Condemned unheard

Petitioners / companies were awarded contract by respondent / Pakistan Tobacco Board (PTB) for collection of Federal Tobacco Cess (FTC) on surplus tobacco stock etc.

Dispute between the parties arose with regard to charging for transportation of tobacco over and above the allotted quota

On direction of Court arbitration proceedings were initiated and award given by arbitrator was made rule of the Court

Validity

Trial Court directed impleading petitioners as necessary party to arbitration application

When petitioners were necessary parties to such application, they were also necessary party to arbitration proceedings and without impleading them no effective award, to the extent of liability of petitioners, could be announced

Such award could not be made rule of Court for the purpose of execution against the interest of petitioners

Necessary questions pertaining to quota of tobacco and its transportation were not answered

High Court set aside the award to the extent of findings of such issues and judgements and decrees were set aside to such extent as petitioners were necessary party to arbitration proceeding

High Court remanded the matter to Trial Court for settlement of additional issues where petitionerswere to be made party to the application submitted by respondent / Pakistan Tobacco Board whereafter petitioners / companies would file their reply

Revision was disposed of accordingly.

Matter between the parties was with regard to a piece of land which had been decided by Council of Elders (Jirga) in favour of respondent

Petitioner/ objector assailed execution proceeding filed by respondent on the plea that it was barred by time

Executing Court dismissed the objection filed by respondent/objector

Validity

Provision of Limitation Act, 1908, has its effect from the date of promulgation of 25thConstitutional Amendment i.e. 31-5-2018

Execution petition was filed on 07-10-2020 by respondent, which was well within three (03) years of the date of merger, as provided in First Schedule, Art. 181 of Limitation Act, 1908

Objection petition could be decided without affording petitioner/ objector further opportunity of recording evidence, if material on record was sufficient for decision of the question raised in objection petition

Executing Court called Jirga members and appointed them as local commission and recorded their statements whereupon petitioner/objector had been allowed liberal opportunity of cross examination

Petitioner/objector during proceedings before Executing Court never made a request to allow him for further evidence

Petitioner/objector could not substantiate with the help of any document that such request had ever been made before Executing Court

High Court in exercise of revisional jurisdiction declined to interfere in the order passed by Executing Court on the ground that petitioner/objector had not been afforded opportunity of recording evidence in objection petition

Petitioner/objector failed to point out any illegality or material irregularity in the order passed by Executing Court

Revision was dismissed, in circumstances.

Lease in question was in favour of respondents which was cancelled under R. 90 of Balochistan Mineral Rules, 2002 by the authorities and was allotted to petitioners

Provincial Government set aside the lease cancelling order and restored it in favour of respondents

Validity

Before taking action under R.90 of Balochistan Mineral Rules, 2002, against mining lease holder on the ground of keeping mining area idle for years, opportunity had to be provided to mining lease holder to explain his position

Authorities illegally cancelled lease of respondent and allotted the same to petitioners

High Court declined to interfere in the notification passed by Provincial Government in exercise of appellate jurisdiction restoring lease of respondents

Constitutional petition was dismissed, in circumstances.

Petitioners were aggrieved of issuance of notices by Sub-Registrar for payment of CVT which could not be collected in full at the time of registration of documents

Validity

Impugned notice(s) seeking payment of deficiency of the CVT were not sustainable in the eyes of law for the reason that the same had been issued without providing a right of personal hearing to the petitioner(s), without determination of the amount due mentioned therein as stipulated under the law and without considering the exemptions contained in the applicable law

Impugned notice(s) were illegal and of no legal effect as the same had been issued without lawful authority and in violation of due process of law

Fresh proceedings could be initiated against the petitioner(s) for the recovery of deficient amount of the CVT in accordance with law provided there was a valid assessment order

Constitutional petitions were allowed.

Petitioners were aggrieved of issuance of notices by Sub-Registrar for payment of CVT which could not be collected in full at the time of registration of documents

Validity

Impugned notice(s) seeking payment of deficiency of the CVT were not sustainable in the eyes of law for the reason that the same had been issued without providing a right of personal hearing to the petitioner(s), without determination of the amount due mentioned therein as stipulated under the law and without considering the exemptions contained in the applicable law

Impugned notice(s) were illegal and of no legal effect as the same had been issued without lawful authority and in violation of due process of law

Fresh proceedings could be initiated against the petitioner(s) for the recovery of deficient amount of the CVT in accordance with law provided there was a valid assessment order

Constitutional petitions were allowed.

