Summary: Summary Pending

Summary: Summary Pending

Summary: Summary Pending

Summary: Acquittal granted --- Consensual intercourse does not fall within the definition of rape rather it is a case of fornication in terms of offence under section 496-B, PPC. Moreover, in case of fornication cognizance can only be taken upon the complaint in the light of section 203-C, Cr.P.C. and not otherwise. It is held that police report cannot be termed as a complaint. Conviction awarded by learned trial court under section 376, PPC is set aside while declaring the proceedings as coram non judice. ---- Muhammad Saleem was convicted and sentenced for an offense under section 376 of the Pakistan Penal Code (PPC) related to rape. The complainant, Mst. Ishrat Bibi, alleged that Saleem raped her under the promise of marriage. The trial court convicted Saleem based on her testimony, medical evidence, and a DNA test showing he could be the biological father of the complainant's child. Saleem appealed, arguing that the offense was fornication, not rape.The appellate court examined the evidence and legal definitions. It noted that the complainant, not a minor, was aware of the consequences of her actions. The court highlighted previous legal decisions stating that consensual sex based on a promise of marriage does not constitute rape. It concluded that the case was a matter of fornication, not rape, and acquitted Saleem of the charges. The court further directed Saleem to deposit Defense Saving Certificates worth Rs.10,00,000/- in the name of the complainant's child for her welfare.

Summary: The court highlights several critical issues that cast doubt on the prosecution's case against the appellant, Haq Nawaz, who was convicted for murder. The court notes discrepancies in the timing of the incident, emphasizing the lack of specificity in the First Information Report (FIR) and a significant delay in filing it. The court questions the credibility of the eyewitnesses, Malak Khan and Mola Bakhsh, who claimed to witness the murder, pointing out inconsistencies in their statements and their status as "chance witnesses." --- Muhammad Ilyas Vs Muhammad Abid alias Billa and others?(2017 SCMR 54) and ?Khalid alias Khalidi and two others vs. TheState? (2012 SCM 327). --- ?Mst. Sughra Begum and another Vs. Qaiser Pervez and others?(2015 SCMR 1142) --- Muhammad Irshad Vs. AllahDitta and others? (2017 SCMR 142) --- Muhammad Rafique andothers Vs. The State and others? (2010 SCMR 385), ?Pathan Vs TheState? (2015 SCMR 315) and ?Riaz Ahmed Vs. The State? (2010SMCR 846).The court raises concerns about the delay in conducting the postmortem examination and the lodging of the FIR, suggesting the possibility of fabrication. It cites legal precedents to emphasize that chance witnesses are viewed with suspicion unless their presence at the crime scene is adequately justified.Furthermore, the court points out that the natural witnesses, the deceased's siblings who were present in the adjacent room, were not produced in court. This leads the court to draw an adverse inference against the prosecution for not presenting crucial witnesses.The court also disputes the alleged motive behind the murder, noting contradictions in the complainant's statements about his relationship with the appellant. The recovery of a blood-stained hatchet is questioned due to the significant delay in its retrieval, raising doubts about its authenticity.Lastly, the court emphasizes the importance of establishing guilt beyond a shadow of a doubt and concludes that the prosecution failed to meet this standard. Consequently, the court accepts the criminal appeal, sets aside the conviction, and acquits Haq Nawaz of the murder charge, extending him the benefit of doubt. The court also rejects the confirmation of the death sentence in the murder reference.

