had wrongly considered them as fresh ones; that while arguing the matter before the Supreme Court, the petitioner tried his best to highlight all these facts and to establish that the High Court had erred in law by considering the documents as new evidence, but no proper opportunity was provided to him by the Supreme Court

Validity

[Per Jamal Khan Mandokhail, J. [Majority view]: High Court while deciding the Reference declared that the documents provided to the Tribunal were new evidence

Petitioner had raised all legal and factual grounds in his petition before the Supreme Court, but it seems that the grounds urged by the petitioner escaped the attention of the Supreme Court while deciding the civil petition

Petitioner claimed that the findings of the fora below raised serious questions of law and facts, therefore, reappraisal of the record was necessary in the best interest of justice, but the needful was not done by the Supreme Court at the time of hearing his petition

This raised sufficient reasons to accept the contentions of the petitioner

Even otherwise, no prejudice would be caused to the respondent (department), if an opportunity of hearing was provided to the petitioner

Review petition was allowed; and the order under review passed by the Supreme Court was re-called with the direction that Civil Petition shall be restored to its original number and be fixed for hearing]

[Per Syed Hasan Azhar Rizvi, J. [Minority view]: Petitioner had not raised any ground as envisaged under Rule 1 of Order XXVI of the Supreme Court Rules, 1980 read with Order XLVII of the Code of Civil Procedure

Petitioner had failed to establish that he had discovered any new and important matter which after the exercise of due diligence was not within his knowledge or could not be brought to the notice of the Court at the time of passing of the order or judgment

After a careful examination of the leave refusing order in the Civil Petition, as well as that judgment of the High Court, no compelling reasons were found to entertain the present review petition

High Court had diligently addressed all issues raised thoroughly and decided the case on the basis of facts and grounds

All pleas raised in present review petition had already been addressed by the High Court and were duly considered by the Supreme Court while passing the order under review

Moreover petitioner had failed to establish any mistake or error apparent on the face of the record warranting a review

Review petition was dismissed.

By way of the judgment under review the Supreme Court declared that any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, therefore, the same were of no legal effect and were set aside

Restaurant under the name of Monal restaurant was operating in the National Park

When judgment under review was passed the petitioner (owner of Monal restaurant), in the presence of his counsel, had voluntarily agreed to vacate the restaurant situated in the protected National Park, but now he was seeking review of the consent order

Held, that the petitioner had no legal right to continue to be in possession of the land and to run a restaurant (Monal) in the National Park

Lease Agreement dated 10 March 2006 executed in favour of petitioner by the Capital Development Authority (CDA) had also expired after fifteen years on 10 March 2021

Though there was a clause in the Lease Agreement which permitted the extension of the lease neither party sought its extension, nor was it extended, therefore, the lease had come to an end

Petitioner got the possession of the land from CDA pursuant to the said Lease Agreement but had the audacity to file a suit against CDA and also contended therein that the amounts he had paid as rent to CDA should be refunded to him because CDA was not entitled thereto

Petitioner had also unilaterally sought to substitute his lessor (CDA) with the Remount Veterinary and Farms Directorate ('the Directorate') which was not a legal entity

Supreme Court in the judgment under review had declared the purported lease entered into with the Directorate to be of no legal effect, and the Federal Government had stated that the same was void ab initio and that the said lease was executed without the permission of the Federal Government

Petitioner had no legal right to continue with the possession of the land and his status was no better than that of a trespasser

Running a restaurant, Monal, in the protected National Park was in total disregard of the provisions of the Islamabad Wildlife (Protection, Preservation and Management) Ordinance, 1979

Operators of these restaurants, and those who permitted them to operate disregarded the integrity of the National Park; ravaged its trees and flora and displaced and disturbed the endemic bird and animal life

Natural environment of the National Park was adversely affected, and so were its resultant benefits, including as a catchment area for rainfall and the recharge of springs and streams

Astronomical environmental cost was also borne by the public and would continue to be borne by future generations

Before the judgment under review was announced an undertaking was given by the petitioner, in the presence of his counsel, to vacate the (restaurant) premises but he now wanted to resile from it

Making a mockery of solemn undertakings and to render them meaningless could not be permitted, and those doing so must suffer the consequences

Due to the petitioner's contemptuous behaviour and misconceived contentions the Supreme Court decided to withdraw/delete from its short order and detailed judgment under review the portion where the Chairman CDA present in Court stated that he would designate an officer to consider the request of the petitioner to give him preference in the leasing/allotting/licensing of premises/land for the running of restaurants if there were premises/land available for such purpose, and if the law permitted so

Review petitions and connected applications were dismissed.

By way of the judgment under review the Supreme Court declared that any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, therefore, the same were of no legal effect and were set aside

Applicant [Sunshine Heights (Pvt.) Limited ('the Company')] claimed to be allottee of six thousand square yards of land in the National Park for thirty-three years

Held, that purported allotment to the Company made twenty-eight years ago was not in accordance with the law

Requisite payment was also not made by the Company

Allotment letter stated that the allotment was for a period of thirty-three years and construction had to be raised within three years, but no construction had been raised even after twenty-eight years

Company's claim on the basis of allotment letter was not sustainable

In any event the law did not permit the construction of a restaurant, which the Company intended to construct, in the protected area of the National Park, and the Supreme Court had also categorically decided the same in the judgment under review

Application was dismissed.

