Legal Research Centre (LRC)

Peshawar High Court

Quarterly
Case Law Update
Online Edition
Volume 3, Issue-IV (October-December, 2022)

Published by:
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Peshawar High Court

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Table of Contents
Sajid Mehmood VS Shazia Azad ................................................................................................. 1
Binding Effect of an offer of special oath, if accepted by the other party. .............................................. 1
Jawad Mir Versus V.C University of Swabi ............................................................................... 2
The Rationality of Writ of Quo Warranto. ................................................................................................ 2
Meera Shafi Versus Ali Zafar ...................................................................................................... 5
Recording of Evidence through Video Conferencing. ............................................................................... 5
Mst Tayyeba Versus Shafqat ....................................................................................................... 7
Perception and perspicacity of cruelty catalogued. ................................................................................. 7
Azra Bibi Versus CPO Pakistan Railways ............................................................................... 11
Actio personalis moriter cum persona: Applicability in service laws. .................................................... 11
Shafiq-ur-Rehman vs The State ................................................................................................ 12
Whether sentences in two different trials, which were of course outcome of one and the same
transaction, can be consolidated or for that matter run concurrently. ................................................. 12
Amir Ullah vs Director Zamung kor......................................................................................... 13
Child Beggars: Parameters of protective custody................................................................................... 13
Abdul Ghaffar Versus Shoukaat ............................................................................................... 14
Custody of Minor .................................................................................................................................... 14
Sardar Muhammad Khan VS Rais Khan Afridi ..................................................................... 15
Requirement of Talb-e- Muwathibat in Pre-emption cases. .................................................................. 15
Doctor Khan Versus the State ................................................................................................... 15
Jurisdiction of High Court to entertain bail in case where appeal against the Judgment of a High Court
is pending before the Hon`ble Supreme Court. ...................................................................................... 15
Irfan Ullah Vs Federation of Pakistan ...................................................................................... 17
Art:25A (Eighteenth Amendment) Right to Education Discussed .......................................................... 17
Fazl-e-Khaliq vs. Dr. Neloofar Yousafzai ................................................................................. 21
Withdrawal of appeal by the counsel without authorization and consent of the principal falls within
the ambit of fraud, misrepresentation and collusion as it gives undue advantage to the opposite party.
................................................................................................................................................................ 22
Mst. Naseem Ishaq and others Versus Khizar Hayat and others........................................... 24
Statute providing change of forum: Effect whether prospective or retrospective? .............................. 24
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Muhammad Saeed and others v. Haidar Ali and others. ........................................................ 26

The use of certain imputations against a person in an application before an executive authority for
looking into certain issues, such as drinking water, irrigation and Shamilat land in a village, would not
be defamation. ........................................................................................................................................ 26
 Family Court and the same acted upon according to
his will.
Supreme Court of Pakistan
7. In the case of Muhammad Ali Vs Major
2023 SCMR 153
Muhammad Aslam and others (PLD 1990 SC 841),
Sajid Mehmood VS Shazia Azad it was held by this Court that the words "be
conclusive proof of the matter stated" in Section 11
of the Oaths Act, 1873 obviously means that the
Binding Effect of an offer of special oath, if evidence on oath so given shall be conclusive proof
accepted by the other party.
in the suit in which such evidence is recorded of the
MUHAMMAD ALI MAZHAR, J. matter in respect of which the parties have agreed to
be bound. Whereas in the case of Muhammad
6. The letter of the law makes it unequivocally clear
Mansha and 7 others Vs Abdul Sattar and 4 others
that under the provisions of the Oaths Act, a party in
(1995 SCMR 795), this Court held that the offer
litigation can offer the opposite party to accept or
was voluntarily made by the plaintiff which was
reject the claim on special oath, but they cannot
accepted there and then by the defendant and, as
compel each other to take the special oath, however
such, the Trial Court rightly disallowed the plaintiff
if the offer is accepted by the other party, then a
to resile from it and after administering the oath
binding agreement comes into existence and the
according to the desire of the plaintiff, dismissed the
party making the offer has no right and authority in
suit of the plaintiff and the appellate Court as well
law to resile from it. When the Court communicates
as the High Court rightly concurred with it. While
the offer to the other party and gets hold of his
in the case of Mahmood Ali Butt Vs Inspector-
assent or refusal, as the case may be, it in fact plays
General of Police, Punjab, Lahore and 10 others
a role as an intermediary between the parties and
(PLD 1997 SC 823), it was held by this Court in
when the offer is accepted by the other party, the
paragraph 10 of the judgment that “the special oath
acceptance is transmitted to the party inviting the
is administered to a party or nominated person or a
other to take special oath, thereafter the agreement
witness when a party offers to bind itself to the
is completed between the parties unless the offer is
statement to be made on oath by the other party. In
withdrawn before its acceptance by the other side.
