Summary: ----Ss. 3(2)(a) & 7---Civil Procedure Code (V of 1908), O. I, R. 10 & S. 107---Admiralty Appeal---Dispute over violation of charter agreement of vessel for voyage hire charges causing loss to the appellant-company---Arrest of vessel---Application by the intervener to be impleaded as party in the proceedings---Appellant denied claim of the intervener to be owner of vessel---Validity--- Order I, Rule 10, C.P.C., in conjunction with S.107, C.P.C., extends to appeals, bestowing the appellate court with the prerogative to substitute or add any entity as appellant or respondent, provided they are indispensable and proper parties to the proceedings---Despite the plaintiffs being dominus litis (masters of the suit) with a vested interest in the case's resolution, the court may compel the inclusion of a party if their presence is pivotal for a comprehensive and effective adjudication of the matter---General jurisprudential tenet for impleading parties posits that the plaintiff, as the master of the suit, may elect the individuals against whom they wish to litigate and cannot be coerced into litigating against an entity from whom no relief is sought, however, a proper party is one whose presence would enable the court to thoroughly, efficaciously and adequately adjudicate upon all matters in dispute in the suit, notwithstanding their status as a party in favour or against whom the decree is to be rendered---Intervener's claim of ownership was buttressed by documentary evidence, and was consonant with the principles governing the inclusion of indispensable and proper parties, thus, the intervener was impleaded as a respondent in the appeal to ensure an equitable and comprehensive resolution of the matter---Application was allowed and appeal was disposed of, in circumstances. Engro Foods Ltd. v. Province of Sindh and others 2018 MLD 866; Mst. Farasa Aijaz v. Messrs Qamran Construction (Pvt.) Ltd. 2012 CLC 1477; Aroma Travel Services (Pvt.) Ltd. v. Faisal Al Abdullah Al Faisal 2017 YLR 1579; Jiand Rai v. Abid Esbhani 2010 YLR 1666 and Shams Mohiuddin Ansari v. Messrs International Builders 2010 CLC 1622 rel. (b) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)--- ----Ss. 3(2)(a) & 7---Sindh Chief Court Rules (Original Side), R. 743, Chapter XXXII---Admiralty Appeal---Arrest of vessel---Doctrine of action in rem and action in personam---Scope---Applications by the intervener and respondent for release of vessel---Appellant denied the claim of the intervener and respondent for release of vessel---Validity--- Considering the doctrines of action in rem and action in personam, the documentary evidence of ownership presented by the intervener and the insufficiency of contrary evidence from the appellant, it was incumbent upon the court to reassess the arrest order's validity---Intervener's ownership claim and the nature of the primary dispute indicated that maintaining the arrest might not be equitable---Maritime lien or privileged claim must be substantiated by unequivocal evidence and in the absence of such evidence from the appellant, the claim that respondent No.2 owned the vessel could not be sustained, thus, the arrest order was rescinded and the vessel was released. Messrs Abdoun Oil Company S.A. Incorporated Under Laws of the Republic of Panama, in Greece, with their office at 43-45 portman square, London v. M/T Abdoun Discovery A Ship Flying Panama Flag Presently At The Port Of Port Qasim Authority, Karachi, Pakistan and another 2004 CLD 286 rel. (c) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)--- ----Ss. 3(2)(a), 4(4) & 7---Admiralty Appeal---Arrest of vessel---Action in rem and in personam---Scope and object--- Action in rem is a legal proceeding instituted against a specific item of property, primarily within admiralty law, where the principal object of the action is the property itself rather than the individual in possession of it---Such actions resolve disputes pertinent to the ownership, possession, or claims against the property---Adjudication in an action in rem is erga omnes, which means "towards all" or "towards everyone", binding the entirety of the world to the status of the property---Action in personam is a judicial proceeding instituted against a specific individual, wherein the objective is to ascertain the liability of the defendant---Such type of action resolves personal claims or obligations enforceable against a particular individual---Judgment in an action in personam is binding solely on the parties engaged in the litigation. Mazhar Imtiaz Lari and Syed Zeeshan for Appellant. Taha Alizai, Fawad Syed and Syed Raza Mamnoon for Respondents (as well as for Intervener). Date of hearing: 4th October, 2024.

