Summary: (a) Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 ----R. 11-A—Appointment on deceased quota—Eligibility of legal heir—Mandatory consideration by department—Delay in processing—Effect. Rule 11-A of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 provides that where a civil servant dies during service, one of his children shall be provided employment in BPS-1 to BPS-10 in the same department if otherwise eligible. The rule is clear and mandatory in nature, conferring a legitimate right on the surviving legal heir to be considered for appointment, subject to fulfillment of qualifications. Delay in processing or administrative inaction cannot defeat such right once the application is filed within policy terms. (b) Constitutional law ----Art. 4 & Art. 25—Fundamental rights—Right to fair treatment and equality before law—Obligation of public functionaries. The conduct of the respondent department, which failed to act on the petitioner’s application for over a decade despite repeated communications, was held contrary to the principles of fairness, justice, and equality under Arts. 4 and 25 of the Constitution. Government departments are bound to act fairly, promptly, and in accordance with law when dealing with citizens’ rights, particularly those arising from compassionate employment provisions. (c) Service matter ----Appointment against deceased quota—Belated consideration—Whether application time-barred—Effect. The objection that the petitioner’s father died in 2003 and that his application was delayed was rejected. The Court held that the petitioner had applied in 2008 within the policy framework and the delay was entirely attributable to official apathy. Once the petitioner applied within the prescribed policy period, the department was under a continuing obligation to process and decide the case in accordance with law. (d) Administrative law ----Non-filing of comments by respondents—Apathy and neglect—Consequences. The respondent department failed to submit comments despite repeated opportunities. Such inaction demonstrated administrative negligence and disregard of judicial proceedings. The Court observed that government officials cannot evade their statutory duty by simply pleading “policy matters” without substantiating their stance through record. (e) Public service recruitment ----Deceased quota—Consideration for suitable post—Scope of discretion. While the petitioner had sought appointment as Junior School Teacher (JST), the Court directed that he be considered for *any suitable ministerial post* commensurate with his qualifications, provided he fulfilled eligibility requirements under relevant recruitment rules and policies. The discretion to select a suitable post must be exercised fairly, in accordance with Rule 11-A and the law declared by the Supreme Court on the subject. (f) Directions and compliance ----Chief Secretary and Secretary Education Department—Obligation to implement Court’s directive—Timeline for compliance. The Chief Secretary, Government of Sindh, and Secretary, School Education & Literacy Department were directed to ensure compliance of this order in letter and spirit within 30 days. They must evaluate petitioner’s eligibility for appointment against the deceased quota, complete all codal formalities, and issue appointment orders if found suitable. (g) Disposition— Constitutional petition allowed. Respondent departments directed to consider the petitioner’s case for appointment against the deceased quota strictly in accordance with Rule 11-A of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 and Supreme Court precedents on the subject. Compliance to be reported within 30 days. Held— (i) Rule 11-A creates a mandatory obligation to provide employment to one eligible child of a deceased civil servant. (ii) Delay attributable to administrative neglect cannot deprive the petitioner of his lawful right. (iii) Petition allowed; directions issued for consideration and compliance.

