Summary: (a) Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), S. 506(ii)---Telegraph Act (XIII of 1885), S. 25-D---Criminal intimidation, penalty for causing annoyance---Bail, grant of---Further inquiry---Allegations against the accused-petitioner were that he blackmailed the daughter of complainant on phone by recording her video---As per statement in FIR or the statement recorded under S.161, Cr.P.C., the victim had not alleged that video had been recorded by the applicant/accused, nor the motive had been defined in FIR or the statement under S.161, Cr.P.C---As per record, the interim challan had not been presented before the Judicial Magistrate---From the perusal of report of Forensic Science Laboratory the objectionable video of the victim was not available thus the Forensic Report neither supported the prosecution nor the applicant/accused---In the present case, admittedly neither the extortion money had been demanded nor the motive had been explained in the FIR nor in the statement before the Investigating Officer nor in the un-presented interim challan---In the present case, victim had not recorded her statement under S.164, Cr.P.C., nor the prosecution had presented interim challan before the Judicial Magistrate by applying provision of PECA Ordinance, 2016---Prima facie, it was a case of further inquiry---Bail application was allowed, in circumstances. 2019 PCr.LJ 769 and 2018 PCr.LJ 408 ref. Zaigham Ashraf v. The State and others 2016 SCMR 18 rel. (b) Criminal Procedure Code (V of 1898)--- ----S. 497---Bail---Observations of the Court---Scope---Observations on legal point recorded in bail order are only for the purpose of deciding the bail application, which would not affect the merit of case before the Trial Court in any manner and the Trial Court would try the case without being influenced from any observation. Kanji Mal Meghwar assisted by Thakur Bhawan Das Raj for Applicants. Ghulam Abbas Dalwani, DPG for the State. Javed Akhtar Jeendhani for the Complainant. Date of hearing: 17th March, 2025. Order Dr.Syed Fiaz-ul-Hasan Shah, J .--- Through instant bail application, applicant Paresh seeks his admission to post arrest bail in Crime No.02 of 2025 under section 506(ii) P.P.C read with Section 25-D Telegraph Act 1885, registered with P.S Islamkot District Tharkparkar. After the arrest applicant preferred his bail plea before the Court of Judicial Magistrate Mithi vide Criminal Bail Application No.04/2025 (Re-Paresh v. The State) and same was dismissed vide order dated 22.01.2025. Thereafter applicant/accused preferred his bail plea before the Court of Sessions Judge Tharparkar alias Mithi vide Criminal Bail Application No.37/2025 (Re-Paresh v. The State) and same was also dismissed vide order dated 07.02.2025; hence, instant bail application has been maintained. 2. Since the facts of prosecution case are already mentioned in FIR as well as impugned order passed by the Sessions Court Tharparkar alias Mithi, therefore, there is no need to reproduce the same. 3. It is inter alia contended by the counsel for the applicant/accused that the FIR has been registered with considerable delay of two days. The offence mentioned in the FIR does not fall within the prohibitory clause. He further contended that the matter of prosecution was adjourned on the ground of Forensic Science Laboratory report, the report has been obtained by the prosecution which shows that the item No.2 subject No.5 "Video" in the conclusion of said report the video data is not retrieved. The counsel for the complainant states that the prosecution has applied and recommended the Anti-Rape (Investigation and Trial) Act 2021 and Investigation Officer has also recommended sections 21 and 22 of PECA Ordinance 2016 invoking provision of cyber stalking. The victim is under medical treatment, as the victim has suffered mental illness and agony and treated at Agha Khan University Karachi and the young girl is victimized, therefore, applicant is not entitled for bail. 4. The learned D.P.G has contended that the applicant/accused is nominated in the FIR and specific role has been assigned, whereas the victim is suffered from mental illness and agony. He also reiterated that Sections 21 and 22 of PECA Ordinance 2016 are applied in interim challan and the victim firmly implicated the applicant/accused, as he recorded objectionable video, therefore, the applicant/accused is not entitled for the bail. He relied upon the case laws reported in 2019 PCr.LJ 769 and 2018 PCr.LJ 408. 5. Heard the counsel for the parties and perused the record. As per statement in FIR and statement recorded under section 161 Cr.P.C, the victim has not alleged that video has been recorded by the applicant/accused, nor the motive has been defined in FIR and statement under section 161 Cr.P.C. I have seen police file and notice that the interim challan has not been presented before the Judicial Magistrate. The prosecution has no document to show that the challan has been presented timely. It is mandatory upon the prosecution to submit interim challan within the period of 14 days. The bail order was rejected on 22.01.2025 by the Judicial Magistrate Mithi, thereafter learned Incharge Sessions Judge Tharparkar alias Mithi has also declined the post arrest bail of applicant/accused vide order dated 07.02.2025. During such period the prosecution has failed to present the interim challan. From the perusal of report of Punjab Forensic Laboratory the objectionable video of the victim is not available, which is conceded by Mr. Dalwani that the Forensic report is neither supporting the prosecution nor to the Applicant/accused. 6. The case law submitted by learned D.P.G are cases, where the victim had implicated the accused with the motive of extortion money demanded by the accused in that case but in the present case, admittedly neither the extortion/ money has been demanded nor the motive has explained in the FIR nor in the statement before the investigation officer nor in the un-presented interim challan. In the present case the victim has not recorded her statement under section 164 Cr.P.C nor the prosecution has presented interim challan before the Judicial Magistrate by applying provision of PECA Ordinance 2016, while in the cases relied upon by D.P.G statement under section 164 Cr.P.C was recorded. Furthermore the ground of present bail application is different from the case laws relied upon by D.P.G, therefore, both case laws are distinguishable. On the contrary, no interim or final challan has submitted within stipulated time period, which is violation of Section 173 Cr.P.C. 7. The Supreme Court of Pakistan in case of "Hakim Ali Zardari v. State PLD" (Supreme Court-1) case held that the law of bails is not a static law but it is growing all the time moulding itself with the exigencies of time. The fundamental idea to keep incarceration of an accused in a pending trial case is to prevent repetition of the offence or to avoid destruction of evidence and to procure attendance of an accused person during trial of the case, which obviously coupled with the fact that such purposes has to be accomplished, whilst adherence with legal process and determinative compliance of requirement of law of an accused man's right to liberty. which he enjoys along with other rights, which is overtly recognized as freedom of person or citizen. 