Summary: Income Tax Ordinance (XLIX of 2001)--- ----Ss. 126A, 127 & 130 [as amended vide Tax Laws (Amendment) Act, 2024]---Constitution of Pakistan, Arts. 4, 10-A & 37(d)---Appellate procedure---Modifications brought in through the Tax Laws (Amendment) Act, 2024---Doctrine of textualism---One forum of appeal taken away---Said amendments / modifications were assailed before the High Court---Held, that Federal Board of Revenue (the "FBR"), as a regulatory body, dealing with all the tax related affairs, is vested with the main goal of tax collection in the country---But now the impugned amendment had placed an extraordinary burden on the High Court---Orders passed by the Commissioners (Appeals) are often sketchy, lacking reasoning and suffer from serious (various) deficiencies, which ultimately results in litigation before the High Court---Due to the deficiencies, the High Court is frequently compelled to remand cases back to the Commissioners (Appeals) for fresh adjudication in accordance with the law---This situation is consuming the valuable time of the High Court, leading to an increase in the backlog of Tax References, thereby adversely affecting the hearing and disposal of other cases---Moreover, the FBR faces no financial barrier in filing Tax References, as it is exempt from paying court fees, whereas an ordinary litigant is required to pay Rs. 50,000 per reference, which results in a clear discrimination against the citizens of Pakistan, depriving them of equal access to justice, which infringes the fundamental rights of public guaranteed under Arts. 4, 10-A & 37(d) of the Constitution---Appellate Tribunal Inland Revenue, being established under a specific law and/or an adjudicating forum, is created with the mandate to decide the appeal/matter within a specific timeframe---Article 37(d) of the Constitution states in equivocal terms that it is the utmost duty of the State to ensure inexpensive and expeditious justice, while the impugned amendment was taking away jurisdiction of one appellate forum hitting the mandate of the Art.37(d) of the Constitution---Thus, the impugned amendment was clogging the arteries of judicial system, obstructing the dispensation of justice and causing undue delays in other cases---Doctrine of Textualism envisages a method of statutory interpretation that a statute should be interpreted according to its plain meaning and not according to the intent of the legislature, the statutory purpose or the legislative history---Thus, Director General, FBR, was directed to appear before the High Court with a detailed reply explaining the background, rationale, policy, objectives and reasons for introducing such amendment, who shall also clarify how this amendment was causing delay in the administration of justice by the High Court, affecting the rights of the public---Petition was adjourned listed. Chenab Flour and General Mills and others v. Federation of Pakistan through Secretary Revenue Division and others PLD 2021 Lah. 343; Ramzan Sugar Mills Limited v. Federal Board of Revenue and others 2021 PTD 1321; Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others 2021 PTD 2126; Rizwan Ali Sayal v. Federation of Pakistan and others PLD 2024 Lah. 54 = 2024 PTD 32 and Service Global Footwear Limited and another v. Federation of Pakistan and others PLD 2023 Lah. 471 ref. Zahid Shafiq and Faisal Rasheed for Petitioners. Sajid Ilyas Bhatti, Additional Attorney General with Arshad Mahmood Malik, Assistant Attorney General. Barrister Raja Hashim Javed, Assistant Advocate-General. Malik Itaat Hussain Awan and Atif Raheem Burki for FBR.

