Summary: Pending

Summary: Pending

Summary: Summary pending

Summary: Contract Act (IX of 1872)- -S. 215-Specific Relief Act (I of 1877), Ss. 39 & 42-Land Revenue Act (XVII of 1967), S. 42-Constitution of Pakistan, Arts. 24(1) & 188-Review petition-Suit for declaration and cancellation of sale mutations-Attorney misusing the power-of-attorney to sell land-Depriving a female/woman of her immoveable property-Extra care to be exercised by Courts-Power-of-attorney was executed in favour of-F- (attorney) by his sister (predecessor of the respondents) which was used by-F-to purportedly sell 109 kanals of land to his four sons-Power-of-attorney did not specifically authorize the sale of the land in favour of the attorney or his sons, and-F-had misused it-Sister repudiated the sale transactions and filed a suit for declaration and cancellation-Suit was decreed and the decision of the Trial Court was upheld throughout-Validity-Conduct of the attorney, -F-, and his four sons, the purported buyers, was deplorable and reprehensible as a sister and aunt was illegally deprived of her land-Often vulnerable members of society are exploited and deprived of their properties by such dubious methods, and then they spend a lifetime to regain what is rightfully theirs-Sister was entangled in a web of perpetual litigation, and, even though all the decisions were in her favour, she remained deprived of the land and its produce throughout her lifetime-F-and his sons violated Article 24(1) of the Constitution, which guarantees that no person shall be deprived of his property save in accordance with law-Purported sale/transfer of the subject land was effected in derogation of section 42 of the Land Revenue Act, 1967, and of the judgments of the Supreme Court which stipulate that extra care must be exercised with regard to the property of women-Revenue officers/officials were either complicit in recording the illegal mutations or were incompetent-Review petition was dismissed with the directions that the petitioners shall immediately hand over the possession of the subject land to the respondents (legal heirs of the sister), and if they do not do so the concerned revenue authorities should immediately dispossess the petitioners therefrom, and that on account of the petitioners’ most unreasonable conduct they shall pay to the respondents one million rupees as costs, and till payment is made such amount shall constitute a charge on the landholding of the petitioners. Muhammad Rafiq v. Mst. Ghulam Zoharan Mai 2023 SCMR 988; Tahsinullah v. Mst. Parveen 2022 SCMR 346; Mst. Parveen LRs v. Muhammad Pervaiz 2022 SCMR 64; Ghulam Qasim v. Mst. Razia Begum PLD 2021 SC 812; Atta Muhammad v. Mst. Munir Sultan 2021 SCMR 73; Farhan Aslam v. Mst. Nuzba Shaheen 2021 SCMR 179; Mirza Abid Baig v Zahid Sabir 2020 SCMR 601 and Muhammad Naeem Khan v Muqadas Khan PLD 2022 SC 99 ref.

Summary: (a) Constitution of Pakistan- -Arts. 48(5)(a), 184(3), 222(b), 224(2) & 254-Elections Act (XXXIII of 2017), S. 57-General Elections 2024, holding of-General elections not held within a period of ninety days after dissolution of the Assemblies, as stipulated by the Constitution-Supreme Court facilitating the President and the Election Commission of Pakistan to meet and decide an election date-President and the Election Commission of Pakistan agreeing to 8th February, 2024 as poll date for the General Elections 2024-Detailed observations recorded by the Supreme Court with regard to the date of holding of General Elections 2024 provided. Article 224(2) of the Constitution requires that general election ‘shall be held within a period of ninety days after the dissolution’. However, Council of Common Interest (CCI) took almost four years to approve the ‘6th Population and Housing Census, 2017’ which delayed the ‘7th Population and Housing Census, 2023’ and in turn delayed delimitation of constituencies. Section 57(2) of the Elections Act, 2017 stipulates that within ‘seven days of the announcement under subsection (1)’ of section 57, the election programme is announced, which, requires a minimum period of 54 days. However, it was no longer possible to hold elections within ninety days of the dissolution of the assemblies. Present matter which should have been dealt with by the President and the Election Commission of Pakistan (ECP) was quite unnecessarily brought to the Supreme Court. Since the election date was not announced, concerns were rising amongst the people of Pakistan, where many of them apprehended that elections may be indefinitely postponed or not take place, which undoubtedly would cause irreparable damage to democracy and the country. Conscious of the Supreme Court’s lack of jurisdiction and careful not trespass on the jurisdiction of the President and of the ECP, the Court encouraged them to meet and determine that which was within their constitutional domain. Consequently, the