8. Guidance can also be taken from the case of "Zaigham Ashraf v. The State and others" (2016 SCMR 18). The Honorable Supreme Court of Pakistan held that it is for the prosecution to show sufficient material or concrete record, constituting 'reasonable grounds' that accused has committed an offence falling within the prohibitory limb of Section 497, Cr.P.C whereas the accused has to show that the evidence/material collected by the prosecution creates reasonable doubt in the prosecution. 9. The rule of bail is greatly inspired by the reasonableness of sufficient material of each case on its own inter dependent merits while formulation of tentative assessment on the basic analogy that if the accused is ultimately acquitted after a long process of the trial, the criminal statutory laws do not provide the alternative, remedies or as successive parts to act and perform towards effective measures encompasses the concept of reparation or compensation for long incarceration under charge with unproven or without proven guilt. Although the damages for malicious prosecution is available in the civil laws but it would unequivocally incomprehensive and inadequate remedy for indefinite incarceration during trial of case. A prime illustration of this discussion is that the criminal jurisprudence gravitates me that it is not loquacious. In summation, the criminal statutes do not accommodate or standardized the long incarceration if an accused person ultimately acquits from the subjective charge and only exception exists that an accused person if convict, his incarceration period would be considered and culminated into sentence. If one's look gauge the long incarceration through the progressive analysis of statutory provisions of bails, this complex concept in our jurisdiction has silver bullet resolved by the superior courts as intermediary way balancing the criminal jurisprudence and the constitutional rights of citizens on the yardstick of sufficient material against the seeker of bail or any reasonable doubt turn it into case of further inquiry. 10. Prima facie, it is the case of further inquiry. Therefore, the applicant is granted post arrest bail subject to furnishing a solvent surety in sum of Rs.70,000/- and P.R bond in the like amount to the satisfaction of Trial Court. 11. Needless to say that any finding given or the observations on legal point recorded herein-above is only for the purpose of deciding this bail application, which will not affect the merit of case before the Trial Court in any manner and the Trial Court will try the case without being influenced from any observation. JK/P-13/Sindh Bail granted.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Bail, grant of---Further inquiry---Allegations against the accused-petitioner were that he along with his co-accused committed murder of the brother of complainant by firing---Complainant implicated the applicant and co-accused based on suspicion, despite not witnessing the applicant's physical participation in the alleged crime---In the defense's submission, counsel provided Call Data Records (CDRs) showing the applicant's location in "S" during the incident---Said fact was also admitted by the counsel for the complainant that on the day of incident applicant/accused was not present as he was in "S"---Prosecution's claim that the applicant coordinated with co-accused through telephonic communication during the alleged incident would be subject to determination during trial proceedings--- Notably, there was a discrepancy in the arrest timeline; police records stated the arrest occurred on 15.09.2022, while the complainant asserted it took place on 18.09.2022--- Additionally, the parties shared a documented history of enmity, primarily stemming from matrimonial disputes, which previously led to criminal litigation--- Given these circumstances, including the Call Data Record evidence, unresolved conspiracy allegations, contradictory arrest accounts and a history of conflicts, sufficient grounds for further inquiry under Section 497(2),Cr.P.C., warranted granting bail---Bail petition was allowed, in circumstances. Muhammad Arshad v. The State 2019 SCMR 572 rel. (b) Criminal Procedure Code (V of 1898)--- ----S. 497---Bail order---Observations/ findings of the Court---Scope---Observations and conclusions rendered in bail order are strictly limited to the disposal of the bail application and do not constitute an opinion on the merits of the case---Such remarks shall not be interpreted as prejudicing the rights, claims or defenses of either party during trial. Mallag Assa Dashti for Applicant. Muhammad Raza, Deputy Prosecutor General for the State. Mujeer Ali Mangi along with Complainant. Date of hearing: 11th March, 2025. order Jan Ali Junejo, J .--- The applicant/accused has filed the present criminal bail application seeking post-arrest bail in connection with FIR No. 343 of 2022, registered at P.S. Malir Cantt:, Karachi, under Sections 302/109/34 of the Pakistan Penal Code (P.P.C.). Initially, the applicant/accused approached the Sessions Court, which was transferred to the Court of learned VIIIth Additional Sessions Judge, Malir, Karachi, through Bail Application in Sessions Case No.2028 of 2023, which was dismissed by order dated 31.01.2025. 