Summary: Civil Procedure Code (V of 1908)--- ----S. 12---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Legal heirs of an applicant, who had filed an application under S. 12(2), C.P.C. contesting the case---Entitlement---Applicant, who had filed an application under S. 12(2), C.P.C., died while he had assailed dismissal of his application against ex-parte decree by way of filing revision application before the Appellate/District Court---Petitioner/plaintiff assailed judgment passed by appellate/District Court, which, while setting aside ex-parte decree sent the matter for trial to be contested by the parties including legal heirs of the applicant---Validity---Record revealed that performance was sought by the petitioner/plaintiff in the suit against the person (defendant/respondent), who prima facie was only a partner in the business and not the co-owner of the land/project ('property-in-question'); said defendant might have a dispute with the co-partner within their partnership business related to accounts but could not prima facie be deemed to bean owner of the property-in-question---The preferential right of the parties in relation to the property-in-question, if at all pressed, could only be determined during trial in presence of the legal heirs of respondent (applicant under section 12(2) C.P.C.) and not otherwise---The suit in the shape of a claim of the petitioner being pending would be defended by the parties including the legal heirs of applicant under section 12(2), C.P.C., and fresh evidence in this regard may be recorded by the trial court in the said suit, if so desired---No interference was required in the impugned judgment passed by the Appellate/District Court ordering to send the case for trial while setting-aside ex-parte decree---Constitutional petition was dismissed, in circumstances. Abdul Qayyum Abbasi for Petitioner. Muhammad Khalid for Respondent No. 4. Sandeep Malani, Assistant Advocate General Sindh for Respondents. Date of hearing: 1st November, 2023.

Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: Bail granted----(a) Criminal Procedure Code (V of 1898): —S. 497—Bail—Non-prohibitory offense—Principles governing grant of bail. The accused was charged under S. 11(B) of the KP CNSA, 2019, for alleged possession of 250 grams of ice (methamphetamine). The Court observed that the recovered contraband had not yet been confirmed as methamphetamine or amphetamine, and if the chemical analysis revealed it to be amphetamine, it would fall under S. 9(c) of the KP CNSA, 2019, which prescribes a maximum punishment of seven years. As this does not fall under the prohibitory clause of S. 497, Cr.P.C., bail is to be granted as a rule, and refusal is an exception. Reliance was placed on Numan Khan v. The State, Cr. Misc. (BA) No. 398-B of 2021, wherein the Court held that wrongful incarceration in such cases could not be remedied if the accused is later acquitted. (b) Narcotics Control Laws—Safe Custody & Chain of Custody: —Non-compliance with procedural safeguards—Effect on prosecution’s case. The prosecution failed to provide clarity regarding the officers present at the time of the accused’s arrest and the secure transit of the seized sample. There was an unexplained delay of five days in dispatching the sample to the Forensic Science Laboratory (FSL), and even after 20 days, the FSL report was not available. These procedural lapses raised serious doubts regarding the integrity of the evidence and the safe custody of the alleged contraband. The Court emphasized that adherence to strict procedural safeguards is mandatory in narcotics cases, and failure to establish an unbroken chain of custody weakens the prosecution’s case at the bail stage. (c) Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019: —S. 2(aj), S. 9(c)—Classification of substances—Legal consequences. The Court noted that the KP CNSA, 2019, distinguishes between methamphetamine and amphetamine. If the recovered substance is found to be amphetamine, it would be classified as a psychotropic substance under S. 2(aj) of the Act. Consequently, the applicable provision for sentencing would be S. 9(c), which prescribes a maximum punishment of seven years, reinforcing the accused’s entitlement to bail. (d) Bail Jurisprudence—Principle of Caution: —Unnecessary pre-trial detention—Effect. The Court reiterated that pre-trial detention should not be punitive. Given the doubts surrounding the prosecution's case, continued incarceration would amount to wrongful confinement. The principle that "bail is a rule and refusal is an exception" was emphasized, particularly in cases where the offense does not fall under the prohibitory clause of S. 497, Cr.P.C. ----Disposition: Bail granted. Accused released on bail upon furnishing bail bonds of Rs. 300,000 with two reliable sureties.

