Propriety

Held: that S. 8(1)(ca) of the Sales Tax Act, 1990 ('the Act'), provides that it cannot be claimed for goods or services in respect of which the sales tax has not been deposited in the Government treasury by the respective supplier, however in the present case , no such exercise had been carried out by the Department and it was not reflected in the Order-in-Original that such fact was determined against the supplier that they had not deposited the tax ; that could only have been done when any such independent proceedings were initiated and finally culminated against the supplier

There was no mention of any such proceedings in the relevant order

Section 8(1) (ca) of the Act cannot be invoked or applied independently in isolation and has to be read with S. 8A; and can only be invoked against the taxpayers once an exercise has been carried out and a conclusive finding has been arrived at against them pursuant to section 8A of the Act

Therefore, the proposed questions were answered in favour of the applicant /taxpayer and against the respondent/Department

High Court set-aside the orders passed by the forums below

Reference Application, filed by taxpayer/registered person, was allowed.

Record (including death certificate of taxpayer) revealed that after more than seven months of death of taxpayer, the assessing officer initiated proceedings by issuance of a show cause notice under S. 11D of the Sales Tax Act, 1990 ('the Act'), and subsequently proceeded despite having knowledge of the death of the taxpayer and unlawfully continued the assessment proceedings without impleading the legal heirs on record and ultimately passed an ex parte assessment order almost one year after the demise of the taxpayer

Any proceedings initiated against a deceased person are a nullity in the eyes of law, as such proceedings lacked a lawful foundation from their inception, and no substitution could subsequently be made in place of a person who was already deceased at the time of initiation of the proceedings

Hence, entire proceedings carried out by the Department against the sole respondent/defendant, who had already passed away, were invalid, non existent, a nullity in the eyes of law and void ab initio, as the law does not permit the initiation or continuation of proceedings against a dead person

Provision of S. 53 of the Act clearly presupposes the existence and identification of the legal heirs or successors in whose hands the estate of the deceased vests

The statute, therefore, creates a charge upon the estate only, and not a personal liability upon the legal heirs

Consequently, unless and until the successors or legal heirs are duly impleaded and brought on record, there exists no lawful person or entity against whom any proceedings can validly be continued or any liability created

A deceased person ceases to have personality upon death ; hence any show cause notice , adjudication or recovery proceedings initiated or continued in the name of a deceased taxpayer are null and void ab initio

The expression “the hands of his successors ” further manifests the same / intention

It was the bounden duty of the Department to bring on record the legal heirs of the deceased, as no proceedings of any nature, including the issuance of a show cause notice or passing of an adjudication order, can lawfully be initiated or continued against a dead person

In the present case , record even revealed that a lease agreement was executed subsequent to the demise of the taxpayer(sole proprietor) and the appellant leased out its weaving factory to another registered person (a Textile Corporation) duly incorporated in the electricity bills for tax periods in question, along with the complete installations for a period of one year, and consequently closed its own business activities (in July-2024), and no taxable supplies were made thereafter

Since no business or taxable activity was carried out by the appellant himself during the tax periods from September-2024 to December-2024 , therefore, he was not legally obligated to file sales tax returns for the said tax periods

Consequently, there was neither any evasion of tax nor any loss caused to the national exchequer, and no tax was payable under the law

At best, the Department could have lawfully proceeded to impose a penalty for the non-filing of nil sales tax returns, which constitutes a mere procedural formality, but could not have gone beyond that

In the given facts and circumstances, the question of making any assessment of minimum tax liability does not arise in the present case

Therefore Appellate Tribunal Inland Revenue set-aside the impugned show cause notice and the consequent orders passed by both the authorities below for suffering from factual and legal infirmities and same were not sustainable in the eyes of law

Appeal was allowed, in circumstances.

Appellant /a non-resident individual (residing abroad at relevant time ) authorized a Charted Accountants Firm as his Authorized Representative (AR) to file the appeal on his behalf transmitting electronically scanned signature for the purpose of preparing Power of Attorney ('POA') and allied documents

Validity

Contents of the POA revealed that it (POA) though authorized the Charted Accountants firm to represent the appellant, engage in proceedings, present arguments, and collect the appellate order, but it (POA) did not expressly empower the firm to file an appeal

Filing an appeal is a distinct legal act and must be explicitly authorized in the POA

Doctrine of Substantial Compliance in procedural matters left no alternative for Appellate Tribunal Inland Revenue but to dismiss the appeal on the grounds that it was not filed by the appellant or an Authorized Representative

Application for condonation of delay was dismissed

Appeal was dismissed, in circumstances.

Appellant/a non-resident individual (residing abroad at relevant time) authorized a Charted Accountants Firm as his Authorized Representative (AR) to file the appeal on his behalf transmitting electronically scanned signature for the purpose of preparing Power of Attorney ('POA') and allied documents

Validity

In the present case, the appeal was not filed within the prescribed time

Though the appellant submitted an application for condonation of delay along with an affidavit, however, both the application and the affidavit bore scanned signatures of the appellant

Additionally, contents of the Power of Attorney (POA), annexed with the appeal, were also signed using scanned signature, and did not explicitly authorize Charted Accountants Firm to file the appeal on behalf of the appellant

Doctrine of Substantial Compliance in procedural matters left no alternative for Appellate Tribunal Inland Revenue but to dismiss the appeal on the grounds that it was not filed by the appellant or an Authorized Representative

Application for condonation of delay was dismissed

Appeal was dismissed, in circumstances.

Appellant /a non-resident individual (residing abroad at relevant time) authorized a Charted Accountants Firm as his Authorized Representative (AR) to file the appeal on his behalf transmitting electronically scanned signature for the purpose of preparing Power of Attorney ('POA') and allied documents

Validity

Notably, despite the fact that the Appellant, being a non-resident, was currently out of the country, the POA was signed by two witnesses and was attested/authenticated by a Notary Public (at Islamabad); which raised concerns regarding procedural propriety and adherence to legal standards

Doctrine of Substantial Compliance in procedural matters left no alternative for Appellate Tribunal Inland Revenue but to dismiss the appeal on the grounds that it was not filed by the appellant or an Authorized Representative

Application for condonation of delay dismissed

Appeal was dismissed, in circumstances.

There is no cavil to the proposition that “mens rea” is the basic ingredient to impose any of the penalties prescribed under the law and it refers to the element of deliberate negligence or willful default with something more than mere non-compliance of statutory provisions

Words “said officer shall take into consideration the representation made by such person” used in subsection (2) of S. 23 of the Sindh Sales Tax on Services Act, 2011 ('the Act 2011') require the assessing officer to consider in detail the plea taken up by the taxpayer in response to the show-cause notice so that he may assess the existence or non-existence of mens rea behind non-compliance of subject provision(s) of law, which is the necessary ingredient to determine liability on the taxpayer

To establish mens rea Department must bring on record that non-compliance of provision is based on mala fide intentions and same can statutory only be measured from taxpayer's conduct in response to the show-cause notice

The Act, 2011 was promulgated with the sole purpose of collection of tax on services, therefore; it does not approve straight away fixation of liability like other statutes, such as lodging of FIR, rather it requires, under S. 23 of the Act, 2011, issuance of show-cause notice prior to determination of any liability upon taxpayer

Wisdom behind insertion of such provision is to provide the taxpayer an opportunity to comply with law

In case the taxpayer responds to such show-cause notice positively and shows his good gesture by complying with law, the case must be closed

Liability upon taxpayer should be fixed in case he shows his reluctance and deliberate negligence (mes rea) towards compliance of law