2. The facts relevant to the present criminal bail application are as follows: "Muhammad Jawed, a resident of Malir Cantt, Karachi, reported that on August 3, 2022, at around 11:15 PM, he sent his elder brother, Muhammad Nawaz (48), home on a motorcycle (Honda 125, red, KGL-4337) from his shop near Safoora Saima Residency. At approximately 1:30 AM on August 4, 2022, the police informed him that Nawaz had been shot and killed near Premium Villas and was taken to Jinnah Hospital, where a postmortem confirmed four bullet wounds, including a head injury. Jawed suspected that Nawaz's murder was linked to his second marriage with Mst. Kulsoom Bhatti in 2016, which had caused tensions with her family, leading to legal disputes and a prior murder attempt on Nawaz in 2020. Based on past threats, Jawed accused Kulsoom's relatives-Tariq and Ziaullah (sons of Muhammad Ramzan), Sadiq (son of Jhandi Khan), Ali Ahmed, and Ali Hassan (sons of Nazir Ahmed)-along with unidentified accomplices, of orchestrating the killing". 3. The learned counsel for the applicant argues that the applicant/accused is innocent and has been falsely implicated by the complainant with mala fide intent and ulterior motives. He further contends that the site inspection memo, signed by the complainant, states that the inspection was conducted on his pointation on 04-08-2022 at 7:45 AM, whereas the complainant later claimed that he had taken the body to Sahiwal and only returned around 08/09-08-2022, creating contradictions in his statements. He also contends that the complainant is not an eye-witness and has implicated the accused based on mere presumption, casting serious doubt on the prosecution's case and necessitating further inquiry. He argues that there is an unexplained one-day delay in lodging the FIR, which makes the prosecution story doubtful, and that the Call Data Record (CDR) establishes the accused's presence in GT Road, District and Tehsil Sahiwal, on 03-08-2022, proving he was not in Karachi at the time of the alleged incident. He emphasizes that the accused has been in custody for over 2.5 years, with only the complainant examined so far, indicating no likelihood of an early trial, making indefinite detention unjust. He also points out that the deceased's widow, Mst. Kulsoom, has filed a criminal petition under Sections 22-A and B, Cr.P.C (No. 880/2024), accusing the complainant of falsely implicating her family while harboring an interest in her late husband's property, and since this aspect has not been investigated, the case warrants further inquiry as per PLD 2018 SC 595. He contends that no specific role has been attributed to the accused by the complainant and that the case is based purely on presumptions. He further asserts that the complainant's entire story is fabricated, fictitious, and lacks credibility, that no incriminating material or recovery was made from the accused at the time of arrest, and that the accused has remained in custody for over two years without a conclusive trial, making his prolonged detention unjustified. In light of these arguments, he prays for the grant of bail, emphasizing the presumption of innocence and citing legal precedents supporting bail in such cases. 4. The learned counsel for the complainant argues The learned counsel for the complainant contends that the applicant/accused is directly implicated in the FIR with specific allegations of committing the murder of Muhammad Nawaz, supported by prior enmity and threats issued by the accused and his associates. He argues that the accused had a clear motive to eliminate the deceased due to long-standing disputes arising from the deceased's second marriage, previous legal cases, and threats made by the accused's family. He further submits that the delay in lodging the FIR is well explained, as the complainant was occupied with the burial and legal formalities of the deceased. Additionally, he emphasizes that the complainant's statement and circumstantial evidence, including the nature of injuries sustained by the deceased, point toward the involvement of the accused. He prays that in light of the gravity of the offence, which falls under the prohibitory clause of Section 497 Cr.P.C, the bail application of the accused be dismissed. 5. The learned Deputy Prosecutor General (DPG) vehemently opposes the bail application, arguing that sufficient material is available on record connecting the accused with the commission of the offence. He contends that the allegations against the accused are serious in nature, involving a brutal murder committed in a well-planned manner. He further argues that the Call Data Record (CDR) alone does not exonerate the accused, as mere presence in another city does not conclusively establish innocence, and the possibility of his involvement through hired individuals or accomplices cannot be ruled out. He submits that the ongoing trial has already seen substantial progress, and granting bail at this stage would affect the prosecution's case and possibly lead to witness tampering. Given the seriousness of the offence and the available evidence, he prays that the bail application be dismissed in the interest of justice. 6. I have given due consideration to the arguments advanced by the learned counsel for the applicant/accused, as well as the learned Additional Prosecutor General. A comprehensive review of the case file reveals that the Complainant implicated the Applicant and co-accused based on suspicion, despite not witnessing the Applicant's physical participation in the alleged crime. In the defense's submission, learned counsel provided Call Data Records (CDRs) showing the Applicant's location in Sahiwal during the incident. It is also admitted by the learned counsel for the complainant that on the day of incident applicant/accused was not present as he was in Sahiwal. The prosecution's claim that the Applicant coordinated with co-accused through telephonic communication during the alleged incident will be subject to determination during trial proceedings. Notably, there is a discrepancy in the arrest timeline: police records state the arrest occurred on 15.09.2022, while the Complainant asserts it took place on 18.09.2022. Additionally, the parties share a documented history of enmity, primarily stemming from matrimonial disputes, which previously led to criminal litigation. For instance: ? The deceased, Muhammad Nawaz, lodged FIR No. 16/2020 (under Sections 365/506/34 P.P.C.) at P.S. Malir Cantt:, Karachi against the Applicant and others, though the Applicant was listed in Column No. 2 after Mst. Kulsoom Bhatti (Nawaz's wife) did not implicate Applicant in her Section 164 Cr.P.C. statement. ? Mst. Kulsoom Bibi also lodged FIR No. 140/2016 (Sections 457/506-B/337-A(i)/34 P.P.C.) against individuals, including Ziaullah and others. This case was later resolved through compromise under Sections 345(2) and 345(6) Cr.P.C. on 13.03.2024, indicating prior disputes were settled amicably. Given these