Summary: of 2022 with C.M. No. 1069 of 2022 by Peshawar High Court, Peshawar). (a) Specific Relief Act (I of 1877)--- ----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.123---Registration Act (XVI of 1908), S. 49---Suit for declaration and injunction---Unregistered gift deed---Proof---Failure to take possession- --Concurrent findings of facts by Courts below---Petitioners/plaintiffs claimed to be owners of suit property on the basis of gift deed made by their predecessor-in-interest and had assailed mutation of inheritance---Suit and appeal filed by petitioners/plaintiffs were dismissed by Trial Court and Lower Appellate Court---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees---Validity---Gift in question was conditional because possession was not delivered to petitioners/plaintiffs---Donor had retained possession during his lifetime, meaning thereby that one of the ingredientsof a valid gift was missing---When a document creates a future obligation(s) or right(s), it has to be compulsorily registered and when position remains otherwise, such document does not confer any right(s) in view of command of section 49 of the Registration Act, 1908 read with section 123 of the Transfer of Property Act, 1882---High Court had rightly construed law on the subject in such regard and when such document, creating future obligation(s) and right(s) was executed, the same, when challenged, was required to be proved by producing two marginal witnesses as per mandate of Article 79 of Qanun-e-Shahadat, 1984---Such proof was lacking in the present case as none of petitioners/plaintiffs produced witnesses in witness box for identification of their signature---Concurrent findings of facts recorded by Trial Court and Lower Appellate Court were rightly upheld by High Court in exercise of revisional jurisdiction under section 115, C.P.C.---Supreme Court declined to interfere in the matter---Petition for leave to appeal was dismissed and leave to appeal was refused. Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64; Mst. Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13; Islam ud Din (deceased) through L.Rs. and others v. Mst. Noor Jahan (deceased) through L.Rs. and others 2016 SCMR 986; Phull Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Ibrahim Kamal v. Mst. Malooka Bibi and others 2012 SCMR 1; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 20 10 SCMR 1370; Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698; Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986; Government of Khyber Pakhtunkhwa through Chief Secretary Civil Secretariat, Peshawar and others v. Shah Faisal Wahab and others 2023 SCMR 1642; Mst. Tahira Samina and others v. Javed Saeed Tariq and others 2024 SCMR 24; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Khalida Idrees and others v. Anas Farooq Chaudhary and others PLD 2018 Lah. 819; Mst. Rasheeda Bibi v. Mukhtar Ahmad and others 2008 SCMR 1384; Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others 2012 SCMR 1602; Rehmat Noor v. Zulqarnain 2023 SCMR 1645; Syed Ahmad v. Ali Akbar and others 2021 SCMR 743; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through L.Rs. and others 2021 SCMR 763; Saddaruddin (since deceased) through L.Rs. v. Sultan Khan (since deceased) through L.Rs. and others 2021 SCMR 642; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her L.Rs. and others 2021 SCMR 73; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 S.C. 338; Jubilee General Insurance Co. Ltd. Karachi v. Ravi Steel Company, Lahore PLD 2020 S.C. 324; Muhammad Nawaz and others v. Sakina Bibi and others 2020 SCMR 1021; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Naveed Akram and others v. Muhammad Anwar 2018 SCMR 1095; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1360; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Mst. Brikhna v. Faiz Ullah Khan and others 2020 SCMR 1681; Fazal Ellahi (deceased) through its Legal Heirs v. Mst. Zainab Bibi 2019 SCMR 1930; Ghulam Sarwar (deceased) through L.Rs. and others 2019 SCMR 567; Muhammad Ishaq v. Muhammad Shafiq and 9 others 2007 SCMR 1773; Haji Muhammad Anwar v. Muhammad Ahmed and others 2007 SCMR 1961; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Mst. Janntan and others v. Mst. Taggi through L.Rs. and others PLD 2006 SC 322; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Muhammad Ihsaq and another v. Mst. Gazala Riaz and 8 others 1997 SCMR 974; Mst. Noor Fatima and another v. Begum Bibi and another 1990 SCMR 629; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Mohammad Boota (deceased) through L.Rs., and others v. Mst. Fatima daughter of Gohar Ali and others 2023 SCMR 1901; Noor Din (deceased) through LRs v. Pervaiz Akhtar and others 2023 SCMR 1928; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajdad v. Provincial Government through Secretary Board of Revenue, Government of Balochistan, Quetta and others 2020 SCMR 2046; Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352; Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862; Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364; Messrs Paramount Spinning Mills Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal and another 2012 SCMR 1860; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Muhammad Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Farzana Zia and others v. Mst. Saadia Andaleeb 2024 SCMR 916 rel. (b) Islamic law--- ----Hiba gift---Reason for gifting property---Onus to prove on donee---Donee has to plead and prove as to what were the circumstances and incidents that the propositus, despite being a Muslim, proceeded to deprive his legal heirs/sons and gifted out his property to donee---Proving of such facts is necessary and sine qua non for a valid gift. Manzoor Khan Khalil, Advocate Supreme Court for Petitioners. Nemo for Respondents. Date of hearing: 24th April, 2025.

