Summary: Summary pending

Summary: Summary Pending

Summary: PLJ 2021 TrC (Services) 15 [Federal Service Tribunal Islamabad (Karachi Bench) ] Present Qazi Khalid Ali Chairman and Rizwan Ali Dodani Member ABDULLAH NAGORE (Ex - Data Entry OperatorKPO (BPS - 12) - - Appellant versus MILITARY ACCOUNTANT GENERAL KASHMIR ROAD RAWALPINDI and 2 others - - Respondents Appeal No 155 (K) CS of 2019 decided on 682020 Service Tribunals Act 1973 (LXX of 1973) - - - - - - S 4 - - National Accountability Ordinance (XXV of 1999) S 25 rw S 15 - - Allegation of corruption - - Plea bargain - - Dismissal from service - - Challenge to - - Admission of offence - - Misconduct - - Benefit of plea bargain - - Appellant as per his claim was not beneficiary of Plea Bargain he could have challenged same before any Court of Law or at best to Chairman NAB denying Plea Bargain but he kept silent till day and now raising technical ground of non - holding departmental inquiry before passing impugned order - - It is settled principle of law of administration of justice that technicalities would be avoided and matter may be decided on merits - - This brings us to merit of case - - On merit appellant has no case - - On perusal of record right from arrest of appellant till his release after acceptance of Plea Bargain application order of Accountability Court shows his active acquiescence by conduct in plea of bargaining - - Appellant thus could not be allowed to approbate and reprobate in same breath - - Acceptance and availing benefit of Plea Bargain under Section - 25 of National Accountability Ordinance 1999 would be deemed to have been convicted for offence under Section 15 NAO 1999 and by operation of law he ceased to hold his office held by him - - We have also observed that no exception or reservation was expressed by appellant when produced in Accountability Court - - Accountability Courts order would show that appellant was specifically informed that approval by Court of their Plea Bargain would amount to admission of accusation and guilt which he categorically accepted and he was also informed that penal consequences as provided under law would follow which too was accepted by him - - Statutory provisions of law on subject takes its own effect which cannot be made subject to consent of accused or approval of Plea Bargain by Court and thus consequences of Statute would follow being mandatory in nature - - Fact that appellant entered into Plea Bargain with NAB and paid misappropriated amount voluntarily is admission of offence which is misconduct for commission and omission committed by him - - Major penalty of dismissal from service imposed on him is in accordance with law - - Appeal was dismissed [Pp 18 19] A B C 2020 SCMR 1154 ref Appellant in person Mr Tariq Ali Khan Assistant Attorney General Pakistan Advocate for RespondentsJudgement Result:Appeal dismissed

Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: [Dispute over the alienation of a property by mother through a gift deed in favor of her daughter] The main issues before the Supreme Court were whether a power of attorney could authorize the agent to transfer the principal's property through a gift and whether the gift in this case was valid. The court examined the power of attorney and concluded that it was not an irrevocable power of attorney as claimed. Furthermore, the court held that the agent could not transfer the property through gift without specific permission from the principal. The court found that the gift in question, made by the agent (mother) to her daughter, was invalid as it was not authorized by the principal and lacked the necessary consent and approval. Therefore, the court allowed the appeal, set aside the Lahore High Court's judgment, and reinstated the trial court's decision.

