Determination

Punishment of reduction in basic pay was imposed on the employee after charge-sheeting him and holding enquiry against him of allegation of absence from duty for more than 10 days

Grievance application filed by the employee against said punishment had been accepted by the Labour Court

Maintainability of grievance application was objected to by the employer contending that the employee being Auditor, was not "workman"

Job of "Auditor", could not be considered as job of a person other than a "Workman "

Designation and salary of an employee, could not be a touchstone for determination of his status of workman; it was the nature of duties which could decide his status

In the present case, no job description had been filed before the Labour Court, and no question had been put to the employee regarding his nature of job/duties

Evidence of the employer was silent about the status of the employee

Evidence on record had reflected that employee was a "workman" and his grievance application filed before the Labour Court, was much maintainable

Enquiry conducted against the employee, was objectionable as he was on duty and the management deliberately transferred him from one place to another place, and during said period no notice of enquiry was served directly on him

Once a workman was in employment of any establishment, it was the duty of the employer to serve the notice directly upon him, but no such notice was served upon the employee

Enquiry was also objectionable as the complainant had only produced the charge-sheet in his statement

Presence of kind of leave in the credit of the employee, he was entitled for the grant of such leave, until same expired

Order of the Labour Court was maintained accordingly.

Employees being Manager in Officer Grade-III having been dismissed from service after charge-sheeting him and holding inquiry against him on charge of misconduct, filed grievance petition against his dismissal order

Grievance petition was dismissed by Labour Court being not maintainable holding that employee was not "workman"

Employee in his cross-examination had admitted that being Manager, his exclusive duty was managerial and administrative

Employee being not "workman", his grievance petition was rightly dismissed by the Labour Court, in circumstances.

Worker (respondent) filed application before the Authority claiming arrears, which according to him had been withheld by the purported employer/company (appellant)

Company (purported employer) denied relationship of employer and employee contending that worker was an employee of the contractor and not of the company

Authority dismissed worker's claim but same was allowed by the Labour Court and High Court

Contentions of the company were that they never employed the worker; that worker had entered into a contract with the contractor and was engaged as an employee by said contractor; that worker used to work in the premises of the company and for that purpose he was given an entry pass, which did not make him an employee of the company, and that the worker did not fall within the meaning of a worker provided in S.2(xxviii) of Industrial Relations Ordinance, 1969

Validity

Labour Court reversed the findings of the Authority mainly on the ground that company had admitted in its cross-examination that contract of the contractor started from 13-8-2001 whereas worker's claim was from August 2000, when admittedly the contractor was not in the picture

Labour Court did not examine the documents tendered by the worker in support of his claim

Said documents indicated that none of the claims were relatable to the period before 13-8-2001

Counsel for the worker had candidly conceded that they did not tender any document before the Authority or before the Labour Court with regard to a claim for the period prior to 13-8-2001, i.e. the period when the contractor had not entered into contract with the worker

Judgment of Labour Court reflected misreading of material evidence on record

Company had not issued any appointment letter in favour of the worker

Claim under Payment of Wages Act, 1936, could only be made with regard to payment withheld by an employer but the worker, in the present case, had failed to prove that he was employee of the company in terms of S.2(ii)(g) of Payment of Wages Act, 1936

Appeal was allowed, impugned judgments of the courts below were set aside and that of the Authority was restored.

Plaintiffs/respondents (nephews of the deceased) claiming that the deceased was a Muslim, therefore, they were entitled to inherit his property

­Defendant/appellant (niece of the deceased) being an 'Ahmadi' claiming that the deceased converted into an 'Ahmadi', therefore, she alone was entitled to inherit

Plaintiffs filed a declaratory suit in regard to said dispute, which suit was dismissed by the Trial Court but was allowed in appeal by both the Appellate courts below

Contentions of the defendant/appellant were that sufficient evidence was available to show that the deceased was an 'Ahmadi'; that merely because deceased was mentioned as a Muslim in his application form for the issuance of Identity Card did not make him a Muslim; that the summary inquiry carried out by the Tehsildar preceding the impugned mutation clearly established that the deceased was an 'Ahmadi'

Validity

Admittedly the deceased was born a Muslim and allegedly he converted into an 'Ahmadi'

No direct documentary evidence existed with regard to the faith of the deceased in the form of his own affidavit or in the shape of his registered membership of an organization of any faith or sect

Evidence led by the defendant to prove that the deceased was converted into an 'Ahmadi' was not credible

Witness to the alleged conversion could not mention the date and time of the alleged conversion, but admitted that the father of the deceased was a Muslim and that he was buried in a Muslim graveyard

None of the persons who appeared before the Tehsildar, during the trial stated that the deceased was an 'Ahmadi'

Plaintiffs had led strong circumstantial evidence to prove that the deceased was a Muslim

Testimony of the some of the witnesses appearing on behalf of the plaintiff with regard to the fact that the funeral prayer of the deceased was performed by a Muslim moulvi; that the deceased was buried in a Muslim graveyard, and that he offered his Friday (Juma) prayers in a Muslim mosque, remained unchallenged in cross-examination

Documentary evidence of application form of the deceased for the issuance of Identity Card and record of the Election Officer (voters list) further corroborated the oral evidence

Defendant had not pointed out any misreading or non-reading in the impugned concurrent judgments of both the Appellate Courts below

Appeal was dismissed, in circumstances.