Summary: ----Arts. 2(9) & 128---Family Courts Act (XXXV of 1964), S. 5, Sched.- --Suit for recovery of maintenance allowance of minor---Paternity of minor (plaintiff), denial/challenging of---Deoxyribonucleic acid (DNA) test of the minor, conducting of---Scope---Subsistence of valid marriage---"Conclusive proof"---Application of defendant (ex-husband) for DNA examination of minor plaintiff was dismissed concurrently---Whether the petitioner/defendant can be allowed to get conducted DNA test of the minor plaintiff and produce the said report as evidence in order to challenge the paternity of minor plaintiff?---Held, it is matter of record that the petitioner contracted marriage with the respondent (plaintiff lady), however, he divorced her after about seven months of their marriage---After the divorce, minor/plaintiff was born after almost 06_ months of the dissolution of marriage---Petitioner has not denied the marriage with respondent (plaintiff lady), however, he denied the paternity of minor---Petitioner, being defendant, moved the application whereby he prayed for conducting Deoxyribonucleic acid (DNA) test---As per Art. 128 of the Qanun-e-Shahadat, 1984 ('the Order 1984'), a child born to a woman during the subsistence of valid marriage or within two years after its dissolution is conclusive proof of his legitimacy, provided that the woman remains unmarried after the divorce---Said fact was regarded as a "conclusive proof" and no evidence could be admitted to refute the same as Art. 2(9) of the Order, 1984, provides that "when one fact is declared by this Order to be conclusive proof of another, the Court, on proof of the one fact, regards the other as proved and shall not allow evidence to be given for the purpose of disproving it"---Stipulation in Art. 128 of the Order, 1984, is that the birth of a child within the period specified in said Article is conclusive proof that he is a legitimate child---Once the relevant facts as to commencement of dissolution of marriage and the date of birth of a child within a period envisioned in Art. 128 are proved and the date of birth is within the period specified in Art. 128(1 ), then the Court cannot allow evidence to be given for disproving the legitimacy of a child born within the said period---Thus, both the Courts below rightly dismissed the application of the petitioner/ defendant(ex-husband)---Constitutional petition filed by defendant (ex-husband), being merit-less, was dismissed. Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327 ref. (b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)--- ----S. 2---Qanun-e-Shahadat (10 of 1984), Art. 128---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for recovery of maintenance allowance of minor---Paternity of minor (plaintiff) denied by husband-- - Deoxyribonucleic acid (DNA) test of the minor, conducting of---Scope-- -Application of defendant(ex-husband) for DNA examination of minor plaintiff was dismissed concurrently---Validity---Although birth during continuance of a valid marriage or within two years after its dissolution is a conclusive proof of legitimacy under Art. 128(1)(a) of the Order 1984,but under certain circumstances the husband can disown the paternity of a child---Since both parties are Muslims and S. 2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, specifically refers to legitimacy or bastardy, resort must be made to the Muslim Personal Law (Shariat) for the purpose of reconciling what may appear to be conflicting provision of Art. 128 of the Qanun-e-Shahadat, 1984---When a person denies that he is the natural/ biological father of children born within the period stipulated in Art. 128, the Muslim Personal Law (Shariat), firstly, provides that legitimacy/paternity must be denied by the father immediately after birth of the child [as per Imam Abu Hanifa] and within the post natal period (maximum of 40 days) after birth of the child [as per Imam Muhammad and Imam Yousaf]---There can be no lawful denial of paternity after this stipulated period---The Hedaya, Fatawa-e-Alamgiri and other texts all agree on this principle of Shariat---In the present case, the petitioner contracted marriage with the respondent (plaintiff lady), however, he divorced her after about seven months of their marriage---Minor/plaintiff was born after almost 06_ months of the dissolution of marriage---Hence, the first denial of paternity appearing from the record in the instant case is in the written statement furnished by the petitioner after three years of birth of minor---Therefore, while applying the principles of Muslim Personal Law (Shariat) as mandated by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the petitioner cannot be allowed to deny the legitimacy/paternity of minor plaintiff---Thus, both the Courts below rightly dismissed the application of the petitioner/defendant(ex-husband)---Constitutional petition filed by defendant (ex-husband), being merit-less, was dismissed . Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327 and Mst. Laila Qayyum v. Fawad Qayum and others PLD 2019 SC 449 ref. (c) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 2(9) & 128---Family Courts Act (XXXV of 1964), S. 5, Sched.- --Suit for recovery of maintenance allowance of minor---Paternity of minor (plaintiff), denial of---Deoxyribonucleic acid (DNA) test of the minor, conducting of---Scope----Honour and dignity of women and innocent children---Each human being has a unique DNA pattern, which is acquired by inheriting it from the biological parents---DNA can be found in the human body and samples can be taken from sliva, skin tissues, blood, hair and semen for establishing the DNA matching with the DNA of another human being---Though by using DNA technology, the Courts are in a better position to reach at a just conclusion but the question is whether the a defendant/(ex-)husband can be allowed to get conducted DNA test of the minor plaintiff and produce the said report as evidence in order to challenge the paternity of minor plaintiff---It is for the honour and dignity of women and innocent children as also the value placed on the institution of the family that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization---It is becoming a common practice in our society that whenever a suit for recovery of maintenance allowance is filed against a person he comes forward to the Court and challenges the legitimacy of the child by moving an application requesting for conducting DNA analysis of the child---Ethically, questioning the paternity of a child during a maintenance suit can be seen as a tactic to evade responsibility rather than a legitimate claim based on evidence---It often reflects a desire to avoid financial obligations and may be motivated by personal animosity or financial concerns---Such practice should be discouraged and dealt with an iron hand because encouraging such practices would only serve to erode trust in the family unit and the legal system that is designed to protect the interests of vulnerable children---When a parent questions the legitimacy of the child, it creates an atmosphere of doubt and insecurity---This practice undermines the child _ s sense of identity, dignity, and belonging, which can have long-lasting psychological effects---It is crucial that courts focus on the child's needs and emotional welfare, rather than allowing a parent to challenge paternity without valid justification---Use of DNA tests to challenge paternity, while scientifically valid, should not be viewed as a tool for harassment or delay in matters of child maintenance---Thus, both the Courts below rightly dismissed the application of the petitioner/defendant(ex-husband)---Constitutional petition filed by defendant (ex-husband), being merit-less, was dismissed. Muhammad Ashraf Azad for Petitioner. Sohail Akhtar for Respondent No.3. (Proxy) Date of hearing: 27th November, 2024.

