Summary: (a) Customs Act (IV of 1969)--- ----S. 31(A)---Sales Tax (VII of 1990), Ss. 6(1) & 6(1)(A)---Constitution of Pakistan, Art. 199---Striking down of a legislative enactment sought---Constitutional jurisdiction of the High Court, to strike down a legislative enactment---Scope---Vires of S. 31(A) of the Customs Act, 1969 and Ss. 6(1) & 6(1)(A) of the Sales Tax Act, 1990 ('the vires under-challenge') were challenged by invoking constitutional jurisdiction of the High Court, however, Single Judge (of the High Court), instead of deciding the vires-under-challenge, referred the matter to the respondents (Collector of Customs)---Plea of the appellant was that the respondents /Collectors of Customs had no jurisdiction to interfere with vires of law---Validity---By way of impugned order that the Single Judge in Chamber, instead of deciding the vires under challenge, referred the matter to the respondents (Collector of Customs) who had no jurisdiction to interfere with vires of law---Where any orders or judgments are passed by any Court or authority who has no jurisdiction or is barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same---In the present matter, Single Judge of the High Court, instead of deciding vires under challenge in light of the guidelines / principles to strike down or to declare void a legislative enactment, referred the matter to the respondents (Collectors of Customs), who had no jurisdiction or authority to interpret the vires of any law which was the core function of the higher Courts---High Court set-aside the impugned order ; consequently, constitutional petition would be deemed to be pending before the Single Judge and was to be decided afresh as per law---Intra Court Appeal was allowed accordingly. Abdul Majeed Khan through L.Rs. and others v. Ms. Maheen Begum and others 2014 SCMR 1524; Muhammad Ayub and another v. The Member (Judicial-III), BOR, Punjab, Lahore and others 2021 MLD 2110; Lahore Development Authority through DG and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others PLD 2007 SC 133; Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2005 SC 719; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan and others 2013 SCMR 1337 and Messrs Master Foam (Pvt.) Ltd. and 7 others v. Government of Pakistan through Secretary, Ministry of Finance and others 2005 PTD 1537 ref. (b) Law, vires of--- ----Legislative enactment---Power to strike down / declare void a legislative enactment---Guidelines and principles (i) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; (ii) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; (iii) a statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt; a reasonable doubt must be resolved in favour of the statute being valid; (iv) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; (v) The Court will not decide a larger constitutional question than is necessary for the determination of the case; (vi) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; (vii) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; (viii) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; (ix) Mala fides will not be attributed to the legislature. Lahore Development Authority through DG and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others PLD 2007 SC 133; Watan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2005 SC 719; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan and others 2013 SCMR 1337 and Messrs Master Foam (Pvt.) Ltd. and 7 others v. Government of Pakistan through Secretary, Ministry of Finance and others 2005 PTD 1537 ref. Barrister Sirdar Ahmed Jamal Sukhera, Advocate Supreme Court for Appellant. Sajid Ilyas Bhatti, Additional Attorney General with Tahir Raheel Awan, Assistant Attorney General-XIX for Respondent No.1. Yousaf Khan, S.O. I.R. Legal, RTO, Rawalpindi. Nemo for Respondents Nos.2 to 5.

