Summary: (a) Civil Procedure Code (V of 1908) – S. 2(12), O. XX R. 12 – Mesne profits – Determination – Discretion of appellate court – Scope. Mesne profits are defined under S. 2(12) CPC as profits wrongfully received or that could have been received by a person in unlawful possession of property. O. XX R. 12 CPC allows courts to order an inquiry to determine the quantum of mesne profits. In the present case, although the trial court declined to award mesne profits due to lack of specific proof, the appellate court granted mesne profits at the rate of Rs. 10,000 per month with 10% annual increase by accepting respondents’ cross-objections. Supreme Court upheld this exercise of judicial discretion, observing that the property was within city limits and of commercial value, and the reasoning provided in para 14 of the appellate court’s judgment remained unshaken. — Fateh Chand v. Balkishan Dass (AIR 1963 SC 1405) distinguished. (b) Civil Procedure Code (V of 1908) – S. 11 – Res judicata – Prerequisites – Mere pleading insufficient – Burden to prove lies on party asserting bar. The petitioners failed to substantiate their claim of res judicata under S. 11 CPC. The record revealed no previous adjudication involving the same parties and subject matter. Allegations without documentary proof or reference to an earlier binding judgment cannot constitute a valid plea of res judicata. Petitioners' prior conduct, including posing as attorney for unrelated parties without authority, further weakened their position. — Mst. Tayyaba Khurram v. Province of Punjab, statement Exh.P-13, relied upon. (c) Civil Procedure Code (V of 1908) – O. XLI, R. 27 – Additional evidence in appeal – Discretionary – Vague applications – Admissibility and limitations. Rule 27 of O. XLI CPC permits the appellate court to admit additional evidence if necessary to pronounce judgment or where substantial cause exists. The petitioners’ application for additional evidence failed to disclose specific documents or their relevance. Though the appellate court omitted to pass an order on the application, the Supreme Court held that no useful purpose would be served by remanding the case, especially when petitioners failed to establish any lawful nexus with the suit property. — Hidayatullah v. Khurshid Khan (1987 CLC 832), Administrator, LMC v. Abdul Hamid (1987 CLC 1261) held inapplicable. (d) Pleadings – Limitation on new grounds at appellate stage – Supreme Court practice – Non-pleaded arguments not allowed. Arguments not raised in the memo of petition cannot be allowed at the appellate stage unless express permission is granted by the court. The petitioners sought to argue on mesne profits and res judicata without having raised these as specific grounds in the petition for leave to appeal. Such a strategy was held legally impermissible. (e) Civil Procedure Code (V of 1908) – Concurrent findings – Scope of Supreme Court interference – When barred. Supreme Court reiterated that it does not interfere with concurrent findings of fact by the trial, appellate, and High Court unless shown to be perverse, illegal, or based on misreading. In this case, all three courts upheld the respondents’ title and found the petitioners’ possession to be illegal. The petitioners admitted during hearing that they would not contest the case on merits, thus affirming the established findings. Disposition: Petition dismissed; leave to appeal refused. Costs imposed.

Summary: (a) Constitution of Pakistan ----Art. 199(1)(a)(ii)—Jurisdictional limits—High Court’s powers in writ jurisdiction—Concurrent findings of fact—Proper course of action—Scope and limits of judicial review High Court, while exercising Constitutional jurisdiction under Art. 199(1)(a)(ii), cannot act as a Court of facts or substitute its own findings for those of Courts or Tribunals below—In the case at hand, the High Court allowed a writ petition against concurrent judgments of the Family Court and appellate Court that had dismissed a suit for recovery of dower—High Court set aside those judgments and went further to decree the suit itself—Such substitution of findings and issuance of a decree was held to be beyond its jurisdiction—While High Court may interfere where findings are based on misreading or non-reading of material evidence, the proper remedy is remand, not adjudication on merits—Exercise of certiorari does not permit arrogation of trial court powers. Cited Cases: • Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260 • Nawaza v. Additional Settlement and Rehabilitation Commissioner PLD 1970 SC 39 • Shabbir Hussain v. Muhammad Afzal 1972 SCMR 47 • Muhammad Younus Khan v. Government of N.-W.F.P. 1993 SCMR 619 (b) Family Law ----Recovery of dower—Gift deed and tamleeq nama as proof—Standard of proof—Relaxed application of procedural law—Evidentiary standard in family cases Respondent-wife based her claim for recovery of dower not on entries in the nikah nama but on the basis of a gift deed and tamleeq nama allegedly executed by her father-in-law in favour of her husband and by her husband in her favour—Family Court and appellate Court concurrently held that execution of such deeds was not proved—High Court, however, set aside those findings, holding that procedural laws like the Qanun-e-Shahadat Order, 1984 and CPC are not strictly applicable in family disputes—Testimonies of witnesses and admission by petitioner No.1 were considered sufficient to establish execution—Supreme Court declined to interfere with the High Court’s setting aside of the concurrent judgments but held that decreeing the suit on its own exceeded jurisdiction—Matter remanded to Family Court for decision afresh. Disposition: Leave to appeal granted to the extent of High Court’s act of decreeing the suit—Appeal allowed to that extent—Impugned judgment set aside partially—Case remanded to Family Court for decision afresh—Stay application dismissed as infructuous.

