Summary: Summary pending

Summary: Summary pending

Summary: Summary pending

Summary: (Against the order of Lahore High Court, Lahore dated 18.02.2025 passed in Crl. Misc.No. 5460-B of 2025). Criminal Procedure Code (V of 1898)--- ----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 427, 109 & 34---Constitution of Pakistan, Art. 185 (3)---Qatl-i-amd, mischief, abetment, common intention---Application for cancellation of bail, dismissal of---Petitioner/complainant was aggrieved of grant of post-arrest bail to respondent/accused by High Court---Held: Accused was charged for committing murder of the brother of complainant---Bail, though a concession granted to ensure the liberty of an accused pending trial, is not an unqualified right and can be withdrawn, if misused---Bail may be cancelled if the accused, after securing release, engaged in conduct that undermined the administration of justice---Such grounds included attempt to influence or intimidate witnesses, tampering with evidence, committing another offence while on bail, or violating conditions imposed by the Court---Furthermore, if the accused fails to appear before the Court without just cause, or if new facts come to light that materially altered the basis on which bail was granted, the Court may justifiably revoke the concession---However, the liberty of an individual must be balanced against the need to ensure a fair trial and uphold public confidence in the justice system---Other than the above, the principles evolved for examining a bail granting order for the purpose of cancellation, the Court usually interferes on two grounds: (i) when the impugned order is perverse on the face of it, or (ii) when the impugned order has been made in clear disregard of some principles of the law of bail---Perverse order is one that has been passed against the weight of the material on the record or by ignoring such material or without giving reasons; such order is also termed as arbitrary, whimsical and capricious---Courts are not to indulge in the exercise of a deeper appreciation of material available on record at the bail stage and are only to determine tentatively, by looking at such material, whether or not there exist any "reasonable grounds" for believing that the accused person is guilty of the alleged offence---None of the said grounds for cancellation of bail were attracted in the present case---Accordingly, leave to appeal was declined and the petition was dismissed, in circumstances. Zaro v. State 1974 SCMR 11; Sidra Abbas v. State 2020 SCMR 2089; Farid v. Ghulam Hussan 1968 SCMR 924 and Khalid Saigol v. State PLD 1962 SC 495 rel. Aqib Javed Malik, Advocate High Court for Petitioner (With permission of the Court). Rana Abdul Majid, Additional Prosecutor General, Punjab for the State. Respondents-in-person. Date of hearing: 26th March, 2025.

Summary: (On appeal from the Order dated 31.01.2023 passed by the High Court of Sindh, Karachi in M.A. No. 83 of 2022). (a) Transfer of Property Act (IV of 1882)--- ----S. 123---Gift of immovable property---Pre-condition---For the purpose of making a gift of immovable property, under section 123 of Transfer of Property Act, 1882 transfer must be effected by a registered instrument signed by or on behalf of donor and attested by at least two witnesses. (b) Islamic law--- ----Gift---Pre-conditions---Constituents and components of a valid gift under Muslim Law are tender, acceptance and possession of property---It is also obligatory that donor divests and dissociates himself from dominion and ownership over property of gift and puts into words his categorical intention to convey ownership to donee distinctly and unambiguously with delivery of possession of property and ensure that donee has secured physical ascendency over property to constitute delivery of possession. Abid Hussain v. Muhammad Yousaf PLD 2022 SC 395 = 2022 SCP 93 rel. (c) Specific Relief Act (I of 1877)--- ----Ss. 39, 42 & 54---Transfer of Property Act (IV of 1882), Ss. 123 & 129---Suit for cancellation of document, declaration and injunction---Oral gift---Proof---Concurrent findings of facts by Courts below---Respondent / plaintiff claimed to be owner of suit property and had assailed oral gift allegedly made in favour of petitioner / defendant by her deceased mother---Suit was decreed by Trial Court in favour of respondent / plaintiff and High Court in exercise of appellate jurisdiction maintained that judgment and decree---Validity---Despite the fact that oral gift under Islamic Law was not required to be compulsorily registered under Registration Act, 1908, within the exactitudes of sections 123 and 129 of Transfer of Property Act, 1882, the relaxation of non-registration or optional nature of such registration did not absolve petitioner / defendant (donee) from strictly proving factum of gift or the declartion of oral gift under challenge---Neither petitioner / defendant succeeded in proving indenture of declaration of oral gift nor there was any attempt made to register gift to avoid any future claim or dispute and nor was it proved to have been executed by deceased who was living abroad---Petitioner / defendant also failed to prove as to when deceased donor had come to reduce oral declaration into writing---No witnesses were produced who could satisfactorily corroborate presence of alleged donor in Pakistan---Regardless of all such incongruities and misdeeds, the Housing Society transferred the property in the name of petitioner / defendant in their record which was rightly rendered null and void---Supreme Court declined to interfere in concurrent findings of facts by two Courts below, as there was no illegality or perversity in their judgments and decrees---Petition for leave to appeal was dismissed and leave to appeal was refused. Meeru Khan v. Mst. Naheed Aziz Siddiqui and others PLD 2023 SC 912; Additional note in Constitution Petition No. 6 of 2023 and connected cases PLJ 2024 SC 114 = 2024 SCP 4; Abid Hussain v. Muhammad Yousaf PLD 2022 SC 395 = 2022 SCP 93; Babar Anwar v. Muhammad Ashraf and another 2024 SCMR 734 = 2024 SCP 128; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Umar Bibi v. Bashir Ahmad 1997 SCMR 154; Maulvi Abdullah and others v. Abdul Aziz and others 1987 SCMR 1403 and Allah Diwaya v. Ghulam Fatima PLD 2008 SC 73 rel. Shafqat Ali Shah Masoomi, Advocate Supreme Court along with Petitioner for Petitioner. Asghar Ali, Advocate Supreme Court for Respondent No. 1. Nemo for Respondents Nos. 2 and 3. Date of hearing: 26th March, 2025.