Summary: ----S. 10---Constitution of Pakistan, Art. 199---Constitutional petition---Cyber terrorism---Scope---Blasphemous content ---Petitioners had raised serious questions of public importance with regard to uploading of blasphemous posts on different social media to ridicule holy personage and to mock the principles of Islam---Validity---World is rapidly expanding technologically and so is the case of cybercrime, which has many faces like identity thefts, hacking, financial frauds, blackmailing, pornography and above all, offences against religions---All such felonies are committed more or less conveniently, as the wrongdoer has the advantage of concealing his identity and not to leave his footsteps behind the crime---Task of lifting veil from the identity of such criminals is left to be performed only by investigators having expertise in the cybercrime---Uncontrolled evil of cybercrime has the potential to destabilize our society, which comprises upon believers of different religions, faiths and sects, mostly out of whom are not well educated---High Court directed that guidelines and instructions given in earlier cases be complied by giving them practical effect---High Court further directed that joint action plan submitted by different ministries and departments be strictly followed and a compliance report about the steps taken in pursuance thereof be submitted in High Court---High Court also directed that immediate steps were to be taken for implementing suggestions made in joint meeting of Pakistan Telecommunication Authority and Islamic Ideology Council---High Court further directed that in order to discourage false cases of blasphemy/religious hate material, it was discernible that at regional level a team of Islamic scholars from known Islamic sects be constituted---Each case of blasphemy, sectarian hatred and dissemination of anti-religion hate material be placed before such Islamic scholars so as to exclude possibility of registration of false case on account of some external pressure--Constituting team of Islamic scholars would eliminate possibility of false implication in such cases and at the same time would not let the actual culprits go scot-free---Numerical strength of officials posted in FIA to deal with cybercrimes was not compatible with the number of cases registered. Due to such reason investigations of sensitive cases including blasphemy, financial crimes, blackmailing, etc., were being delayed indefinitely---High Court directed Federal Government to enhance numerical strength of FIA officials and to establish a blasphemy cell separately to deal with relevant cases---High Court further directed Federal Government and Punjab Government to observe 15 th of March of each year as Namoos-e-Rasalat Day and on the given date programs should be arranged for imparting information about the Holy Prophet and for enlightening different aspects of his life, as the General Assembly of United Nations in its 76 th Session had specified 15 th March as day to combat Islamophobia---Constitutional petition was disposed of accordingly. Islamic Lawyers Movement through Tahir Farooq alias Allah Bakhsh Leghari v. Federation of Pakistan through Secretary Establishment, Government of Pakistan, Islamabad and 3 others 2012 CLC 1300; Muhammad Ayoub v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 6 others 2018 PCr.LJ 1133; Lugman Habib and others v. Federation of Pakistan and others 2021 MLD 1633 and Salman Shahid v. The State and 6 others PLD 2017 Isl. 218 rel. Raja Imran Khalil, Jalil Akhtar Abbasi, Shaista Chaudhary, Zartasha Tanveer, Sidra Gulzar and Rao Abdul Raheem for Petitioners. Tayyab Bilal Pakhral, Assistant Attorney General for Pakistan with Ahmad Ishaque Jahangir, Director General FIA, Ayaz Khan, Addl. Director, Sarfraz Khatana, Deputy Director, Suleman Awan, Deputy Director (Investigation) for Respondents. Date of hearing: 18th October, 2024.

Summary: (a) Constitutional petition—Abolition of promotion quota—Maintainability & relief ––AJ&K Interim Constitution, 1974, Art. 44 (writ jurisdiction). Lower-grade Secretariat employees (BS-1 to BS-5) assailed official steps to abolish a pre-existing 20% promotion quota for appointment as Section Clerks (BPS-14). Held, a writ in the nature of mandamus lies where executive/ subordinate legislation is tainted by mala fides, arbitrariness, or results in extinguishing accrued/vested rights and legitimate expectations; Court may interdict such action even while recognizing the executive’s general rule-making competence. Petition maintainable; relief granted. (b) Service law—Promotion quota reserved for Class-IV/low grades—Abrogation on “district-wise utilization” ground—Illegality Official justification that only two districts had numerically benefited from the 20% quota and, therefore, the quota should be withdrawn, held misconceived. Numerical strength or uneven utilization across units is not a lawful yardstick to rescind a quota embedded in statutory rules; such reasoning introduces an impermissible regional classification, offends administrative justice and fair play, and cannot defeat rights already created in favour of the eligible cadre. (c) Rule-making power—Scope & limits—Vested rights and legitimate expectation While the authority competent to frame rules may amend/modify them prospectively in the public interest, it cannot act with mala fides or arbitrarily to take away rights that have accrued under existing rules. The 20% quota had conferred a vested legal right to consideration and generated a reasonable/legitimate expectation; its abolition on the stated premise was ultra vires, arbitrary and void. (d) Separation of powers—No right to dictate policy; judicial review of mala fide action Courts will not compel the executive to make rules “to order,” yet they will strike down proposals/notes and processes that are colourable, discriminatory, or unsupported by rational criteria. The impugned note/letter (Annexure “PF”) proposing abolition failed the test of reasonableness and legality and was liable to be ignored/ set aside. Disposition: Writ petition accepted. Proceedings to abolish the 20% quota for BS-1 to BS-5 Secretariat employees against Section Clerk (BPS-14) posts declared illegal, arbitrary and mala fide; impugned letter (Annexure “PF”) set at naught.

