Summary: Summary pending

Summary: 335C.O. (Commercial) 78260/24 Mr. Usman Latif Vs Ms Bashir Jamil & Brothers Pvt Limited etc Mr. Justice Muhammad Sajid Mehmood Sethi 01- 07- 2025 2025 LHC 5072

Summary: ----S.155---Representation of the People Act (LXXXV of 1976) [since repealed], S. 67 (3)---Right of appeal---Distinction---Appeal under S. 155 of Elections Act, 2017 lies to Supreme Court against a "final decision" of the Tribunal---In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) Interpretation of document--- ----Nature, determination of---Principle---Merely captioning an application or a document is not always material rather it is the instrument, application or document which determines its nature. Asif Raza Mir v. Muhammad Khurshid Khan 2011 SCMR 1917 rel. (b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- -----Ss.19 & 22---Limitation Act (IX of 1908), S. 5---Civil Procedure Code (V of 1908), O.XXI, Rr. 89 & 90---Constitution of Pakistan, Art. 199---Constitutional petition---Execution of decree---Auction, setting aside of---Objections---Converting Constitutional petition into appeal---Principle of approbate and reprobate---Scope---Petitioner objected to sale of mortgaged property through auction for recovery of decretal amount---Validity---Petitioner repeatedly changed his stance, firstly, he objected to conduct of auction and secondly, he made request to treat his application as under O. XXI, R. 89, C.P.C.---Petitioner once again resiled from the same and raised challenge to terms of auction---Such frequent shifts and developments were hit by principle of approbate and reprobate---Petitioner could not be permitted to adopt one stance and to resile from the same before fora below and then to file Constitutional petition before High Court permitting him once again to take a somersault---Petitioner did not make any request for permission to deposit any amount under O. XXI, R. 89, C.P.C. and even time period provided by law had elapsed---Constitutional petition was filed much after the period for filing an appeal under S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Limitation period was prescribed by Financial Institutions (Recovery of Finances) Ordinance, 2001, which was a special law to which provisions of S. 5 of Limitation Act, 1908 were not applicable---Petitioner did not make any request nor application to condone the delay was made---No question had arisen to convert Constitutional petition into appeal---High Court declined to interfere in the orders passed by Banking Court which were in consonance with law---Constitutional petition was dismissed, in circumstances. House Building Finance Corporation through Branch Manager v. Abdul Sattar Anjum 2022 CLD 1555; Chaudhary Ghulam Hussain and another v. Messrs Saudi Pak Commercial Bank Limited, Lahore and another 2025 SCMR 298; Ghulam Rasool Bhatti v. Judge Banking Court-II, Lahore and 4 others 2007 CLD 1578; Mst. Anwar Sultana through L.Rs. v. Bank Al-Falah Ltd. and others 2014 SCMR 1222 and Messrs Nice 'N' Easy Fashion (Pvt.) Ltd. and others v. Allied Bank of Pakistan and another 2014 SCMR 1662 ref. Mst. Samrana Nawaz and others v. MCB Bank Ltd. and others PLD 2024 SC 873; Faqir Muhammad v. Fazal Rahman and 13 others 1970 SCMR 662; Federation of Pakistan v. Amir Hamza 2001 SCMR 1959 and Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd) Syed Mukhtar Ali Shah and another 2007 SCMR 569 rel. Ch. Ghulam Murtaza and Mudassar Nazar for Petitioner. Ashar Elahi for Respondent No.1. Ms. Manahil Khan for Respondent No.2. Date of hearing: 23rd June, 2025.

Summary: (a) Constitution of Pakistan- -Art. 185 (3)-Petition for leave to appeal-Principle-Supreme Court does not disturb concurrent findings of the Courts below, save on grounds of legal error apparent on the face of the record. (b) Family Courts Act (XXXV of 1964)- -S. 5, Sched.-Constitution of Pakistan, Arts. 33, 34 & 35-Family dispute-Recovery of dower, dowry article and maintenance-Misuse of judicial process-Dignity of women-Scope-Husband disputing status of wife as a 'female' in all fora below and claiming she was unfit to bear children-Petitioner/husband assailed judgment pertaining to recovery of dower, dowery articles and maintenance by respondent/ wife-Validity-Women in our society constitute a vulnerable group, whose dignity requires vigilant protection and care-Courts cannot be passive venues for perpetuation of social prejudices that harm women and subject them to one trauma after the other-It is not a matter of judicial discretion but of Constitutional and moral obligation that personal dignity of all who appear before Courts should be duly safeguarded, particularly where power imbalance between the parties is so manifest-Supreme Court imposed cost of Rs.500,000/- against petitioner/husband to be paid to respondent/wife, primarily as an expression of strong disapproval of Supreme Court towards misuse of judicial process by the petitioner/husband to inflict gratuitous humiliation upon respondent/wife-Supreme Court directed that if amount of costs was not paid by petitioner/husband, the same would be recovered by way of arrears of land revenue-Supreme Court hoped that present judgment would serve as a reminder to all litigants and counsel that dignity of every individual, particularly of women, must be respected in all judicial proceedings and frivolous allegations attacking personal identity and dignity of a woman would not be countenanced in any Court of law-Petition was disposed of.