Summary: Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471, 419 & 109---Prevention of Corruption Act (II of 1947), S. 5---Cheating by personation, cheating and dishonestly inducing someone to deliver property, forgery for the purpose of cheating, use of a forged document as genuine, abetment, criminal breach of trust by public servant---Bail, refusal of---Allegation against the accused-petitioner was that he, while joining hands with Patwari, Qanoongo and Naib Tehsildar got a valuable property of deceased uncle of complainant transferred into his name through a forged sale deed---Forgery of a sale deed (valuable security) attracted the charge under S.467, P.P.C., which entailed the penalty of imprisonment for life, or imprisonment of either description, which may extend to ten years---Said penal provision was not applied by Investigating Officer, but it was prima facie made out, as such, said offence attracting against the petitioner fell within embargo contained under S.497, Cr.P.C.---Petitioner was found to be prima facie connected with the act of preparation of forged sale deed in his favour in order to deprive certain persons of their valuable property/inheritance---Allegations levelled against petitioner sought full endorsement, corroboration and confirmation by the documentary evidence floating on the surface during the investigation---Prima facie involvement of the petitioner in the crime could not be dislodged---There was nothing to suggest by any stretch of imagination that offence required further inquiry---Mode and manner adopted by petitioner presented a dreadful picture of the episode of the crime, which did not permit extending any leniency in his favour---Complainant, although, was not directly affected by the fraud/forgery committed by petitioner/accused, but he was real nephew of deceased, whose property was allegedly grabbed by fraud/forgery, as such being a relevant person, the lodgment of FIR under his authorship was valid and legal for all the purposes---Bail petition was dismissed, in circumstances. Mehmood Ahmad v. Additional Sessions Judge/Ex. Officio Justice of Peace, Narowal and 5 others 2024 PCr.LJ 786; Karima Bibi v. The State and others 2012 PCr.LJ 1610 and Ilyas Ahmad v. Muhammad Munir and 10 others PLD 2012 Sindh 92 ref. Jainul Abdin v. Mulchand Budur AIR 1955 NUC (ASSAM) 2829; AIR 1926 Allahabad 57 and Muhammad Rasheed v. The State PLD 1959 W.P. Lahore 372 rel. Akhtar Hussain Bhatti for Petitioner. Rana Muhammad Imran Anjum, Deputy Prosecutor General along with Muhammad Javed Assistant Director for the State. Irfan Ahmad Khichi and Sajjad Mehmood Bhatti for the Complainant. Order Tanveer Ahmad Sheikh, J .--- The petitioner (Riaz Ahmad), being arrayed as an accused in case FIR No. 28/2024, dated 11.09.2024 registered with Police Station ACE, Lahore for offences under Sections 420, 468, 471, 109, 419 P.P.C. and 5/2/47 PCA, seeks his post arrest bail, after the same was refused by the Court of learned Senior Special Judge, Anti-Corruption, Punjab, Lahore vide order dated 09.01.2025. 2. According to FIR, one Muhammad Nawaz (real uncle/Taaya of complainant) was owner of a piece of land measuring 01-Kanal 13-Marla, situated at Mouza Kot Lukhput, Lahore. He passed away on 12.03.2024. Complainant went to Patwari for the mutation of inheritance, then it was transpired that above piece of land stood transferred to Riaz Ahmad (petitioner) through forged sale deed vide mutation No.50216 dated 28.06.2024. Upon mutation, number of register sale deed was mentioned as 15029 Bahi No.1, Jild No.9283 dated 08.06.2021 for consideration of Rs.1,36,95,000/- with the office of Sub-Registrar, Nishtar Town, Lahore. On the scrutiny of record, one document drafted in English found to have been executed from one Muhammad Sulaman in favour of Allied Bank Limited. Particulars of the above documents were different from mutation No.50216. On further security, particulars of document No.15028 Bahi No.1, Jild No.9283 dated 08.06.2021 were found to be in accordance with the relevant particulars, where-upon thumb impression of Muhammad Nawaz (uncle/Taaya) of the complainant along with photograph was found available. Above uncle was suffering from palsy for the last more than 15 years. He was bed ridden, as such signature/thumb impression upon the said documents was not that of uncle of the complainant. The photo available thereupon was found to have been scanned from CNIC through the help of computer. Moreover, in the contents of document, memo/fard for the purpose of sale was shown to have been issued vide rapt No.1105 dated 27.03.2021. On scrutiny the signature of uncle of complainant upon above Rapt No.1105 were found to be forged. One Muhammad Sharif son of Muhammad Jehangir was cited as identifier. His signature was also found to be forged. Said Muhammad Sharif issued his affidavit to the effect that he was not identifier of the said property. Infact, accused persons namely (1) Yaqoob Joyia (ex.Patwari) (2) Abdul Majeed Haleem, Qanoongo (3) Azhar Hussain (Ex Naib Tehsildar) (4) Riaz Ahmad son of Muhammad Sharif (petitioner), after connivance with each other got the said property transferred into the name of Riaz Ahmad (petitioner). 3. Bail was sought mainly on the grounds that petitioner, being not a government official, was not subject of section 5 of Prevention of Corruption Act, 1947; remaining offences under Sections 420, 468, 419, 471, 109 P.P.C. were not attracting the prohibition contained in Section 497 of Cr.P.C; petitioner was behind the bar ever since his arrest; his person was no more required; complainant filed a civil suit for the cancellation of document, but he was not an aggrieved person, because he was not legal heir of Muhammad Nawaz (deceased); complainant was having no locus-standi to put machinery of law into motion; placed reliance upon "Mehmood Ahmad v. Additional Sessions Judge/Ex. Officio Justice of Peace, Narowal and 5 others" (2024 PCr.LJ 786), "Karima Bibi v. The State and others" (2012 PCr.LJ 1610) and "Ilyas Ahmad v. Muhammad Munir and 10 others" (PLD 2012 (Sindh) 92); neither wife, nor son, nor daughter, nor any sister of Muhammad Nawaz (deceased) challenged the above mutation, which was still holding the field; one Muhammad Sharif identifier submitted affidavit that he did not identify any person but report of PFSA endorsed his signature upon memo/Fard; all the above said weak and palpable circumstances were sufficient to make present case that one of further inquiry. 4. Learned Deputy Prosecutor General, Punjab duly assisted by the learned counsel for the complainant opposed the present petition vehemently and rigorously on variety of the grounds. They added that petitioner was working as a Munshi of a Patwari. He was master mind of episode of the crime and main beneficiary thereof; memo/fard was got issued after one year of the registration of the sale deed, which was meaningful and a question mark; Muhammad Imran co-accused was just an identifier, as such he was allowed bail by this Court, whereas the case of the petitioner was altogether on different footings; he committed act of highhandedness, as such he was not entitled to any relief despite of the fact that offences attracted against him were not falling within the category of prohibitory clause. 5. Arguments heard. File perused. 6. Petitioner Riaz Ahmad was under the allegation that he, while joining hands with Patwari, Qanoongo and Naib Tehsildar got a valuable property of one Muhammad Nawaz (deceased uncle of complainant) transferred into his name through a forged sale deed. 7. Main thrust of learned counsel for petitioner was on the points that offences were not falling within prohibitory clause of Section 497 Cr.P.C and civil litigation between the parties was also pending and complainant was having no locus-standi. 8. Petitioner allegedly made a forged sale deed. Sale deed is a document, which transfers right to property/ownership, as such the same is covered by the definition of "Valuable security" as provided by Section 30 of P.P.C., which is being produced below for the facility of reference:- "The words "valuable security" donate a document which is, or purports, to be a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right". Any document, which on the face of it purports to create right in immovable property, is a "valuable security". If any reference in this regard is required, that can be had from the case of Jainul Abdin v Mulchand Budur AIR 1955 NUC (ASSAM) 2829, wherein a sale deed was considered as "valuable security". I have sought further guidance from AIR 1926 Allahabad 57. 9. Forgery of a sale deed (valuable security) shall attract the charge under section 467 P.P.C., which entails the penalty of imprisonment for life, or imprisonment of either description, which may extend to ten years. Above penal provision was not applied by Investigating Officer, but it was also prima-facie made out, as such I feel no hesitation in holding that said offence attracting against the petitioner was falling within embargo contained under Section 497 of Cr.P.C. 10. Petitioner was found to be prima facie connected with the act of preparation of forged sale deed in his favour in order to deprive certain persons of their valuable property/ inheritance. Allegations levelled against him sought full endorsement, corroboration and confirmation by the documentary evidence flouted on the surface during the investigation. Prima facie involvement of the petitioner in the crime could not be dislodged. There was nothing to suggest by any stretch of imagination that offence was requiring further inquiry. Mode and manner adopted by petitioner was presenting a dreadful picture of the episode of the crime, which do not permit me to extend any leniency in his favour. 11. So far as objection raised by learned counsel for the petitioner regarding the locus standi of complainant was concerned, it was not a rule of universal application that a crime of fraud/forgery can only be reported by a person, who is directly affected thereby. Such like nefarious activities, which are crimes not only against any individual, but against the public at large, can be brought into the knowledge of concerned authorities by any person of the public and authorities can inquire into and investigate the same when the same come into their knowledge, even if these are not reported by any person. I have sought guidance in this regard from "Muhammad Rasheed v. The State" (PLD 1959 (WP) Lahore 372), wherein it was held that it is not incumbent that the person who has been cheated should initiate criminal proceedings for the offence. Complainant, although was not directly affected by the fraud/forgery committed by petitioner/ accused, but he was real nephew of Muhammad Nawaz (deceased), whose property was allegedly grabbed by fraud/ forgery, as such being a relevant person, the lodgment of FIR under his authorship was valid and legal for all the purposes. Above objection of the learned counsel, being divide of legal force has been turned down by me. 12. Precedent judgments, relied upon by the learned counsel for the petitioner were found to be on different premises, hence, not applicable to the matter in hand. 13. For the reasons recorded above, the present petition has no force, hence dismissed. JK/R-13/L Petition dismissed.

