Summary: (Against the orders/judgments dated 12.09.2024 of the High Court of Sindh, Karachi passed in Const. P. No. D-4002 of 2019, Const. P. No. D-6074 of 2021 and Const. Ps. Nos. 774 and 2385 of 2022). Customs Act (IV of 1969)--- ----S. 19---Notification S.R.O. 565(I)/ 2006, dated 05-06-2006 and S.R.O 474(I)/2016, dated 24-06-2016---Customs duty---Exemption---Duty in excess of zero percent---Applicability---Petitioner/importer was aggrieved of imposition of import duty on chemical imported---Validity---Treatment of goods disclosed in S .R.O. 565(I)/2006, dated 05-06-2006 were subject to fulfillment of certain obligations---Amended S.R.O. 474(I)/2016, dated 24-06-2016 itself put petitioner/importer under obligations to provide its qualification in order to fectch exemption which was only available for manufacturing or formulation of agricultural pesticides by manufacturers and formulators and that could only be recognized and approved by the Ministry of National Food Security and Research---Column (2) of S.R.O. had restricted and prescribed a condition and treatment of goods of column (3) in terms of exemption of customs duty could only be if condition prescribed in Column (2) was met---Petitioner/importer was neither recognized nor approved by the Ministry of National Food Security and Research either as manufacturer or formulator of Agricultural pesticides---If petitioner/importer had chosen to protect any such alleged right which claimed to have been violated by the S.R.O., the petitioner/importer was at liberty and if any such right was exercised, it should be dealt with in accordance with the law, and permission as such was not required---Petition for leave to appeal was dismissed and leave to appeal was refused. Taimur Aslam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in all cases). Dr. Farhat Zafar, Advocate Supreme Court for Respondent (FBR) (in C.Ps. Nos. 5029, 5031-5032 of 2024). Nemo for Respondents (in C.P. No. 5030 of 2024). Date of hearing: 18th April, 2025.

Summary: (a) Customs Act (IV of 1969)--- ----S.3AA, Chapters XII & XIII---Customs Rules, 2001, Rr. 328, 476, 598 & 638---Tracking and Monitoring of Cargo Rules, 2023, R. 1124---Constitution of Pakistan, Art.199---Afghan Transit Trade---Tracking and monitoring---Discretion, exercise of---Clean hands---Petitioners were licensed custom-bonded carriers / transport operators, who were aggrieved of decision passed by Licensing Committee notifying respondent company for such transportation---Validity---Authorities were required to ensure that transit cargo should reach the destination without any pilferage and for that they were required / authorized to track monitoring of such cargo under Tracking and Monitoring of Cargo Rules, 2023---Petitioners did not challenge provisions of Tracking and Monitoring of Cargo Rules, 2023---Decision taken by the Committee pursuant to R. 1124 of Tracking and Monitoring of Cargo Rules, 2023 was justified and fell within their domain and jurisdiction---It was a matter of exercising discretion to ensure proper transit of cargo in question---High Court in exercise of Constitutional jurisdiction declined to upset exercise of such discretion, which otherwise appeared to be lawful and fully justified---Most of the petitioners had already participated in new procedure, therefore, it was not appropriate for them to approach High Court seeking exercise of discretion in their favor---One, who approaches High Court for exercise of any discretion under Art. 199 of the Constitution, must come with clean hands and be fair with the Court---High Court declined to interfere in the matter as the conduct of petitioners was not in consonance with principles of law and no case for indulgence was made out---Constitutional petition was dismissed, in circumstances. Federation of Pakistan v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Messrs Yousaf Enterprises v. Collector 2005 PTD 21; Messrs Mahmood and Company v. Assistant Collector, Sales Tax (Enforcement and Collection), Shalimar Division, Lahore and 2 others 2005 PTD 72; Universal Recycling through Authorized Representative v. Federation of Pakistan through Secretary, Revenue Division/Chairman FBR and 2 others 2024 PTD 754 and Sabir Iqbal v. Cantonment Board Peshawar PLD 2019 SC 189 rel. (b) Discretion--- ----Statutory power, exercise of---Principle---Discretionary statutory power can only be exercised on a ground to achieve an object or purpose that is lawfully within the contemplation of that statute. Commissioner Inland Revenue v Pakistan Beverage Limited 2018 SCMR 1544 rel. Khalid Jawed Khan for Petitioners. Kashif Nazeer, Assistant Attorney General for Respondents Nos.1 and 2. Muhammad Anas Makhdoom for Respondents Nos.3 and 4. Dates of hearing: 25th, 26th February, and 3rd March, 2025.