Mst. Asifa Sultana v. Honest Traders, Lahore and
The stipulations of the Oath’s Act cannot be
another (PLD 1970 SC 331) it was observed that the
construed to give an unfair or inequitable advantage
offer to abide by the oath of opposite-party and its
to one party over the other, so in the event of an
acceptance by the other party was in the nature of
offer or proposal to be bound by the oath of the
an agreement and the question whether the party
opposite party, then obviously, due to the mutuality
who offered can resile from it depends on the facts
of the promise between them, the party making an
and circumstances of each case. Again, in the cases
offer has no right to resile from it after the offer is
of Muhammad Akbar and another v. Muhammad
accepted and the special oath is taken. In the
Aslam and another PLD 1970 SC 241; Attiqullah v.
absence of any such satisfactory or sufficient cause
Kafayatullah 1981 SCMR 162; Muhammad Mansha
the Court is obligated to implement the agreement
and 7 others v. Abdql Sattar and 4 others 1995
and to record the statement of the party concerned
SCMR 795; Muhammad Rafique and another v.
to make a decision in the case accordingly. The
Sakhi Muhammad and others PLD 1996 SC 237;
petitioner cannot wriggle out or withdraw his offer
Maulvi Muhammad Ramzan v. Muhammad Ismail
which was given by him voluntarily before the
1982 SCMR 908 and Saleem Ahmad v. Khushi
Muhammad 1974 SCMR 224 the principle laid
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down is that a party offering to have a cause interest in the relator is needed, nor is it necessary to
decided on oath and undertaking to abide by the explain which of his specific legal rights is
special oath of a person (party or not a party to the infringed. It is enough for this issue that the relator
suit) cannot be allowed to resile from it, for it is a member of the public and acts bona fide. This
amounted to a binding contract unless it was found writ is more in the nature of public interest litigation
to be void or stands frustrated. So validity of where undoing of a wrong or vindication of a right
decisions given on the basis of special oath was is sought by an individual for himself, or for the
upheld under the provisions of Oaths Act, 1873. It good of the society, or as a matter of principle. The
will, therefore, be seen that "special oath" made conditions necessary for the issuance of a writ of
basis of the decision in the instant case is not quo warranto are that the office must be public and
covered by Article 163 of the Qanun-e-Shahadat created by a statute or Constitution itself; the office
and reference to Article 163 and alleged violation of must be a substantive one and not merely the
any supposed prescribed procedure urged by the function of an employment of a servant at the will
learned counsel is misconceived” during the pleasure of others; there has been
contravention of the Constitution or a statute or
2023 SCMR 162
statutory instrument by appointing such person to
Jawad Mir Versus V.C University of Swabi that office. The essential grounds for issuing a writ
of quo warranto are that the holder of the post does
The Rationality of Writ of Quo Warranto. not possess the prescribed qualification; the
appointing authority is not the competent authority
MUHAMMAD ALI MAZHAR, J. to make the appointment and that the procedure
8. The writ of quo warranto is in the nature of prescribed by law has not been followed. The
setting forth an information before the High Court burden of proof is then upon the appointee to
against a person who claimed and usurped an office, demonstrate that his appointment is in accordance
franchise or liberty. The rationality of the writ of with the law and rules. It is clear that before a
quo warranto is to settle the legality of the holder of person can claim a writ of quo warranto, he must
a statutory or Constitutional office and decide satisfy the court, inter alia, that the office in
whether he was holding such public office in question is a public office and is held by a usurper
accordance with law or against the law. The writ of without legal authority, and that necessarily leads to
quo warranto can be instituted by a person though the enquiry as to whether the appointment of the
he may not come within the meaning of words said alleged usurper has been made in accordance
"aggrieved person". For the purpose of maintaining with law or not. The concept and aftermath of the
a writ of quo warranto there is no requirement of an writ of quo warranto has been articulated in
aggrieved person, and a whistle blower need not to different jurisdictions with the following approach
be personally aggrieved in the strict sense and may and frame of mind: -
relay the information to the court to enquire from Halsbury's Laws of England (Third Edition),
the person holding public office. The purpose of the Volume 11, page 145: Quo warranto.
writ of quo warranto is to pose a question to the
holder of a public office: “where is your warrant of An information in the nature of a quo warranto
appointment by which you are holding this office?” took the place of the obsolete writ of quo warranto
In the writ of quo warranto no special kind of which lay against a person who claimed or usurped
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an office, franchise, or liberty, to enquire by what attempting to usurp power not granted him by the
authority he supported his claim, in order that the constitution or laws.
right to the office or franchise might be determined.
Corpus Juris Secundum, Volume LXXIV, page
An information in the nature of quo warranto lay
174-175 The writ of quo warranto is an ancient
only if the office was substantive in character, that
common law, prerogative writ and remedy. Indeed,
is, an office independent in title, and if the holder of
it is one of the most ancient and important writs
the office was an independent official, not one
known to the common law. The ancient writ was in
discharging the functions of a deputy or servant at the nature of a writ of right for the king, against him
the will and pleasure of others. An information in who claimed or usurped any office, franchise, or
the nature of a quo warranto lay in respect of an liberty, to inquire by what authority he supported
office held at pleasure, provided the office was one his claim, in order to determine the right, or, in the
of a public and substantive character. case of nonuser, long neglect, misuser, or abuse of a
franchise, a writ commanding defendant to show by
Halsbury's Laws of India, Volume 35, Page 145:
what warrant he exercised such franchise, never
Quo warranto proceeding affords a judicial remedy
having had any grant of it, or having forfeited it by
by which any person, who holds an independent
neglect or abuse.