Summary: ----Ss. 3 & 7---Criminal Procedure Code (V of 1898), S. 549---Pakistan Army Act (VI of 1953), S. 123---Illegal dispossession---Concurrent jurisdiction of Criminal Court and Court Martial---Delivery to military authorities of persons liable to be tried by Court-martial---Scope---Application was filed by the Pakistan Air Force (PAF) contending that the respondent/proposed accused was an officer in PAF, therefore, he be handed over to PAF as he was to be tried by the Military Courts instead of Courts of ordinary jurisdiction---Such application was dismissed by the Trial Court---Validity---It was evident that Illegal Dispossession Act, 2005,was a special law and S. 4 thereof contained non-obstante clause---Relevant provisions of PAF Act, 1953, envisaged that S. 123 of the said Act is not applicable to the special laws---In that context, reference could be made to the provision of Ss. 71, 4(xi), 4(xvi) & 123 of PAF Act, 1953---In view of this legal position, the provisions of Ss. 3 & 4 of the Illegal Dispossession Act, 2005, shall prevail over the provision of S. 123 of PAF Act, 1953---Applicant had mainly stressed their prayer on the basis of decision of Cabinet Division as reflected in the Letter No. 556/ Rule-19/2024/926 dated 07-11-2024- --Prior to such decision of Cabinet Division, applications had been moved by the PAF for transferring the trial to Military/Court Martial which were dismissed and the dismissal orders were not challenged before the higher forum---When the trial was in progress and the complainant and one witness had been examined before the Trial Court, the applicant/PAF came with such plea that in view of the decision of the Cabinet Division, the Trial Court had no jurisdiction and that the trial of the accused was to be conducted by the Military/Martial Court-- -In fact, Federal Cabinet decision's letter No.556/ Rule-19/2024/926 dated 07-11-2024 was based on the provisions of S. 124 (2) of PAF Act 1953, and R. 6(2) of Criminal Procedure (Military Offender) Rules, 1970, which were not attracted in the present case as this case was governed under the provision of S. 123 of PAF Act, 1953, read with Rr. 2 & 3 of Criminal Procedure (Military Offender) Rules,1970---Moreover, in the said letter no reference had been made to the judicial order passed by the Trial Court on 01-11-2021 in which the question of jurisdiction had already been decided and the said order was not challenged before high forum, as such the same attained finality---Moreover, said letter regarding decision of Cabinet Division was quite silent with regard to judicial orders, as such the same had no value in the eye of law--- In the circumstances, the prayer sought by PAF for handing over the case/trial of accused to Military/Martial-Court would be violative of the principle "nemo debet esse judex in propria sua causa" (no one should be judge of his own cause)---Petition filed by PAF was dismissed, in circumstances. Shah Zaman and another v. Federal Government and another 1995 SCMR 464; Muhammad Azam v. The Sessions Judge, Jhelum and 7 others 1980 PCr.LJ 999; Brigade Commander Headquarters Field Command NLC, Karachi v. The State 1996 MLD 69; Khalil Ahmed v. District and Sessions Judge, Rawalpindi and another 1990 PCr.LJ 1744 and Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court PLD 1992 SC 72 ref. Government of Sindh and others v. Messrs Saif Textile Mills Ltd. and 6 others 2003 SCMR 265; Federation of Pakistan through Secretary Ministry of Communication Islamabad and another v. Shuja Sharif and others 2023 SCMR 129; Government of Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan PLD 1993 SC 375; Muhammad Ishaq and others v. Zeal Pak Cement Factory Ltd. 2024 SCMR 628; Mst. Yasmeen Akhtar and others v. The Government of Sindh through Chief Secretary and 3 others 2020 PLC (C.S.) 1249 and Imran Ahmad Khan Niazi v. Federation of Pakistan and others PLD 2024 Islamabad 155 rel. (b) Illegal Dispossession Act (XI of 2005)--- ----Ss. 3 & 7---Illegal dispossession---Interim possession of the property---Scope---Trial Court allowed application for handing over the interim possession under S. 7 of the Illegal Dispossession Act, 2005 to the complainant---Validity---From perusal of S. 7 of the Illegal Dispossession Act, 2005, it appeared that the Court dealing with the application under S. 7 of Illegal Dispossession Act, 2005, was authorized and had ample power to grant 'interim relief' under the said provision of law during the pendency of main application in favour of owner/occupier if during trial the Court was satisfied that the accused was prima facie not in 'lawful possession'---While dealing the matter, the conduct of the applicant/accused was also to be taken into consideration---Complaint under the Illegal Dispossession Act, 2005, was filed by complainant/respondent in the year 2018---Vide order dated 14.07.2018, inquiry report was called and after hearing the parties and in view of the inquiry report, Trial Court took cognizance and issued bailable warrants against the proposed accused to appear before the Court and furnish solvent surety of Rs.1 lac.---Letter was also sent by the Court on 28.08.2018 to J.A.G. branch of Pakistan Air Force Headquarter, in respect of the subject case, but the same was not responded to by the J.A.G. branch P.A.F. Headquarter---However, despite that applicant/accused never put his appearance before the Court, nor was represented by any counsel---Instead of appearing before the Trial Court and proceeding with the trial, the applicant/accused moved an application under S. 265-K, Cr.P.C., for his premature acquittal through his advocate which was dismissed and the said order was assailed before the High Court by means of filing a Cr. Misc. Application, which was also dismissed---In the said judgment too the High Court highlighted the conduct of the applicant/accused---Trial Court had also highlighted the unwarranted conduct of the applicant/accused in pursuing the case---In fact, the complaint under S. 3 of Illegal Dispossession Act, 2005, was filed in the year 2018 and about 06 years had passed, however, the matter could not be disposed of on account of unwarranted conduct and attitude of the proposed accused---Record showed that after taking cognizance, Trial Court repeatedly issued summons to the accused but he deliberately failed to appear---When the proceedings under Ss. 87 & 88, Cr.P.C., were initiated against the accused then he appeared and surrendered before the Trial Court---Charge was framed on 30.11.2022 and the evidence of complainant and one witness had been recorded---From perusal of the record it also appeared that all the registered documents relating to the subject property had been verified in favour of the complainant---Verification reports depicted that all such documents produced by the complainant were genuine and had been issued from the concerned office/department---Provisions of S. 7 of Illegal Dispossession Act, 2005, could be pressed, if during the Trial Court was satisfied that the accused/respondents were in unlawful possession---Petition filed by accused was dismissed, in circumstances. Atta Rasool and 3 others v. Haji Muhammad Rafique and 2 others 2019 PCr.LJ 1023 and Noorullah v. Muhammad Farrukh and 4 others 2023 YLR Note 9 rel. Kashif Hanif for Applicant (in Criminal Revision Application No. 25 of 2024) and for Respondent No.1 Criminal Revision Application No. 229 of 2024. Khaleeq Ahmed, Deputy Attorney General for Pakistan, Rafique Ahmed Rajori, Additional Advocate General, Sindh and Zahoor Shah, Addl. P.G. Sindh for the State. Amjad Hussain Qureshi for Pakistan Air Force JAG for the Applicant (in Criminal Revision Application No. 229 of 2024). Umar Farooq for Respondent (in Criminal Revision Application No. 25 of 2024) and for Respondent No. 2, (in Criminal Revision Application No. 229 of 2024). Date of hearing: 1st March, 2025.