By way of the judgment under review the Supreme Court declared that any lease, license, allotment or permission granted by Capital Development Authority (CDA), or by the Remount, Veterinary and Farms Directorate ('the Directorate') or any other department/ authority to operate restaurants in the National Park was contrary to the provisions of the Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance, 1979, therefore, the same were of no legal effect and were set aside

'Capital View Point Restaurant' (a partnership firm) was operating two restaurants under the name of La Montana and Gloria Jeans in the National Park

Plea on behalf of the petitioner (partnership firm) was that the partner who had voluntarily agreed before the Supreme Court to vacate the premises within three months had a minority seventeen per cent share in the partnership firm ('the Firm'), therefore, he could not have made a commitment on behalf of the Firm

Validity

Firm in question was not registered

Effect of the non-registration of a firm is attended to in the Partnership Act, 1932

Subsections (2) and (3) of section 69 of the Partnership Act stipulate that no legal proceedings can be initiated to enforce a right arising out of a contract by or on behalf of a firm unless it is registered and by partners who are shown in the Register of Firms as partners of the firm

Therefore, since the Firm of Capital View Point Restaurant was an unregistered firm it could not have filed the present Review Petition and applications nor could its partners agitate the matter

As regards the contention that an undertaking given to the Supreme Court by a minority partner does not bind the firm was contrary to the law

Partnership Act stipulates that 'a partner is the agent of the firm' (section 18) and that the partner 'binds the firm' (section 19), and also that such authority 'falls within his [partner's] implied authority' and 'binds the firm' (section 20)

Documents filed by the Firm and its partners in the Review Petition and the listed applications confirmed that the Firm and/or its partners were in illegal possession of the land situated in the Margalla Hills National Park ('the National Park') and were illegally running restaurants (La Montana and Gloria Jeans) therein which they could only have done with the help of those in power

Utter disdain and contempt for the laws of Pakistan and the degradation/destruction of the National Park was made possible by the complicity of those who were required to protect, preserve and conserve it; they were in the service of Pakistan, but were unmindful of their duty to serve the people, instead they served moneyed interests

Before the judgment under review was announced an undertaking was given by the petitioner, in the presence of its counsel, to vacate the (restaurant) premises but it now wanted to resile from it

Making a mockery of solemn undertakings and to render them meaningless could not be permitted, and those doing so must suffer the consequences

Due to the petitioner's contemptuous behaviour and misconceived contentions the Supreme Court decided to withdraw/delete from its short order and detailed judgment under review the portion where the Chairman CDA present in Court stated that he would designate an officer to consider the request of the petitioner to give it preference in the leasing/allotting/licensing of premises/land for the running of restaurants if there were premises/ land available for such purpose, and if the law permitted so

Review petition and connected applications were dismissed.

Parliamentarian votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he/she belongs

In the judgment under review the Judges (in majority) held that if a member votes against the dictates of his political party the member's vote would not be counted and the member shall be immediately disqualified

Constitutionality

Article 63A of the Constitution does not state that the votes of any member should not be counted nor that a member who does not vote or abstains from voting contrary to the Parliamentary Party's direction would automatically be deseated

Clauses (1) to (5) of Article 63A of the Constitution are unambiguous, self-executory and do not require any interpretation

Through the judgment under review the Party Head's jurisdiction to issue a declaration of defection has instead been conferred upon the Supreme Court; the Election Commission was also divested of its jurisdiction, and even the appellate jurisdiction of the Supreme Court under clause (5) of Article 63A was effectively abolished

Judgment under review was against the clear language and mandate of the Constitution and also contrary to the decisions of the larger Benches of the Supreme Court

Review petition was allowed and the majority view in the judgment under review was set aside.

Power-of-attorney was executed in favour of "F" (attorney) by his sister (predecessor of the respondents) which was used by "F" to purportedly sell 109 kanals of land to his four sons

Power-of-attorney did not specifically authorize the sale of the land in favour of the attorney or his sons, and "F" had misused it

Sister repudiated the sale transactions and filed a suit for declaration and cancellation

Suit was decreed and the decision of the Trial Court was upheld throughout

Validity

Conduct of the attorney, "F", and his four sons, the purported buyers, was deplorable and reprehensible as a sister and aunt was illegally deprived of her land

Often vulnerable members of society are exploited and deprived of their properties by such dubious methods, and then they spend a lifetime to regain what is rightfully theirs

Sister was entangled in a web of perpetual litigation, and, even though all the decisions were in her favour, she remained deprived of the land and its produce throughout her lifetime

"F" and his sons violated Article 24(1) of the Constitution, which guarantees that no person shall be deprived of his property save in accordance with law

Purported sale/transfer of the subject land was effected in derogation of section 42 of the Land Revenue Act, 1967, and of the judgments of the Supreme Court which stipulate that extra care must be exercised with regard to the property of women

Revenue officers/officials were either complicit in recording the illegal mutations or were incompetent

Review petition was dismissed with the directions that the petitioners shall immediately hand over the possession of the subject land to the respondents (legal heirs of the sister), and if they do not do so the concerned revenue authorities should immediately dispossess the petitioners therefrom, and that on account of the petitioners' most unreasonable conduct they shall pay to the respondents one million rupees as costs, and till payment is made such amount shall constitute a charge on the landholding of the petitioners.

Longstanding detention in prison up to or more than the period of imprisonment for life is a complete and distinct punishment, as provided by section 302(b), P.P.C.