substantive public office or franchise or liberty, is
called upon to show by what right he holds the said Black’s Law Dictionary (Tenth Edition), page 1447:
office, franchise or liberty so that his title to it may Quo warranto 1. A common-law writ used to
be duly determined, and in case the finding is that inquire into the authority by which a public office is
the holder of the office has no title, he would be held or a franchise is claimed. "Quo warranto means
ousted from that office by judicial order in other 'by what warrant?' – or authority? – and was a
words, the procedure of quo warranto gives the proceeding to inquire whether authority existed to
judiciary a weapon to control the executive from justify or authorize certain acts of a public character
making appointments to public office against law or interest. Originally the proceeding of quo
and to protect a citizen from being deprived of warranto was a criminal one instituted by the crown,
public office to which he has a right. These the purpose of which was to find out, in the course
proceedings also tend to protect the public from of a formal inquiry, whether or not persons or
usurpers of public office, who might be allowed to corporations were exercising a privilege or
continue either with the connivance of the executive franchise, illegally, or if persons who had no right to
or by reason of its apathy. do so were occupying some public office. If it were
found that the person or corporation was in fact
American Jurisprudence (Second Edition), Volume
illegally interfering with the prerogative power of
16, page 578:
the crown, or was in fact doing some other illegal
Quo warranto is intended to prevent the exercise of act, it was ousted from the illegal practice or office.
powers that are not conferred by law, and is not Accordingly, it can be seen at once that the
ordinarily available to regulate the manner of proceeding on quo warranto was not one to be used
exercising those powers. It cannot be used to test by private parties in the conduct of ordinary
the legality of official actions of public corporations litigation." Charles Herman Kinnane, A First Book
or officers, though it has been held that it may be on Anglo-American Law 662 (2d ed. 1952).
used to determine whether a constitutional officer is
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9. In our jurisdiction, compliant with the dictum in appropriate cases and subject to availability of
laid down by this Court in various judgments, such admitted facts or irrefutable evidence be exercised
as the case of Masud ul Hassan vs. Khadim Hussain by the High Court under Article 199 and by the
and another (PLD 1963 SC 203), it was held that Supreme Court under Article 184(3) of the
writ of quo warranto was in its nature an Constitution. 10. At this juncture, it is quite
information lying against a person who “claimed or interesting to quote an excerpt from the case of Dr.
usurped an office, franchise or liberty” and was B. Singh vs. Union of India and Others, reported as
intended to enquire by what authority he supported (2004) 3 SCC 363, in which it was held that only a
his claim in order that the right to the office may be person who comes to the court with bona fide and
determined. In the case of Capt. (Retd.) Muhammad public interest can have locus standi. Coming down
Naseem Hijazi vs. Province of Punjab and others heavily on busybodies, meddlesome interlopers,
(2000 SCMR 1720), this Court held that in the writ wayfarers or officious interveners having absolutely
of quo warranto, under Article 199 of the no public interest except for personal gain or private
Constitution of the Islamic Republic of Pakistan the profit, either for themselves or as a proxy for others,
High Court in exercise of its Constitutional or for any other extraneous motivation or for glare
jurisdiction is competent to enquire from any of publicity.
person, holder of a public office to show that under
The court has to be satisfied about (a) the
what authority he is holding the said office.
credentials of the applicant; (b) the prima facie
Whereas in the case of Hafiz Hamdullah vs.
correctness or nature of information given by him;
Saifullah Khan and others (PLD 2007 SC 52), it
and (c) the information being not vague and
was held that the object of writ of quo warranto is to
indefinite. The information should show gravity and
determine legality of the holder of a statutory or
seriousness involved. Court has to strike a balance
Constitutional office and decide whether he was
between two conflicting interests: (i) nobody should
holding such office in accordance with law or was
be allowed to indulge in wild and reckless
unauthorizedly occupying a public office. For
allegations besmirching the character of others; and
issuance of a writ of quo warranto, the person
(ii) avoidance of public mischief and to avoid
invoking the jurisdiction of High Court under
mischievous petitions seeking to assail, for oblique
Art.199 of the Constitution is not required to fulfill
motives, justifiable executive actions. In such case,
the stringent conditions required for bringing
however, the court cannot afford to be liberal. It has
himself within the meaning of an aggrieved person.
to be extremely careful to see that under the guise of
Likewise, in the case of Imran Ahmad Khan Niazi
redressing a public grievance, it does not encroach
vs. Mian Muhammad Nawaz Sharif (PLD 2017 SC
upon the sphere reserved by the Constitution to the
265), this Court held that Constitutional petition in
executive and the legislature. The court has to act
the nature of a writ of quo warranto was
ruthlessly while dealing with imposters and
maintainable against a Member of the Majlis-e-
busybodies or meddlesome interlopers
Shoora (Parliament), if he was disqualified or did
impersonating as public-spirited holy men. They
not possess or had lost his qualification, in such
masquerade as crusaders of justice. They pretend to
behalf. Power to disqualify a member in cases
act in the name of pro bono publico, though they
where for some reason he escaped disqualification
have no interest of the public or even of their own to
at the time of filing his/her nomination papers but
protect.
such fact/event was discovered subsequently, could,
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contemplation when the law was made. If the

question is asked “is it reasonable to suppose that
the legislature intended a court applying the law in
Meera Shafi Versus Ali Zafar the future to ignore such changes and to act as if the
CP No. 1795/2022 world had remained static since the legislation was
enacted?” the answer must generally be “no”. A
https://www.supremecourt.gov.pk/downloads_judge
“historical” approach of that kind would usually be
ments/c.p.1795_2022.pdf
perverse and would defeat the purpose of the
Recording of Evidence through Video legislation.