Summary: ----S. 8---Qanun-e-Shahadat (10 of 1984), Art. 115---Fair rent, fixation of---Denial of relationship of landlord and tenants---Plea of Pagri/ goodwill---Applications filed by the landlord/respondent for fixation of fair rent were challenged by the tenants/petitioners on the grounds of maintainability of rent applications being filed by unauthorized person without having a resolution passed by the General Body---Validity---Landlord had produced in evidence a resolution passed in the meeting of General Body authorizing landlord to sue any legal or administrative proceedings before a Court of law or Administrative Authority---Parties entered into a tenancy agreement, which was signed by the respondent, thus, the contention that rent applications were filed by an unauthorized person was irrelevant and could not be relied upon---Petitioners during trial neither disclosed the name of the person (landlord) who let out the rented premises to them nor produced any evidence or material to rebut the claim of respondent as to landlord of the rented shops and had admitted in cross-examination that they were depositing rent in the name of landlord, which proved that there existed relationship of landlord and tenant between the parties---Ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties and in normal circumstances, in the absence of any evidence to the contrary, the owner of the property by virtue of his/her title is presumed to be the landlord and the person in possession of the premises is considered as a tenant---Under Art. 115 of the Qanun-e-Shahadat, 1984 when there is continuance of tenancy, the tenant cannot deny the title of landlord in respect of an immovable property which the landlord had at the beginning of tenancy---When a person is inducted in the premises as tenant, he has no locus standi to challenge tenancy merely on the ground that the person who inducted him as tenant is not the actual owner---Thus, rent applications were filed by a competent person and were maintainable---Term "goodwill" is not recognized by Sindh Rented Premises Ordinance, 1979, however, the superior courts have equalized it with the term "Pagri"---Plea of petitioners that they had paid goodwill for premises in no manner could succeed as a ground of defence and if it is presumed that goodwill amount was paid it would not debar the respondent from seeking fixation of fair rent---Constitutional petitions were dismissed, in circumstances. Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Mohiuddin Ansari v. Muhammad Arif Siddiqui 1991 CLC 72; Hyderabad Development Authority v. Abdul Majeed and others PLD 2022 SC 84; Messrs Abdul Majeed Chawla & Sons v. Anwar Yahya 1990 MLD 1711; Abdul Rehman and another v. Zia ul Haque Makhdoom and others 2012 SCMR 954 and Messrs Olympa Shipping and Weaving Mills Ltd and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 distinguished. Messrs Noori Trading Corporation (Pvt.) Ltd. v. Abdul Ghafoor 1997 CLC 205; Muhammad Anwar v. Mir Rafique Ahmed Talpur and 2 others 2014 MLD 23; Lt. Col. (R) Muhammad Zubair v. Mst. Sughran Begum and another 2023 CLC 1411; Syed Tazeeb and others v. Bashir Ahmed 2024 YLR 926 and Mst. Amina Bai and others v. Mirza Subhan Baig and others Constitution Petition No.S-251 of 2009 ref. Alay Javed Zaidi v. Habibullah and others 2024 SCMR 781; Ittehad Chemicals Limited v. VIIth Additional District Judge, Karachi (South) and 2 others 2010 SCMR 1582 and Akhtar Kamran (deceased) through legal heirs v. Parvez Ahmed and others 2023 SCMR 1147 rel. (b) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S. 8---Qanun-e-Shahadat (10 of 1984), Art. 79---Fair rent, fixation of---Factors/conditions to be considered for determination of fair rent-- -Non-fulfillment of all the conditions for fixation of fair rent---Effect---Power of Rent Controller to fix the fair rent---Scope---Tenants raised objections as to admissibility and production of two rent agreements of the adjacent properties by the respondent in evidence without examining the tenants or attesting its witnesses---Validity---Requirement of Art. 79 of Qanun-e-Shahadat, 1984 comes into play only with a registered document and not to a document or instrument of understanding or acknowledgement---It is not necessary for the landlord to satisfy or fulfill all four conditions while making an order under S.8 of the Sindh Rented Premises Ordinance, 1979, for fixation of fair rent---Upon fulfillment of even one of the conditions Rent Controller is competent to fix the fair rent of a premises since cumulative effect of all four conditions mentioned in the above section is to be kept in mind while fixing the fair rent---It is the exclusive domain of the Rent Controller to fix the fair rent keeping in mind the conditions which include rent paid in similar situation in respect of the properties located in adjoining area apart from rise in cost of construction, repair charges, imposition of new taxes etc., and if the landlord is able to bring home his case with regard to the fixation of fair rent being paid by other tenants in respect of similarly placed properties, the rent paid by those tenants in the adjoining locality would be considered to be the fair rent, which is the essence of S. 8 of the Ordinance. (c) Sindh Rented Premises Ordinance (XVII of 1979)--- ----S. 8---Qanun-e-Shahadat (10 of 1984), Art. 79---Fair rent, fixation of---Proceedings before Rent Controller, nature of---Application of Civil Procedure Code and Qanun-e-Shahadat, 1984, in rent matters---Scope---Proceedings before Rent Controller qua fixation of fair rent of premises, being quasi judicial in nature, all principles of Civil Procedure Code, 1908, and Evidence Act (Qanun-e-Shahadat) could not be invoked