Summary: (a) Constitutional Law: —Art. 199—Writ jurisdiction—Challenge to Ombudsperson’s order—Jurisdictional defect—Effect. The petitioners challenged the Ombudsperson’s order directing them to vacate the disputed property, pay rent for illegal possession, and register a criminal case. The Court held that the Ombudsperson failed to comply with S. 7 of the Punjab Enforcement of Women’s Property Rights Act, 2021, which mandates due consideration of pending civil litigation. Since no reference to the ongoing civil suit was made in the impugned order, the exercise of jurisdiction was unlawful. Relying on Ali Ahmad v. Ombudsperson Punjab (PLD 2023 Lahore 711), the Court reiterated that non-compliance with statutory prerequisites renders an order legally unsustainable. (b) Punjab Enforcement of Women's Property Rights Act, 2021: —S. 7—Pending civil litigation—Effect on Ombudsperson’s jurisdiction. Under S. 7 of the Act, the Ombudsperson must ascertain whether a civil suit regarding the disputed property is pending before a court and, if so, must defer adjudication. In the present case, the petitioners had already instituted a civil suit before the Ombudsperson was approached. The failure to consider the pending litigation vitiated the order. The Court emphasized that where property disputes are sub judice, the Ombudsperson cannot exercise parallel jurisdiction. (c) Statutory Interpretation: —S. 11 of the Act—Exclusion of writ jurisdiction—Scope and limitations. The respondents argued that S. 11 of the Act bars the High Court’s jurisdiction since the Ombudsperson’s order had been implemented. The Court rejected this argument, clarifying that where a jurisdictional defect exists, the High Court’s constitutional jurisdiction under Art. 199 remains available. If an order is passed in violation of statutory provisions, it is nullity in law and does not gain validity through implementation. (d) Judicial Restraint: —High Court’s approach in matters pending before Ombudsperson & Civil Court. The Court refrained from commenting on the merits of the case to avoid prejudicing concurrent proceedings before the Ombudsperson and the Civil Court. Instead, it focused on the procedural illegality of the impugned order, ensuring that the matter is decided in accordance with S. 7 of the Act. ----Disposition: Writ petition allowed. Ombudsperson’s order set aside. The complaint was remanded for fresh adjudication in compliance with S. 7 of the Act.

Summary: (a) Service Law: --- Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ---- Probation Period ---- Termination of service ---- Whether verbal order or inquiry recommendation can be treated as a termination order ---- Applicability of locus poenitentiae ---- Audi Alteram Partem principle ---- Legality of appointment and procedural fairness. Appellant was appointed as Naib Qasid (Grade 1) in a government school vide office order dated 10.11.2011 on a probation period extendable under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. His salary was disbursed regularly till February 2013, when the Deputy Director Education (DDE), Gilgit verbally ordered its stoppage without legal justification. The appellant was also restrained from performing his duties without formal termination under service rules. His subsequent appeal for salary release was rejected by the Education Department based on an inquiry committee report dated 20.4.2016, which allegedly found him to be a "surplus employee" but did not declare his appointment illegal. Held, that appellant was never formally removed from service through a termination order, and the inquiry report could not be equated to a termination order. Under service laws, termination must follow due process, including a written order specifying reasons, issuance of a show-cause notice, and affording the affected employee a personal hearing. The absence of a termination letter indicated that the appellant remained in service. Moreover, denying the appellant an opportunity to be heard before the inquiry committee violated the principle of natural justice (Audi Alteram Partem). The committee itself found no record of why the appellant was surplused, thereby affirming that no lawful grounds for termination existed. Further held, that the principle of locus poenitentiae applied, as the appointment order had taken legal effect and conferred rights upon the appellant, which could not be rescinded arbitrarily without due process. The department’s failure to follow prescribed termination procedures rendered its actions unlawful, entitling the appellant to reinstatement and unpaid salary. ----Cited Cases: 2015 SCMR 1418 2011 PLC (C.S.) 666 2011 PLC (C.S.) 331 2011 PLC 351 2013 PLC (C.S.) 289 2003 PLC (C.S.) 1376 1997 PLC (C.S.) 666 (b) Administrative Law: --- Inquiry Committee Reports ---- Whether an ex parte report can be relied upon for service termination ---- Right to be heard ---- Burden of proof. Inquiry committee reports dated 16.06.2015 and 04.08.2016 were relied upon by the respondents to justify the appellant’s removal. However, it