Summary: (a) Civil Procedure Code (V of 1908)--- ----S. 48---Execution proceedings---Principle of merger of decree---Scope---When a Superior Court passes a judgment in appeal, irrespective of the fact whether it was set aside or modified or affirmed, the decree of Lower Court merges with that of the Appellate Court. (b) Civil Procedure Code (V of 1908)--- ----S. 48---Limitation Act (IX of 1908), First Sched., Art. 181---Execution proceedings---Principle of merger---Respondent/decree holder filed fresh execution petition following judgment and decree passed by Appellate Court---Executing Court dismissed fresh execution petition as barred by time but High Court allowed the same on the principle of merger---Validity---Starting point of limitation of fresh Execution Petition, subsequent to first one, was the date of final judgment of final Court of Appeal---By applying principle of merger, judgment and decree of Trial Court merged with that of Appellate Court---It was the latter decree which was operative and executable, therefore, High Court rightly treated fresh application for execution of appellate decree as filed within limitation under section 48 C.P.C. and not under Article 181 of Limitation Act, 1908---Fresh Execution Petition filed by respondent subsequent to the first one was well within limitation, as it fell within six years after the decree of Appellate Court's judgment---Bar of limitation under Article 181 of Limitation Act, 1908 did not apply due to specific application of section 48 C.P.C. and the principle of merger---Supreme Court declined to interfere in the order passed by High Court as there was no illegality, irregularity or jurisdictional defect in it---Petition for leave to appeal was dismissed and leave to appeal was refused. Sahibzadi Maharunisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358; Maluvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Nasrullah Khan's case PLD 2013 SC 478; Commissioner of Income-Tax, Bombay v. Messrs Amritlal Bhogilal and Company AIR 1958 SC 868; Kunhayammed and others v. State of Kerala and another AIR 2000 SC 2587 and Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and others AIR 1963 SC 1124 rel. Farman Ullah Khattak, Advocate Supreme Court for Petitioner. Nemo for Respondents. Date of hearing: 23rd April, 2025.

Summary: ----S.155---Representation of the People Act (LXXXV of 1976) [since repealed], S. 67 (3)---Right of appeal---Distinction---Appeal under S. 155 of Elections Act, 2017 lies to Supreme Court against a "final decision" of the Tribunal---In contrast, S. 67(3) of Representation of the People Act, 1976 stated that any person aggrieved by a "decision" of the Tribunal may challenge it by way of an appeal to the Supreme Court. (b) Elections Act (XXXIII of 2017)--- ----Ss.145, 155 & 164---Civil Procedure Code (V of 1908), S.151---Dismissal for non-prosecution---Term "final decision"---Scope---Restoration---Absence of counsel---Election Tribunal, jurisdiction of---Applicant sought restoration of his election petition which was dismissed for non-prosecution---Respondent/returned candidate resisted restoration on the plea that Election Tribunal had become functus officio after dismissal of petition and remedy was to file an appeal before the Supreme Court---Validity---Right of appeal has not been expressly provided under S. 145(1) Elections Act, 2017---Rejection made after application of judicial mind constitutes a "final decision" and thus attracts appellate mechanism under S. 155 of Elections Act, 2017---Where a judicial determination terminates lis before Election Tribunal, it cannot be excluded from the ambit of a "decision" merely due to absence of express language---Dismissal in default is procedural termination/disposal of matter without application of judicial mind, leaving room for the petitioner to revert back and seek restoration of the petition by invoking inherent powers of the Tribunal, subject to show sufficient cause---Such procedural terminations do not constitute a final decision---Deliberate use of term "final decision" in S. 155 of Elections Act, 2017 reinforces and supports such interpretation---Provisions of Elections Act, 2017 aim at ensuring expeditious and effective adjudication of election disputes and such legislative objective is advanced - not defeated, by recognizing Tribunal's authority to restore petitions dismissed for non-prosecution, provided sufficient cause is shown---In the present cause list of cases of counsel for applicant exhibited that he was busy before other Bench of High Court on the fateful day---Medical certificate of applicant reflected that he was suffering from respiratory problem---When main petition was dismissed in December, 2024, there was smog and/or fog across the province and such respiratory problem had become severe, making it difficult for a patient suffering from respiratory disease to travel---Application was well within time and duly supported by affidavit and no serious objection was raised from the other side---Election Tribunal set aside the order dismissing election petition for non-prosecution and restored the same---Application was allowed. Chaudhry Asad Ur Rehman v. The Election Commission of Pakistan and 17 others 2018 CLC 1040 distinguished. Shehzad Khan Khakwani v. Aamir Hayat Hiraj and others 2011 CLC 25; Asif Nawaz Fatiana v. Walayat Shah and others 2007 CLC 610 and Ch. Safdar Mumtaz Sandhu v. Government of the Punjab through Chief Secretary, Punjab and others PLD 2009 Lah. 1 ref. Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others 1987 SCMR 1107; Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another PLD 1986 SC 542; Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad and 5 others PLD 1989 SC 760; Sardar Talib Hussain Nakai v. Rana Muhammad Hayat and 2 others PLD 2011 Lah. 207; Syed Fakhar Imam v. Muhammad Raza Hayat Miraj and 5 others 2009 CLC 1; Muhammad Amjad v. Muhammad Anwar and 10 others 2003 MLD 57; Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge, Hafizabad and 4 others 2001 YLR 336; Muhammad Shafi and another v. Election Tribunal, Multan and another 1983 CLC 3031; H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 and Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1 rel. (c) Interpretation of statutes--- ----Silence of statute---Effect---To imply a prohibition from silence of statute would yield a result contrary to the principles of justice and procedural fairness. Qazi Misbah-ul-Hassan for Petitioner/Applicant. Imran Khan, Assistant Advocate General. Sh. Usman Karim-ud-Din for Respondent No.1/Returned Candidate.

Summary: (a) Civil Procedure Code (V of 1908)--- ----O. VI, R. 17---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Amendment in pleadings, seeking of---Inordinate delay in seeking amendment of pleadings---Scope---Belated amendments introducing new factual assertions, without credible justification and likely to prejudice the opposing party, cannot be permitted under Order VI, Rule 17, C.P.C.---Facts in brevity were that the petitioners (vendees) filed a suit for specific performance against the respondent (vendor), concerning an alleged oral agreement to sell an immoveable property---The respondent (vendor) denied the agreement, and during the pendency of the trial, after seeking multiple adjournments for evidence, the petitioner (vendee) filed an application under Order VI, Rule 17, C.P.C. seeking to amend the plaint by inserting the specific location where oral agreement was made, i.e. "in the drawing room of the same house"---The Trial Court dismissed the amendment application, but the revision was allowed by the revisional court---The respondent (vendor) successfully challenged this before the High Court, whereby, order passed in revision was set aside---The petitioners (vendees) then filed a present CPLA before the Supreme Court---Core question requiring determination was as to "whether a party can be permitted to amend its pleadings under Order VI, Rule 17 C.P.C. to introduce a new factual assertion, central to the controversy, after an inordinate delay of ten years, without adequate justification, and in a manner that potentially prejudices the opposing party"---Held: Petitioner sought to amend a factual assertion specifically relating to the 'alleged place' where the oral agreement was made, after a delay of ten years---Such a request raised serious questions about the bona fides of the petitioners/vendees---Amendment in this case was a direct attempt to support and fortify a disputed fact, central to the dispute over the existence of the alleged agreement i.e. its location---The petitioners' amendment was sought after a decade of pendency, and multiple adjournments, all the while failing to lead evidence---The attempt to insert a significant factual detail relating to the alleged oral agreement, namely the location of its execution, after such an extended lapse of time could not be viewed as a benign clarification---Instead, it appeared to be an effort to recalibrate the factual matrix of the petitioners' case in light of the trial's trajectory---The proposed amendment had the effect of adding a key factual detail long after the other side had committed to a line of defence based on the original version of events---The petitioners' conduct did not merit the equitable indulgence contemplated under Order VI, Rule 17, C.P.C.---High Court's decision to disallow the amendment was legally sound and did not warrant interference---Petition being meritless was accordingly dismissed and leave to appeal was refused. Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824; Dausa and others v. Province of the Punjab and others 2016 SCMR 1621; Secretary to Government of West Pakistan v. Kazi Abdul Kafil PLD 1978 SC 242; Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel. (b) Civil Procedure Code (V of 1908)--- ----O. VI, R. 17---Amendment in pleadings---Inordinate delay in seeking amendment---Scope---Court is empowered to allow a party to amend their pleadings, particularly where such an amendment is necessary to determine the real issue in controversy between the parties and the power can be exercised by the court, at any time, during the pendency of such proceedings and even after the passage of the decree at the appellate stage or at the stage of revision in the highest Court---While