because Rent Controller and Appellate Authority would have powers of a Civil Court under Civil Procedure Code in respect of matters relating to Ss. 19, 20 & 21 of Sindh Rented Premises Ordinance, 1979, and said Ordinance had also not placed any bar on application of Qanun-e-Shahadat, 1984, in appreciating evidence adduced by parties in rent matters---Rent Controller though is not a Court and limited provisions of Civil Procedure Code had been made applicable in the proceedings, but there was nothing in Sindh Rented Premises Ordinance, 1979, whereby application of provisions of Qanun-e-Shahadat could be restricted or limited as the Rent Controller was not a Court. Fateh Ali v. Trustees of Haji Sir Abdullah Haroon Wakf No.2, Karachi PLD 1996 Kar. 225 rel. (d) Qanun-e-Shahadat (10 of 1984)--- ----Art. 72---Document produced and exhibited in evidence without objection---Objection as to its proof at appellate or revisional stage---If a document has been produced and exhibited before a court without any objection, the party cannot object to its proof required under the Qanun-e-Shahadat, 1984 at appellate or revisional stage. (e) Constitution of Pakistan--- ----Art. 199---Sindh Rented Premises Ordinance (XVII of 1979), S. 8---Fixation of fair rent---Concurrent findings of facts by Rent Controller and appellate court---Interference by the High Court---Scope---Finding of facts given by the Rent Controller on the point of fixation of fair rent were concurred by the Appellate Court, thus, in exercise of the Constitutional jurisdiction High Court would not reappraise the evidence unless the same were proved to be perverse, based on misreading or non-reading of evidence---Powers in rent matters under constitutional jurisdiction of High Court are limited and confined only to ascertain whether the Courts below have flouted the statute or failed to follow the law relating thereto. Alay Javed Zaidi v. Habibullah and others 2024 SCMR 781 rel. Iftikhar Javaid Qazi for Petitioners. Ansar Mukhtar for Respondent. Suresh Kumar, A.A.G. Date of hearing: 10th October, 2024.

Summary: Per Syed Mansoor Ali Shah, J.; Ayesha A. Malik and Aqeel Abbasi, JJ. agreeing: (a) Constitution of Pakistan--- ----Art. 63A---Disqualification due to defection---Word "may"---Effect- --Use of word "may" in granting power to Party Head indicates that its exercise is discretionary, not obligatory---Even if a member defaults undergrounds (a) or (b), the Party Head is not obligated to declare defection necessarily and he may choose not to exercise such power---Requirement of providing member concerned an opportunity to show cause as to why such a declaration should not be made against him, underscores that the Party Head must exercise such power justly, fairly and reasonably, rather than whimsically or arbitrarily. (b) Constitution of Pakistan--- ----Art. 63A(1)---Declaration of defection---Principle---Power to make a declaration of defection, under Article 63A(1) of the Constitution has been granted only to Party Head of a political party, not to any other office bearer of the party and that can be exercised only in relation to a member of Parliamentary Party of a political party in the House, not to any other member of the House---Existence of such two facts is a condition precedent for the exercise of power to make declaration of defection against a member of House and for the exercise of jurisdiction by Election Commission to confirm such a declaration. (c) Jurisdiction--- ----Scope---When a tribunal or authority is established by law to exercise jurisdiction over a particular matter, the Legislature defines scope of its power---It may either expressly or by necessary implications tabulate that jurisdiction can only be assumed and exercised if a particular state of facts exists or is shown to exist---In such case, though the Tribunal or authority are obligated to objectively ascertain in the event of a dispute, whether that state of facts exist before exercising jurisdiction over the matter, its decision on the existence of that state of fact i.e. the jurisdictional fact, is not conclusive---Instead, the decision is subject to challenge before and final determination of Civil Courts of plenary jurisdiction, or is subject to correction by Constitutional Courts through judicial review. Queen v. Commissioner of Income Tax (1888) 21 QB 313 per Lord Esher; M.R.; Keramat Ali v. Muhammad Yunus PLD 1963 SC 191; Jamil Asghar v. The Improvement Trust PLD 1965 SC 698; Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Mehr Dad v. Settlement and Rehabilitation Commissioner PLD 1974 SC 193; Hamid Husain v. Govt. of West Pakistan 1974 SCMR 356; Hamida Begum v. Murad Begum PLD 1975 SC 624; Muhammad Hafeez v. Additional Commissioner 1981 SCMR 1171; Rehmatullah v. Ali Muhammad 1983 SCMR 1064; Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963; Aminullah v. Qalandar Khan 1993 SCMR 2307; Shah Muhammad v. Abdul Rauf 1998 SCMR 1363 and Umar Ikram-Ul-Haque v. Shahida Hasnain 2016 SCMR 2186; S.B.P. and Co. v. Patel Engineering Ltd. AIR 2006 SC 450; Jagdish Prasad v. Ganga Prasad AIR 1959 SC 492; Addanki Tiruvenkata v. State of Andhra Pradesh AIR 1964 SC 807 and Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963 rel. (d) Constitution of Pakistan--- ----Arts. 63A(3) & 63A(4)---Declaration of defection--- Election Commission---Exercise of jurisdiction---Principle---Election Commission has no power to conclusively determine jurisdictional facts but only has power to objectively ascertain existence of jurisdictional facts before exercising jurisdiction conferred upon it under Articles 63A(3) and (4) of the Constitution, for the purpose of determining alleged defection of a member from his political party---Findings of