ECP and the President met and agreed to appoint 8th February, 2024 as a poll date for General Elections 2024. The ECP has also issued a notification dated 3 November 2023, which states that 8 February 2024 is the poll date for general election to the National Assembly and the provincial assemblies. The Attorney-General, on behalf of the Federal Government, and the respective law officers, on behalf of the four provinces and the Islamabad Capital Territory, have also expressed their concurrence for the holding of general election on the said date. The matter of the holding of general election on 8 February 2024 stands resolved. Supreme Court observed that no one should now put forward any pretext to derail democracy, and that a decreased confidence in democracy diminishes people’s engagement with it and suppresses voter turnout. The impact of disinformation on democratic processes and human rights in the world' Carne Colomina, Hector Sanchez Margalef, Richard Youngs, European Parliament, Directorate-General for External Policies ref. (b) Constitution of Pakistan- -Art. 5 & Third Sched.-Constitutional office holders-Obedience to the Constitution-Scope-Higher the constitutional office or body the greater is the responsibility-Obedience to the Constitution and law is an inviolable obligation of every citizen, however, an added responsibility and obligation is placed on all those who assume their office by taking an oath (under the Constitution)-Constitutional office holders must adhere to the Constitution; fulfil the duties assigned to them as a sacred trust, and divest themselves from all that is outside their constitutional domain; only then do they serve the people of Pakistan. Per Athar Minallah, J. (c) Constitution of Pakistan- -Arts. 4, 5, 9, 14, 17, 48(5), 105(3)(a), 112(1), 112(2), 184(3), 212(1)(b), 219(d), 224(2) & 254-Elections Act (XXXIII of 2017), S. 57-General Elections 2024, holding of-General elections not held within a period of ninety days after dissolution of the Assemblies, as stipulated by the Constitution-Disregard and violation of the Constitution and the Elections Act, 2017 by the President, the Governors and the Election Commission-Deprivation of the people’s right to vote and to participate in governance-Breach of right to govern-Remedy for violation of Constitutional rights-Observations recorded by His Lordship with regard to the duties imposed on the President, the Governors and the Election Commission with respect to holding elections in accordance with the Constitution and the Elections Act, 2017; the breach of duties and violation of the Constitution committed by the President, the Governors and the Election Commission in the present case, and the remedy available to the citizens against their tortious acts stated. Present matter highlights misfeasance in public office by those upon whom the Constitution has imposed the onerous duty to exclusively serve the people and to protect their rights. The violation of the Constitution and denial to the people of Pakistan of their most valuable rights stands established because of failure to hold elections within the time expressly specified by the framers of the supreme law. There was no ambiguity whatsoever regarding who was competent to appoint the date for general elections in the case of the National Assembly. Under Article 48(5) of the Constitution, the duty to 'appoint' a date was imposed upon the President while the announcement was to be made by the Election Commission (‘Commission’) as required under section 57(1) of the Elections Act, 2017 (Act of 2017). It is not the function of the Supreme Court to appoint a date nor was it conferred with any power or jurisdiction to do so. The duty to ensure that the people of Pakistan are not deprived of their right to vote and they do not remain unrepresented for more than a ninety day period was that of the President, the Governors and the Commission. The Constitution was made unworkable by their reckless disregard for the duties imposed upon them under the Constitution and the Act of 2017. The date of February 08, 2024 for holding of General Elections 2024 was appointed by the President and announced by the Commission without prejudice to and notwithstanding the consequences that they may have exposed themselves to on account of the violations of the Constitution anddenial of rights to the people of Pakistan. The violation of Article 224(2) of the Constitution and the resultant denial of the rights to the people of Pakistan is so grave and profound that it cannot be cured, condoned nor the acts are immune from being held to account. The general elections in the Provinces of Punjab and Khyber Pakhtunkhwa could not be held within the time frame expressly set out in the Constitution. The general elections to the National Assembly and the other two Provinces cannot be held within the specified time because