it is true that the courts are empowered under Order VI, Rule 17 of C.P.C. to permit amendment "at any stage of the proceeding" this discretion is to be exercised with caution and only in furtherance of justice---Although the rule ibid is to be construed liberally, certain guardrails must be strictly observed---An amendment cannot be allowed if it alters the nature of the suit, seeks to withdraw admissions previously made, is tainted with mala fide intent, causes prejudice to the opposite party, or is designed to overcome evidentiary contradictions or prior judicial determinations---Courts must be vigilant in evaluating the motive behind the request, the stage at which it is brought and its impact on the rights of the opposite party---Where an amendment is sought after an inordinate delay, without adequate explanation, the delay itself, though not conclusive, becomes a weighty factor---An amendment of such a nature, introduced after the close of pleadings and during the trial phase, is likely to prejudice the opposing party by shifting the nature or focus of the controversy---An amendment should not be allowed where it alters the litigation landscape in a way that disadvantages the opposing party who relied upon the original pleading in the conduct of their case. Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824; Abaid Ullah Malik v. Additional District Judge, Mianwali and others PLD 2013 SC 239; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Secretary to Government of West Pakistan v. Kazi Abdul Kafil PLD 1978 SC 242 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel. (c) Civil Procedure Code (V of 1908)--- ----O.VI, R.17---Amendment in pleadings---Scope---Pleadings frame the boundaries of a party's case and the parties are bound to lead evidence in line with them---A party is not permitted to go beyond its pleadings and cannot lead or rely upon evidence that is inconsistent with what has been pleaded; even if such evidence is brought on record, it must be ignored---In this context, any belated amendment that introduces a new factual assertion must be examined with heightened scrutiny---The timing of the amendment request must, therefore, be viewed not in isolation, but in the context of its potential to disturb the procedural fairness and substantive rights of the opposing party. Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698; Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel. Muhammad Saleem, Advocate Supreme Court for Petitioners. Nemo for Respondents. Date of hearing 5th June, 2025.

Summary: ----S. 42---Pakistan Electronic Media Regulatory Authority Rules, 2009, R. 6---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan, Arts. 18 & 199---Constitutional petition---Right of business and trade---License in perpetuity---Proof---Locus poenitentia, principle of---Applicability---Frequency Allocation Board---Petitioner company was aggrieved of non-renewal of its license of Cable Television Network under MMDS System---Validity---License issued under previous regime was made subject to further renewal and conditions under new law---Claim of petitioner to have a license in perpetuity was falsified---License having expiry could not be termed as license in perpetuity unless there were specific conditions outlined in license agreement or under prevailing law---New Frequency Board under section 42 of Pakistan Telecommunication (Re-organization) Act, 1996, was established, which had undertaken the work of Pakistan Wireless Board established in consonance with Telegraph Act, 1885---License is merely privilege, and it does not mean that licensee acquired any vested right in the subject matter---No one can claim vested rights on ground of locus poenitentia as such legislature/authority which can pass an order, is entitled to vary, amend, add to or to rescind that order---License issued by Government is not in perpetuity, neither licenses can be deemed as license coupled with interest---In enactments revocation grounds are always available---Right to license for any trade or business is always subject to restrictions and qualification, if any, governed by law---Petitioner could approach Pakistan Electronic Media Regulatory Authority under R. 6 of Pakistan Electronic Media Regulatory Authority Rules, 2009 by filing application, for grant of MMDS license to operate broadcast media or distribution service as the case may be, and also approach the Frequency Allocation Board (FAB) for allocation of frequency---High Court directed Pakistan Electronic Media Regulatory Authority that if such applications were filed the same were to be decided in accordance with law at an early date, however, not later than 100 days as provided under R. 9 of Pakistan Electronic Media Regulatory Authority Rules, 2009---High Court restrained the Authority from taking any adverse action till decision on such application if filed by petitioner---Constitutional petition was dismissed accordingly. Pak Telecom Mobile Limited v. Pakistan Telecommunication Authority, Islamabad PLD 2014 SC 478; Pakistan and another v. FECTO Belarus Tractors Limited PLD 2002 SC 208; Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652; Danish Kaneria v. Pakistan and others 2012 CLC 389; M.A. Kareem Iqbal v. Presiding Officer, Banking Court No.III and others 2003 CLD 1447; MY Electronics v. Government of Pakistan and others 1998 SCMR 1404; Abdul Rasheed v. Federation of Pakistan PLD 1962 SC 42; Nabi Ahmed and another v. Home Secretary and others PLD 1969 SC 599; Mian Rafiuddin v. Chief Settlement Commissioner and others PLD 1971 SC 252; Federation of Pakistan v. Mirza M. Irfan Baig and others 1992 SCMR 2430; Landirenzo Pakisan (Pvt.) Ltd. v. Federation of Pakistan and others 2013 MLD 601; Coated by Lord Woolf MR in R v. North and East Devon (200) 3 ALL. ER 850. 