In the present case by the time, when his appeal was dismissed by the Supreme Court, the petitioner remained incarcerated for about 25 years, without earning remissions

Despite confirmation of his death sentence by the Supreme Court, the petitioner was awaiting execution of his sentence for the last nine years

It was a fact that till date, the petitioner had served out a sentence of more than 34 years without earning remissions, out of which, he remained incarcerated in death cell for about 24 years

If remissions were counted, his detention may come to almost forty years

Petitioner had served out his sentence for more than a life term and that too, in miserable and inhuman conditions while incarcerated in death cell for twenty four years, which had compromised his personal values and dignity

Delay in conclusion of judicial proceedings and execution of sentence awarded to the petitioner was on account of the system, hence, was beyond his control

Due to this hard fact, the petitioner had faced the agony of prolonged criminal proceedings, hence, was a victim of circumstances, therefore, he could not be penalized for the act of the Court or the Executive

Longstanding delay upto or above the period of imprisonment for life is one of the grounds necessary for awarding lesser punishment, keeping in view the principle of expectancy of life

Review petition was partly allowed, and the judgment under review was upheld, with modification in the quantum of sentence

Resultantly, the conviction of the petitioner under section 302(b), P.P.C. was maintained, however, death sentences awarded to him on two counts were converted into imprisonment for life on two counts, with benefit of section 382-B, Cr.P.C

Whereas the conviction and sentence of the petitioner under section 307, P.P.C. were upheld.

Plea of Commissioner, Inland Revenue (review petitioner) is that the Deputy Commissioner was delegated powers to amend the assessment vide order No. 616, dated 5th December 2009, issued by the Commissioner Inland Revenue (Audit-I), Regional Tax Office, Peshawar ('the said order') mentioned at serial No. 1 of the Table contained in the said order

Held, that the said order does not refer to section 122 of the Income Tax Ordinance, 2001 ('the Ordinance') with regard to amendment of assessment nor is it so stated under column No. 4 of the Table pertaining to Jurisdiction

Furthermore the said order has neither been gazetted nor is it available on the website of the Federal Board of Revenue ('FBR')

Taxpayers should know who is exercising authority and whether such exercise of authority is permissible

Point raised in the present review petition had already been argued at the time of hearing the order under review and indulgence had also been shown to the petitioner (Commissioner Inland Revenue) to disclose the requisite authority bestowed on the Deputy Commissioner

Same officer, who is present before the Supreme Court today, namely, the Additional Commissioner, FBR was in attendance then too, but he did not refer to the said order

In any case the said order does not delegate the statutory power of the Commissioner to Deputy Commissioners, therefore, the purported amendment made to the assessment order was not sustainable

Said order also does not grant such specific authorization

Consequently, present review petition was dismissed with costs of ten thousand rupees; to be paid to a charity of the choice of the petitioner

Supreme Court observed that all notifications, orders etc. should be gazetted and also displayed on the website of the FBR to facilitate the officers of the FBR, tax practitioners and taxpayers.

Convention between the Islamic Republic of Pakistan and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes on Income ("Swiss DTT"), Art. 2

Held, that High Court considered the pros and cons of the entire controversy and the questions of law raised and thereafter reached to the analytical conclusion that the levy of Super Tax was identical to the levies that existed at the time the treaties in question came into force, hence the tax-payers within the realm of double taxation treaties are either exempt or, wherever applicable, liable to pay the Super Tax at reduced rates in terms of their respective treaties

No justification or rationale existed to entertain and consider the present review petitions when the High Court had extensively considered all the questions raised before it and comprehensibly discussed the pros and cons and passed a reasonable consolidated judgment which did not warrant any interference and was therefore affirmed by the Supreme Court through the order under review

Review petitions were dismissed accordingly.

Plea of Commissioner, Inland Revenue (review petitioner) is that the Deputy Commissioner was delegated powers to amend the assessment vide order No. 616, dated 5th December 2009, issued by the Commissioner Inland Revenue (Audit-I), Regional Tax Office, Peshawar ('the said order') mentioned at serial No. 1 of the Table contained in the said order

Held, that the said order does not refer to section 122 of the Income Tax Ordinance, 2001 ('the Ordinance') with regard to amendment of assessment nor is it so stated under column No. 4 of the Table pertaining to Jurisdiction

Furthermore the said order has neither been gazetted nor is it available on the website of the Federal Board of Revenue ('FBR')

Taxpayers should know who is exercising authority and whether such exercise of authority is permissible

Point raised in the present review petition had already been argued at the time of hearing the order under review and indulgence had also been shown to the petitioner (Commissioner Inland Revenue) to disclose the requisite authority bestowed on the Deputy Commissioner

Same officer, who is present before the Supreme Court today, namely, the Additional Commissioner, FBR was in attendance then too, but he did not refer to the said order

In any case the said order does not delegate the statutory power of the Commissioner to Deputy Commissioners, therefore, the purported amendment made to the assessment order was not sustainable

Said order also does not grant such specific authorization

Consequently, present review petition was dismissed with costs of ten thousand rupees; to be paid to a charity of the choice of the petitioner

Supreme Court observed that all notifications, orders etc. should be gazetted and also displayed on the website of the FBR to facilitate the officers of the FBR, tax practitioners and taxpayers.

Convention between the Islamic Republic of Pakistan and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes on Income ("Swiss DTT"), Art. 2

Held, that High Court considered the pros and cons of the entire controversy and the questions of law raised and thereafter reached to the analytical conclusion that the levy of Super Tax was identical to the levies that existed at the time the treaties in question came into force, hence the tax-payers within the realm of double taxation treaties are either exempt or, wherever applicable, liable to pay the Super Tax at reduced rates in terms of their respective treaties

No justification or rationale existed to entertain and consider the present review petitions when the High Court had extensively considered all the questions raised before it and comprehensibly discussed the pros and cons and passed a reasonable consolidated judgment which did not warrant any interference and was therefore affirmed by the Supreme Court through the order under review

Review petitions were dismissed accordingly.