Summary: (a) Malicious prosecution--- ---Pre-requisites---Remedy for wrongful implication through false FIRs---Suit for damages---Frivolous litigation discouraged---Award of damages justified ---Un-crossed examination in chief ---No evidentiary value---A suit for damages for malicious prosecution was filed by the respondent against the petitioner which emanated from FIR No.133/2018 lodged under Ss.420/448/506-B, P.P.C.---Suit was decreed for Rs.12 million---Appeal against the decision of Trial Court was dismissed---The legal point for determination in the whole proceedings was as to "whether the test for malicious prosecution was correctly applied by the courts below" ---Held: The Supreme Court has time and again disparaged the tendency of frivolous litigation---Lodging of false FIRs has unfortunately become a norm which can only be curbed by awarding damages in favour of the individual who was wronged---Admittedly an FIR No. 133/2018 was initiated by the appellant under Ss.420/448/506-B, P.P.C.---It was also admitted that the prosecution ended in the favour of respondent---It was evident from perusal of the judgment of the Trial Court in the criminal case that the Trial Court specifically adjudicated that it was a "case of no evidence" and no evidence had been given by the appellant to connect the respondent with the alleged offence---It was also evident from the examination and perusal of the record that the appellant effected appearance in the suit, filed written statement and also filed his affidavit-in-evidence, however, the appellant despite being given repeated chances failed to appear for his deposition and only restricted himself to the cross-examination of the respondent---The argument of the counsel that the appellant was condemned unheard, was unwarranted for the reason that the said appellant participated in the proceedings and subsequently even cross-examined the respondent---The examination in chief filed by the appellant, in the absence of him being subjected to the test of cross-examination, was rightly not considered by the Trial Court and therefore not taken into adjudication---No substantial error or defect could be pointed out in the impugned judgment---The appeal was dismissed, in circumstances. Abdul Khameed v. Muhammad Shabbir PLD 2021 Islamabad 405 ref. (b) Civil Procedure (V of 1908) --- ---S.100---Second Appeal, filing of---Scope---Interference in concurrent findings under S.100, C.P.C.---Re-appraisal of evidence under Second Appeal---Preference to be given to findings of Appellate Court over findings of Trial Court ---Right to file second appeal can be set into motion only when the decision is contrary to law; fails to determine some material issue of law, or there is a substantial error or defect in the procedure provided by the Code or law---In case of inconsistency between findings of Trial Court and Appellate Court the findings of latter must be given preference in the absence of any cogent reason to the contrary---Concurrent findings cannot be interfered with under S.100, C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence---Moreover, re-appraisal of evidence on record by the second Appellate Court is not permissible under S.100, C.P.C. Bahar Shah v. Mansoor Ahmed 2022 SCMR 284 and Faqir Syed Anwaruddin v. Syed Raza Haider and others PLD 2025 SC 31 rel. Kulsoom Khan for Appellant. Abdul Baqi Lone and Sannia Khalique for Respondent. Date of hearing: 26th March, 2025. Judgment Muhammad Jaffer Raza, J.--- The instant IInd Appeal has been filed against the Judgment dated 23.05.2024 ("Impugned Judgment") passed by the Appellate Court in Civil Appeal No. 50/2024 wherein the said appeal was dismissed after modification of Judgment and Decree dated 20.01.2024 in Suit No.944/2020. 2. Brief facts of the case are that Suit No. 944/2020 was filed for the following relief: - "It is accordingly prayed in the interest of justice, equity and good conscience that this Honourable Court may be pleased to decree the above suit of plaintiff for recovery of Rs.12 Million as damages for malicious prosecution in favour of the plaintiff and against the defendant." 3. The suit was filed for damages for malicious prosecution emanating from FIR No.133/2018 lodged at P.S. Clifton, Karachi under Sections 420/448/506-B, P.P.C. Thereafter, the learned trial Court passed the Judgment and Decree dated 20.01.2024 decreeing the suit of the Respondent as prayed for Rs.12 million. Thereafter, First Appeal was filed against the said judgment bearing No. 50/2024 and the same was dismissed vide Impugned Judgment dated 23.05.2024. 4. Learned counsel for the Appellant states that both the judgments are legally unsound and are liable to be set aside in Second Appeal. He has argued that the suit for malicious prosecution has been filed with mala fide intent by the Respondent and the trial Court Judgment decreeing the suit as well as Judgment of the Appellate Court modifying the Judgment and decree are liable to be set aside. He has further argued that dispute was primarily of a civil nature and even the reduction of damages to Rs.5 million by the Appellate Court is unwarranted. Further he has argued that test of malicious prosecution as laid down in the judgment of the supreme reported as Muhammad Yousuf v. Abdul Qayyum 1 (sic) and Subedar (Retd.) Fazale Rahim v. Rab Nawaz 2 has not been made out by the Respondent and the suit was liable to be dismissed with exemplary cost. Learned counsel relied upon the following judgments: - i. Rasheeda Begum v. Rauf Subhani 3 ii. Asghar Ali v. Muhammad Asghar 4 iii. Fida Hussain Warraich v. Syed Zarfan Hussain Shah 5 iv. Abdul Rashid v. The State Bank of Pakistan 6 v. Muhammad Nawab Khan v. Bashir Sher 7 5. Conversely, learned counsel for the Respondent has argued that test of malicious prosecution has correctly been laid down in paragraph number 19 of the Judgment of the trial court as follows: - "19. Though, the claim of plaintiff remained un-rebutted failed to controvert the same through his evidence yet in order to prove the claim of malicious prosecution, the heavy burden lies upon the shoulders of the plaintiff. In order to maintain suit for malicious prosecution, the Superior Courts have set certain guiding and mandatory ingredients. Following are the elements of tests for malicious prosecution. 1. ii. That the plaintiff was prosecuted by the defendant; That the prosecution ended in plaintiff's favour; iii. That the defendant acted without reasonable and probable cause; iv. That the defendant was actuated by malice: v. That the proceedings had interfered with plaintiffs liberty and has also affected their reputation, and vi. That the plaintiff had suffered damages. 20. In the light of above set principles now it is to be seen whether the case of the plaintiff comes within the above parameters. The record transpired that defendant lodged FIR No. 133/2018 under sections 420/448/506-B, P.P.C. against the plaintiff. The plaintiff was arrested and subsequently released on bail vide order dated 11-06-2018. The plaintiff then faced a protracted trial before the Judicial Magistrate-XXII, Karachi South. After framing of charge, the prosecution examined 06 witnesses including complainant of the case i.e. defendant Abdul Khalique. Subsequently, after statement of accused/plaintiff and hearing of parties, the trial Court acquitted the plaintiff under section 245(i) Cr. P.C vide judgment dated 02-12-2019. In the order of acquittal certain observations were recorded and it is relevant to reproduce the same which are as under:- 'It is clear from the above that the prosecution has failed to adduce evidence against the present accused as alleged. This is case of no evidence. In criminal trial the burden to prove the charge is always lies on the prosecution to prove the case beyond any shadow of doubt, but prosecution has failed to prove its case against the present accused. Point Nos. 1 and 2 is consequently answered is negative.' Point No. 03. In the light of above discussion, keeping in view the facts and circumstances, the accused person is acquitted from the case/charge under section 245(i) Cr.P.C) as no evidence has come on record to connect him with the offence. Accused namely Imran Hyder son of Meer Muhammad Khan is present on bail, his bail bond stands cancelled and surety is discharged from his liability.' " 6. It was also argued by learned counsel that the judgment of the trial Court is legally sound and the Respondent remained incarcerated for over five (05) days due to lodging of false FIR against the Respondent. He has further stated that FIR was lodged on 05.06.2018 and the Respondent was acquitted of the charge in criminal case No.2500/2018 on 02.12.2019, after having faced the rigors of prosecution for approximately eighteen months. Thereafter, an acquittal Appeal No. 31/2021 was filed which was also dismissed. He has further argued that grounds taken by the Appellant in the instant appeal were not taken earlier in First Appeal No. 50/2024 and in this regard has referred to the memo. of appeal which was filed before the learned Appellate Court. He has contended that the circumstances of the Appellant and his financial limitations to comply with the judgment and decree of the Court cannot be a ground for reversal of the Impugned Judgment. He has lastly argued that there are concurrent findings of the Courts below and the scope of Section 100, C.P.C. is limited. The Court, it was argued, can only set aside concurrent findings in very exceptional circumstances, which are absent in the present case. 7. The points for determination as required under Order XLI Rule 31 are set out as follows: - i. Whether the test for malicious prosecution was correctly applied by the courts below? ii. Whether the Impugned Judgment suffers from substantial error or defect? 