Summary: Constitution of Pakistan--- ----Arts. 9, 10A, 14, 25 & 37(d)--- Incarcerated prisoners---Fundamental rights--- Release of inmates from the prisons on the basis of 'probation'---Duty of care owed by the State and its functionaries towards incarcerated prisoners explained. It is an undeniable fact that living conditions and the treatment of prisoners in overcrowded and inadequately equipped prisons profoundly affects the constitutionally guaranteed rights. Most of the victims of a non-functional criminal justice system are those who belong to economically and socially marginalized sections of the society. They do not have the means to access the courts nor has the State fulfilled its constitutional obligation to ensure inexpensive and expeditious justice contemplated under Article 37(d) of the Constitution. The prisoner, whether convicted or non-convicted, has no choice but to place reliance for his right to life and other needs, such as medical attention, solely on the authorities holding him/her in custody. This reliance gives rise to a duty of care on the part of the State and its functionaries. The Constitution guarantees the right to life under Article 9. In the context of a prisoner, it is implicit in Article 9 that it is the duty of the State to ensure that every person incarcerated including those who are convicted for an offence and undergoing sentence, are treated in a manner that does not expose the latter to harm and that humane treatment is extended so long as the incarceration lasts. The prisoner is thus entirely dependent on the State and is at its mercy for the purposes of safeguarding the right to life. The State, therefore, owes a duty of care to every prisoner, regardless of the nature of offence for which the latter has been incarcerated. It is only liberty and the right of free movement that has been curtailed and definitely not the constitutional rights to life and to betreated with respect, having regard to the fundamental rights of inviolability of the dignity of man guaranteed under Article 14 of the Constitution. Moreover, it becomes a duty of the functionaries to ensure that no prisoner is unjustifiably deprived of the right to liberty even if it is on the basis of being released on probation. It is a right of every eligible prisoner to be considered for the purposes of enjoying liberty on the basis of probation. The neglect of the executive authorities to perform their obligations and duties imposed by law and to give effect to the enforced laws, particularly relating to the inmates of prisons amounts to a breach of the duty of care that is owed to the incarcerated prisoner. This breach of a fiduciary duty could expose the concerned authorities and the State to be sued by the inmates of the overcrowded prisons for damages. Neglect or refusal to effectively enforce the enacted laws relating to release of a prisoner on the basis of probation is violative of the fundamental rights guaranteed under the Constitution, inter alia, under Articles 9, 10-A, 14 and 25. The respective Chief Executives' of the Federal Government and the provinces are directed to ensure that the enacted laws relating to release of a prisoner on the basis of probation are effectively implemented and made functional. The Federal and Provincial Governments, as the case may be, shall ensure that the prisoners who are eligible under the enacted laws for availing the benefit of being released on probation are identified and their cases are processed expeditiously. ------ (a) Constitution of Pakistan ----Arts. 9, 10-A, 14, 25 & 37(d)---Prisoners---Release on probation---Fundamental rights---Duty of care of State and prison authorities---Scope---Proceedings arose out of reports sought by Supreme Court regarding implementation of laws relating to release of prisoners on probation---Reports revealed grave prison conditions, overcrowding and non-functional enforcement of probation laws---Held, that a prisoner, whether convicted or under trial, remains entitled to constitutional protection of life, dignity and fair treatment---Incarceration curtails only liberty and freedom of movement and not the fundamental rights guaranteed under the Constitution---Because prisoners are wholly dependent upon the State for protection of life, health and humane treatment, such dependence gives rise to a duty of care on the part of the State and its functionaries---Failure to ensure humane treatment and lawful consideration of eligible prisoners for probation amounts to infringement of constitutional guarantees, particularly where weak and marginalized prisoners suffer due to a dysfunctional criminal justice system---State was bound to ensure inexpensive and expeditious justice in terms of Art.37(d) of the Constitution and could not permit prison conditions or administrative neglect to defeat rights guaranteed under Arts.9, 10-A, 14 and 25 of the Constitution. (b) Constitution of Pakistan ----Arts. 9 & 14---Right to life and dignity of prisoners---Prisoner’s dependence on State---Extent of protection---Held, that in the case of a prisoner, the right to life under Art.9 of the Constitution includes the State’s obligation to ensure that every incarcerated person is treated in a manner which does not expose him to harm and that humane treatment is extended throughout the period of incarceration---A prisoner is entirely dependent on the State and