Question was with regard to enlistment of products by the name of "Vivioptal", which were OTC / dietary supplements / Multi vitamins

Plea raised by petitioner was that he was condemned unheard by Enlistment Evaluation Committee (EEC)

Validity

Mere fact that Form-7 Enlistment ensued through the order of the Appellate Board, did not preclude EEC from acting so as to take remedial action in an appropriate case, especially when facts underpinning such action emerged subsequent to determination of appellate forum, which action was subsequently upheld by that body

As per decision of EEC petitioner was issued a notice to appear before it, where an opportunity of personal hearing was evidently given to the petitioner

Health and OTC Division also presented a comprehensive report with regard to vires of Enlistments for consideration

High Court declined to interfere in the decision of EEC

Constitutional petition was dismissed, in circumstances.

Without having given an opportunity to petitioner to rebut or give an explanation with respect to allegations against him in performance assessment, such allegations could not be treated as substantiated and could not form basis for a decision to terminate his appointment

It could only be in an inquiry under S.15(7) of Pakistan Medical Commission Act, 2020, that it would be determined whether allegations made against petitioner in performance assessment, if substantiated, would amount to misconduct or result in a finding that he was unable to perform his functions so as to furnish a just cause to remove him from office of Member (Examinations), National Medical Authority

Any other mode or manner of removal of a Member of National Medical Authority from his office was not contemplated by provisions of Pakistan Medical Commission Act, 2020

Requirement to hold inquiry under S.15(7) of Pakistan Medical Commission Act, 2020, could not have been lightly dispensed with on the ipse dixit of those in Pakistan Medical Commission who decided to terminate petitioner's appointment on the basis of his performance assessment

High Court directed the petitioner to resume his duties and set aside letter terminating his appointment, as he was appointed for a fixed term of four years under S.15(2) of Pakistan Medical Commission Act, 2020

Constitutional petition was allowed, in circumstances.

Before any action was taken, affected party was to be given a notice to show cause against proposed action and to seek his explanation, as the same was sine qua non of right of fair hearing

Any order passed without giving notice was against principles of natural justice and was void ab initio

Before taking any action, it was right of a person to know the facts, as without knowing facts of case no one could defend himself

Right to notice meant right of being known

Right to know facts of suit or case was to happen at start of any hearing and notice was a must to start a hearing

Notice was to contain time, place and date of hearing, jurisdiction under which case was filed, charges and proposed action against person

All such things were to be included in notice to make it proper and adequate

Whenever statute made it clear that notice was to be issued to party and if no compliance or failure to give notice occurred, the same had made that act void

Non-issue of notice or any defective service of notice did not affect jurisdiction of authority but had violated principles of natural justice

Cancellation orders passed by authorities were illegal, perverse to record and arbitrary

High Court set aside orders passed by authorities as the same were void and of no legal effect

Constitutional petition was dismissed, in circumstances.

Appellant attacked the order-in-original on the ground that mandatory show-cause notice was posted one day after the date fixed for appearance of appellant

Validity

Section 122 of Income Tax Ordinance, 2001 provided that the assessment could only be amended if it was found that the deemed order was erroneous and prejudicial to the interest of revenue subject to affording an opportunity of being heard to the taxpayer

Appellant was not provided fair opportunity of hearing

Appellant ought to have been given 15 days time for submitting reply

Only three days time, as per department, was given to the appellant for submitting reply to the notice, which in fact was not received by the appellant till finalization of the proceedings

Orders passed by Additional Commissioner Inland Revenue and Commissioner Inland Revenue (Appeals) were vacated by the Tribunal.

Appellant attacked the order-in-original on the ground that mandatory show-cause notice was posted one day after the date fixed for appearance of appellant

Validity

Section 122 of Income Tax Ordinance, 2001 provided that the assessment could only be amended if it was found that the deemed order was erroneous and prejudicial to the interest of revenue subject to affording an opportunity of being heard to the taxpayer

Appellant was not provided fair opportunity of hearing

Appellant ought to have been given 15 days time for submitting reply

Only three days time, as per department, was given to the appellant for submitting reply to the notice, which in fact was not received by the appellant till finalization of the proceedings

Orders passed by Additional Commissioner Inland Revenue and Commissioner Inland Revenue (Appeals) were vacated by the Tribunal.

Name of petitioner was placed on Exit Control List without issuing him a show cause notice and without seeking any clarification or explanation from him

Authorities could not abridge fundamental right of petitioner of travelling abroad without due process

Before making an order for placing name of a person on Exit Control List, it was provided in S. 2(2) of Exit from Pakistan (Control) Ordinance, 1981, that it was not necessary for Federal Government to afford an opportunity of showing cause to the person whose name was to be placed on Exit Control List

Provision of S.2(2) of Exit from Pakistan (Control) Ordinance, 1981, could not be construed as an open license to authorities to place name of petitioner on Exit Control List without affording an opportunity of hearing to him

Opportunity of hearing was an essential postulate of due process recognized in Arts. 2-A, 4 & 10-A of the Constitution

High Court directed the authorities to remove name of petitioner from Exit Control List and set aside Memorandum issued by authorities whereby name of petitioner was placed on Exit Control List

Constitutional petition was allowed in circumstances.