Question of sect of a person could not be determined by opinion of parties but could be inferred from facts creating a presumption one way or the other.

Opinion of witnesses might not be conclusive to determine the faith of a person.

Appeal filed by the defendant (respondent) transferred from the (Lahore) High Court to (Islamabad) High Court without giving any notice to the defendant or his counsel

Appeal re-listed in the (Islamabad) High Court after directions to the office to issue notice to the defendant and his counsel

No such notice issued

Appeal dismissed for "non-prosecution" due to non-presence of the defendant and his counsel

Application of defendant for restoration of his appeal and condonation of delay was allowed by the (Islamabad) High Court through the impugned judgment

Validity

(Islamabad) High Court had directed the office to re-list the case (appeal) after issuance of notice to the defendant and his counsel, but the office re-fixed the case without issuing notices

Where during the hearing of a case, a date was given in the presence of a counsel, then his non-appearance could be taken notice of and the case could be dismissed for non-prosecution but where date was not given in his presence and his name did not appear in the cause list then an order for dismissal for non-prosecution would not be considered to be legal

In the present case, although the name of the counsel who filed his 'Vakalatnama' in the (Lahore) High Court on behalf of the defendant, appeared in the cause list but same was no consequence because the 'Vakalatnama' was given to appear before the (Lahore) High Court and not before (Islamabad) High Court

Issuance of notice to the defendant was necessary before the case could be dismissed for non-prosecution

Order of (Islamabad) High Court by which it dismissed the appeal for non-prosecution had been passed in complete violation of the rules of natural justice and void

Supreme Court directoral the Islamabad High Court to treat the matter pending and fix the same for hearing after issuance of notices to all the parties.

Crucial question to determine was whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in S.141 of the Penal Code

Word 'object' meant the purpose or design and in order to make it 'common', it must be shared by all i.e., the object should be common to the persons, who composed the assembly and they should all be aware of it and concur in it

Common object might be formed by express agreement after mutual consultation, but that was by no means necessary and it might be formed at any stage by all or a few members of the assembly and the other members might just join and adopt it

Once common object was formed, it did not have to continue to be the same and might be modified or altered or abandoned at any stage

Expression 'in prosecution of common object' appearing in S.149 of the Penal Code had to be strictly construed as equivalent to 'in order to attain the common object'

Same must be immediately connected with the common object by virtue of the nature of the object, and there must be community of object and the object might exist only up to a particular stage, and not thereafter.

Crucial question for determination was whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by S.141 of the Penal Code

While determining said question, it was relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly

Mere presence or association with other members of the unlawful assembly alone was not per se sufficient to hold every one of them criminally liable for the offences committed by the others unless there was sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.

Leave to appeal was granted by Supreme Court to consider whether death sentence awarded by Trial Court and confirmed by High Court was justified in view of the compromise made by two of the legal heirs and whether on the date of occurrence, accused was below the age of 18 years as he claimed to be 19 years old when his statement under S.342, Cr.P.C. was recorded by Trial Court.

Amount of Diyat would be determined according to prevailing rate of Diyat at the time when compromise was effected because it was the accused who actually requested victim party to favour him and if, as a result, such favour was extended then payment of compensation should be determined and made at the rate prevailing at the time when compromise was effected and executed by the court

Word "property", under explanation to S.310, P.P.C., included both movable and immovable property, therefore, compensation equal to Nisab prevailing at the time when compromise was effected after determining the value of moveable and immovable property could also be paid

Supreme Court directed the Trial Court to dispose of the matter expeditiously

Matter was disposed of accordingly.

Conviction and sentence awarded to accused by Trial Court was maintained by High Court and leave to appeal was refused by Supreme Court

Plea raised by accused was that at the time of occurrence, he was below the age of eighteen years and the same was not properly determined by the courts below

Validity

Both the courts i.e. Trial Court and High Court examined the record of Registration of birth in NADRA to be 23 years

Even in voters' list, accused was of the same age at the time of occurrence and birth entry record of union council was found to be dubious

Review jurisdiction had a limited scope but as it was an issue of life and death, therefore, Supreme Court delved deeper into it, although question with regard to determination of age was primarily a question of fact to be decided by Trial Court

Supreme Court did not find any error apparent in the face of record to warrant review

Review petition was dismissed.

Rigor mortis had been completed in the dead body, therefore, time between death and post mortem might be 14 hours.

Application for forfeiture of assets of accused (since dead) was filed about three years after the judgment was announced by Trial Court and application was dismissed as the assets were not proved by prosecution to have been purchased by drug money

Supreme Court declined to interfere in the judgment passed by High Court

Validity

State was supposed to remain vigilant in respect of proceedings of the court and it should also know the law on the subject

If prosecution was of the opinion that properties had been acquired by the convict (since dead) out of drug money same should have furnished at least prima facie evidence about it at the relevant time with promptitude but that had not been done and in the meanwhile matter had come before Supreme Court and judgment under review was passed

Supreme Court declined to interfere in the judgment passed by it earlier

Review was dismissed.

