Summary: PLJ 2020 Quetta 29 (DB) Present Naeem Akhtar Afghan and Abdul Hameed Baloch JJ CHIEF EXECUTIVE OFFICER QESCO QUETTA and another - - Petitioners versus AZIZULLAH COMMERCIAL SUPERINTENDENT (BPS - 15) QESCO and 3 others - - Respondents Const P No 1151 of 2017 decided on 682019 Constitution of Pakistan 1973 - - - - - - Art 199 - - Balochistan Industrial Relations Act 2010 S 41 - - Filling of Application for issuance of Notices - - Allowed - - Appeal - - Dismissed - - Appointment promotion - - Entitlement for two steps up - gradation - - Time scale up - gradation - - Respondents are working as Commercial Superintendent since their promotion from post of Commercial Assistant and till now neither any sort of complaint nor any disciplinary action was taken against them and petitioners were satisfied from their hard working - - Petitioners relied upon different official memorandum in written statement but failed to substantiate same - - Mere mentioning documents in pleadings are not enough to be accepted rather same are required to be proved according to Qanoon - e - Shahadat Order 1984 - - Official memorandum clearly manifest that employee working in BPS - 15 are entitled for two steps up - gradation - - Since respondents are fulfilling requisite qualification therefore they were entitled for two step time scale up - gradation - - In view of above petitioners have failed to point out any illegality and irregularity in concurrent judgments passed by Courts below warranting interference by this Court - - Petition was dismissed [Pp 31 32] A B C Mr Ghulam Mustafa Buzdar Advocate for Petitioners Mr Abdul Rasheed Awan Advocate for Respondents No1 to 3Judgement Result:Petition dismissed

Summary: Federal Government Land and Buildings (Recovery of Possession) Ordinance (LIV of 1965) --- ----Ss.3 & 5---Constitution of Pakistan, Art.199---Expiry of lease---Extinguishment of occupancy rights---Continued possession by lessee after lease term---Effect---Occupancy charges---Demand notice issued by authorities---Legality and scope ---Auction proceedings for grant of fresh lease term---Lessee of the expired lease claiming 'first right of refusal'---Precondition---Only bona fide lessees/legal occupants could claim 'first right of refusal'---The petitioners in the present connected writ petitions challenged notices issued by Pakistan Railways demanding occupancy charges and declining their claim of 'first right of refusal', despite their previous lease/licence agreements having expired---Held: Objections expressed by the petitioner were not well-founded---The respondents had clarified that they proceeded in accordance with observation made by the Supreme Court with respect to not leasing the property for more than five years---As to the status of the occupants in the expired lease areas it was clarified that the same was that of illegal occupants in terms of the provisions of the Federal Government Land and Buildings (Recovery of Possession) Ordinance, 1965---All claimants were allowed to participate in the open auction while the claim of 'first right of refusal' was made limited to the bona fide lessees/licensees which could not extend any benefit to the illegal occupants---No one had been given any exception and rather in a fair manner the department allowed everyone a fair opportunity to participate in the auction of the leased rights while committing to entertain the 'first right of refusal' of the bona fide lessees only and the said decision did not suffer from any legal error---As to the claim of occupancy rights the occupants of expired lease could not escape their legal responsibility to pay for the use and occupation of property till their eviction---Being so, the impugned letter requiring the payment of occupancy charges was lawfully issued---With respect to the claim of the petitioners having made certain payments could not be settled in the present summary proceedings---Application filed by the petitioners before the authorities if pending were directed to be disposed of in accordance with law---Constitutional petition was disposed of, in circumstances. Muhammad Baqir Hussain for Petitioner. Muhammad Ameer Hamza Dogar, Assistant Attorney General for Pakistan. Saeed Hussain Nagra, Kashif Habib and Khurram Shahzad for Respondent-Railways. Order Rasaal Hassan Syed, J .