Summary: Sales Tax Act (VII of 1990)--- ----Ss. 21(2) & 21(5) [as inserted by the Finance Act, 2024]---Sales Tax Rules, 2006, R. 12---Civil Procedure Code (V of 1908), O. XXIX, Rr. 1 & 2---Issuance of notice by tax Authority---Assailing of notice by filing suit---Temporary injunction, seeking of---Factual controversies---Right of appeal, availability of---Effect---Registered person / Company (plaintiff) filed suit, invoking original jurisdiction of High Court, to challenge a 'pre-suspension notice' issued to plaintiff by the Commissioner-Inland Revenue ('Commissioner') for initiating suspension/blacklisting proceedings ('impugned notice')---Plaintiff prayed for a temporary injunction to restrain the Commissioner from taking coercive action against the plaintiff---For seeking temporary injunction, grounds taken by the petitioner / plaintiff (registered person) included that the impugned notice was without the signature of the Commissioner, which was received when date of hearing had passed, and that the allegation in the impugned notice that the petitioner / plaintiff made purchases from suspended or blacklisted vendors was belied by the tax profile of those vendors which showed that at the relevant time those vendors were not suspended nor blacklisted---Validity---The impugned (pre-suspension ) notice was essentially a notice to show-cause against suspension of sales tax registration---It was a precursor to blacklisting proceedings---By virtue of subsection (5) of S. 21 of the Sales Tax Act, 1990, which had been inserted by the Finance Act, 2024, a remedy was now available to the Plaintiff before the Chief Commissioner in the event an order of suspension was passed against the plaintiff/ petitioner---Excepting a jurisdictional defect, a Court of law did not ordinarily interfere with a show-cause notice issued by a statutory authority lest such interference stifled the exercise of fact-finding and provided an escape from special statutory proceedings and remedies---The grounds urged by petitioner / plaintiff for interference were based on the facts of the case and did not relate to the jurisdiction of the Commissioner in issuing the impugned notice---Said facts had been laid by the petitioner / plaintiff before the Commissioner who had yet to pass any order thereon---The temporary injunction sought in effect required (this/High) Court to determine facts instead of the Commissioner---Petitioner /plaintiff did not bring forth any exception for interfering with the impugned notice---Application for grant of temporary injunction, was dismissed, in circumstances. Taimur Ali Mirza for Plaintiff. Nemo. for Defendants. Date of hearing: 21st January, 2025.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----Ss. 347 & 498---Control of Narcotic Substances (Amendment) Act (XX of 2022), S.9(1)(3)(D)---Possession of narcotic substance---Pre-arrest bail, confirmation of---Transfer of case from Judicial Magistrate to Special Judge---No notice issued to accused persons---Procedural fairness---Scope---Allegations against the accused-petitioners were that 1600 kilograms bhang was recovered from their truck---After completion of the investigation, a report in terms of S.173, Cr.P.C was submitted before the Special Judge, however said Special Judge returned the FIR and directed the SHO for submitting the same before the concerned Judicial Magistrate having jurisdiction---In compliance thereof, the Investigating Officer submitted challan/police report before the Judicial Magistrate under Ss.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---During pendency of the case, application under S.497, Cr.P.C was filed and both the applicants were admitted to post-arrest bail---Later the case was referred to the Special Judge on the pointation of ADPP as bhang was inserted in Section 2(b) of the amended Control of Narcotic Substances Act, 2022---Order passed by Judicial Magistrate, reflected that when case was fixed for recording evidence, the ADPP for the State pointed out that the case after the Control of Narcotic Substances (Amendment) Act, 2022 came under CNS Act, as such, the Judicial Magistrate had rightly referred the case to the Court of Sessions/Special Judge under S. 347, Cr.P.C.--- Moreover, this was a special enactment and the case become triable by the Court of Special Judge---More so, when the case came under the category of Control of Narcotic Substances (Amendment) Act, 2022 the Magistrate was not empowered to try the same as it carried punishment beyond its powers---After passing the order by the Judicial Magistrate neither it was challenged by the applicants nor they raised any objection at the time of passing such order---However, counsel for the applicants filed pre-arrest bail before the Court of Session/Special Judge for CNS cases---After hearing the parties, the said bail application was dismissed---If the charges or the nature of the case changed which might result in the accused facing a more severe trial, a show-cause notice was necessary to inform the accused about the change in the Court's