Under Order XXVI, Rule 6 of the Supreme Court Rules, 1980 an application for review has to be drawn by the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made

Review argued by a new Advocate before a new Bench would inevitably amount to rehearing of the main case and going beyond the scope of review under the law

Special leave to substitute a counsel in a review petition is to be granted (by the Court), only when appearance of the earlier counsel is not possible due to some unavoidable circumstances.

Appellant challenged the allotment permits and the Proprietary Rights Transfer Orders (PRTO) after a period of almost 42 years and 20 years, respectively, before the Custodian of Evacuee Property by way of review petition

Validity

Limitation for filing review petition before the Custodian of Evacuee Property as provided under R.17(3) of the Administration of Evacuee Property Rules, 1950, was 30 days

Appellant had claimed that the impugned allotment permits and Proprietary Rights Transfer Order (PRTO) had come into her knowledge a week ago but no specific date was mentioned that as to how she acquired the knowledge of the same

Appellant had neither filed any affidavit in support of said paragraph nor filed a separate application for condonation of delay

Appeal was dismissed.

Petitioners sought review of order passed by the High Court whereby they were directed to maintain status quo till final disposal of the suit pending before the Trial Court

Contention of petitioners was that the Court after hearing the arguments had verbally ordered that the suit land shall not be further alienated to any other person while the possessor of the suit land if willing to construct building could construct building on his own risk or cost but while writing the impugned order Chief Court had just granted status quo in favour of the respondent

Validity

Chief Court had categorically directed the parties to maintain status quo till final disposal of the suit and presumption of truth was attached to the order of the Court

Review petition was not competent where neither any new and important evidence was disclosed nor any mistake or error was apparent on the face of record

Petitioner had failed to make out a case for review of the impugned order

Review petition was dismissed.

Petitioners / defendants sought review of order passed by Chief Court whereby it had directed the plaintiffs to implead the Provincial Government and its departments as defendants under O.I, R.10(2), C.P.C.

Contention of petitioners was that the impugned order was passed in their absence and that no order against the interest of any person could be passed without giving him an opportunity for explaining his position

Validity

Provincial Government and its concerned departments were necessary parties to the suit and without impleading them no effective decree could be passed in the matter

Review petition was not maintainable as its main aim was correction of errors in the judgment and not correction of wrong decisions

Court could not hear the matter as an appeal against its own judgment

Review petition was dismissed.

Review could only be entertained if it was proved that some new and important matter or evidence had been discovered which after exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record.

Applicants moved Cooperative Judge for review of his order to hold a separate trial which was dismissed holding that he had no power to review his own order

Validity

Cooperative Judge had rightly dismissed the petition

Right of review was a substantive right and was always creation of relevant statute

If power of recalling the order with ultimate object of review was not available in the relevant statute then same could not be invoked

Power of review was not available to said Court on the basis of general principles or by virtue of S. 20, General Clauses Act, 1897

Applicants had failed to point out any provision of law in the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1939 whereby power to review his own order was entrusted to said Court

No illegality or jurisdictional defect had been pointed out in the impugned order passed by the Cooperative Judge

Constitutional petition was dismissed in circumstances.

Petitioners were important party to the writ petition and deserved to be impleaded as party in the petition which was denied to them

Chief Court converted the review petition into the one under S.12(2), C.P.C. and allowed the same and set aside the order and directed the office to implead the petitioners to the writ petition as respondents and present the same for further proceedings

Petition was allowed accordingly.

Supreme Appellate Court directed that notwithstanding the privileges contained in Supreme Court Judges Leave, Pension and Privileges Order, 1997 (the Presidential Order No. 2 of 1997), Chief Judge of Supreme Appellate Court, Gilgit-Baltistan, on completion of tenure, would be authorized to engage the services of Personal Assistant BPS-15 and one contingent employee in BPS-01 of his choice, and a Judge of Supreme Appellate Court Gilgit ¬Baltistan would be authorized to engage the services of one Telephone Attendant in BPS-07 of his choice; that a former or a serving Judge of Supreme Appellate Court was entitled to free medical treatment in terms of paragraph 19 of the 'Presidential Order No. 2 of 1997'; that if medical treatment required by the Judge and his dependent family members was not available at Gilgit, they may avail the medical facility in Government hospitals or in a recognized private hospital in down country, on recommendation of authorized Medical Officer, within the allocated budget; that the Chief Judges and Judges of Supreme Appellate Court, Gilgit-Baltistan were entitled to use a vehicle of the engine capacity of 1800 CC, and another vehicle for use by their families during their tenure of office, and on their retirement, they could purchase only one car in their use of the engine capacity of 1800 CC on payment of depreciated value as contained in Notification dated 31.05.1991 issued by Ministry of Law, Government of Pakistan to avoid inconsistency with Art. 60(10) of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009

Review petition was partially allowed accordingly.

Petitioner had alleged that impugned order of acquisition was against the law and facts of the case, and had been passed without appreciating contention of the petitioners; that controversy regarding adna and aala malik was not understood in its true perspective while passing impugned order; that vital rights of the petitioners, being at stake, case should have been decided on merits

Petitioner prayed that the review be accepted

Contentions of the respondents on the other hand were; that impugned order was passed after hearing contentions of the parties and consultation of record; that scope of review was very limited; that the petitioners did not raise any new ground in the review petition; that no irregularity or illegality had been committed in the impugned order which was valid and lawful in the eye of law; that review petition was liable to be dismissed

Respondents prayed that review petition be dismissed

Validity

Impugned acquisition, had been made under the provisions of Thal Development Authority Act, 1949

No power of review vested in authority under Thal Development Act, 1949 or Thal Development Authority (Colonization) (Appeal and Revision) Rules, 1973

Power of review being conspicuously absent, exercise of such powers by Authority in canceling allotment of land, was not warranted

Right or power of review being creation of statute, could not be exercised unless specifically provided under the law

Petitioners, could not resist such contention

Present review petition being not competent, was dismissed being not maintainable; in circumstances.

