Proviso

Proviso may be an exception to the main provision but it cannot be inconsistent to such an extent that it nullifies what is intended by the main provision.

Such provision does not operate independently.

Proviso to a section is to be restrictively construed, which has an overriding effect and control over substantive provision of the section

Function of a proviso is to exclude and take out certain cases from the substantive provision to which it is a proviso.

Provision of proviso is to be strictly construed.

Proviso in a statute by no means can be construed in a manner so as to make the main section redundant.

Proviso is applicable only to such provision which precedes it.

Proviso in a statute by no means can be construed in a manner so as to make the main section redundant.

Proviso which is inserted to remedy unintended consequences and to make provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the section as a whole.

Sometimes a proviso is not to be regarded as a "true" proviso but rather as an independent substantive provision in its own right

Such an interpretation of a proviso is rare but recognized in its own right.

Proviso operates by way of exception or qualification, carving out of that part of enactment to which it applies something that but for the proviso falls within that part.

No officer below the rank of Sub-Inspector, according to Ss. 21 & 22 of the Control of Narcotic Substances Act, 1997, could raid, search and arrest any person involved under the said Act and any action taken by such officer would make the proceedings null and void, as in the present case

Investigation of the case had been conducted, in violation of Arts. 18, Proviso 4 & 155 (c) & (d) of the Police Order, 2002

Mashirnama of arrest had been prepared at the place of incident which had been made doubtful by the memo. of recovery

No recovery had been effected from the person of accused, which had allegedly been effected from a Taxi and the same did not belong to accused

Accused was admitted to bail in circumstances.

Maximum punishment particularly in cases of minors, was always to be avoided because of their tender age, childhood, their welfare and future

Reformation of minor being duty of the State, provisions of S.10(7) (c) of Juvenile Justice System Ordinance, 2000 were very much attracted in case of the accused

Accused were admitted to bail, in circumstances.

Amendment was approved by the Senate of the University, whereby the post of Principal of constituent colleges was to be filled by appointment by the Senate on the recommendation of Vice-Chancellor

Validity

Amendment approved by the Senate was in conflict with the provisions of S.23(r) of University of Peshawar Act, 1974, as Selection Board was empowered to recommend appointment in B-17 and above

Proposed amendment was against the procedure given in S.27(2) and was in conflict with S.22(r) of University of Peshawar Act, 1974

High Court noted that amendment could be made in accordance with the procedure but must not be in conflict with the provisions of University of Peshawar Act, 1974

Proposed amendment was declared null and void and the same was set aside

Constitutional petition was allowed in circumstances.

Accused was admitted to bail.

Contention raised by the Authority was that the civil servant was employee of the Authority and was seeking relief in respect of a post to which he had been appointed by the Authority, the Provincial Service Tribunal had no jurisdiction to entertain his appeal; as such the judgment of the Tribunal was without jurisdiction

Further contention was that the Authority was competent to lay down conditions in the nature of qualifications for promotion to higher appointments and as the civil servant had not fulfilled the condition upon which he was promoted as Revenue Officer the Authority was competent to revert him to the post of Senior Superintendent

Leave to appeal was granted by Supreme Court to consider the contentions raised by the Authority.

Civil servant was working in Ministry of Defence, from where he succeeded in obtaining his appointment as Principal/Project Director, Polytechnic Institute for Boys under Ministry of Education

Services of the civil servant were terminated by Ministry of Education after his working for 3-1/2 years

Validity

Civil servant possessed of the right to he repatriated to his parent department by the Ministry of Education, if it were to terminate his services

Lien of a permanent civil servant could not be terminated even with his consent and that the same could be terminated only when he was confirmed against some other permanent post

Nothing on the record was available to show that civil servant was confirmed under Ministry of Education, and, therefore, the entitlement of civil servant to retain lien in his parent Department was beyond any question

Direction issued by the Service Tribunal in its judgment had not been shown to be lacking in any measure whatsoever

Recognition of the right of the civil servant to go back to his parent Department and to have the matter resolved by all concerned with their mutual mediation/consultation, after his case was referred by the Tribunal to the Establishment Division for the purpose, could not but be upheld.