Words “the officer shall mean make an assessment of sales tax actually payable” require the Assessing Officer to assess the amount of tax due before determining the liability

In case there remains no tax payable at the time of passing the Original Order, the appellant must not be charged with any of the provision of the Act, 2011 rather the show-cause notice would be vacated

In the present case, the entire principal amount had been paid prior to passing the Original Order

Appellant's conduct in response to the show-cause notice seemed to be of compliant nature and apparently there seemed to be no intention on the part of appellant to evade the tax

Arguments advanced by the Department did not sound convincing that words "shall" and "whether willfully or otherwise" used in S. 44 of the Act, 2011 make the taxpayer liable to pay default surcharge in case he does not pay tax due or any part thereof in time or in the prescribed manner and seemingly the Department had gone through the relevant section in isolation instead of in continuation

Provision of S. 44 of the Act, 2011 shows that in case a tax payer does not pay the tax due or any part thereof in time or in the prescribed manner, whether willfully or otherwise, he shall pay default surcharge in addition to the tax due and any penalty under S. 43 of the Act, 2011 at the rate mentioned in its clause (a) or (b)

Words "in addition to the tax due and any penalty under S. 43, pay default surcharge at the rate mentioned below" used in S. 44 of the Act, 2011 categorically denote that liability of default surcharge will be coupled with (in addition to) the liability of tax due and any penalty imposed under S. 43 of the Act, 2011

It was a matter of record that at the time of passing "the Original Order" the assessing officer found no liability of tax due

Furthermore, the Commissioner Appeals found non-existence of mens rea behind late payment of tax, therefore, he preferred to waive penalty imposed in terms of Serial No.3 of the Table under S. 43 of the Act, 2011

At the time of passing "the Original Order" there existed no liability of tax due, therefore, there remained no justification in imposing the penalty of "default surcharge"

Thus, the imposition of default surcharge under S. 44 of the Act, 2011 was unjustified ; hence, the relevant point was answered in negative

Appellate Tribunal Sindh Revenue Board set-aside imposition of default surcharge vide "the Original Order" and its confirmation vide "the first Appellate Order"

Appeal, filed by taxpayer, was allowed accordingly.

Appellate Tribunal Inland Revenue ('Tribunal') concluded in favour of taxpayer that the electronic mode of service provided in S. 218(1)(d) of the Income Tax Ordinance, 2001 ('the Ordinance, 2001') was a secondary method of service and that the limitation period started only upon receiving an attested copy

Whether the service of assessment order upon the assessee in any of the modes under S. 218 of the Ordinance, 2001 could be treated as a proper service upon the assessee in respect of the period limitation for the purpose of appeal?

Held, that service on the individual electronically in the prescribed manner as in clause (d) in Ss. 218[1] & 218[2] was introduced through Finance Act, 2018

Notably, after sub-clause (c) in both [subsection (1) as well as subsection (2)] punctuation (;) and (or) were also inserted

For construction of S. 218 of the Ordinance, 2001, principles of statutory interpretation and effect of punctuation in the Statutes denotes that the word "or" was a disjunctive and it gaves an alternative impression, indicating independent alternatives that were sufficient in themselves, reflecting the legislative intent to treat each mode of service as valid and effective ; which was further reinforced by the punctuation used in S. 218, where semi-colons separate clauses (a), (b), and (c), while clause (d) was preceded by both a semi-colon and the word "or"

Thus, while drawing the distinction between these clauses, the Tribunal wrongly concluded that the electronic mode of service provided in S. 218(1)(d) was a secondary method of service

Punctuation may lend support to statutory interpretation but cannot override the clear legislative intent or the plain meaning of the text

Provisions of S. 218 of Ordinance, 2001 establish that service of orders/judgments via any mode, when completed in the prescribed manner, is sufficient service upon the taxpayer of the Ordinance 2001

Rule 74 of the Rules, 2002 complements this by deeming electronic service valid if confirmation receipt is obtained

The Tribunal recognized electronic service as sufficient, yet its stance (that the limitation period started only upon receiving an attested copy) created inconsistency

Such an approach could undermine the legislative intent of modernizing and streamlining service methods

The interpretation of the Tribunal failed to align with the legislative framework, as it overlooked the intent behind recognizing electronic service as an independent and efficient method, thereby causing unnecessary procedural delays contrary to the law's purpose

In the present case, the Appellate Tribunal Inland Revenue ('Tribunal') had erred in condoning the delay for filing the appeal, as it failed to adequately apply the statutory framework that clearly defined the commencement of the limitation period

By not strictly adhering to the service requirements stipulated under S. 218 of Ordinance, 2001, the Tribunal's decision undermined the legislative intent of ensuring timely appeals and introduced inconsistency in the procedural timeline, leading to unnecessary procedural leniency that was not supported by the provisions of the Ordinance, 2001

Thus, the proposed question was answered in affirmative ; consequently, High Court set-aside the impugned order passed by the Tribunal

Tax Reference Application, filed by Department , was allowed.

The language of the provisions of S.127(5) of Income Tax Ordinance, 2001 ('the Ordinance, 2001') explicitly defines the limitation period for filing an appeal, leaving no room for alternative interpretation due to the clarity of the statutory wording

Moreover, the use of the word "shall" following "appeal" conveys a mandatory obligation, requiring the aggrieved party to file the appeal within the prescribed statutory timeframe

Consequently, the appellant bears the burden of demonstrating valid and sufficient reasons to justify any request for condonation of delay, in line with established principles of statutory interpretation and procedural fairness

Therefore, the limitation period for filing an appeal against assessment order under S. 127(5) of the Ordinance 2001 begins from the date the assessee receives the assessment order through any of the prescribed modes of service

Said interpretation stems from the explicit language of S. 127(5)(a) of the Ordinance 2001, which ties the commencement of the limitation period to the "date of service of the notice of demand " for cases involving assessments or penalties, and in other cases, to the date on which the order to be appealed against is served

The repeated reference to "service" in both instances underscores that the limitation period hinges on the proper and timely service of the relevant documents, as governed by S. 218 of the Ordinance, 2001 , which details the modes and manner of service

In the present case, the Appellate Tribunal Inland Revenue ('Tribunal') had erred in condoning the delay for filing the appeal, as it failed to adequately apply the statutory framework that clearly defines the commencement of the limitation period

By not strictly adhering to the service requirements stipulated under S. 218 of Ordinance, 2001, the Tribunal's decision undermined the legislative intent of ensuring timely appeals and introduced inconsistency in the procedural timeline, leading to unnecessary procedural leniency that was not supported by the provisions of the Ordinance, 2001

Thus, the proposed question was answered in affirmative ; consequently , High Court set-aside the impugned order passed by the Tribunal

Tax Reference Application , filed by Department, was allowed.