877; Pakistan Electronic Media Regulatory Authority (PEMRA) and others v. Southern Networks Limited, Karachi 2023 SCMR 1348; Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161 and Mag Entertainment (Pvt.) Ltd v. Independent Newspapers Corporation (Pvt.) Ltd. 2018 SCMR 1807 ref. Pakistan v. Salahuddin and others PLD 1991 SC 546 rel. Abbas Leghari and Nadeem Ahmed for the Petitioner. Badar Alam for Respondent No.2. Kashif Hanif, Sarmad Ali, Zafar Iqbal Arain and Ms. Shaista Perveen for Respondent No.3 (PEMRA). Salar Khan for Respondent No.4 (Frequency Allocation Board) Ali Akbar Sehto, Deputy Director Law PTA. Khaleeq Ahmed, D.A.G. Date of hearing: 14th December, 2023.

Summary: (a) Specific Relief Act (I of 1877)--- ----S.8---Civil Procedure Code (V of 1908), Ss.2(12), 11, O.XX, R. 12 & O. XLI, R.27---Suit for recovery of possession and mesne profit---Mesne profit, determination and award of---Res judicata, applicability of---Production of additional evidence at appellate stage---Validity---Respondents, being owner of suit property on the strength of registered sale deeds, filed suit for possession and mesne profit by alleging that present petitioners had illegally and unlawfully occupied their property---The suit of the respondents after recording of evidence was decreed by the Trial Court and the said decree was maintained by the appellate court and the High Court by dismissing their appeal and civil revision respectively---Trial Court while granting decree in favour of respondents refused the plea to the extent of mesne profit, whereas, appellate court while allowing cross objections of respondents awarded mesne profit to the respondents---Through the present petition before the Supreme Court merits of the case were not argued on behalf of the petitioners, instead three points were raised; i.e. (i) Mesne profit, (ii) Res judicata; (iii) Refusal of additional documents by appellate court---This simply meant that ownership of respondents was out of question and possession of petitioners over the suit property was established to be illegal and unlawful---Question requiring consideration by the Supreme Court was as to "when ownership and the possession of the suit property by respondents went un-rebutted, what legal strength and force would have been left in such points?---Held: With regards to the grant of mesne profit, no hard and fast mechanism/rules could be made and the criteria for determining the quantum of mesne profit was subject to inquiry if the Trial Court so directed---The quantum of award of mesne profit would depend on case to case basis---With regards to the contention that Single Judge of High Court in Chambers did not give any findings despite taking a specific ground in civil revision, same was misconceived, as at the time of hearing what was argued before the court was reproduced in the impugned order which meant that this plea was not argued before the court at the time of hearing---Moreover, petitioners did not even take any specific ground qua mesne profit in the present petition before the Supreme Court which amounted to an acceptance of all findings on the said question by the petitioners-- -With regards to applicability of section 11, C.P.C., petitioners did not place any material before the court in support of that argument so it could not be proved that there had been a previous decided matter between the parties qua the suit property---With respect to production of additional evidence at appellate stage, the perusal of application reflected that no particulars and details of documents to be produced as additional evidence had been given by the petitioners---Moreover, it has been settled law that production of additional evidence cannot be claimed as a matter of right and mere vague application would not suffice the purpose of an application under Rule 27 of Order XLI, C.P.C., therefore, such contention of the petitioners had no force either---Petitioners failed to establish their nexus with the suit property- --Present petition was meritless and same was dismissed and leave refused. (b) Pleadings--- ----A party cannot be allowed to argue a new ground, which is not raised in the memo of petition, unless specifically permitted by court to argue. (c) Qanun-e-Shahadat (10 of 1984)--- ----Arts.117 & 120---Plea---Scope---Merely alleging a specific plea cannot legally be considered as sufficient unless proved on the record. (d) Civil Procedure Code (V of 1908)--- ----O.XLI, R.27---Production of additional evidence at appellate