Summary: of 2022 with C.M. No. 1069 of 2022 by Peshawar High Court, Peshawar). (a) Specific Relief Act (I of 1877)--- ----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.123---Registration Act (XVI of 1908), S. 49---Suit for declaration and injunction---Unregistered gift deed---Proof---Failure to take possession- --Concurrent findings of facts by Courts below---Petitioners/plaintiffs claimed to be owners of suit property on the basis of gift deed made by their predecessor-in-interest and had assailed mutation of inheritance---Suit and appeal filed by petitioners/plaintiffs were dismissed by Trial Court and Lower Appellate Court---High Court in exercise of revisional jurisdiction declined to interfere in concurrent judgments and decrees---Validity---Gift in question was conditional because possession was not delivered to petitioners/plaintiffs---Donor had retained possession during his lifetime, meaning thereby that one of the ingredientsof a valid gift was missing---When a document creates a future obligation(s) or right(s), it has to be compulsorily registered and when position remains otherwise, such document does not confer any right(s) in view of command of section 49 of the Registration Act, 1908 read with section 123 of the Transfer of Property Act, 1882---High Court had rightly construed law on the subject in such regard and when such document, creating future obligation(s) and right(s) was executed, the same, when challenged, was required to be proved by producing two marginal witnesses as per mandate of Article 79 of Qanun-e-Shahadat, 1984---Such proof was lacking in the present case as none of petitioners/plaintiffs produced witnesses in witness box for identification of their signature---Concurrent findings of facts recorded by Trial Court and Lower Appellate Court were rightly upheld by High Court in exercise of revisional jurisdiction under section 115, C.P.C.---Supreme Court declined to interfere in the matter---Petition for leave to appeal was dismissed and leave to appeal was refused. Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276; Mst. Parveen (deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64; Mst. Hayat Bibi and others v. Alamzeb and others 2022 SCMR 13; Islam ud Din (deceased) through L.Rs. and others v. Mst. Noor Jahan (deceased) through L.Rs. and others 2016 SCMR 986; Phull Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Peer Baksh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Ibrahim Kamal v. Mst. Malooka Bibi and others 2012 SCMR 1; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others 20 10 SCMR 1370; Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698; Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986; Government of Khyber Pakhtunkhwa through Chief Secretary Civil Secretariat, Peshawar and others v. Shah Faisal Wahab and others 2023 SCMR 1642; Mst. Tahira Samina and others v. Javed Saeed Tariq and others 2024 SCMR 24; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Khalida Idrees and others v. Anas Farooq Chaudhary and others PLD 2018 Lah. 819; Mst. Rasheeda Bibi v. Mukhtar Ahmad and others 2008 SCMR 1384; Mst. Shafqat Parveen v. Muhammad Iftikhar Amjad and others 2012 SCMR 1602; Rehmat Noor v. Zulqarnain 2023 SCMR 1645; Syed Ahmad v. Ali Akbar and others 2021 SCMR 743; Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through L.Rs. and others 2021 SCMR 763; Saddaruddin (since deceased) through L.Rs. v. Sultan Khan (since deceased) through L.Rs. and others 2021 SCMR 642; Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605; Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her L.Rs. and others 2021 SCMR 73; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 S.C. 338; Jubilee General Insurance Co. Ltd. Karachi v. Ravi Steel Company, Lahore PLD 2020 S.C. 324; Muhammad Nawaz and others v. Sakina Bibi and others 2020 SCMR 1021; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Naveed Akram and others v. Muhammad Anwar 2018 SCMR 1095; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1360; Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Mst. Brikhna v. Faiz Ullah Khan and others 2020 SCMR 1681; Fazal Ellahi (deceased) through its Legal Heirs v. Mst. Zainab Bibi 2019 SCMR 1930; Ghulam Sarwar (deceased) through L.Rs. and others 2019 SCMR 567; Muhammad Ishaq v. Muhammad Shafiq and 9 others 2007 SCMR 1773; Haji Muhammad Anwar v. Muhammad Ahmed and others 2007 SCMR 1961; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another 2007 SCMR 236; Mst. Janntan and others v. Mst. Taggi through L.Rs. and others PLD 2006 SC 322; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Muhammad Ihsaq and another v. Mst. Gazala Riaz and 8 others 1997 SCMR 974; Mst. Noor Fatima and another v. Begum Bibi and another 1990 SCMR 629; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Messrs Essa Engineering Company Pvt. Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Mohammad Boota (deceased) through L.Rs., and others v. Mst. Fatima daughter of Gohar Ali and others 2023 SCMR 1901; Noor Din (deceased) through LRs v. Pervaiz Akhtar and others 2023 SCMR 1928; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajdad v. Provincial Government through Secretary Board of Revenue, Government of Balochistan, Quetta and others 2020 SCMR 2046; Shabla and others v. Ms. Jahan Afroz Khilat and others 2020 SCMR 352; Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862; Syed Mehmood Ali Shah v. Zulfiqar Ali and 5 others PLD 2013 SC 364; Messrs Paramount Spinning Mills Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal and another 2012 SCMR 1860; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Muhammad Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Farzana Zia and others v. Mst. Saadia Andaleeb 2024 SCMR 916 rel. (b) Islamic law--- ----Hiba gift---Reason for gifting property---Onus to prove on donee---Donee has to plead and prove as to what were the circumstances and incidents that the propositus, despite being a Muslim, proceeded to deprive his legal heirs/sons and gifted out his property to donee---Proving of such facts is necessary and sine qua non for a valid gift. Manzoor Khan Khalil, Advocate Supreme Court for Petitioners. Nemo for Respondents. Date of hearing: 24th April, 2025.

Summary: (a) Companies Ordinance (XLVII of 1984) [since repealed]--- ----Ss.305 & 306---Petition for winding up of a company by a creditor, filing of---Company unable to pay its debts---Outstanding insurance premium, non-payment of---Notice of demand for deeming a company unable to pay its debts, requirement of---Scope---Non-issuance of notice of demand fatal for the case of creditor seeking winding up---Creditor seeking winding up of a company to prove that a company is unable to pay its debts---The entire case of the petitioner was that the respondent company should be deemed unable to pay its debts under clause (a) of S. 306(1) of the erstwhile Companies Ordinance, 1984 (the Ordinance) as it neglected to pay the outstanding insurance premium---Respondent company had pleaded that no such notice of demand was served on it---Held: Since the respondent company had pleaded that no such notice was served on it, to rebut that, the petitioner did not file any postal or courier receipt or any acknowledgment of the respondent company to show that notice was sent to or served upon it---The notice of demand contemplated under clause (a) of S. 306(1) of the Ordinance was required to be served on the respondent company, by causing the same to be delivered by registered post or otherwise, at its registered office---Since the said provision imposed a penal obligation upon the debtor company, it was to be construed strictly---Though the notice relied upon by the petitioner listed outstanding premium payable by four associated companies including the respondent, it was addressed only to the director of the respondent company, i.e. to an associated company and that too at Multan---It was neither addressed to the Respondent nor to the registered office of the respondent which was at Karachi---Even if the associated company was dealing with the petitioner on behalf of the respondent company, to seek winding-up of the respondent company under clause (a) of S. 306(1) of the Ordinance, the notice of demand had to be sent to the respondent company which was a separate legal entity from its associated company---It was apparent that the petitioner did not send any notice of demand to the respondent company as required by clause (a) of S. 306(1) of the Ordinance---Resultantly, the petitioner could not rely on Cl. (a) of S. 306(1) to raise the presumption that the respondent company was unable to pay its debts---Petition was dismissed, in circumstances. (b) Companies Ordinance (XLVII of 1984) [since repealed]--- ---Ss.305 & 306---Petition for winding up of a company by a creditor---Maintainability---Remedy for the creditor where company is