Summary: Azad Jammu and Kashmir Supreme Court Rules, 1978--- ----O. XIII, R. 3(1-A)---Appeal before Supreme Court, filing of---Lists of the legal heirs of the parties with memo of appeal/petition for leave to appeal not submitted---Effect---Appeal, competency of---It was an admitted position that the lists of the legal heirs annexed with the (present) memo of PLA/appeal were not the lists of the legal heirs of the plaintiffs and defendants, filed before the Trial Court---Under Sub-rule (1-A) of R. 3 of O. XIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, filing of lists of the legal heirs of the plaintiffs and the defendants filed before the Trial Court, were mandatory to be annexed with the memo of PLA/appeal of the said statutory provision---It was enjoined upon the (present) appellants to annex the lists of legal representatives of the plaintiffs and the defendants, and if the same were not filed in the Trial Court, then the certification of the Trial Court in said regard should necessarily be brought on the record, which had also not been done---Thus, present appeal had been filed incompetently, therefore, there was no need to dilate upon the merits and demerits of the case as the same would be a futile exercise---Appeal, having been filed incompetently, was dismissed. Syed Nazir Hussain Shah Kazmi, Advocate for Appellants. Abdul Waheed Arif, Advocate for Respondents. Date of hearing: 15th February, 2025.

Summary: ----Art. 199---Constitutional petition---Locus standi---Aggrieved person- --Private person---Petitioner in public interest assailed establishing of a residential scheme by a private company allegedly in the vicinity of Cantonment and an Airbase---Validity---Petitioner had no interest at all in the housing scheme in question and its development had no effect on him---Petitioner was not an aggrieved person under Art. 199 of the Constitution and his Constitutional petition was not maintainable---Petitioner sought relief of declarations/directions against private individuals and as such his petition was not maintainable under Art. 199(1)(a), (b) and (c) of the Constitution, as the respondents/ private persons were not performing functions in connection with the affairs of Federation, Province or a local authority---Even no fundamental right of petitioner had been infringed---Constitutional petition was dismissed, in circumstances. Pakistan Tabacco Board and another v. Tahir Raza and others 2007 SCMR 97; Fida Hussain through attorney v. Executive Engineer Irrigation/Drainage Larkana and 4 others 2013 PLC (C.S.) 106 Sindh; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Malik Allah Ditta and others v. Member Board of Revenue/(Judicial-V)/Chief Settlement Commissioner/Notified Officer Punjab Lahore and another 2022 CLC 414; Human Rights Case No. 18877 of 2018 (PLD 2019 SC 645); C.P. No. D-730 of 2017; State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tabacco Company Ltd. PLD 1983 SC 280; Mst. Noor Jehan Begum v. Dr. Abdus Samad and others 1987 SCMR 1577; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 others 1999 SCMR 2883; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493; Democratic Workers Union C.B.A v. State Bank of Pakistan and others 2002 PLC (C.S.) 614; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Muhammad Yousaf Khan Bugti and another v. Province of Sindh through Senior Member Board of Revenue and 5 others 2013 CLC 1155; Balochistan Medical Association through President v. Government of Balochistan through Secretary Health and others 2017 CLC 1195 and Fazal Din's case PLD 1969 SC 223 rel. (b) Constitution of Pakistan--- ----Art. 199---Constitutional jurisdiction of High Court---Public interest litigation---Principles---High Court should entertain public interest litigation under Art. 199 of the Constitution in extremely worthy cases which genuinely affect the public and their fundamental rights (but not as a routine)---In so doing, all legal requirements must be met by petitioner under Art. 199 of the Constitution---High Court must use extraordinary care and caution before entertaining such petitions. Barrister Fayaz Ali Metlo for Petitioner along with Petitioner. Farooq H. Naik for Respondent No. 13. Ayaz Hussain Tunio for Respondent No. 14. Allah Bachayo Soomro and Muhammad Ismail Bhutto, Additional Advocate Generals of Sindh along with ADC-I Jamshoro [Nooruddin Hingorjo] and Mukhtiarkar Thana Bula Khan [Iqtidar Rasool]. Muzzamil Khan Bughio for SBCA. Ghulam Abbas Sangi, Assistant Attorney General along with Director Survey of Pakistan Karachi [Asad Ali]. Date of hearing: 16th May, 2024.

