Summary: Summary pending

Summary: 335C.O. (Commercial) 78260/24 Mr. Usman Latif Vs Ms Bashir Jamil & Brothers Pvt Limited etc Mr. Justice Muhammad Sajid Mehmood Sethi 01- 07- 2025 2025 LHC 5072

Summary: ----S.155---Representation of the People Act (LXXXV of 1976) [since repealed], S. 67 (3)---Right of appeal---Distinction---Appeal under S. 155 of Elections Act, 2017 lies to Supreme Court against a "final decision" of the Tribunal---In contrast, S. 67(3) of Representation of the People Act, 1976 stated that any person aggrieved by a "decision" of the Tribunal may challenge it by way of an appeal to the Supreme Court. (b) Elections Act (XXXIII of 2017)--- ----Ss.145, 155 & 164---Civil Procedure Code (V of 1908), S.151---Dismissal for non-prosecution---Term "final decision"---Scope---Restoration---Absence of counsel---Election Tribunal, jurisdiction of---Applicant sought restoration of his election petition which was dismissed for non-prosecution---Respondent/returned candidate resisted restoration on the plea that Election Tribunal had become functus officio after dismissal of petition and remedy was to file an appeal before the Supreme Court---Validity---Right of appeal has not been expressly provided under S. 145(1) Elections Act, 2017---Rejection made after application of judicial mind constitutes a "final decision" and thus attracts appellate mechanism under S. 155 of Elections Act, 2017---Where a judicial determination terminates lis before Election Tribunal, it cannot be excluded from the ambit of a "decision" merely due to absence of express language---Dismissal in default is procedural termination/disposal of matter without application of judicial mind, leaving room for the petitioner to revert back and seek restoration of the petition by invoking inherent powers of the Tribunal, subject to show sufficient cause---Such procedural terminations do not constitute a final decision---Deliberate use of term "final decision" in S. 155 of Elections Act, 2017 reinforces and supports such interpretation---Provisions of Elections Act, 2017 aim at ensuring expeditious and effective adjudication of election disputes and such legislative objective is advanced - not defeated, by recognizing Tribunal's authority to restore petitions dismissed for non-prosecution, provided sufficient cause is shown---In the present cause list of cases of counsel for applicant exhibited that he was busy before other Bench of High Court on the fateful day---Medical certificate of applicant reflected that he was suffering from respiratory problem---When main petition was dismissed in December, 2024, there was smog and/or fog across the province and such respiratory problem had become severe, making it difficult for a patient suffering from respiratory disease to travel---Application was well within time and duly supported by affidavit and no serious objection was raised from the other side---Election Tribunal set aside the order dismissing election petition for non-prosecution and restored the same---Application was allowed. Chaudhry Asad Ur Rehman v. The Election Commission of Pakistan and 17 others 2018 CLC 1040 distinguished. Shehzad Khan Khakwani v. Aamir Hayat Hiraj and others 2011 CLC 25; Asif Nawaz Fatiana v. Walayat Shah and others 2007 CLC 610 and Ch. Safdar Mumtaz Sandhu v. Government of the Punjab through Chief Secretary, Punjab and others PLD 2009 Lah. 1 ref. Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others 1987 SCMR 1107; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad and 5 others PLD 1989 SC 760; Sardar Talib Hussain Nakai v. Rana Muhammad Hayat and 2 others PLD 2011 Lah. 207; Syed Fakhar Imam v. Muhammad Raza Hayat Miraj and 5 others 2009 CLC 1; Muhammad Amjad v. Muhammad Anwar and 10 others 2003 MLD 57; Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge, Hafizabad and 4 others 2001 YLR 336; Muhammad Shafi and another v. Election Tribunal, Multan and another 1983 CLC 3031; H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 and Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1 rel. (c) Interpretation of statutes--- ----Silence of statute---Effect---To imply a prohibition from silence of statute would yield a result contrary to the principles of justice and procedural fairness. Qazi Misbah-ul-Hassan for Petitioner/Applicant. Imran Khan, Assistant Advocate General. Sh. Usman Karim-ud-Din for Respondent No.1/Returned Candidate.