Summary: (a) Service Law — Police (AJ&K) ----AJ&K Interim Constitution, 1974, Art. 44; Police Rules, 1934, Ch. XIII—Rr. 13.6, 13.7, 13.8, 13.9—Writ jurisdiction—Promotion/Training pipeline for constables—List “A-1” → List “B-1” → Lower School Course—Held: Under R.13.7, no constable is eligible for Lower School Course unless his entry in List “B” is approved by the Deputy Inspector-General; selection thereafter follows vacancies and age parameters. Petitioners’ admission to List “A-1” (2009) was undisputed; prolonged official inaction kept them from List “B” notwithstanding repeated representations and earlier assurance—Court, to prevent prejudice from departmental delay, directed holding of List “B” examination for petitioners with age-bar relaxation, and, if qualified, insertion in List “B” followed by nomination to the Lower School Course as per law. (b) Relief against private respondents—Effect of deletion ----Civil procedure—Prayer narrowed—Where petitioners moved to delete private respondents (transferees entered in nominal roll “B” vide 29.07.2021) and the Court allowed deletion, the challenge no longer survived against them; nomination letters 01.11.2021 and 05.11.2021 for Lower School Course in favour of those already in List “B” could not be termed unlawful merely to prefer petitioners who were not yet in List “B.” (c) Seniority/Placement on transfer ----Service law—Transferred/absorbed personnel—Principle reaffirmed: transferees entering a new unit remain below existing incumbents of that unit in the relevant seniority/list, subject to separately maintained seniority lists—Where Reserve Police constables already qualified List “B,” their placement is at the bottom of District Neelum’s List “B.” (d) Age relaxation—No prejudice for departmental delay ----Doctrine—“No one should suffer for the act of the authority”—Where litigation/departmental delay risks the candidates becoming over-age (cf. R.13.7 age ceiling), Court may mould relief to relax the age bar so that eligible candidates are tested on merits—Reliance placed on principle that accrued/valuable rights should not be defeated by administrative omission. Cited Cases: • Rashid Ameer v. Federation of Pakistan 2018 PLC (C.S.) 822 (age relaxation; moulding of relief) (g) Disposition — Writ petition partly allowed. Official respondents directed to: (i) conduct the petitioners’ List “B” examination within two months with age-bar relaxation attributable to official delay; (ii) enter their names in List “B” if they qualify; and (iii) nominate them to the Lower School Course at Police Training School, Muzaffarabad, in accordance with law. Other broader prayers declined in view of petitioners’ deletion of private respondents and their own non-entry in List “B.”

Summary: (a) Guardian and Wards Act, 1890 (VIII of 1890) ----Sections 7 & 17—Custody of minor—Paramount consideration is welfare of minor—Mother’s remarriage—Effect In proceedings under Section 25 of the Guardian & Wards Act, the paramount consideration is the welfare of the minor, not the personal rights of either parent—Mother’s remarriage does not automatically disqualify her from custody unless it demonstrably undermines the welfare of the child—In present case, the minor had remained with the mother since birth, and custody was transferred solely due to remarriage and perceived financial dependency—Such rationale held insufficient as per principles laid down by the Supreme Court. Cited Cases: • Raja Muhammad Owais v. Mst. Nazia Jabeen (2022 SCMR 2123) • Shaista Bibi v. Muhammad Arif Habib (PLD 2024 SC 629) (b) Guardian and Wards Act, 1890 (VIII of 1890) ----Section 25—Custody of minor—Financial dependence of mother—Effect—Obligation to maintain child lies with father Petitioner-mother filed suit for maintenance against the father and was considered financially dependent by the courts below—Held, this conclusion was erroneous—Filing for maintenance does not denote financial incapacity but rather reinforces the father's legal obligation under Islamic and statutory law to provide for the child—Financial status of mother is not determinative when father's legal duty to maintain child exists. Cited Case: • Humayun Hassan v. Arslan Humayun (PLD 2013 SC 557) (c) Custody of minor—Delay in filing custody petition—Father’s conduct—Relevance Father filed custody petition several years after divorce and mother’s remarriage, and only after maintenance proceedings were initiated against him—Held, unexplained delay and failure to seek custody or visitation earlier reflect lack of genuine concern—Father’s conduct seen as opportunistic, adversely affecting his entitlement to custody—Genuine concern for welfare of child is a pre-requisite in such cases. (d) Visitation Rights—Father’s entitlement—Welfare of minor—Balanced approach Although custody was awarded to mother based on welfare considerations, the father’s right to maintain a relationship with his minor son remains intact—Court directed the Executing Court to establish a structured visitation schedule to ensure meaningful parental contact, safeguarding emotional well-being of the minor. ---- Disposition: Writ petition allowed; judgments and decrees of lower courts set aside. Custody awarded to mother. Visitation rights granted to father, to be structured by Executing Court.''In custody disputes, the parties' conduct is a significant factor. A mother's remarriage, however, does not ipso facto render her ineligible for custody of the minor. Writ Petition is allowed and concurrent findings of lower courts are reversed.''