Plaintiff was civil servant who suffered on account of official orders passed by the defendant which were based on mala fide

Trial Court and High Court dismissed the suit filed by plaintiff

Validity

Plaintiff while appearing as his own witness did not try to explain the causes of damages except stating that due to acts of defendant, he had remained jobless for four years; suffered loss of lacs of Rupees; his father died due to mental torture; and he spent lacs of Rupees on litigation as well as on medical treatment of his wife; it was therefore, necessary to determine in the light of evidence available on record the expenses which plaintiff had actually and reasonably incurred for medical treatment and litigation

Plaintiff could recover as special damages under such head only the amounts so determined

Defendant objected to the manner in which damages were claimed by plaintiff, which were round sum on each head

Apparently damages were not based on any account; neither any breakup had been given nor any explanation was offered in that behalf

Plaintiff had failed to quantify special damages as such he was not entitled for the same

Plaintiff had suffered mentally due to illegal acts of defendant, which were ultimately set aside by competent forum

Plaintiff was entitled for general damages under the rule of thumb

Supreme Court partly decreed the suit in favour of plaintiff.

Property given as reward to Sajjadanashin of Shrine to maintain the upkeep of the shrine (Hazrat Baba Farid-ud-Din Ganj Shakr)

Auqaf Department seeking the take over of said property declaring the same to be Waqf Property

Legality

Question was as to whether said property was Waqf property

Determination

Waqf property, definition of

Scope

Auqaf Department (petitioner) issued a notification vide which the property in question was sought to be taken over by the Department declaring same to be Waqf property attached with the shrine

Courts below declared said notification to be without lawful authority on the grounds that property in question was neither dedicated nor attached with the shrine

Contention of the Auqaf Department was that the alleged owners (respondents/descendants of late Sajjada Nashin who was rewarded the land) had no title over the property and were in possession of the same only on the basis that their ancestor was granted the property by Nawab of Bahawalpur for the purpose of upkeep of the shrine

Validity

Property could be called or declared Waqf property only if same was either dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable or as added in the explanation to section 7 of the Punjab Waqf Properties Ordinance, 1979

Document in terms of which Nawab of Bahawalpur granted the property to the ancestor of the alleged owners indicated that the same was given as "inam/reward" and it was stipulated that it would be considered as property of the ancestor

Said documents (sanad) did not indicate that either any trust was created or the said property was deemed to be part of the shrine

Intent and object of the document (sanad) appeared to be that the ownership of the property was vested with the guarantee of maintaining the upkeep of the shrine, and if did not stipulate that the property was either being dedicated to the shrine or for any religious purpose or that any "mutawalli" or trustee was being created

Petition for leave to appeal was dismissed, in circumstances.

Diyat amount was payable to legal heirs of the deceased at the rate prevalent at the time of the compromise and not the commission of the offence

Scope

Accused (applicant) was sentenced to death by the Trial Court under S.302(b), P.P.C, with a direction to pay Rs.50,000 as compensation to the legal heirs of the deceased

High Court on appeal, converted death sentence of the accused into imprisonment for life but maintained payment of compensation

Subsequently the mother, widow and son of the deceased recorded their statements stating that they had forgiven the accused in the name of Allah without accepting Badl-e-Sulah

Widow of the deceased stated that she had accepted land and Defence Saving Certificates in the name of her minor children, according to their share of Diyat amount being their Wali

Compromise between the parties was genuine and had been effected with their own free will and consent without external pressures, however Diyat amount had been paid to the minor legal heirs of the deceased at the rate prevalent at the time of the commission of the offence

Validity

Compromise between the legal heirs of the deceased and the convict was a type of a contract

Where the legal heirs of the deceased made a statement before the court pardoning the convict, they would get Badl-e-Sulah in the shape of Diyat amount and where they forgave the convict in the name of Allah, they would get reward thereof from Allah

Where the natural guardians i.e. mother or father of the minors legal heirs of the deceased, forgave the convict, the interest of minors was to be safeguarded by paying them their due share as Diyat amount according to the rate of Diyat prevailing at the time of arriving at the compromise between the parties, as the contract could not have retrospective effect

Section 323, P.P.C, made it clear that the value of Diyat should not be less than the value of thirty thousand six hundred and thirty grams of silver, therefore, it was apparent that the rate of Diyat in vogue at the time of compromise should be applicable and not the rate prevailing at the time of commission of the offence

Compromise, in the present case, had been effected in the financial year 2011-12, therefore, the rate of Diyat declared by the Government vide its notification for the year 2011, was payable to the minor legal heirs of the deceased

Parties were allowed to compound the offence subject to the payment of Diyat to the minor legal heirs of the deceased

Application of the accused was accepted and his petition for leave to appeal was converted into appeal and allowed and he was acquitted of the charge.

Contention of the pre-emptor (appellant) was that S.30(a) of the Punjab Pre-emption Act, 1991, was subject to provisions of S.31 of the said Act, as no notice of sale had been published/issued as required by S.31 of the said Act, the limitation period would commence from the date of pre-emptor's knowledge as per S.30(d) of the said Act

Validity

Sections 30 and 31 of Punjab Pre-emption Act, 1991, were independent of each other having no effect and impact on each other

Although S.31 of the said Act mandated that a public notice must be issued in terms thereof, but by no stretch of the imagination S.31 of the Act could be held to regulate and control the period of limitation prescribed by S.30 of the Act

If the intention of the legislature was to make the period of limitation subject and subservient to the requirements of S.31 of Punjab Pre-emption Act, 1991, the legislature would have clearly indicated its intention by use of appropriate expression and/or words in either of the two sections

Section 30 of Punjab Pre-emption Act, 1991, could not be read into by implication or on the basis of any other rule of interpretation

Requirement of notice under S.31 of the Act was not a condition precedent for computing the period of limitation and it could not be held that in the absence of the notice, the date of knowledge should be the starting point of the four months limitation period

Appeal was dismissed, in circumstances.