Summary: ----Art. 18-A---Penal Code (XLV of 1860), Ss. 430, 468 & 471---Criminal Procedure Code (V of 1898), S. 200---Transfer of investigation---Private complaint, pendency of---Effect---Accused was facing trial in private complaint for committing offences of cheating and forgery---During pendency of trial of private complaint, police authorities transferred investigation for re-investigation of FIR registered against accused---Validity---There are three police hierarchies bestowed with power to transfer investigation i.e. the Head of District Police; the Regional Police Officer; and the Provincial Police Officer---Transfer of investigation is not a matter of routine or simple compliance of Art. 18-A of Police Order, 2002, instead it is ordered if some further material relevant to the case is required and to find out the truth for advancement of the cause of justice, and not to oblige one party to the detriment of the other for some ulterior motive-- -Before making such order, troubles of parties in producing their witnesses/evidence time and again should also be kept in mind---Such power is not unfettered rather qualified by certain contingencies and pre-requisites, inter-alia, discovery of some new event or evidence; previous investigation being unilateral, or based on mala fide, or excess of jurisdiction, or having serious flaw(s) or being unsatisfactory for some reasons etc.---High Court is also under legal obligation to see legality and validity of repeated transfers of investigation in the light of peculiar facts and circumstances of each case---High Court directed the authorities that re-investigation or further investigation within the contemplation of Art. 18-A of Police Order, 2002 could be conducted after conclusion of proceedings in private complaint depending upon fate of trial, pursuant to order in question---Constitutional petition was allowed accordingly. Nur-Elahi v. The State and others PLD 1966 SC 708; Qari Muhammad Rafique v. Additional Inspector-General of Police (Inv.), Punjab and others 2014 SCMR 1499; Muhammad Naveed v. Inspector-General of Police, Punjab and others 2019 PCr.LJ Note 130; Muhammad Akbar v. The State and another 1972 SCMR 335; Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCMR 474; Abid Hussain v. The State through SHO, Police Station Nawab Town and others 2022 PCr.LJ 83; PLD 2022 Lah. 721; Abdul Aziz v. S.P. (C.I.A.), Sargodha and 2 others PLD 1997 Lah. 24; Muhammad Ashfaq v. Additional Inspector-General of Police (Investigation) Punjab, Lahore and 3 others 2013 PCr.LJ 920; Zeeshan Mustafa Lashari and another v. Province of Sindh through Chief Secretary and 5 others 2016 YLR Note 37 and Wali Muhammad v. P.O. Sindh through Secretary Home Department and 8 others 2018 PCr.LJ Note 105 ref. Nur-Elahi v. The State PLD 1966 SC 708; Muhammad Rafique v. Muhammad Rafique and another PLD 1983 SC 426 and Niaz Ahmed v. Hasrat Mahmood and others PLD 2016 SC 70 rel. (b) Police Order (22 of 2002)--- ----Art. 18-A---Re-investigation---Stage---Filing of investigation report in Court---Effect---There is no encumbrance for police to conduct re-investigation or further investigation of a case even if an earlier report under S. 173 Cr.P.C. has been submitted before Court and the Court has taken cognizance of the matter---Police is competent to re-investigate and to submit fresh challan on the basis of subsequent investigation---Transfer of investigation is regulated by Art. 18-A of Police Order, 2002---Only impediment in such regard is that re-investigation or further investigation is not permissible after conclusion of trial of criminal case. Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore and 8 others PLD 2010 Lah. 224; Munir Ahmad v. Additional Inspector General of Police, Punjab and 6 others 2016 MLD 2039; Zafar Ali v. Regional Police Officer and 3 others 2017 YLR 1703; Muhammad Idrees v. Regional Police Office, Sheikhupura and others 2019 PCr.LJ Note 105; Muhammad Yousaf v. The State and others 2000 SCMR 453; Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; Muhammad Hafeez v. District Police Officer Narowal and 4 others 2010 YLR 3142; Muhammad Mazhar v. Additional I.G. Police Investigation Branch Punjab Lahore and 3 others 2011 YLR 2463; Muhammad Gulfan v. Regional Police Officer, Sheikhhupura Range, Lahore and 7 others 2012 PCr.LJ 1493; Abdul Hakeem v. Shaban and 9 others 2017 YLR 1488 and Abid Hussain v. The State through SHO, Police Station Nawab Town and others 2022 P Cr. L J 83 rel. Hafeez-ur-Rehman for Petitioner. Barrister Ameer Abbas Ali Khan, Assistant Advocate General along with Nasir Mahmood Malik, DSP (PIB), Qadeer Hussain, DSP (Legal), Altaf Hussain, SI and Abdul Sattar, SI for Official Private Respondents. Rai Tariq Saeed for Respondents. Date of hearing: 7th September, 2022.

Summary: ----Preamble---Constitution of Pakistan, Arts. 199, 28 & 251---Constitutional petition---Implementation of national and regional languages as medium of education---Duty of Government, non-performance of---Petitioner sought implementation of Balochistan Introduction of Mother Languages as Compulsory Additional Subject at Primary Level Act, 2014---Held, that, mother tongue is the language which a child starts hearing after being born and it always helps in providing a definite shape to our emotions and thoughts---If a student is educated in his/her mother tongue, the rate of his or her educational success is higher compared to what is taught in a different medium---Student taught in mother tongue can easily master a new language---Right to education in mother tongue is the right of every child, however, unfortunately, in our country the majority of students are taught in a language other than their mother tongue, which compromises their ability to learn effectively---Our innocent children have no access to education in a language they speak and understand---Idea of one nation and one language killed the diversity and mother languages---Unity does not mean uniformity and the unity of our beloved country lies in its diversity---Government, in its response, acknowledged the existence of the Act but argued that its implementation had been delayed due to practical challenges and logistical issues---Government claimed to have taken certain preliminary steps towards implementing the Act---Government had a constitutional obligation to uphold and enforce the law---Mere existence of challenges could not absolve the Government from its duty to implement validly enacted legislation---It was the duty of the Government to adopt measures, including appropriate resource allocation and policy formation to overcome those challenges and ensure effective implementation---Constitutional petition was allowed, in circumstances, with a direction to take immediate and concrete steps for implementing the provision of the Act in its true spirit. Muhammad Kowkab Iqbal v. Government of Pakistan PLD 2015 SC 1210 rel. Naimath-Ullah Achakzai and Kaleemullah Kaleem for Petitioner. Shai Haq Baloch, Additional Advocate General (A.A.G.) for Respondents. Date of hearing: 19th June, 2023.