--- This order will dispose of Writ Petitions Nos.28176, 28879 and 29463 of 2020 as the same raise common questions of law and fact. 2. The petitioners in these Constitutional petitions have challenged notices/letters dated 16.05.2020 issued by the respondents for payment of occupancy charges by the occupants of Pakistan Railways properties. A direction is sought for disposal of the applications for the grant of First Right of Refusal and also for the annulment of demand notice dated 16.05.2020. Perusal of the documents annexed with these petitions, reveals that previously certain writ petitions were filed raising similar demand as also challenging the intended auction by the Railway authorities. In this round of litigation a direction was issued to the respondents vide Order dated 04.12.2019 to pass a speaking order. It is discernable from the file that the order to this effect in terms of response dated 04.03.2020 was issued by the Director/Property and Land, which is annexed with the petitions and reads as follows:- "In compliance to the orders of Honorable Lahore High Court, Lahore, dated 04.12.2019 Writ Petitions Nos. 72341/2019, 72342/2019 and 73615/2019, petitioners were called for personal hearing on 29.01.2020. The petitioners/ representatives of petitioners attended the office of Director/Property and Land Pakistan Railways, Headquarters Office, Lahore on the above mentioned date and submitted grievances in writing. All the aspects of the case were examined and discussed with the petitioners/representatives in detail in accordance with the existing rules and policies regarding leasing/licensing of Railways land. During scrutiny of record, it is found that the lease/license period of the petitioners regarding the land possessed by them had already expired and as such no agreement exists between Pakistan Railways and petitioners at present. Central Government Land and Buildings (Recovery of Possession), Ordinance, 1965 is applicable on the disputed property. In reported judgment 2014 MLD 1186 and 2010 MLD 1471, in which Honorable High Courts, hold that every lessee or licensee who remained in occupation of the land or building after the determination of lease or license, became "unauthorized occupant" in respect of suit premises. Furthermore, Honorable Supreme Court of Pakistan in Crl/OP Petition No.120/2016 on orders dated 04.01.2019, directed Pakistan Railways not to lease any property for more than five years. Therefore, the cases of petitioners will be dealt strictly in accordance with the existing rules and policies of Pakistan Railways. It is also observed that the possession of the land is still under the occupation of the petitioners without any agreement which should be got vacated from petitioners by Divisional Superintendent, Pakistan Railways Lahore and they should participate in upcoming auction proceedings. Keeping in view the above position, I am of the view that their claim/representations are not justified/maintainable under the law and the same is regretted. Moreover, after expiry of lease period of the appellants over the land in question is only that of illegal encroacher/occupant who has not vested right to claim retention of possession. Reliance in this regard can be placed on the cases reported as Muhammad Aslam v. Muhammad Ismail and others (1999 SCMR 1331), Ismail Ahmad and 11 others v. Federation of Pakistan through Secretary Ministry of Religious and Minority Affairs, Islamabad and 9 others (2016 MLD 114), Malik Muhammad Riaz and others v. Mrs. Farhat Imran and another (2015 MLD 1191), Ghulam Hussain v. Chairman/Secretary S&GAD, Housing Allotment Committee, Quetta and 2 others (2014 PLC (C.S.) 2019 and Mst. Nazir Mai v. Additional Secretary and 5 others (2011 YLR 972). It is further advised to all the petitioners to participate in the upcoming auction proceedings. The grievances of the petitioners regarding "First Right of Refusal" are limited to bona fide lessees/licensees only and should not benefit illegal occupants as per Central Government land and Building Recovery of Possession Ordinance, 1965". 