Election Commission on a jurisdictional fact, such as whether member concerned belongs to parliamentary partly of a political party, is not conclusive---Rather, it is subject to correction by Supreme Court as its appellate forum, and ultimately to final determination by a Civil Court of plenary jurisdiction. (e) Constitution of Pakistan--- ----Arts. 63A(1), 63A (2), 63A (3) & 63A (5)---Declaration of defection---Disqualification--- Affidavit of consent---Genuineness--- Appellant/ Member of National Assembly contested election as an independent candidate and after winning the election submitted affidavit of consent to join respondent political party---Party Head of respondent political party invoked defection clause against appellant, and resultantly Election Commission disqualified him---Contention of appellant was that his affidavit of consent was a forged document and he did not give any such consent to join respondent political party---Validity---Appellant was not shown to have ever acted as member of respondent parliamentary party, but had consistently conducted himself as member of another political party---Election Commission should have proceeded on the assumption that appellant was not member of respondent political party---Election Commission's finding on genuineness and validity of consent affidavit were contrary to the weight of the material on record and was legally unsustainable---Appellant was not found to be member of respondent political party and declarations made by Party Head of respondent political party regarding appellant's defection from that party and confirmation thereof by the Commission through orders in question were without jurisdiction---Supreme Court set aside orders passed by Election Commission and declarations made by respondent political party regarding defection of appellant---Supreme Court restored membership of appellant as an independent member and not as member of respondent political party---Appeal was allowed. Bahadur Khan Bangulzai v. Attaullah Khan Mengal 1999 SCMR 1921; Attaullah Khan Mengal v. Chief Election Commissioner 1999 CLC 1460; Giyan Chand v. Chief Election Commissioner 2000 MLD 709 and Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963 rel. Ayesha A. Malik, J.; agreeing with Syed Mansoor Ali Shah, J.: (f) Constitution of Pakistan--- ----Arts. 17, 19 & 219---Election Commission of Pakistan---Duties and functions---Constitutional role of Election Commission is the duty to organize and conduct free and fair elections for benefit of citizens who enjoy fundamental right to not only contest elections but also right to vote for candidate of their choice under Article 17(2) of the Constitution---Such fundamental right is also an expression of choice of voters under Article 19 of the Constitution---In exercise of such fundamental rights, which culminate through electoral process and voting, voters are able to choose composition of their government by exercising their choice and ability to participate---Such rights are so integral that their violation results in denial of fundamental rights, such as the right to be protected and treated in accordance with law, the right to life and liberty and inviolability of dignity. Worker's Party Pakistan v. Federation of Pakistan PLD 2012 SC 681; Muhammad Tahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413; Zulfiqar Ali Bhatti v. Election Commission of Pakistan 2024 SCMR 997; Tahir Sadiq v. Faisal Ali 2024 SCMR 775 and Imran Ahmed Khan Niazi v. The State 2024 SCMR 1284 rel. (g) Constitution of Pakistan--- ----Art. 219---Election Commission of Pakistan---Powers---Constitutional duty of Election Commission cannot be considered as an overarching Constitutional power vis-?-vis with other Constitutional provisions and institutions. (h) Constitution of Pakistan--- ----Art. 219---Election Commission of Pakistan---Role---Independence of Election Commission is a fundamental safeguard in democratic system which maintains integrity of elections and ensures that will of people translates into their consent to be governed by elected representatives---This is what gives legitimacy to the government, because it is based on choice of people---This builds public confidence, protects rule of law and protects people from political manipulation---Elections are lifeline to democracy and Election Commission is guarantor of electoral integrity---Independence of Election Commission is fundamental to election process without which very foundation of democracy is undermined---Election Commission should not become subservient to political influences or political engineering rather should remain an impartial custodian of democracy as any leaning of Election Commission in favor of government would compromise legitimacy of political system---At the heart of protecting electoral integrity is the right to vote and exercise of such right by people---Supremacy of vote underscores the idea, that power and legitimacy in a democratic system derives its consent from the governed, which is why an independent Constitutional body is required to ensure that will of the people by way of election is actualized. Muhammad Sibtain Khan v. Election Commission of Pakistan 2023 SCMR 2165; Imran Ahmed Khan Niazi v. The State 2024 SCMR 1284 and Sunni Ittehad Council v. Election Commission of Pakistan PLD 2024 SC 642 rel. Taimoor Aslam Khan, Advocate Supreme Court for Appellant (in both cases). Rana Asad Ullah, Addl. A.G.P., Muhammad Arshad, Spl. Secy. ECP, Khurram Shehzad, D.D. Law, ECP. Ms. Saima Tariq, D.D. Law, ECP and Falak Sher, A.D. Law, ECP. for Respondent No. 1 (ECP) (in both cases). Barrister Haris Azmat, Advocate Supreme Court for Respondent No.2 (PML-N) (in both cases). Date of hearing: 12th December 2024.