Where order of putting name of a person on Exit Control List is passed without providing opportunity of hearing to him and without application of its own independent mind by Government and such order is a non-speaking order

High Court directed to remove the name of said person from Exit Control List.

Petitioner was a pharmaceutical manufacturer and case against it was sent for judicial trial, with regard to a spurious drug recovered from a medical store

Validity

Before sending case for judicial trial against petitioner, provisions contianed in S.11(5) of Drugs Act, 1976, and R. 3(3) of Khyber Pakhtunkhwa Drug Rules, 1982, were not adhered to

Any action adverse to the right or interest of a person could only be taken after providing meaningful hearing

Petitioner had genuine grievance that it had been condemned unheard

Under S.24-A, General Clauses Act, 1897, it was the bounden duty and obligation of public functionaries to pass orders with full conscious application of mind and not in mechanical manner and to act justly, fairly and equitably without there being any element of discrimination

High Court set aside the decision of authorities and remanded the matter to Provincial Quality Control Board with a direction to afford proper opportunity of hearing to petitioner

Constitutional petition was allowed accordingly.

Plaintiff retired from service on attaining age of 60 years but his pensionary benefits were withheld on the ground of audit objections after 6-7 years of his retirement

Plaintiff assailed letter issued by authorities withholding his pensionary benefits on the plea of his condemning unheard

Suit filed by plaintiff was decreed in his favour but Lower Appellate Court reversed findings and dismissed the suit

Validity

Pensionary benefits of plaintiff were his vested right and authorities had no right to recover any amount outstanding against retired employee from his pension without issuing him show cause notice and giving him an opportunity to defend himself

Nothing was on record to show that any notice was sent to plaintiff

Pension of petitioner could not be stopped or withheld on any ground

Recovery of disputed amount was effected from plaintiff, which order was successfully challenged by him before competent departmental authority/ Commissioner

Order of Commissioner attained finality and authorities were not empowered under law to review, recall or upset the order which had already attained finality, that too after 6-7 years of retirement of plaintiff

High Court set aside findings recorded by Lower Appellate Court as the same were not sustainable in the eye of law, resultantly judgment and decree passed by Trial Court was restored

Revision was allowed in circumstances.

Petitioners were proceeded under the law which was not applicable to them and they were thrown out of service with one stroke of pen without even affording any opportunity of hearing

Such act of authorities even offended fundamental rights guaranteed in terms of Art.10-A of the Constitution

Proceedings culminated into dismissal of service were result of excess of authority and had no backing of law

High Court declared proceedings under Pakistan Telecommunication Company Limited Service Regulations, 1996, and terminating services of petitioners, without lawful authority and of no legal effect and petitioners were deemed to be in service

Constitutional petition was allowed in circumstances.

Accused was holder of public office and he was convicted and sentenced by Trial Court for ten years imprisonment and fine, for holding assets beyond his known sources of income

Plea raised by accused was that material pieces of evidence were not put to accused for seeking his reply under S. 342, Cr.P.C.

Effect

When accused was not confronted with allegations levelled against him and he was not put in a position to refute the same properly, he could not be saddled with criminal liability on the basis of such incriminating material

Such lapse on the part of prosecution was fatal and it had gone to the roots of the prosecution

Recording of statement under S. 342 Cr.P.C. was not a mere formality rather its primary object was to afford the accused opportunity of explaining the circumstances which were tending to incriminate and likely to influence the mind of Judge in arriving at a conclusion adverse to him

High Court set aside the conviction awarded to accused as there were material discrepancies and deficiencies in prosecution evidence

Even a single circumstance creating doubt regarding guilt of accused was sufficient to extend him the benefit of the same in shape of acquittal

High Court considered prosecution evidence insufficient and shaky and set aside the judgment resulting into acquittal of accused

Appeal was allowed in circumstances.

Apprehension of petitioner was that in consequence of order to review mutations, the mutation passed in favour of petitioner would also be reviewed without giving any opportunity of hearing to petitioner

Validity

Board of Revenue directed the Collector to give ample opportunity of hearing to petitioner while disposing of the matter of review of disputed mutations and other mutations sanctioned on the basis of disputed mutations under the provision of S.163(2)(c) of West Pakistan Land Revenue Act, 1967

Revision was disposed of accordingly.