Summary: (a) Constitution of Pakistan ----Art. 199, Art. 212(2)—High Court jurisdiction—Service matters—Proforma promotion—Bar of jurisdiction—Scope and applicability Petitioner, a retired BS-21 Police Service officer, sought proforma promotion to BS-22 via writ of mandamus under Art. 199 of the Constitution—Claim based on administrative inaction of High Powered Selection Board (HPSB), which failed to convene during his eligible tenure despite availability of vacancies—Held, petitioner’s request for proforma promotion was declined by the Establishment Division via Memorandum dated 11.10.2018—That decision constituted a final departmental order appealable before the Federal Service Tribunal—High Court’s jurisdiction barred under Art. 212(2) in matters concerning terms and conditions of service, unless exception under S.4(1)(b) of Service Tribunals Act, 1973 (STA) applies—No determination of petitioner’s “fitness” for promotion was made; hence, exception not attracted—Petition dismissed as not maintainable. Cited Cases: • Chief Secretary, Punjab v. Ms. Shamim Usman 2021 SCMR 1390 • Province of Punjab v. Hafiz Muhammad Kaleem-ud-Din 2024 SCMR 689 • Government of Pakistan v. Hameed Akhtar Niazi PLD 2003 SC 110 • Federation of Pakistan v. Jahanzeb 2022 SCMR 2020 (b) Civil Servants Act, 1973 ----S. 9—Promotion to BS-22—Legitimate expectation—Non-convening of HPSB—Effect on senior civil servants—Scope of right Promotion is not a vested right, but an eligible civil servant has a legitimate expectation to be considered fairly in accordance with applicable laws and procedures—Failure to hold timely meeting of HPSB without fault of the officer may, in appropriate cases, warrant consideration for proforma promotion—However, this power lies exclusively with the appointing authority under Fundamental Rule 17(1) proviso (now omitted)—In present case, though HPSB did not convene before petitioner’s retirement, no finding of wrongful exclusion or denial of promotion was made—Held, writ jurisdiction cannot be used to compel such a determination; remedy lies before Service Tribunal. (c) Fundamental Rule 17(1) [Omitted via SRO 965(I)/2022] ----Proforma promotion—Scope—Retired officers—Wrongful exclusion—Requirement of satisfaction by appointing authority Petitioner’s case governed by pre-omission legal regime—Under omitted proviso to FR-17(1), appointing authority may direct proforma promotion where civil servant, for no fault of their own, was wrongfully prevented from serving in higher post—Such benefit is symbolic and pecuniary only—Held, High Court cannot make such a factual determination; no direction to appointing authority warranted—Remedy lies before Service Tribunal which can examine such claims within scope of administrative law. Cited Case: • Secretary Ministry of Finance v. Muhammad Anwar 2025 SCMR 153 (d) Service Tribunals Act, 1973 ----S. 4(1), S. 4(1)(b)—Appeal before Service Tribunal—Fitness for promotion—Jurisdictional bar—Scope of exclusion An order declining further processing of promotion request constitutes a final order within the meaning of S.4 STA—Exception under S.4(1)(b) applies only where determination of “fitness” is made by the competent authority—In present case, no such evaluation occurred; hence, the Service Tribunal had jurisdiction, and High Court was barred from entertaining the writ petition under Art. 212—Petitioner’s remedy lies solely before the Tribunal. Disposition: Petition dismissed—High Court held it lacked jurisdiction under Article 212(2) of the Constitution—Matter falls within exclusive jurisdiction of the Federal Service Tribunal.