Summary: Obligation of the service provider in terms of Punjab Sales Tax on Services Act, 2012. ---- (a) Punjab Sales Tax on Services Act, 2012 ----S. 3(1), 3(2), 11(1) & 2(35)---Taxable services---Resident vs. non-resident---Place of business---Applicant claimed non-resident status to contest tax liability; however, documents on record showed applicant maintained a site office in Lahore---Held, ‘site office’ constituted a ‘place of business’ under S. 2(30), thus applicant treated as ‘resident’ for tax purposes---Liability to pay sales tax, therefore, fell on the applicant under S. 11(1). (b) Punjab Sales Tax on Services Act, 2012 ----S. 65(7), 65(8) & 67A---Commissioner (Appeals)---Delay in deciding appeal---Effect---Statutory time frame of 180 days for deciding appeal by Commissioner (Appeals) held to be directory, not mandatory---Order passed beyond such period not void, particularly where no objection was raised during pendency---Transfer of appeal to Tribunal due to lapse of time would prejudice taxpayer by denying first right of appeal. Cited Cases: • Commissioner Inland Revenue v. M/s Sarwaq Traders Civil Review Petition No. 275/2022 • Messrs A.J. Traders v. Collector of Customs PLD 2022 SC 817 (c) Punjab Sales Tax on Services Act, 2012 ----S. 3(1), 10 & 11(1)---Service provider---Liability to pay sales tax---Construction services provided within Punjab by a resident service provider---Held, tax liability under S. 11(1) rests on the service provider regardless of whether sales tax was collected from recipient---Indirect nature of sales tax does not absolve liability in absence of collection. (d) Punjab Sales Tax on Services Act, 2012 ----S. 25 & 2(33)---Registration---Effect of non-registration---Applicant argued tax could not be levied as it was unregistered at the relevant time---Held, under S. 25 and Explanation thereto, registration is mandatory for service providers in Punjab---A person liable to be registered but not registered is still considered a ‘registered person’ for enforcement purposes---Non-registration does not preclude tax liability. Cited Case Distinguished: • Commissioner Inland Revenue v. S.K. Steel Casting 2019 PTD 1493 (e) Punjab Sales Tax on Services Act, 2012 ----S. 67A---Reference before High Court---Scope---Questions of law must arise from findings of the Appellate Tribunal---New questions not raised or adjudicated below cannot be agitated under S. 67A. Cited Case: • M/s Squibb Pakistan Pvt. Ltd. v. Commissioner of Income Tax 2017 PTD 1303 (f) Punjab Sales Tax on Services Rules, 2012 & 2015 ----Withholding Rules---Applicability---Held, Tribunal rightly applied Punjab Sales Tax on Services (Withholding) Rules, 2015, for relevant period---Rules of 2012 repealed in February 2015 and were not applicable. Disposition: Reference Application dismissed; all legal questions answered against the applicant; Appellate Tribunal’s findings upheld.