commercially solvent but unable to pay its debts, availability of---Scope---If a debtor company is merely unwilling to pay its debts but otherwise is commercially solvent, then the normal remedy available to a creditor is a suit for the recovery of the amount and not a petition for winding up---The object of Ss. 305 & 306 of the Companies Ordinance, 1984 is not to coerce a debtor company to make payment to an unpaid creditor, but to secure discontinuation of functioning of such company which has ceased to be commercially solvent. (c) Companies Ordinance (XLVII of 1984) [since repealed]--- ----S.306---Petition for winding up by the creditor of a company---Company unable to pay its debts---Deeming a company unable to pay its debts---Scope---To deem that a company is unable to pay its debts, a creditor can rely on clause (c) of S.306(1) of the Companies Ordinance, 1984, independent of clause (a) and otherwise 'prove' that the company is unable to pay its debts. Khurram Rashid for Petitioner. Zahrah Sehr Vayani and Rameez Lalani for Respondent. Dates of hearing: 4th, 11th and 19th March, 2025.

Summary: (a) Companies Act (XIX of 2017)--- ----Ss.279, 280, 281 & 282---Companies (Court) Rules 1997, R.19---Scheme of amalgamation, sanctioning of---Demerger and merger, benefits of---Scope---Petitioners companies sought sanctioning of a scheme of amalgamation under Ss. 282, 279 to 281 of the Companies Act, 2017---The petitioner No.1 (a large-sized hotel business), petitioner No.2 (a formerly operational pharmaceutical company now non-functional), and petitioner No.3 (a newly incorporated company), for the purpose of amalgamation, proposed the scheme---Pursuant to the court's order, meetings of shareholders and secured creditors were held where unanimous or overwhelming approval was granted for the scheme---Special resolutions were passed by the shareholders of all petitioners and secured creditors of petitioners Nos.1 and 2 voted in favor of the scheme---No secured creditors existed for petitioner No.3---Held: As per the scheme of amalgamation, the benefits of the demerger and merger were that the petitioners Nos.1 and 2 would be classified as 'group' companies and entitled to group tax benefits and that the shareholders demerging from petitioner No.2 would be removed from undertaking risks associated with the operation of the retained undertaking by the petitioner No.2---Therefore, the scheme was for viable reasons---The swap ratio of shares worked out by the chartered accountant appeared to be reasonable---99.7% of shareholders of petitioner No.2 and 100% shareholders of petitioner No.1 and 3 had voted in favor of the scheme---All secured creditors of the petitioner Nos.1 and 2 had also voted in favor of the scheme---The petition was advertised pursuant to Rule 19 of the Companies (Court) Rules, 1997 but no one came forth to oppose the sanction of the scheme---Therefore, scheme of amalgamation was sanctioned and petition was allowed, in circumstances. (b) Companies Act (XIX of 2017)--- ----S.282---Scheme of amalgamation---Interference by Courts---Scope---Where a scheme of amalgamation approved by the requisite majority appears to be fair, just, reasonable and prima facie fulfills statutory requirements then the Court does not sit in appeal over the commercial wisdom of the scheme. Paramount Spinning Mill's case 2020 CLD 1443; IGI Insurance Ltd's case 2018 CLD 572 and Gadoon Textile Mills Ltd.'s case 2015 CLD 2010 ref. (c) Companies Act (XIX of 2017)--- ----S.282---Competition Act (XIX of 2010), S.11---Competition (Merger Control) Regulations 2016, Regln. 5(1)(ii)---Scheme of amalgamation---Pre-merger clearance by the Competition Commission---Exemption---The scheme of amalgamation is a transaction exempted by Regln. 5(1)(ii) of the Competition (Merger Control) Regulations 2016 and therefore the pre-merger clearance of the Competition Commission under S. 11 of the Competition Act, 2010 is not required. (d) Companies Act (XIX of 2017)--- ----Ss.281 & 282(2)---Scheme of amalgamation---Meeting of shareholders and secured creditors, calling of---Requirement---In a scheme of amalgamation, the requirements of Ss. 281 & 282(2) of the Companies Act, 2017 must be fulfilled by convening meetings of the shareholders and secured creditors of the companies involved, to enable them to vote on the proposed scheme. Mikael Azmat Rahim for Petitioners. Syed Ebad-ur-Rehman on Court notice. Date of hearing: 24th April, 2025.