Summary: Income Tax Ordinance (XLIX of 2 001)--- ----Ss. 120, 122, 113 & 221---Assessment, amendment of---Rectification---Scope---"Mistake apparent on record"---Scope---Record showed that respondent-taxpayer filed income tax return for the tax year 2011 (by declaring sales at Rs.232,823,500/-, net income as Rs.90610/- and tax paid as Rs.23,645/-,) which was taken as deemed assessment in terms of S. 120 of Income Tax Ordinance, 2001 ('the Ordinance, 2001')---Subsequently, minimum tax as per S. 113 read with Part-III of Second Schedule to the Ordinance, 2001 was charged by invoking provisions of S. 221 of the Ordinance, 2001, taking it as a mistake apparent on the face of record---Undeniably, income tax return for the Tax Year 2011 was an assessment order as per S.120(1), therefore, the Commissioner by virtue of and in exercise of the powers contained in Ss. 120(1A), 121, 122(1), (4), (5) & (5A) and 177 of the Ordinance, 2001, subject to the conditions prescribed, can amend or further amend the original assessment instead of invoking provision of S. 221 which only prescribes procedure for rectification of a mistake in an order, which is apparent from the record, and the circumstances under which such exercise can be done---Provision of S. 221, thus, neither creates nor takes away any right or privilege in or from anyone, it rather provides for rectification of mistake(s) apparent from the record---Essential condition for exercise of such power is that the mistake should be apparent on the face of record; mistake which may be seen floating on the surface and does not require investigation or further evidence---The mistake should be so obvious that on mere reading of the order, it may immediately strike on the face of it---Where an officer exercising such power enters into the controversy, investigates into the matter, reassesses the evidence or takes into consideration additional evidence and on that basis interprets the provision of law and forms an opinion different from the order, then it will not amount to 'rectification' of the order---Any mistake which is not patent and obvious on the record, cannot be termed to be an order which can be corrected by exercising power under S. 221 of the Ordinance, 2001---If the return is complete in terms of S. 114(2), the same is taken as deemed assessment order within the contemplation of S. 120(1), on the day the return was furnished---However, when the return is not complete, the Commissioner shall issue notice to taxpayer confronting deficiencies in terms of S. 120(3) and if requirements of notice are satisfied, the return is treated as complete and provisions of S. 120(1) shall apply accordingly---Commissioner is also empowered to amend an assessment order treated as issued under S. 120 or 121, under S. 122(1) and in case of revised return, under S. 122(3)---Commissioner is also authorized to further amend the amended assessment order under subsections (4), (5) & (5A) of S. 122, as per conditions enumerated therein---Careful reading of Ss. 120, 122 and 221 of the Ordinance, 2001 makes it very clear that the powers under these provisions are not overlapping rather are independent clearly intended to operate within their respective compass---Section 221 of the Ordinance, 2001 relates to the rectification of mistakes which are apparent from the face of record---Words used in the said provision are very specific and purposeful "any order passed by him" and does not include an order which is deemed to have been issued by the Commissioner by fiction of law which is the case for assessment orders under S. 120 of the Ordinance, 2001---Words "an assessment order treated as issued under S. 120" used in S. 122(1) of the Ordinance, 2001 are clearly distinguishable from the words used in S. 221 of the Ordinance, 2001 which says "any order passed by him"---Act of passing of formal order by any Officer of Inland Revenue presupposes an application of mind and in most cases adjudication on merits after hearing the parties---Thus, there is a marked distinction between the deemed order and the order passed by the authority after fully applying its mind and giving proper opportunity of being heard to the person---Every word used in a statute has to be given effect to and no word or provisions of a statute is to be treated as surplus and redundant---Thus, rectification is permissible only to "amend any order passed by him" and not the order treated to have been issued under S. 120 of the Ordinance, 2001 because the deemed order does not amount to an order passed by the authority---Had it been the intention of the legislature, it would have become necessary to introduce the specific provisions or amendment with certain words to cater, for the eventuality of deemed order in S. 221 that a deemed order under S. 120 can be amended in case of a mistake apparent from record---Expression "subject to this section" used in subsection (1) of S. 122 ibid further restricts that the deemed order treated to have been issued under S. 120 can only be amended under the said section---Under the law, the tax liability of an assessee in the process of rectification cannot be altered on the basis of a consideration, which was not part of the original proceedings and the concept of rectification of mistake to correct the error committed in the assessment order, which is found floating on the surface of the record, may not be beyond the assessment already made---Such mistake should be apparent from the record i.e. floating on the surface and consequently there should not be any controversies or investigation into the matter or reassessment of any evidence in order to decide whether or not such mistake needs to be rectified---Powers under S. 221 are quite limited to the extent of mistakes apparent from record since there are other provisions of law which deal with the authority of department officials with regard to reopening of assessment, revision etc. in cases where the department is of the view that certain income had escaped from the chargeability of tax, but for exercising powers under S. 221 of the Ordinance, 2001, there must be a mistake apparently floating on the surface which is so obvious to strike one's mind without entering into long drawn process of reasoning, detailed deliberation etc.