Leave to appeal was granted by Supreme Court to consider the contention of the Authority that as the WAPDA employee had sought relief in respect of a post to which he had been appointed by WAPDA, the Provincial Service Tribunal had no jurisdiction to entertain his appeal and that WAPDA was competent to lay down conditions in the nature of qualifications for promotion to higher appointments and as the employee had not fulfilled the condition upon which he was promoted the Authority was competent to revert him to the post he was holding before the promotion

Where the Commissioner, Workmen's Compensation assumed the jurisdiction on the application of a Labour Officer, and had directed the employer to pay a sum of Rs.43,200 to his workers and staff members, such order of the Commissioner, was illegal and of no legal effect and the same was set aside.

Where for any reason accused or his authorised agent which necessarily includes the Advocate engaged for defence causes delay, protection contained in third proviso to S. 497(1), Cr.P.C. cannot be invoked

While ascertaining cumulative effect of ultimate delay in disposal of the case, it would not be merely mathematical calculation of excluding such days for which adjournment was obtained by accused or his counsel.

Ailment of accused according to medical report was likely to have hazardous effects on his life because stress and strain could aggravate his disease

Accused was undoubtedly sick and needed treatment in conducive conditions free from any kind of pressure

Accused could not have full peace of mind in custody which could surely make his recovery from ailment slow putting seriously his life to danger

Bail was allowed to accused in circumstances.

Despite the positive direction of High Court trial of accused was not concluded by the Trial Court within three months and the Investigating Officer was yet to be examined in the case

Accused was not in any way responsible for the delay in conclusion of the trial

On the undertaking given by State Counsel that trial of accused would definitely be concluded within one month the petition for leave to appeal was converted into appeal and Trial Court was allowed one month's time to conclude the trial, failing which on the expiry of one month's period accused would be deemed to have been granted bail and would be enlarged on bail by the Trial Court.

Bail can be refused to an accused under the fourth proviso to S. 497 (1), Cr.P.C. despite the fact that his trial could not be completed within the prescribed period only if he is either a previous convict for an offence punishable with death or imprisonment for life or he is found by the Court to be a hardened, desperate or dangerous criminal or is involved in an act of terrorism.

Petitioner claiming that these being provisions for furnishing of security, High Court should not have ordered deposit of decretal amount in Executing Court

Appellate Court while staying execution of decree for recovery of money has discretion either to order deposit of decretal amount in Executing Court or to order furnishing security

Such discretion having been validly exercised by High Court no case was made out for interference

Leave to appeal was refused in circumstances.

Leave to appeal was granted to consider whether appeal before Service Tribunal was barred by time; whether jurisdiction of Sindh Service Tribunal was barred by proviso (b) of S. 4, Sindh Service Tribunals Act, 1973; and whether adverse remarks in A.C.R. for the year 1972 which were allegedly not communicated to the civil servant could be made basis for order of rejection of civil servant's claim for seniority/promotion by the Authority.

Leave to appeal was granted to consider; whether High Court had correctly extended benefit of second proviso to S. 13(2) (vi) of the Ordinance to tenants and; whether. predecessor-in-interest of tenants by entering business of partnership on strength of specified deed was guilty of subletting of shop in question, within meaning of S. 13 (2) (ii) (a) of the Ordinance.

Temporary work-charged staff employed in Pakistan Public Works Department was declared to be entitled to such financial terms and conditions as would be admissible to them if they were regular temporary Government servants by order of the President of Pakistan

Leave to appeal was granted to consider the effect of proviso to S.1(4), proviso of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which exclude the applicability of provisions of said Ordinance to employees (like the respondents)in respect of whom statutory rules existed; even if the said Ordinance was applicable whether the employees could be taken to be permanent employees in view of Supreme Court decision in Muhammad Yaqoob. v. Punjab Labour Court No. l and others 1990 SCMR 1539 and whether in view of Supreme Court decision in Faqir Muhammad v. Director of National Savings, Multan PLD 1992 SC 127 such employees could not be held to be engaged in the administration of the State.

Leave to appeal was granted to consider whether appeal before Service Tribunal was barred by time; whether jurisdiction of Sindh Service Tribunal was barred by proviso (b) to S. 4, Sindh Service Tribunals Act, 1973; and whether adverse remarks in A.C.R. - for the year 1972 which were allegedly not communicated to the civil servant could be made basis for order of rejection of civil servant's claim for seniority promotion by the Authority.