8. Both the points are intertwined and will be dealt with collectively. 9. I have heard learned counsel for the parties and perused the record. It is evident from perusal of the record that admittedly an FIR No. 133/2018 was initiated by the Appellant under Sections 420/448/506-B, P.P.C. It is also admitted that the prosecution ended in the favour of Respondent. The relevant excerpt of the acquittal order passed by the trial Court has already been reproduced above as part of the judgement passed in the civil suit. 10. It is evident from perusal of the judgment of the trial Court in the criminal case, that the learned trial Court specifically adjudicated that it was a "case of no evidence" and no evidence has been given by the Appellant to connect the Respondent with the alleged offence. It is also evident from the examination and perusal of the record that the Appellant effected appearance in the suit, filed written statement and also filed his affidavit-in-evidence, however, the Appellant despite being given repeated chances failed to appear for his deposition and only restricted himself to the cross-examination of the Respondent. The argument of the learned counsel that the Appellant was condemned unheard, are unwarranted for the reason that the said Appellant participated in the proceedings and subsequently even cross-examined the Respondent. The examination in chief filed by the Appellant, in the absence of him being subjected to the test of cross-examination, was correctly not considered by the trial Court and therefore not taken into adjudication. 11. The Hon'ble Supreme Court has time and again disparaged the tendency of frivolous litigation. Lodging of false FIRs has unfortunately become a norm which can only be curbed by awarding damages in favour of the individual who was wronged. This tendency was observed by the Islamabad High Court in the case of Abdul Khameed v. Muhammad Shabbir 8 in the following words:- "14. The rational for conferring equitable jurisdiction upon courts is rooted in the maxim "Ubi jus, ibi remedium" (where there is a right, there is a remedy). As is evident from the principles settled in relation to malicious prosecution damages are imposed on the one who abuses the process of law and to produce consequences for another and settle past scores. Subjecting a person to malicious prosecution can interfere with the right to liberty guaranteed under Article 9, the right to dignity under Article 14 and the right to be treated in accordance with law guaranteed under Article 4 of the Constitution. Such prosecution inflicts financial hardship, litigation cost, mental anguish as well as loss of reputation on the person who is on its receiving ends having been falsely implicated in a matter. 15. In any just society such loss cannot be allowed to lie where it falls. A person who is the immediate cause of inflicting such loss and hardship on a fellow citizen ought to be held accountable for his actions. While the plaintiffs in a suit for malicious prosecution cannot recover on the basis of humiliation suffered at the hands of police or prison authorities or inmates, but he has a right to be compensated by the person whose false accusation resulted in him being incarcerated and made him suffer the debasing experience that comes along. The judgments mentioned above have held that even where no damages are quantified by the plaintiff a court has discretionary jurisdiction to grant damages for loss of liberty, dignity and mental anguish that is reasonably proportionate to what the plaintiff can be presumed to have suffered. 16. There can be no objective standards for estimating such injuries but an inference can be drawn that someone who has been subjected to malicious prosecution has suffered loss of time, litigation expenses, mental suffering due to being subjected to legal challenge that can produce penal consequences for him and in the case of being arrested and put behind bars, loss of his right to liberty and dignity and consequent reputational harm. The superior courts have upheld imposition of damages in case of malicious prosecution on the basis the rule of thumb which aims to quantify damages such that they are reasonably proportionate to the loss suffered. 17. The loss of a person's liberty and dignity cannot be measured in money terms. But our Constitution - in fact all human rights charters - guarantee such rights. The Constitution has established the judicature and mandated it to act as a guardian of fundamental rights. And it is an obligation of the courts to ensure that irrespective of a person's station in the society and prevalent social and economic inequality, the principle of legal equality between citizens is upheld and no one is allowed to wield the law as a weapon to settle scores with another by abusing legal processes. The courts of law therefore cannot be nonchalant when seized of a matter involving malicious prosecution of one citizen at the hands of another." (Emphasis added) 12. It is trite law that right to file Second Appeal provided under section 100 of C.P.C., can be set into motion only when the decision is contrary to law; fails to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law. The principles governing the scope of Section 100, C.P.C. have been expounded by the Honourable Supreme Court in the case of Bahar Shah v. Mansoor Ahmed 9 in the following words: - "10. Now we would like to pay attention to the niceties of a right to file Second Appeal provided under section 100 of C.P.C, which can be set into motion only when the decision is contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law. In the case of Madan Gopal v. Maran Bepari (PLD 1969 SC 617), this Court held that if the finding of fact reached by the first Appellate Court is at variance with that of Trial Court, such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Appellate Court. In another case reported as Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1), this Court held that in case of inconsistency between the trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. 11. The first Appellate Court thoroughly evaluated and mull over the evidence adduced by the parties and reached to a just and proper conclusion that the appellants failed to prove and justify their defence pleas and judgment of Trial Court was not based on correct exposition of law and facts, whereas the learned High Court in second appeal has also gauged and assessed the overall evidence perfectly and rightly maintained the judgment of first Appellate Court." 13. More recently the Honourable Supreme Court in the case of Faqir Syed Anwaruddin v. Syed Raza Haider and others 10 held as under:- "It is settled law that concurrent findings are not interfered with under section 100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence. It is also settled law that reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under section 100 of the C.P.C. The High Court had rightly dismissed the regular second appeals filed by the defendants on the touchstone of the aforementioned principles." 14. The learned counsel has been unable to show any substantial error or defect in the Impugned Judgment. He has conceded during the course of arguments, that the Respondent has been acquitted in the FIR lodged by the Appellant and only seeks a reduction of damages awarded on the basis of his financial constraints. It is noted that the learned Appellate Court has already reduced the quantum of damages awarded considerably, and such reduction has not been impugned by the Respondent. Therefore, I see reason to reduce the quantum of damages further as the learned counsel was unable to show any substantial error or defect in the Impugned Judgment. 15. Reliance placed by the learned counsel on Rasheeda Begum (surpa) does not advance his cause. The said judgment pertained to a suit for possession and the learned court dismissed the second appeal on the grounds which have already been discussed hereinabove. 16. The reliance of the learned counsel for the Appellant on the cases of Muhamad Nawab Khan (supra), Abdur Rashid (supra), Fida Hussain Warraich (supra), Asghar Ali (supra), Muhammad Yousuf (supra), Fazale Rahim (supra) does not advance the case of the Appellant. All the judgements above, repeatedly laid down the test for malicious prosecution and the test as laid down by the learned trial court was in consonance with the test laid down in the above noted judgments. 17. For the aforesaid reasons, instant Second Appeal merits no consideration and is dismissed with no order as to cost. Impugned Judgment and decree dated 23.05.2024 is upheld. UN/A-34/Sindh Appeal dismissed.