Petitioner/plaintiff challenged the legality of judgment passed by the Appellate/ District Court whereby appeal filed by one of the eight defendants (respondent) was accepted and the matter was remanded to the Trial Court giving permission to the respondent to cross-examine upon the seven witnesses produced by her (petitioner)

Validity

Record revealed that after framing of the issues the statement of three witnesses of the plaintiff were recorded, thereafter, right of one defendant to cross-examine the said witnesses was closed whereas ex-parte proceedings were initiated against five defendants, all the said six defendants were other than the respondent

On next date of hearing, in the presence of the counsel for petitioner/plaintiff, the respondent and another defendant, the case was adjourned for recording of remaining evidence of the plaintiff

On the date fixed, counsel of respondent /defendant was present but the case was adjourned; on the next date, in presence of the counsel for respondent /defendant the statements of three witnesses of the petitioner / plaintiff were recorded but no opportunity was given to respondent for cross- examination upon the witnesses of the plaintiff whereas neither any ex-parte order was passed against it nor penal provision under O.XVII, R.3 of C.P.C was invoked against respondent /defendant and case was adjourned

Trial court had not passed any order for closing the right of respondent for cross-examination, whereas the Trial Court was under obligation to require the adverse party to cross-examine the witness which shows existence of a serious flaw in trial proceeding as the right of cross-examination on the witnesses of adverse party is a kind of fundamental right which can not be frustrated on the basis of mere technicalities rather fair opportunity should have been afforded but this fundamental right had been circumvented without any justiciable reason which renders the order of the Trial Court as illegal and erroneous in nature, which has rightly be reversed by the Appellate / District Court

No illegality, material irregularity or jurisdictional defect had been identified /noticed in the impugned remanding order passed by the Appellate / District Court

Revision was dismissed, in circumstances.

Co-sharers (appellants) filed present appeal before the Member, Board of Revenue against the remand order passed by Additional Commissioner (Revenue)

Argument of the appellants was that Member Board of Revenue remanded the case to Revenue Officer with the direction to decide the matter afresh but the respondents did not appear before the Revenue Officer intentionally in post-remand proceedings as they were in possession of excess land than their entitlement

Stance taken by the respondents was that they were not in knowledge of the remanded partition proceedings as they were never summoned and heard before approving the Wandajaat

Validity

Record transpired that the partition proceedings, in the present case, started almost 23 years ago (i.e. in the year 2002) and the Revenue Officer approved the Wandajaat the next year

The litigation against the said partition order went upto the level of Board of Revenue, however, in the year 2015, the case was remanded to the Revenue Officer directing the parties to appear before the Revenue Officer specifying a certain date (i.e. on 30.12.2015)

Despite the said specific direction of the Member, Board of Revenue, Punjab the respondents did not appear before the Revenue Officer

Thus, respondents' stance that they were not in knowledge of the partition proceedings was not understandable

Moreover, the respondents preferred appeal against the post-remanded partition order after a delay of 107 days, for which no sufficient justification or reason had been given by them

Pertinently, the respondents could not pin-point any rights which had been affected by the impugned partition proceedings

Respondents could not cite any loss that may have accrued subsequent to, or in consequence of, the impugned partition proceedings

Merely claiming that the respondents did not participate in the partition proceedings was not a valid reason to remand the case to the Revenue Officer for decision afresh

In order to remand a case to lower courts infringement of any valid legal rights must be cited, which the respondents could not do

Thus, the Additional Deputy Commissioner (Revenue) rightly dismissed the appeal

Additional Commissioner (Revenue), remanded the case to Revenue Officer without any cogent reason

Member, Board of Revenue set-aside the impugned order passed by the Additional Commissioner (Revenue), and order passed by the Additional Deputy Commissioner (Revenue), along with partition order were upheld

Appeal, having legal force and merit, was accepted accordingly.

As per Rule 19.25 of the Police Rules, 1934, officers have to undergo various courses (A, B, C and D) to qualify for promotion

Training of upper subordinates, being Inspector, Sub-Inspector (SI) and Assistant Sub-Inspector (ASI), is a mandatory requirement of law for the purposes of promotion in terms of Rule 19.25 of the Rules

Focus of Rule 19.25 of the Rules is capacity building in order to develop knowledge, skill and the necessary traits required for the post and rank

Being a disciplined force, the tendency to focus on promotions of juniors is totally irrelevant within the police department, where the primary focus and emphasis for promotion purposes should be training and capacity building

Hence, for all intents and purposes, promotion from the date of the promotion of juniors is not possible for upper subordinates in terms of the clear provisions of Rule 19.25

An officer must complete the required course(s) before seeking promotion

Furthermore, ante-dated promotion upsets the training requirement

Institution of police cannot thrive if it is consistently consumed in litigation for promotion and other service-related benefits

Hence, it is imperative that officers should focus on building institutional credibility and trust in the eyes of the public and develop an effective system of governance on service-related matters so as to end the trend of litigation on such matters.

Since the appellant-company negotiated and set the rent, the possibility for manipulation of the potential value of the demised property would be minimal

Furthermore, the time period that had lapsed between the issuance of Section 4 notification and the passing of the Award in 'respect of the acquired-property that was already leased by the appellant-company does not render the amount of compensation adjudged to be unreasonable

Compensation for the property being acquired must not only be based on its market value but also the potential value thereof

In the peculiar circumstances of the present case, the compensation adjudged appears to have been reasonably determined

In the present case, the notification issued under Section 4 of the Act, declared the acquisition to be made for a 'public purpose', and thus, the compensation awarded to the landowners requires correction

Accordingly, the compulsory charges payable by the appellant-company to the respondents/landowners is reduced from 25% to 15% of the market value of the acquired-property

Moreover section 28A of the Land Acquisition Act, 1894, has been omitted through Section 4 of the Land Acquisition (Sindh Amendment) Act, 2009 (Act XVI of 2010)

Thus, it would be safe to state that in view of the present legislative dispensation, the appellant-company cannot be burdened with the payment of additional compensation to the landowners under Section 28-A of the Act

Finally, it was admitted that prior to the commencement of the acquisition proceedings for the acquired-property in 1985, the same was leased by the appellant-company

Appellant-company kept on paying the lease-money to landowners till 1995

Appellant-company in these circumstances cannot simultaneously be taxed to pay the lease amount and also the interest on the compensation for the acquired property since 1985

Therefore, in all fairness, the private-respondents/landowners are entitled to interest on the compensation amount only after they ceased to receive the lease money for the acquired-property

Accordingly, the appellant-company is only liable to pay interest on the compensation awarded to the private respondents/landowners from the time they stopped paying rent until the full compensation for the acquired property was paid

Appeals were allowed accordingly.

Petitioners had advertised in the year 2018 for the selection of two computer teachers in basic pay scale of 12 and had prescribed the minimum qualification as Intermediate with one year diploma in computer sciences

Respondent held a B.Sc. and M.Sc. degree in computer science and came on the top of the merit list but still was not appointed for the reason that he was over-qualified

Held, that it appeared that those in charge of educating the children of the province were bereft of common sense by disqualifying a person who was more qualified and thus better placed to impart computer science education and favoured one less qualified

Not only the respondent was made to suffer but the children, who would have benefited from his knowledge, were condemned

Leave to appeal was declined and the petition was dismissed with costs incurred by the respondent, that is two hundred thousand rupees to be paid to the respondent

Supreme Court directed that judgment regarding appointment of respondent will also be implemented, and if it is not complied with, the Provincial Secretary, Elementary and Secondary Education, may be proceeded against for contempt of Court, and that copy of present order be sent to the petitioners and the respondents, to the Advocate General, Provincial Chief Secretary and Secretary Law who will undoubtedly ensure that the government does not generate such unnecessary litigation and then, for no valid legal reason, challenge the decisions of the High Court which also drains the resources of the government, paid for by the taxpayers.