circumstances-including the CDR evidence, unresolved conspiracy allegations, contradictory arrest accounts, and a history of conflicts-sufficient grounds for further inquiry under Section 497(2) Cr.P.C. warrant granting bail. This aligns with the precedent in Muhammad Arshad v. The State (2019 SCMR 572), wherein it was observed: "He, however, states that as per police investigation, the petitioners are responsible to the extent of conspiracy/ abetment. Nevertheless, learned Additional Prosecutor General assisted by the learned counsel for the complainant was not able to point out any evidence from the record regarding conspiracy/abetment by the petitioners. The worth and evidentiary value of the plea of alibi taken by the petitioners and their involvement in this case to the extent of conspiracy/abetment shall be determined by the learned trial Court, of course, after recording evidence of the parties. At the moment, the case against the petitioners calls for further inquiry within the ambit of section 497(2), Code of Criminal Procedure". 7. In consideration of the foregoing analysis and grounds, the bail application submitted on behalf of the Applicant is hereby granted. The Applicant shall be released on post-arrest bail subject to his furnishing of a solvent surety amounting to Rs. 200,000/- (Two Hundred Thousand Rupees) and a Personal Recognizance (P.R.) bond in the like amount to the satisfaction of the learned Trial Court. These requirements must be completed to the satisfaction of the trial Court, which will verify the validity and adequacy of the surety bond. It is expressly clarified that the observations and conclusions rendered in this order are strictly limited to the disposal of the present bail application and do not constitute an opinion on the merits of the case. These remarks shall not be interpreted as prejudicing the rights, claims, or defenses of either party-prosecution or defense-during the trial proceedings. The trial Court shall adjudicate the matter independently, uninfluenced by any findings articulated herein, and solely based on evidence adduced and legal principles applicable at the appropriate stage. 8. Above are the reasons for the short order dated 11.03.2025 in terms of which the applicant was admitted to post arrest bail subject to his furnishing a solvent surety in the sum of Rs.200,000/- and a P.R. bond in the like amount to the satisfaction of the learned Trial Court. JK/M-88/Sindh Bail granted.

Summary: Income Tax Ordinance (XLIX of 2001)--- ----Ss. 114(6) & 177---Self-assessment of tax---Revision period for correction---Audit proceedings initiated before expiry of 60 days period revision---Legality---Taxpayer / company assailed initiation of audit proceedings when the 60-days period for revision had not elapsed---Validity---Section 114(6) of the Income Tax Ordinance, 2001 ('the Ordinance, 2001'), explicitly grants a taxpayer the right to revise a return within 60 days of its filing if any omission or wrong statement is discovered---Said provision (under S. 114(6) of the Ordinance, 2001) confers a substantive right upon taxpayers to correct errors or omissions in their returns without penalty provided the revised return is filed within the stipulated time---The proviso to S. 114(6) of the Ordinance, 2001 further clarifies that no approval from the Commissioner is required if the revised return is filed within the 60-days period ; which underscores the legislative intent to provide taxpayers with a clear opportunity to rectify mistakes within the specified timeframe---Self-assessment of tax is the salient and most distinguishable feature of the Ordinance, 2001---Section 114(6) of the Ordinance, 2001 is a substantive provision intended to facilitate voluntary compliance and correction of errors, whereas S. 177 of the Ordinance, 2001 provides enforcement mechanism---No overriding effect has been given under S. 177(1) of the Ordinance, 2001 above the provisions of S. 114 of the Ordinance, 2001 including subsection (2) thereof, as such the same is to be construed harmoniously with other provisions of the Ordinance, 2001 including S. 114(6) which confers right upon taxpayers to revise return with 60-days---The issuance of notice under S. 177(1) of the Ordinance, 2001 initiating audit before the expiry of 60-days period under S. 14(6) of the Ordinance, 2001 cannot be countenanced for that would undermine the right of a taxpayer to revise the return and benefit from self-assessment besides rendering S. 114(6) of the Ordinance, 2001 practically redundant and superfluous---There is a presumption under law against attributing redundancy to legislative expression much less a provision of law that confers substantive right in favour of a taxpayer--Taxpayer has a right to revise his return and no provision of law restricts his right to file the revised return---Thus, 60-days period is a statutory safeguard for taxpayers and any action that undermines this right is unlawful---In the present case, the respondents / Department actions in issuing the impugned notices before the lapse of the 60-days period depicted misuse of authority under S. 177(1) of the Ordinance, 2001---The statutory framework of the Ordinance, 2001 envisions a harmonious balance between the taxpayer's right to revise a return and the tax authorities' power to conduct audits---By prematurely initiating audit proceedings, the respondents disrupted this balance and rendered the petitioner's right under S. 114(6) of the Ordinance, 2001 ineffective; which was also clear violation of the principles of fairness and due process---High Court set-aside the impugned notices declaring the same to have been issued without lawful authority and in violation of the petitioner's statutory right under S. 114(6) of the Ordinance, 2001---Constitutional petition, filed by taxpayer, was allowed accordingly. Collector of Sales Tax And Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd. 2005 PTD 1933; Messrs Pakistan Television Corporation Limited v. Commissioner Inland Revenue (Legal), LTU, Islamabad and others 2017 PTD 1372; Messrs Master Foam (Pvt.) Ltd. and 7 others v. Government of Pakistan through Secretary, Ministry of Finance and others 2005 PTD 1537 and Commissioner Inland Revenue, Faisalabad v. Messrs Zahid Jee Fabrics Limited 2021 PTD 1705 ref. Ch. Qamar uz Zaman and Arif Munir for Petitioner. M. Umer Tariq Gill, Assistant Attorney General, Pakistan for Respondent No.1. Syed Zain ul Abideen Bokhari for Respondents Nos.2 to 5-department. Date of hearing: 17th March, 2025.