Summary: (a) Penal Code (XLV of 1860) –– S. 302(c) –– Exception 4 to erstwhile S. 300 –– Qatl-i-Amd –– Free fight –– Sudden quarrel –– Mitigation of sentence –– Determination of individual liability –– Applicability of Exception 4 –– The incident resulted from a sudden and mutual altercation between the parties, both of whom were returning from court proceedings with underlying hostility. Each side inflicted injuries, including fatal wounds to the deceased, Atif Masih. Medical records revealed serious injuries sustained by one of the accused, Shamshad Sanni alias Lallou, which the prosecution failed to satisfactorily explain. The Court concluded that the occurrence was a sudden, unpremeditated fight involving mutual provocation and blows from both sides, thereby attracting Exception 4 to the erstwhile Section 300, PPC. Consequently, the offence committed by the principal accused was not murder under S. 302(b) PPC but culpable homicide not amounting to murder under S. 302(c) PPC. Convictions of Shamshad Sanni alias Lallou, Sajjad alias Chajju, Javaid alias Phajja, and Sajawal Masih under S. 302(b) PPC were altered to S. 302(c) PPC with 14 years' R.I. and compensation of Rs. 5,00,000/- each under S. 544-A Cr.P.C. ----Cited Cases: • Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 • Zahid Rehman v. The State PLD 2015 SC 77 • Muhammad Saleem v. The State 2007 SCMR 1896 • Syed Ali Beopari v. Nibaran Mollah PLD 1962 SC 502 • Abdul Karim v. The State 2007 SCMR 1375 • Muhammad Ashraf alias Nikka v. The State 2022 SCMR 1328 (b) Criminal Procedure Code (V of 1898) –– S. 544-A –– Compensation –– Concurrent sentences –– S. 382-B benefit –– While modifying the conviction under Section 302(b) PPC to Section 302(c) PPC, the Court maintained the award of compensation to legal heirs of the deceased under Section 544-A Cr.P.C. All sentences were directed to run concurrently, and the benefit under Section 382-B Cr.P.C. was extended to the convicts. Disposition: Death sentences not confirmed. Sentences modified to 14 years' rigorous imprisonment under S. 302(c) PPC. (c) Penal Code (XLV of 1860) –– Ss. 337-F(i), 337-F(ii) –– Minor injuries –– Daman –– Concurrent sentences maintained: Conviction of Shamshad Sanni alias Lallou under Sections 337-F(i) and 337-F(ii) PPC for causing injuries to prosecution witness Ramaish Nazeer was upheld. Daman of Rs. 10,000/- under each section was ordered to be paid. (d) Penal Code (XLV of 1860) –– Ss. 337 A(i), 148 –– Acquittal –– Compounding of offence –– Asif Masih, convicted under Sections 337 A(i), 337-F(v), and 148 PPC, was acquitted after complainant Nazir Thomas (PW-4) compounded the offence. Permission to compromise was granted under Section 345 Cr.P.C. and there was no bar under Section 311 PPC. Accordingly, conviction and sentence were set aside. Disposition: Criminal Appeal No. 687 of 2022 allowed. Asif Masih acquitted. (e) Penal Code (XLV of 1860) –– Ss. 337 A(i), 148 –– Sentence reduction –– Daman –– Default in payment –– In Dawood Masih’s case, conviction under Section 148 PPC was set aside, but conviction under Section 337 A(i) PPC was maintained. Sentence reduced to already undergone period; however, Daman amount remained intact with direction for monthly installment payments over two years. Disposition: Criminal Appeal No. 691 of 2022 partly allowed.

Summary: The two eye-witnesses named in the FIR were abandoned by the prosecution as unnecessary. This was certainly the best evidence available with the prosecution and their non-examination without any sufficient cause certainly invited the application of Article 129 (1)(g) of the Qanoon-e-Ordinance 1984 to draw an adverse inference that had those eye witnesses been produced during the trial they would not have supported the prosecution’s version. . Mere abscondance of an accused cannot be made a base for his conviction when there is a reasonable doubt exists regarding his involvement in the commission of offence.

Summary: All actions by governmental bodies authorities or departments must be conducted within the parameters set by law regulations and the Constitution. Any action taken without legal authority or beyond the scope of jurisdiction is invalid and can be challenged in court.