Summary: (a) Anti-Terrorism Act (XXVII of 1997)--- ----Ss. 8, 9, 11-F(2), 11-G(2) & 11-W(2)---Prohibition of acts intended or likely to stir up sectarian hatred, proscribed organization, support and meetings relating to a proscribed organization, projection of proscribed organization, act of terrorism--- Appreciation of evidence---Benefit of doubt---Prosecution case was that 22 pamphlets containing hate statements against the Shia community, stickers, cellphone and other material were recovered from the appellant---Trial Court acquitted the appellant of the charge under S.9 of the Act, 1997---Prosecution witnesses confirmed that the hate pamphlets and stickers were recovered from an envelope and were neither in open view nor otherwise visible---Said witnesses admitted that the appellant did not distribute hate pamphlets or stickers to anyone in their presence---Said witnesses had not seen the appellant engaging in any activity linked to a proscribed organization---No private person came forward to confirm any such connection---Trial Court recorded a categoric findings that the prosecution had failed to prove that the appellant had projected, supported, propagated or promoted SSP terrorists with intent to incite sectarian hatred---Trial Court interpreted S.8 of the Act, 1997, in accordance with the statutory and the evidence on record and therefore, rightly acquitted the appellant of the charge under S.9---To that extent, appeal was disposed of. (b) Anti-Terrorism Act (XXVII of 1997)--- ----Ss. 8, 9, 11-F(2), 11-G(2) & 11-W(2)---Prohibition of acts intended or likely to stir up sectarian hatred,proscribed organization, support and meetings relating to a proscribed organization, projection of proscribed organization, act of terrorism--- Appreciation of evidence---Benefit of doubt---Accused acquitted under a different section 9 of the Act, 1997 on same set of evidence--- Effect--- Prosecution case was that 22 pamphlets containing hate statements against the Shia community, stickers, cell phone and other material were recovered from the appellant---Trial Court convicted the appellant under S.11-G of the Anti-Terrorism Act, 1997, on the ground that possession of the objectionable pamphlets and stickers indicated appellant’s membership and support for the proscribed organization---Appellant’s conviction under S.11-G of the Act, 1997, was unsustainable because it was based on the same evidence for which he was acquitted under S.9---Once the Court found that the material had not been distributed or displayed, was recovered in the concealed form, and was unsupported by corroborating evidence of affiliation, a conviction under S.11-G could not follow---To the extent of said offence, appeal was allowed, in circumstances. Bourne (Inspector of Taxes) v. Norwich Crematorium Ltd. [1967) 1 WLR 691; Shakeel Shah v. The State and others 2022 SCMR 1; Barkhurdar v. Appellate Tribunal/Additional District and Sessions Judge, and others PlD 2016 Lah. 101; M/s Asfaq Trading Company v. Collector of Customs 2016 PTD 2111 and Messrs Kashmir Pottery Works v. The Commissioner of Sales Tax PLD 1973 Lah. 837 = 1973 PTD 453 rel. Syed Zeeshan Haider for Appellant. Ch. Asghar Ali Gill, Deputy/Prosecutor General with Farrukh Zareen/Inspector and Muhammad Zubair/SI, CTD for the State. Date of hearing: 12th May, 2025.

Summary: (a) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S.15---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908), S.9---Ejectment petition---Oral tenancy---Relationship of landlord and tenant, denial of---Burden of proof---Landlord has to be prove his land-lordship and existence of relationship with the tenant---Confusion regarding ownership of demised premises---Effect---Rent Controller lacking jurisdiction to adjudicate title disputes---Civil court being the proper forum---Delay of landlord in seeking eviction of tenant---Effect---The brief facts were that the petitioner (purported landlord) filed a rent application under S.15 of the Sindh Rented Premises Ordinance, 1979 (the SRPO), claiming ownership demised premises, and alleging that respondent (purported tenant) was his tenant who defaulted in rent since 1994, seeking eviction and arrears---The respondents denied the relationship of landlord and tenant, contending that no written rent deed or proof of rent payment existed---Both the Rent Controller and Appellate Court dismissed the petitioner’s claim, holding that the relationship of landlord and tenant was not established, leading to the filing of present constitutional petition by the purported landlord---Held: It was clear from the evidence of parties that respondent (purported tenant) did not pay any rent to the petitioner (purported landlord) in respect of demised premises and petitioner remained silent for four years and did not take any effort to vacate the premises---The parties were already under litigation over title of demised premises and rent court thus could not determine the status of ownership of parties---Petitioner lodged claim of ownership of demised premises and landing the same on rent as owner---He was burdened to prove his claim through a solid and reliable evidence that he was landlord which he failed to discharge---Moreover, he claimed that demised premises was rented out on 01.09.1994, per his claim rent for one month only was paid to him but he remained silent until 27.08.1999 when the present rent application was filed---Pleadings of parties created a confusion regarding the ownership of demised premises which could not be settled by Rent Controller and fell within the