Summary: (a) Interpretation of document--- ----Nature, determination of---Principle---Merely captioning an application or a document is not always material rather it is the instrument, application or document which determines its nature. Asif Raza Mir v. Muhammad Khurshid Khan 2011 SCMR 1917 rel. (b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- -----Ss.19 & 22---Limitation Act (IX of 1908), S. 5---Civil Procedure Code (V of 1908), O.XXI, Rr. 89 & 90---Constitution of Pakistan, Art. 199---Constitutional petition---Execution of decree---Auction, setting aside of---Objections---Converting Constitutional petition into appeal---Principle of approbate and reprobate---Scope---Petitioner objected to sale of mortgaged property through auction for recovery of decretal amount---Validity---Petitioner repeatedly changed his stance, firstly, he objected to conduct of auction and secondly, he made request to treat his application as under O. XXI, R. 89, C.P.C.---Petitioner once again resiled from the same and raised challenge to terms of auction---Such frequent shifts and developments were hit by principle of approbate and reprobate---Petitioner could not be permitted to adopt one stance and to resile from the same before fora below and then to file Constitutional petition before High Court permitting him once again to take a somersault---Petitioner did not make any request for permission to deposit any amount under O. XXI, R. 89, C.P.C. and even time period provided by law had elapsed---Constitutional petition was filed much after the period for filing an appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Limitation period was prescribed by Financial Institutions (Recovery of Finances) Ordinance, 2001, which was a special law to which provisions of S. 5 of Limitation Act, 1908 were not applicable---Petitioner did not make any request nor application to condone the delay was made---No question had arisen to convert Constitutional petition into appeal---High Court declined to interfere in the orders passed by Banking Court which were in consonance with law---Constitutional petition was dismissed, in circumstances. House Building Finance Corporation through Branch Manager v. Abdul Sattar Anjum 2022 CLD 1555; Chaudhary Ghulam Hussain and another v. Messrs Saudi Pak Commercial Bank Limited, Lahore and another 2025 SCMR 298; Ghulam Rasool Bhatti v. Judge Banking Court-II, Lahore and 4 others 2007 CLD 1578; Mst. Anwar Sultana through L.Rs. v. Bank Al-Falah Ltd. and others 2014 SCMR 1222 and Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others v. Allied Bank of Pakistan and another 2014 SCMR 1662 ref. Mst. Samrana Nawaz and others v. MCB Bank Ltd. and others PLD 2024 SC 873; Faqir Muhammad v. Fazal Rahman and 13 others 1970 SCMR 662; Federation of Pakistan v. Amir Hamza 2001 SCMR 1959 and Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd) Syed Mukhtar Ali Shah and another 2007 SCMR 569 rel. Ch. Ghulam Murtaza and Mudassar Nazar for Petitioner. Ashar Elahi for Respondent No.1. Ms. Manahil Khan for Respondent No.2. Date of hearing: 23rd June, 2025.

Summary: Fateh Muhammad challenged the judgment and decree of the Additional District Judge/Izafi Zilla Qazi, Samarbagh, which upheld the trial court`s decision in favor of Muhammad Akbar regarding a property dispute. Muhammad Akbar claimed ownership and possession of the suit property based on an unregistered sale deed dated 30.07.2007 from Fateh Muhammad`s father, Shah Gul. Fateh Muhammad argued the sale deed was fake, unregistered, and created no rights for Muhammad Akbar. He also claimed his father was ill and on his deathbed when the sale deed was executed. The court held that an unregistered sale deed can be relied upon if proved to be executed by the vendor with free will, in the presence of marginal witnesses, with payment of consideration, and possession delivered to the vendee. Muhammad Akbar and marginal witnesses supported the sale deed`s execution. Fateh Muhammad`s objections regarding his father`s health didn`t negate the sale deed`s validity given in the evidence. The court ruled the law of limitation wouldn`t extinguish Muhammad Akbar`s existing rights since he had possession of the property since purchase. The civil revision petition was dismissed. The judgments and decrees of the lower courts were found to have no jurisdictional defects, illegality, or material irregularity.