Conferencing.
10. The updating construction is, however, applied
SYED MANSOOR ALI SHAH, J. only where its application would be consistent with
9. The principle of extension of statutes to new the legislative intention. When a new state of affairs
things, referred to by this Court in the Fakir or matters comes into existence, the courts have to
Muhammad case in 1958, has over the years been consider whether they fall within the legislative
crystallized into the principle of “updating intention. ‘They may be held to do so if they fall
construction” of statutes. As the constant formal within the same genus of facts as those to which the
updating of all laws by the legislature is not expressed [legislative] policy has been formulated.
practicable and each generation mostly lives under They may also be held to do so if there can be
the law it inherits, the legislature is presumed to detected a clear purpose in the legislation which can
have intended that the laws enacted by it should be fulfilled if the extension is made.’ 7 We may
ordinarily be taken as “always speaking” and underline here that the principle of updating
applied at any future time in such a way that gives construction is in consonance with the purposive
effect to its intention in the changed circumstances approach, which this Court has consistently adopted
that have occurred since the enactment of the law. while interpreting different statutes. 8 In fact, the
This is commonly called the “updating purpose and policy of the law, which is to be
construction” of laws.5 The changes that require the interpreted, play a central role in applying this
updating construction of law may include principle.
technological or scientific developments, new
natural phenomena or changes in social conditions, 13. The “virtual attendance” of a witness in court
etc. ‘It is not difficult to see why an updating through the medium of video conferencing enables
construction of legislation is generally to be the judge and other persons present in court to see
preferred. Legislation is not and could not be the witness and hear what he says, and vice versa.
constantly re-enacted and is generally expected to Such an attendance is thus, in effect, in open court,
remain in place indefinitely, until it is repealed, for and his evidence is also recorded under the personal
what may be a long period of time. An inevitable superintendence of the judge. The judge under
corollary of this is that the circumstances in which a whose superintendence the evidence through video
law has to be applied may differ significantly from conferencing is recorded can satisfy himself about
those which existed when the law was made, as a the free will of the witness present on screen as he
result of changes in technology or in society or in does about the witness present physically in court
other conditions. This is something which the by questioning him in this regard and ensuring that
legislature may be taken to have had in he is not under the immediate influence of any other
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person. Needless to say, that a court can ensure the such an order, in the exercise of its inherent powers
independence of a witness only from the immediate under Section 151 of the CPC.
influence, not from any covert influence, of any
15. Admittedly, the CPC is silent on the matter of
other person in both situations whether he is
evidence recording through video conferencing:
physically present or virtually present in court. In
there is no express provision either allowing or
the latter situation, the court can ensure that there is
prohibiting such procedure of recording evidence.
no other person in the room where the witness is
And regarding the procedural law, it is a well-
sitting, while his evidence is being recorded, by
settled principle that the ‘courts are not to act upon
asking him to provide a full view of that room on
the principle that every procedure is to be taken to
the screen. The identity of the witness, if disputed,
be prohibited unless it is expressly provided for by
can also be verified by the judge through
the Code [of Civil Procedure], but on the converse
appropriate means. The witness can be confronted
principle that every procedure is to be understood as
on screen with documents produced or sought to be
permissible till it is shown to be prohibited by law.
produced in court by any of the parties or, if needed,
As a matter of general principle, prohibition cannot
the scanned copies of such documents can be sent to
be presumed.’13 The provisions of Section 151,
him through modern means of communication. In
which empowers the civil courts to make such
all such necessary matters as to the recording of
orders as may be necessary for the ends of justice or
evidence, the physical attendance and the virtual
to prevent abuse of the process of the court, are
attendance of a witness in court do not differ.12 The
intended to preclude the possibility of the civil
virtual attendance of a witness in court, thus,
courts being stuck in a situation for any omission in
appears to be the species of the genus of
the CPC. The inherent powers of the civil courts
“attendance” required under Rule 4 and fulfills the
saved by Section 151 are thus supplementary to
legislative purpose and policy in requiring the
their powers stated expressly in the CPC and are to
attendance of a witness in court for recording his
be exercised where the situation is not covered by
evidence. Therefore, we can legitimately conclude
any provision of the CPC. It hardly needs lengthy
that the word “attendance” used in Rule 4 can be
arguments to establish that when in the
extended to “virtual attendance”, and the word
circumstances of a case, requiring physical
“attendance” mentioned in this Rule does not mean
attendance of a witness in court will incur an
only “physical attendance” but includes “virtual
unnecessary amount of delay, expense or
attendance” made possible by the modern
inconvenience, the order of the court allowing
technology of video conferencing.
virtual attendance of a witness through video
14. Next, we proceed to examine under which conferencing is for the ends of justice, and the
provision of the CPC can a court make an order for rejection of an unjustifiable insistence of the
the virtual attendance of a witness as there is no opposing party on securing physical attendance of
such provision in Order XVI of the CPC, which such witness in court is to prevent abuse of the
relates to ‘Summoning and Attendance of process of the court. An order allowing virtual
Witnesses’. Learned counsel for the petitioner has attendance of the witness in such circumstances thus
referred to Section 151 of the CPC, in this regard; squarely falls within the scope of Section 151 of the
therefore, we need to see whether a court can make CPC.