3. It is evident from the said response that the respondents, in principal, agreed that the cases of the writ petitioners will be treated strictly in accordance with the rules and policy of Pakistan Railways and that the possession of the land under occupation of the writ petitioners would be got vacated and that they will be allowed to participate in the upcoming auction proceedings. The writ petitioners' claim for challenging the auction was regretted while advising them to participate in the intended auction. It was clarified that the First Right of Refusal shall be limited to bona fide lessees which should not benefit illegal occupants as per provisions of Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965. It was further explained that as per order of the honourable Supreme Court of Pakistan dated 04.01.2019, the respondents could not lease any property of Pakistan Railways for more than five (5) years. 4. In the instant case, the petitioners now claim that respondent No.3/Divisional Superintendent (DS) Pakistan Railways by issuing notice for recovery was bent upon expelling them to accommodate some blue-eyed persons, which if not checked, will result in unfair treatment. The other grievance is that the respondents were intended to decline the First Right of Refusal to the occupants of the expired lease and that the claim for payment for occupancy charges was extremely excessive. 5. Having heard the arguments by learned counsel from both sides and considering the same, it is observed that the objections expressed by the petitioners are not well-founded. As noted supra the respondent-department has already clarified in response dated 04.03.2020 that the respondents were proceeding in accordance with the observation made by the honourable Supreme Court of Pakistan that they could not lease the property for more than five (5) years. As to the status of the occupants in the expired lease areas, it was clarified that the same was that of illegal occupants, in terms of the provisions of the Central Government Land and Buildings (Recovery of Possession) Ordinance, 1965. All claimants were allowed to participate in the open auction while the claim of First Right of Refusal was made limited to the bona fide lessees/licensees, which could not extend any benefit to the illegal occupants. 6. It is discernable from the letter dated 16.5.2020 that the addressees were simply required to deposit outstanding occupancy charges from 01.7.2019 to 30.6.2020. Bare reading of the letter does not give even remote impression or warrant inference of any unfair treatment to the claimants of First Right of Refusal which would, of course, be limited to the bona fide lessees. The respondent-department having already declared the policy in the earlier response and committed to follow the rules and policy, there does not appear to be any reason to infer that the order was untenable, as in principal no one has been given any exception and rather in a fair manner and following the rules, the department agreed to allow everyone a fair opportunity to participate in the auction of the leased rights; while committing to entertain the First Right of Refusal of the bona fide lessees only. The said decision does not suffer from any error of law. 7. As to the claim of the occupancy rights, the occupants of expired lease cannot escape their legal responsibility to pay for the use and occupation of the property till their eviction. Being so, the impugned letter requiring the payment of occupancy charges was lawfully issued. The petitioners' plea of having made certain payments cannot possibly be settled in the present summary proceedings. They shall, however, be at liberty to claim adjustment of the payment, if earlier made, by providing all supporting material before the authorities concerned. The matter being factual can be properly resolved by the concerned authorities after consulting the record and duly considering the material, if any, as may be made available by the petitioners. The petitioners, if so advised, can approach the respondents for the settlement of their claims of alleged earlier payment and also in respect of the quantum of the amount due. 8. It is observed that petitioners claim in these petitions of having submitted certain applications to the respondents already in this regard, which if pending, will be disposed of by the authorities concerned in accordance with law and on their own merits and also keeping in view the policy and rules in vogue. 9. With these observations the writ petitions are disposed of. UN/I-11/L Order accordingly.

Summary: Summary pending

Summary: Summary pending

Summary: A decree/order can be altered by Review or Appeal or Revision but neither S.148 nor section 151 of CPC can be used as a tool for the Alternation of Decree.