Summary: ----Art. 19---Right to speech and expression---Reading material---Scope---Right guaranteed by Art. 19 of the Constitution is inextricably linked to and dependent upon right to read and receive information, as only then it is possible for right to freedom of speech, to be exercised in a wholesome manner---There must be sovereignty of choice to vest in a reader to sift through different sources of material of literary value which in turn, equips him or her with knowledge so that such right to freedom of speech and expression can be enjoyed---Such right is subject to reasonable restrictions imposed by law, amongst others, in the interest of friendly relations with foreign states and it may include restrictions to be imposed, if relations with a foreign state do not remain so friendly. (b) Constitution of Pakistan--- ----Art. 14---Dignity of a man---Right to read---Effect---Dignity of a man can attain its full potential by acquiring education and knowledge and which, in turn, entirely depends upon freedom to read books and journals as part of basic facilities that a person born in a free country is entitled to enjoy. (c) Constitution of Pakistan--- ----Art. 9---Right to life---Intellectual liberty---Reading books and journals---Scope---Reading makes a man perfect and it opens new vistas and liberates minds---Any prohibition on pursuit of intellectual liberty and on the concept of objective truth, threatens in the long run every department of thought---Reading not only enables free thought but in turn empowers free speech which is the cornerstone of liberty as enshrined in the Constitution---This is how a connection is established between reading and life and liberty (Article 9) so that right to read must be deemed comprised in the right to life and liberty as a penumbra of that right. (d) Import Policy Order, 2016--- ----Para. 5(A)(ii)---Notification SRO 927(I)/2019 dated 09-08-2019---Intellectual liberty---Books and journals---Restriction on import---Petitioner/book selling company was aggrieved of restrictions imposed by authorities on import of books and journals of Indian origin apart from goods of Israeli origin---Validity---Question involved was a political question and touched upon national security and foreign affairs matters---Political branches of government should have unfettered power over such matters---High Court declined to sit in judgment over decision-making of the Executive which was equipped with reports and relevant information to make a final decision---High Court declined to rebalance imperatives of the decision in order to come to a different conclusion---High Court at best, could ask the Executive to review its decision in respect of law books and journals---Matter which entailed foreign policy implications must reside with political branches including power to review---Notification SRO 927(I)/ 2019 dated 09-08-2019 was not un-Constitutional and was issued validly---High Court directed Federal Government to appoint an officer to hear review/revision pertaining to issues raised by petitioner/book seller company particularly in respect of law books and journals, as right to read was a fundamental right and was enshrined in the Constitution---High Court further directed Federal Government to consider recommendations of the Officer so appointed and decide thereafter---High Court also directed Federal Government to issue instructions regarding filing of review petitions by private persons---Constitutional petition was disposed of accordingly. Chief Constable v Evans (1982) All ER 141, 154; City School Private Limited v. Government of the Punjab and others PLD 2018 Lah. 509; Griswold v. Connecticut, 381 U.S 479 (1965) at 482; Chicago and Southern Airlines, Inc. v. Waterman S.S. Corp., 333 U.S 103 (1948); SSHD v. Rehman [2001] UKHL 47; e.g. R (National Council for Civil Liberties) v. SSHD [2019] EWHC 2057 (Admin) and R (Miranda) v. SSHD [2016] EWCA Civ 6 rel. Asfandyar Khan Tareen, Arslan Saleem Chaudhry, Arslan Akram, Rana Muhammad Afzal Razzaq Khan, Ghulam Abbas Haral, Muhammad Umer Rafiq, Abdul Latif and Muhammad Adeel Chaudhry for Petitioners. Sh. Izhar ul Haq and Ch. Imtiaz Elahi for FBR. Asad Ali Bajwa, D.A.G. for Respondents. Date of hearing: 5th December, 2023.

Summary: (a) Family Courts Act (XXXV of 1964)--- ----S. 5---Guardians and Wards Act (VIII of 1890), S. 25---Custody and guardianship of minor---Family Court, jurisdiction of---Scope---Matters of custody and guardianship both are also governed under Family Courts Act, 1964---Family Court is only bound by section 25 of Guardians and Wards Act, 1890 to follow procedure during trail of guardian and custody matters. (b) Family Courts Act (XXXV of 1964)--- ----S. 25A(2b)---Family suits---Inter-Provincial transfer---Applicant/ mother of minors sought transfer of guardianship proceedings and family appeal pending before Lower Appellate Court at place "I" to place "K" in another province---Held, that guardianship and custody cases which were instituted in Family Court would be treated as proceedings under Family Courts Act, 1964---In absence of any specific provision in Guardians and Wards Act, 1890, regarding transfer of matters from one province to another, guardianship and custody cases could be transferred according to section 25A(2b) of Family Courts Act, 1964---Minors' welfare would follow their mother's residence---It was not necessary for applicant/mother to attach documents proving her residence and minors' enrolment in school at place "K"---Supreme Court transferred the proceedings pending before Courts at place "I" to place "K"---Application was allowed. Anne Zahra v. Tahir Ali Khilji 2001 SCMR 2000; Muhammad Khalid Karim v. Saadia Yaqub PLD 2012 SC 66; Ihsan-ur-Rehman v. Najma Parveen PLD 1986 SC 14; Sakhawat Ali v. Shui Khelay PLD 1981 SC 454; The State v. Naeemullah Khan 2001 SCMR 1461 and Rabia Ahmad v. Bilal Ejaz 2022 SCMR 733 rel. Muhammad Habib Ullah Khan, Advocate Supreme Court for Applicants. Dr. Babar Awan, Sr. Advocate Supreme Court for Respondent. Date of hearing: 2nd January, 2025.