Summary: (a) Constitution of Pakistan ---- Art. 10-A --- Civil Servants (Efficiency & Discipline) Rules, 2011 --- Departmental Inquiry --- Natural Justice --- Cross-Examination --- Maintainability --- This Civil Petition for leave to appeal is directed against judgment dated 09.12.2020, passed by learned Khyber Pakhtunkhwa Service Tribunal, Peshawar, in service appeal No.367/2019 --- According to facts narrated by petitioner, he was appointed as Naib Qasid in Excise & Taxation Department, D.I.Khan in year 2011 --- Anonymous complaint was received against him to respondent No.2 wherein some allegations were levelled against him, therefore, Inquiry Officer was directed to conduct inquiry and submit report within three days --- However, inquiry was completed after five months --- Ultimately, petitioner was exonerated from allegations of anonymous complaint, but his salary was stopped, therefore, he filed writ petition in Peshawar High Court and vide Order dated 28.11.2017, directions were issued to department to release salaries of petitioner --- Out of vengeance, Excise & Taxation Officer seized attendance register and stopped petitioner from marking his attendance so as to create false case of absence --- Consequently, respondent No.3, vide letter No.629/DD dated 10.10.2017, called for explanation from petitioner on accusation of absence from duty since 03.10.2017, despite fact that petitioner was performing his official duties --- Once again, Inquiry Officer was called upon to conduct inquiry against petitioner and report was submitted, and vide order dated 08.11.2018, petitioner was removed from service based on biased inquiry --- Departmental Appeal was preferred, and after lapse of stipulated time, petitioner filed appeal before Khyber Pakhtunkhwa Service Tribunal which was dismissed vide impugned judgment dated 09.12.2020 --- Learned counsel for petitioner argued that petitioner was removed from service under provisions of Khyber Pakhtunkhwa Civil Servants (Efficiency & Discipline) Rules, 2011, but inquiry and other departmental proceedings were not conducted under aforesaid Rules --- He further argued that neither any statement of witness was recorded in presence of petitioner, nor any opportunity of cross-examining was afforded to him, however, learned Tribunal failed to comprehend this pivotal aspect of case which resulted in grave miscarriage of justice --- It was further averred that absence of petitioner ensued because he was not allowed to mark his attendance by Excise & Taxation Officer --- Learned AOR of respondents argued that anonymous complaint was received against petitioner, therefore, inquiry was conducted against him, but he was exonerated from charges and no punishment was awarded to him --- Subsequently, petitioner was wilfully absent from his official duty --- Therefore, on chargers of wilful absence, inquiry was again conducted and he was removed from service after due compliance of all requisite legal formalities --- Court held that what is reflected from record is that petitioner was issued show cause notice on alleged wilful absence from duty w.e.f. 30.10.2017 to 24.10.2018 --- Though inquiry was conducted into allegations of misconduct and at least three witnesses, i.e., Ashiq Hussain (Naib Qasid), Khan Afzal (Driver), and Abdul Hameed (ASI, Excise and Taxation Office), were examined, but it is not reflected from minutiae of inquiry report whether any opportunity was afforded to petitioner for cross-examining such witnesses during inquiry proceedings, to defend charges or to prove his innocence --- When we confronted this aspect to learned counsel for respondents who was assisted by Mr. Shoaib Muhammad, Superintendent, he fairly conceded that no such opportunity was provided to petitioner during course of departmental inquiry --- Court held that main purpose of issuing show cause notice to any delinquent is to provide him fair and reasonable opportunity to offer explanation against charges of misconduct reported or noted against him --- Obviously, if reply to show cause notice is not found satisfactory, employer/management/competent authority may decide to hold inquiry into allegations and may also appoint inquiry officer or constitute inquiry committee to conduct inquiry against wrongdoer, and after completion of inquiry proceedings, submit report to competent authority for necessary action in accordance with law --- Court held that we are mindful that under all Civil Servants (Efficiency & Discipline) Rules, either federal or provincial, infallible and watertight procedure is already provided for conducting departmental inquiries, and sanguine to philosophy/principle of natural justice and due process of law, right of cross-examination is recognized as inalienable and undeniable right --- Furthermore, if this valuable right is repudiated, it will amount strangulation and deprivation of well-entrenched right of defense, despite this right being provided for in all Civil Servants (Efficiency & Discipline) Rules unequivocally and distinctly --- Court held that prior to appointing inquiry officer, competent authority should have ensured, with due diligence, that person so appointed is familiar with and sentient to rudimentary rules of inquiry --- Sometimes, it seems to us beyond any shadow of doubt that lapses or glitches are committed deliberately in departmental inquiries to provide edge or periphery to accused so that if inquiry is turned down on technical defects, beneficiary will be no other than person accused of such lapses or legal flaws in inquiry proceedings --- Court held that inquiry on charges of misconduct is serious matter; whole career or livelihood of employee/civil servant is put on peril --- Therefore, departmental inquiry should have been conducted with proper application of mind and due process and not in haste or in slipshod manner or with sole aim of victimizing accused of misconduct, even if allegations are unproved --- All judicial, quasi-judicial, and administrative authorities should carry out their powers with judicious and even-handed approach to ensure that justice is done according to tenor of law and without any violation of principle of natural justice --- It is prime duty of inquiry officer to provide opportunity to accused person for defending himself against charges and when any witness is produced against accused, he should be given opportunity to cross examine such witness in his defence --- This is unfortunately lacking in this case --- Court held that in case of Federation of Pakistan through Chairman Federal Board of Revenue FBR House, Islamabad and others Vs. Zahid Malik (2023 SCMR 603), one of us, speaking for bench, held that primary objective of conducting departmental inquiry is to grasp whether clear-cut case of misconduct is made out against accused or not --- Guilt or innocence is founded on end result of inquiry --- Learned Service Tribunal may observe whether due process of law or right to fair trial was followed or ignored which is fundamental right as envisaged under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973 --- In regular inquiry, it is precondition that even-handed and fair opportunity should be provided to accused and if any witness is examined against him then fair opportunity should also be afforded to cross-examine witnesses --- In departmental inquiry on charges of misconduct, standard of proof is that of balance of probabilities or preponderance of evidence --- Where any authority regulates and performs its affairs under statute which requires compliance of principles of natural justice then it should have been adhered to inflexibly --- Court held that in case of Ghulam Murtaza Sheikh and another Vs The Chief Minister, Sindh and others (2024 SCMR 1757), it was held by one of us that fair opportunity of cross-examination metes out opposing party leeway and possibility to accentuate weaknesses or flaws in testimony which is most effective tool to shatter testimony of witnesses to disprove charge or allegations both in civil and criminal matters including in domestic/departmental inquires conducted under labour laws or civil servant laws --- Purpose of conducting inquiries, on one hand, is to fix responsibility of delinquent vis-à-vis charges levelled against him in show cause notice or statement of allegations, but in unison, it also aids and facilitates catching and exposing actual culprit or delinquent --- No evidence which is accusatorial to opposite party would be admissible unless such party is afforded evenhanded opportunity of assessing its exactitudes by cross-examination, which is most essential device to unearth truth --- If elementary principle of law is not contented, then obviously, whole edifice of unwarranted proceedings will fall apart --- Whether evidence is trustworthy or inspires confidence could only be determined with tool and measure of cross-examination --- Possibility cannot be ruled out in inquiry that witness may raise untrue and dishonest allegations due to some animosity against accused which cannot be accepted unless he undergoes test of cross-examination which indeed helps to expose truth and veracity of allegations --- It is legal duty of Service Tribunal to vet whole inquiry report for purposes of fact-finding, including, effect of non-affording right to cross-examine, which is necessary to decide appeals on merits --- Court held that as result of above discussion, this civil petition is converted into appeal and is allowed --- As consequence thereof, removal from service order of petitioner dated 08.11.2018 is set aside and matter is remanded to competent authority to conduct de novo inquiry into allegations of misconduct after providing ample opportunity of defence to petitioner --- Payment of back benefits will be subject to outcome of de novo inquiry --- Inquiry shall be conducted and completed within period of three months and petitioner is also directed to participate in inquiry --- If there is any change in address of petitioner, he will provide his new address to competent authority so that notice of inquiry may be dispatched to him at his current abode, or he can receive notice from office to ensure his appearance and participation before inquiry officer --- Petition was allowed accordingly.