No other co-sharer had agitated the partition, which was enough to believe that other 31 co-sharers were satisfied with said partition

Contention of the petitioner, that he would suffer heavy loss in consequence of impugned partition, was baseless and without merits as minor adjustments were liable to be ignored while deciding the matter of partition

If the petitioner wanted to get his wanda separated, he could move competent forum for that purpose

When no new ground had been taken, nor any element of mis-reading/non-reading of the facts was involved, review was not competent under relevant provision of law

Review petition was dismissed and impugned order was upheld.

Contention of non-civil servants/petitioners that they were absorbed from different organizations to Sindh Councils (Unified Grades) Service under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, read with R. 12(5) of the Sindh Councils (Unified Grades) Service Rules, 1982

Validity

Power to appoint by transfer under R.9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, would only extend to a civil servant

Petitioners who were not members of the Unified Services and were wrongly absorbed in the Service of Unified Group, in deviation of the Sindh Councils (Unified Grades) Service Rules, 1982, could not be allowed to continue in the Unified Services Group

Provincial Chief Minister or the relevant Selection Board could not induct any stranger in the service of Unified Group either by exercising powers under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, or under R. 12(5) of the Sindh Councils (Unified Grades) Service Rules, 1982

Such act on the part of the Chief Minister or the Selection Board had circumvented the very framework of the Sindh Councils (Unified Grades) Service Rules, 1982, by introducing a parallel system based on discrimination and favourtism, which the law did not recognize

Any such induction was against the recognized norms of service law and, therefore, such inductees/petitioners were liable to be repatriated to their parent departments forthwith

Absorption of the petitioners under the garb of 'appointment by transfer' in the Unified Services Group had directly affected the rights of the employees in the service, guaranteed under Arts. 4 & 9 of the Constitution

Review petition was dismissed accordingly.

Abolition of a post was permissible in case, if the department required restructuring, reform or to meet exigency of service in public interest

Department could abolish a post for justiciable reason

Provincial Government, in the present case, had abolished some posts in individual cases with the object to accommodate a civil servant or government servant to appoint him by transfer to a post, service or cadre contrary to the restrictions contained in Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Supreme Court directed that in future when a post had to be abolished within the Department and/or within the statutory body or organization controlled by the Provincial Government, the Department shall seek concurrence from the Services and General Administration Department (S&GAD) coupled with the reasons justifying abolition

Review petition was dismissed accordingly.

Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had been introduced with the object to accommodate the persons who were rendered surplus by abolition of their posts or the organization in which they were working had been taken over by the Provincial Government

Said Rule could not be used as a tool to accommodate a person by abolishing his post with an object to appoint him by transfer to a cadre or service or post in deviation of R. 3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which was a condition precedent for appointment to such post

In order to exercise powers under R.9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, there had to be some justification for abolition of the post against which such person was working

Such justification should come from the Department and/or organization which shall be in consultation with the Services and General Administration Department and approved by the competent authority

Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not permit appointment by transfer of a non-civil servant to any other Department and/or organization controlled by the Government to a post which restricted the transfer under R. 3(2) of the said Rules

Person could only be appointed by transfer under R. 9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, if he had the eligibility, matching qualifications, expertise coupled with the conditions laid down under R. 3(2) of the said Rules for appointment to such post

Rule 9-A did not permit transfer of a non-civil servant to a cadre, service or post meant for a civil servant, recruited in the cadre or service or post after competitive process

Such an appointment by transfer in the nature of absorption would only be permissible, if the pre-conditions laid under R. 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, were met

Review petition was dismissed accordingly.

Question as to whether the Chief Minister/competent authority was empowered under R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 to absorb the beneficiaries from different organizations to Provincial Service or cadre or post

Rule 9(1) of Sindh Civil Servants (Appointment, Promotion And Transfer) Rules, 1974 spoke of appointment by transfer to be made from amongst the persons holding appointments on regular basis mentioned in column 2 of the Table given under the said Rule

Word "person" as used in said R. 9(1) would, therefore, relate to the officers, who were civil servants and mentioned in column 2 of the Table given under the said Rule

Word "person" could not be given an ordinary meaning beyond the scheme of the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not empower the Government or selection authority to appoint a civil servant or any other person by transfer to any other cadre, service or post without his eligibility, qualifications and the conditions laid down under Rr. 3(2), 4, 6 & 8 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Section 8 of the Sindh Civil Servants Act, 1973 made a class of civil servants for proper administration and such class was not interchangeable at the whims of the selection authorities and/or the Government to extend favours to their blue eyed

No discretion was given under S. 5 of the Sindh Civil Servants Act, 1973, to appoint any person in civil service against a civil post in the manner other than prescribed by the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Rule 9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, did not confer permanent status on civil servant on his appointment by transfer nor it contemplated his absorption in the transferee department as a consequence of his appointment

Neither any procedure nor any mechanism was provided under the Sindh Civil Servants Act, 1973 or the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, to treat appointment by transfer as absorption in the transferee department

Neither a person could be absorbed under the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, nor a civil servant/non-civil servant/deputationist could be allowed to travel horizontally outside his cadre to penetrate into a different cadre, service or post through an appointment by transfer

Rule 9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, could not be used as a tool to allow horizontal movement of a civil servant from his original cadre to another cadre against scheme of the Sindh Civil Servants Act, 1973 and the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Any appointment by transfer under R.9(1) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, had to be for a fixed term, and, on completion of such term, the civil servant had to join back his parent department

Concept of absorption of a civil servant and/or Government servant was foreign to the Sindh Civil Servants Act, 1973, as well as R. 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Said Rule did not permit transfer of non-civil servant to a non-cadre post or to a cadre post

Review petition was dismissed accordingly.