Summary: (a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9(1)---Suit for recovery filed by Bank---Competency of institutor, objection against---As per S. 9(1) of Financial Institutions (Recovery of Finances) Ordinance ('the Ordinance 2001'), when a customer or financial institution defaults on any finance obligation, the aggrieved party may institute a suit in the Banking Court by presenting a plaint verified on oath; in the case of a financial institution, this verification may be executed by the Branch Manager or another officer duly authorized by power of attorney---Record demonstrates that the plaintiff-Bank had nominated and appointed its two officers (designation of whom are duly described) as Attorneys to conduct, carry on and represent the bank in all forms of litigation---Present suit was instituted through the said persons, with the Power of Attorney available in the file, confirming that present suit had been properly instituted through a competent person---The defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. First Dawood Investment Bank Ltd. v. Bank Islami Pakistan Ltd. 2019 SCMR 1925; The Bank of Punjab through Branch / Chief Manager v. Messrs Khan Unique Developers (Pvt.) Ltd. through Chief Executive Officer and 9 others 2016 CLD 29; Ehsan-Ul-Haq v. MCB Bank Limited through Manager 2016 CLD 1874; Allied Bank Limited through Principal Officers v. Messrs S.G. Polypropylene (Pvt.) Limited through Directors/Chief Executive and 5 others 2018 CLD 199; Mian Ashiq Hussain and others v. Faysal Bank and others 2019 CLD 152; Messrs Bahawalpur Cotton Company v. United Bank Limited 2021 CLD 434; The Bank of Khyber through Branch Manager v. Messrs Kashmir Sugar Mills Limited through Chief Executive and others 2021 CLD 1220 ref. (b) Bankers' Books Evidence Act (XVIII of 1891)--- ----S. 2(8)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9(1)---Suit for recovery filed by Bank---Statement of Account, attached with the plaint, not duly verified---Objection that the Statement of Account, attached with the plaint, is not duly verified as required under the provisions of the Bankers Books Evidence Act, 1981---Validity---Statement of Account provided by the Bank, which bears the proper stamps and initials of the authorized bank official, besides carrying a certain note regarding being "Certified and verified on Oath", satisfies the legal requirements stipulated under S. 2(8) of the Bankers' Books Evidence Act, 1891---The Statement of Account submitted by the plaintiff-Bank in this suit carries such an endorsement/certification; therefore, the Statement of Account is duly certified in terms of afore-referred provisions of law---On the other hand, the defendants have not attached any counterstatement to controvert said Statement of Account---Consequently, their mere unsubstantiated allegations, unsupported by legal authority or documentary evidence, have no legal merit or foundation---Thus ,the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. Muhammad Saleem Khan v. MCB Bank Limited 2020 SCMR 984; Habib Bank Limited through Authorized Attorney v. Haidri Homes through Partners and 3 others 2012 CLD 2016; Messrs Habib Metropolitan Bank Limited v. Messrs Faizan Ali and Company (Pvt.) Ltd. through Chief Executive Officer and others 2017 CLD 1583; First Dawood Investment Bank Limited v. New Allied Electronics (Pvt.) Limited and another 2018 CLD 250; Trust Investment Bank Limited v. The Bank of Punjab 2021 CLD 1430 and MCB Bank Limited through Authorized Officer v. Messrs City Steel UAE Mills (Pvt.) Ltd. through Chief Executive and others 2024 CLD 387 ref. (c) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9(1)---Suit for recovery filed by Bank---Defendant filing to produce favourable supporting documents---Effect---Stance taken by the defendants / customers is that they have not availed the alleged Finance Against Trust Receipt (FATR ) and Working Capital Loan (WCL) finance facilities, besides disbursement of Rs.41 Million under FATR facility---Validity--- In their leave application, the defendants disputed the availing of FATR and WCL finance facilities, except disbursement of Rs.41 Million under FATR facility, however, said stance lacks supporting documentary evidence---Defendants have also contested the demanded mark-up under the said facilities but have failed to identify even a single entry demonstrating how the mark-up was inconsistent with the Statement of Account---Where a defendant challenges the disbursement claim made by the plaintiff bank, he must rely on his account statement to highlight the inaccuracies and fallacies of the claim, rather than putting up just a simpliciter denial---Defendant-Company, in its financial statement for the year 2019, submitted with SECP, showed an amount of Rs.400 Million as outstanding against the defendant-Company---A defendant cannot contest an amount that has been duly acknowledged in the financial statement and audited accounts---Audited financial statement of the defendant-Company is very strong corroborative evidence against it---Thus ,the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. National Bank of Pakistan v. Chenab Limited and others 2017 CLD 1539; Messrs Colony Textile Mills Limited and another v. First Punjab Modaraba 2021 CLD 1212 and Habib Bank Limited v. Orient Rice Mills Ltd. and others 2004 CLD 1289 ref. (d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9(1)---Suit for recovery filed by Bank---Mark-up, payment of---Calculation---Scope---Objection taken by the defendant-Company was that entries of the Statement of Account were not corroborating the alleged claim of mark-up in respect of availed finance facilities---Validity---The documents annexed with the plaint negate said contention of the defendant-Company---The Statement of Account and the Financing Statement duly reflect the details of due mark-up as well as adjusted mark-up---Mark-up is to be paid by the customer on the availed finances as per the agreement executed between the parties---Thus, the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. First Women Bank Limited through Attorneys v. Messrs Bita Textile Mills (Pvt.) Ltd. through Directors and 6 others 2018 CLD 913 and Messrs U.I.G (Pvt.) Ltd. through Director and 6 others v. Bank Al-Falah Ltd. 2015 CLD 452 ref. (e) Qanun-e-Shahadat Order (10 of 1984)--- ----Arts. 102 & 103---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.9(1)---Suit for recovery filed by Bank---Conflict between oral evidence and documentary evidence---Defendant failing to produce favourable supporting documents---Effect---Objection of the defendant/Company that the claim of Finance Against Trust Facility (FATF) is not supported by necessary documents particularly 'Trust Receipts"---Validity---Said contention of the defendant-Company was belied by the relevant Trust Receipt (dated 10.04.2019), which unequivocally established that FATR facility was availed by the defendant-Company---Indubitably, in terms of Arts. 102 & 103 of Qanun-e-Shahadat, 1984, if, there is a conflict between oral evidence and documentary evidence, the documentary evidence available on record is to prevail over the oral evidence---Thus, the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. Tassaduq Hussain Shah and others v. Allah Ditta Shah and others 2023 SCMR 1635; Muhammad Akbar and others v. Province of Punjab through DOR, Lodhran and others 2022 SCMR 1532; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Sher Muhammad v. Muhammad Khalid 2004 SCMR 826 ref. (f) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9(1)---Suit for recovery filed by Bank---Defendant failing to produce favourable supporting documents---Effect---Objection taken by the defendant (Company / Customer) that the Letters of Credit (LCs) mentioned