Summary: Alternative Dispute Resolution Act (XX of 2017)--- ----S.2(i)---Mediation---Importance/ benefits---Judges/Advocates/Litigants, role/responsibilities of---Mediation is not merely alternative to litigation; it is a paradigm shift in dispute resolution, built on the principles of collaboration, confidentiality, and party autonomy, which offers a non-adversarial framework that empowers parties to shape the outcome of their own disputes, guided by a neutral facilitator rather than a judicial determination---The benefits of mediation are manifold: it reduces the costs associated with protracted legal battles, alleviates the burden on courts and ensures quicker resolution of disputes---The confidential nature of mediation protects the privacy of the parties and its informal setting encourages honest communication and problem-solving---Moreover, the flexibility of the process allows parties to explore creative, interest-based solutions that a court of law may not be empowered to grant---What years of litigation cannot resolve, mediation can achieve within weeks, which reinforces the principle that the earlier a dispute is channeled through mediation, the greater the potential for cost and time savings, reduced emotional strain and restored relationships---Courts must embrace a pro-mediation ethos, particularly at the initial stages of litigation---Judges and lawyers must be sensitized to identify cases fit for mediation and facilitate their referral in a timely manner---Litigants, likewise, should be encouraged to consider mediation and other methods of alternative dispute resolution as a first resort, rather than a last recourse. Messrs Mughals Pakistan (Pvt.) Limited v. Employees Old Age Benefits Institution through Director Law, Lahore and others PLD 2025 SC 1 and Muhammad Naseer Butt v. Additional District Judge, Lahore and others CPLA No. 3519 of 2021 ref. Sardar Muhammad Ghazi Senior Advocate Supreme Court for Petitioners. Barrister Raja Hashim Javed, A.A.G (on Court call).

Summary: (a) Specific Relief Act (I of 1877) --- ----Ss.8 & 42---Qanun-e-Shahadat, (10 of 1984), Art.113---Suit for declaration and possession---Allotment of shops by Municipal Corporation---Defendant alleging plaintiff to be a benami allottee of shop---Burden of proof---Defendant/asserting party failing to discharge onus---Effect---Admissions in pleadings---Defendant admitting in his written statement that shop was allotted to petitioner/plaintiff --- Admitted facts need not be proved---Principle---Essence and scope of S.42 of Specific Relief Act, 1877 emphasized---“Title” and “entitlement”---Distinction --- Brief facts were that the petitioner filed a suit for declaration and recovery of possession regarding suit property i.e. shop claiming it was allotted in his name during a municipal survey, while respondent No. 1 (petitioner’s/ plaintiff’s real brother) was allotted adjoining shop---Both the Trial court and the appellate court dismissed his suit, prompting him to institute the present civil revision---The record showed that the municipal corporation confirmed the allotment of suit property in the petitioner’s/plaintiff’s name, whereas the dispute between the brothers centered on who held the genuine entitlement to the suit property/shop---Core issue for determination before the High Court was as to “Whether, under S.42 of the Specific Relief Act, 1877, the petitioner/plaintiff could lawfully be declared entitled to suit property/shop and recover possession when the allotment stood in his name which fact was not denied by the municipal authority, but was disputed by his brother claiming benami allotment”?---Held: It was evident from the written statement filed by respondents Nos.1 and 2 that there was an admission regarding allotment in the name of petitioner/plaintiff---Allotment in the name of petitioner/plaintiff had not been denied but a specific plea was taken that petitioner was “benami” allottee and respondent/defendant in alternate spent money and got him a shop but did not bother to prove his plea taken in the written statement---Both the courts below failed to read the pleadings as well as evidence of parties and also failed to apply Art.113 of Qanun-e-Shahadat, 1984 which provided that “admitted facts need not to be proved”---It was clear from the record that the petitioner/plaintiff was the allottee of the suit property/shop---Both the courts below failed to interpret and evaluate the words “title” and “entitle” in its true perspective while judging the case between two competitors i.e. petitioner and respondent No.1---While doing so, both the courts below mis-interpreted the said expressions due to which petitioner was non-suited---Respective allotments in favour of petitioner and respondent No.1 were their entitlement and right and equated title as they could sell/transfer their allotment rights to any person by definitely informing the City District Government which was owner of the suit property---Judgments and decrees passed by both the courts below were result of mis-reading and non-reading of record and were not sustainable in the eye of law and same were set aside---Suit filed by the petitioner for declaration and possession was decreed---Present civil revision petition was partially allowed, in circumstances. Amjad Ali and others v. Anwar Shah and others 2025 SCMR 211 rel. Hassanally and others v. Noor Muhammad through this Legal Heirs and another 1995 MLD 1458 ref. (b) Specific Relief Act (I of 1877) --- ----S. 42---Declaration of status or right, seeking of---“Title and “entitlement”, meanings of---Distinction---“Title” refers to a legal right of ownership or entitlement to property which indicates who has the lawful authority or claim over the property in question amongst the contesting parties qua their entitlement---“Entitlement” is to be construed in a broader meaning and cannot be restricted to ownership only. Mian Muhammad Saeed for Petitioner. Ch. Zulfiqar for Respondents Nos. 1 and 2. Respondent No. 3 proceeded against ex parte on 10.10.2023. Date of hearing: 19th June, 2025.