---Expression "mistake apparent on record" must be the error or mistake so manifest and clear which, if permitted to remain on record, might have material effect on the case, however, an error of fact or law, having direct nexus with the question of determination of rights of parties, affecting their substantial rights or causing prejudice to their interest, is not a mistake apparent on the record to be rectified under S.156 of Income Tax Ordinance, 1979; and that the mistake must be of the nature, which is floating on the surface of record and must not involve, an elaborate discussion or detailed probe or process of determination---Thus, proposed questions were answered against the applicant-department and in favour of respondent-taxpayer---Reference application, filed by Department was dismissed. Commissioner of Income-Tax Company's II, Karachi v. Messrs National Food Laboratories 1992 SCMR 687; Commissioner of Income Tax and another v. Messrs Pakistan Petroleum Ltd. and 2 others 2012 SCMR 371; The Taxation Officer / Deputy Commissioner of Income Tax, Lahore v. Messrs Rupafil Ltd. and others 2018 SCMR 1131; Islamuddin and 3 others v. The Income-Tax Officer and 4 others 2000 PTD 306; Commissioner Income Tax v. Gulf Edible Oils (Pvt.) Ltd. 2006 PTD 2854; Messrs State Life Insurance Corporation of Pakistan, Karachi v. The Commissioner Income Tax, COS.III, Karachi and others 2021 PTD 913; East and West Steambship Co. v. Queensland Insurance Co. Ltd. PLD 1963 SC 395; Jalal Muhammad Shah v. Federation of Pakistan PLD 1999 SC 395; Commissioner Inland Revenue, Zone-I v. Messrs Siemens Pakistan Engg. Co. Ltd. 2017 PTD 903 and Commissioner of Income Tax, Karachi v. Messrs Shadman Cotton Mills Ltd., Karachi through Director 2008 PTD 253 ref. Messrs Saindak Metals Ltd. through Managing Director v. Chairman, Federal Board of Revenue and 3 others 2017 PTD 2227 distinguished. Raja Sikandar Khan and Sohail Zahid Butt for Applicant. Mudassar Shujauddin and Malik Bashir Ahmad Khalid for Respondent. Date of hearing: 15th March, 2022.

Summary: (a) Income Tax Ordinance (XLIX of 2001)--- ----Ss.2(22A) & 133---Sales Tax Act (VII of 1990), S.3---Tax/Fiscal statues---Retrospective effect---Principle---Tax year pertaining to 2015---Amendment in statute brought in the year 2017---'Fast Moving Consumer Goods', definition of---Subsequent amendment in definition excluding 'durable goods'---The question that arose for determination before the High Court was as to "whether, under the Income Tax Ordinance, 2001, a taxpayer engaged in the wholesale distribution of table glassware was entitled to the reduced minimum tax rate of 0.2% applicable to 'Fast Moving Consumer Goods' for tax year 2015, and whether the subsequent exclusion of durable goods from the definition of 'Fast Moving Consumer Goods' through the Finance Act, 2017, could be applied retrospectively to deprive the taxpayer of such benefit"---Facts in brevity were that the applicant was engaged in the wholesale business of kitchen/table glassware a net filed its tax return for the year 2015 under S. 120 of the Income Tax Ordinance, 2001 (the "Ordinance 2001")---The tax department issued a notice under S.122(5A), alleging that the return was erroneous and prejudicial to revenue interest due to incorrect application of the minimum tax rate under S. 113 of the "Ordinance, 2001"---The department contended that glassware, being durable goods, was excluded from the benefit of reduced tax rates for 'Fast Moving Consumer Goods'---The applicant argued that the reduced rate (0.2%) was applicable instead of the standard 1%, claiming that the definition of 'Fast Moving Consumer Goods' in 2015 did not exclude durable goods, and that subsequent amendments through the Finance Act, 2017 should not be applied retrospectively---Held: Each tax year was a separate unit of account and taxation, therefore, the definition of 'Fast Moving Consumer Goods' would apply as it stood in tax year 2015 prior to introduction of subsequent definitions which, of course, did not carry retrospective effect---Retrospective effect to legislation could only be given if it appeared beneficial for any person---An attempt on part of respondent department to bring the case of applicant within the 'exclusion ambit' of the amended definition clause of "Fast Moving Consumer Goods" was simply meant to deprive him of the benefit of the reduced tax rate---It was also meant to create a new liability and to disturb past and closed transaction---The plea of retrospective effect of the amendment, taken by the respondent department was therefore repelled---Regarding the question as to whether table glassware should be subject to the same sales tax criteria as held in the case reported as 2018 PTD 1582, particularly in cases where distributors of table glassware were required to pay a higher sales tax than those dealing in electronic appliances it was very clear that Art. 25 of the Constitution guaranteed equal protection of the law and prohibited arbitrary discrimination