Summary: ----Ss. 365 & 376---Abduction, forcible intercourse/rape---Appreciation of evidence---Mentally impaired victim---Competency to testify---Alternative means to record testimony---Accused were charged for committing rape with the mentally impaired daughter of the complainant after her abduction---During the trial, Female Medical Officer testified that victim was deaf and dump and unable to speak; that she was mentally retarded and unable to tell about previous such incidents or give relevant gynecological history---Prosecution submitted an application before the Trial Court to determine whether victim was competent to testify---Consequently, the Court summoned victim, conducted a voir dire test and found her unable to testify---However, Trial Court failed to explore whether victim's testimony could have been recorded through alternative means, which declared her incompetent to testify under Arts. 3 & 17 of the Qanun-e-Shahadat, 1984, without seeking the opinion of a qualified psychiatric or psychological expert---Absence of expert evaluation constituted a serious procedural lapse, as mental incapacity did not automatically preclude a witness from providing testimony---Law did not rigidly assume that persons with disabilities were wholly incapable of expressing themselves---In criminal cases involving victims with cognitive or intellectual disabilities, their testimony should not be rejected outright due to their condition---Instead, appropriate procedural accommodations must be made to facilitate their meaningful participation in the legal process---Trial Court should have summoned an expert to assess whether victim communicated her experiences through alternative means before declaring her incompetent to testify---Thus, matter was remanded to the Trial Court with the direction to summon a forensic psychologist or psychiatrist to assess victim's capacity to communicate and the feasibility of recording her testimony through alternative means---Appeal was disposed of in the above terms. Malik Farooq Haider for Appellant (in Crl. Appeal No.692 of 2022). Muhammad Sharif Bhatti for Appellant (in Crl. Appeal No.704 of 2022). Ch. Asghar Ali Gill, Deputy Prosecutor General for the State. Rab Nawaz Khan Baloch for the Complainant. Date of hearing: 28th January, 2025.

Summary: (a) Civil Procedure Code (V of 1908)--- ----Ss. 100 & 101---Second Appeal---Maxim "interest reipublicae ut sit finis litium" (it concerns the state that there be an end to litigation)---Applicability---Provisions restricting grounds that may be taken in second appeal are based on public policy expressed in the maxim "interest reipublicae ut sit finis litium" (it concerns the state that there be an end to litigation)---Conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained---No Court has power to add or enlarge the grounds, so as to determine a question merely on an equitable ground if they come in conflict with them or ignore the provisions of law. (b) Specific Relief Act (I of 1877)--- ----S. 12---Civil Procedure Code (V of 1908), S. 100---Second appeal---Suit for specific performance---Judgment at variance---Findings of facts--- Preference--- Suit filed by respondent/plaintiff was decreed in his favour by Trial Court but Lower Appellate Court allowed appeal of petitioners/defendants and dismissed the suit---High Court while disposing of Second Appeal, decreed the suit in favour of respondent/plaintiff---Validity---If findings of facts reached by Lower Appellate Court are at variance with those of Trial Court, the former are to ordinarily prevail although it would not possess the same value or sanctity as that of a concurrent finding---Such findings by Lower Appellate Court are immune from interference in Second Appeal provided they have passed the test prescribed under section 100, C.P.C.---Findings of two Courts cannot be subjected to a Second Appeal, even if erroneous---In the present case judgment passed in Second Appeal was nothing but a replacement by High Court of its own view in an attempt to do equity which was not permissible under section 100, C.P.C.---Second Appeal could not operate as a regular First Appeal under section 96 C.P.C.---Supreme Court set aside judgment and decree passed by High Court in exercise of Second Appeal and restored that of Lower Appellate Court, as it was an interference and was neither justified nor required---Specific performance was only a discretionary relief and such discretion was lawfully exercised by Lower Appellate Court---Appeal was allowed. District Council Sialkot v. Nazir Ahmed Khan 2001 SCMR 1641 and Mir Abdullah v. Muhammad Ali 1977 SCMR 280 rel. Muhammad Aqil, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellants. Muhammad Saleem Ansari, Advocate High Court and Mrs. Abida Parveen Channar, Advocate-on-Record for Respondent. Date of hearing: 17th March, 2025.