In the present case, the plaintiffs filed a suit for declaration and injunction, and then applied for a summons to be issued to the first defendant (respondent), as their witness

Trial Judge declined the application, and his order was first upheld by the Appellate Court and then by the Revision Court

Validity

In the facts of the present case, if the first defendant fails to appear in the witness box, allowing the plaintiffs to compel her presence by the issue of a witness summons, would be an objectionable practice

Such a practice places the examination and cross-examination of a witness in the wrong hands, hinders fair trial, and obstructs justice

At the same time, it is also a bad practice for parties to refrain from entering the witness box when they are in a position to give personal evidence

Therefore, the first defendant in the suit, giving rise to the present petition, is expected to provide personal testimony in support of her case

If she does not appear without sufficient cause, it will amount to suppression or withholding of evidence, and the Court will be entitled to draw an inference against her

No infirmity was found in the orders of the Courts below, thus, the same were upheld by the Supreme Court

Petition was dismissed, and leave was accordingly refused.

By way of a Notification, the Provincial Government changed the name of village Tambah Maha to Maira Swati Abad and in pursuance of the said Notification name of the Government Middle School Tambah was also changed to Government Middle School Maira Swati Abad by the EDO (E&S), Mansehra

Said notification and subsequent order were declared null and void by the High Court vide the impugned judgment

Validity

Khyber Pakhtunkhwa Local Councils Naming and Renaming of Public Places Rules, 1994 ('the Rules') relate to assigning a name to a road, street, square, park or any other public place or renaming any such road, street, square, park or any other public place

Nothing has been said in these Rules about changing the name of a village, however, the Supreme Court directed that the such procedure, as laid-down for assigning or renaming of a road, street, square, park or any other public place shall also be adopted by the Government before issuing Notification under Para 7.69 of the Land Records Manual, in the matter of changing the name of a village as the official name of a village is used in land revenue record, postal zone and other official and private documents; and that for such purpose objections/ suggestions of the inhabitants of village need to be invited through publication in newspapers

In the instant case neither any publication in the newspapers inviting objections/suggestions from inhabitants was made nor local council was involved in the process, which made the whole process discriminatory and downright illegal

Population of the village Tamba Maha was more than thirty thousand, and obviously it was a matter of great concern for the inhabitants if name of their village was changed without seeking their opinions/suggestions, hence, rights of the public at large had been violated by not making it public and without inviting objections and suggestions from the inhabitants of the village before issuing the Notification under Para 7.69 of the Land Records Manual

High Court has rightly declared the said Notification and subsequent Order to be null and void and also rightly observed that the authorities may do the change after inviting objections from the public at large

Appeal was dismissed.

As per Rule 19.25 of the Police Rules, 1934, officers have to undergo various courses (A, B, C and D) to qualify for promotion

Training of upper subordinates, being Inspector, Sub-Inspector (SI) and Assistant Sub-Inspector (ASI), is a mandatory requirement of law for the purposes of promotion in terms of Rule 19.25 of the Rules

Focus of Rule 19.25 of the Rules is capacity building in order to develop knowledge, skill and the necessary traits required for the post and rank

Being a disciplined force, the tendency to focus on promotions of juniors is totally irrelevant within the police department, where the primary focus and emphasis for promotion purposes should be training and capacity building

Hence, for all intents and purposes, promotion from the date of the promotion of juniors is not possible for upper subordinates in terms of the clear provisions of Rule 19.25

An officer must complete the required course(s) before seeking promotion

Furthermore, ante-dated promotion upsets the training requirement

Institution of police cannot thrive if it is consistently consumed in litigation for promotion and other service-related benefits

Hence, it is imperative that officers should focus on building institutional credibility and trust in the eyes of the public and develop an effective system of governance on service-related matters so as to end the trend of litigation on such matters.

Petitioners had advertised in the year 2018 for the selection of two computer teachers in basic pay scale of 12 and had prescribed the minimum qualification as Intermediate with one year diploma in computer sciences

Respondent held a B.Sc. and M.Sc. degree in computer science and came on the top of the merit list but still was not appointed for the reason that he was over-qualified

Held, that it appeared that those in charge of educating the children of the province were bereft of common sense by disqualifying a person who was more qualified and thus better placed to impart computer science education and favoured one less qualified

Not only the respondent was made to suffer but the children, who would have benefited from his knowledge, were condemned

Leave to appeal was declined and the petition was dismissed with costs incurred by the respondent, that is two hundred thousand rupees to be paid to the respondent

Supreme Court directed that judgment regarding appointment of respondent will also be implemented, and if it is not complied with, the Provincial Secretary, Elementary and Secondary Education, may be proceeded against for contempt of Court, and that copy of present order be sent to the petitioners and the respondents, to the Advocate General, Provincial Chief Secretary and Secretary Law who will undoubtedly ensure that the government does not generate such unnecessary litigation and then, for no valid legal reason, challenge the decisions of the High Court which also drains the resources of the government, paid for by the taxpayers.

High Court interfering with the delimitation order of the Election Commission of Pakistan about three days before notification of the Election Programme of the General Elections, 2024

Propriety

Principle of proportionality and the concept of the larger good demand that general elections be given primacy, and issues concerning the delimitation of constituencies, while important, should be addressed subsequent to the elections

Such an approach ensures the continuity of democratic governance and upholds the fundamental rights of the electorate, while still acknowledging the need for eventual and necessary adjustments in constituency boundaries.

Civil servant is liable to serve anywhere throughout the province or throughout Pakistan as the case may be, he cannot claim posting of his own choice at a particular post

Expertise of civil servants is spoiled when they are specialists in teaching and are posted against an administrative post

Such deputationists often opt for deputation to other departments once they complete their normal tenure.

Irrefutable evidence was available to establish that the property was situated on both sides of towns, which were commercial and residential in character

Even the concerned Khata had a cluster of densely populated area with multiple Government and private ventures including petrol pump, high school and police station

Property was not more than 1½ kilometers away from that point

Presence of emerging residential colonies was also established

Evidence on record unequivocally demonstrated that the property though was being used for agricultural purposes yet had assumed all the characteristics and features of commercial or residential property

Potential value of the property was much more than being extracted at the time of acquisition on account of its peculiar location in terms of its presence on the road and its closeness to two cities

Mere fact that the appellants had not converted the property from agricultural to commercial status was an irrelevant consideration to determine the potential value of the property

Appellants were not required to do so and had every right to hold and enjoy the property in the manner they so desired

Fact that most of the sale mutations brought on record consisted of small portions of land manifestly demonstrated that land in the area was a precious and scarce commodity being located close to two cities

Therefore, such sale mutations of small portions of land were not completely out of context and could not be ignored altogether when transactions of bigger holdings were not available

Especially, when the property had the potential of conversion into smaller residential or commercial units as was evident from the fact of emerging residential colonies and existence of a host of commercial ventures in close vicinity of the property

Moreover, it was an admitted fact that the property was a sizable chunk and existed as a compact block before acquisition

Property was divided into parts in consequence of acquisition, thereby, adversely affecting its value and impairing its future potential

Nevertheless, such particular negative impact on the property might have been compensated or off-set to some extent on account of overall price escalation due to the project itself but the damage caused to the property through acquisition was vividly evident

In view of the above, the elements of potential value as well as damage to the property by virtue of acquisition were duly proved

Record showed that market value of the property was much higher than awarded in the Award or by the Referee Court

Sale mutations exhibited by the appellants for the years 2013 to 2014 regarding the same Khata ranged from Rs. 16,667/- to Rs. 400,000/- per Marla

Seven mutations of Rs. 66,667/-;25,000/-; 200,000/-; 16,667/-; 75,000/-; 20,000/-; and 66,667/- more or less depicted the normal range of price in fair arm's length transactions between a willing purchaser and a willing seller in the same Khata before the date of the Notification under S.4 of the Act