Summary: ----S. 25---Custody of daughters---Welfare of child---Paramount consideration---Second marriage of mother---Effect---Right of Hizanat, loss of---Existence of exceptional circumstance for retaining the custody by mother---Burden of proof---Father filed application for custody of his daughters on the ground that their welfare was with him as the mother had contracted second marriage with a person, who was not related to the minors within the prohibited degree---Petitioner-husband's application for custody of daughters was dismissed by both the Guardian Court and the Appellate Court---Validity---Mother's second marriage to someone unrelated to her children within the prohibited degree (a stranger) does not automatically disqualify her from custody---While paragraphs-352 and 354 of Principles of Muhammad Law suggest that mother loses such right of Hizanat upon remarriage, the child's welfare remains the paramount consideration---Even though the mother loses the automatic right to Hizanat, especially after daughters reach puberty, the court must still determine their best interests, which includes considering the children's physical and emotional needs, medical care, the parents' ability to provide a safe home, and the quality of parent-child relationship---Court must ascertain if exceptional circumstances exist to justify the mother retaining custody, the burden of proving which falls on her---Nothing was produced by mother to show that the petitioner/husband, who himself was a well-placed person, could not sustain maintenance of the minors at his house or there were some special and exceptional circumstances to justify minors living with a stranger and not with their real father---Daughters living with a stranger, who might be husband of their mother but not related to them within prohibited degree, was not even sanctioned by Islam---In absence of any exceptional circumstances, which the mother had not pointed out through tangible evidence and which might disentitle the petitioner from custody of his daughters, the living of daughters with a stranger could not be perpetuated judicially at the alter of convenience of the minors, which they were used to by the dint of living with their mother for a considerable time---Petitioner was the real father of the minors, hence, was natural guardian, who was living in a joint family house, where apart from him, his parents were also residing, thus, minor daughters would be more comfortable in living with their father and grandparents than living with a stranger---Application was allowed, in circumstances , by handing over custody of daughters to father and establishing visitation rights of mother. 2014 SCMR 343; 1981 SCMR 200; 2018 YLR 1771 and 2022 SCMR 2123 ref. Amel Khan Kasi and Khuram Ashfaq for Petitioner. Zohaib Sarki for Respondents No. 1. Date of hearing: 24th September, 2024.

Summary: ----Art. 17---Trade Organizations Act (II of 2013), S. 14(3)(d)---Hajj Organizers Association of Pakistan---Holding of elections---Freedom of association---Scope---Petitioner/Hajj Organizers Association of Pakistan (HOAP) assailed notices issued by Director General Trade Organization (respondent), directing them to conduct elections of their office bearers within the scheduled time, while debarring the incumbent Members of Executive Committee from contesting the upcoming election---Contention of the petitioner was that the impugned notices were contrary to Art. 17 of the Constitution---Validity---Article 17 of the Constitution clearly manifests that every citizen shall have the right to form an association or union, but simultaneously it also enunciates that it is subject to reasonable legal restrictions imposed by the law---Similarly, holding of elections for the purpose of representation is also a fundamental right and requirement, which can neither be abridged or taken away nor it can be delayed without any lawful justification on the basis of lame pretext, thus such objection/ contention of the petitioner was misconceived---Constitutional petition was dismissed, in circumstances. (b) Trade Organizations Act (II of 2013)--- ----Ss. 14(3)(d), 14(3)(e) & 21---Trade Organizations Rules 2013, R. 21(15)---Constitution of Pakistan, Art. 17---Hajj Organizers Association of Pakistan---Holding of elections---Incumbent debarred from contesting forthcoming elections---Legality---Petitioner/Hajj Organizers Association of Pakistan (HOAP) assailed notices issued by Director General Trade Organization (respondent), directing them to conduct elections of their office bearers within the scheduled time, while debarring the incumbent Members of Executive Committee from contesting the upcoming election---Contention of the petitioner was that not allowing the incumbent members of the executive committee to contest elections for the next tenure, was unjustified being violative of Art. 17 of the Constitution---Validity---Association of the petitioner was governed by Trade Organizations Act, 2013 ('the Act 2013')---Section 14(3)(d) of the Act 2013, inter alia, empowers the Regulator to watch and supervise any election held by or for the purpose of electing persons to the Executive Committee, whereas clause (e) of S.14(3) also enunciates that any person, committee or office bears of the trade organization in matters relating to the electoral process before the conduct of the election may approach the Regulator in appeal---Moreover, the Act 2013 also provides a remedy of appeal as contemplated under S. 21 of the Act 2013---Act 2013 was amended in the year 2022, wherein a number of amendments were made part of the Act 2013---Sub-rule (15) of R. 21 of the Trade Organization Rules of 2013 clearly contemplates that on completion of term, office bearers and members of the executive committee shall not be eligible to contest election or co-opt in any representative capacity in the trade organization for the next tenure, which straight away demolished the contention/argument of the petitioner that the members of executive committee of the organization could not be restricted to participate in the election for the second time for being violative of Art. 17 of the Constitution---Constitutional petition was dismissed, in circumstances. Habibullah Nasar for Petitioner. Khushal Khan Kasi, Assistant Attorney General ("A.A.G.") for Official Respondents. Date of hearing: 23rd September, 2024.