Summary: (a) Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989--- ----R.10(4)---Constitution of Pakistan, Arts. 14, 25 & 27---Compassionate appointment---Married daughter of deceased civil servant---Discrimination---Principle of intelligible differentia---Appellant was daughter of deceased civil servant and was appointed under Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---Appointment of appellant was terminated after she contracted marriage---Validity---Reasonable classification must be founded on intelligible differentia and must bear rational nexus to the object sought to be achieved by law---Exclusion of married daughters, despite Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, itself is inclusive and silence on marital status lacks any rational basis---No intelligible differentia is discernible between a married son and a married daughter that would justify such exclusion in light of the underlying purpose of Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, which is to provide compassionate economic relief to bereaved family of a deceased or incapacitated civil servant---Such arbitrary classification is not only unreasonable but plainly unconstitutional, offending the guarantees of equality (Article 25), non-discrimination in public service (Article 27), and the right to dignity (Article 14)---Such act of authorities had undermined expectations of deceased civil servants whose families were assured of lawful security under the compassionate appointment framework---Supreme Court declared clarification of authorities and letter dated 28-04-2023, whereby married daughters were excluded from compassionate appointment under Rule 10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, to be discriminatory, ultra vires, issued without lawful authority, and incompatible with Constitutional guarantees and international legal obligations---Supreme Court directed respondent/authorities to restore appointment of appellant with all back-benefits and set aside judgment passed by Service Tribunal---Supreme Court reaffirmed that all judicial and administrative authorities bear a Constitutional responsibility to adopt gender-sensitive and gender-neutral language; that this was not a mere formality but reflected a substantive commitment to the values of dignity, equality, and autonomy guaranteed to all citizens under Articles 14, 25, and 27 of the Constitution---Supreme Court observed that the Judiciary must lead by example, ensuring that the words used to interpret and apply law did not themselves had become instruments of exclusion---Appeal was allowed. S.G.G. Edgar, Craies on Statute Law (Universal Law Publishing Co, 7th Edition, 1971); Muhammad Nadeem Arif v. IG Police, Punjab 2011 SCMR 408; Federal Public Service Commission v. Altaf Hussain 2015 SCMR 581; Muhammad Bashir Limited v. Government of Pakistan 2015 SCMR 630; Province of Punjab v. Kanwal Rashid 2021 SCMR 730; Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910; Union of India v. Majji Jangammayya AIR 1977 SC 757; B.N. Nagarajan v. State of Karnataka AIR 1979 SC 1676; P.D. Aggarwal v. State of U.P. AIR 1987 SC 1976; Union of India v. Arun Kumar Roy AIR 1986 SC 737; State of Madhya Pradesh v. GS Dall AIR 1991 SC 772; JAC of Airlines Pilots Association v. DG, Civil Aviation AIR 2011 SC 2220; N S Bindra, Interpretation of Statutes (LexisNexis, 13th Edition, 2022); Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Federation of Pakistan v. Shuja Sharif 2023 SCMR 129; Hadayat Ullah v. Federation of Pakistan 2022 SCMR 1691; Syed Azam Shah v. Federation of Pakistan 2022 SCMR 201; Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Meenakshi Dubey v. Madhya Pradesh AIR 2020 MP 60; Smt. Bhuvaneshwari V. Puranik v. State of Karnataka AIR 2020 Kar. 2303; Superintendent of Police v. Ijaz Aslam 2024 SCMR 1831; Vice Chancellor Agriculture University v. Muhammad Shafiq 2024 SMCR 527; Pakistan Peoples Party Parliamentarians v. Federation of Pakistan PLD 2022 SC 574; Dr. Vijaya Manohar v. Kashi Rao AIR 1987 SC 1100; Sir William Blackstone in William Blackstone, Commentaries on the Laws of England, Book The First: Chapter the Fifteenth: Of Husband and Wife (Oxford Press) defines coverture as, "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquires by the marriage; E. H. Deering, 'Coverture and Lasting Effects of Gender Inequality: An Analysis through Equal Protection Jurisprudence' Washington University Jurisprudence Review (Volume 16, Issue 2, 2024); Reed v. Reed 404 U.S. 71 (1971); Frontiero v. Ricardson 411 U.S. 677 (1973); Kirchberg v. Feenstra 450 U.S. 455 (1981); Bombay Labour Union v. Messrs International Franchises AIR 1966 SC 942; C. B. Muthamma v. Union of India AIR 1979 SC 1868; Air India v. Nargesh Meerza AIR 1981 SC 1829; Joseph Shine v. Union of India AIR 2018 SC 4898; Murdoch v. Murdoch [1975] 1 SCR 423; Bhe v. Magistrate Khayelitsha 2005 (1) SA 580 (CC); International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social, and Cultural Rights (1966). Pakistan ratified ICCPR in 2010 and ICESCR in 2008 and Pakistan ratified the CEDAW on 3 December, 1996; CEDAW Committee, General Recommendation No. 33 on Women's Access to Justice, UN Doc. CEDAW/C/GC/33 (2015) accessed 23 March, 2025; Martha Albertson Fineman, The Autonomy of Myth: A Theory of Dependency (The New Press, 2005); bell hooks, Feminism is for Everybody: Passionate Politics (South End Press, 2000). She chose to write her name in lowercase to de-emphasize her personal identity and draw attention to her work and message, rather than herself; Simone de Beauvoir, The Second Sex (translated by H.M. Parshley) (Jonathan Cape, 1953); In existentialist terms (drawing on Jean-Paul Sartre, a French philosopher), the "other" means being objectified, excluded from subjectivity, and treated as something less than fully human, especially in social, cultural, and legal systems; Simone de Beauvoir, The Second Sex (translated by H.M. Parshley) (Jonathan Cape, 1953); General Post Office, Islamabad and others v. Muhammad Jalal PLD 2024 SC 1276; Paragraph 25 of the judgment provides that "it is clarified that the instant judgment shall not affect the appointments already made of the widow/widower, wife/husband or child of deceased or retired civil servants"; Zarai Taraqiati Bank v. Sarfraz Khan Jadoon 2021 SCMR 1305; Pakistan Medical and Dental Council v. Muhammad Fahad Malik 2018 SCMR 1956; According to the Merriam-Webster Dictionary, the term "liability" connotes "the quality or state of being liable" or "one that acts as a disadvantage"; Paragraph 7 of the impugned judgment rel. (b) Islamic law--- ----Women rights over their earnings---Scope---Under Islamic jurisprudence, a woman retains full ownership and control over her property, earnings, and financial affairs, irrespective of her marital status---Any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to egalitarian spirit of Islamic law. Surah An-Nisa (4:7): "For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much-a share ordained rel. Rehman Ullah, Advocate Supreme Court for Petitioner (through V.L. Peshawar Registry). Shah Faisal Ilyas, A.A.G. Khyber Pakhtunkhwa along with Ms. Sabra Parween, DEO (F) Karak for Respondents. Assisted by: Umer A. Ranjha, Judicial Law Clerk. Date of hearing: 17th March, 2025.