Conversely, sale mutations exhibited by the National Highway Authorities regarding the same Khata for the years 2013 to 2014 ranged from Rs. 4,286/- to Rs. 5,000/

However, the National Highway Authority could not produce more than three mutations of the concerned Khata and was constrained to exhibit sale mutations fromother Khatas without proof of their relevance

Documentary evidence of the National Highway Authorities was not of any relevance or help to High Court to arrive at the fair market or potential value of the property

Average sale price per Marla of the sale mutations produced by the appellants as well as sale mutation produced by the National Highway Authorities was arrived at Rs. 60,000/- per marla approximately by discarding the rest of the sale mutations as irrelevant for being located in different Khatas without proof of relevance or pertaining to irrelevant period

However, the said price was required to be proportionately discounted in view of price of sale mutations recorded in small portions of land; most of the sale mutations being apparently with respect to residential or commercial properties; wastage of the property when converted into developed land for future use and considering that the property though being located close to two cities yet was not adjacent thereto and at a distance of at least of 1½ K.M from the cities

Balancing the pro and contra evidence of the parties to the lis in the light of factors stipulated in S.23 of the Act and settled principles of compulsory acquisition of land the High Court applied 70% deduction or discounting factor in aggregate to the average sale price determined

Potential value of the property and impact of its division was incorporated in the above formula

Accordingly, the fair market and potential value of the property was settled at Rs. 18,000/- per marla

However, the claim of compensation regarding standing sugarcane crop was dropped for insufficient evidence

Appeal filed by the National Highway Authorities was dismissed, whereas appeal filed by private persons was partially accepted by modifying the fair compensation of the property by enhancing it to Rs. 18,000/- per Marla along with entitlement to additional compensation of 15% per annum of the above fixed compensation and compound interest at 8% per annum from the date of possession of the property till the date of payment of compensation with costs of the appeal

Appeal filed by the land owners was partially allowed.

Perusal of the letter addressed by District and Sessions Judge to the Deputy Director, Anti-Corruption Establishment, revealed that at the time of sending that letter for lodging of the FIR against the accused as well as co-accused, no details of the case properties were provided, as the same were to be provided by Accountant of that Court

Said letter also showed that the Accountant of the District and Sessions Court was to act as complainant

However, a look at the FIR itself revealed that instead of the Accountant of the District and Sessions Court, Circle Officer, ACE, had acted as complainant, who himself recorded the FIR

Complainant to a question in his cross-examination stated that the letter of District and Sessions Judge did not disclose the nature of property and cash so embezzled, but voluntarily stated that such information was provided to him and soon thereafter he proceeded to arrest the accused

As per contents of the FIR, details of the missing case properties were provided to the complainant by the Record Keeper, however, he did not step into the witness-box

Therefore, his statement carried no evidentiary value and could not be relied upon for the purpose of convicting the accused for the said offence

It was not clarified as to why and how Circle Officer, ACE, acted as complainant in the instant case

Circle Officer, ACE, was neither an eye-witness nor an employee of the District and Sessions Court

Depositions of the prosecution witnesses revealed that none of them was present when the alleged embezzlement was committed or the amounts/case properties were allegedly misappropriated by the accused

As such, the evidence which they gave in the Court was neither heard nor seen or perceived by them, therefore, their evidence with regard to the said facts did not fall within the ambit of oral evidence

Appeal against conviction was allowed, in circumstances.

Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, making preparation for dacoity, assembling for purpose of committing dacoity, rioting armed with deadly weapons, unlawful assembly, possessing unlicensed weapon

Appreciation of evidence

Benefit of doubt

Investigation conducted by the complainant police official himself

Propriety

Accused were charged for stopping the police mobile for robbing purpose and made straight firing on police party with intention to commit their qatl-i-amd

Police party also fired upon the culprits in their defence, and one accused was apprehended in injured condition

Admittedly, complainant was heading the police party during the encounter with the accused persons

Besides, it was complainant who lodged the FIR and had figured as complainant of the case

Despite that complainant himself conducted investigation of the entire case

Such conduct on the part of Police Officials was not appreciated being violative of Police Order (22 of 2002) and Police Rules, 1934

In fact, in such an eventuality, the Investigating Officer who himself was the complainant could not be expected to collect and preserve evidence which would go against his case and that such Investigating Officer could not perform duties like an independent and fair Investigating Officer

Circumstances established that the prosecution had failed to prove the charges against the accused beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

History of the petitioner's litigation showed that he selected multiple forums to institute multiple litigations to challenge the action of the management instead of jotting down all the causes of action available to him for suing in one go

Petitioner could unite both the causes of action such as the rejection order of the appeal and the dismissal order from service promptly instead of splitting the claims and opting to challenge them separately in the High Court and Civil Court which created the complication of overlapping the proceedings and also multiplicity of proceedings

Strange methodology was adopted by the petitioner in that the writ petition was filed in the High Court against the rejection of departmental appeal alone, whereas the dismissal order was challenged separately in a declaratory suit which was instituted after filing the writ petition

Ultimate challenge must have been to the dismissal order rather than assailing the rejection order of the appeal

Merely challenging the order of rejection of the appeal could not serve any purpose, unless, the declaratory suit was proceeded by the competent court of law to decide the fate of the petitioner's dismissal from service

Seemingly, the petitioner had already availed the appropriate remedy of filing a suit in the Civil Court for challenging his dismissal order

Order passed by Civil Court demonstrates that the judge recorded the statement of petitioner and Law Officer of employer-bank, who confirmed that an application to the management had been submitted by the petitioner for an amicable settlement on humanitarian and compassionate grounds which would be processed in accordance with law

After recording the statements, the suit was dismissed as withdrawn with the permission to file a fresh suit in case of further grievance

In view of this situation, there was no justification to interfere, in the impugned judgment of High Court

Supreme Court directed that if the management of the employer-bank had not decided the application moved by the petitioner till date, then the petitioner may avail a remedy of filing fresh suit or in the alternate, he was also at liberty to move proper application for resurrection of his suit and if such application was filed in the Trial Court and the suit was resurrected/restored to its original position, then the Civil Court shall decide the suit on merits within three months after providing an ample opportunity of hearing to the parties

Petition for leave to appeal was disposed of accordingly.

Intention of the legislature behind section 23 of the Land Acquisition Act, 1894 is one where a Court, when determining compensation under the said Section, needs to be considerate and sympathetic to those who have been subjected to eminent domain by the government

Section 23 allows the Court to bring landowners, who have been subjected to eminent domain, back to their positions before the eminent domain was exercised

To base compensation on a one-year average of the acquired land would defeat the intent of the legislature behind section 23.

Judgment of Division Bench of High Court altered by a two Member Bench of the Supreme Court without granting leave to appeal

Propriety

In the present case, though the two Member Bench of the Supreme Court (in the judgment under review) was inclined to grant leave to appeal to a limited extent vis-a-vis the rate of mark-up, but it was also true that no leave to appeal was granted against the impugned judgment of the High Court

In the judgment under review on the sole statement of the counsel for the respondent, the alleged excessive rate of markup was simultaneously modified in the judgment without recording any consensual statement of the petitioner's (bank's) counsel

Two Member Bench of the Supreme Court, taking into consideration the assiduousness and exactitudes of Order XI of the Supreme Court Rules, 1980, could grant leave or dismiss the civil petition for leave to appeal, but could not modify, alter or amend the judgment of Division Bench of High Court for which the matter should have been fixed before a three Member Bench of the Supreme Court as per the said Rules

Review petition was allowed and Civil Petition for Leave to Appeal was restored to its original number, with the direction that the same shall be fixed for hearing before a three Member Bench for leave to appeal.