the strict liability imposed under the Constitution and the Act of 2017 upon the President, Governors and the Commission have been breached. The legal rights of the people have been violated so has been the Constitutional command. It appears that the neutrality of the exalted offices of the President and Governors were compromised. The Commission failed in its duty imposed under the Constitution read with the Act of 2017 to ensure that elections are held in accordance with its commands, particularly the time frame expressly set out by its framers. Their actions and conduct have materially contributed to violation of the Constitution which has deprived the people of their most fundamental and valuable rights. Their egregious public wrongdoings and reckless disregard to the duties imposed upon them under the Constitution were the cause for the loss or injury suffered by the people of Pakistan, deprivation of their constitutional rights. The Federal Government, prior to dissolution of the National Assembly, also, prima facie, seems to have been complicit because of its actions and refusal to comply with the directions of the Supreme Court. The offices of the President and the Governor are premised on the principle of neutrality and its incumbents ought to foresee that failing to perform their constitutional duties could lead to depriving the people of their most valuable rights. In case of a constitutional impasse created either by the President or a Governor, regardless of whether it is politically motivated, deliberate or reckless disregard for the constitutional rights of the people, it becomes a duty of the Commission to proactively make the Constitution workable. This duty of the Commission is implicit in the functions assigned to it by the framers of the Constitution. It is misfeasance in public office and amounts to misconduct when public powers entrusted to the exalted holders of public offices are used in a manner which they ought to have foreseen would result in denying the people their constitutional rights. When the President or a Governor fail to perform their duties enshrined under the Constitution, which ought to be foreseen as infringing the rights of the people, the Commission cannot remain a silent spectator. In such an eventuality the Commission is charged with the duty to remove any impediment likely to delay the general elections in violation of the express command of the Constitution. The Commission, in order to hold a general election in accordance with the Constitution, is also empowered to give advice and directions to the governments, Federal or Provincial, and it is not bound by their decisions which are seen as delaying the general elections in violation of the Constitution. The buck stops with the Commission because the framers of the Constitution have 'charged it with the duty' to hold the general elections within the time expressly enshrined in the Constitution. No reason or excuse can condone the violation of the Constitution in relation to holding the general elections within the expressly provided time frame therein. This is a strict liability duty because deprivation of the people of their right to vote and to participate in the governance is so serious and grave that the violation is intolerable and an attempt to condone it is complicity. The statutory duties of the Commission under section 57 of the Act of 2017 are onerous and they are also strict liability obligations. The onus will always be on the Commission, the Commissioner and its members to establish on the touchstone of the principles of strict liability duty to establish that they were not in breach nor accountable for denial of constitutional rights to the people. It is also the duty of the governments whether Federal or Provincial not to act in any manner during the term of the Assemblies that may impede or prejudice the holding of elections within the time frame explicitly provided under the Constitution. The appointment of caretaker governments is temporary and only for the period specified under the Constitution i.e till the election of a leader of the House after the holding of the general elections within the mandatory period of sixty or ninety days. The State cannot be governed in the absence of the chosen representatives for more than the ninety days expressly provided for holding the general elections followed by election of a leader of the House. Delay of a single day in holding the general elections beyond the expressly provided time frame, i.e. ninety days, is the most grave violation of the Constitution and denial of the constitutional rights of the people. It amounts to suspension of the Constitution because it breaches its foundational principle; exercise of powers and authority of the State through the chosen representatives. The Constitutional violation of the political right to participate in the governance of