Plaintiff was civil servant who suffered on account of official orders passed by the defendant which were based on mala fide

Trial Court and High Court dismissed the suit filed by plaintiff

Validity

Plaintiff while appearing as his own witness did not try to explain the causes of damages except stating that due to acts of defendant, he had remained jobless for four years; suffered loss of lacs of Rupees; his father died due to mental torture; and he spent lacs of Rupees on litigation as well as on medical treatment of his wife; it was therefore, necessary to determine in the light of evidence available on record the expenses which plaintiff had actually and reasonably incurred for medical treatment and litigation

Plaintiff could recover as special damages under such head only the amounts so determined

Defendant objected to the manner in which damages were claimed by plaintiff, which were round sum on each head

Apparently damages were not based on any account; neither any breakup had been given nor any explanation was offered in that behalf

Plaintiff had failed to quantify special damages as such he was not entitled for the same

Plaintiff had suffered mentally due to illegal acts of defendant, which were ultimately set aside by competent forum

Plaintiff was entitled for general damages under the rule of thumb

Supreme Court partly decreed the suit in favour of plaintiff.

Suo motu action by the Supreme Court under Art.184(3) of the Constitution regarding allegation of business deal between a businessman and son of the serving Chief Justice of Pakistan attempting to influence the judicial process

Maintainability

Whether such allegation raised an issue of public importance

Determination

Right to information about matters of public importance

Scope

Suo motu notice of the issue was absolutely necessary to stem the uninformed opinion and comment feeding such media frenzy and to ensure the right of the citizens to correct information on a matter of the gravest national importance in a transparent manner-Supreme Court in the exercise of its original jurisdiction under Art.184 (3) of the Constitution was entitled to use inquisitorial powers

Suo motu cognizance of the present matter had been taken for a specific object and said powers were to be exercised only as were necessary to achieve that object

Concise statements of the parties were before the Supreme Court, which could take note of such material particulars therein, which had a direct bearing on the object of present suo motu case

Determination of other legal or factual questions might be left to a competent court or forum

Parts of the concise statements submitted by the parties which had a bearing on the outcome of present suo motu case, were those which pertained directly to the independence and integrity of the judiciary

Said Businessman had confirmed in his concise statement that he met with a number of journalists and showed them 'documentary evidence' of payments made to son of the Chief Justice in exchange for promises on his part to gain favours for him (businessman) from the Supreme Court

Businessman during the hearing of present matter, stood by his said statement given in writing, in the most categorical and unambiguous terms through his counsel

Such statement settled the question of public importance to a large extent

Matter of public importance, in the present case was the aspersion cast on the independence and integrity of the superior judiciary of the country.

Plaintiff was civil servant who suffered on account of official orders passed by the defendant which were based on mala fide

Trial Court and High Court dismissed the suit filed by plaintiff

Validity

Plaintiff while appearing as his own witness did not try to explain the causes of damages except stating that due to acts of defendant, he had remained jobless for four years; suffered loss of lacs of Rupees; his father died due to mental torture; and he spent lacs of Rupees on litigation as well as on medical treatment of his wife; it was therefore, necessary to determine in the light of evidence available on record the expenses which plaintiff had actually and reasonably incurred for medical treatment and litigation

Plaintiff could recover as special damages under such head only the amounts so determined

Defendant objected to the manner in which damages were claimed by plaintiff, which were round sum on each head

Apparently damages were not based on any account; neither any breakup had been given nor any explanation was offered in that behalf

Plaintiff had failed to quantify special damages as such he was not entitled for the same

Plaintiff had suffered mentally due to illegal acts of defendant, which were ultimately set aside by competent forum

Plaintiff was entitled for general damages under the rule of thumb

Supreme Court partly decreed the suit in favour of plaintiff.

For the purposes of determining "territorial jurisdiction" of Family Court, it is the West Pakistan Family Courts Act, 1964, and rules framed thereunder, which are taken into account and not the provision of S.25 of Guardians and Wards Act, 1890.

Minors were permanently residing with their father at place "M" and their mother filed application for their custody before Guardian Judge at place "L"

Guardian Judge as well as Lower Appellate Court held that the courts at place "M" had territorial jurisdiction over the matter but High Court declared that proceedings initiated by mother of minors, at place "L" were maintainable

Validity

Minors were residing with their father at place "M", where they were admitted to school

Mother had failed to prove that she had brought them to place "L" and was deprived of their custody from there, on account of which the cause of action could arise in her favour at place "L"

Was not established, if before parting, the parties hereto were residing at place "L" so as to attract R.6(b) of West Pakistan Family Courts Rules, 1965

High Court had fallen in error while declaring the suit maintainable at place "L"

Supreme Court set aside the judgment passed by High Court and those of Guardian Judge and Lower Appellate Court were restored

Appeal was allowed.