Summary: Summary pending

Summary: (a) Civil procedure – First appellate jurisdiction – Duty to decide all framed issues – CPC, O.XX r.5 – Where an appellate court has itself framed determinative points for decision (six in number here) and has been directed by the Supreme Court to decide the matter on those points, it must render findings on each material issue. Confining adjudication to a single aspect (the “Jirga” paper) amounts to non-compliance with binding directions and abdication of appellate duty. (b) Appellate practice – Compliance with Supreme Court remand directions – Failure to reproduce, analyze, and adjudicate the earlier-framed six points contravenes the Supreme Court’s prior mandate; such omission constitutes material illegality warranting reversal of the appellate judgment. (c) Evidence – Misreading/non-reading – Exhibit status of document – Where the trial record shows the “Jirga decision” dated 18-12-2009 was exhibited (Exh. P.A.) and supported by marginal witnesses, treating it as an unexhibited plain paper is a manifest misreading/non-reading of material evidence, vitiating the judgment. (d) Evidence assessment – Civil standard – Preponderance of probabilities – An appellate court cannot decline to evaluate oral testimony by declaring both sides “equal” without comparative reasoning. Documentary evidence does not automatically trump oral evidence; a qualitative, issue-wise appraisal is required. Failure to undertake such appraisal is a misdirection in law. (e) Specific performance / Registration questions – Specific Relief Act, s.12; Registration Act, 1908, s.17; Transfer of Property Act, 1882, s.53-A; Contract Act, 1872, s.2(e) – Pleas regarding (i) whether the “Jirga decree” constitutes a concluded contract, (ii) whether it required registration, (iii) applicability of part-performance, and (iv) essential contractual elements remain to be determined by the High Court upon comprehensive reconsideration of all six framed issues. (f) Practice & procedure – Finality vs completeness – While a single determinative point can sometimes dispose of a case, that principle is inapplicable where the controversy is a matrix of interrelated questions framed by the court itself; comprehensive adjudication is necessary to secure finality through due process, not through truncation. Disposition: Appeal allowed; High Court judgment dated 13-08-2024 set aside; case remanded to the High Court for fresh decision strictly in conformity with the Supreme Court’s directions and with findings on all six framed issues, within a reasonable time; no order as to costs.

Summary: (a) Guardians and Wards Act, 1890 — S. 25 — Constitution of Pakistan, Art. 185(3) — Custody of minor — Mediation — Modification of High Court judgment in terms of mediated settlement Best interests of child — Co-parenting model through mediation — Settlement given legal effect by Supreme Court — Dispute pertained to permanent custody of minor girl, Meher Fatima, after the death of her mother — Guardian Court and Appellate Court had awarded custody to maternal grandmother (petitioner No.2), with visitation rights to father (respondent No.1) — High Court set aside concurrent findings and granted custody to biological father, holding that third-party caregivers cannot be appointed guardians if a biological parent is alive and not declared unfit — Petitioners challenged this in Supreme Court — Court invoked Article 3 of the UN Convention on the Rights of the Child (ratified by Pakistan) and directed parties to mediate, emphasizing that the child’s best interest is paramount — Mediation facilitated by an accredited mediator, Mr. Umar Farooq, resulted in amicable settlement on custody, visitation, education, and future cooperation — Settlement agreement dated 17.06.2025 filed and adopted by the Court — Petition disposed of accordingly; High Court judgment modified only to the extent inconsistent with the settlement. Judicial Observation: Mediation in custody matters serves as a participatory, child-sensitive mechanism and a viable alternative to adversarial litigation — Emotional wellbeing of a minor cannot be preserved through litigation alone. (b) Alternative Dispute Resolution Act, 2017 — Confidentiality in mediation — Scope and limitations on mediator’s report Confidentiality preserved — Mediator’s role clarified — Legal recognition of mediated outcomes — Mediator’s role was limited to facilitation; no adjudication to be made by mediator — Mediator was directed to observe complete confidentiality and report only on: (i) refusal to mediate or intentional delay; and (ii) settlement proposals exchanged, with express consent — Held, such structured mediation processes are aligned with substantive justice and international child rights jurisprudence — Office directed to transmit Supreme Court’s order and settlement to Guardian Court for decree to be drawn in terms thereof. Final Disposition: Petition disposed of in terms of settlement agreement dated 17.06.2025. Judgment of High Court modified to the extent inconsistent with said agreement. Guardian Court to draw decree in accordance therewith.