Summary: The alleged gift was denied by the contesting respondents i.e. respondent No.2 to 7, the onus was upon petitioner to prove the validity, correctness, and genuineness of the deeds, as alleged by her. With respect to the first objection regarding the transfer of property by respondent No.1 in her favour, petitioner has not placed on record even an iota of evidence as to whether her husband had become the owner of house in question on the basis of Ex: PW 2/1. It was to be proved by her that Mst. Pukhraj Begum being the owner of house had transferred her share through gift in favour ofrespondent No.1. The entire evidence produced by the petitioner is silent with respect to the proprietorship / title of house in question. The contents of Ex: PW 2/1 further reveals that the disputed house was shown to have been constructed in abadi-deh, description of which was properly given in the said deed. with respect to the ownership of disputed house neither any documentary nor oral evidence was ever produced by the petitioner to support her claim next objection that petitioner hasbecome the owner of the agricultural property on the basis of deeds (Ex: PW 2/1 and Ex: PW 2/2), the revenue papers have cleared the situation that Mst. Pukhraj Begum had become the owner of the property, but the factum of gift by her in favour of respondent No.1 was requiring concrete, tangible and solid proof. Both the deeds were required to be proved by the petitioner regarding which when she appeared in the witness box as PW-2, in cross-examination she deposed that besides her the deeds were signed by respondent No1. Record further suggests that PW-03 namely, Syed Jamal Shah, who happened to be the brother of petitioner, in his cross-examination has stated that deeds in question were signed by him and his father, besides petitioner. The intriguing aspect of the matter,while exploring the deeds, led to the conclusion that none of the aforementioned deeds was signed by petitioner. It appears that Ex: PW 2/1 was allegedly thumb impressed by executor Mst. Pukhraj Begum whereas Syed Farooq Shah and his son Syed Jamal Shah were the attesting witnesses of the same.Ex: PW 2/2 was allegedly executed by respondent No.1, marginal witnesses of which were Syed Farooq Shah and his son Syed Jamal Shah. Neither the petitioner nor PW-03 Syed Jamal Shah had been able to prove the validity of gift. Apart from above, gift in question was required to be proved within the parameters as provided in Muhammadan law and Islamic jurisprudence by proving the basic ingredients such as offer, acceptance and delivery of possession. Interestingly, respondent No.1, the husband of petitioner, though has submitted his cognovits, but has not bothered to appear in the witness box in order to prove the factum of gift, being beneficiary of deeds and executants of Ex: PW 2/2. When the deeds were categorically denied then ultimately petitioner was required to prove not only execution of deed but also the factum of gift. Respondent No1 being beneficiary of the alleged gift was an important person who could have deposed in petitioner s favour, subject to the cross-examination by contesting respondents. Record transpires that petitioner and respondent No.1 are still tied with marriage bond living in one and the same house, in such circumstances petitioner No.1 was in a better position even to produce respondent No.1 as her witness or he himself could appear as DW in support of his cognovits statement. It is well settled principle of law that when best available evidence is not produced then in accordance with Article 129(g) of the Qanun-e-Shahadat Order, 1984 adverse inference would be drawn against the party, who withheld such evidence

Summary: (a) Criminal Procedure Code (V of 1898)-------S.173---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession ofnarcotics---Report of police officer---Discharge of accused---Scope---Petitioners assailed theorder passed by Magistrate whereby the accused was discharged from the charges after theInvestigating Officer had found him innocent---Accused was alleged to have been found inpossession of 60 kilograms of charas and 20 kilograms of opium---Report of InvestigatingOfficer revealed that the signature of first witness of recovery memo were not available onthe recovery memo; that the said witness had also denied recovery of contraband in hispresence; that the earlier Investigating Officer of the case had stated that he was neitherappointed