Vacancy of driver was available, but he was appointed as Sanitary Worker and was performing the duties of driver throughout and paid salary of the Sanitary Worker

Grievance petition filed by the employee was allowed with direction to the employers to consider the petitioner as a regular employee

Employee, after second appointment had throughout been working as a driver, his work and conduct had been very good and the post of the driver had all along been available

Employee had been performing the duties of a driver and the post of driver all along had been vacant, employee, in circumstances would be deemed to be employed as a driver and his employment in view of his continuous service for more than the mandatory period would be deemed to be permanent

In absence of any flaw or infirmity in the impugned order of Labour Court same was upheld.

During pendency of grievance petition filed by the employees, counsel for bank moved application under O.VII, R.11, C.P.C. for rejection of grievance petition, contending that employees not being workmen, their grievance petition be dismissed for want of jurisdiction

Acid test for determining the status of a workman, was the nature of his duties, but where there were conflicting claims of the parties, then such issue could be determined by recording of evidence and not otherwise

In the present case, neither copies of the application filed under O.VII, R.11, C.P.C. nor their replies as well as the copies of the grievance petitions and their replies had been filed for proper appreciation of the cases

Application for rejection of grievance petition, was rightly dismissed by the Labour Court on the grounds that factual controversy could not be resolved without recording evidence and that revision petitions were not properly documented.

Appellant/establishment had assailed the judgment passed by Labour Court, whereby the grievance petition filed by the employee was allowed and he was ordered to be reinstated with back benefits

Contention of the appellant that employee, not being a 'workman', was not entitled to invoke the jurisdiction of the Labour Court and that grievance notice having not been served upon the employer, grievance petition filed by employee was incompetent

Affidavit sworn by the employee, did not describe the nature of his duties

No description of the nature of the duties of the employee were provided which could have determined his status as a 'workman' or otherwise

Labour Court was not justified in finding that employee had proved himself to be a 'workman'

Question of 'workman' was a fundamental question and was of far reaching effect

If employee was not found to be 'workman', the Labour Court would stand denuded of the power to dispose of the matter

No description of the nature of the duties of the employee having been provided which could have determined his status as 'workman' or otherwise, case was sent back to the Labour Court to record evidence of the parties afresh and to decide that vital issue.

Employee who joined the employer company as Medical Information Officer, in due course of time, got promotion to the rank of Zonal Manager Sales; his services had been terminated by means of a verbal order

Grievance petition by the employee was dismissed by Labour Court on the ground that he being a senior Executive was not a 'workman' and Labour Court had no jurisdiction to entertain and try his grievance petition

Acid test for' the determination as to whether an employee was a "workman" or not, was the nature of the duties performed by him

Employee would be 'workman', if the duties performed by him were manual or clerical in nature and not otherwise

Employee being Zonal Manager, was expected to display the quality of initiative and drive, intelligence; and correct speculation; and doing that he was given some independence in his line of action and he was expected to use his mental faculties to find new avenues of sales promotion

Employee, in circumstances, ,was not a "workman" and Labour Court had rightly dismissed his grievance ,petition.

Employee who was graduate was appointed as Godown Keeper in the Bank; he continued to perform his duties without any break, though Bank after every six months issued a fresh appointment order

Service of the employee were terminated after about 4 years arbitrarily without any show-cause notice, personal hearing or any enquiry

Grievance petition by the employee against order of his termination was accepted by the Labour Court and the employee was reinstated in service, but without back benefits

Breaks in service of employee shown by the bank in issuing periodical orders, were clearly designed to deny permanent status to the employee, which could not be appreciated

Employee was a permanent employee due to length of his service, his ouster was arbitrary, unjust without lawful authority and misconceived

Labour Court, in circumstances, had rightly reinstated him

Appeal by the employer/bank against judgment of the Labour Court was dismissed

Employee having himself stated that during period of his termination he had been operating public call office for earning his livelihood, order passed by the Labour Court for not granting him back benefits, appeared to be fair and just and same was upheld.

Accused and co-accused (respondents) were convicted and sentenced by the Trial Court, whereafter they filed an appeal against their conviction raising the plea of being juveniles at the time of the occurrence

Appeal of accused and co-accused was accepted and case was remanded back to the Trial Court for determination of their age and consequently for trial, de novo

Complainant (petitioner) filed an application before the Trial Court for summoning the Radiologist as court witness to testify about the report prepared by him , on basis of which age of the accused and co-accused was determined by the doctors, but said application was turned down by the Trial Court

Contentions of the complainant were that the Trial Court passed the impugned order in his absence as well as his counsel; that the Trial Court had relied upon fake and fictitious school certificates of the accused and co-accused which were never produced by them during their trial and as such had wrongly declared them as juvenile offenders

Validity

Perusal of the record revealed that the accused and co-accused were earlier tried by the Trial Court, wherein, they did not take the plea of their tender age nor objected on their trial in the ordinary court

Requirement of law was that accused should take such a plea at the very initial stage, after registration of the case, so that the investigation officer might collect evidence in support thereof

Accused and co-accused failed to take such a plea during the investigation and the trial and it was at the appellate stage, when they took the plea of being juveniles for the first time

When the case had been remanded to the Trial Court, it was obliged to allow the complainant meaningful participation during the inquiry proceedings about the determination of the age of the accused and co-accused

Impugned order had been passed on the back of the complainant and his counsel

Trial Court was obliged to consider the factum that the documents which had never seen the light of the day, during the investigation or the earlier trial, had been produced by the accused and co-accused at the inquiry stage and said documents had to be proved in accordance with the guidelines provided by the Supreme Court

Where a document was disputed, it was required to be proved in accordance with the law by tendering it in evidence and offering the same for cross-examination to the opposite party

Revision petition was allowed, impugned order was set aside and the case was remanded to the Trial Court for determination of age of the accused and co-accused by inviting the parties to lead their evidence, oral and documentary, in accordance with the provisions of the Qanun-e-Shahadat Order, 1984, by testing the veracity and genuineness of the same in accordance with the law.