between similarly situated persons---Therefore, imposing a higher sales tax on distributors of table glassware than on electronic appliances created an unwarranted tax disparity, violating the principle of uniformity in taxation---No rational distinction existed between table glassware and electronic appliances that would have justified placing a higher tax burden on distributors of glassware while giving preferential treatment to electronics distributors---Distributors of table glassware were entitled to the same sales tax criteria as distributors of electronic appliances---The imposition of a higher sales tax on glassware distributors was unjustified and inconsistent with the principles of fiscal equity, constitutional rights, and fair market competition---The applicant / taxpayer was dealing in 'consumers goods' and thus he was liable to pay 0.2% minimum tax of the total turnover for tax year 2015---Reference application was accepted and decided against the respondent-Department. Fawad Ahmad Mukhtar and others v. Commissioner Inland Revenue (Zone-II), Regional Tax Office, Multan and another 2022 PTD 454; The Collector of Sales Tax and Central Excise, Ltu, Karachi v. Messrs Pak Suzuki Co. Ltd., Karachi 2016 PTD 867 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 rel. Commissioner Inland Revenue v. Messrs Haier Pakistan (Pvt.) Ltd. 2018 PTD 1582; Commissioner Inland Revenue v. Muhammad Aslam 2019 PTD 381; Commission of the European Communities v. French Republic (C-481/98) and Messrs D.G. Khan Cement Co. Ltd. v. Federation of Pakistan 2008 PTD 425 ref. (b) Interpretation of statutes--- ----Fiscal statutes---Fiscal neutrality principles---Scope---Fiscal laws must conform to the principles of fairness, reasonableness, and equal treatment and discriminatory tax policies must have a clear and rational basis---The principle of fiscal neutrality, recognized in both domestic and international taxation jurisprudence, dictates that goods or services serving similar economic functions should not be taxed differently without a justified legal or economic reason---Discriminatory tax policies that distort fair competition among similar goods violate fiscal neutrality principles. Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582 rel. Commission of the European Communities v. French Republic (C-481/98) ref. (c) Interpretation of statutes--- ----Tax and fiscal statutes---Retrospective effect---Principle---Retrospective effect to legislation can only be given if it appeared beneficial for any person. Zahid Shafique for Applicant. Malik Itaat Hussain Awan for Respondents along with Yousaf Khan, Staff Officer, I.R. (Legal) (Hqrs), R.T.O., Rawalpindi. Hafiz Muhammad Idrees, amicus curiae.

Summary: Customs Act (IV of 1969)--- ----S. 19---Sales Tax Act (VII of 1990), Sixth Sched., Cl. 133---Notifications SRO 65(I)/2006 dated 05-06-2006 and SRO 474(I)/2016 dated 27-06-2016---Tax exemption---Two HS Codes---Applicability---Petitioner / importer claimed exemption from levy of customs duty in terms of SRO 565(I)/2006 dated 05-06-2006 duly amended vide SRO 474(I)/2016 dated 27-06-2016, as goods imported were fully covered by the exemption as per column No.3 of Table at serial No.3 of amending SRO 474(I)/2016 dated 27-06-2016---Plea raised by petitioner / importer was that two HS Codes were available at serial No. 3 of Table to SRO 474(I)/2016 dated 27-06-2016 therefore, it qualified for such exemption or zero rating of duties---Validity---Provision of Cl. 133 of Sixth Schedule to Sales Tax Act, 1990, was not pari materia with the entry at serial No.3 of Table to SRO 474(I)/2016 dated 27-06-2016---There was no restriction under Cl. 133 of Sixth Schedule to Sales Tax Act, 1990, that manufacturer or formulator was to be approved or recognized by Ministry of National Food Security and Research; rather it was the product i.e. pesticides and active ingredients, which were required to be registered by Department of Plant Protection under Agricultural Pesticides Ordinance, 1971, including stabilizers, emulsifiers and solvents, namely, other surface active agents and non-ionic surface active agents---Petitioner / importer was claiming certain exemption and the principle relating to proper interpretation and application of exemption clauses in fiscal legislation were well settled that onus was upon taxpayer to show that his case had come within the exemption; and if two reasonable interpretations were possible, the one against taxpayer would be adopted---Petitioner / importer failed to fulfil condition as provided in column No.(2) against serial No.3 of SRO 474(I)/2016 dated 27-06-2016, including production of recognition and approval from Ministry of National Food Security and Research---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances. Surfactant Chemicals Company (Pvt.) Ltd. v. Federation of Pakistan and others 2020 PTD 1985; Federal Board of Revenue v. Surfactant Chemicals Company (Pvt.) Limited Civil Petitions Nos.95-K and 145-K of 2020; Civil Petitions Nos.95-K and 145-K of 2020; Oxford University Press v. Commissioner of Income Tax 2019 SCMR 235; Pakistan Match Industries (Pvt.) Limited v. Assistant Collector Sales Tax 2019 SCMR 906 and Commissioner Inland Revenue v. Kassim Textile Mills (Pvt.) Limited 2013 PTD 1420 ref. Asad Manzoor Halepota for Petitioner (in all Petitions). Dr. Shah Nawaz for Respondent No.3. (in C.P. No.D-4002 of 2019). Khalid Rajpar for Respondent No.3 (in C.P. No.D-774 of 2022). Ms. Masooda Siraj for Respondent No.4 (in C.P. No.D-774 of 2022). Kashif Nazeer, Assistant Attorney General for Federation of Pakistan. Date of hearing: 12th September, 2024.