Summary: (a) Companies Act, 2017 (XIX of 2017): ----Ss. 159(1), 159(2) & 160 Election of directors—Mandatory procedure—Validity of election—Section 159(1) of the Companies Act, 2017 requires that the existing Board of Directors must, through a duly convened meeting, fix the number of directors to be elected in the upcoming general meeting—No such resolution was passed—Respondents failed to produce evidence of compliance—Held, non-compliance with Sections 159(1) and (2) vitiates the election process and renders it void ab initio—Entire election of Board of Directors held on 28.10.2024 declared illegal—Relied on: Tariq Aziz v. Makhdum Ahmed Mahmud (2022 CLD 1279); Shahid Mahmood & Co. (Pvt.) Ltd. v. Zahid Mahmood (2025 CLD 408). (b) Companies Act, 2017 (XIX of 2017): ----S. 160 Judicial review of corporate elections—Threshold of 10% shareholding—Where petitioner and supporting shareholders held more than 10% of voting power and established material irregularities in the election process, the Court is empowered to intervene—Irregularities included: (i) failure to count votes cast in favor of petitioner; (ii) absence of attendance and voting records; (iii) lack of transparency; (iv) denial of meaningful participation to shareholders—Held, cumulative effect of procedural violations justified setting aside the election and resolutions—Judicial oversight warranted to protect shareholder rights and ensure compliance with statutory procedures. (c) Corporate Law—Limitation—Calculation of period—Certified copies: Petition was filed 45 days after election—Limitation under S.160 is 30 days—However, delay explained due to non-issuance of certified minutes despite timely application—Unrebutted record showed that only uncertified copies were issued—Held, delay was satisfactorily explained and did not bar the petition—Limitation runs from date of receipt of certified copies when necessary for filing. (d) Interpretation of Statutes—Use of mandatory language—Effect: Provisions requiring certain acts to be performed “in a particular manner” must be complied with strictly—Use of the word “shall” in Sections 159(1) and (2) was mandatory—Failure to follow prescribed corporate governance procedure invalidated the resulting elections and resolutions—Ref: Atta Muhammad Qureshi v. Settlement Commissioner (PLD 1971 SC 61), Haji Abdul Karim v. Florida Builders (PLD 2012 SC 247). ---Disposition: Petition allowed—Election of Board of Directors held on 28.10.2024 and all related resolutions set aside—Fresh general meeting to be convened in strict compliance with Sections 159 and 160—SECP directed to supervise process—Respondents No.2 and 3 restrained from alienating company assets and Respondent No.6 restrained from releasing funds until new elections are completed.