Summary: The petitioners were charged under Sections 23 & 27 of the Drugs Act, 1976, Section 27-2 of the DRAP Act, 2012, and Section 109 PPC (Pakistan Penal Code). The charges were related to their alleged involvement in manufacturing, stocking, and selling drugs or therapeutic goods in violation of the laws of the land.During the hearing, confusion arose regarding the regulatory framework for alternate medicines, and the officials in attendance were not clear about how these medicines are regulated and monitored. The Court expressed concern and dismay over the lack of awareness among the concerned officers regarding the proper regulatory framework for alternate medicines, including the dispensation of such medicines.Due to the complexity and importance of the matter, the Court decided to initiate a separate Suo Motu case to consider the regulatory framework for alternate medicines and to ensure the safety and protection of the public from potentially harmful or counterfeit medicines. The case would be presented before an appropriate Bench for further examination.Regarding the bail matter, the Court noted that the principal accused, Israr Ahmed, had already been granted bail. Considering the rule of consistency, the Court granted bail to the present petitioners, Muhammad Qasim and Khurram Shahzad, upon furnishing surety bonds of Rs. 100,000 each with one surety to the satisfaction of the Trial Court.However, the Court cautioned the petitioners to cooperate fully with the prosecution and the investigation. Any misuse or abuse of the bail concession would lead to the cancellation of their bail by the Trial Court.The petition was converted into an appeal and allowed in the terms stated above. The Court clarified that the observations in the order were of a tentative nature, and the learned Trial Court would decide the main case in accordance with the law without being influenced by any observations made in this order.

Summary: (a) Civil Procedure Code (V of 1908)-------S. 12(2)---"Final order"---Application under S.12(2), C.P.C.---Appeal of respondentagainst eviction order of Trial Court in favour of respondent (alleged owner of shop) wasdismissed by High Court---Separate suit of the present applicant for declaration andpermanent injunction against respondents was decreed in favour of applicant/ plaintiff---Held, that applicant was recorded owner of shop as per revenue abstract---Respondentintentionally concealed from High Court the fact that applicant filed the suit for declarationand permanent injunctions---Even after disposal of the said suit, respondents (contesting inappeal before High Court) did not bother to inform the fate of the suit to High Court---Fraudwould vitiate most solemn proceeding---Respondents by concealing the facts fromCourt/Rent Controller committed fraud---Concealment of facts should be discouraged---HighCourt accepted application under S.12(2) and remanded the matter to Rent Controller withdirection to implead the applicant and decide the application according to law---Cost ofRs.200,000/- imposed on the respondents. (b) Civil Procedure Code (V of 1908)-------S. 12(2)---Phrase 'court which passed the final judgment, decree or order'---Scope---Applicant's prior application under S.12(2) for setting aside the order of trial Court wasdismissed by trial Court as withdrawn for filing it before proper forum i.e. High Court---Held, that contention of respondents that application under S.12(2) of Civil Procedure Code,1908 could not be filed before Trial Court because High Court affirmed judgment of TrialCourt, had no force---With respect to the four situations relevant to the determination of thefinal court within the purview of S.12(2) of C.P.C. as mandated by Supreme Court inSahabzadi Maharunisa v. Mst. Ghulam Sughran (PLD 2016 SC 358), High Court recordedelaborate observations:High Court observations were as follows:--(i) In the cases where the remedy of appeal/revision is provided against a judgment etc.or a remedy of writ is availed, the appellate/ revisional/constitutional forum records reasonson the consideration of the issues of law and /or fact the judgment etc. of the subordinatecourt/forum will merge into the decision of the appellate court etc. irrespective of the factthat such judgement reverses, varies or affirms the decision of the subordinate court/forumand its decision will be operative and capable of enforcement on the principle of merger, theapplication under section 12(2) of the C.P.C. will be maintainable before theappellate/revisional/constitutional forum (High Court, District Court, Tribunal or SpecialCourt as the case may be);(ii) In the situation where an appeal/revision/writ is not disposed of on merits but on someother grounds; there are certain exceptions to the rule of merger which shall not apply wherean appeal etc. has been dismissed:-(i) for non-prosecution; (ii) for lack of jurisdiction; (iii)for lack of competence/maintainability; (iv) as barred by law; (v) as barred by time; (vi)withdrawal of the matter by the party; (vii) for lack of locus standi; (viii) decided on thebasis of a compromise, if the very basis of the compromise by the party to the lis or even astranger showing prejudice to his rights is not under challenge on the ground of fraud; (ix) isrendered infructuous or disposed of as having borne fruit; (x) abatement; (xi) where the writis dismissed on