in the plaint were different and not the ones which the plaintiff-Bank allegedly claimed to have retired---Validity---No supporting material was submitted by the counsel for the defendant-Company to substantiate this claim---It is axiomatic that the Court cannot grant relief based merely on unsubstantiated assertions---It is a fundamental principle of evidence that parties seeking judicial remedy must provide adequate documentation or testimony to validate their contentions---In the absence of any supporting material, the Court has no alternative but to reject such unfounded assertions as being devoid of merit---Thus, the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. (g) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9(1)---Suit for recovery filed by Bank---Defendant failing to produce favourable supporting documents---Effect---Stance taken by the defendants (Company / Customer) was that they were not liable to make payment of the suit amount as the alleged documents showing liability of the defendants had been engineered by the plaintiff-Bank---Validity---The defendants Nos. 2 to 4, being Directors of the defendant-Company, furnished personal guarantees in favor of the plaintiff-Bank---Said defendants have failed to produce any documentation demonstrating that the personal guarantees were fake, fabricated, or bore forged signatures; consequently, their mere vague denials were insufficient to absolve them of their liability---Even when a contract becomes unenforceable against the principal debtor, the guarantor remains bound by the surety he had executed, unless there exists a specific covenant to the contrary and a surety/guarantor cannot be permitted to repudiate the original finance facility---Furthermore, jurisprudence has consistently recognized that a bank guarantee constitutes an autonomous contract that imposes an absolute obligation to fulfill its terms---Payment under such a guarantee becomes due upon the occurrence of the specified contingency that renders the guarantee enforceable---Unsubstantiated allegations by the defendant-Company regarding the non-execution of financial documents lack documentary evidence---The defendants have not specifically denied executing the mortgage deeds, Memorandum of Deposit of Title Deeds, or other security documents---Furthermore, the Defendants have not explicitly denied that the amount claimed by the plaintiff-Bank was credited to the principal debtor's account---The defendants have also failed to challenge these documents before any legal forum---Therefore, the evasive denial of defendants of executing the financial documents does not entitle them to leave to defend the suit---Conversely, the plaintiff-Bank's claim is supported by numerous documents present on the record, as discussed above, which cannot be discarded without compelling documentary evidence in rebuttal---Thus ,the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. Messrs Huffaz Seamlen Pipe Industries Ltd. and 2 others 2002 SCMR 1419; Sahara Trading International (Pvt.) Ltd. and others v. Bank Alfalah Ltd. PLD 2004 SC 925; Messrs State Engineering Corporation Ltd. v. National Development Finance Corporation and others 2006 SCMR 619; Bolan Bank Limited through Attorneys v. Baig Textile Mills (Pvt.) Ltd. through Chief Executive and 6 others 2002 CLD 557; Standard Chartered Bank (Pakistan) Ltd. through Authorized Attorney v. Needle Point (Pvt.) Ltd. through Chief Executive and others 2016 CLD 2066; Adamjee Polycraft Limited and 3 others v. National Investment Trust Limited 2017 CLD 380 and Mian Furqan Idrees and others v. JS Bank Limited and others 2022 CLD 1395 ref. (h) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9(1)---Suit for recovery filed by Bank---Mark-up or interest---Scope---Objection of the Defendants (Company) was that the amounts mentioned under the head of interest could not be a part of the claim of plaintiff-Bank as this term was alien to the alleged finance agreements and so-called finance facilities---Validity---In the Statement of Account, certain outstanding amounts have been claimed under the title of interest, however , the plaintiff-Bank (during arguments) clarified that this was merely a technical error and the amounts should be construed as mark-up---Court found said clarification sufficient and did not consider it a valid ground for dismissal of the plaintiff-Bank's claim---Thus , the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit , filed by Bank, was decreed. (i) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----Ss. 10(1), 10(4), 10(5), 10(6) & 10(11)---Suit for recovery filed by Bank---Application for leave to defend, acceptance / rejection of---Defence to be taken by customer---Requirements---Scope --- Under the provisions of Ss.10(4) & 10(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, ('the Ordinance 2001') the defendants were obligated to provide a clear and specific response to the Bank's Statement of Account, in their application for leave to defend, besides providing details of their own accounts along with the specific amounts they dispute---However, the necessary documents, as mandated under S. 10(5) of the Ordinance, 2001, were not annexed with the leave application---Said failure to plead the requisite details attracts the consequences prescribed under Ss. 10(1) & 10(6) of the Ordinance, 2001, warranting the rejection of the application for leave to defend and the passing of judgment and decree in favour of the plaintiff-Bank under Ss. 10(1) & 10(11) of the Ordinance, 2001---The defendants have failed to comply with the requirements of Ss. 10(4) & 10(5) of the Ordinance, 2001---Thus , the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit, filed by Bank, was decreed. Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. PLD 2012 SC 268; Habib Metropolitan Bank Limited through Attorney v. Century 21 Textile and Sportswear (Pvt.) Limited and 3 others 2014 CLD 729; Silkbank Limited through Authorized Persons v. Messrs AZM Chemical Company through Proprietor and 5 others 2014 CLD 1526 and Al-Madina Aluminium Work and others v. Habib Metropolitan Bank 2020 CLD 892 ref. (j) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9(1)---Suit for recovery filed by Bank---Application for leave to defend, rejection of---Ancillary / miscellaneous application (s) filed by defendant prior to the grant of leave---Maintainability---Defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed--- Since, application for leave to defend filed by defendants was dismissed, therefore, all the (four) miscellaneous applications filed by defendants, were also dismissed being not maintainable---Prior to the grant of leave to defend, a defendant cannot seek adjudication of any rights of defence as the law expressly prohibits consideration of a defendant's defence before leave is granted and prescribes a specific procedure under which any defence-whether raising legal or factual controversy-may only be entertained after leave to defend has been granted---Therefore, any ancillary application filed prior to the grant of such leave is legally untenable---A defendant could not file any ancillary or interlocutory application unless such defendant was allowed by the Court to defend the suit---Thus , the defendants failed to raise any factual defence that would necessitate the recording of evidence---Accordingly, the defendants' application for leave to appear and defend the suit was dismissed---Suit , filed by Bank, was decreed. Messrs Waheed Corporation through Proprietor and another v. Allied Bank of Pakistan through Manager 2003 CLD 245 and Sheikh Muhammad Usman v. Judge Banking Court No.1, Lahore 2015 CLD 257 ref. Rizwan Rasool for Plaintiff. Muhammad Imran Malik for Defendants. Date of hearing: 26th March, 2025.