Summary: (a) Specific Relief Act (I of 1877)--- ----Ss. 8 & 42---Suit for declaration, partition and possession---Person of unsound mind suffering from chronic mental ailments---Property transaction---Onus on beneficiary to prove that transaction was bona fide---Evidence brought on record had established the factum that the plaintiff suffered from mental ailments and that she remained hospitalized from time to time---Question of unsoundness of mind involved questions of fact and it stood proved on the basis of preponderance of evidence and subsequently concurrently affirmed by two competent courts---Defendants had not denied the mental condition of the plaintiff but one of the siblings (defendant No.1) had taken the stance that this medical condition did not exist when the power of attorney was executed in his favour and transactions relating to the two properties were made---However, the defendants could not discharge the onus to this effect and, therefore, the issue was decided against them---Except for defendant No.1 ( in whose favour the purported power of attorney was executed) no other sibling had entered the witness box---Defendant No.1 had admitted that the sale consideration was not paid to the plaintiff, rather, according to his deposition, it was received by defendant No.2---Receipt was also executed by two other siblings---Defendant No.1 himself was a beneficiary of the transfer of the agricultural property while the share in the house was transferred by him pursuant to a power of attorney---Defendant No.1 had made contradictory statements in his deposition regarding the sale of the agricultural land in the name of her mother---Defendant No.1 also failed to bring on record reliable and confidence inspiring evidence to establish that the execution of the power of attorney by a person who suffered from chronic and serious mental ailments and the transactions made on her behalf or attributed to her were bona fide and sustainable- --Suit filed by plaintiff through her son as next of friend was rightly decreed---Petitions were dismissed and leave to appeal was declined. (b) Specific Relief Act (I of 1877)--- ----S. 27(b)---Specific performance of contract---Relief against parties and persons claiming under them by subsequent title---In cases involving protection under section 27(b) of the Specific Relief Act 1877 ('Act of 1877') the subsequent vendee who asserts that he is a bona fide purchaser i.e. a transferee for value has to discharge the initial onus---Latter has to discharge the initial onus to the effect that; he had acquired the property for due consideration and thus is a transferee for value; he or she, as the case may be, has to show that the sale was for a price paid to the vendor and not otherwise; there was no dishonesty of purpose of tainted intention to enter into the transaction thereby meaning that the latter had acted in good faith or bonafidely and, lastly, that he/she had taken reasonable care to inquire i.e. had acted as a person of ordinary prudence in making inquiries expected of a purchaser who intends to acquire a good title for the value being paid for. Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 and Gulzar Ahmed and others v. Ammad Aslam and others 2022 SCMR 1433 ref. (c) Civil Procedure Code (V of 1908)--- ----S. 100---Second Appeal---Scope---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-- -Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under section 100 of the C.P.C. Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777 Haji Sultan Ahmed through Legal Heirs v. Naeem Raza 1996 SCMR 1729 ref. Hafiz Muhammad Yousuf, Advocate Supreme Court (in C.P. No. 3210-L of 2023) Raja Imran Aziz, Advocate Supreme Court (in C.P. No. 5181 of 2023) for Petitioners. Navid Ashiq Alvi, Advocate Supreme Court for Respondents (in both cases). Date of hearing: 22nd April, 2024.

Summary: ----S.18---Blocking of Computerized National Identity Card (CNIC)---Principle---Even though S. 18 of National Database and Registration Authority Ordinance, 2000 explicates the power to cancel, impound or confiscate the CNIC as an eventual punitive action but no powers are integrated or ensuite to block CNIC of any person unless it is finally determined or adjudicated that the card issued to any such person should be cancelled, impounded or confiscated. (b) Specific Relief Act (I of 1877)--- ----Ss. 42 & 54---National Database and Registration Authority Ordinance (VIII of 2000), S. 47---Suit for declaration and injunction---Adopted child---Computerized National Identity Card (CNIC), issuance of---Applicant/National Database and Registration Authority was aggrieved of concurrent findings of facts by two Courts below whereby suit and appeal were decided in favour of respondent/plaintiff---Respondent/plaintiff was an adopted child and applicant/Authority had denied issuance of CNIC to him---Validity---There is no provision under National Database and Registration Authority Ordinance, 2000, under which applicant/Authority is authorized or vested with any powers to not register an adoptee---Applicant/Authority can take help from S. 47 of National Database and Registration Authority Ordinance, 2000 which deals with removal of difficulties---Applicant/ Authority had shown its willingness to issue CNIC to respondent/ plaintiff by mentioning name of his adopting father and name of mother as blank/Not applicable---Revision was disposed of accordingly. Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Naheed Nusrat Hashmi v. Secretary Education (Elementary) Punjab PLD 2006 SC 1124; Naseer Ahmed Siddiqui v. Aftab Alam PLD 2013 SC 323; Mehmood ul Hassan Khan v. DOW University of Health Sciences PLD 2008 Kar. 49; Joan Marg Carter v. Albert William Carter PLD 1961 SC 616; Mehr-un-Nisa Baloch v. Appellate Committee PLD 1978 Kar. 214; Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent Loralai 1980 SCMR 456 and Ziaullah v. District Magistrate Nawabshah 2000 CLC 406 ref. Mukesh Kumar G. Karara, Ghulam Hussain and Safdar Kamal, Alqamah Bin Mehmood for Applicant. Sarfaraz Ahmed Akhund, Ashfaque Hussain Abro, Assistant Attorney General and Ali Raza Balosh, A.A.G. for Respondents. Date of hearing: 2nd June, 2023.