as the Investigating Officer nor had he gone to the place of occurrence; that neitherthe contraband was sealed nor any parcel was made and it was found to be laying open in thepolice station and that one of the petitioner had arranged the charas and opium just to savehimself and others from the consequences of the FIR which was registered against themunder Ss. 365-A, 342, 416 & 34, P.P.C., by the brother of accused---Two of the petitionerswere DSPs and one of them was SP at CID police station at the relevant time and afterdepartmental inquiry they were dismissed from service on the basis of said allegations---Noillegality or irregularity was committed by the Magistrate in discharging the accused---Petition was dismissed, in circumstances.(b) Criminal Procedure Code (V of 1898)-------S. 173---Report of police officer---Scope---Investigating Officer is not bound to base hisconclusion on version of informant or defence but on 'actual facts', discovered during thecourse of investigation---Such conclusion shall be submitted in shape of prescribed form, asrequired by S. 173, Cr.P.C.Mst. Sughran Bibi v. The State PLD 2018 SC 595 rel.(c) Criminal Procedure Code (V of 1898)-------S. 173---Report of police officer---Scope---Section 173, Cr.P.C., nowhere describes as tohow the Magistrate shall deal with such report, it, however, empowers the Magistrate toagree or disagree with the act of Investigating Officer in releasing an accused duringinvestigation under S.173, Cr.P.C. which too, to the extent of discharge of bonds.(d) Criminal Procedure Code (V of 1898)-------S. 173---Report of police officer---Powers of Magistrate---Scope---Magistrate incancelling a registered criminal case is required to act judicially, in that he has to act fairly,justly and honestly, a duty common to the exercise of all state powers, there is no lis beforehim, there is no duty to hear the parties, there is no decision given, no finality orirrevocability attaching to the order---Party is left free to institute a complaint on the samefacts and the same Magistrate does not even after passing such an order render himself to befuntcus officio---Magistrate, on the contrary, is quite competent to entertain and deal withsuch a complaint on material presented to him---Such peculiarities establish beyond doubtthat in so concurring with a report submitted under S. 173, Cr.P.C. Magistrate does notfunction as a criminal court.Bahadur v. State PLD 1985 SC 62 ref.(e) Criminal Procedure Code (V of 1898)-------Ss. 173, 561-A, 435 & 439---Report of police officer---Inherent powers of High Court---Scope---Magistrate while concurring with a police report submitted under S.173, Cr.P.C.does not act as a criminal court inferior to the Court of Session and the High Court, his ordercannot be revised and modified under the provisions of Ss.435 & 439, Cr.P.C. but in thatcase it is amenable to the inherent jurisdiction of the High Court under S. 561-A, Cr.P.C.,provided the order amounts to abuse of process of court.Arif Ali Khan v. State 1993 SCMR 187; Muhammad Sharif v. State 1997 SCMR 304and Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503 ref.(f) Criminal Procedure Code (V of 1898)-------Ss. 173 & 190---Report of police officer---Cognizance of offence by Magistrates---Discharge of accused---Scope---Discharge of accused by a Magistrate is not legally possibleafter taking cognizance of the case---After taking cognizance by the Trial Court only threeresults are possible in a criminal case, firstly conviction of the accused either upon admissionof guilt by him or on the basis of the evidence led by the prosecution; secondly, acquittal ofthe accused either under S. 249-A or 265-K, Cr.P.C. or on the basis of failure of theprosecution to prove its case on merits beyond reasonable doubt and thirdly, withdrawal fromprosecution by a Public Prosecutor under S.494, Cr.P.C.Muhammad Alam and another v. Additional Secretary to Government of NWFPHome and Tribal Affairs Department and 4 others PLD 1987 SC 103 and Nasira Surriya v.Muhammad Aslam and 7 others 1990 SCMR 12 ref.(g) Criminal Procedure Code (V of 1898)-------Ss. 173 & 190---Report of police officer---Cognizance of offence by Magistrate---Scope---Even in cases triable exclusively by a Court of Sessions, the Magistrate's power under theCode of Criminal Procedure, 1898 remains intact till such time the case is formally sent byhim to the Court of Sessions for trial.Mehar Khan v. Yaqub Khan and another 1981 SCMR 267 ref.