Appointment of Patwaris by Recruitment Advisory Committee constituted for the concerned District comprised of 9 Members of Punjab Provincial Assembly, 4 Members of National Assembly and one Member of Senate

Eight posts of Patwaris having fallen vacant, they were divided among Members of. Provincial Assembly to be filled in by them to whose constituency such posts related

Deputy Commissioner's proposal that appointments should be made on merits after following prescribed procedure was turned down

Appointments were, thus, made without following any procedure and. without considering comparative merits of candidates under orders dictated by Members concerned

Held, in matters of appointment to public service, candidates have right to insist that selection be carried strictly on merits, where any prejudice was caused, to such candidates on account of failure to follow prescribed procedure, or where impugned appointments were otherwise mala fide or outcome of extraneous considerations, Constitutional petition would be competent against such appointments

Prescribed procedure having not been followed and merits of candidates having been ignored in making appointments of Patwaris, appointments in question were struck down as being violative of law

Collector of the District was directed to make fresh appointments strictly in accordance with law.

Punjab Tehsil, Sub-Divisional and Local Committees -(Removal of Chairman and Members) Rules,, 1981, R. 1.-Constitution of Pakistan (1973), Art. 185(3)

Leave to appeal was granted in the case where District Ushr and Zakat Committee in spite of the provisions made in first proviso to R. 17, Punjab Local and the Tehsil/Sub-Divisional Zakat and Ushr Committees (Constitution) Rules, 1979 proceeded to dispose of grievance against petitioners as a pending appeal

After the disposal of appeal in terms of said proviso, proceedings should have been started and concluded under the Punjab Tehsil, Sub-Divisional and Local Committees (Removal of Chairman and Members) Rules, 1981.

Authority under Payment of Wages Act, 1936 awarding compensation to the extent. of five times of wages without any lawful authority

Appeal against such order was dismissed on point of limitation

Effect

High Court in exercise of its Constitutional jurisdiction could strike down order of Authority which had been passed without jurisdiction, even if appeal against the same had been dismissed on point of limitation.

Employee against whom disciplinary action had been taken could urge that show-cause notice was not issued by the competent authority

Chairman of the Bank was competent to promote all employees except officers from the post of Senior Grade Officers to Executive Directors and Executive Directors to Senior Executive Directors

Chairman, therefore, was not competent to promote or to redesignate an employee, from Executive Director to Senior Executive Director and such officer who was not promoted or designated as authorised officer by competent authority was not authorised to issue show-cause notice to any other employee of the Bank

De facto doctrine which provided that the defective appointment .of a Judge or of any other officer could not be permitted to be questioned in a litigation between two private litigants was not applicable to such a case.

Record showed finding of three medical experts (Board) (appointed with the consent of parties) making diagnosis of the illness of the accused with positive recommendation that he needed medical treatment which was not possible in jail

Authenticity of said medical report of the Board having not been challenged on the ground that it was factually incorrect or obtained for extraneous considerations, Chairman or Members of the Medical Board were not called in the Court to explain any aspect of the report which was deficient

Prosecution also failed to satisfy the Supreme Court about the sustainability of order of Special Appellate Court rejecting bail in presence of positive findings of Medical Board

Supreme Court admitted accused to bail in circumstances.

Leave to appeal was granted to consider whether the provision S.17, Court Fees Act, 1870 was subject to the provisions of proviso to Art.l Sched. I of the said Act.

Fact that provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not available to employee of National Bank of Pakistan would not necessarily lead to the conclusion that he was not entitled to invoke S.25-A, Industrial Relations Ordinance, 1969.

Court can take into consideration other material produced by the prosecution in order to show that the case falls within prohibition contained in S.497(1), proviso (4), Cr.P.C.

Definition.

`Capital gains' does not include immovable property Compulsory acquisition of capital assets was not to be treated as transfer of capital assets

Exclusion of immovable property from the ambit of `capital gains' was in line with item 50 of the Federal Legislative List Part I, Fourth Schedule of the Constitution of Pakistan (1973).

Art.6(1), Proviso [added by Chitral (Distribution of Property and Settlement Disputes Immovable Property) Amendment Order (11 of 1981)]

Settlement of Disputes of Immovable Property (Chitral) Regulation (III of 1974), S.6

Power of review

Extent

Order passed by Federal Government or any person authorised by Government in this behalf, under provisions of S.6, Regulation III of 1974, as it existed immediately before 15th March, 1978 could be reviewed, and in so reviewing, Authority could modify, reverse or confirm such order

Addition of proviso to Art.6(1) of Order 12 of 1980

Effect.