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19. We find it necessary to underline here that Cruelty Generally

although the powers conferred by Section 151 of the
"The general rule in all cases of cruelty is that the
CPC and Article 164 of the QSO are discretionary,
entire matrimonial relationship must be considered,
the courts are to exercise them judiciously, not
and that rule is of special value when the cruelty
arbitrarily or mechanically, on the filing of an
consists not of violent acts but of injurious
application in this regard by a party to the
reproaches, complaints, accusations or taunts. In
proceedings. This discretion, like all other
cases where no violence is averred, it is undesirable
discretions, is to be exercised judiciously for valid
to consider judicial pronouncements with a view to
reasons by considering the circumstances of the
creating certain categories of acts or conduct as
case. In exercising the discretion, the courts are to
having or lacking the nature or quality which
see: (i) whether the evidence of the witness appears
renders them capable or incapable in all
essential to the just decision of the case, and (ii)
circumstances of amounting to cruelty; for it is the
whether requiring physical attendance of the
effect of the conduct rather than its nature which is
witness in court would incur unreasonable delay,
of paramount importance in assessing a complaint
expense or inconvenience. We have inferred the
of cruelty. Whether one spouse has been guilty of
standard of “unreasonable delay, expense or
cruelty to the other is essentially a question of fact
inconvenience” from the legislature’s wisdom. The
and previously decided cases have little, if any,
standard of unreasonable “delay or expense” for
value. The court should bear in mind the physical
relaxing adherence to certain general rules of the
and mental condition of the parties as well as their
law of evidence has been provided in Articles 46,
social status, and should consider the impact of the
47 and 71 of the QSO, while Sections 503 and 512
personality and conduct of one spouse on the mind
of the Code of Criminal Procedure 1898 add the
of the other, weighing all incidents and quarrels
ground of unreasonable “inconvenience” to the said
between the spouses from that point of view;
two grounds for creating exceptions to some general
further, the conduct alleged must be examined in the
rules of recording the evidence of witnesses.
light of the complainant's capacity for endurance
and the extent to which that capacity is known to
Mst Tayyeba Versus Shafqat the other spouse. Malevolent intention is not
essential to cruelty but it is an important element
where it exists.
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ments/c.p._3209_2019.pdf If the court finds that one spouse has, by
reprehensible conduct or departure from the normal
Perception and perspicacity of cruelty
standards of conjugal kindness, caused injury to
catalogued.
health or a reasonable apprehension of it on the part
of the other spouse then it is cruelty if a reasonable
MUHAMMAD ALI MAZHAR, J. person, after taking due account of all the
11. The perception and perspicacity of cruelty, both circumstances of the case, would consider that the
physical and/or mental, can be catalogued as under:- conduct complained of is of so grave and weighty a
nature that the complainant should not be called
1) Halsbury's Laws of England (Fourth Edition), upon to endure it. The court’s principal motive in
Volume 13, Para 1269, Page 602 intervening in the parties’ affairs is not to punish
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one spouse for his or her past conduct but to protect bodily or mental, such as reasonably justifies an
the other for the future, and the object underlying apprehension of damage to life, limb or health.
the jurisdiction of magistrates’ courts to grant relief Cruel treatment does not always consist of actual
in matrimonial causes is to afford a practical violence; but includes mental anguish and wounded
alleviation of intolerable situations with as little feelings.” “Cruelty. Every willful act, omission, or
hardship as may be against the party against whom neglect, whereby unjustifiable physical pain,
relief is sought.” suffering, or death is caused or permitted; any act of
a human being which inflicts unnecessary pain; the
2) American Jurisprudence (Second Edition),
infliction of great pain or misery without necessity;
Volume 24, Chapter: Divorce and Separation, Para
either actual violence endangering life or limb or
35, Page 217-218 § 35.
health, or conduct creating a reasonable
Mental Cruelty apprehension of such violence. It has been said that
the word clearly includes both the willfulness and
In jurisdictions where cruelty is a ground for
cruel temper of mind with which the act was done,
divorce, and in accord with the view that cruelty
and the pain inflicted by the act.”
need not consist of physical violence or threats of
violence, it is generally held, either because of an 4) Black’s Law Dictionary (Ninth Edition), at page
express statutory provision to that effect or because 434
of the implications from the statutory reference to
“Cruelty. (13c) The intentional and malicious
“cruelty” and the like, that cruelty may consist of
infliction of mental or physical suffering on a living
mental cruelty, provided, of course, that the
creature, esp. a human: abusive treatment; outrage.
misconduct impairs, or threatens to impair physical
Cf. ABUSE; INHUMAN TREATMENT;
or mental health. Even where a statute defines the
INDIGNITY.” “Mental Cruelty. (1898) As a ground
ground for a divorce as “treatment endangering
for divorce, one spouse’s course of conduct (not
life,” the cause of action need not be based on
involving actual violence) that creates such anguish
physical violence; a case may be made out by
that it endangers the life, physical health, or mental
proving mental cruelty which endangers life. It has
health of the other spouse.
been stated that mental cruelty, as a ground for
divorce, is a course of unprovoked, offensive 5) Words and Phrases (Permanent Edition), Volume
conduct toward one’s spouse which causes 10-A
embarrassment, humiliation, and anguish, so as to
Cruelty – In general (At page 329 to 331)
render the spouse’s life miserable and unendurable,
“Cruelty,” as [the] word is used in divorce cases, is
and which actually affects the spouse’s physical or
an act that endangers or threatens life, limb or
mental health.”
health of aggrieved party, including outrages upon
3) Corpus Juris Secundum, Volume XXV, at page feelings or infliction of mental pain or anguish.