Summary: The court meticulously addressed a property dispute concerning an inheritance claim over agricultural land. The dispute originated from Raj Bibi's allegation that her brother, Khushi Muhammad, fraudulently transferred inherited property to his name. The judgment, delivered by Justice Tariq Saleem Sheikh, provided a comprehensive analysis of the legal and factual issues involved, overturning the lower court's decision which had dismissed Raj Bibi's claim.The court first tackled procedural issues, notably the suit's maintainability and the statute of limitations. It established that as a co-sharer in undivided property, Raj Bibi was not restricted by a limitation period in challenging the mutation, aligning with the principle that no limitation runs against a co-sharer, as seen in precedents like "Khalid Hussain and others v. Nazir Ahmad and others" (2021 SCMR 1986). The court also determined that Raj Bibi's action was timely and not barred by limitation, drawing from the principle that fraud affects the start of the limitation period, a notion supported by "Mst. Rabia Gula and others v. Muhammad Janan and others" (2022 SCMR 1009).The judgment then delved into the substantive legal issues surrounding the contested mutation. It emphasized the procedural requirements under Section 42 of the Punjab Land Revenue Act, 1967, for mutation attestation, noting that mutations serve fiscal purposes and are designed to prevent fraud, without conferring title. The court cited "Gharib Shah and others v. Zarmar Gul" (PLD 1984 SC 188) and "Hakim Khan v. Nazeer Ahmad Lughmani and others" (1992 SCMR 1832) to underscore the mandatory nature of these procedures and their role in protecting proprietary rights.The court scrutinized the evidence, particularly the contested Roznamcha Waqiati entry and the lack of corroborative witness testimony. It found the mutation process flawed, as it did not comply with the legal requirements, particularly the need for the presence and identification of Raj Bibi during the mutation attestation.Moreover, the court addressed the heightened burden of proof in transactions involving illiterate or pardahnashin women, requiring clear evidence of their understanding and voluntary participation in transactions. This principle, reinforced in "Phul Peer Shah v. Hafeez Fatima" (2016 SCMR 1225) and "Abdul Aziz v. Mst. Zaib-un-Nissa and others" (PLD 2022 SC 504), was pivotal in the court's reasoning, leading to the conclusion that the mutation in favor of Khushi Muhammad was not legally substantiated.

Summary: Background:The Province of Sindh and Multiline Enterprises engaged in a contract for the supply of 15 crawler tractors, which needed to be imported due to local unavailability. The contract stipulated that all taxes and duties, particularly sales tax at the import stage and advance income tax, would be borne by the supplier (Multiline Enterprises) as per clause 26 relating to "Taxes and Duties". Subsequent changes in tax laws resulted in the withdrawal of sales tax exemption and an increase in advance income tax rates at the import stage. Multiline sought reimbursement for the sales tax paid and the additional advance income tax, citing Section 64A of the Sale of Goods Act, 1930. The High Court partially ruled in favor of Multiline for the sales tax reimbursement but dismissed the claim for additional advance income tax. Both parties appealed to the Supreme Court.----Issues:Whether Multiline is entitled to reimbursement for the sales tax paid at the import stage due to subsequent tax law changes.Whether Multiline is entitled to reimbursement for the additional advance income tax paid at the import stage due to increased tax rates.----Holding/Reasoning/Outcome:The Supreme Court dismissed Multiline's appeal for additional advance income tax reimbursement, aligning with the High Court's decision, as Section 64A of the Sale of Goods Act, 1930, does not apply to income tax, a direct tax. The Court allowed the Province of Sindh's appeal against the reimbursement of sales tax, stating that the contract's clause 26 clearly put the responsibility of any tax changes on Multiline. The Court found that Section 64A, which applies only when there is no stipulation in the contract regarding duty or tax changes, was not applicable due to the specific terms of the contract. The Court also rejected Multiline's argument based on the VAT mode of the Sales Tax Act, 1990, noting the direct contract between the seller (Multiline) and the final consumer (Province of Sindh) without a supply chain that characterizes VAT transactions. Therefore, the Supreme Court concluded that Multiline's suit should be dismissed in its entirety.-----Citations/Precedents:Section 64A of the Sale of Goods Act, 1930Sales Tax Act, 1990Pakistan Beverage Ltd. v Large Taxpayer Unit Karachi 2010 PTD 2673