jurisdiction and to allow them an opportunity to respond---Even no show cause notice was issued by the Judicial Magistrate to the accused as to why their bail granting order shall not be recalled, which was an essential procedural safeguard to ensure fairness in the criminal justice system as it allowed the accused to challenge the transfer or adjust their defense strategy in light of the more serious charges, which they might face---In this case, the Judicial Magistrate should have issued such a notice to the applicants to uphold procedural fairness---Applicants were continuously attending the Trial Court and there was also no complaint that they had misused the concession of bail---Bail could not be denied to the accused merely for the said reasons---In such circumstances of the case, the interim pre-arrest bail already granted to applicants was confirmed. Muhammad Anwar v. The State and another 2024 SCMR 1567 rel. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations made in bail orders are tentative in nature and should not influence the Trial Court while deciding the case on merits. Mian Taj Muhammad Keerio for Applicants. Shahid Ahmed Shaikh, A.P.G. Sindh along with SIP Hamid Ali Otho, SHO Jhok Shareef for the State. Date of hearing: 27th January, 2025. Order Amjad Ali Sahito, J .--- Through instant bail application, the applicants/accused namely, Ali Ahmed and Riaz Siyal seek post-arrest bail in Crime No.122/2023 for the offence under section 9(1) (3) (D) of CNS Act, 2022 registered at Police Station B-Section, Tando Muhammad Khan. Earlier the bail plea of the applicants/accused was declined by the learned Sessions Judge/Special Judge for C.N.S.A. Tando Muhammad Khan vide order dated 29.11.2024. 2. Background of the case is that on 18.11.2023, between 12:00 PM and 3:00 PM, a police team from PS B-Section Tando Muhammad Khan, led by SIP Liaquat Ali Gopang, conducted vehicle checking at Check Post Shaheed Baba. During checking, a Blue Mazda bearing No.JZ-8708 was inspected, and while one person fled, two others were apprehended: Ali Ahmed Siyal (driver) and Riaz Siyal. They identified the third person, Muhammad Sarwar Punjabi, as an absconder. The vehicle contained 40 sacks, each weighing 40 kg, filled with brown cotton boxes containing bhang. Total 1600 kg of bhang was recovered. Samples i.e. 500 grams from each sack were sealed for chemical analysis and the remaining bhang was stored. The memo. of arrest and recovery was prepared. Hence, instant case was registered. 3. After registration of the case, the Station House Officer submitted a report under section 173, Cr.P.C. to the Special Judge for CNS/MCTC, Tando Muhammad Khan. However, the Special Judge determined that the crime did not fall under the Control of Narcotics Substance Act, 1997, and held that it comes under the Prohibition (Enforcement of Hadd) Order, 1979. As a result, the learned Judge returned the report to the SHO to be submitted to the concerned Judicial Magistrate, as the case was exclusively triable by a Magistrate Court. 4. Learned counsel for the applicants has contended that since no case under the Control of Narcotic Substances Act was established, as such, the FIR was converted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and referred to the Civil Judge and Judicial Magistrate-III, Tando Muhammad Khan, who took cognizance of the offense under the orders of learned Special Judge, Tando Muhammad Khan vide order dated 08.12.2023. The applicants then applied for post-arrest bail, which was granted. However, when the case was fixed for evidence, the ADPP for the State pointed out that the case comes under the Control of Narcotics Substances Act due to an amendment that included "BHANG", "SIDDHI" and "GANJA" in the definition of narcotics and that the alleged recovered property exceeded 20,000 grams, the punishment could be upto life imprisonment with a fine but shall not be less than 14 years with a fine; hence, the learned Magistrate referred the case to the Sessions Court under section 347, Cr.P.C./want of jurisdiction. The learned counsel has further contended that the ADPP instead to point out so, he should have challenged the order passed by the Special Judge on 08.12.2023, before this Court, as that order still remained in field. He further contended that even there is no application moved by the learned ADPP or Investigating Officer of the case in this regard. He has further contended that since after referring the case to the Court of Learned Special Judge, the applicants had apprehension that they may not be taken into custody, as such, bail application was filed, but which was dismissed without considering that they were already on bail granted by learned Magistrate. Learned counsel further contended that since the applicants/accused have been admitted to post arrest bail and they have not misused the concession of bail even show cause notice was not issued by the learned Magistrate to the accused persons that why not their bail already granted to them shall be recalled, as such, on jurisdictional point between two Courts, the applicants may not suffer and in fact no bhang was recovered from them but they were booked falsely. He, therefore, prayed that the interim pre-arrest bail granted to the applicants may be confirmed. 