Referendum had been ordered to be held in the establishment and necessary pre-condition was that the workers should be in possession of an appointment letter of contract of the employer-company, and they should be in the employment for at least three months

According to the list of employees, workers were working on daily wages/contract in the company since more than 20 years, but they were not regularized and the employer-company was paying the salary to them through contractors

Employees had failed to produce letters of appointment or any evidence showing that those workers were employed by the Employer/company; also could not produce proof of membership, which could reflect that they were members of the union and paying subscription to it

Application filed by employees seeking to cast their votes in the referendum, was rejected, in circumstances.

Rent Controller who had limited jurisdiction in the proceedings could not decide disputed question of law and fact involving ownership right of tenant

Rent Controller as well as Lower Appellate Court legally could not have accepted joint ownership of tenant in subject property on the basis of documents produced by tenant

Exercise of powers by Rent Controller and Lower Appellate Court for declaring cessation of relationship of landlord and tenant having commenced between the parties did not come to an end through any legal course of law or on the basis of any legal document clearly ascertainable in the eye of law declaring tenant to be one of the co-owners in subject property

Judgments passed by two courts below dismissing ejectment petition of landlord was not sustainable in the eye of law and was set aside

Second appeal was dismissed in circumstance.

While interpreting matter related to jurisdiction of Tribunal or Court, approach towards extended jurisdiction has to be adopted.

Appeal filed by petitioner was returned by Appellate Court on the ground that Trial Court's decree for possession along with mesne profit amounting to Rs.6.95 million exceeded the pecuniary jurisdiction of the Appellate Court

Contention of petitioner was that original suit was valued at Rs.1.063 million whereas pecuniary jurisdiction of Appellate Court extended to suits valuing up to Rs.2.5 million

Respondent contended that once value of suit was determined by Trial Court, appellate forum was to be determined on the basis of such ascertained value and not on the value originally fixed in the plaint

Held, that where the value of the suit fixed in the plaint was under dispute, judicially ascertained value of the suit overrode the value that is fixed in the plaint to determine the appellate forum and the amount of court fee payable

In the present case, there was no such dispute between the parties

Meaning ascribed to the expression "value of original suit" in S. 18(1) of the West Pakistan Civil Courts Ordinance, 1962 was confined to the valuation given in the plaint, and the value given in the plaint determined the forum of appeal

View taken by Appellate Court was, therefore, misconceived

Revision was allowed , in circumstances.

Provision of S.20(c), C.P.C. provided that civil courts within whose territorial jurisdiction the cause of action wholly or partly had arisen could exercise jurisdiction in the matter

Agreement between the parties was executed at place "M" and plaintiff was to render services all over Pakistan including place "M"

Part of cause of action having arisen at place "M", civil courts at place "M" were vested with territorial jurisdiction to adjudicate upon the matter

High Court declined to interfere in the order passed by Lower Appellate Court

Revision was dismissed in circumstances.

Petitioner was a telecommunication service provider company and dispute was with regard to charging of property tax against its properties located in Karachi city

Petitioner company claimed that property tax was chargeable at industrial rates, whereas authorities intended to charge against commercial rates

Validity

Some additional elements must be present for technical support to amount to industrial activity

Those additional elements must be activity or action, directly in relation to petitioner's telephone exchanges (or the other devices used by it to provide telecom-munications services and must be substantially more than a mere servicing or care thereof

Petitioner did not carry out industrial activities on its properties, in which case the annual value of properties would not have to be determined on the basis that those were industrial properties

Properties of petitioner company must be brought to tax on the basis that those were commercial properties and there was nothing on record in relation to such additional activities or actions, if any

High Court directed that in respect of each property, where petitioner claimed to carry out industrial activities, would make application to authorities, giving full details of its activities

Petition was disposed of accordingly.

Defendant's challenge was directed towards compromise agreement on the ground that it was tainted by illegalities amounting to misrepresentations and hence liable to be modified

Validity

Remedy sought, i.e. relief under S.152, C.P.C., was only available against decree

Compromise decree and agreement were not the same thing

Relief under S.152, C.P.C. was available in respect of a compromise decree without compromise agreement being impugned at all

Correction of compromise decree was not the same thing as modification of compromise agreement

Power to "correct" decree did not confer any power to modify agreement, as the two matters were separate and distinct and must be so dealt with

None of the provisions of Ss.18 and 19 of Contract Act, 1872, invoked by defendant were applicable

High Court declined to modify decree passed earlier on the basis of compromise arrived at between the parties

Application was dismissed in circumstances.

Defendant's challenge was directed towards compromise agreement on the ground that it was tainted by illegalities amounting to misrepresentations and hence liable to be modified

Validity

Remedy sought, i.e. relief under S.152, C.P.C., was only available against decree

Compromise decree and agreement were not the same thing

Relief under S.152, C.P.C. was available in respect of a compromise decree without compromise agreement being impugned at all

Correction of compromise decree was not the same thing as modification of compromise agreement

Power to "correct" decree did not confer any power to modify agreement, as the two matters were separate and distinct and must be so dealt with

None of the provisions of Ss.18 and 19 of Contract Act, 1872, invoked by defendant were applicable

High Court declined to modify decree passed earlier on the basis of compromise arrived at between the parties

Application was dismissed in circumstances.