the State and exercise the powers and authority through chosen representatives can neither be condoned nor cured on the touchstone of Article 254 of the Constitution. The impunity for deprivation of such a fundamental right of the people of Pakistan and thus allowing the powers and authority of the State to be exercised by other than the chosen representatives for more than the expressly specified period would erode and suspend the order established by the will of the people of Pakistan as enshrined under the Constitution. The undermining and suspension of an order established by the people for the governance of the State amounts to holding the Constitution in abeyance. An attempt to delay elections deprives the people of exercising their fundamental right to exercise the powers and authority of the State through chosen representatives and thus alienates and isolates them, besides undermining the legitimacy of the scheme of the Constitution. Associated with this basic constitutional right are the right to form or to be a member of a political party, the right to participate or contest in the elections and then to form a government if successful. (Article 17). The exercise of the right to vote in a free, fair and transparent election is the first and integral step in giving effect to the order established by the will of the people. Denial of the fundamental right to exercise powers and authority of the State due to violation of the Constitutional command of holding general elections within the prescribed time frame is simultaneously a denial of the right to vote in accordance with the dictate of the Constitution. They are absolute rights which cannot be restricted in any manner or for any reason. They are definitely not derogated nor suspended. The violation of these rights are so serious that the effect extends to denial of other constitutionally guaranteed rights, inter alia, the right to enjoy the protection and to be treated in accordance with law, the right to life and liberty and inviolability of dignity. PLD 2012 SC 681 ref. In the petitions in hand, the jurisdiction of the High Courts was invoked. Binding and enforceable declarations and injunctions were granted by the Lahore High Court but they were not executed. The Supreme Court had also exercised its original jurisdiction and had granted declarations and injunctions but they were not implemented nor appropriate action was sought or any effort made to have them implemented. The citizens were deprived of their most valuable constitutional rights. The Constitution also stood violated. Each day of delay in holding general elections after expiry of the ninety day mandatory constitutional period gives rise to a fresh cause of action. The registered voters in Islamabad, Baluchistan, Khyber Pakhtunkhwa and Punjab have been deprived of their constitutional rights and they have been forced to be governed by the unelected caretakers in transgression of the Constitution. The registered voters are victims and the responsible authorities i.e the President, Governors and the Commission are accountable to them for causing injury and loss; depriving them of their legal rights. For such circumstances the Constitution has created a right for claiming remedies for constitutional torts. In our Constitution under Article 212(1)(b) the framers have expressly created the right to claim remedies for tortuous acts of the Government or any person in the service of Pakistan or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant. It is a unique and distinguishable feature of the Constitution because it expressly confers the right to claim public law remedies for tortuous acts of three categories of public authorities. It is a right which appears to have escaped the attention of the courts nor has it been invoked by a victim of wrongful exercise of public power. It can create a formidable deterrence for violations of the Constitution and constitutional rights if the victims are enabled to effectively exercise this right. It is regrettable that no initiative has been made since the promulgation of the Constitution to establish special courts as contemplated by the framers. Nonetheless, since this right has been created under the Constitution it cannot be denied nor made redundant on account of failure to establish the special courts to exercise exclusive jurisdiction as was intended by the framers. The right to claim remedies against the tortuous acts of the three categories of public authorities cannot be denied to the citizens or other persons merely because a special court has not been established to exercise exclusive jurisdiction. The jurisdiction of the courts of plenary civil jurisdiction and, in an appropriate case, the High Courts are not barred till such time that a special court conferred with exclusive jurisdiction has been established. In such regard the courts enjoy wide