stage-- -Scope---It cannot be claimed as a matter of right and it is for the court to decide whether any document to be produced or any witness to be examined to enable the court to pronounce the judgment or for any other substantial cause and also when the court from whose decree the appeal is preferred has refused to admit such additional evidence and for allowing such evidence to be recorded, the court has to record reasons for such permission. (e) Civil Procedure Code (V of 1908)--- ----O.XLI, R.27---Appellate Court---Deciding application for additional evidence before deciding the appeal, requirement of---Exception---Appellate court would be duty bound to decide the said application one way or the other but in case if it fails to do so, in peculiar circumstances of a case, no fruitful purpose would be achieved by sending the case back to appellate court for decision of that application by setting aside all the judgments and decrees especially when a party has failed to prove any nexus with the suit property and justify its possession over it. Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners. Nemo for Respondents. Date of hearing: 13th May, 2025.

Summary: ----Ss. 151 & 152---Specific Relief Act (I of 1877), Ss. 8 & 42---Amendment in decree---Scope---Clerical or arithmetic mistake---Determination---Accidental slip or omission---Suit for declaration with recovery of possession instituted by the petitioners/plaintiffs was dismissed, however, their appeal was partially allowed without giving the relief of possession---Petitioners sought amendment in the decree on the ground that while preparing the decree, the relief of possession was omitted by the Appellate Court, thus, the decree was in disagreement with the judgment---Validity---Petitioners in their suit themselves claimed to be owner in possession of the suit property and sought only declaration, thus, the court could not grant them relief of possession---"Accidental slip or omission" as used in S. 152, C.P.C. means to leave out or failure to mention something unintentionally; it is only where the slip or omission as accidental or unintentional could it be supplemented or added in exercise of jurisdiction conferred under S. 152, C.P.C.---Such course is provided to foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings, however, where slip or omission is intentional and deliberate, it could only be remedied or corrected by way of review if permissible or in appeal or revision as the case may be---Trial Court declared the possession of the respondents/defendants valid on the basis of adverse possession, but the Appellate Court did not alter or set aside the findings of the Trial Court---Slip or omission was not accidental or unintentional rather it was intentional and deliberate, thus, if the petitioners had any grievance, then they should have approached the superior courts for redressal of their grievance, but they never challenged the said judgment and decree, which attained finality and could not be altered even with the consent of the parties---Decree was totally in accordance with the judgment, thus, did not call for any rectification under Ss. 151 and 152, C.P.C.---Civil Revision was dismissed, in circumstances. Ram Singh v. Sant Singh and others AIR 1930 Lahore 210; Maharaj Pullu Lal v. Sripal Singh and others AIR 1937 Oudh 191; Federation of Pakistan and another v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Bank of Credit and Commerce International (Overseas) Ltd. v. Messrs Ali Asmestos Industries Ltd. and 5 others 1990 MLD 130; BCCI v. Ali Asbestos Limited 1991 CLC Note 347 at p.264 and Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 distinguished. Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and The Government of Pakistan vide Limitation (Amendment Act-II) of 1995) PLD 1996 Central Statute 1296 ref. (b) Civil Procedure Code (V of 1908)--- ----S. 152---Amendment in decree---Limitation---Power of the court---Scope---There is no time limit for entertaining an application under S. 152, C.P.C.---Power can be exercised suo motu---Powers of court under S.152, C.P.C. are unlimited, which does not mean that they will be exercised in all cases in which an application for their exercise is made---Exercise of power will depend on the circumstances of each case---Power is, thus, discretionary with the court---Normally where S. 152, C.P.C. is attracted court will order amendment, unless it is inequitable to do so. Mst. Farosha v. Fazal Gul and others PLD 1983 SC 220 and Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472 rel. (c) Civil Procedure Code (V of 1908)--- ----O. XX, R. 6---Contents of decree---Conformity of decree with the judgment---Duty of court---Scope---It is duty of the court, while drawing the decree, to specify clearly the relief granted or other determination of rights of the parties in the suit so as to make it in conformity with the will of the court capable of enforcement. Shaukat Ismail Charania v. Mrs. Shakeela Hayat Khan and others 2006 CLC 1126 rel. Syed Kaleem Ahmad Khurshid and Ch. Sultan Mahmood Kamboh for Petitioners. Nemo for Respondents. Date of hearing: 30th October, 2024.