Plaintiff filed civil suit on the ground that loan guarantee alleged to him was based on his lost papers of property mortgaged with the bank

High Court in exercise of original civil jurisdiction rejected the plaint on the ground that matter pertained to the Banking Court

Validity

Plaintiff having executed loan guarantee, was "surety" within the definition of "customer" as contained in S. 2(c) of Financial Institutions (Recovery of Finances) Ordinance, 2001

Obligation by virtue of S. 2(e) of Financial Institutions (Recovery of Finances) Ordinance, 2001, amongst others included mortgage and performance of an undertaking, therefore, again plaintiff fell within the pale of provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001, in as much as mortgage in respect of house in question was also created by plaintiff in favour of the bank

By virtue of S.7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, it was only a Banking Court, which would decide whether plaintiff was 'customer' of bank or otherwise

Banking Court was the only forum where suit could have been preferred

Division Bench of High Court declined to interfere with the order passed by Single Judge of High Court

Intra court appeal was dismissed in circumstances.

Petitioner was a telecommunication service provider company and dispute was with regard to charging of property tax against its properties located in Karachi city

Petitioner company claimed that property tax was chargeable at industrial rates, whereas authorities intended to charge against commercial rates

Validity

Some additional elements must be present for technical support to amount to industrial activity

Those additional elements must be activity or action, directly in relation to petitioner's telephone exchanges (or the other devices used, by it to provide telecommunications services) and must be substantially more than a mere servicing or care thereof

Petitioner did not carry out industrial activities on its properties, in which case the annual value of properties would not have to be determined on the basis that those were industrial properties

Properties of petitioner company must be brought to tax on the basis that those were commercial properties and there was nothing on record in relation to such additional activities or actions, if any

High Court directed that in respect of each property, where petitioner claimed to carry out industrial activities, would make application to authorities, ,giving full details of its activities

Petition was disposed of accordingly

Pakistan Telecommunication Company Ltd. v. Government of Punjab and others 2009 PTD 1602 dissented from.

Defendant's challenge was directed towards compromise agreement on the ground that it was tainted by illegalities amounting to misrepresentations and hence liable to be modified

Validity

Remedy sought, i.e. relief under S.152, C.P.C., was only available against decree

Compromise decree and agreement were not the same thing

Relief under S.152, C.P.C. was available in respect of a compromise decree without compromise agreement being impugned at all

Correction of compromise decree was not the same thing as modification of compromise agreement

Power to "correct" decree did not confer any power to modify agreement, as the two matters were separate and distinct and must be so dealt with

None of the provisions of Ss.18 and 19 of Contract Act, 1872, invoked by defendant were applicable

High Court declined to modify decree passed earlier on the basis of compromise arrived at between the parties

Application was dismissed in circumstances.

Petitioner-company was excluded by Corporation calling for tenders from participating in bidding pursuant to public tender on the ground of its being defaulter

Validity

Petitioner on payment of outstanding dues in terms of award, could not be termed as defaulter and could not be ousted to participate in tender process

Act of ousting of petitioner to participate in tender lacked authority and jurisdiction and was violative of Articles 18 and 25 of the Constitution

Such acts and decisions of public functionaries were amenable to Constitutional jurisdiction and petitioner had rightly challenged arbitrary and unjustified decision

Tendering Corporation was a public functionary / procuring agency and was obliged to procure such service by means of open competitive biddings in fair and transparent manner and discretion that such public authorities enjoyed, could not be exercised in an arbitrary and capricious manner

Open competitive bidding was invariably the best method for ensuring transparent and unobjectionable process

Petitioner had been wrongly ousted from participating in tender and its categorization as permanent defaulter was not sustainable under law

Petitioner was entitled to participate in bid and was also entitled for required quota of 10,000 Metric Tons for which it had submitted its bid

Petition was allowed accordingly.

Student (petitioner), who successfully completed the Master's program in question was denied a degree on ground that he was not eligible for admission to the program as he did not have the minimum required marks at time of his graduation

Validity

Admission criteria for the Master's program in question set by the University (respondent) stated that a candidate must have at least secured 45% marks at Intermediate or Graduate/Post Graduate level, but such requirement did not apply to candidates who already possessed a Master's degree therefore, it was clear that already possessing a Master's degree was an independent eligibility for the program in question

Student, in the present case, already possessed a Master's degree when he applied for the program in question

University did not raise any objection or question regarding eligibility of student at any point of time and now that he had earned qualification for the award of a degree, to say that he was not eligible for admission on the basis of his graduation was totally unjustified rather showed mala fide

Student was issued admit/identity card for all the semesters, regularly paid all his fees and ultimately completed the prescribed course and was declared successful by the University (respondent)

Student had earned eligibility to be granted degree for the Master's program in question, which he had successfully completed

Constitutional petition was disposed of accordingly.