Summary: ----Ss. 302(b), 201 & 34---Criminal Procedure Code (V of 1898), S. 353---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Evidence in one case used in another case for awarding conviction---Legality---Right to fair trial and due process---Scope---Accused were charged for committing murder of the deceased by firing and concealing his body---Record showed that appellant along with acquitted accused were tried independently, whereas other appellant being juvenile was tried separately---In both the cases, evidence from the prosecution witnesses was recorded separately and they were also cross-examined separately---In both the cases, single judgment was passed and only evidence of one case was appreciated/discussed in the judgment and the evidence recorded in the case of juvenile was not discussed and the appellant/juvenile was convicted on the basis of evidence which was not recorded in the case---Evidence recorded in one case could not be used in another case for awarding conviction---Practice adopted by the Trial Court in the case was illegal and against the law---Appellant/juvenile was convicted and sentenced to imprisonment for life based on evidence which was not recorded in his case and the practice so adopted by the Trial Court was in violation of S. 353, Cr.P.C.---Evidence used for convicting the appellant/juvenile was not recorded in his presence as he was tried in another case and the evidence recorded in other case was used against him while convicting him---Thus based on the said facts and circumstances, the impugned judgment was not sustainable in law and same was set-aside---Case was remanded to the Trial Court only for re-writing the judgment and to decide both the cases separately by discussing the evidence of each case separately---Appeals were disposed of accordingly. Khalid Mehmood alias Khaloo v. The State 2022 SCMR 1148 rel. Inam Ali Malik and Shahid Ali Sahito for Appellants. Khuda Bux, the Complainant present in person. Ms. Rameshan Oad, A.P.G. for the State. Date of hearing: 24th September, 2024.

Summary: ----O. XXI, Rr. 66, 67, 68 & 72---Execution proceedings---Public Auction---Participation of decree-holder without permission---Effect---Non-compliance with mandatory provision---Payment of decretal amount during pendency of execution--- Challenge to possession order---Held, that O. XXI, Rr. 66, 67 & 68, C.P.C., outlined a comprehensive mechanism, whereby it was the duty of the Executing Court that after attaching the property, it had to direct the revenue authorities to assess the market value before referring the case to the District Revenue Officer for auction---Court was also required to instruct the Revenue Officer to include the reserved price in the auction proclamation, however, parties were not allowed time to inspect the property; the valuation and reserve price were absent---Proclamation must include all material particulars to inform potential bidders about the nature and value of the property---Non-compliance with O. XXI, Rr. 66, 67 & 68, C.P.C., vitiated the proceedings---If a decree-holder intends to participate in the auction, permission under R. 72 is mandatory, and only then can he claim a set-off of the purchase money---Decree-holder did not obtain such permission, rendering the auction proceedings violative of Rr. 66, 67, 68 & 72 of O. XXI, C.P.C., which was an illegality apparent on the record, thus, the auction was declared illegal---During litigation, the judgment-debtor produced documents proving full payment of the decretal amount, thus, the revisional court rightly set aside the auction/transfer order---No infirmity or perversity was found in the revisional court's order, rendering it immune from interference by the High Court---Constitutional petition was dismissed, in circumstances. Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Bank Al-Habib Limited through Branch Manager v. Messrs Rafi Cotton Industries (Pvt.) Ltd. through Chief Executive and others 2023 CLD 154; Muhammad Zulfiqar and another v. Additional District Judge (West), Islamabad and others PLD 2016 Isl. 91; Trust Leaving v. Messrs Regent Dying 2005 CLC 1368; Brig. (Retd.) Mazhar-ul-Haq and another v. Messrs Muslim Commercial Bank Limited, Islamabad and others PLD 1993 Lah. 706; Mohib Textile Mills Limited through Director/ Shareholder/Representative, Formr Management of the Company v. National Bank of Pakistan, Karachi and others 2005 SCMR 1237; Siddique Weellen Mills through all Partners and 5 others v. Allied Bank of Pakistan Limited through Manager and General-Attorney, Badami Bagh Branch, Lahore 2002 CLD 1299; Messrs Asif Brothers, Jhang Saddar through Sole Proprietor and another v. Muslim Commercial Bank Limited through Manager and 3 others 2005 CLD 236; Muhammad Maherban v. Muhammad Siparas and others 2014 CLC 1329 and Muhammad Nazeer v. Waheed Anwar PLJ 2015 Lahore 938 ref. Muhammad Ahmed Sheikh and 2 others v. J.S. Bank Limited through Branch Manager 2012 CLC 498 rel. Petitioner in person. Mushtaq Ahmed Anjum and Muhammad Yousaf Kakar for Respondent No.1. Arbab Nasruminallah, Additional Advocate General for Respondent No.2. Date of hearing: 20th November, 2024.

Summary: ----Trichotomy of power is essential and important as it is a basic feature of the Constitution. (b) Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988--- ----R. 6---Constitution of Pakistan, Arts. 17, 65 & 199---Constitutional petition---Oath of elected representative---Freedom of association---Scope---Petitioners were notified as Members of Provincial Assembly on reserved seats, who were not administered oath before upcoming election of Senate---Validity---Oath is to Allah Almighty and surely not to the person who is administering such oath---Person who discharges such obligation only performs an administerial obligation required by the Constitution---When such person is incapable or is not willing to administer oath or when it is impracticable for him by any reason or he is avoiding to discharge such responsibility, then such person transgresses the Constitutional mandate bestowed upon him---Members of Provincial Assemblies constituted constituency for election of Senate and if petitioners were not administered oath, then the very constituency would remain incomplete which would be negation of Constitutional mandate---Non-administration of oath to petitioners would also amount to preventing them from exercising their right to vote which was also violative of the provisions of Art. 17 of the Constitution---High Court directed Chief Minister of Khyber Pakhtunkhwa and provincial Cabinet to take all material steps in terms of Art. 105 of the Constitution for summoning session of Provincial Assembly, so that oath was administered to petitioners in terms of Art. 65 of the Constitution before upcoming Senate elections---High Court directed Speaker of Khyber Pakhtunkhwa Assembly to administer oath to petitioners in the session to be requisitioned and also allow petitioners to sign Roll of Members in terms of Arts. 65 & 225 of the Constitution read with R. 6 of Provincial Assembly of Khyber Pakhtun-khwa Procedure and Conduct of Business Rules, 1988---Constitutional petition was allowed accordingly. Chaudhry Pervez Elahi v. Deputy Speaker, Provincial Assembly of Punjab PLD 2022 SC 678; Pakistan Peoples Party Parliamentarian (PPPP) through its Secretary General and others v. Federation of Pakistan through, Ministry of Law and others PLD 2022 SC 574; Pakistan Muslim League v. Sardar Dost Muhammad Mazari and others PLD 2022 Lah. 469; Muhammad Hamza Shahbaz Sharif v. Federation of Pakistan and others PLD 2022 Lah 504; Muhammad Hamza Shahbaz Sharif v. Federation of Pakistan through Secretary, Ministry of Law and Justice and others PLD 2023 Lah. 105; Muhammad Irshad v. Government of Khyber Pakhtunkhwa through Local Government and others PLD 2016 Pesh. 170; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate and others v. Federation of Pakistan and others