Summary: Background: The case involves the dismissal of an Income Tax Reference filed by the Commissioner of Inland Revenue under Section 133(1) of the Income Tax Ordinance, 2001, for non-prosecution. The petitioner subsequently filed an application for restoration, which was also dismissed. The petitioner argued that a Tax Reference should not be dismissed for non-prosecution as it invokes the advisory jurisdiction of the High Court. They also contended that Article 181 of the Limitation Act, 1908, providing a three-year period for filing restoration applications, should apply.---Issues:Whether a Tax Reference filed under Section 133(1) of the Income Tax Ordinance, 2001, can be dismissed for non-prosecution.Which provision of the Limitation Act, 1908, applies to the restoration application: Article 168 or Article 181?---Holding/Reasoning/Outcome:The court clarified that a Tax Reference under Section 133(1) should be construed and applied as an appeal rather than invoking advisory jurisdiction. Therefore, it can be dismissed for non-prosecution, and Article 168 of the Limitation Act, 1908, providing a 30-day period for restoration, applies instead of Article 181. Additionally, the court found that the merits of the restoration application were insufficient to justify restoration. Consequently, the petitions were dismissed, and leave was refused.---Citations/Precedents:M/s. Squibb Pakistan Pvt. Ltd. and another v. Commissioner of Income Tax and another (2017 SCMR 1006)---Quote:Tax Reference can be dismissed for non-prosecution.

Summary: Background: Akhtar Ali, the petitioner, sought the transfer of cases pending before a learned Judicial Magistrate in Sheikhupura to a Court in Gojra District Nankana Sahib. After failing in his attempts before the District & Sessions Judge Sheikhupura and a learned Judge-in-Chamber of the Lahore High Court, his petition was dismissed, and he was burdened with a cost of Rs.50,000. Dissatisfied, he approached the Supreme Court of Pakistan.---Issues:Whether the petitioner's conduct towards the lower courts and judicial officers warranted the imposition of costs.Whether the cost imposed by the Lahore High Court was justified.---Holding/Reasoning/Outcome:The Supreme Court condemned the petitioner's behavior towards the lower courts and judicial officers as outrageous and scandalous. It emphasized the importance of preserving the dignity, respect, and independence of the judiciary for the peaceful functioning of society. While the petitioner expressed remorse before the Supreme Court, acknowledging his wrongdoing, the court upheld the imposition of costs but reduced it to Rs.2000 as a symbolic reminder of his misconduct. The court warned the petitioner to exercise restraint and respect towards the judiciary in the future. The petition was dismissed, and leave was declined.

Summary: Background:In Civil Appeals No. 188 to 193 of 2020 before the Supreme Court of Pakistan (Appellate Jurisdiction), the appellants challenged judgments rendered by the Peshawar High Court. The dispute centered around a notification dated 14.07.2016, which granted an allowance to employees holding M.Phil degrees. Respondents, holding degrees equivalent to M.Phil, sought the same allowance.---Issues:Whether the Peshawar High Court erred in granting relief based on letters from the Higher Education Commission (HEC) regarding degree equivalencies.Whether the notification's language limited the allowance to holders of M.Phil degrees recognized by the HEC.Whether there was discrimination in the notification's application and in comparison to similar allowances in other provinces.---Holding/Reasoning/Outcome:The Supreme Court held:The Peshawar High Court exceeded its jurisdiction by relying on HEC letters for relief, as the HEC's mandate is limited to academic matters, not financial benefits.The notification clearly intended to grant the M.Phil allowance only to holders of degrees recognized by the HEC as M.Phil, not to those with equivalent degrees.The absence of discrimination was affirmed, as the notification differentiated between M.Phil degree holders and others, and variations in allowances across provinces were within their constitutional powers.---Citations/Precedents:S.M.C. No.15 of 2010 and C.M.As. Nos.2689, 3244 of 2010 and CMAs. Nos.5383, 3068 of 2011 (2013 SCMR 304) - Regarding provincial powers and decisions.Article 212 of the Constitution of Pakistan - Limitations on High Courts regarding service matters.Higher Education Commission Ordinance, 2002 - Mandate and limitations of the HEC.Notification dated 14.07.2016 - Textual analysis of the notification granting the M.Phil allowance.Letters from the Higher Education Commission (HEC) - Evidence of the HEC's role and limitations.Judgments dated 07.02.2018, 20.06.2019, 19.09.2019, 30.10.2019, 24.10.2019, and 21.11.2019 of the Peshawar High Court - Decisions under review.