16 Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409,
411.”
“Cruel treatment. Any act intended to torment, vex,
or afflict, or which actually afflicts or torments “Husband’s misconduct, which endangers wife’s
without necessity, or any act of inhumanity, wrong, health to degree rendering it physically or mentally
oppression or injustice, the wilful infliction of pain, impossible for wife to discharge marital duties

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properly, constitutes “cruelty” within meaning of “In a pleading and by testimony in support thereof,
divorce statute. Schwartzmann v. Schwartzmann, accusations by husband or wife that his or her
102 A.2d 810, 813, 204 Md. 125.” spouse has been guilty of marital infidelity, if false
and made maliciously without reasonable cause for
“If conduct alleged and shown in suit for divorce on
suspecting fidelity of other spouse, may amount to
ground of cruelty is of such a nature as utterly to
“cruelty” and justify granting of divorce,
destroy the legitimate purpose and object of the
particularly if accompanied by proof of other cruel
marital relationship, such conduct constitutes
acts. Maley v. Maley, 140 P.2d 262, 265, 18
“cruelty” and justifies a divorce. Best v. Best,
Wash.2d 766.”
Tex.Civ.App., 214 S.W.2d, 806, 808.”
“Continual charges to a wife of unchastity with a
“Cruelty” warranting divorce may result from
disavowal of paternity of the children, made
continuing course of abusive and humiliating
continuously in the presence of others and in the
treatment of one spouse by another, as in case of
presence of the children, would constitute “cruelty”
course of conduct calculated to torture complaining
within the meaning of the divorce laws. Morris v.
spouse’s mental health and emotional nature and
Morris, 107 P. 186, 57 Wash. 465.”
affecting his or her bodily health. Humphreys v.
Humphreys, 281 S.W.2d 270, 281, 39 Tenn.App. “Circulation of false and slanderous statements,
99.” tending to destroy reputation and harmful to peace
of mind and health, may constitute “cruelty”
“Cruelty” which will justify divorce, is the willful,
justifying divorce. Williams v. Williams, 291 P.
persistent infliction of unnecessary suffering,
993, 994, 37 Ariz. 176.”
whether in realization or apprehension, whether of
mind or body, to such extent as to render 12. The matrimonial bond between a man and
cohabitation dangerous and unendurable, and term woman is a pious relationship which plays an
comprehends conduct endangering life, limb or important part and also nurtures between the
health or productive of mental anguish, and conduct husband-and-wife happiness and compassion and
of nature utterly destructive of purpose of marital the lineage and family heredity also depends on it.
relationship. Gentry v. Gentry, Tex.Civ.App., 394 Connubial affairs are based on gentle, human and
S.W.2d 544, 546.” emotional affiliation which requires mutual trust,
regard, respect, love and affection with adjustments
Accusation of infidelity (At page 335)
with the spouse, and the relationship should also be
“The public aspersion of a virtuous wife by her in accordance with social norms. Mental cruelty is a
husband, charging her with unchastity, constitutes conduct and behavior which inflicts upon the wife
such cruelty as will entitle her to divorce. Jones v. such mental pain and anguish making it impossible
Jones, 60 Tex. 451, 458, 461.” for her to continue the matrimonial relationship
which is also a state of mind caused due to the
“False accusations of adultery, maliciously made,
behavioral pattern of the husband, but this is
without probable cause or reasonable grounds for
required to be determined by the Court according to
belief, and producing requisite degree of anguish,
the facts and circumstances of each case and must
suffering, and danger to health constitute sufficient
be more serious than the ordinary, petty or trivial
cause to warrant limited divorce for “cruelty”.
issues or disputes of married life which usually
Bostick v. Bostick, D.C.Mun.App, 163 A.2d 817.”
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occur in day-to-day married life. According to the countless men and women. And be mindful of
injunctions of Islam, the husband is obligated and Allah—in Whose Name you appeal to one
responsible to provide food, clothing, another—and honour family ties. Surely Allah is
accommodation and all the other necessities of life ever Watchful over you. (Reference An-Nisa-4.1-
to the best of his capability and capacity. A man is quran.com/4)
expected to treat his wife nicely, with love and
5. O you who have believed, it is not lawful for you
affection. Here we would like to quote few excerpts
to inherit women by compulsion. And do not make
from some verses of the Holy Quran which have
difficulties for them in order to take [back] part of
direct nexus with the matrimonial relationship
what you gave them unless they commit a clear
ordained under the commandments of the Almighty
immorality. And live with them in kindness. For if
Allah (SWT): -
you dislike them - perhaps you dislike a thing and
1. Men are the caretakers of women, as men have Allah makes therein much good. (Ref: An-Nisa-
been provisioned by Allah over women and tasked 4.19 legacy.quran.com/4/19)
with supporting them financially. And righteous
6. Your spouses are a garment for you as you are for
women are devoutly obedient and, when alone,
them. (Ref: Al-Baqarah Quran, 2:187-
protective of what Allah has entrusted them with.