Summary: Background: The appellants filed a suit for declaration, perpetual injunction, and possession of land against the respondents. They claimed ownership of the land through inheritance and alleged that the respondents had illegally occupied it and established a "Wagon Adda" (bus stand) on it. The respondents countered with a claim that the land was rented to the appellants' predecessor and that a "Jirga" (council of elders) had settled the matter, agreeing that the land would be returned to the respondents after a payment was made to the appellants. The District Judge dismissed the appellants' suit and decreed in favor of the respondents. The appellants appealed against this decision. ----Issues: 1- Whether the decision of the "Jirga" constitutes a valid and enforceable contract under the Specific Relief Act and the Contract Act. 2- Whether the alleged agreement by the "Jirga" required registration under the Registration Act, 1908. 3- Whether the presence of only three persons can constitute a valid "Jirga." 4- Whether a court decree can be nullified based on the decision of a "Jirga." 5- Whether the suits were filed within the prescribed period of limitation under the Limitation Act. 6- Whether the decree of 1983 in favor of the respondents was validly passed. ----Holding/Reasoning/Outcome: --Validity of "Jirga" Decision as a Contract: The court questioned whether the "Jirga" decision could be considered a concluded contract under Section 12 of the Specific Relief Act and the Contract Act. The court emphasized that for a contract to be enforceable, it must involve offer and acceptance, and be legally binding. --Registration Requirement: The court noted that if the "Jirga" decision involved a significant amount of money and the transfer of immovable property, it should have been registered under Section 17 of the Registration Act, 1908. --Constitution of "Jirga": The court expressed doubt about the validity of the "Jirga" with only three members, especially since the head of the "Jirga" was not produced as a witness. --Nullification of Court Decree by "Jirga": The court held that a decree passed by a competent court cannot be nullified by a "Jirga" decision unless it is challenged and set aside through proper legal channels. --Limitation Period: The court considered whether the suits were filed within the prescribed limitation period as per Article 3 of the Limitation Act. --Validity of 1983 Decree: The court directed a review of whether the 1983 decree was validly passed. ----Citations/Precedents: Specific Relief Act Contract Act, 1872 Registration Act, 1908 Limitation Act Sauki Sah & others vs. Mohamaya Parsad Singh & others, AIR 1934 Patra 518 Ghulam Rasool vs. Muhammad Hussain, PLJ 2000 SC 331 Phillips vs. Parnaby, (1934) 2 KB 299 Board of Trustees of the Port of Bombay vs. Sriyanesh Knitters, AIR 1999 SC 2947 IGP Punjab vs. Mushtaq Ahmed, PLD 1985 SC 159 Seaford Court Estates vs. Asher, [1949] 2 KB 481 State of Kerala vs. Malayalam Plantations Ltd., (1980) Kerl 976 Syed Abu Ala Maududi vs. Govt. of West Pakistan, PLD 1964 SC 673 Outcome The appeal was accepted, the judgment and decree of the District Judge dated 29.07.2019 were set aside, and the case was remanded to the trial court for de novo trial.