Summary: Where the plaintiff applied for withdrawal of suit with the permission to file fresh one, it is the description of the court to either decline such request or allow the permission, obviously, within the parameters of order 23 rule 2 (a) (b) CPC. If court comes to a conclusion that there are no sufficient grounds in the application, then the suit should not be dismissed, rather the request for permission alone be turned down and the suit should continue. If the court comes to a conclusion that the suit is not maintainable due to formal defect or there are other sufficient grounds for allowing plaintiff to institute a fresh suit, the court is to record its reasons justifying the permission. Where the application for withdrawal of suit with permission to file a fresh one is simpliciter dismissed as withdraw without recording the reason, it should be presumed, implied and deemed that the court has found it to be fit case for the permission and has granted the plaintiff permission to file fresh suit

Summary: The proper way to construe a non obstante clause is first to ascertain the meaning of the enacting part through a fair construction of its words. The meaning so ascertained is then to be taken as overriding anything inconsistent with it in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that such provision should prevail despite anything to the contrary in the provisions referred to in the clause. In case of any inconsistency between the non obstante clause and another provision, one of the purposes of such a clause is to ensure that it prevails over the conflicting provision. However, it does not necessarily mean that there must be repugnancy between the two provisions in all cases. The principle underlying a non obstante clause may be invoked only in cases of irreconcilable conflict.

Summary: (a) When the conduct of the husband is characterized by cruelty, the wife's right to maintenance is preserved notwithstanding her non-cohabitation. Hence, it would be unjust and inequitable to deprive the petitioner/defendant of her entitlement to maintenance during the said period when she was, in effect, compelled by circumstances created by the respondent/plaintiff to live apart. (b) When a husband claims restitution of conjugal rights in response to a suit for dissolution of marriage, dower, dowry, and maintenance filed by the wife, it is an onerous responsibility of the Court to assess whether he is sincerely fulfilling his obligations towards his wife, rather than merely gratifying urges of male chauvinism. The lodging of a claim for restitution of conjugal rights should not be used as a weapon to defend against or obstruct the claims of dower or maintenance allowance, but must be made in good faith and with a bona fide intention to reconcile and resolve the issues between the spouses in order to preserve the matrimonial bond with magnanimity, kindness, and through the fulfillment of the husband's obligations—not as a tool to frustrate or combat the wife’s lawful claims.

Summary: Constitutional Petition Raising experience thresholds is not uncertain in law; where classification is based on intelligible criteria like professional experience, it bears a reasonable nexus with regulatory effectiveness.