Summary: ----Ss. 47 & 151---Execution proceedings---Application for grant of relief not mentioned in the decree---Scope---Decree of eviction was passed by the Rent Tribunal with a direction to hand over vacant possession of shops and deposit remaining rent amount---Respondent/ decree holder filed an application under S. 151, C.P.C. before the Executing Court for grant of outstanding utility bills, which was allowed---Validity---It was not within the domain of the Executing Court that in the execution proceedings, the question as to whether the view of the court which passed the decree was right or wrong as it was no more open for adjudication by the Executing Court---Grounds taken in the application filed by the respondent under S. 151, C.P.C. were never pleaded in the eviction application nor during the recording of evidence were pointed out by the witnesses in their statements made before the Trial Court and neither the Trial Court gave any findings in respect of the utility bills, thus, the decree had attained finality---Appellant himself was responsible for having lost his defense---Decree had to be executed as it is and it is not permissible to go behind it---Respondent did not take the plea before the Trial Court to the effect that there was some ambiguity regarding the facts in the case and the issue was not framed on a controversial point---Executing Court could not re-determine the rights and liabilities of the parties and once a decree was passed, it had to be executed in its terms---Points of attack or defense which were never agitated at the time of trial could never be raised at the stage of execution of the decree by filing an independent application under S.151 C.P.C.---Appeal was accepted, in circumstances . Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22 rel. Gulzar Kanrani for Appellant. Muhammad Ali Marri for Respondent. Date of hearing: 23rd October, 2024

Summary: Elections Act (XXXIII of 2017)--- ----Ss. 143, 144 & 155---Civil Procedure Code (V of 1908), O. VI, R. 15---Appeal---Election petition---Verification process---Absence of deponent---Phrase "declared on oath before me" on rubber stamp of Oath Commissioner---Effect---Appellant was aggrieved of dismissal of his election petition wherein election of respondent/returned candidate was assailed---Objection to election petition was appellant's failure to comply with verification procedures mandated by Order VI, Rule 15, C.P.C. which was a fundamental requirement as stipulated in section 144(4) of Elections Act, 2017---Validity---There were significant discrepancies in rubber stamp affixed by the Oath Commissioner regarding presence of appellant during the verification process---Appellant was not physically present at the time the verification occurred, primarily because he was not identified by any person nor by his Computerized National Identity Card---Stamp failed to provide clarity on the specific location and circumstances under which the oath was administered, thereby raising further questions about validity of proceedings---Phrase "declared on oath before me," inscribed in the stamp, lacked necessary specificity and was inherently ambiguous---Rubber stamp did not clarify what specific declaration was made under oath, nor did it confirm whether contents of verification were indeed presented as sworn testimony before Oath Commissioner---Such ambiguity fundamentally undermined assurance required for proper attestation of verification---Verification of election petition did not adhere to legal standards set forth by Supreme Court---Election Tribunal had thoroughly examined the election petition and reached a well-founded decision to reject the same---Supreme Court declined to interfere with the order passed by Election Tribunal---Appeal was dismissed. Zafar Abbas v. Hassan Murtaza PLD 2005 SC 600; Inayatullah v. Syed Khursheed Ahmed Shah 2014 SCMR 1477; Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396; Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi and others 2016 SCMR 750; Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani 2016 SCMR 722; Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 and Zia Ur Rehman v. Syed Ahmed. Hussain 2014 SCMR 1015 rel. Barrister Tassaduq Hanif, Advocate Supreme Court for Applicant. Yasir Ali Raja, Director Law and Zaheer Abbas, AD Law for ECP. Date of hearing: 9th May, 2025.