Objection to the constitution of the present Bench could not be brought under consideration for two reasons; one, a Bench, special or regular, is constituted by an administrative order of the Chief Justice, and as such, the present Bench in conformity with the principle settled in Suo Motu Case No.4 of 2021 reported as (PLD 2022 SC 306), has been lawfully constituted to hear the present case

Said judgment is of a Five-Member Bench and thus, takes precedence over all precedents of the Supreme Court regarding the power of the Chief Justice to constitute any kind of Benches

None of the Judges of the present Bench can object to the constitution of the Bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon

Such reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a Judge in their own cause

Said principle confines not merely to the cause where the Judge is an actual party to a case, but also applies to a case in which he has an interest

Additionally, judicial propriety requires that if any Judge of the Bench has any objection, the proper course for him is either to recuse himself from the Bench or to refer the matter to the Chief Justice with the concurrence of other Judges of the Bench, so that the case is assigned to some other Bench

Two, the administrative order of the Chief Justice regarding the constitution of the Bench becomes fait accompli when a Judge in compliance thereof starts hearing the case

Hence, any Member of the present Bench, after having accepted the administrative order of the Chief Justice, is estopped to question the constitution of the Bench on the well-known doctrine of estoppel.

History of the petitioner's litigation showed that he selected multiple forums to institute multiple litigations to challenge the action of the management instead of jotting down all the causes of action available to him for suing in one go

Petitioner could unite both the causes of action such as the rejection order of the appeal and the dismissal order from service promptly instead of splitting the claims and opting to challenge them separately in the High Court and Civil Court which created the complication of overlapping the proceedings and also multiplicity of proceedings

Strange methodology was adopted by the petitioner in that the writ petition was filed in the High Court against the rejection of departmental appeal alone, whereas the dismissal order was challenged separately in a declaratory suit which was instituted after filing the writ petition

Ultimate challenge must have been to the dismissal order rather than assailing the rejection order of the appeal

Merely challenging the order of rejection of the appeal could not serve any purpose, unless, the declaratory suit was proceeded by the competent court of law to decide the fate of the petitioner's dismissal from service

Seemingly, the petitioner had already availed the appropriate remedy of filing a suit in the Civil Court for challenging his dismissal order

Order passed by Civil Court demonstrates that the judge recorded the statement of petitioner and Law Officer of employer-bank, who confirmed that an application to the management had been submitted by the petitioner for an amicable settlement on humanitarian and compassionate grounds which would be processed in accordance with law

After recording the statements, the suit was dismissed as withdrawn with the permission to file a fresh suit in case of further grievance

In view of this situation, there was no justification to interfere, in the impugned judgment of High Court

Supreme Court directed that if the management of the employer-bank had not decided the application moved by the petitioner till date, then the petitioner may avail a remedy of filing fresh suit or in the alternate, he was also at liberty to move proper application for resurrection of his suit and if such application was filed in the Trial Court and the suit was resurrected/restored to its original position, then the Civil Court shall decide the suit on merits within three months after providing an ample opportunity of hearing to the parties

Petition for leave to appeal was disposed of accordingly.

Practice of using honorifics or prefixes such as "honourable/ hon'ble" and "learned" while referring to the High Courts or Supreme Court

Propriety

Supreme Court deprecated such practice and observed that the Constitution does not use any prefix or honorific before the High Courts and the Supreme Court nor uses the terms "August" or "Apex" for the Supreme Court; that use of such honorifics or prefixes was linguistically inappropriate, and that for advocates and judges the preference should be to use the language of the Constitution.

Where post-mortem report and statement of doctor recorded in the trial of co-accused was used in the trial of accused without the same being exhibited, the conviction of accused could not be based on such evidence.

Two days after of the occurrence, the accused had made a confessional statement before the Judicial Magistrate in which he confessed his guilt and stated that because of poverty he had committed the crime

Printed proforma was only a memorandum of enquiry through which some basic questions were asked from the accused

Confessional statement of the accused was separately recorded and not on a printed proforma

Certificate issued by the Magistrate in such regard clearly showed that although the accused gave the statement in Pashto language but the same was translated and read over to him

Accused was also given 30 minutes time to think over before recording his confessional statement

Judicial Magistrate who had recorded the statement of the accused had also appeared before the Trial Court as a witness and had duly testified the same; he was cross-examined at length but nothing favourable to the accused could be brought on record

Petition for leave to appeal was dismissed, leave was refused and conviction and sentence recorded against the accused was maintained.

Court ordering winding up of company in haste by ignoring its revival business plan and the fact that it had become operational and profitable

Propriety

Petition for winding up the petitioner-company was filed by the Additional Registrar, Securities and Exchange Commission of Pakistan (SECP)

Court ordered compulsory winding up of the company on the ground that the business operations of the company had been shut down since November, 2013, which fell under section 301(m) of the Companies Act, 2017 ('the Act')

Held, that admittedly the company shut down its business in 2013 and despite all efforts the business remained closed till the year 2021

Company executed a business plan whereby they leased the factory for 3 years in order to generate funds, which was then to be reinvested in the company in order to make the factory functional

Recent financial reports tendered by the company showed that it had generated business and was making profit

Therefore, for all intent and purposes, the company had revived its business in the year 2021

Such revival took place between the time when the winding up petition was filed in 2019 and the final winding up order was passed by the Court in 2022

Fact that the SECP opted to ignore the revival plan reflected on their unnecessary focus on winding up the company rather than working on the revival of the company's business

In the present case, the SECP focused more on the fact that the business operations were shut down in November, 2013 notwithstanding the fact that they waited more than six years before filing the winding up petition and it took two years with just a few hearings for the order of winding up to be passed

Court acted in haste not only in passing an order for winding up but also ignored the contents of the (revival) business plan which indicated that the company had become operational and had made some profits as per its annual audit report of June, 2021

Over 350 persons were employed with the petitioner-company who would lose their jobs on the winding up of the company

All such facts were relevant to the winding up petition and in the very least, the High Court should have satisfied itself that the business remained closed even in 2022 when the order was passed

Petition for leave to appeal was converted into appeal and allowed, and impugned order of winding up passed by the High Court was set aside.

Supreme Court deciding petitions for leave to appeal filed against short orders of the High Court, in circumstances where High Court had not yet given the detailed reasons for its short orders

Propriety

In the present matter the High Court had not yet given the detailed reasons in support of the impugned short orders

Although the Supreme Court ordinarily waits for the detailed reasons before deciding the appeals or the petitions for leave to appeals filed against the short orders passed by the High Courts, but the peculiar facts and circumstances of a case, as those of the present case, may justify departure from this rule of practice and propriety, which is neither a rule of law nor is an absolute one and, like most of the rules, admits exception(s)

Present case involves a bail matter, which is usually considered as an urgent one; the arguments advanced by counsel for the parties mainly relates to the scope and applicability of certain legal provisions, and not to deep appraisal of the disputed facts and the evidence thereon; and the Supreme Court having heard the arguments of counsel for the parties in detail and perusing the material available on record with their able assistance, had reached a conclusion which is no different from the one arrived at by the High Court in its short orders

In such circumstances, it was not necessary to wait for the detailed reasons to be given by the High Court in support of the impugned short orders before pronouncing the present decision

Petitions for leave to appeal were dismissed and leave was refused.