Summary: i. We do not deny the subsequent arrival of the witness to the hospital, but in our understanding, by then no report was made, as the deceased then injured had already been shifted for surgery. The attending circumstances of the present case leave no ambiguity in mind that neither the witness accompanied the deceased then injured from spot to the hospital, nor the witness was present in the hospital when the injured was received, so the witness had no occasion to talk to the injured and the injured had no occasion to explain the circumstances. ii. True that in case of a proved dying declaration the normal penalty of death can be awarded, but even there the learned trial Court must take into consideration the attending circumstances of each particular case. While placing reliance on the declaration, the Court must take into consideration the circumstances which led to the tragedy and also the circumstances which urged the killer to kill. iii. We would not hesitate in accepting the witness if, the information received from the deceased was limited only to the identity of the accused, but the explanation of minute details, to him, by the deceased, has put us on guard that the witness was trying to convince that the injured was not only oriented in time and space, but was relaxed, composed and was capable to talk. The witness struggled hard to create a space for himself in the tragedy, but he failed to convince that he accompanied the deceased from spot to the hospital, this failure of the witness has questioned the very existence of the dying declaration of the declarant. iv. The report surprised us, as the complainant easily disclosed the identity of the assailant and also the locale of the injuries on his body. He was in great pain with his vital organs damaged, can we expect such a narration from an injured who was not only in the 67th year of his age, but also with a body riddled with bullets. We do not expect such a narration from an injured who on his very arrival to the hospital was declared critical with a threat to his life if not operated. v. True that the best relevant witness is the doctor who would confirm the condition of an injured, his capability to talk and his consciousness, but his statement alone should not be the determining factor, rather the prosecution must collect evidence which in turn would glorify the opinion of the doctor regarding the fact that the injured was capable to talk. vi. Mere consciousness would hardly convince that the injured was oriented in time and space, capable to respond and had the capacity to understand the circumstances prevailed at the time. Before accepting the doctor as correct, we must assess the procedure undertaken, before reaching to the conclusion. We should not lose sight of the fact that dying declaration is the statement of an interested person which requires corroboration. vii. We are not in a hurry to dislodge the very existence of the dying declaration, but we are not in a haste to accept the same, without asking for corroboration. There is no cavil with the preposition that dying declaration is a weak kind of evidence which always needs independent corroboration. viii. It is not the consciousness of the deceased which alone would serve the purpose, rather the prosecution must prove that the deceased then injured was in a fit state of mind and that the injured had the opportunity to identify the accused, but keeping in view the critical condition of the deceased then injured, this Court is confident in holding that he was not in a fit state of mind and that because of profuse bleeding and injuries caused to the vital organs, he was unable to record the event meticulously. ix. The dying declaration failed to inspire confidence and its failure has broken the chain, so the relevant link is missing. When such is the situation, then this Court is Confident in hold ing that the learned trial Court failed to appreciate the evidence on file and it failed to apply extra care and in our understanding, miscarriage of justice has occasioned.

Summary: Bail allowed ----- (a) Penal Code (XLV of 1860) ---- Ss. 405 & 406 --- Criminal breach of trust --- Ingredients --- Business transaction mischaracterized as entrustment --- Scope and judicial interpretation Essential ingredients of Section 406 PPC include: (i) entrustment of property, (ii) dishonest misappropriation or conversion, and (iii) violation of legal direction or contract regarding the entrusted property. The Court held that the term “entrustment” is to be construed in its legal sense, requiring that the accused possess property in a fiduciary capacity, not merely in possession for personal benefit. In the present case, the accused allegedly purchased stainless steel sheets worth over PKR 42.9 million from various complainants in a commercial transaction, and failed to pay. The Court observed that such transactions did not constitute "entrustment" under Section 405 PPC and hence could not attract the offence under Section 406 PPC. Mere use of the term "trust" in the FIR was insufficient to alter the legal character of the transaction. (b) Penal Code (XLV of 1860) ---- Ss. 415 & 420 --- Cheating --- Civil vs. criminal liability --- Distinction Where goods are acquired through misrepresentation, deception, or dishonest inducement, the offence may fall under the definition of "cheating" in Section 415 PPC, punishable under Section 420 PPC. However, such offence remains bailable under the Second Schedule to the Cr.P.C. The Court held that even if the petitioner induced the complainants fraudulently, the remedy lay under Section 420 PPC, not Section 406 PPC. As such, the alleged act gave rise to civil liability and not criminal breach of trust. (c) Criminal Procedure Code (V of 1898) ---- S. 497 --- Bail --- Post-arrest bail granted --- Accused in custody since arrest --- Offence bailable --- No further need for custody The petitioner had been in custody since 25.01.2025. The Court held that his person was no longer required for investigation. Given the bailable nature of the offence under Section 420 PPC, and the absence of fiduciary entrustment required for Section 406 PPC, the accused made a good case for bail. Petition was allowed and bail was granted subject to furnishing surety. Disposition: Petition allowed; accused admitted to post-arrest bail. Cited Legislation: • Penal Code (XLV of 1860), Ss. 405, 406, 415, 420 • Criminal Procedure Code, 1898, S. 497, Second Schedule