Summary: Acquittal granted ---- (a) Criminal Law – Post-arrest Appeal – Delay in FIR and Investigation---Criminal appeal—Benefit of doubt—Delay in FIR—Appellants challenged their conviction under Sections 302, 364, 449, and 34 of the PPC—FIR was registered after an unexplained delay of 1 hour and 50 minutes despite complainant's claim of meeting police soon after the incident—Investigating officer failed to disclose how and when he was informed about the crime—No evidence proving an immediate police response—Held, unexplained delay in FIR registration creates suspicion and shatters its sanctity—Reliance placed on Muhammad Jahangir v. The State (2024 SCMR 1741).(b) Ocular Testimony – Contradictions Between Eyewitness and Medical Evidence---Eyewitness credibility—Ocular testimony contradicted by post-mortem reports—Complainant and witness claimed injuries to the left side of the victim’s head, but medical examination found no such injury—Conversely, injuries observed on shoulder and other parts were not mentioned by witnesses—Held, when ocular account contradicts medical evidence, benefit of doubt must be given to the accused—Reliance placed on Muhammad Shafi v. The State (2019 SCMR 1045).(c) Rigor Mortis – Conflict Between Time of Death and Medical Evidence---Forensic inconsistencies—Medical reports showed rigor mortis fully developed, indicating death occurred 6-12 hours prior to post-mortem—Crime Report mentioned death at 1:30 a.m., while post-mortem was conducted at 9:00 a.m.—Conflict between stated time of death and forensic findings—Held, such contradictions undermine prosecution’s case—Reliance placed on Asad Rehmat v. The State (2019 SCMR 1156).(d) Chance Witnesses – Failure to Justify Presence at Crime Scene---Witness credibility—All eyewitnesses lived 15-22 km away from the crime scene—No reasonable explanation given for their presence—Prosecution failed to establish why they were at the crime scene at 1:30 a.m.—No efforts were made to contact the deceased by phone—Held, unexplained presence of witnesses renders them chance witnesses, reducing reliability—Reliance placed on Mst. Rukhsana Begum v. Sajjad (2017 SCMR 596).(e) Court Witnesses – Testimony of Family Contradicts Prosecution's Narrative---Independent court witnesses—Court called family members of the deceased (father, mother, and sister) who presented an entirely different version of events—They alleged that different accused persons committed the crime, contradicting the prosecution’s case—Held, prosecution withheld best evidence, creating presumption under Article 129(g) of Qanun-e-Shahadat that their case was fabricated—Reliance placed on Muhammad Ijaz alias Billa v. The State (2024 SCMR 1507).(f) Recovery of Murder Weapons – Violation of Section 103 Cr.P.C.---Investigative lapses—Weapons recovered 77 to 80 days after the incident—No independent witnesses present at the time of recovery, violating Section 103 Cr.P.C.—Blood-stained weapons allegedly found in the homes of accused, contradicting common sense (i.e., accused had ample time to dispose of them)—Held, recoveries are fabricated and inadmissible—Reliance placed on Sardar Bibi v. Munir Ahmed (2017 SCMR 344).(g) Motive – Failure to Prove Illicit Relationship as Reason for Murder---Motive not established—Prosecution alleged that the motive was an illicit relationship between the deceased individuals—No evidence or witness substantiated this claim—Held, failure to prove motive further weakens the case—Reliance placed on Iftikhar Hussain v. The State (2024 SCMR 1449).(h) Acquittal – Prosecution Failed to Prove Case Beyond Reasonable Doubt---Failure of prosecution—Multiple discrepancies in FIR, medical evidence, witness statements, and forensic findings—Crime Report contradicted by rigor mortis, absence of independent witnesses, and delayed autopsies—Held, benefit of doubt granted, conviction set aside, and appellants acquitted—Reliance placed on Tariq Pervaiz v. The State (1995 SCMR 1345).----- Disposition:Criminal appeals accepted – Convictions set aside.Criminal revision for sentence enhancement dismissed.Appellants (Niaz Hussain, Fida Hussain, and Sultan alias Panun) acquitted and released forthwith unless required in another case.---Quote: ''Autopsy and inquest report can be used to depict whether the FIR was ante-dated, with medical and criminal jurisprudence on rigor mortis being a relevant factor as well for this purpose. Effect of any conflict between medical and ocular evidence is assessed, alongwith the intrinsic value and purpose of testimony provided by court witnesses under Section 540 Cr.P.C. The court's authority to presume a fact under Article 129 of QSO and parameters of Section 103 Cr.P.C., as elucidated by a Larger Bench have also been deliberated upon.''