Judicial strictures recorded by the High Court/Appellate Court against a judge of district/subordinate judiciary relating to his or her efficiency or conduct

Propriety

Public reprimand of a judge of the lower court regarding his judicial conduct by an appellate court while sitting in judgment over his or her judicial decision, either by recording a stricture or a censorious remark in its appellate judgment or by summoning the judge and reproaching him orally in open court, did not behove the judiciary of a constitutional democracy which boasted of the independence of judiciary as its salient pillar

Any such public condemnation of a judge lowered the public trust in the judicial institution, besides the harmful effect it had on the morale and confidence of the judge concerned as well as of his colleagues

While examining the decision of a court below, the higher court was to assess the reasoning and the legality of the decision challenged before it and not the ability or conduct of the author judge

Latter was the function of the disciplinary authority

Higher court, if so decided, could refer the matter to the disciplinary authority, in the manner elucidated in the judgment reported as Nusrat Yasmin v. Registrar, PHC (PLD 2019 SC 719), only on the administrative side.

Service Tribunal converting penalty for dismissal from service into stoppage of increment for one year without cumulative effect

Propriety

Respondent-accused (postal clerk) was granted personal hearing

Sufficient material was available on the record which established that the respondent was granted various opportunities to defend himself

If in the opinion of the respondent his personal hearing was "meaningless", it could not be held that a hearing was not granted and the rule of audi alteram partem was violated

If the hearing was not up to the satisfaction of the respondent or he did not get the relief that he was expecting, the appellant-department could not be held to have condemned him unheard

Respondent was proceeded against under the law

Nowhere had the respondent during the pendency of the proceedings against him stated that they were biased or were being conducted improperly; he participated in the proceedings and was able to give his defence, which was left to the appellant-department to accept or not accept

Not only a regular inquiry but a preliminary inquiry was also held against the respondent

Admittedly appellant-department suffered a financial loss of Rs. 11,09,500, which could have been prevented but for the alleged loss of or inability of the respondent to account for the Postal Payment Order (PPO) Paid Vouchers

Postal Payment Orders (PPOs) were documents that were of fundamental importance and needed to be proved, or if they had been lost, independent evidence should have been produced to show that the payments were made against surrendered PPOs which had been cancelled, retained and relevant particulars thereof had been entered in the relevant records

Respondent was also required to present the vouchers against which PPO payments were made to authenticate such payments

No such evidence/material/documents were placed on record

Appellant-department gave several opportunities to the respondent to prove his innocence, but he failed to do the same

Respondent in return deposited an amount of Rs. 40,000, which, amounted to an admission on his part of the misappropriation

When the Service Tribunal, on one hand, held that the respondent was indeed responsible for the loss caused to the appellant-department, it could not assume the role of the competent authority and hold that embezzlement or misappropriation was not proved

Appeal was allowed, impugned judgment of Service Tribunal was set-aside and as a consequence departmental penalty of dismissal from service was restored.

Held, that fard malkiat was found to be forged and fabricated during the course of an inquiry conducted by EDO(R) on the application of the appellant

Apart from that as the matter was of criminal nature, the same could not be closed down (by the High Court)with a stroke of pen on the ground that civil litigation was pending adjudication between the parties coupled with the finding in a police investigation

Crime report was lodged on the application of the appellant when the document in question was found forged and the same was based upon legal foundation

Judgment passed by the Single Bench of the High Court quashing the FIR in question was not sustainable, hence it was set aside

Consequently the trial court was directed to proceed with the matter and decide the same within a period of three months

Appeal was allowed accordingly.

Prima facie, if an offence had been committed, ordinary course of trial before the (Trial) Court should not be allowed to be defeated by resorting to (quashing of FIR in) constitutional jurisdiction of High Court.

Community of intention was a valid concept to entail corporeal consequences, if in the circumstances of a particular case, participation of an offender was reasonably established through credible evidence.

Respondent-employee had confessed/ admitted the commission of offence of misappropriation, misconduct and breach of trust which attracted the major penalty of dismissal from service which was rightly awarded by the department considering that the respondent being in a position of trust had blatantly, repeatedly and intentionally committed breach of trust and misappropriated public funds that had been entrusted to him

However, having not found any erroror defect in the proceedings conducted by the department including the inquiry as well as the admission/confession of the respondent and having concluded that the charge of misappropriation stood established, the Service Tribunal opted to interfere with the penalty by taking a lenient view and converting the same into compulsory retirement

In doing so, the Tribunal lost sight of principles laid down by the Supreme Court in various judgments spelling out the parameters for exercise of jurisdiction under section 5 of the Service Tribunals Act, 1973

Tribunal had not only exceeded its jurisdiction but exercised the same in a manner which was in violation of the settled principles of law on the subject

Further, in converting the major penalty of dismissal from service into compulsory retirement, the Tribunal had failed to assign any cogent, legally sustainable and valid reasons to support its finding

Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed by the departmental authorities was restored.

High Court, under its judicial authority, should avoid passing strictures against a judicial officer of the District Judiciary, and any action if at all warranted must be done in accordance with law, namely by exercising the supervisory control vested in the High Court.

Service Tribunal converting penalty for dismissal from service into stoppage of increment for one year without cumulative effect

Propriety

Respondent-accused (postal clerk) was granted personal hearing

Sufficient material was available on the record which established that the respondent was granted various opportunities to defend himself

If in the opinion of the respondent his personal hearing was "meaningless", it could not be held that a hearing was not granted and the rule of audi alteram partem was violated

If the hearing was not up to the satisfaction of the respondent or he did not get the relief that he was expecting, the appellant-department could not be held to have condemned him unheard

Respondent was proceeded against under the law

Nowhere had the respondent during the pendency of the proceedings against him stated that they were biased or were being conducted improperly; he participated in the proceedings and was able to give his defence, which was left to the appellant-department to accept or not accept

Not only a regular inquiry but a preliminary inquiry was also held against the respondent

Admittedly appellant-department suffered a financial loss of Rs. 11,09,500, which could have been prevented but for the alleged loss of or inability of the respondent to account for the Postal Payment Order (PPO) Paid Vouchers

Postal Payment Orders (PPOs) were documents that were of fundamental importance and needed to be proved, or if they had been lost, independent evidence should have been produced to show that the payments were made against surrendered PPOs which had been cancelled, retained and relevant particulars thereof had been entered in the relevant records

Respondent was also required to present the vouchers against which PPO payments were made to authenticate such payments

No such evidence/material/documents were placed on record

Appellant-department gave several opportunities to the respondent to prove his innocence, but he failed to do the same

Respondent in return deposited an amount of Rs. 40,000, which, amounted to an admission on his part of the misappropriation

When the Service Tribunal, on one hand, held that the respondent was indeed responsible for the loss caused to the appellant-department, it could not assume the role of the competent authority and hold that embezzlement or misappropriation was not proved

Appeal was allowed, impugned judgment of Service Tribunal was set-aside and as a consequence departmental penalty of dismissal from service was restored.

Respondent-employee had confessed/ admitted the commission of offence of misappropriation, misconduct and breach of trust which attracted the major penalty of dismissal from service which was rightly awarded by the department considering that the respondent being in a position of trust had blatantly, repeatedly and intentionally committed breach of trust and misappropriated public funds that had been entrusted to him

However, having not found any error or defect in the proceedings conducted by the department including the inquiry as well as the admission/confession of the respondent and having concluded that the charge of misappropriation stood established, the Service Tribunal opted to interfere with the penalty by taking a lenient view and converting the same into compulsory retirement

In doing so, the Tribunal lost sight of principles laid down by the Supreme Court in various judgments spelling out the parameters for exercise of jurisdiction under S.5 of the Service Tribunals Act, 1973

Tribunal had not only exceeded its jurisdiction but exercised the same in a manner which was in violation of the settled principles of law on the subject

Further, in converting the major penalty of dismissal from service into compulsory retirement, the Tribunal had failed to assign any cogent, legally sustainable and valid reasons to support its finding

Appeal was allowed, impugned judgment of Tribunal was set-aside and penalty of dismissal from service imposed by the departmental authorities was restored.