Summary: (a) Exit from Pakistan (Control) Ordinance (XLVI of 1981)--- ----S. 2---Passports Act (XX of 1974), Ss. 3 & 8---Passports Rules, 2021, R. 23---Removal of name sought from Exit Control List (ECL) on medical grounds---Right to travel---Fundamental rights, protection of---Mere criminal involvement does not justify ECL placement---Petitioner aged 85-yearswas suffering from serious health conditions and sought removal of his name from the Exit Control List (ECL) to travel abroad for urgent medical treatment---His name had been placed on the ECL in connection with a NAB Reference relating to alleged financial misappropriation in a housing society---The petitioner argued that his continued placement on the ECL was arbitrary, lacked legal basis and violated his fundamental rights under Arts. 4, 9 & 15 of the Constitution---The case was later transferred to Anti-Corruption Establishment and NAB no longer held jurisdiction---Question for determination before the High Court was as to "Whether the placement of the petitioner's name on the Exit Control List (ECL) by the Ministry of Interior, based solely on NAB's request and without independent justification or adherence to legal procedure, violated the petitioner's fundamental rights?"---Held: The superior courts of the country have consistently ruled against belated ECL placements, especially when individuals had previously travelled freely---The case reported as 2017 SCMR 1179 clarified that mere registration of a criminal case was insufficient for ECL placement and reaffirmed that restrictions must align with the Exit from Pakistan (Control) Rules, 2010---Further the Supreme Court emphasized that executive discretion was not absolute and upheld High Court decisions striking down unlawful restrictions---Consequently this being settled law, mere criminal involvement did not justify ECL placement---Citizens had a fundamental right to liberty under Art. 9, which, combined with Arts. 4 & 15, included the right to travel, unless restricted by a law enacted in the public interest---Moreover, mere registration of a crime did not constitute a "public interest" justification for restricting a person's liberty---Therefore, the respondent's actions in placing the petitioner's name on the ECL based on the criminal case were inconsistent with established legal principles---Ministry of Interior's decision to place the petitioner's name on the ECL was deemed arbitrary and automatic---This action was solely driven by instructions from the National Accountability Bureau (NAB), without independent assessment or a reasoned order from the Ministry---Consequently, the Ministry failed to demonstrate a legitimate basis for exercising its authority under S. 2(3) of the Exit from Pakistan (Control) Ordinance, 1981---This lack of due process resulted in a violation of the petitioner's fundamental rights, specifically Arts. 4, 9, and 15 of the Constitution---Furthermore, it unjustly prevented the petitioner from seeking medical treatment---Therefore, because of respondents' actions placing the petitioner on the ECL, barring his international travel, and removing him from the flight, contempt notice was served upon the delinquent officials, as their actions were arbitrary, invalid from the beginning (void ab initio), and beyond their legal authority (without jurisdiction)---Respondents' actions in placing the petitioner's name on the Exit Control List (ECL), or Passport Control List (PCL), if any, were unlawful, therefore, same were overturned by directing the respondents to immediately remove the petitioner's name from the ECL---Constitutional petition was allowed, in circumstances. Wajid Shamsul Hassan's case PLD 1997 Lahore 617 and Ayyan Ali's case 2017 SCMR 1179 rel. (b) Passports Act (XX of 1974)--- ----Ss. 3 & 8---Passports Rules, 2021, R. 23---Regulatory framework of foreign travel for Pakistani citizens---Recalling, cancellation and impounding of passports---Essence and scope---Issuance of show-cause notice and opportunity of hearing before impounding, requirement of---Exception---Pakistani citizens' travel is regulated by the Passports Act of 1974 and its related rules---Section 3 of the Passports Act, 1974 mandates a valid passport for foreign travel, while S. 8 thereof grants the Federal Government broad authority to manage passports, including recalling, cancellation, and impounding---Section 8 of the Act, 1974 generally requires a show-cause notice before these actions, except in national security cases---A review process is available for such cases---Rule 23 of the Passports Rules, 2021 outlines the procedures for impounding passports, specifying authorized officials and grounds for action, including security threats, avoiding prosecution, and criminal activities---Impounded passports are to be kept in custody, and failure to surrender a passport upon requisition is punishable---Section 8 of the Passports Act, 1974, empowers the Federal Government, through a Secretary or authorized officer, to recall passports for cancellation, impoundment, or confiscation---This requires a show cause notice to the passport holder, as per subsection (2), however, subsection (3) exempts the government from providing notice or a hearing if the passport holder is deemed to be involved in subversive activities or actions detrimental to Pakistan's interests or foreign relations---Subsection (4) then grants the affected person the right to challenge the decision. Syed Abul Aala Maududi's case PLD 1969 Lah. 908 and Syed Sharifuddin Pirzada's case PLD 1973 Kar. 132 ref. (c) Exit from Pakistan (Control) Ordinance (XLVI of 1981)--- ----S. 2---Foreign travel, restriction on---Inclusion of name in Exit Control List (ECL)---Ministry of Interior passing the order restricting foreign travel of Pakistani citizen---Legality---Power, authority and jurisdiction of Ministry of Interior---Power to restrict travel under the Exit from Pakistan (Control) Ordinance, 1981 resides solely with the Federal Cabinet and not the secretary of the Ministry of Interior---Regardless, the fundamental rights of the people of Pakistan are beyond any form of curtailment. Mustafa Impex's case PLD 2016 SC 808 rel. (d) Exit from Pakistan (Control) Ordinance (XLVI of 1981)--- ----S. 2---Constitution of Pakistan, Arts. 4, 9 & 15 ---Placing restriction on foreign travel---Inclusion of name in Exit Control List (ECL)---International travel being a fundamental right---Fundamental rights, protection of---Scope---Foreign travel can be restricted despite valid travel documents---Reasons for placing restriction on foreign travel can be withheld---Travel restrictions placed by state must be lawful---Article 4 of the Constitution guarantees legal protection for all---Articles 15, 9 & 4 establish the right to travel, including international travel, as a fundamental right, though it's subject to lawful, reasonable restrictions in the public interest---Arbitrary limitations, like those based on political beliefs, are unacceptable; restrictions must be for genuine national security concerns---Travel is vital for information access and personal liberty, linked to freedom of speech and association---Fundamental rights protect individuals from arbitrary state power and are essential for a free society---Even unenumerated rights integral to named rights are protected---While fundamental rights are crucial, they must be balanced against the State's need to maintain order---The Constitution allows for reasonable restrictions on certain rights in the public interest, but these restrictions must be lawful---The right to travel, a basic human right, is integral to personal liberty---International travel is not merely a convenience but a fundamental right under Art. 9 of our Constitution---Modern society necessitates global mobility for education, employment, and personal fulfillment, making travel a crucial aspect of both liberty and life---Exit from Pakistan (Control) Ordinance, 1981, empowers the Federal Government to restrict travel under S. 2, even with valid documents, if deemed in the public interest---Although S. 2 of the Ordinance 1981 allows restrictions without prior hearings, overriding natural justice, Supreme Court rulings mandate that the Federal Cabinet exercises this authority---While prior hearings are often omitted to prevent immediate departures, the Federal Cabinet can withhold reasons for the ban if deemed against the public interest. Kashif Khan Tanoli for Petitioner. Ms. Wajiha Mehdi, Assistant Attorney General and Ghous Bakhsh, Special Prosecutor NAB for Respondents. Date of hearing: 26th March, 2025.