Summary: (a) Constitution of Pakistan (1973), Arts. 4, 9, 10-A, 25 & 25-A — Punjab Educational Institutions (Reconstitution) Act, 2021, Ss. 3, 4, 5, 9 & 16 — Punjab Rules of Business, 2011 — Educational fee hike — Mid-academic year increase — Procedural fairness and lawful authority — Scope Fee increase during academic year without transparent regulatory mechanism — Requirement of prior approval and structural safeguards — Role of Board of Governors — Petitioners, parents of students at Sadiq Public School (SPS), challenged mid-session fee hikes, summer school charges, and class change adjustment bills as arbitrary and ultra vires the law — Held, although the Board of Governors has legal authority under S. 4 of the Punjab Educational Institutions (Reconstitution) Act, 2021, to manage finances, such powers must be exercised in accordance with settled principles of transparency, fairness, and procedural due process — SPS failed to notify the increase in a timely and structured manner; no specific rule existed to regulate fee increase ‘from time to time’ or quantify it — In absence of a mechanism to govern frequency and quantum of hikes, arbitrary demands during an ongoing academic year violate Articles 4, 10-A, and 25 of the Constitution — Even where discretion exists, it cannot be exercised unfairly or without a legal framework. Held, the Board must develop a structural mechanism to regulate and notify fee increases prospectively, with fair hearing to stakeholders, and pass a reasoned order in accordance with law. Cited Cases: • Aitchison College v. Muhammad Zubair (PLD 2002 SC 326) • Muhammad Imran v. Province of Sindh (2019 SCMR 1132) • Private School Association v. Federation of Pakistan (2020 CLC 1658) (b) Punjab Educational Institutions (Reconstitution) Act, 2021, Ss. 4, 13 & 14 — Educational governance — Autonomy of elite public institutions — Responsibility to balance affordability and excellence Sadiq Public School (SPS), though a prestigious institution with partial public funding, remains under the direct regulatory oversight of a Government-notified Board of Governors — While institutional autonomy is preserved under Ss. 4 and 14 of the Act, the public character of SPS mandates safeguards to protect students from arbitrary fiscal demands — Fee adjustments must consider prevailing economic indicators and public interest — Reference to international standards (e.g., Eton, Exeter) cannot override local regulatory and constitutional obligations. Held, elite status does not exempt institutions from complying with procedural justice or engaging affected stakeholders before imposing significant financial burdens. (c) Disposition Writ petitions disposed of with directions — Board of Governors to: (i) devise a structural mechanism for future fee fixation, (ii) re-examine the impugned fee increase after hearing petitioners, and (iii) issue a well-reasoned order within 60 days — Interim arrangement between parties to continue until final decision.

Summary: The Election Tribunal has the power to restore the Election Petition, which is dismissed for non-prosecution. Case reported as Chaudhry Asad Ur Rehman v. The Election Commission of Pakistan and 17 others (2018 CLC 1040) is not persuasive when the Larger Bench of the Lahore High Court, Lahore has held that such power lies with the Tribunal. Case reported as Sardar Talib Hussain Nakai v. Rana Muhammad Hayat and 2 others (PLD 2011 Lahore 207) is referred.

Summary: Summary pending