Constitutional petition before the Supreme Court regarding distribution of development funds to Members of National and Provincial Assemblies by the Prime Minister

Re-constitution of Bench hearing a case by the Chief Justice

Propriety

His Lordship observed that present matter, which was being heard by a 2-member Bench, was fixed by the Chief Justice before a 5-member Bench, which did not include one of the Judges of the 2-Member Bench; that the 2-member Bench acted in the public interest to protect public money and ensure compliance with the Constitution and legal precedent, however, it was not permitted to proceed as the Chief Justice reconstituted the Bench; that Chief Justices may have discretion to constitute Benches but must do so for some reason; that the reconstitution of a Bench already seized with a matter (and in which a date-by-court had been given) must always be for a good, if not compelling, reason; that unstructured and arbitrary use of discretion gave rise to misgivings and undermined the peoples' confidence in the impartiality and integrity of the judicial system; that to arbitrarily reconstitute a bench for no reason when it was hearing a case was inappropriate because it raised unnecessary questions and people started speculating about why there was extraordinary interest in a particular case; that it also demoralized the members of the bench from whom the matter had been taken away.

Appellate court after perusing the evidence and record rightly enhanced the maintenance for wife from Rs.4,000/- to Rs.6,000/- per month till the expiry of Iddat period; enhanced maintenance allowance for both minors from Rs.4,000/- to Rs.7,000/- per month each with 10% annual increase till their legal entitlement; allowed the wife to recover Rs.10,000/- from the husband as (child) delivery expenditures on the ground that she gave birth to one of the minors through a midwife at home hence some expenditures was definitely borne out at the birth of the baby

Fact that the husband had married three times and had other children shall not deprive the respondent-wife and the minors from their rightful claim

Constitutional petition filed by the petitioner-husband was dismissed.

Role of Executing Court was to execute the judgment and decree issued by the Trial Court, as such and in execution proceedings only those questions were considered which pertained to execution of decree

Section 47, C.P.C. provided the scope of jurisdiction of the Executing Court to the extent of determining the questions relating to execution, discharge or satisfaction of the decree between the parties to the suit

Executing Court was not legally permitted to go beyond the judgment and decree, passed by the Trial Court as the conclusion in judgment and decree was the outcome of long drawn process of recording evidence on facts

Executing Court thus, was not authorized to entertain any new question out of the same set of facts and record which was not raised during the course of trial as it would violate the mandate and scope of S.47, C.P.C.

Allegations of fraud and misrepresentation, therefore, were not the questions to be determined by the Executing Court under S.47, C.P.C., at the time of execution proceedings

Questions of fraud and misrepresentation were to be raised and determined through institution of proceedings under S.12(2) of C.P.C., which provision had been specifically provided to challenge the validity and legality of judgment and decree obtained through fraud, misrepresentation or want of jurisdiction.

Held, that there was no reason why huge amounts of money was being spent on Corona virus (COVID-19), for that, Pakistan was not a country which was seriously affected by it

Other serious ailments were also prevailing in the country, from which people were dying daily and those ailments were not being catered for and Corona virus (COVID-19), which apparently was not a pandemic in Pakistan, was swallowing huge sums of money

Supreme Court observed that it was not by any means suggesting that the governments should not attend to Corona virus but that it expected that the governments should not put all its resources for one disease, nor the country should be made altogether dysfunctional, because of a disease, for its consequences would be highly detrimental to the people of the country, and the Federal Government and all Provincial Governments should address themselves on such point

Case adjourned.

Admittedly the investigation officer could not have disregarded the order of a superior officer i.e. the SHO and under such circumstances a show cause notice should not have been issued to the investigation officer, but it could have been issued to the SHO who had assigned him the investigation

Concerned Superintendent of Police stated that he shall withdraw the show cause notice issued to the investigation officer and will ensure that fresh advice was issued to the police stations under his jurisdiction to abide by the 'SOP'

Supreme Court directed the Inspector General of Police (Investigations) to ensure that the 'SOP' was abided by and fresh copies were sent to all the police stations in the province together with its Urdu translation so that all concerned were aware of the SOP and abided by it.

No legal prohibition exists under the law for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an investigating officer as long as it does not in any way prejudice the accused person.

Verbal consultation on telephone by the President with Chief Justice of High Court (AJ&K) was not the proper procedure to be followed

Instead of telephonic calls, the President had a better alternate option of consultations with Chief Justice High Court (AJ&K) by sending a summary in black and white by elaborating merits and demerits (of nominees) and after obtaining opinion of the Chief Justice of High Court, the President was supposed to forward the panel to the Chairman AJ&K Council for seeking advice

High Court (AJ&K) directed that in future consultation in writing with the Chief Justice of Supreme Court (AJ&K) and Chief Justice of the High Court (AJ&K) shall be followed.

Character of judicial determination by the High Court did not allow the court to go beyond and assess, evaluate and appraise the competence, diligence, conduct, integrity or temperament of a judge of the District Judiciary, other than judicial bias or malice if it was borne out from the record of the case and was essential for the determination of the lis

Constitutional domain of the High Court included exercising supervisory control over the District judiciary through administrative disciplinary mechanisms

High Court was not to pass strictures in a judgment against a judge of the District Judiciary or summon a judge in judicial proceedings, relating to his or her judgment, for public reprimand in open court

Course open to the High Court was on the administrative side and the judge(s) of the High Court hearing the case, could apprise the Chief Justice of the Court through a confidential administrative note highlighting the grave illegalities, irregularities and improprieties noticed, leaving it to the Chief Justice or the Administrative Committee of the High Court, as the case may be, to take an appropriate disciplinary action against the judge of the District judiciary Error, if any, in the legal reasoning, application of law or appraisal of evidence by the courts below, was rectified by the High Court, in accordance with the law, which may include the ground of bias or malice. Stricture recorded in a judgment, on the other hand, was a severe and a sharp criticism or a censorious remark and was akin to a piece of censure and passed for a critical remark regarding the conduct, integrity, diligence, behaviour, temperament, and competence of a judge. Stricture became accessible and remained in the public domain (as part of the judgment) for posterity. Subsequent exoneration of the judge in departmental disciplinary proceedings could not undo the damage

Charge was framed against the accused and he pleaded guilty only to the extent of abduction of deceased but not his murder and claimed trial

Statements of eleven prosecution witnesses were recorded and after that the accused was examined under S. 342, Cr.P.C.

Accused even produced defence evidence and ultimately he was convicted and sentenced by the Trial Court

Since the Trial Court convicted and sentenced the accused after a full-fledged trial, the impugned order of High Court remanding the case to the Trial Court for de novo trial was not sustainable in the eyes of law

Counsel for accused was not able to point out any procedural lacuna in the judgment of the Trial Court under the relevant provisions of the Code of Criminal Procedure necessitating remand of case for de novo trial

Impugned order of the High Court was set-aside in circumstances

Supreme Court directed that criminal appeal filed by the accused before the High Court would be deemed to be pending and the same shall be decided after re-appraisal of entire evidence available on record.