Provincial Chief Minister had the sole discretion to recruit/nominate an employee to the post of Assistant Commissioner in exercise of powers under R. 5(4)(b) of the West Pakistan Civil Service (Executive Branch) Rules, 1964

Discretion to exercise such powers needed to be structured by framing policy, which should encourage merit

West Pakistan Civil Service (Executive Branch) Rules, 1964, were not meant to ignore transparency in nomination, as said appointments were made by bypassing the regular procedure provided for appointment of a civil servant in BS-17

Provincial Government, in the present case, had framed no policy for appointments under the West Pakistan Civil Service (Executive Branch) Rules, 1964, and it was the sole discretion of the Provincial Chief Minster

Absence of policy for nomination to the post of Assistant Commissioner meant that blue eyed of the highups would get such jobs

Supreme Court directed the Provincial Government to frame a transparent policy for nomination of officials under the West Pakistan Civil Service (Executive Branch) Rules, 1964, which could ensure that meritorious employees of the Departments mentioned in the said Rules, could be nominated on merits, after proper scrutiny

Review petition was dismissed accordingly.

Civil servant could not approach the Service Tribunal unless he exhausted the remedy of departmental appeal/representation under S. 22 of the Civil Servants Act, 1973

Section 4(1)(a) of the Service Tribunals Act, 1973, provided that a civil servant could approach the Service Tribunal, subject to his exhausting remedy under S. 22 of the Civil Servants Act, 1973, after lapse of 90 days from the date on which such appeal/application was so preferred

Civil Servant aggrieved by an order of the department had to file a representation or appeal within 30 days of passing of such order and if the said authority did not decide his appeal/representation within 90 days, he could prefer an appeal before the Tribunal, after lapse of time as contained under S.4(1)(a) of the Service Tribunals Act, 1973

Supreme Court observed that provisions of S. 22 of the Civil Servants Act, 1973 and S. 4 of the Service Tribunals Act, 1973, were required to be re-examined after insertion of Art. 10A in the Constitution, as it restricted a civil servant from seeking expeditious remedy from the Service Tribunal which was constituted under the command of the Constitution; that after the promulgation of Art. 10-A of the Constitution, it was imperative to re-examine the existing law which apparently barred the filing of appeal in the Service Tribunal before the passage of mandatory 90 days, but practically for 120 days; that in certain situations a civil servant may face wrath and vendetta of his superiors, if he refused to carry out their illegal orders, and in such a situation, his representation etc. to the concerned authority to seek redressal of the wrong committed against him may be ignored or outright rejected by the authorities under political influence or for ulterior motives, leaving him with no option but to wait for mandatory period of 120 days to enable him to file an appeal etc. before the Service Tribunal; that in view of such problems faced by the civil servants due to lengthy process of filing appeal in the Tribunal and availing of relief, it was imperative to provide an efficacious and expeditious alternate remedy to civil servants by way of allowing them to approach the Service Tribunal, Federal or Provincial, without waiting for a period of 90 days, as contained under S.4(1)(a) of the Service Tribunals Act, 1973 by preferring an appeal against the orders; that at touchstone of Art. 10-A of the Constitution, the issues that were required to be answered were whether S. 4(1)(a) of the Service Tribunals Act, 1973, restricting a civil servant from filing appeal to the Tribunal after lapse of 90 days was violative of the spirit and command of Art. 10-A of the Constitution, and whether time frame provided by S. 4 of the Service Tribunals Act, 1973 debarring an aggrieved civil servant to approach the Service Tribunal amounted to denial of the relief to him in terms of Arts. 4, 9 & 25 of the Constitution

Supreme Court further observed that it was necessary to take up said issues in its suo motu jurisdiction under Art. 184(3) of the Constitution in a separate proceedings

Review petition was dismissed accordingly.

Competent Authority by resorting to S. 24 of the Sindh Civil Servants Act, 1973, passed orders of absorption of civil servants/government servants/employees of autonomous bodies, semi-autonomous bodies and corporations, and granted them back-dated seniority besides out of turn promotions

Legality

Section 24 of the Sindh Civil Servants Act, 1973, was an enabling provision and conferred residuary powers upon the competent authority, to redress the grievance of an individual in a hardship case

Competent Authority under S. 24 of the Sindh Civil Servants Act, 1973, could grant benefit to an individual if it considered it just and equitable, without offending and impairing the statutory rights of other civil servants/employees

Competent Authority could exercise powers under S. 24 of the Sindh Civil Servants Act, 1973, by relaxing rules, if there was a vacuum in law, but such powers could not be exercised under the garb of the term "Relaxation of Rules" with the intent to bye-pass the mandate of law for extending favours to a person or an individual, offending and impairing the statutory rights of other civil servants

Competent Authority, by an executive order, could not frame Rules in exercise of powers under S. 24 of the Sindh Civil Servants Act, 1973

Authority conferred under S. 24 of the Sindh Civil Servants Act, 1973, was confined to hardship cases, without negating the vested rights of the other civil servants and/or causing prejudice to their interests

Exercise of powers under S. 24 of the Sindh Civil Servants Act, 1973, by the Competent Authority, in the present case, travelled beyond the scheme of the Sindh Civil Servants Act, 1973

Review petition was dismissed accordingly.