Summary: Customs Act (IV of 1969)--- ----Ss. 196 & 202---Customs Recovery Rules, 1992, Rr. 7 & 8---Reference---Recovery of customs duty---Liability of directors of importer company---Applicant / director of importer company was aggrieved of attachment of her house to seek recovery of outstanding duties and taxes for goods imported by respondent / company---Validity---At the relevant time Customs Recovery Rules, 1992 did not contain any provision intended to impose liability on directors for payment of taxes and duties owned by importer company or to bring into the net the transaction for transfer of property in dispute or to declare applicant / director and her mother as defaulter---Applicant / director when confronted with proclamation of attachment of her property, rightly filed application for becoming party to appeal of company in order to support its case against order-in-original---Customs Appellate Tribunal having allowed application of petitioner / director was required to adjudicate upon her claim which it in fact did through its order by rejecting the same on merits---Petitioner / director rightly filed reference before High Court---High Court decided all the questions in affirmative in favour of applicant / director---Reference was allowed, in circumstances. H.M. Extraction Ghee and Oil Industries (Pvt.) Limited v. Federal Board of Revenue 2019 SCMR 1081 ref. Uzair Karamat Bhandari, Ali Uzair Bhandari and Imran Iqbal for Applicant. Rana Mehtab for Respondent No.5. Date of hearing: 11th September, 2024.

Summary: ----Ss. 5 & 6---Creation of a new district---Policy decision of Provincial Government---Petitioners, being residents of Killa Abdullah city, assailed the notification declaring the District Headquarter Killa Abdullah to be Pir Alizai instead of Killa Abdullah and sought the declaration of Killa Abdullah city to be District Headquarter of District Killa Abdullah---Validity---Constitution or re-constitution/creation of Divisions, Districts or subdivisions and to vary limits of a District or a subdivision or Tehsil is essentially an administrative measure falling within the statutory provisions of Ss. 5 & 6 of the Balochistan Land Revenue Act, 1967, to which the presumption of regularity is attached-- -Sections 5 & 6 of the Balochistan Land Revenue Act, 1967, empower the Government of Balochistan (GoB) to vary the number and limits of Divisions, Districts, or to create new Divisions and Districts---Policy decision of such nature falling within the ambit of powers of the GoB has to be taken in view of public interest, practical administrative convenience and difficulties of local population---Record reveals that previously the area of District Killa Abdullah was part and parcel of District Pishin---In the year 1993, District Pishin was bifurcated and new District Killa Abdullah was created by GoB with its Headquarter at Killa Abdullah city---After few months of creating District Killa Abdullah with its Headquarter at Killa Abdullah City, vide Notification dated 04.12.1994, the GoB declared Chaman city as temporary Headquarter of newly created District Killa Abdullah with the stipulation that Killa Abdullah city shall continue to remain as permanent Headquarter of District Killa Abdullah---Since 04.12.1994 till issuance of impugned Notification dated 29.06.2021, Chaman city remained Headquarter of District Killa Abdullah for all practical purposes and the Headquarter of District Killa Abdullah was never shifted back from Chaman city to Killa Abdullah city, due to which, the infrastructure development of all the required offices of Headquarter of District Killa Abdullah was made in Chaman city instead of Killa Abdullah city by the GoB---Vide impugned Notification dated 29.06.2021, District Killa Abdullah has been bifurcated by creating new District Chaman with Headquarter at Chaman city (comprising of subdivision city Chaman and subdivision Saddar Chaman with Tehsil city Chaman and Tehsil Saddar Chaman) and District Killa Abdullah with its Headquarter at Jungle Pir Alizai---Since Killa Abdullah city and Jungle Pir Alizai are situated at a distance of almost 15-kilomters from each other, therefore it hardly makes any difference for the inhabitants of District Killa Abdullah to reach the Headquarter of District Killa Abdullah whether it be at Killa Abdullah city or at Jungle Pir Alizai---Record reveals that even 15-Acres of Government land is not available in Killa Abdullah city; on the contrary, sufficient Government land is available in Jungle Pir Alizai---As compared to the congested population and