discretion to design or create a remedy to appropriately redress a constitutional right and to deter repetition of the tortuous acts in future. Besides compensatory damages the court can, in addition, award exemplary or vindicatory damages, as the case may be. The criterion for assessment of damages in the case of vindication of a constitutional right is presumed general damages. Maharaj v. Attorney General of Trinidad and Tobago (1978) 2 All E R 670; Ramanoop Attorney General of Trinidad and Tobago v. Ramanoop (2006) 1 AC 328; Plenty v. Dillon and others (1991) 171 CLR 635; Vancouver (City) v. Ward (2010) 2 SCR 28); Henry v. British Columbia (Attorney General) (2015) 2 SCR 214; Simpson v. Attorney General (Baigent's case) (1994) 3 NZLR 667; Dunlea v. Attorney General (2000) 3 NZLR 136; Taunoa v. Attorney General (2008) 1 NZLR 429; R (Greenfield) v. Secretary of State for the Home Department (2005) 1 WLR 673; Lumba (Congo) v. Secretary of State for the Home Department (2011) 2 WLR 671; Rookes v. Bernard (1964) AC 1129; Wilkes v. Wood 98 ER 489; Ashby v. White (1 ER 417)/126 (K.B 1703); Nixon v. Herndon 273 US 536; Hoffmann v. South African Airways (2001) [1] SA 1; Fose v. Minister of Safety and Security (1997) [3] SA 786 and Modder East Squatters v. Modderklip Boerdery (Pvt.) Ltd. (2004 [6] SA 40) ref. In the case in hand the people of Pakistan, particularly the registered voters are victims of the wrongful exercise of public powers and reckless disregard for duties imposed under the Constitution and statutes upon the President, Governors and the Commission i.e the Commissioner and the members. They are all in breach of their statutory duties. Their conduct and failure to discharge their constitutional duties has made them answerable to the people. They have exposed themselves to actions against their tortuous acts. The registered voters who have suffered the denial of their most valuable constitutional rights may, if they so desire, exercise their right to claim remedies for the tortuous acts and thus vindicate their rights and set an example for creating a deterrence for the future. As a corollary, it is the duty of the courts to ensure that if citizens file claims for alleged tortuous acts of public authorities that they are decided expeditiously and in accordance with the law. For the Federation: Mansoor Usman Awan, Attorney-General for Pakistan assisted by Maryam Ali Abbasi, Ahmed-ur-Rehman and Saad Javid Satti, Advocates. Ch. Aamir Rehman, Additional Attorney General for Pakistan. For Government of Punjab: Waseem Mumtaz Malik, Additional Advocate-General, Punjab. For Government of Sindh: Saulat Rizvi, Additional Advocate-General, Sindh. For Government of Khyber Pakhtunkhwa: Sultan Mazher Sher Khan, Additional Advocate-General, KP. For Government of Balochistan: Ayaz Khan Swati, Additional Advocate-General, Balochistan. For Islamabad Capital Territory: Ayaz Shaukat, Advocate-General, Islamabad. For the ECP: M. Arshad, DG (Law) ECP. Khurram Shehzad, Addl. DG (Law) ECP. Falak Sher, Legal Consultant, ECP.

Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: (a) Civil Servants Act, 1973: ----S. 14(1)---Re-employment of Retired Civil Servant---Necessity in Public Interest---Mandatory Compliance with Statutory Conditions. Section 14(1) of the Civil Servants Act, 1973 stipulates that re-employment of a retired civil servant is permissible only when it is "necessary in the public interest" and must be approved by the authority next above the appointing authority. The term "necessary" implies something indispensable, essential, and unavoidable. The court emphasized that re-employment should remain an exception and not the rule, and its justification must be documented transparently. In the present case, the re-employment of Respondent No.3 as Professor of Cardiology and Head of the Department at PIMS lacked evidence of public necessity and was not backed by substantial material showing non-availability of suitably qualified officers to replace him. Held: The appointment of Respondent No.3 did not satisfy the statutory prerequisites under Section 14(1) and was declared void. ----Cited Cases: Suo Motu Case No.24/2010 PLD 2011 SC 277 Aziz ur Rehman v. Federation of Pakistan PLD 2014 Islamabad 53 (b) Administrative Law: ----Policy for Re-employment after Retirement---Compliance with ESTA Code Guidelines. The ESTA Code outlines strict criteria for re-employment after superannuation, emphasizing that such appointments should be made in exceptional cases only and must not obstruct the promotion prospects of eligible serving officers. Ministries must document the non-availability of qualified replacements and justify re-employment in the public interest. In the current case, the Executive Director of PIMS opposed the appointment and stated that it lacked proper recommendations. Held: The re-employment policy as outlined in the ESTA