quran.com/al-baqarah/187) 7. Give women you wed
And if you sense ill-conduct from your women,
their due dowries graciously. But if they waive
advise them first, if they persist, do not share their
some of it willingly, then you may enjoy it freely
beds, but if they still persist, then discipline them
with a clear conscience. (Ref: AnNisa-4.4-
gently. But if they change their ways, do not be
quran.com/an-nisa/4)
unjust to them. Surely Allah is Most High, All-
Great. (Ref: An-Nisa-4.34- quran.com/en/an-nisa/34 13. At this juncture, it would be quite apt and
pertinent to quote the teachings and canons
2. And one of His signs is that He created for you
articulated by our Holy Prophet Hazrat Muhammad
spouses from among yourselves so that you may
(may Allah's peace and blessings be upon him):
find comfort in them. And He has placed between
you compassion and mercy. Surely in this are signs 1. Abu Huraira (Allah be pleased with him) reported
for people who reflect. (Ref: Ar-Rum-30.21- Allah's Apostle (‫( ﺻﻠﻰ ﷲ ﻋﻠﯿﮫ وﺳﻠﻢ‬as saying: He who
quran.com/30/21) believes in Allah and the Hereafter, if he witnesses
any matter, he should talk in good terms about it or
3. He is the One Who created you from a single
keep quiet. Act kindly towards woman, for woman
soul, then from it made its spouse so he may find
is created from a rib, and the most crooked part of
comfort in her. After he had been united with her,
the rib is its top. If you attempt to straighten it, you
she carried a light burden that developed gradually.
will break it, and if you leave it, its crookedness will
When it grew heavy, they prayed to Allah, their
remain there. So, act kindly towards women.
Lord, “If you grant us good offspring, we will
[Narrated by Sahih Muslim, 1468a, Book No.17,
certainly be grateful”. (Ref: Al-A’raf-7.189-
Hadith-80] (Ref: sunnah.com/muslim:1468a)
quran.com/en/al-araf/189)
2. And the Prophet (peace and blessings be upon
4. O humanity! Be mindful of your Lord Who
him) said. “The best of you is the best to his wives,
created you from a single soul, and from it He
and I am the best of you to my wives and when your
created its mate, and through both He spread
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companion dies, leave him alone.” [Jami at- According to Section 2 (b) (Definitions clause) of
Tirmidhi, 3895, Book No.49, Hadith-295]- (Ref: the Civil Servants Act, 1973, a "civil servant"
sunnah.com/tirmidhi-3895) means a person who is a member of All-Pakistan
Service or of a civil service of the Federation, or
3. Prophet Muhammad (PBUH) also said: The
who holds a civil post in connection with the affairs
believers who show the most perfect Faith are those
of the Federation, including any such post
who have the best behavior, and the best of you are
connected with defence, but does include (i) a
those who are the best to their wives.” (At-
person who is on deputation to the Federation from
Tirmidhi)- (Ref: thefaith.com/women-in-islam)
any Province or other authority; (ii) a person who is
4. It was narrated from Jabir b. Abdullah (R.A) that employed on contract, or on work-charged basis or
the Holly Prophet (PBUH) said in his Farewell who is paid from contingencies; or (iii) a person
Sermon: who is "worker" or "workman" as defined in the
Factories Act, 1934, or the Workman's
“Fear Allah concerning women! Verily you have
Compensation Act, 1923. Whereas under Section 2
taken them on the security of Allah, and intercourse
(a) of the Service Tribunals Act, 1973, a “civil
with them has been made lawful unto you by words
servant” means a person who is, or has been, a civil
of Allah. You too have rights over them, and that
servant within the meaning of the Civil Servants
they should not allow anyone to sit on your bed
Act, 1973. The provision for filing an appeal to the
whom you do not like. But if they do that, you can
Tribunal is provided under Section 4 of the Service
chastise them but not severely. Their rights upon
Tribunals Act, 1973 by means of which civil
you are that you should provide them with food and
servants aggrieved by any final order, whether
clothing in a fitting manner” (Narrated by Sahih
original or appellate, made by a departmental
Muslim, 1218-a)(Ref:sunnah.com/muslim:1218a)
authority in respect of any of the terms and
conditions of his service may, within thirty days of
the communication of such order, file an appeal to
2023 SCMR 46
the Tribunal. The above provisions unequivocally
Azra Bibi Versus CPO Pakistan Railways interpret and elucidate that there is no scope or
prospect for filing any appeal before the Service
Actio personalis moriter cum persona: Tribunal under Section 4 other than by the civil
Applicability in service laws. servant himself, and the law does not permit the
legal heirs to knock on the doors of the Service
MUHAMMAD ALI MAZHAR, J. Tribunal after the death of the said civil servant.
3. All the more so, the claim of regularization,
rightly or wrongly, from the date of initial 4. We are sanguine to the legal maxim “actio
appointment was a cause of action that could only personalis moritur cum persona” which is a legal
be agitated by the deceased husband in his lifetime, turn of phrase of Latin origin. In the well-read
but no such claim or legal proceedings were set into literary connotation, it means that the personal right
motion by him which shows that the deceased was to an action dies with the person. There are certain
satisfied and not interested in lodging any such categories of legal proceedings or lawsuits in which
claim and after his death, this cause of action does the right to sue is personal and does not survive to
not survive to be agitated by his legal heirs.

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the legal representatives and, as a consequence ensure the payment of full and final settlement of
thereof, the proceedings are abated. dues.