non-availability of Government land in Killa Abdullah city, Jungle Pir Alizai has vast area of Government land which can conveniently be utilized for establishing/construction of different office buildings needed for Headquarter of District Killa Abdullah for which sufficient funds have already been approved by the GoB and construction of few buildings has also been started---Thus, existence of few office buildings and a small Railway Station of pre-partition time cannot be made a basis to make Killa Abdullah city as Headquarter of District Killa Abdullah---Petitioners have failed to show by placing any relevant material that action on the part of GoB in issuing the impugned Notification dated 29.06.2021 for District Killa Abdullah with its Headquarter at Jungle Pir Alizai is tainted with mala fides or is suffering from any legal infirmity---Decision of the Provincial Cabinet did not suffer from any unfairness, unreasonableness or arbitrariness on the part of the GoB warranting interference by the High Court in its constitutional jurisdiction---Constitution petitions were dismissed, in circumstances. (b) Constitution of Pakistan--- ----Art. 199---Balochistan Land Revenue Act (XVII of 1967), Ss. 5 & 6- --Creation of a new district---Policy decision of Provincial Government---Judicial review---Petitioners, being residents of Killa Abdullah city, assailed notification declaring the District Headquarter Killa Abdullah to be Pir Alizai instead of Killa Abdullah and sought the declaration of Killa Abdullah city to be District Headquarter of District Killa Abdullah---Validity---Though the impugned Notification is a policy decision of Government of Balochistan but the same is not immune from being called in question before the High Court as powers of judicial review under Art. 199 of the Constitution are available in case of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of the Government---However, in the present case, decision of the Provincial Cabinet did not suffer from any unfairness, unreasonableness or arbitrariness on the part of the Government of Balochistan warranting interference by the High Court in its constitutional jurisdiction---Constitution petition was dismissed, in circumstances. Kamran Murtaza, Adnan Ejaz, Tahir Ali Baloch and Asad Achakzai for Petitioners (in C.P. No.1319 of 2021). Abdul Wasay Tareen, Aminullah Kakar and Sayed Muhammad for Respondent No. 4 (in C.P. No.1319 of 2021). Nusrat Ullah Baloch, Assistant Advocate General ('A.A.G.') for Respondents Nos. 1 to 3. (in C.P. No.1319 of 2021). Abdul Qadoos Tareen, Intervener/applicant/Respondent No. 5 (in C.P. No.1319 of 2021). Naimatullah Achakzai for Petitioner (in C.P. No. 1450 of 2021). Nusrat Ullah Baloch, A.A.G. for Respondents Nos.1 to 4 (in C.P. No. 1450 of 2021). Abdul Qadoos Tareen for Intervener/applicant/Respondent No.5 (in C.P. No. 1450 of 2021). Tariq Ali Tahir and Barkhurdar Khan for Petitioner (in C.P. No. 1476 of 202). Nusrat Ullah Baloch, A.A.G. for Respondents Nos.1 to 4 (in C.P. No. 1476 of 202). Date of hearing: 15th November, 2022.

Summary: ----Ss. 5 & 6---Creation of a new district---Policy decision of Provincial Government---Petitioners, being residents of Killa Abdullah city, assailed the notification declaring the District Headquarter Killa Abdullah to be Pir Alizai instead of Killa Abdullah and sought the declaration of Killa Abdullah city to be District Headquarter of District Killa Abdullah---Validity---Constitution or re-constitution/creation of Divisions, Districts or subdivisions and to vary limits of a District or a subdivision or Tehsil is essentially an administrative measure falling within the statutory provisions of Ss. 5 & 6 of the Balochistan Land Revenue Act, 1967, to which the presumption of regularity is attached-- -Sections 5 & 6 of the Balochistan Land Revenue Act, 1967, empower the Government of Balochistan (GoB) to vary the number and limits of Divisions, Districts, or to create new Divisions and Districts---Policy decision of such nature falling within the ambit of powers of the GoB has to be taken in view of public interest, practical administrative convenience and difficulties of local population---Record reveals that previously the area of District Killa Abdullah was part and parcel of District Pishin---In the year 1993, District Pishin was bifurcated and new District Killa Abdullah was created by GoB with its Headquarter at Killa Abdullah city---After few months of creating District Killa Abdullah with its Headquarter at Killa Abdullah City, vide Notification dated 04.12.1994, the GoB declared Chaman city