remains at its mercy for safeguarding life and dignity---Therefore, the State owes a duty of care to every prisoner regardless of the nature of the offence for which he has been incarcerated---What stands curtailed is only liberty and free movement, and not the constitutional right to be treated with respect consistent with the inviolability of dignity of man guaranteed by Art.14 of the Constitution---Functionaries of the State are also under obligation to ensure that no prisoner is unjustifiably deprived of liberty, including where release on probation is lawfully available. (c) Constitution of Pakistan ----Arts. 9, 10-A, 14 & 25---Probation laws---Non-enforcement---Effect---Right of eligible prisoner to be considered for probation---Held, that the benefit of release on probation is of pivotal importance in the context of unjustified deprivation of liberty and every eligible prisoner has a right to be considered for such release in accordance with law---Neglect or refusal by executive authorities to perform duties imposed by enacted probation laws and to give effect thereto, especially in relation to prison inmates, amounts to breach of the duty of care owed by the State and its functionaries---Such neglect is violative of the fundamental rights guaranteed under Arts.9, 10-A, 14 and 25 of the Constitution---Failure to enforce probation laws effectively may also amount to breach of fiduciary duty, exposing the concerned authorities and the State to claims for damages by inmates of overcrowded prisons. (d) Administration of justice and prison administration ----Overcrowded prisons---Marginalized prisoners---Need for effective implementation of probation regime---Held, that overcrowded and inadequately equipped prisons seriously impair constitutionally protected rights and most victims of the non-functional criminal justice system belong to economically and socially marginalized classes who are least able to access courts---Prisons exist as institutions for reformation and social rehabilitation, and the failure of governments to operationalize probation laws defeats that purpose---Accordingly, the respective Chief Executives of the Federal Government and Provincial Governments were directed to ensure that enacted laws relating to release of prisoners on probation are effectively implemented and made functional and that all prisoners eligible under such laws are identified and their cases processed expeditiously. Disposition: Proceedings were disposed of by declaring that neglect or refusal to effectively enforce enacted laws relating to release of prisoners on probation is violative of the fundamental rights guaranteed under Articles 9, 10-A, 14 and 25 of the Constitution; the Federal and Provincial Chief Executives were directed to ensure effective implementation of probation laws and expeditious processing of all eligible prisoners’ cases. Raja Azmat Ali v. Abu Malik Naseem and another, 2023 SCMR 1867, decided on 23.05.2023.

Summary: (a) Constitution of Pakistan, 1973 ----Arts. 4, 25 & 199—Fundamental rights—Due process and fair trial—Scope—Invocation of constitutional jurisdiction under Art.199—Held, although the petitioner invoked Art.199 of the Constitution read with S.24 C.P.C., no violation of a fundamental right was established; however, where procedural obstacles between different Sessions Divisions create a judicial impasse, the High Court may exercise its supervisory powers to ensure justice, fair trial, and avoidance of conflicting judgments—Petition rightly treated as a transfer application under S.24 C.P.C. in the interest of justice. (b) Civil Procedure Code (V of 1908) ----S.24—Transfer and consolidation of suits—Power of High Court—Where two civil suits pending before separate courts in different Sessions Divisions involved identical parties, the same negotiable instrument, and common factual and legal questions, their consolidation was necessary to avoid multiplicity of proceedings and conflicting findings—Leave to defend having been granted in the summary suit under O.XXXVII, R.7, C.P.C., the case assumed the character of a regular civil suit, making consolidation legally permissible—Reliance placed on Zahid Zaman Khan v. Khan Afsar (PLD 2016 SC 409) and First Women Bank Ltd. v. High Court of Sindh (2004 SCMR 108). (c) Order XXXVII, Rule 7—Summary suit converted into regular civil suit—Effect—Once leave to defend is granted, proceedings under O.XXXVII, C.P.C. lose their summary character and stand on the same procedural footing as an ordinary civil suit—Hence, consolidation with another civil suit arising from the same transaction is procedurally valid. (d) Specific Relief Act, 1877 ----S.39—Cancellation of instrument—Where one suit seeks recovery on a negotiable instrument and the other seeks cancellation of that same instrument and underlying agreements, both matters are interdependent, and joint trial ensures consistency and prevents irreconcilable findings. (g) Disposition— Writ petition treated as transfer application under S.24 C.P.C.—Allowed—Civil Suit “Saqib Ali Khan v. Shuja Mukhtar Kiyani” pending before Civil Judge-XVIII, Islamabad (East) ordered to be withdrawn and transferred to Additional District Judge-IX, Islamabad (West), where connected summary suit “Shuja Mukhtar Kiyani v. Saqib Ali Khan” is pending—Both suits to be consolidated and tried jointly by the said court in accordance with law.