Code, Edition-2015 was violated, rendering the appointment invalid. ----Cited Cases: Nusrat Rasheed v. Federation of Pakistan 2021 PLC (C.S.) 777 (c) Fundamental Rights: ----Right to Promotion---Doctrine of Legitimate Expectation. The petitioner, being the senior-most serving Professor in the Cardiology Department at PIMS, had a legitimate expectation to be considered for the position of Head of the Cardiology Department after Respondent No.3's retirement. The re-appointment of Respondent No.3 obstructed this legitimate expectation and resulted in the usurpation of the petitioner's right to fair consideration. The court emphasized that such rights are protected under the Constitution and cannot be disregarded by administrative authorities. Held: The petitioner had the locus standi to challenge the appointment of Respondent No.3. ----Cited Cases: Union of India v. Hem Ram Chauhan 2010 (4) SCC 290 (d) Constitutional Jurisdiction: ----Article 199---Judicial Review of Administrative Decisions---Transparency and Reasoned Justification. The decision-making process for re-employment after retirement is subject to judicial review under Article 199 of the Constitution. The appointing authority must provide transparent and well-documented reasons demonstrating public necessity and non-availability of qualified officers. Failure to meet these requirements renders the appointment liable to judicial interference. Held: The appointment of Respondent No.3 was arbitrary, lacked transparency, and failed the test of judicial scrutiny. ----Cited Cases: Pakistan State Oil Company Ltd. v. Ghulam Ali SBLR 2015 SC 233 Disposition: Petition allowed. Impugned notification dated 17.04.2023 was set aside. No order as to costs.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S. 497---Post-arrest bail---Vicarious liability---Two versions of the incident---Self-defense--- Petitioners sought post-arrest bail in a case involving multiple charges, including murder and grievous injuries. FIR alleged that petitioners attacked the complainant party, causing injuries and fatalities. However, medical reports revealed injuries sustained by petitioners themselves, which were suppressed by the prosecution. Court observed that the injuries on petitioners supported their plea of self-defense, rendering it a case of two versions. Vicarious liability under S. 34, P.P.C., was held inapplicable, as every accused must be held responsible for their individual actions. Furthermore, no recovery was made from some of the petitioners, and the FIR lacked clarity on the presence of specific weapons. Petitioners had been in custody for a considerable period and were no longer required for investigation. Post-arrest bail was granted. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 324, 337-A, 341, 109, 114, 147, 148---Multiple injuries---Nature of injuries not determined---Deficiency in medico-legal examination--- During the course of arguments, it was revealed that medico-legal certificates issued by doctors failed to classify injuries under specific sections of S. 337-F of the P.P.C., such as Ghayr-Jaifah Mutalahimah (337-F(iii)), Ghayr-Jaifah Mudihah (337-F(iv)), Ghayr-Jaifah Hashimah (337-F(v)), and Ghayr-Jaifah Munaqqillah (337-F(vi)). Doctors admitted lack of training and absence of standard procedures in Gilgit-Baltistan hospitals for classifying injury types. Court directed the Secretary Health Gilgit-Baltistan to appear in person and provide an explanation, along with steps to rectify the deficiency. (c) Administration of Justice--- ----Medical evidence---Inadequate medico-legal training---Role of state institutions--- Court highlighted the alarming deficiency in medico-legal practices in Gilgit-Baltistan government hospitals. Doctors were unable to properly classify the nature of injuries due to insufficient training and absence of protocols. The Court directed the Secretary Health Gilgit-Baltistan to ensure proper mechanisms and training for medico-legal officers to avoid recurrence of such lapses. (d) Criminal trial--- ----Benefit of doubt---Principle of individual liability--- In cases where two distinct versions of an incident exist, each accused must be held responsible for their individual acts. Petitioners presented injuries sustained during the incident as evidence of self-defense. Court held that the prosecution's suppression of these injuries weakened its case, entitling petitioners to the benefit of doubt. ----- Cited Provisions: Criminal Procedure Code, 1898 (S. 497) Penal Code, 1860 (Ss. 302, 324, 337-A, 341, 109, 114, 147, 148) ----- Disposition: Criminal appeal accepted. Petitioners admitted to post-arrest bail, subject to furnishing bail bonds of PKR 200,000 each with one surety to the satisfaction of the trial court. Observations regarding deficiencies in medico-legal procedures directed to Secretary Health, Gilgit-Baltistan, for remedial action.