was found that the appellant was never summoned for personal hearing nor given an opportunity to rebut the allegations against him. The report was ex parte and lacked procedural fairness. The burden of proof to justify termination lay upon the department, which failed to provide any record showing appellant’s appointment was illegal. In contrast, official documents supported the appellant’s continued employment and salary entitlement. Held, that mere procedural irregularities in appointment, if any, could not justify termination without due process. Any lapse in recruitment procedure was attributable to the appointing authority, and the employee could not be penalized for administrative shortcomings. The absence of termination order and the lack of a due process hearing rendered the committee’s recommendation legally inconsequential. ----Cited Cases: 2007 SCMR 318 2009 PLC (C.S.) 694 2013 PLC (C.S.) 115 2000 PLC (C.S.) 155 (c) Locus Poenitentiae & Legitimate Expectation: --- Civil Servants' rights ---- Cancellation of appointment order after legal effect ---- Protection of accrued rights. Under Section 21 of the General Clauses Act, 1897, once an appointment order has taken legal effect and an employee has joined duties and received salaries, the competent authority becomes functus officio and cannot cancel the appointment arbitrarily. The principle of locus poenitentiae applied, protecting the appellant’s accrued rights. Even if any irregularity existed in the initial appointment process, it could not be used retroactively to terminate employment without due process. The appellant had completed his probation period, received regular salary, and his continued service was implicitly confirmed by the department's actions. Held, that the verbal directive stopping salary and subsequent denial of reinstatement were unlawful, as no formal termination procedure had been followed. The appellant was deemed to be in service, and the Education Department was ordered to pay arrears of salary from March 2013 to April 2016 while treating the period from April 2016 until judgment as leave without pay. -----Disposition: Appeal allowed. Appellant reinstated with salary arrears from March 2013 to April 2016, and period thereafter treated as leave without pay. Office order dated 04.08.2014 set aside.

Summary: (a) Labour Law – Wages: ----Sindh Payment of Wages Act, 2015, S.15(2)---Inquiry requirement---Jurisdiction of the Commissioner under the Sindh Payment of Wages Act, 2015---Scope---Private respondents filed an application before the Commissioner for payment of enhanced wages at the rate of Rs.25,000/- per month under a government notification, claiming arrears for 91 employees---Held, the Commissioner failed to conduct the required inquiry under S.15(2) to verify the claim of the workers, particularly when only two applicants represented 91 employees---Absence of a proper inquiry constituted a material illegality, warranting remand of the case. ----Cited Case: • Federation of Pakistan v. Province of Sindh (Employers' Case) (2022 PLC 124) (b) Labour Law – Minimum Wage Notification: ----Minimum wage enhancement from Rs.19,000/- to Rs.25,000/- per month---Effectiveness of notification---Held, the Supreme Court had set aside the Sindh Government’s minimum wage notification in multiple petitions, including CPLA No. 5800 of 2021---The impugned decision did not consider this aspect nor ascertained whether the competent authority had reissued the notification after resolving the objections---Commissioner’s failure to address this fundamental issue rendered the decision legally flawed. (c) Jurisdiction – Trans-Provincial Establishment: ----Sindh Payment of Wages Act, 2015 v. Industrial Relations Act, 2012---Applicability---Petitioner, being a trans-provincial entity, contended that the claim fell under the Industrial Relations Act, 2012, not the Sindh Payment of Wages Act, 2015---Held, the impugned decision did not properly examine or address this jurisdictional objection, despite the petitioner’s specific challenge---Matter remanded for a fresh decision with jurisdiction to be determined as a preliminary issue. ----Cited Cases: • Sui Southern Gas Company Ltd. v. Federation of Pakistan (2018 SCMR 802) • K. Electric Ltd. v. Muhammad Aslam Shah (2021 PLC Lab. 108) (d) Constitutional Jurisdiction – Availability of Alternate Remedy: ----Failure to file an appeal under S.17, Sindh Payment of Wages Act, 2015---Scope of judicial review---Held, although the petitioner did not file an appeal under S.17, Respondent No.4 had availed the appellate remedy and deposited the awarded amount---Given the fundamental legal flaws in the decision, including jurisdictional overreach and failure to conduct an inquiry, judicial review was warranted in the present case despite the existence of an alternate remedy. ----Disposition: Impugned decision set aside. Case remanded to the Commissioner (Respondent No.3) for fresh adjudication within four weeks. Jurisdiction to be determined first. Deposited amount ordered to be released to the petitioner.