Summary: (a) Constitution of Pakistan ----Arts. 4, 9, 25, 35 & 199 --- Fundamental rights—Right to equality and family life—Issuance of Pakistan Origin Card (POC)—Scope—Petitioner, a Pakistani national, sought direction for issuance of POC to her foreign husband (Swiss citizen of Afghan origin)—Held, issuance of POC is not an absolute right but a conditional privilege subject to prescribed eligibility and security clearance—Where competent security agency declines clearance, NADRA has no authority to override such assessment—Court cannot interfere in executive decision based on national security considerations absent mala fides or lack of jurisdiction—No violation of fundamental rights established. (b) National Database and Registration Authority Ordinance, 2000 (VIII of 2000) ----Ss. 10 & 11—Issuance of Pakistan Origin Card—Conditions—Section 11 authorizes NADRA to issue POCs to prescribed classes of foreigners subject to fulfillment of criteria, terms, and security clearance—Authority lawfully refused POC when clearance was denied by security agency—NADRA acted within jurisdiction. (c) Pakistan Origin Card Rules, 2002 ----R. 13—Refusal of registration—Scope—Authority may refuse registration or issuance of POC if, in its opinion, such issuance is prejudicial to the sovereignty, integrity, security, or defense of Pakistan, or against public interest—Rule 13 validly invoked where security agency withheld clearance of applicant—Refusal neither arbitrary nor discriminatory. (d) Case law distinguished ----Regional Manager NADRA Hayatabad Peshawar v. Mst. Hajira (2024 SCMR 197) and Mst. Amina v. Federation of Pakistan (PLD 2024 Peshawar 87) Cited precedents inapplicable since those matters involved no adverse security clearance—Current refusal based solely on non-clearance by competent authority under Rule 13. (e) Constitutional jurisdiction—Judicial restraint ----Art. 199 --- Courts cannot substitute executive discretion or reappraise security assessments made by specialized agencies unless shown to be mala fide or ultra vires—No material on record proving such infirmities—Constitutional petition not maintainable. (g) Disposition — Petition dismissed; NADRA’s refusal to issue POC to petitioner’s husband upheld; no order as to costs.

Summary: (a) Constitution of Pakistan–––Arts. 4, 9, 15, 18 & 25–––Right to movement, livelihood and dignity–––Unlawful restriction on travel–––Petitioner, a private cook employed by an Air Commodore during his posting in Italy, was repeatedly detained at the airport and prevented from travelling abroad on the pretext of being an “Army Deserter”–––Record revealed that petitioner was never an employee of any branch of the Armed Forces–––Respondents failed to produce any proof of military employment or desertion–––Held, that placing petitioner’s name on Exit Control List (ECL) without lawful authority and in absence of any credible material amounted to arbitrary exercise of power and violation of fundamental rights guaranteed under Articles 4, 9, 15, 18 and 25 of the Constitution–––Such administrative action could not be sustained. (b) Exit from Pakistan (Control) Ordinance, 1981–––S. 2–––Placing of name on Exit Control List–––Scope and limitations–––Petitioner’s name was placed on ECL on intelligence recommendation labeling him as a “deserter”–––No record or service history substantiated that claim–––Mere assumption or unverified intelligence input cannot justify curtailment of constitutional right to travel abroad–––Ministry of Interior and FIA required to act strictly within statutory framework and ensure that inclusion on ECL is supported by lawful material and due process. (c) Administrative law–––Due process and abuse of authority–––Duty of public functionaries–––Held, that no citizen may be deprived of liberty or right to travel except by due process of law–––Misuse of administrative discretion to obstruct petitioner’s lawful movement constituted abuse of power and violation of constitutional guarantees. (d) Fundamental rights–––Employment abroad–––Protection of livelihood–––Where petitioner’s overseas employment and visa renewal were jeopardized by arbitrary travel restrictions, Court intervened to protect his right to earn livelihood through lawful means abroad. Disposition: Petition allowed; respondents directed to forthwith remove petitioner’s name from Exit Control List and permit him to travel abroad.