jurisdiction of Civil Court---In the said circumstances, it was incumbent upon petitioner to agitate his claim of ownership before civil court but he did not---Contrary respondents filed suit seeking declaration of ownership of demised premises---Trial Court decreed the suit partly in favor of respondents and petitioner did not challenge the decree of Trial Court by way of appeal which attained finality against him---The courts below rightly resolved that title of the demised premises was under dispute and court of Rent Controller was not the forum for adjudication of such claim---It was obligatory upon the petitioner (purported landlord) to prove existence of relationship of landlord and tenant---The case of the petitioner fell outside the purview of provisions of SRPO 1979 thus rent application was not maintainable and concurrent findings of courts below were in accordance with law---Constitutional petition being devoid of merits was dismissed, in circumstances. Rehmatullah v. Muhammad Ali 1983 SCMR 1983 rel. (b) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S.5---Rent agreement to be in writing---Requirement---The law (SRPO) requires parties to enter into rental business through an agreement in writing---Even if the parties do not enter into a written rent agreement, then it was incumbent upon parties to get a written acknowledgement of monthly rent---Section 5 of SRPO envisages that rent agreement if registerable be registered otherwise it be acknowledged in writing and attested by concerned Rent Controller in whose jurisdiction the premises are situated or by the Magistrate---The law requires doing the things in a particular manner, this provision of law benefits both Landlord and Tenant and preserves their rights of ownership and tenancy and helps resolve any ambiguity---Though this provision of law is directory in nature and in no manner bans tenancy through oral agreement, but in case of any dispute between the parties it will require high standards of proof through oral evidence in absence of written rent agreement. Mst. Fatima v. Mst. Hanifa 1986 CLC 1613 ref. (c) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S.15---Delay in seeking eviction of tenant by the landlord---Effect---Presumption of truth in favor of opposite party---Scope---Though non-payment of rent is a recurring cause for invoking jurisdiction of Rent Controller under Sindh Rented Premises Ordinance, 1979 seeking eviction and payment of rent but inordinate delay in adopting a legal course attaches a presumption of truth in favor of the claim of other party that the purported landlord was not the landlord of the demised premises. (d) Constitution of Pakistan--- ----Art.199---Constitutional jurisdiction of the High Court---Scope---High Court under its writ jurisdiction enjoys supervisory jurisdiction to set at naught the orders of the courts below when a case involving mis-reading and non-reading of the evidence or a case that the courts below acted in excess of jurisdiction vested in them or failed to exercise the jurisdiction vested in them is made out. Ghulam Dastaghir A. Shahani for Petitioners. Muhammad Ashique Dhamraho and Abdul Waris Bhutto, Assistant Advocate General, Sindh for Respondents. Date of hearing: 2nd May, 2025.

Summary: Rectification is not Review But Factual Errors Must Not Prevail. Ratio Decidendi: In tax adjudication, the rectification of an error must be sharply distinguished from the exercise of appellate or review jurisdiction. Where the Appellate Tribunal Inland Revenue bases its decision on an objectively incorrect and self-evident factual error?such as a wrongly recorded date of a Show Cause Notice that materially affects limitation?the Tribunal is not only empowered but obligated under Section 57 of the Sales Tax Act, 1990 to correct such an error. The Tribunal?s jurisdiction to rectify mistakes apparent on the face of the record extends only to correcting clear and undisputed factual oversights and does not authorize it to revisit the merits or reappraise the case substantively. In the present case, the Tribunal originally held the assessment order time-barred based on an erroneous date of the SCN (18.08.2014 instead of the correct 18.08.2015). This error was later brought to light through documentary evidence, including courier records and correspondence from the taxpayer?s counsel. Upon such revelation, the Tribunal rightly exercised its statutory authority under Section 57 to rectify the record and set aside its earlier decision. This act did not amount to a second appeal over its own ruling but constituted a correction of a foundational mistake?one that directly impacted the legal determination of limitation. It is well settled through consistent jurisprudence, including Bilqis Bibi v. Zainab Bibi (1989 SCMR 1008), Abdul Rauf v. Qutab Khan (2006 SCMR 1574), and CIT v. Shadman Cotton Mills (2008 PTD 253), that rectification is permitted only where the error is self-evident and does not require extensive reasoning or re-litigation. A factual mistake floating on the surface of the record?if left uncorrected?may result in a miscarriage of justice and must be addressed to preserve the integrity of adjudication. The Lahore High Court thus found no legal infirmity in the rectified order dated 09.02.2017 and dismissed the Reference, affirming the Tribunal?s action as a valid and lawful exercise of rectificatory jurisdiction.

Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: 482I.C.A- ICA (Writ)- ICA Service 244-24 GOP VS ZIA AKRAM ETC Mr. Justice Malik Javid Iqbal Wains 08-05- 2025 2025 LHC 4069