Summary: Elections Act (XXXIII of 2017)--- ----Ss. 143, 144 & 155---Civil Procedure Code (V of 1908), O. VI, R. 15---Appeal---Election petition---Verification process---Absence of deponent---Phrase "declared on oath before me" on rubber stamp of Oath Commissioner---Effect---Appellant was aggrieved of dismissal of his election petition wherein election of respondent/returned candidate was assailed---Objection to election petition was appellant's failure to comply with verification procedures mandated by Order VI, Rule 15, C.P.C. which was a fundamental requirement as stipulated in section 144(4) of Elections Act, 2017---Validity---There were significant discrepancies in rubber stamp affixed by the Oath Commissioner regarding presence of appellant during the verification process---Appellant was not physically present at the time the verification occurred, primarily because he was not identified by any person nor by his Computerized National Identity Card---Stamp failed to provide clarity on the specific location and circumstances under which the oath was administered, thereby raising further questions about validity of proceedings---Phrase "declared on oath before me," inscribed in the stamp, lacked necessary specificity and was inherently ambiguous---Rubber stamp did not clarify what specific declaration was made under oath, nor did it confirm whether contents of verification were indeed presented as sworn testimony before Oath Commissioner---Such ambiguity fundamentally undermined assurance required for proper attestation of verification---Verification of election petition did not adhere to legal standards set forth by Supreme Court---Election Tribunal had thoroughly examined the election petition and reached a well-founded decision to reject the same---Supreme Court declined to interfere with the order passed by Election Tribunal---Appeal was dismissed. Zafar Abbas v. Hassan Murtaza PLD 2005 SC 600; Inayatullah v. Syed Khursheed Ahmed Shah 2014 SCMR 1477; Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396; Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi and others 2016 SCMR 750; Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani 2016 SCMR 722; Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 and Zia Ur Rehman v. Syed Ahmed. Hussain 2014 SCMR 1015 rel. Barrister Tassaduq Hanif, Advocate Supreme Court for Applicant. Yasir Ali Raja, Director Law and Zaheer Abbas, AD Law for ECP. Date of hearing: 9th May, 2025.

Summary: in/and Criminal Petition No. 725 of 2023. (Against the judgment dated 17.05.2023 of the Lahore High Court, Bahawalpur Bench in Criminal Appeal No.452 of 2019). Criminal Miscellaneous Application No. 374 of 2024 in/and Criminal Petition No. 725 of 2023, decided on 26th June, 2024 Per Malik Shahzad Ahmad Khan, J.; Jamal Khan Mandokhail, J. agreeing; Ayesha A. Malik, J. dissenting. (a) Penal Code (XLV of 1860)--- ----Ss. 376, 449 & 496-B---Rape, trespassing and fornication---Re-appraisal of evidence---Converting of offence---Absence of resistance marks---Accused was convicted by Trial Court for commission of rape with complainant and was sentenced to imprisonment of ten years---High Court maintained conviction and sentence awarded by Trial Court---Validity---Accused was empty handed at the time of occurrence- --Female who was not a consenting party would offer very strong resistance in a case of attempt to commit rape with her by a male---No mark of violence was noted on the entire body of complainant by Medical Officer at the time of her medical examination---Allegation of forcibly removing clothes (shalwar) of complainant was not corroborated with recovery of any torn clothes of complainant, who was a consenting party---Ingredients of offence of rape punishable under section 376, P.P.C. were not attracted, rather it was a case of fornication (zina with consent) punishable under section 496-B, P.P.C.