Summary: (a) Criminal Procedure Code (V of 1898)---- ----S. 514---Forfeiture of bond---Scope of Court’s powers---Surety’s CNIC, Passport, SIMs and bank accounts blocked by Trial Court upon absconsion of accused---Legality and proportionality of coercive measures---Held, that under S.514, Cr.P.C., the Trial Court may forfeit the bond and recover penalty from the surety upon failure to produce the accused or to show sufficient cause---However, the statute does not authorize additional coercive actions such as blocking of CNIC, Passport, SIMs, or freezing of bank accounts---Such actions directly interfere with fundamental rights and must satisfy the test of proportionality---In the absence of any allegation of mala fide or collusion between the surety and the absconding accused, the extreme measures adopted by the Trial Court were found to be excessive and unconstitutional. (b) Constitution of Pakistan---- ----Arts. 9, 15 & 25---Fundamental rights---Restrictions on movement and deprivation of identification documents---Blocking of CNIC and Passport of surety found violative of fundamental rights to liberty, movement, and equality before law---Principle of proportionality applied---Court held that actions affecting personal liberty must have lawful basis and be the least restrictive means to achieve a legitimate aim---A surety, not being an accused or convict, cannot be subjected to punitive measures beyond the scope of bond forfeiture proceedings---Such actions were declared constitutionally infirm. (c) Administration of justice---- ----Natural justice---Right of hearing---Order passed without effective opportunity of hearing---Surety unable to appear or issue power of attorney due to blocked CNIC and Passport---Held, that the principle of audi alteram partem demands that no adverse order be passed without notice and opportunity to respond---Impugned order passed without affording due process rendered unsustainable. (d) Criminal Procedure Code (V of 1898)---- ----S. 514---Deposit of surety amount---Petitioner’s offer to deposit full amount of PKR 500,000/- accepted---Purpose of surety bond achieved upon deposit---No further coercive action warranted---Trial Court directed to accept deposit and drop forfeiture proceedings accordingly. Disposition: Writ Petition allowed; Impugned Order dated 01.11.2024 set aside; CNIC, Passport, SIMs, and bank accounts of surety ordered to be unblocked subject to deposit of PKR 500,000/- before Trial Court within fifteen (15) days.

Summary: (a) Constitution of Pakistan---- ----Arts. 2-A, 3, 4, 9, 14, 18 & 25---Code of Criminal Procedure (V of 1898), Ss. 22-A, 22-B, 54 & 55---Police Rules, 1934---Protection against unlawful harassment---Scope---Petitioners alleged continued harassment by police despite securing protective orders from Ex-Officio Justice of Peace---Held, that the State’s power to investigate and prosecute offences must be exercised strictly in accordance with law---Arbitrary arrest, detention, or coercive measures without registration of a cognizable offence or in defiance of judicial directions constitute a violation of fundamental rights guaranteed under Arts. 4, 9, and 14 of the Constitution---Once the Ex-Officio Justice of Peace has issued directions restraining police harassment, such orders are binding unless modified or set aside by a competent Court---Disregard of such judicial orders amounts to abuse of authority and negation of rule of law---Police officials are under statutory obligation to act fairly and lawfully in every case. (b) Administration of justice--- ----Judicial protection---Scope and effect---Where judicial protection has already been extended by Ex-Officio Justice of Peace under Ss. 22-A & 22-B, Cr.P.C., the police are bound to comply with such directives and cannot initiate retaliatory or arbitrary actions against citizens---Failure to observe such protection invites judicial interference under Art.199, Constitution. Disposition: Petition allowed; Respondents directed not to harass or summon Petitioners or their family members unlawfully; any actionable information to be processed strictly in accordance with Ss. 54 & 55, Cr.P.C., and judicial safeguards; police to comply with orders of Ex-Officio Justice of Peace in letter and spirit.