the ground of availability of alternate remedy; (xii) where the writ isdismissed on the point of laches. Such exceptions shall also be attracted to the decision(s) ofthe Supreme Court, where applicable. However, where the case falls within the notedexceptions the forum for an application under section 12(2) of the C.P.C. is the one againstwhose decision the matter has come and been disposed of in the above manner by the higherforum;(iii) In the cases of reversal or modification of the judgment of the High Court(s),Tribunal(s) or Special Courts before High Court, or those affirmed in appeal (where thematter does not fall within the exceptions) the judgment of the Supreme Court shall bedeemed to be final for moving an appropriate application on the plea of lack of jurisdiction,misrepresentation and fraud;(iv) In the cases where leave is declined by High Court, the judgment etc. of the lowerfora will remain intact and final and will not merge into the leave refusing order, for thepurposes of an application under section 12(2) of the C.P.C. which can only be filed beforethe last forum i.e. the High Court(s) if the matter has been decided in theappellate/revisional/writ jurisdiction by the said court, or if the matter has come to this Courtdirectly for leave from a Tribunal/Special Court (see Article 212 of the Constitution).However where the petition for leave to appeal has been dismissed with detailed reasons anda thorough decision of the questions of law and fact has been made, the judgment of the HighCourt(s)/Tribunal will though not merge into the order of the Supreme Court yet in order toavoid a ludicrous situation that once a question of law and fact has been elaborately andexplicitly dealt with by High Court in the leave refusing order and the court below may notbe in a position to adjudicate upon those points without commenting on the order/reasons ofthe Supreme Court and to reopen the matter, an application in the nature of section 12(2) of the C.P.C. can be filed before High Court, leaving it to the absolute discretion of this Courtto either decide such application itself or send the matter to the lower fora for the decision.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 324, 353, 337-F(iii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assaulting or using criminal force against a public servant in the execution of their duty, ghayr-jaifah-mutalahimah, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Ocular account not supported by medical evidence---Accused were charged that they made firing upon the police party, due to which the complainant/Police Constable got injured, whereas his companion escaped unhurt---Ocular account of the occurrence had been furnished by the complainant and his companion---Statements of the star witnesses of the prosecution clearly showed that they had contradicted each other on material points giving rise to doubt that either eye-witness was not present at the time of occurrence or the occurrence had not taken place in the mode and manner as narrated by the complainant in the Murasila---Thus, such inconsistent testimony was not worth reliance---Injured complainant was medically examined on 16,05.2019 at 10.45 pm by Medical Officer---Said Medical Officer appeared before the Court and stated in his cross-examination that the injured was discharged on 17.5.2019, however, the injured complainant stated in his cross examination that he remained hospitalized for six days and was discharged from hospital on 22.5.2019--- Eye-witness sated in his cross-examination that the accused confronted them face to face---Similarly, complainant stated in his cross-examination that as per site plan and his statement, accused facing trial were in front of him---In view of his position at the time of occurrence, complainant should have sustained injury on front side of his body, but to the contrary, in the later part of his cross-examination, complainant stated that he sustained one bullet injury on the back side---Thus, the medical evidence too did not support the prosecution case---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 324, 353, 337-F(iii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assaulting or using criminal force against a public servant in the execution of their duty, ghayr-jaifah-mutalahimah, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused were charged that they made firing upon the police party, due to which the complainant/Police Constable got injured, whereas his companion escaped unhurt---As per narration of the complainant in the Murasila, eye-witness fired at the accused in self defence, however, he did not state that any one of the accused were injured with the said firing---Eye-witness in his Court statement stated that he started firing at accused after their firing which missed---Occurrence had taken place on 16.05.2019, whereas the accused/appellant herein along with co-accused were arrested on 17.05.2019 by the police---Investigating Officer stated that on cursory interrogation, two of them were injured---Investigating Officer admitted that at the time of arrest of accused, two of them were in injured condition---Statement of said witness clearly contradicted the statement of eye-witness who stated that though he fired in self defence but missed---It was not believable that the two accused were roaming on motorcycle for the whole