as temporary Headquarter of newly created District Killa Abdullah with the stipulation that Killa Abdullah city shall continue to remain as permanent Headquarter of District Killa Abdullah---Since 04.12.1994 till issuance of impugned Notification dated 29.06.2021, Chaman city remained Headquarter of District Killa Abdullah for all practical purposes and the Headquarter of District Killa Abdullah was never shifted back from Chaman city to Killa Abdullah city, due to which, the infrastructure development of all the required offices of Headquarter of District Killa Abdullah was made in Chaman city instead of Killa Abdullah city by the GoB---Vide impugned Notification dated 29.06.2021, District Killa Abdullah has been bifurcated by creating new District Chaman with Headquarter at Chaman city (comprising of subdivision city Chaman and subdivision Saddar Chaman with Tehsil city Chaman and Tehsil Saddar Chaman) and District Killa Abdullah with its Headquarter at Jungle Pir Alizai---Since Killa Abdullah city and Jungle Pir Alizai are situated at a distance of almost 15-kilomters from each other, therefore it hardly makes any difference for the inhabitants of District Killa Abdullah to reach the Headquarter of District Killa Abdullah whether it be at Killa Abdullah city or at Jungle Pir Alizai---Record reveals that even 15-Acres of Government land is not available in Killa Abdullah city; on the contrary, sufficient Government land is available in Jungle Pir Alizai---As compared to the congested population and non-availability of Government land in Killa Abdullah city, Jungle Pir Alizai has vast area of Government land which can conveniently be utilized for establishing/construction of different office buildings needed for Headquarter of District Killa Abdullah for which sufficient funds have already been approved by the GoB and construction of few buildings has also been started---Thus, existence of few office buildings and a small Railway Station of pre-partition time cannot be made a basis to make Killa Abdullah city as Headquarter of District Killa Abdullah---Petitioners have failed to show by placing any relevant material that action on the part of GoB in issuing the impugned Notification dated 29.06.2021 for District Killa Abdullah with its Headquarter at Jungle Pir Alizai is tainted with mala fides or is suffering from any legal infirmity---Decision of the Provincial Cabinet did not suffer from any unfairness, unreasonableness or arbitrariness on the part of the GoB warranting interference by the High Court in its constitutional jurisdiction---Constitution petitions were dismissed, in circumstances. (b) Constitution of Pakistan--- ----Art. 199---Balochistan Land Revenue Act (XVII of 1967), Ss. 5 & 6- --Creation of a new district---Policy decision of Provincial Government---Judicial review---Petitioners, being residents of Killa Abdullah city, assailed notification declaring the District Headquarter Killa Abdullah to be Pir Alizai instead of Killa Abdullah and sought the declaration of Killa Abdullah city to be District Headquarter of District Killa Abdullah---Validity---Though the impugned Notification is a policy decision of Government of Balochistan but the same is not immune from being called in question before the High Court as powers of judicial review under Art. 199 of the Constitution are available in case of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of the Government---However, in the present case, decision of the Provincial Cabinet did not suffer from any unfairness, unreasonableness or arbitrariness on the part of the Government of Balochistan warranting interference by the High Court in its constitutional jurisdiction---Constitution petition was dismissed, in circumstances. Kamran Murtaza, Adnan Ejaz, Tahir Ali Baloch and Asad Achakzai for Petitioners (in C.P. No.1319 of 2021). Abdul Wasay Tareen, Aminullah Kakar and Sayed Muhammad for Respondent No. 4 (in C.P. No.1319 of 2021). Nusrat Ullah Baloch, Assistant Advocate General ('A.A.G.') for Respondents Nos. 1 to 3. (in C.P. No.1319 of 2021). Abdul Qadoos Tareen, Intervener/applicant/Respondent No. 5 (in C.P. No.1319 of 2021). Naimatullah Achakzai for Petitioner (in C.P. No. 1450 of 2021). Nusrat Ullah Baloch, A.A.G. for Respondents Nos.1 to 4 (in C.P. No. 1450 of 2021). Abdul Qadoos Tareen for Intervener/applicant/Respondent No.5 (in C.P. No. 1450 of 2021). Tariq Ali Tahir and Barkhurdar Khan for Petitioner (in C.P. No. 1476 of 202). Nusrat Ullah Baloch, A.A.G. for Respondents Nos.1 to 4 (in C.P. No. 1476 of 202). Date of hearing: 15th November, 2022.