5. On the other hand, the learned A.P.G. for Sindh has contended that the case involves a jurisdictional issue related to the recovery specifically whether it falls under special or ordinary law. He further contended that initially the learned Special Judge ordered on the report under section 173, Cr.P.C. that the case is falling under the Prohibition (Enforcement of Hadd) Order, 1979; however, after having look at an amendment in the CNS Act, the learned Magistrate referred the case with opinion on the pointaiton of learned ADPP that the case falls under CNS amended Act and its Court is incompetent to try the case, as such, the jurisdiction lies with the Sessions Judge/Special Judge. The A.P.G. further contended that the only issue is whether the case should have been referred to the Court of learned Magistrate first or, later, to the Sessions Judge/Special Judge. The A.P.G. pointed out that before referring the case, the Magistrate should have issued a show-cause notice to the accused, asking why their bail should not be canceled, as such, the Magistrate has wrongly passed the order. 6. Heard and perused. 7. The case of prosecution is that the police arrested the applicants and recovered 1600 kg of Bhang while one accused made his escape good. As such, FIR was registered under sections 9(1)(1)(D) of CNS Act, 2022. After completion of the investigation, a report in terms of section 173, Cr.P.C. was submitted before the learned Special Judge for CNS cases/MCTC, Tando Muhammad Khan; however, learned Special Judge vide order dated 08.12.2023 returned the FIR and directed to the Station House Officer Ashiq Balouch for submitting the same before the concerned Judicial Magistrate having jurisdiction. In compliance thereof, the Investigating Officer submitted challan/police report before the learned Civil Judge and Judicial Magistrate-III, Tando Muhammad Khan. 8. It is important to note here that when learned Sessions/Special Judge returned the report filed under section 173, Cr.P.C. the police officer has submitted the challan under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979. It would be appropriate to reproduce the relevant para of the order dated 08.12.2023 passed by learned Sessions Judge, which reads as under:- "The instant crime does not fulfill the requirement of Control of Narcotics Substance Act, 1997 and comes under Prohibition (Enforcement of Hadd) Order, 1979 and as per Schedule of Prohibition (Enforcement of Hadd) Order, 1979, 1. The leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis Sativa L) including forms known as Bhang Siddhi or Ganja). 2. Charas that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing or transport. 3. Any mixture, with or without natural materials or any of the articles mentioned in entries 1 and 2, or any drink prepared therefrom. 4. Opium and opium derivatives as defined in the Dangerous Drugs Act, 1930 (II of 1930). 5. Coca leaf and coca derivatives as defined in the aforesaid Act. 6. Hashish. 9. During pendency of the case, application under section 497, Cr.P.C. was filed and both the applicants were admitted to post-arrest bail in the sum of Rs.30,000/- each and PR bond in the like amount, after grant of bail by the learned Civil Judge and Judicial Magistrate-III Tando Muhammad, a charge was framed and at the time of recording evidence, the learned ADPP for the State pointed out that instant case comes under the Control of Narcotic Substances (Amendment) Act, 2022 and as per amendment of the Act, the "Bhang, Sidhhi or ganja" are inserted in Section 2 under clause (b) of the Act. On such basis, the learned Magistrate referred the case to the learned Sessions/Special Judge under section 347, Cr.P.C. 10. It would be relevant to mention here that the National Assembly/Majlis-e-Shoora (Parliament) has made amendments in the Control of Narcotic Substances Act, 1997 and this is called the Control of Narcotic Substances (Amendment) Act, 2022. In the said Act, the bhang is also inserted in view of clause (b) in section 2 of CNS Act. The said insertion of bhang under clause (b) of section 2 is reproduced as under:- "(b) in clause (d), in paragraph (ii) after the word "known", the words "and include all forms known as bhang, siddhi or ganja" shall be inserted;" In the said amendment the Table was prepared wherein the punishment provided for bhang in its quantity clause (a) upto 999 grams is imprisonment which may be extended to three years but shall not be less than six months along with the fine and lastly in clause (d) for the quantity of 20000 grams or more imprisonment which may be extended to life imprisonment but shall not be less than fourteen years along with fine. In the instant case, learned Sessions/Special Judge was not properly guided by the learned ADPP or Police Officer, as such, an improper order was passed treating the case under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979; although, in fact, the bhang was also inserted in the Control of Narcotic Substances (Amendment) Act, 2022, as stated above. 