Summary: Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)- -S. 20-Constitution of Pakistan, Art. 199-Constitutional petition-Maintainability-Policy matter-Distribution licence-Proposal-Petitioners were Registered Trade Unions and aggrieved of bifurcation of electric distribution company into PESCO and a proposed company namely HAZECO-Validity-High Court in Constitutional jurisdiction only had to see whether action taken by respondent / government was within the four corners of law or not-Decision which required technical, commercial, manpower and administrative aspects of proposed bifurcation was outside the domain of High Court-Such matters specifically fall within the jurisdiction of Government for which it has been mandated by the citizens of country-Matter in question had yet not been finalized and numerous steps were to be taken to operationalize the decision so taken by Prime Minister of Pakistan-Matter was at initial stage and neither any company had been registered by Federal Government under the name of HAZECO nor any licence so far had been granted for distribution by National Electric Power Regulatory Authority-High Court declined to interfere in the matter as it was premature, besides being a policy matter-Constitutional petition was dismissed, in circumstances. Privatization Commission v. Aftab Hussain PLD 2022 SC 267 and Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others 2018 SCMR 1956 ref. JUDGEMENT IJAZ ANWAR.J.- By this single Judgment, we propose to decide the instant as well as the connected W.P. No. 1155-P/2023 "Zaka Ullah and others v. Federation of Pakistan through Secretary Ministry of Energy and Power, Power Division, Lahore and others"filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and COC No. 329-P12-23"Hydro Electric Labour Union PESCO v. Ghulam Dastagir, Incumbent Minister for Power Division, Ministry of Energy and Power, Lahore and another"as identical questions of law and facts are involved therein. The following prayer has been made in the instant writ petition."It is therefore, humbly prayed that on acceptance of this Writ Petition this Honorable Court may very graciously hold, declare and order that: I. The impugned Notification No. 12(24)/202019-DISCO-II dated 18.01.2023 of the Respondent No.6 and Office Order dated February 3, 2023 and subsequent process in this regard are all illegal, without legal sanctity, based on political gains, ethnic provocation and against the fundamental rights of the petitioner and its members/ Employees, hence declared to be redundant as such. II. Respondents shall refrain from proceedings a further in the nature of formation of Hazara Electric Supply Company. III. Costs throughout. IV. Interim Relief. In view of all the three ingredients requisite for interim relief, the operation of the impugned Notification and subsequent proceedings be suspended forthwith and the Respondents may be restrained from proceeding a further in the matter till the final disposal of the main writ petition. V. Any other relief, not specifically prayed may also graciously be granted if appears just, necessary and appropriate."2. In essence, the petitioner which is a registered Trade Union, formed under the Industrial Relations Act, 2010 for the workmen and employees of PESCO is aggrieved of the Notification No. 12(24)/ 202019-DISCO-II, dated 18.1.2023 of the Government of Pakistan, Ministry of Energy (Power Division), Islamabad whereby the Prime Minister of Pakistan was pleased to approve bifurcation of PESCO into two companies i.e. PESCO and a new company with the name of Hazara Electric Supply Company (HAZECO). 3. Comments were called from the respondents which were submitted accordingly wherein issuance of the desired writ has been opposed. 5. As against this, learned counsel representing the respondents argued that the matter in hand is premature as yet only a formal decision has been taken and the formalities required for registration of the Company and permission/license from the NEPRA are the proceedings that would be taken thereafter. He further argued that it being a policy decision of the Federal Government cannot be questioned on such flimsy grounds of hardships or feasibility as according to him, it is within the domain of the Government to see the viability, feasibility and the organizational structure to follow. He further argued that the constitutional requirements have already been taken when it was decided to unbundle the power wing of the Water and Power Development Authority and this decision was taken in pursuance of the strategic plan which was duly approved by the Council of Common Interests in the year 1993 and therefore, it is not required that for registration of every Distribution Company, repeated approval would be required from the Council of Common Interests (CCI). 6. Arguments of learned counsel for the parties heard and record perused. 7. Perusal of the record reveals that vide Notification No. 12(24)/ 202019-DISCO-II dated 18.1.2023, the approval of the Prime Minister of Pakistan has been conveyed for the establishment of Hazara Electric Supply Company (HAZECO). The aim and object was mentioned as"For overall better management of the Electricity Utility of Peshawar Electric Supply Company (PESCO), to increase the operational efficiency and reduce line losses and for improvement in customer services". The following further decision was taken in para 2 of the Notification. It being relevant is reproduced as under:"2. Accordingly, the following decisions are made:- (a) PESCO shall be bifurcated into 02 Companies i.e. PESCO and new Company with the name of Hazara Electric Supply Company (HAZECO). (b) PESCO shall compromise 06 Circles namely Peshawar, Khyber, Swat, Bannu, Mardan and Swabi circles, whereas HAZECO shall consist of 02 Circles namely Hazara-I and Hazara-II circles with new Company's Headquarter at Abbottabad. (c) To implement the bifurcation plan, successfully, PPMC will assist PESCO and HAZECO."8. The West Pakistan Water and Power Authority Act, 1959 (W.P. Act XXXI of 1958) was promulgated on 24.4.1958 to provide for the unified and co-ordinated development of the water and power resources of Pakistan. Later, by virtue of Article 12 of the West Pakistan (Dissolution Order) 1 of 1970, Water and Power Development Authority continued to function under the Act of 1958 