For justifying the upgradation (of a post), the Government was required to establish that the department needed restructuring, reform or that it was to meet the exigency of service in public interest

In the absence of such pre-conditions, upgradation was not permissible

Upgradation could not 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

Some of the civil servants, in the present case, had been promoted to higher posts against the tenural limitations, without qualifying the requisite departmental examinations/trainings under the garb of upgradation

Such civil servants were not promoted in accordance with law and needed to be reverted to their substantive ranks/posts which they were holding immediately before their upgradation and their seniority should be determined along with their batch-mates

Review petition was dismissed accordingly.

Government had contended in the judgment under review that the word "and" appearing between the words 'natural gas' and 'minerals', in Entry No.51, Part 1 of the Fourth Schedule to the Constitution, should be interpreted and read as "or"

Supreme Court had declared in the judgment under review that there was no ambiguity in the interpretation of Entry No.51, Part 1 of the Fourth Schedule to the Constitution, and it should be given its ordinary meaning; that if the legislature wanted it would have used the word "or" instead of "and" in the said Entry

Validity

Words should be given their ordinary meaning unless the context otherwise required

Legislative history of an Entry appearing in the Federal Legislative List would be relevant if such Item was ambiguous

Words used in Entry No. 51, Part 1 of the Fourth Schedule to the Constitution, did not pose any difficulty in interpretation or lead to any absurdity when given their ordinary meaning

Reference to historical perspective would thus not be required to find out the true meaning of Entry No.51, Part 1 of the Fourth Schedule to the Constitution

Supreme Court maintained the construction already placed on Entry No.51, Part 1 of the Fourth Schedule to the Constitution, in the judgment under review

Review petition was dismissed accordingly.

Supreme Court had declared in the impugned judgment under review that imposition of Gas Infrastructure Development was a fee and not as tax, therefore, it could not have been imposed through a "Money Bill"

Contention of Government that once the Speaker of National Assembly had certified that levy of cess in question was validly included in the Money Bill (implying that it was a tax and not a fee), such determination attained finality, and could not be reopened by the Supreme Court

Validity

Certificate by the Speaker of the National Assembly providing that a bill was a Money Bill would only be relevant if proceedings arose in Parliament

Such a certificate would not prevent the Court from examining whether a particular item could have validly been included in a Money Bill, and it would also not create a bar on the jurisdiction of the court to determine true nature of the levy of cess in question

Review petition was dismissed accordingly.

Federal Tax Ombudsman vide his findings/recommendations having rejected complaint filed by the petitioner, without embarking upon the merits of the matter, petitioner had filed review petition against rejection order

Matter in the case related to auction lots of trees, mainly comprising timber-wood in the form of dead/dry standing and fallen trees and firewood

Only a small component of those lots comprised green trees

Green trees could qualify for sales tax exemption, and timber wood and firewood was chargeable to Sales Tax

Description given by the complainant in his complaint as 'standing trees' was misleading

Appropriate description, should have been "dead/dry trees" "timber and firewood", and "green trees"

Complainant/petitioner's attempt to mislead the Federal Tax Ombudsman, could not be supported

Matter involving interpretation of law and determination of facts for tax assessment, same fell outside the purview of the Federal Tax Ombudsman; as its jurisdiction was barred in terms of S.9(2)(b) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000

Findings of the Federal Tax Ombudsman, were upheld, in circumstances.

Collector of Customs, had filed petition under S.14(8) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, for review of Federal Tax Ombudsman's findings and recommendations on certain grounds contending that impugned findings were harsh

Most critical issues involved in the case, were; firstly, whether, delay had occurred in payment of duty drawback to the complainant for export of socks, etc., and whether impugned findings and recommendations issued by Federal Tax Ombudsman, were harsh; secondly, whether it was desirable on the part of the Customs Authorities to ask the complainant to withdraw the complaint to Federal Tax Ombudsman, thirdly, whether complainant had attempted to defraud the Government Exchequer of the huge amount of duty drawback and fourthly, whether issuing show-cause notice to the complainant was justified and lawful, while complaint to the Federal Tax Ombudsman was under investigation

Validity

Regarding firstly, there could be no doubt that payment of duty drawback, was excessively delayed in 20 claims pertained to the years 2010 and 2011, and 4 claims pertaining to the period after 2012; three other claims of the complainant were also pending due to the failure of the Customs Authorities to inform the complainant about the change in the refund system under the "Pakistan Customs Computerized System (PaCCS)" and its replacement

Such acts of omission and commission by the Customs Authorities, constituted "maladministration" in terms of S.2(3) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000

Said inordinate delay by Tax functionaries in the settlement of duty drawback claims of exporter without any fault, was much more serious "maladministration" to be condoned, merely on the ground of being a legacy issue of transition from one Computerized System to another

Impugned findings of Federal Tax Ombudsman, were not harsh

Regarding, secondly, Assistant Collector asked the complainant to withdraw his complaint, as department was co-operating with him to settle his outstanding claims; and that it would cause a lot of expenditure to the Government due to travel of Gazetted Officer from Karachi to Islamabad for attending hearing proceedings

Request to withdraw the complaint would similarly cause a lot of cost to the exporter (complainant) to travel from Haripur (Khyber Pakhtunkhwa) to Karachi to attend the hearing proceedings for defending himself against allegations of "fiscal fraud", which would also cause, lot of emotional and reputation loss to valuable exporter, who had an unblemished track record as exporter and taxpayer