11. When it was confronted from learned counsel for the applicants that if after the order is passed by learned Sessions/Special Judge whether the Magistrate can yet continue to try the case despite fact that after Amendment made in the year 2022 in the CNS Act, on recovery of 1600 kg of bhang, the accused is liable for punishment upto life imprisonment but shall not be less than fourteen years years along with fine as described in clause (d) of the column of Quantity in the Table for contravention of sections 6, 7 and 8 of the Act besides the Judicial Magistrate is not empowered to award such amount of sentence, the learned counsel replied in positive and stated that it is prime duty of Magistrate to obey the judicial order whether it is right or wrong. Learned counsel, however, stated that if any wrong order is passed in this regard, then it was duty of the Prosecutor or police either to challenge the same or to file application for its review within the prescribed time. 12. I have also minutely perused the order passed by learned Judicial Magistrate, which reflects that when case was fixed for recording evidence, the ADPP for the State pointed the jurisdictional point of the case after the Control of Narcotic Substances (Amendment) Act, 2022 the instant case comes under CNS Act, as such, the learned Magistrate has rightly referred the case to the Court of Sessions/Special Judge under sections 347, Cr.P.C. This is a special enactment and the case became triable by the Court of Special Judge. More so, when the case came under the category of Narcotic Substance Act, the Magistrate is not empowered to try the same as it carries punishment beyond its powers as enunciated under section 32 of the Code of Criminal Procedure, 1898 whereby under clause (a) the Magistrate of the first class is only empowered to award imprisonment for a term not exceeding three years including such solitary confinement as is authorized by law as well fine not exceeding forty five thousand rupees (arsh; daman). After passing the order dated 21.10.2024 by the learned Magistrate neither it was challenged by the applicants nor they raised any objection at the time of passing such order. However, learned counsel for the applicants filed pre-arrest bail before the Court of Sessions/Special Judge for CNS Cases. After hearing the parties, the said bail application was dismissed. 13. It is important to note here that if the charges or the nature of the case changes which may result that the accused may face a more severe trial, a show-cause notice is necessary to inform the accused about the change in the court's jurisdiction and to allow them an opportunity to respond. Even no show cause notice was issued by the learned Magistrate to the accused that why their bail granting order shall not be recalled. This is an essential procedural safeguard to ensure fairness in the criminal justice system as it allows the accused to challenge the transfer or adjust their defense strategy in light of the more serious charges, which they may face. In this case, the learned Magistrate should have issued such a notice to the applicants to uphold procedural fairness. 14. Admittedly before reference of the case, the applicants were on bail. Even, learned Magistrate has not recalled the bail granting order, which is still in field. In the case of 'Muhammad Anwar v. The State and another' [2024 SCMR 1567], the Honourable Supreme Court has held that; "10. Liberty of a person is a precious right which has been guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973. By now it is also well settled that it is better to err in granting bail than to err in refusal because ultimate conviction and sentence can repair the wrong resulted by a mistaken relief of bail;" 15. The applicants are continuously attending the trial Court. There is also no complaint that they have misused the concession of bail. The bail cannot be denied to the accused merely on the aforementioned reasons. Since the applicants were admitted to bail subject to their furnishing a solvent surety in the sum of Rs.30,000/- each; however, keeping in view the above circumstances of the case, their interim pre-arrest bail already granted to them in the sum of Rs.50,000/- each is confirmed with enhancement of surety that the applicants shall have to furnish more surety of Rs.50,000/- each with PR bond in the like amount. At this juncture, learned counsel appearing on behalf of the applicants seeks a week's time to furnishing surety by the applicants as ordered today. One week's time is allowed. 16. In view of the above position, the order dated 08.12.2023 passed by learned Special Judge for CNC/MCTC, Tando Muhammad Khan shall not be treated in field and the same being unlawful is set aside. 17. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicants on merits. JK/A-28/Sindh Bail confirmed.