PLD 1997 SC 84; Watan Party and others v. Federation of Pakistan and others PLD 2011 SC 997; Messrs Mustafa Impex, Karachi v. Government of Pakistan through Secretary Finance PLD 2016 SC 808; State of Punjab v. Principal Secretary to the Governor of Punjab etc., decided on 10.11.2023 Writ Petition (Civil) No.1224 of 2003; Munn Hussain Bhatti, Advocate and others v. Federation of Pakistan and others PLD 2011 SC 407; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others v. Federation of Pakistan and others PLD 2012 SC 681 and Ch. Nasir Iqbal and others v. Federation of Pakistan through Secretary Law and others PLD 2014 SC 72 rel. Amir Javed and Barrister Saqib Raza for Petitioners. Sana Ullah, Deputy Attorney General for Federation of Pakistan. Shah Faisal Utmankhel, Advocate General, Muhammad Bashar Naveed and Rahmat Ali Khan, A.A.Gs. for Provincial Government. Samran Jehangir, Law Officer for Election Commission of Pakistan. Ali Azim Afridi along with Mohsin Younis, Assistant Law Officer for Speaker Provincial Assembly. Date of hearing: 27th March, 2024.

Summary: ----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 12(2)--- Documentary evidence---Objection to admissibility---Petitioner/defendant filed application under S. 12(2), C.P.C., seeking to set aside ex-parte decree passed against him---Respondents/plaintiffs sought de-exhibition of certain documents which were produced by petitioner/defendant in his evidence during proceedings under S. 12(2), C.P.C.---Trial Court allowed application of respondents/plaintiffs and de-exhibited the documents, which order was maintained by Lower Appellate Court---Validity---Objections with respect to admissibility of documents can be of two kinds: (i) document is inadmissible in evidence being irrelevant or not capable for being considered in evidence ("inadmissibility in evidence"); and (ii) objections directed towards mode of proof due to irregularity or insufficiency ("mode of proof")---If no objection is raised as to inadmissibility in evidence but just mode of proof, after the document has been marked as an exhibit, the principle of waiver for failing to raise objection as to formal validity can be attracted---Proper time for raising such objection as to formal validity or mode of proof is prior to marking a document as an exhibit or at the time when it is sought to be marked as an exhibit---Such objections should be taken at the earliest and once document has been tendered and marked as an exhibit, belated objection as to mode of proof is discouraged by Courts---High Court set aside orders of Trial Court marking the documents as exhibits without oath statement of advocate and the order to de-exhibit them and also set aside judgment of Lower Appellate Court---High Court noted that the petitioner/defendant could file suitable application to produce further evidence/documents or re-examination of any witness---High Court directed Trial Court to give chance to respondents/plaintiffs to cross-examine as to additional evidence, if produced---Constitutional petition was allowed accordingly. Malik Riazullah v. Mst. Dilnasheen and others 2018 CLC 1569; Muhammad Arif and others v. Aziz-ur-Rehman and others 2023 CLC 713; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 301; Gopal Das and another v. Sri Thakurji and others AIR (30) 1943 Privy Council 83; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822; Jodhpur Gums and Chemicals (Pvt.) Ltd. v. Punjab National Bank and others AIR 1999 Rajasthan 38 and N.M.S. Sadasivier Krishnier and others v. T.S. Meenakshi Iyer and others AIR 1933 Madras 781 ref. (b) Administration of justice--- ----Act of Court---Effect---Prejudice must not be caused to litigants because of any mistake of Courts, though the litigants and their counsel are also required to be vigilant. Muhammad Akhtar Rana for Petitioner. Mian Umar Farooq for Respondents Nos. 2 to 5 and 11 to 13. For Respondents Nos. 6 to 10 and 14: Ex-parte. Date of hearing: 12th June, 2024.