Summary: Civil Procedure Code (V of 1908) --- ---S.145 ---Surety, liability of---Scope--- Principal's failure to satisfy decree during lifetime --- A surety who undertakes liability for a decree remains personally liable even after the death of the judgment debtor---Personal liability of surety survives death of judgment debtor --- Legal point which came up for determination before the High Court was as to "whether a surety who has undertaken personal liability under a surety bond for satisfaction of a decree can be discharged from such liability solely on account of the death of the judgment debtor"? --- Factual background of the case was that the petitioner filed a constitutional petition on the basis that the original judgment debtor, had passed away, thereby discharging the petitioner (who had furnished a surety bond) from any further liability --- The surety bond did not contain any clause absolving the surety in the event of the judgment debtor's death; hence, liability continued ---Petitioner's case was that any outstanding decree, after the demise of judgment debtor, could be satisfied from the estate of the deceased judgment debtor --- It was an admitted fact that the judgment debtor in his lifetime failed to discharge his liability under the decree, passed for maintenance allowance and dowry articles in favour of respondents Nos. 3 to 6 (wife and minor children)---Held: The terms of surety unambiguously provided that the petitioner undertook to pay amount of Rs. 1,034,000/- in case of failure by the judgment debtor to satisfy the terms of the decree --- Section 145 of the Civil Procedure Code, 1908 contemplates that when a person becomes surety for performance of any decree or its part, or restitution of any property taken in execution of decree or payment of any money under an order of the Court in any suit proceedings, the decree can be executed against him to the extent for which the surety has rendered himself personally liable in the manners therein---The death of judgment debtor could not in law release the surety from his obligation when there was no stipulation to that effect in the bond---No case of interference was made out, hence, in circumstances, the constitutional petition was dismissed in limine. Laxman v. Gorakhji AIR 1920 Nagpur 275; Hashmali v. V. Begwant AIR 1922 Nagpur 112 and Zulfiqar Ali and others v. Liaqat Ali and others PLD 2020 Lah. 350 rel. M. Rizwan Wagha for Petitioner. Order Sultan Tanvir Ahmad, J .--- Learned counsel for the petitioner has pressed this constitution petition on the sole ground that the judgment debtor namely Muhammad Hanif (the 'judgment debtor') since has passed away, therefore, the petitioner who filed surety bond dated 27.03.2021, stood discharged from his liabilities; that the decree even otherwise can be satisfied from the estate of the deceased- judgment debtor. 2. Heard. The terms of surety dated 27.03.2021 (the 'surety') unambiguously provide that the petitioner undertook to pay amount of Rs. 1,034,000/- in case of failure by the judgment debtor to satisfy the terms of the decree dated 13.12.2018 (the 'decree'). Section 145 of the Code of Civil Procedure-1908 contemplates that when a person becomes surety for performance of any decree or its part, or restitution of any property taken in execution of decree or payment of any money under an order of the Court in any suit proceedings, the decree can be executed against him to the extent for which the surety has rendered himself personally liable in the manners, therein. 3. Admittedly, the judgment debtor in his lifetime failed to discharge his liability under the decree, passed for maintenance allowance and dowry articles in favour of respondents Nos. 3 to 6. The death of judgment debtor cannot in law release the surety from his obligation when there is no stipulation to that effect in the bond. Reference in this regard can be made to the cases titled "Laxman v. Gorakhji" (AIR 1920 Nagpur 275 (2)) and "Hashmali v. V. Begwant" (AIR 1922 Nagpur 112). This aspect was also examined by this Court in case titled "Zulfiqar Ali and others v. Liaqat Ali and others" (PLD 2020 Lahore 350) wherein the same plea was declined in the following terms:- "4. The emphasis of learned counsel for the appellants that the moment, Barash Ali, judgment debtor died for whom his clients became surety, their liability stood absolved was not well founded. This proposition has already been clinched by this Court in case reported as Maula Dad v. Wadhawa Singh and others (AIR 1924 Lahore 428) wherein it was concluded that:- "?The surety rendered himself liable for any decree which might be passed against his principal and in consideration for his doing so the plaintiff dropped his proceedings against the very tangible sum of Rs. 1,400. The mere fact that the principal has since died does not absolve the surety from performing his contract, and, following Chandulal Dalsukhram v. Jehang-bhai Chhotalal (1). I find that there is no force whatever in the objection, and I dismiss the appeal with costs." 4. No case of interference is made out. This petition, therefore, is dismissed in limine. No order as to costs. UN/R-7/L Petition dismissed

Summary: (a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)--- ----Ss.5 & 7---Cooperative Boards (PCBL)---Powers and objectives---Property of the Cooperative Board (PCBL) alienated by its Chairman through a private transaction---Powers of the Chairman of Cooperative Board discussed---Mere depositing of amount under an unauthorized/unlawful transaction does not confer any vested legal right---In the present Constitutional petitions, the petitioners challenged an order by the Cooperative Judge dismissing their petitions seeking transfer of shops, based on a private deal with Chairman PCBL, instead of participating in the auction proceedings---High Court considered as to whether the Chairman, PCBL had any jurisdiction to unilaterally alienate the property of PCBL through any private treaty/ negotiation---Held: Perusal of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 showed that no such provision was available in the said enactment whereby Chairman, PCBL was shown competent to pass order for selling the property of the PCBL through any private negotiation / treaty---Moreover, section 5 of the Act ibid empowered the government to constitute a Cooperative