Summary: (a) Contempt of Court Ordinance, 2003 ----S. 19—Withdrawal of appeal against show-cause notice—Effect of discharge of contempt proceedings Appellant, an Additional Registrar (Judicial), Supreme Court, sought withdrawal of appeal filed under S. 19 of the Contempt of Court Ordinance, 2003 challenging a show-cause notice—Since the original Bench had already discharged the contempt notice, continuation of the appeal was rendered infructuous—Held, permission to withdraw the appeal was reasonable and appropriate; consequently, appeal dismissed as withdrawn. (b) Constitution of Pakistan ----Art. 204—Jurisdiction in contempt matters—Discharge of notice—Consequent withdrawal of appeal Where contempt proceedings are discharged by the competent Bench exercising jurisdiction under Art. 204 of the Constitution read with the Contempt of Court Ordinance, 2003, any pending appeal against the show-cause notice becomes infructuous and liable to be dismissed as withdrawn. Disposition: Application for withdrawal allowed; appeal dismissed as withdrawn. (Order dated 27 January 2025; Original Jurisdiction—Crl. I.C.A. No. 1 of 2025 & Crl. M.A. 135/2025)

Summary: Summary pending

Summary: Bail granted --- (a) Criminal Procedure Code (V of 1898) ----S. 497---Post-arrest bail---Scope of “further inquiry”---Evidentiary value of statement of co-accused and call data record (CDR)---Accused not nominated in the FIR and no direct evidence available---Disclosure statement of co-accused and alleged confession of applicant before police held inadmissible under Art. 38 of the Qanun-e-Shahadat Order, 1984---Statement of co-accused recorded during investigation could not be used against another accused---Call Data Record not found to establish any nexus between deceased and accused and, even otherwise, is not conclusive evidence of guilt---Case of applicant thus fell within ambit of “further inquiry”---Held, when material on record raises doubt requiring deeper examination at trial, bail cannot be withheld merely because the offence is serious in nature---Applicant found entitled to concession of bail. Cited Cases: • The State through Director ANF, Karachi v. Syed Abdul Qayum 2001 SCMR 14 • Raja Muhammad Younas v. The State 2013 SCMR 669 (b) Administration of justice--- ----Principle of liberty---Court observed that an individual entitled to bail should not be detained unnecessarily, since wrongful incarceration cannot be compensated after acquittal---Trial court is to decide the case on its own merits uninfluenced by tentative observations made at bail stage. Disposition --- Bail application accepted. Applicant/accused Bibi Siddiqa granted post-arrest bail in FIR No. 08 of 2024, Police Station Saranan, District Pishin, upon furnishing surety of Rs. 600,000/- to satisfaction of trial court. Observations held tentative and not to influence trial.

Summary: Even if the defendant are placed ex-parte the Court can still demand sufficient evidence from the plaintiff to prove the claim. This is important for ensuring the judgment is based on solid proof.

Summary: (a) Offense of Qazf (Enforcement of Hudood) Ordinance, 1979: ---- Ss. 3, 5, 6 & 7 ---- Qazf liability for denying paternity of a child ---- Whether denial of paternity of a child amounts to qazf against the mother ---- Respondent No. 2, after divorcing the petitioner, denied the paternity of their third daughter, alleging that he was abroad during the time of conception ---- The Federal Investigation Agency (FIA) confirmed that the respondent was present in Pakistan within the relevant period ---- Held, denial of paternity, when unfounded, constitutes an attribution of zina against the mother, falling under the definition of qazf ---- The Federal Shariat Court had previously held that hadd punishment could not be awarded due to lack of tazkiyat-al-shuhud (witness verification) ---- Supreme Court ruled that tazkiyat-al-shuhud was unnecessary as the qazf was committed in the presence of the court. (b) Islamic Law ---- ---- Li’an and its applicability in Qazf cases ---- Procedure under S. 14 of the Ordinance ---- Li’an (mutual imprecation) applies when a husband accuses his wife of zina while the marriage is subsisting ---- Held, since the respondent’s accusation was made after divorce, Li’an was not applicable ---- Respondent’s statement, both in court and in the divorce deed, constituted qazf liable to hadd under S. 6(1)(b) of the Ordinance ---- Reference made to Islamic juristic authorities, including Imam Kasani, Imam Marghinani, and Imam Sarakhsi, affirming that post-divorce denial of paternity attracts qazf liability rather than Li’an. (c) Qanun-e-Shahadat Order, 1984: ---- Art. 128 ---- Legitimacy of a child ---- Presumption of legitimacy in Islamic and statutory law ---- A child born during a valid marriage or within two years after its dissolution is conclusively presumed to be legitimate, provided the mother remains unmarried ---- Respondent No. 2’s denial of paternity was contrary to this presumption ---- Supreme Court reaffirmed the principles established in Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan (PLD 2015 SC 327), emphasizing the societal importance of protecting the legitimacy of children. (d) Criminal Procedure ---- ---- Withdrawal of complaint and impact on Hadd punishment ---- In Islamic jurisprudence, the complainant’s continued pursuit of punishment is essential for enforcing Hadd ---- Petitioner withdrew her request for the respondent’s punishment, stating that her only concern was the legitimacy of her child ---- Held, as per classical juristic principles, withdrawal created shubhah (doubt), preventing the imposition of Hadd punishment ---- Supreme Court sustained the acquittal of Respondent No. 2 but clarified that his act constituted qazf liable to hadd. ----Disposition: Shariat Review Petition allowed to the extent that Respondent No. 2’s accusation constituted Qazf, not Li’an. However, as the petitioner withdrew her demand for punishment, proceedings could not continue. The legitimacy of the child was affirmed, and Respondent No. 2’s acquittal was sustained.