Petitioners assailed appointment of respondent as Member, Oil and Gas Regulatory Authority on the ground that he was not a man of integrity, as F.I.Rs. were registered against him

Validity

By mere lodging of F.I.Rs. presumption of guilt could not be attached to respondent and it could not be said that his integrity was doubtful

In absence of any other material or evidence mere copies of F.I.Rs. were not sufficient to hold that respondent was not a man of integrity

Writ of quo warranto was a discretionary relief and any person could move for such writ, irrespective of the fact as to whether he was an aggrieved person or not

Court while ceased of the matter, would be under obligation to inquire whether the person holding disputed post, was holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office

Respondent was appointed by a competent authority and he was holding the post because he had been declared competent by legally constituted Committee

High Court declined to issue writ of quo warranto

Petition was dismissed in circumstances.

Imported goods were provisionally assessed and the differential amount of duty/taxes was secured through post-dated cheques

Assessment was finalized accordingly upon receipt of the valuation of criteria determined by the Controller of Valuation

Post-dated cheques were presented to the concerned Bank for encashment, upon failure of the importer to pay the demanded differential amount but same were not honoured due to insufficient amount in the relevant account

Case was referred to the Recovery Office for initiating recovery proceedings and a warrant of attachment was issued

Clearing agent had reported that the actual stakeholder/importer was dead

Counsel for the appellant, during the course of hearing, had also stated that actual beneficiary/importer had since expired

Appellant had stated that he was ready to state on oath that he never met Customs Staff and clearing agent; that he never operated the said Bank accounts, which were alleged to be in his name that such accounts might have been opened and operated by his late uncle and he must have introduced the original beneficiary to the customs and the concerned clearing agent

Appellant had further stated that he engaged the counsel for appearance before the Tribunal on insistence of a person of Khyber Agency who dealt in transit goods

Matter requiring further probe by the department to safeguard the Government Revenue and unearthing the actual beneficiary in the case, case was remanded to original Adjudicating Authority to decide the same afresh by providing an ample opportunity of hearing to all concerned; and by deciding admissible evidence, if any to be provided by either side; and then pass a speaking and judicious order.

Suit property was purchased by predecessor-in-interest of plaintiffs on 9-11-1946 and sale deed was registered on 3-3-1947 but authorities allotted the suit land to predecessor-in-interest of defendants treating the same as evacuee property

Trial Court decreed the suit in favour of plaintiffs, which decree was maintained by High Court in exercise of revisional jurisdiction

Validity

Registered document was to operate from time/day when it was written and signed

Such document would create right, title and interest in favour of transferee from the date of execution and not from the date of registration

Sale deed was written and signed on 9-11-1946, however it was registered on 3-3-1947, therefore, perforce of S.47 of Registration Act, 1908, it would deem to operate from 9-11-1946 and not from 3-3-1947

Target date (first day of March, 1947) was provided under S.20 (1) of Pakistan (Administration of Evacuee Property) Act, 1957, whereafter no creation or transfer of any right or interest upon any property could have been made on behalf of any evacuee so as to confer any right or remedy on any party thereto unless it was confirmed by Custodian

As the sale deed was executed on 9-11-1946, i.e. before target date, therefore, it was neither a property left by evacuee nor required any confirmation by Custodian, as property vested with vendee before target date

As such the property did not require any confirmation by Custodian under S.20 (1) of Pakistan (Administration of Evacuee Property) Act, 1957

High Court rendered reasoned judgment and Supreme Court was not persuaded to interfere in it and the same was maintained

No misreading or non-reading of evidence on record was pointed out by defendants

Appeal was dismissed.

If metallic projectile is out of body, it is an exit wound, and presence of metallic projectile in body establishes the fact that it was not an exit wound but an entry wound.

Civil servant relied upon his date of birth mentioned in his Secondary School Certificate, Computerized National Identity Card and Service Book

Validity

Date of birth of civil servant mentioned in Service Book could not be ignored as it was the most authenticated document

Date of birth mentioned in seniority lists could not be ,referred over date of birth mentioned in Service Book

Supreme Court accepted the date of birth of civil servant mentioned in Secondary School Certificate, Computerized National Identity Card and Service Book

Supreme Court converted petition for leave to appeal into appeal and set aside notification of retirement of civil servant

Appeal was allowed.

Court has to scan the evidence; oral, documentary or circumstantial, as the case may be, to decide whether a party has waived his right by an overt or covert act.

Halqa Patwari admitted during evidence that actual physical possession of venue of occurrence was not delivered to complainant party

Another prosecution witness also admitted that three accused were in possession of part of land in question as tenants of remaining accused even on the day of occurrence

On the day of occurrence, complainant party was not in actual possession of entire suit land, especially the part of land where occurrence had taken place

Doubt existed about complainant being in actual physical possession of place of occurrence at relevant time and about accused persons having mounted a violent and murderous assault to dispossess them of the same; as such doubt crept into the matter and had escaped notice of Trial Court and High Court, therefore, it was unsafe to order death for four accused

Supreme Court maintained conviction of accused persons under Ss.302(b) and 149 P. P. C. but altered sentence of death into imprisonment for life on four counts

Supreme Court directed that sentences of imprisonment for life to run concurrently.

Whether a person is a workman, test to determine is the nature of the work done by him and not the designation or title etc.

Bank employee, who was Accountant of the Branch and was an Officer Grade-III and used to supervise a number of workers, his duties were certainly not manual or clerical in nature

Such employee incorrectly approached to the Labour Appellate Tribunal for relief

Principles.