Summary: (a) Civil Procedure Code (V of 1908)--- ----O.VII, R. 11---Rejection of plaint---Piecemeal rejection---Multiple reliefs---Principle---Law does not permit piecemeal rejection---If even one prayer in plaint is found to be maintainable, plaint cannot be rejected in parts. (b) Civil Procedure Code (V of 1908)--- ----O. VII, R. 11(a)---Subsisting cause of action---Effect---Plaintiff is required to demonstrate not only that a right has been infringed in a manner entitling him to relief but also that at the time of approaching the Court, the right to seek that relief was subsisting. (c) Civil Procedure Code (V of 1908)--- ----O. VII, R. 11---Rejection of plaint---Material to be relied upon---Principle---If some material apart from plaint is available on record and admitted by plaintiff, the Court may take such material into consideration---In case of mixed questions of law and fact, correct approach is to allow suit to proceed to written statement and discovery phases, determining the lis either by farming of preliminary issues or through a regular trial with equal opportunities for both parties. (d) Civil Procedure Code (V of 1908)--- ----O.VII, R.11---Rejection of plaint---Suo motu powers---Applicability--- Application of Order VII, Rule 11, C.P.C. is independent and does not require waiting for filing of written statement---Court may even reject plaint on its own motion as a sense of duty, if it is found to be genuinely hit by any of the disability or infirmity provided in the clauses of Order VII, Rule 11, C.P.C. (e) Specific Relief Act (I of 1877)--- ----Ss. 39, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for cancellation of document, declaration and injunction---Rejecting of plaint---Oral gift---Concurrent findings of facts by the Courts below, setting aside of---Petitioner/plaintiff claimed to be owner of suit property on the basis of oral gift deed---Trial Court rejected the plaint and the order was maintained by Lower Appellate Court as well as by High Court---Validity---Controversy involved did not support conclusion that petitioner/plaintiff approached Court without cause of action or that the plaint was barred by any law under Order VII, Rule 11, C.P.C.---Approaching of petitioner/plaintiff with clean or unclean hands was irrelevant for rejecting the plaint when triable issues were discernable for proper adjudication---Summary rejection would unjustly render the parties remediless---Purpose of remedy of appeal is to ensure that Court below had decided the lis in accordance with the law and without any error---Where glaring errors, non-reading or misreading of evidence or any legal and jurisdictional issues arise, the stumbling block of doctrine of concurrent findings cannot shield flawed and erroneous decisions from correction---Supreme Court quashed and set aside the order passed by Trial Court rejecting the plaint, which was affirmed by Lower Appellate Court and then by High Court in second appeal---Supreme Court remanded the matter to Trial Court for decision afresh on merits after recording of evidence---Appeal was allowed. (1838) 4 Myln and Cr 134 C. M. Row, Law of Injunctions, 8th Edition; Cf. Ashwender v. Teinessee Valley Authority, 297 U.S. 288, p. 325; L. Ed. 688 (1936), p. 699; Cf. 62 Harvard Law Review at pp. 875-76 [Ref: Anand 85 Iyer's Commentary on Specific Relief Act, 11th Edition, Page 927 and Al-Tamash Medical Society through Secretary v. Dr. Anwar Ye Bin Ju 2017 MLD 785 ref. Naeem Suleman, Advocate Supreme Court for Petitioner. Rafiq Ahmed Kalwar, Advocate Supreme Court, Ghulam Rasool Mangi, Advocate-on-Record for Respondent No. 4 along with Respondent No.4. Hakim Ali Shaikh, A.A.G. for Respondents Nos. 1-3. Date of hearing: 24th December, 2024.

Summary: ----S. 54---Specific Relief Act (I of 1877), Ss. 8, 12 & 39---Balance sale consideration---Deposit in court---Scope---Agreement to sell, performance of---Vendor/appellant instituted a suit for cancellation of agreement to sell and restoration of possession---Vendee/respondent instituted a suit for specific performance---Single Judge decided the suit directing the vendee to deposit the balance sale consideration along with 10% per annum simple markup from the date of filing the case and Rs.50,000/- per month being monthly rent for utilizing the suit property and vendor was also directed to execute a conveyance deed in favour of the vendee handing over all original documents of the suit property---Validity---Single Judge rightfully dismissed the vendor's suit due to her failure to fulfil her obligations---Vendee after payment of earnest money remained in possession of the suit property after completion of construction work and continued to benefit from its use-- -Significant economic changes, such as currency devaluation and an appreciation in the property's value further exacerbated the vendor's position---There is no statutory mandate under the Specific Relief Act, 1877, compelling the plaintiff (vendee) to tender the outstanding sale consideration in court at the time of filing or presenting the plaint, nor at the admission of the suit before the issuance of summons to the defendant---Deposit of the sale consideration or balance thereof in court is not an automatic or statutory precondition---Instead, such deposit necessitates a specific court order, accompanied by a stipulated timeline and repercussions for non-compliance---Vendee's initial failure to deposit the remaining balance had not inherently disqualified him from seeking specific performance, as long as the court's directive to deposit the balance consideration---Adjudications of the Single Judge were predicated upon a meticulous and exhaustive evaluation of the evidentiary material adduced---Vendor's dereliction in procuring the indispensable property documents and the vendee's partial performance were determinative factors that decisively influenced the judgment of Single Judge---Decision to dismiss the vendor's suit while concurrently mandating the vendee to discharge his financial obligations epitomized an equitable and jurisprudentially sound resolution of the dispute---High Court Appeals filed by both the parties were dismissed, in circumstances. Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952 and Meer Gul v. Raja Zafar Mehmood 2024 SCMR 1496 rel. Badar Alam and Kashif Badar, for Appellant (in H.C.A. No.158 of 2020) and for Respondent (in HCA No.185 of 2020). Abdul Qadir Khan for Respondent (in H.C.A. No.158 of 2020 and for Appellant (in H.C.A. No. 185 of 2020). Dates of hearing: 6th, 26th September and 9th October, 2024.