Board which shall consist of a Chairman and at least two members---The said Board is bestowed with the jurisdiction under Section 7 of the Act ibid to exercise power as a liquidator under the Cooperative Societies Act, 1925 along with ancillary administrative powers as well---The Chairman, PCBL was not vested with any exclusive power to alienate the properties, assets of the Board through any private treaty or understanding---Even otherwise, no bidder participated in the auction---Attempt of selling through auction remained unsuccessful and present petitioners had not participated in auction process rather they chose a novel avenue to acquire the shops through under the table settlement which always remains vulnerable to collusivety, nepotism, favourtism and corrupt practices and such practice dwindled the legality and veracity of said mode of transactions and thus any arbitrary alienation of public assets at a miserably throw away price remained always open for interference by the competent fora---Further, making of unwarranted deposit of some small amount did not create any right to bound down the owner Board to acknowledge the private treaty and even no document was placed on the record to show that the Chairman was authorized by the Board through any resolution/ consensus of the Board to alienate the shops in question in favour of the petitioners---Petitioners having dragged a state institution in futile and frivolous litigation since the year 2002 without having any sort of valid right were burdened with special cost of Rs.10,00,000/---Petitions were dismissed, in circumstances. Capital Development Authority, CDA through Chairman, CDA, Islamabad v. Ahmed Murtaza and another 2023 SCMR 61; Province of Punjab through the Deputy Commissioner, Collector District Gujranwala and others v. Zulfiqar Ali and another 2024 SCMR 22 and Javed Hameed and others v. Aman Ullah and others 2024 SCMR 89 rel. (b) Constitution of Pakistan--- ----Art. 199---Constitutional jurisdiction of the High Court, invoking of---Scope---Matters against public policies---Contractual matters, enforcement of---Any decision of an authority against the public policies is always void in nature and same is not enforceable through Constitutional jurisdiction of the High Court---Moreover, in contractual matters the Constitutional petition is ordinarily not maintainable. Mehmood A. Shaikh for Petitioners. Armaghan Masood Chaudhary for Respondent. Date of hearing: 20th February, 2025.

Summary: It is a settled principle that substance must prevail over form. The true legal nature of an order is determined by its practical effect, not merely the language used. If an observation alters the mode of enforcement or imposes new obligations, it should be regarded as a modification of the decree, regardless of whether the term "modification" is expressly used. By adding this verification step, the appellate court had changed the rights and obligations arising out from the decree, thereby modifying its scope, extent and enforceability. In view of the above settled principles, when applied to the context of peculiar facts of this case, the appellate court's observations, which had materially modified the judgment of the trial court and introduced a mechanism for determination of factum of encroachment and enforcement thereof, which for all intent and purposes is modification of the judgment of the trial court and be read as part and parcel thereof. The decree-holder's right to immediate execution, granted by the trial court, has been made contingent upon the condition introduced. The crux of these judgments enunciates that the appellate court was fully competent to independently re-evaluate both the legal and factual aspects of the case. It must not merely adopt the trial court's reasoning, but instead apply its own judicious mind to ensure that the decree of the trial court reflects a just and fair outcome. When the appellate court finds that the trial court's order requires adjustment, it has the authority to modify the decree to better align with the principles of justice. Since it has been established that the appellate court modified the judgment of the trial court, so the executing court being the subordinate court was to execute the judgment of the appellate court because the order of the learned civil court merged into the order of the appellate court under the doctrine of "merger" as elaborated by Supreme Court of Pakistan in a well-known case of Sahabzadi MAHARUNISA and another vs. Mst. GHULAM SUGHRAN and another (PLD 2016 Supreme Court 358) as under: - "5. From the ratio of the case law cited above (from both jurisdictions), it is clear that the doctrine of merger has been duly applied to the reversal and modification cases and also to all those cases in which the judgment etc. of a lower forum has been affirmed in appeal or revision by a higher forum(s) (Note: though there are certain exceptions to this rule which shall be specified in the concluding part of this opinion). We may like to add here that the rule of merger shall also extend to the writ jurisdiction of the learned High Court(s) where the decisions of the lower fora, such as Tribunals and Special Courts etc. when challenged have been affirmed by the court in exercise of its constitutional jurisdiction."

Summary: (a) Code of Civil Procedure, 1908 (V of 1908) ----S. 145---Surety bond---Liability of surety---Death of judgment debtor---Effect---Surety undertaking to satisfy decree in case of default---Surety’s liability remains intact despite death of principal judgment debtor unless expressly stipulated otherwise in the bond---Execution proceedings maintainable against surety for enforcement of decree. (b) Execution of Decrees ----Maintenance allowance and dowry articles---Decree for---Failure of judgment debtor to satisfy decree during lifetime---Surety cannot evade obligation on ground of death of judgment debtor---Surety bond terms govern liability independently of principal debtor’s demise. (c) Precedent Cases Followed ----Relied upon: • Laxman v. Gorakhji (AIR 1920 Nagpur 275(2)) • Hashmali v. V. Begwant (AIR 1922 Nagpur 112) • Maula Dad v. Wadhawa Singh and others (AIR 1924 Lahore 428) • Zulfiqar Ali and others v. Liaqat Ali and others (PLD 2020 Lahore 350) Disposition ----Constitutional petition dismissed in limine; no order as to costs.