subject to certain modifications as duly provided in para 12 of the Dissolution Order. Subsequently, vide Ordinance LXXII of 1979, as amended by Ordinance XX of 1998, the Water and Power Development Authority was constituted and the Pakistan Water and Power Act was extended to the whole of Pakistan except the Districts of Karachi. The record placed on file further suggests that the Council of Common Interests in its meeting held on 12.9.1993 took the following decision:"The Council of Common Interests considered the summary dated 9th September, 1993 submitted by the Ministry of Water and Power on Privatization of WAPDA and amendment of WAPDA Act and approved:"i) Amendment in WAPDA Act, 1958 (Annex II) subject to the condition that in clause 4 (i) (c) (vii) after the word Authority, the words 'except' hydel generating power station and national grid transmission be added' ii) Plan for Privatization of WAPDA as recommended by Privatization Commission (Para 5 and Annex VI). iii) To provide categorical assurance to the provinces that the hydel profits payable to them under the Constitution would not fall below the level which these would have obtained had there been no privatization". 9. Accordingly, vide Water and Power Development Authority (Amendment) Act, 1994 (Federal Act No. XIII of 1994) certain amendments were introduced to carry out the decision so taken in the above referred meeting of the Council of Common Interests. Though both the parties took us to various pros and cons of the decision that would follow after carrying out the bifurcation, however, we feel that we in our Constitutional jurisdiction have only to see whether the action taken by the respondent/Government is within the four corners of law or not; while the decision which requires technical, commercial man power and administrative aspects of the proposed bifurcation is outside our domain because such matters specifically fall within the jurisdiction of the Government for which it has been mandated by the citizens of this country. Even otherwise, the matter in hand has not yet been finalized and numerous steps are yet to be taken to operationalize the decision so taken by the Prime Minister of Pakistan. We have also gone through the bifurcation of other Distribution Companies carried out by the respondents after the initial decision of the Council of Common Interests and find that where the Council of Common Interests has approved the summary, pursuant thereto, amendments were introduced in the WAPDA Act, as such, it is not the requirement of law that for each bifurcation of Companies or creation of Distribution Companies, separate approval be required from the Council of Common Interests. 10. In order to meet the objection if any, regarding the unilateral decision of the Prime Minister of Pakistan for bifurcation of Companies, during the pendency of this petition, the matter was placed before the Cabinet for approval of the proposal/decision taken in the Notification dated 18.01.2023 which was also got approved by the Cabinet and the decision was so conveyed vide letter dated 20.7.2023. 11. It is pertinent to mention here that it is the responsibility of the NEPRA under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 to provide for the regulation of generation, transmission and distribution of electric power services in Pakistan. Section 20 of the Act deals with the grant of Distribution licenses while subsection (1) is a prohibition clause as it bars any one from distribution of electric power without holding a valid Distribution license granted by the NEPRA. The respondent PESCO was granted Distribution license bearing No. 07/DL/2002 on 30.4.2022. Similarly, when the Federal Government established a Company in the name of Tribal Area Electric Supply Company (TESCO) through an administrative order, on the application of the PESCO for license proposed modification, FATA Agencies Bajaur, Mohmand, Khyber, Aurakzai, Kurram, North Waziristan, South Waziristan agencies and Frontier Region Peshawar, FR Kohat, FR Bannu, FR Lakki, FR Tank and FR D.I.Khan was carved out and accordingly TESCO applied for grant of Distribution License which was also granted vide license bearing No. 22/DL/213 on 12.8.2013 for the distribution of electricity in the said FATA agencies and frontier regions. 12. Admittedly, after the registration of TESCO as a company and after grant of license, it was never challenged by any of the alleged affectees and till date it has never been questioned either on the ground that necessary approval of the CCI is missing or that it has any feasibility issue. The respondent NEPRA has clarified in its comments that so far, pursuant to the decision of the Prime Minister of Pakistan dated 23.1.2023, neither any Company in the name of HAZECO has been registered nor any such application for the grant of Distribution license has been forwarded and the NEPRA has reiterated its commitment that till such time a valid Distribution license has not been granted, HAZECO cannot commence distribution of electric power. 13. By referring to the above background and the legal propositions, we are of the view that so far only a decision to constitute/establish a Distribution Company in the name of HAZECO is taken allegedly with the aim of bifurcating it from PESCO in order to improve the performance of PESCO, reduce its losses and to improve the financial/ managerial performance parameters of the power distribution business in the province of Khyber Palchtunkhwa and the respondents are terming this decision as in continuation of the process of WAPDA's unbundling and that similar bifurcation has already occurred twice in the past. Thus, the matter is at an initial stage and as stated above, neither any company has yet been registered by the Federal Government in the name of HAZECO nor any license has so far been granted for distribution by the NEPRA. As such, we are of the view that this petition is premature beside being policy matter is beyond the jurisdiction of this court. The petition in hand as well as the connected W.P No. 1155-P/2023 are accordingly dismissed. The connected C.O.C. No.329-P/2023 is also dismissed having become infructuous. MH/247/P Petition dismisse

Summary: Bond u/s 91 and in contrast detention u/s 351 of Cr.P.C. are the methods to secure the attendance of accused for a trial.