---On determining it to be a case of fornication punishable under section 496-B, P.P.C., the complainant was also liable to be proceeded against and punished as accused of the offence of illicit intercourse with consent but she was not challaned by police and no charge of fornication under section 496-B,P.P.C. was framed against her by Trial Court, therefore, she had no opportunity to defend herself---Supreme Court did not find it appropriate to punish the complainant without providing her opportunity of defence---Supreme Court set aside conviction and sentence awarded to accused under section 376, P.P.C. and convicted him under section 496-B, P.P.C., sentencing him to imprisonment for five years---Appeal was allowed accordingly. [Majority View] Per Ayesha A. Malik, J dissenting (b) Penal Code (XLV of 1860)--- ----Ss. 376, 449 & 496-B---Constitution of Pakistan, Arts. 9 & 14---Rape, trespassing and fornication---Re-appraisal of evidence---Right to life, dignity and privacy---Converting of offence---Absence of resistance marks---Accused was convicted by Trial Court for commission of rape with complainant and was sentenced to imprisonment of ten years---High Court maintained conviction and sentence awarded by Trial Court---Validity---Constitution specifically deals with preserving, protecting and promoting rights of women, which are clearly violated in gender-based violence cases---Provision of Article 9 of the Constitution protects right to life and Article 14 of the Constitution grants inviolable right to dignity as well as the right to privacy---In cases of rape, there is a gross violation of right to life, dignity and privacy---State is responsible for ensuring that essential and required steps are taken to protect women from such crimes and also to protect them from gender stereotyping which undermines a woman's ability to enjoy her basic fundamental rights---Gender stereotyping should not undermine rule of law---Act of rape has serious consequences as it deprives a woman of her right to life and her right to dignity and privacy which includes the right to mental and physical integrity---Every woman is entitled to respect for her life, her integrity and security of her person---No woman should be stigmatized simply because she has availed her right to access to justice and reported a heinous crime against her person and body---Accused in his statement under section 342, Cr.P.C. denied prosecution's case and had specifically taken the plea that complainant wanted to marry him and on his refusal, she managed to register a fake case against him---Accused neither appeared as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defense---There was no consensual intercourse between accused and complainant---Accused did not specifically raise the defense that he was involved with her and had consensual intercourse---Offense under section 496-B, P.P.C. was not made out---Supreme Court declined to interfere in conviction and sentence awarded to accused by two Court below---Appeal was dismissed. [Minority View] Ali Haider v. Jameel Hussain PLD 2021 SC 362; Salman Akram Raja v. Government of Punjab 2013 SCMR 203;Megan Alderden et al., Prosecutor's Perspectives on Biological Evidence and Injury Evidence in Sexual Assault Cases, 31 JOURNAL OF INTERPERSONAL VIOLENCE 7-8 (2021). < >; Habibullah v. The State 2011 SCMR 1665; Shakeel v. The State PLD 2010 SC 47; Muhammad Aslam v. The State 2023 SCMR 397; The State of Punjab v. Gurmit Singh AIR 1996 SC 1393; Atif Zareef v. the State PLD 2021 SC 550; Zahid v. The State 2020 SCMR 590; Hamid Khan v. The State 1981 SCMR 448 and Muhammad Ashraf v. The State 1997 PCr.LJ 1351 rel. (c) Penal Code (XLV of 1860)--- ----S. 496-B---Constitution of Pakistan, Arts. 9 & 14---Fornication---Pre-conditions---Consent---Proof---Right to life, dignity and privacy---Essential ingredient of fornication is establishment by way of evidence of the fact that it was a willful intercourse between the parties---It is essential that for the purposes of fornication consent be established---Consent means an unequivocal voluntary agreement with the woman by words, gestures or any form of verbal or non-verbal communication, which communicates her willingness to participate in the sexual act---Consent goes to the very root of right to dignity under Article 9 of the Constitution because in a case of rape where she states that there is no consent then to impute consent, that too without evidence of the same, undermines dignity and right to privacy of a woman---Without any evidence on the fact of consent or willingness, offence of fornication cannot be made out---Consent has to be established and it cannot be assumed. Agha Nayyar Latif Awan, Advocate Supreme Court for Applicant/Petitioner. Irfan Zia, Addl. P.G. Punjab for the State. Date of hearing: 26th June, 2024.