Provisions of S.497(1), provisos (1) & (3), Cr.P.C. are available to the Special Court and the High Court in a case in which an accused person may be facing trial under the Act before a Special Court.

Accused had fulfilled the conditions laid down in third proviso of subsection (1) of 5.497, Cr.P.C. on factual premises which had not been controverted on behalf of State

Accused were admitted to bail in circumstances.

Leave to appeal was granted to examine the full effect of proviso added to S.115, C.P.C. by Amending Ordinance of 1980.

Petitioners civil servants were given seniority over respondents in consequence of an order passed by the President of Pakistan under S. 23, Civil Servants Act, 1973

Legality of such order was challenged in appeal before Service Tribunal which held the view that petitioners could not legitimately be placed over the respondents in the seniority list

Leave to appeal

Petitioners'contention was that Service Tribunal in spite of conceding that case of petitioners fell within purview of S. 23, Civil Servants Act, 1973, proceeded to hold that according to Service Rules seniority could not be given to petitioners over respondents

Petitioners'further contention was that if their case properly fell within domain of power under S. 23, Civil Servants Act, 1973, application of normal rules was out of question; otherwise whole purpose and intent underlying S.23, would be destroyed

Petitioners emphasised the overriding effect of S. 23, Civil-Servants Act, 1973, vis-a-vis, the normal Rules, in cases of hardship

Next contention was that Service Tribunal was not competent to examine in what manner power under S. 23, Civil Servants Act could be exercised by the President of Pakistan

Contention was also raised that appeals before Service Tribunal were barred under S: 4(1), proviso (a), Service Tribunals Act, 1973, in that no representation was filed against the impugned seniority list

Petitioners had raised substantial questions of law which could affect a large number of cases

Contentions touching the interpretation and scope of S. 23, Civil Servants Act, 1973, were also of first impression

Leave to appeal was granted in circumstances:

Old age per se, unless accompanied with the plea of sickness or infirmity, is not sufficient to attract provisions of first proviso to subsection (1) of S.497, Cr.P.C: and as such does not furnish a valid ground for bail.

Statutory period, therefore, will be counted from the date of arrest of accused and not from the date when file was received by trial Court after remand order by High Court

Statutory period counted in this way came to about five years which legally entitled accused to bail

File did not show that accused were desperate or delay was caused due to their act

State counsel had also accepted the aforesaid proposition

Accused were admitted to bail in circumstances.

Delay in trial was not of the type which entitled accused to concession of bail as a matter of right- High Court, held, was right in declining bail to accused.

Gift by declarant/donor in favour of her son, illegally cancelled by Revenue Authority on the false and malicious report of Patwari

Declarant's statement before Revenue Officer was purported to be that she wanted to make a gift of the land to her son whereupon Revenue Authority's note was that such transfer would be ineffective in view of provisions of M.L.R. 115

Neither such statement had been produced nor was there any order of the Collector while reliance had been upon a statement of the donor/declarant recorded by a Revenue Officer although there already ex1sted an entry in regard to making of an oral gift and transfer of possession which was said to be illegally cancelled and which related to an earlier transaction of an oral gift and delivery of possession in pursuance thereto

Decision of Cotton Ginning Corporation that petitioner was not a whole time employee of establishment and thus refused to oblige him by accepting his claim for the non-payment of wages as such

Finding of fact against the petitioner being to the effect that he could not be held whole time employee of the establishment in the sense that petitioner was to look after the interest of the original owners while the factory was being run by the lessees

Petition being without any substance, was dismissed.

Accused were thus not entitled to grant of bail under third proviso to S.497(1), Cr.P.C.

Leave to appeal granted to consider whether omission of the proviso in 1978 could affect the order of cancellation which had been passed 11 years earlier and whether after the respondents had been found guilty of fraud and misrepresentation, could they be permitted to seek the equitable relief of declaration under S.42 of Specific Relief Act from a Civil Court.

Use of the words "in writing" following the word "consent" signifies the intention of the Legislature that "consent" expressed in any other manner, howsoever strong and reliable it may be, the same should not be taken into account unless it is in writing.