Request of department, was not reasonable, in circumstances

Regarding, thirdly, the complainant had not filed duplicate claims, but he just wanted information, whether his claims, had been paid, which was his right

Exercise of such right, could not be treated as an attempt to defraud the Government Exchequer, as neither duplicate claims had been filed, nor the complainant had even insisted on payment of those 19 claims, which were stated by the Departmental representative to have been paid already

No room was available, in circumstances, for charging the complainant with "fiscal fraud" under S.32-A(1)(a) of Customs Act, 1969

Regarding fourthly

Fact was that Assistant Collector, asked the complainant to withdraw his complaint, and only after two days of declining of the Assistant Collector's request to withdraw the complaint, show-cause notice was issued against the complainant, without any factor charge; issuing show-cause notice, in circumstances, was an act of reprisal by the Customs Authorities for refusal by the complainant to accept the Assistant Collector's request for withdrawal of the complainant

Acts of department, having constituted a very serious "maladministration" in terms of S.2(3) of Establishment of Office of Federal Tax Ombudsman Ordinance, 2000, FBR was recommended; to call for the record of the case in exercise of the powers under S.195 of the Customs Act, 1969, and withdraw the show-cause notice issued by Assistant Collector; to initiate disciplinary proceedings for issuing an unjustified and unlawful show-cause notice, as a measure of reprisal for taxpayer's refusal to comply with unlawful requirement to withdraw the complaint; convert the matter into a case study for training the Customs Officers; and report compliance within specified period.

Review petition could be filed within 30 days of the passing of a final order.

Petitioners contended that disputed evacuee piece of land was allotted in favour of their grandmother and after the death of their grandmother the land in question was inherited in favour of their father and after father's death they were owners and allottees of the land in dispute

Petitioners further contended that respondent fraudulently got illegal allotment permit regarding disputed land

Respondent produced a certified copy of thirty years old statement of petitioner's grandmother whereby she had voluntarily excluded her name from the allotment

Custodian of Evacuee Property relied on the statement of grandmother of petitioners and dismissed the review petition

Validity

Grandmother of petitioners had appeared before the Authority and made a categorical statement that the land in dispute may be allotted to elder brother of her husband, grandfather of the private respondent by excluding her name from allotment

Grandmother of petitioners had also stated that allotment was not yet issued in her favour in accordance with law

Respondents produced certified copy of statement of grandmother of petitioners which was thirty years old document

Certified copy of thirty years old statement had got presumption of truthfulness

Custodian of Evacuee Property on the basis of statement, had rightly negated the claim of petitioners

Writ petition was dismissed.

Allotment of respondent was challenged by the petitioners, before Custodian of Evacuee Property, after about forty six years

Petitioners filed review petition sixteen years after issuance of Proprietary Rights Certificate

Petitioners contended that they came to know about allotment and Certificate two weeks ago therefore review petition could not be dismissed as being time-barred

Custodian of Evacuee Property dismissed the review petition

Validity

Petitioners and respondents were living in the same vicinity and also close relatives

Land in dispute was also situated in the neighbourhood of petitioners

No plausible explanation was given for such long inordinate delay

Petitioners were obliged to give each day's explanation of delay extended over more than four and half decades

Review petition could be filed within thirty days from the date of passing of an order by Custodian of Evacuee Property

Custodian of Evacuee Property rightly dismissed the review petition, in circumstances

Writ petition was dismissed.

Complainant seeking review of High Court order which had been passed in contradiction to an earlier order of the High Court

Counsel for complainant failing to disclose the presence of said earlier order

Effect

F.I.R. was lodged against accused (respondent)

Accused succeeded in getting bail

Complainant (petitioner) filed application for cancellation of bail and stated that he would not press the application provided a direction was issued to conclude the trial expeditiously

High Court directed Trial Court to conclude the trial as early as possible in view of the statement of the complainant

Subsequently accused (respondent) filed constitutional petition before High Court seeking quashing of F.I.R., which was allowed and F.I.R. against him was quashed

Complainant (petitioner) filed application under S.12(2), C.P.C against quashing of F.I.R. order contending that same had been procured by practicing fraud and misrepresentation; that quashing of F.I.R. order had been passed by the High Court without appreciating that it was contradictory to the directions passed in the earlier bail cancellation order

Said application of complainant was dismissed and intra-court appeal filed thereagainst was also dismissed

Validity

Directions given in bail cancellation order were passed in presence of counsel of complainant

Similarly quashing of F.I.R. order was also passed in presence of the same counsel

Record revealed that counsel for complainant did not bother to point out to the High Court during proceedings of constitutional petition for quashing of F.I.R. that directions had earlier been passed by the High Court in the bail cancellation application, therefore, complainant's subsequent plea that quashing of F.I.R. order was obtained through fraud and misrepresentation, was devoid of any force

Complainant's application under S.12(2), C.P.C had been rightly dismissed

Review petition was dismissed accordingly.

Petitioners filed appeal against legal objections raised by the Registrar, but same was not maintainable; and was liable to be rejected on the grounds that the contempt petition which was sub-judice, was a matter between the court and contemnor and third party would not interfere with contempt petition; that impugned order was purely interlocutory in nature and not the final one; that review petition filed by the petitioners against the order, was not competent until and unless it could obtain finality and affect the precious rights of any aggrieved party and that petitioners were not the party in the contempt proceedings before the court; and in circumstances were not competent to file petition

Supreme Appellate Court observed that if they were aggrieved from the order passed by the competent authority, they could avail remedy as provided under the law before competent forum.

New ground could not be allowed to be taken in review petition on the basis of fact which was not brought before the court at proper stage.