night and next day till 11.40 am in injured condition in the same clothes---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 324, 353, 337-F(iii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assaulting or using criminal force against a public servant in the execution of their duty, ghayr-jaifah-mutalahimah, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---No consistency in the statements of witnesses---Accused were charged that they made firing upon the police party, due to which the complainant/Police Constable got injured, whereas his companion escaped unhurt---Investigating Officer of the case stated that accused were arrested by local police in case FIR No. 780 dated 16.5.2019 under Ss. 394, 324, 427 & 34 P.P.C/15-AA and were confined in Central Jail, therefore, vide application, he applied for zamima bay which was issued accordingly---Investigating Officer formally arrested the accused and prepared their card of arrest and vide recovery memos took into possession their blood stained clothes---Said two recovery memos were available on record bearing the date of its preparation as 24.5.2019 showing recovery of blood stained clothes of co-accused consisting of qamees shalwar which bore two bullet cut marks---Contents of those recovery memos showed that the accused were taken out from Central Jail through zamima bay and on search of the accused, both the accused were having shopping bags containing their blood stained clothes---It was not appealable to a prudent mind that why their clothes were not taken into possession when they were arrested on 17.5.2019 in Case FIR No.781 under S.15-AA and also in case FIR 780 dated 16.5.2019 under Ss. 394, 324, 427 & 34 P.P.C/15-AA by the police---Notable that no injury sheets of the injured co-accused were prepared by the police after their arrest neither they were medically examined---Investigation Officer in his cross examination admitted that he had not obtained medical examination report of injured accused---Further stated that he had produced the accused facing trial at the time of obtaining their custody who were found fit---Thus the statements of witnesses were not consistent on the point of the two accused being injured which had created dent in the prosecution case---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 324, 353, 337-F(iii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assaulting or using criminal force against a public servant in the execution of their duty, ghayr-jaifah-mutalahimah, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Inconsequential---Accused were charged that they made firing upon the police party, due to which the complainant/Police Constable got injured, whereas his companion escaped unhurt---In the present case, 30 bore pistol was recovered from accused/appellant which was also taken into possession as weapon used in the commission of offence---Said pistol along with the pistol recovered from co-accused were sent to Forensic Science Laboratory for matching with the two empties recovered from the place of accused and the Forensic Science Laboratory reported that two empties were fired from each pistol---According to the narration of complainant in the Murasila, three accused came on motorcycle out of whom, one fired at them, thus in such scenario the positive Forensic Science Laboratory Report had lost its evidentiary value---Even otherwise, the opinion of the Expert had a corroborative value only and was useful for ascertaining whether the direct evidence was true or not---Appeal against conviction was allowed, in circumstances. Noor Muhammad v. The State 2010 SCMR 97; Zeeshan v. The State 2012 SCMR 428 and Nasir Javaid and another v. The State 2016 SCMR 1144 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 324, 353, 337-F(iii) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22--- Attempt to commit qatl-i-amd, assaulting or using criminal force against a public servant in the execution of their duty, ghayr-jaifah-mutalahimah, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Test identification parade---Infirmities---Accused were charged that they made firing upon the police party, due to which the complainant/Police Constable got injured, whereas his companion escaped unhurt---Perusing the contents of the Murasila/FIR, the complainant did not disclose the features or description (hulya) of the assailant (s)---In his Court statement too, complainant admitted that he had not given description/feature/complexion in his report as well as in his statement under S. 164 Cr.P.C.---Where no description of the accused was given in the FIR, identification parade lost its evidentiary value---Furthermore, neither in the Murasila nor in their statements under S.164 Cr.P.C specific role had been attributed to the accused/appellant---Appeal against conviction was allowed, in circumstances. State/Government of Sindh through Advocate General Sindh Karachi v. Subharo 1993 SCMR 585; Muhammad Fayyaz v. The State 2012 SCMR 522 and Amanullah v. Muhammad Ashfaq and another 2018 YLR Note169 rel. (f) Criminal trial--- ----Benefit of doubt---Principle---Single doubt created in the prosecution case would be sufficient to be resolved in favour of the accused. Tariq Pervez v. The State 1995 SCMR 1345 rel. Muhammad Qamar Nadeem Afridi for Appellant. Bashar Naveed, A.A.G for the State. Date of hearing: 10th June, 2021.