Summary: ----O. XX, R. 13---Administration suit---Stranger to proceedings---Benami transaction, claim of---Proof---Appellant filed application for Administration of suit property and respondent/objector joined proceedings and claimed the property to be Benami and that actual owner was his father---Trial Court converted administration petition into a civil suit and objection filed by respondent/objector as written statement---Validity---Contentions of respondent/objector could not be addressed within the framework of an administration petition---Even if there were allegations of Benami ownership, allowing respondent/ objector to file a written statement allowed him to "side-step" the procedure and "frog-leap" the vested rights of legal heirs of deceased owner in their administration proceedings---Essential goal of administration proceedings was to ascertain the extent of deceased individual's estate and ratio within which it was devolved amongst the legal heirs---Simply agitating that there was a Benamdar, did not translate automatically into impleading a stranger in administration matter---Such challenges could not be deemed sufficient to dismiss an administration petition or challenge an administration suit's validity---Respondent/objector could prove his claim before proper forum subject to all just exceptions---Respondent/objector had no right to participate any further in administration proceedings filed by legal heirs of deceased owner---Respondent/objector was at liberty to agitate his right in separate proceedings---Contents of judgment of High Court in Administration petition were confined to that judgment alone and could not be taken as decided/settled case---Appeal was allowed accordingly. Muhammad Zahid v. Mst. Ghazala Zakir and others PLD 2011 Kar. 83 rel. Saifullah Khan and others v. Mst. Afshan and others PLD 2017 Sindh 324; Muhammad Suleman and others v. Muhammad Ahsan and others 2017 MLD 1867; Khair Muhammad Khaitan and 5 others v. Liaquat Ali G. Kazi and 9 others 2017 CLC Note 172; Shaukat Zaib and 8 others v. Khuram Zaib and 3 others 2018 CLC 970; Suit No.712 of 2001, Order dated 27.03.2017; Noor Muhammad v. Zafar Ali, Suit No.321 of 2007, Order dated 03.12.2019; Muhammad Khalid v. Mst. Mehmooda Khanum and others, Suit No.267 of 1997, Order dated 03.09.2018 and Mst. Shaista Nafees v. Haji Muhammad Zaki and others Suit No.128 of 2017, Order dated 12.02.2019 ref. Asad Ali Khan for Appellant. Wiqas Ahmed Khan for Respondent. Date of hearing: 19th October, 2023.

Summary: ----Ss. 540, 345(2), 337 & 338---Penal Code (XLV of 1860), Ss. 302(b) & 34---Contract Act (IX of 1872), S. 23---Calling an acquitted co-accused as a prosecution witness---Legality---Qatl-i-amd, common intention---Compromise made with co-accused on the condition that he would testify against accused---Legality---Application of the petitioner, sought recalling of the acquitted accused as a prosecution witness was dismissed by the Trial Court---Validity---Accused "PK" was arrested who had confessed his guilt before the Investigating Officer and disclosed that "MI" was his co-accused and they both committed qatl-i-amd of the deceased---On such disclosure, the respondent No.2 was arrested who also confessed to the charged offence---Both the accused were sent to face the trial where they were indicted; they pleaded not guilty and claimed trial---In the course of trial, the accused "PK" compounded the offence with the complainant/ petitioner---Trial Court accepted the application made under S.345 (2), Cr.P.C and acquitted the accused "PK"---Allegedly, the acquitted accused had confessed his guilt before the Investigating Officer; therefore, he being a participator of the qatl-i-amd of the deceased was an eye witness, as such, he was competent witness---Participator of offence becomes a competent witness when he is tendered pardon under Ss. 337 & 338, Cr.P.C.---Even otherwise, the admission of guilt before the Investigating Officer of an accused is not relevant under Arts. 38 & 39 Qanun-e-Shahadat, 1984, therefore, evidence of such witness is inadmissible---Disclosure of any accused is not admissible in evidence against a co-accused---Since the prosecution could not place reliance on the confession of accused made before the police, therefore, the prosecution could not be allowed to produce such piece of evidence before the Trial Court against the co-accused/ respondent No.2---Perusal of record inferred that the petitioner had compromised the offence with the acquitted accused on the condition that he would give testimony against the respondent No.2, because the petitioner had not mentioned any reason of compromise with the acquitted accused in his application made under S.540, Cr.P.C.---If such practice is allowed to prevail, then, the same will result in mockery of law and the complainant/prosecution will be at liberty to pick and choose between the accused persons and compromise the case with an accused of his choice so as to bring him as his witness and punish an accused, he wisked to get punished---Such nature of compromises would defeat the provisions of Ss. 337 & 338, Cr.P.C., therefore, same are void under S. 23 of the Contract Act, 1877, to the extent of calling acquitted accused as a prosecution witness---Since, the prosecution had not resorted to the provisions of Ss. 337, 338 or S.494, Cr.P.C., for offering pardon to the accused "PK" during the investigation or trial nor had withdrawn prosecution against him, therefore, the said accused could not be called as a prosecution witness under S.540, Cr.P.C.---Criminal revision petition was dismissed, in circumstances. Rafiullah v. 11th Additional District and Sessions Judge (West) Karachi and others 2020 MLD 942; Wasiullah v. Ali Mohseen and 2 others 2016 PCr.LJ 1124; Siddiqullah v. The State and another PLD 2009 Pesh. 1; Malik Muhammad Younas and another v. Umer Hayat and another 1998 MLD 1195; Mian Muhammad Nawaz Sharif v. The State PLD 2009 SC 814; Mst. Rabia Bibi v. Additional Sessions Judge and 3 others PLD 2020 Lahore 690 and Abdur Rashid and another v. The State 1970 PCr.LJ 722 ref. Abdur Rashid and another v. The State 1970 PCr.LJ 722 rel. Akbar Khan Kakar and Ghulam Wali Achakzai for Petitioner. Fazal-ur-Rehman State Counsel for Respondent No.1 and Taimoor Shah Kakar for Respondent No.2. Date of hearing: 16th October, 2023.