Summary: (a) Contempt of Court ----Intra-Court Appeal---Alleged violation of court order---Scope of appellate interference---Appellant’s absence from duty---Findings of Single Judge---No interference warranted. The appellant filed an Intra-Court Appeal (I.C.A) against the order of the learned Single Judge in Chambers dismissing his contempt petition. The appellant contended that he was denied the opportunity to be heard as he was not provided a copy of the comments filed by respondent No.1 and that the Single Judge failed to appreciate the documents annexed with the petition. The High Court held that the impugned order had adequately considered the facts, including the appellant’s own application for leave, his prolonged unauthorized absence, and multiple notices directing him to resume duty. The record revealed no evidence that the appellant was prevented from rejoining duty. The Single Judge properly addressed all factual and legal issues, finding no violation of the court’s prior order. The Court reiterated that appellate interference is not warranted where the impugned order is well-reasoned and supported by the record. Consequently, the I.C.A was dismissed in limine for lack of merit.

Summary: (a) Criminal Procedure Code (V of 1898): ----S. 540---Power of court to summon material witness or examine a person present---Scope and applicability---Trial court allowed prosecution’s application under S. 540, Cr.P.C. to re-summon and re-examine PW-5 (Sikandar Sadiq, ASI), who had conducted initial investigation and prepared related documents---Contention of petitioners that such re-examination would fill lacunas in the prosecution case---Held, trial court has discretion under S. 540, Cr.P.C. to summon, recall, or re-examine a witness if the evidence is essential for a just decision---The power under S. 540, Cr.P.C. is not meant to fill lacunas but to ensure justice---Documents prepared by PW-5 were already part of the investigation record submitted under S. 173, Cr.P.C. and their exhibition did not amount to introducing new evidence---Re-summoning PW-5 would not prejudice the accused and was necessary to meet the ends of justice---Criminal revision petition dismissed. (b) Qanun-e-Shahadat Order, 1984: ----Art. 133---Order of examination of witnesses---Re-examination shall be directed to explanation of matters referred to in cross-examination---Petitioners contended that Art. 133 does not permit recalling of a witness for re-examination in chief after cross-examination has been conducted---Held, Art. 133, Qanun-e-Shahadat Order pertains to the sequence of witness examination but does not override S. 540, Cr.P.C. which empowers the court to recall a witness if necessary for just decision of the case---Re-summoning a witness under S. 540, Cr.P.C. is within the trial court’s discretion and does not contradict the evidentiary framework of Art. 133, Qanun-e-Shahadat Order. (c) Administration of Justice: ----Duty of courts to ensure a fair trial and reach a just decision---Court empowered to summon any witness at any stage to ascertain the truth and arrive at a proper conclusion---Re-summoning a material witness does not amount to unfairly favoring one party but ensures that justice is done---Reliance placed on Nawabzada Shah Zain Bugti v. The State (PLD 2013 SC 160) and other precedents which affirm the wide discretionary power of courts to summon witnesses in the interest of justice. (d) Expeditious Trial: ----FIR was registered on 17.09.2019, and trial had been delayed for over five years---Most prosecution witnesses had been examined, and undue delay was observed in trial proceedings---High Court directed the trial court to conclude the trial within 30 days from receipt of the order, under intimation to the High Court. ----Disposition: Criminal Revision Petition dismissed. Trial Court directed to expedite proceedings and conclude the trial within 30 days.