5. The petitioner in this case did not apply to the 6. The learned Tribunal has already considered all
learned Tribunal for impleading legal heirs on the legal and factual aspects in the impugned judgment
notion that cause of action survives despite death, and to some extent also considered the
rather the appeal was filed much after the death of representation of the petitioner being time barred,
her husband who did not opt to initiate any legal obviously for the reason that act of regularization
proceedings within his lifetime. Had the appeal was done in the year 2000 but no departmental
been filed by the husband and during pendency he appeal was filed within the specified period of
passed away, then subject to first deciding an limitation, and even the departmental appeal was
elementary question by the Tribunal in the set of filed by the widow and not by her husband during
circumstances of the case whether the cause of his lifetime.
action does survive despite death, then
unambiguously, the petitioner could have moved the PESHAWAR HIGH COURT
application for impleadment in the Tribunal as if the
https://peshawarhighcourt.gov.pk/PHCCMS//ju
Tribunal had not become functus officio. For dgments/Shafiqur-Rehman-vs.pdf
instance, if the service appeal is filed against the
dismissal of service or for compulsory retirement, Shafiq-ur-Rehman vs The State
and death of petitioner occurred during the
pendency of appeal, then obviously the main relief Whether sentences in two different trials, which
were of course outcome of one and the same
of reinstatement in service, which was personal to
transaction, can be consolidated or for that
the appellant cannot be granted after his death but matter run concurrently.
the learned Service Tribunal after taking into
consideration the facts and circumstances of each QAISER RASHID KHAN, CJ.
case separately and to alleviate the miseries of the 7. The moot question before us is that as to whether
bereaved family, may continue the pending appeal sentences in two different trials, which were of
only to examine and decide whether any monetary course outcome of one and the same transaction,
relief such as lawful pending dues are payable or if can be consolidated or for that matter run
any lawful claim lodged by the civil servant in his concurrently. Section 397 CrPC deals with this
life time which is subject matter of appeal in which proposition, which reads as under: -
cause of action survives despite his death including 397. Sentence on offender already sentenced for
pensionary benefits, gratuity or provident fund etc. another offence. When a person already
if permissible and applicable under the law and undergoing a sentence of imprisonment or
rules to the deceased appellant. However, the facts imprisonment for life is sentenced to imprisonment,
of the present case are quite distinguishable wherein or imprisonment for life, such imprisonment, or
the Tribunal could not entertain the appeal which imprisonment for life shall commence at the
was originally filed by the widow herself after the expiration of the imprisonment, or imprisonment
death of civil servant and it was not a case of for life to which he has previously sentenced, unless
impleading the legal heirs in any pending appeal to the Court directs that the subsequent sentence shall
run concurrently with such previous sentence.

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8. Granted that as per the first portion of the ibid Child Beggars: Parameters of protective
section of law, the subsequent sentence to a convict custody.
already undergoing a sentence has to commence
ROOH-UL-AMIN KHAN, J.
after the expiry of the previous sentence but
simultaneously its later part leaves it to the 7. It is uncontroverted fact that child begging has
discretion of the court whereby it may direct for become a raising menace throughout the world. In
treating the sentences to run concurrently. the third world countries the main reason behind
9. Another crucial question is as to whether an this menace is the poverty and lack of education
issue, which was not addressed to by both the facilities, particularly, in the rural areas. On one
learned trial court and the learned appellate court side stringent law is need of the time to curb the
can be tackled / resolved at this stage? The answer menace of vagrancy, while on the other side,
is “Yes”. Section 397 CrPC attends to such a Institutions Like "Zamung Kor" are required to be
situation. In this respect, wisdom is safely sought promoted, surely, the civil Society and the
from the judgments of the Hon’ble Supreme Court Government shall play greater role creating
of Pakistan reported as Rahib Ali vs. the State awareness in the masses about Muslim Laws and
(2018 SCMR 418); Sajjad Ikram & others vs. commandments regarding imperial effect of
Sikandar Hayat & others (2016 SCMR 467) & Mst. vagrancy. We appreciate the struggles and
Shahista Bibi & another vs. Superintendent, Central functions of "Zamung Kor" being conducted and
Jail, Mach & others (PLD 2015 SC 15). carried out for rehabilitation of children. The
Institution besides providing food, shelter and
10. On the touchstone of the supra judgments of the education is to train the children for their future
apex court and keeping in view the relevant life. In case in hand, parents of the child were
provision of law, we have come to the safe summoned and informed about better welfare of
conclusion that the convict- petitioner Shafiq-ur- their ward in Zamung Kor, however, their only
Rehman is entitled to the relief, asked for within request was that the child be allowed some time to
the meaning of section 397 CrPC. stay with them. We are conscious of the love and
affection of parents and children towards each
11. Accordingly, we admit and partially allow other; however, welfare of the child is the prime
this petition and in turn hold that the sentences of consideration under the law. In view of the above
the convict petitioner Shafiq-ur-Rehman shall be discourse and report of "Zamung Kor, coupled with
deemed to have run ‘concurrently’ in both the the feeble financial position of parents of the child
trials. Cr.M is disposed of accordingly. A copy of and his welfare in the Institution "Zamong Kor" we
this judgment be endorsed to the Superintendent, are of the firm view to hold that it would be in the
Central Prison, Mardan for information and best interest of the child's future to stay in the
compliance. above-named Institution instead of handing him
over in the custody of the appellant, in which
Amir Ullah vs Director Zamung kor circumstances there is no guarantee of his better
future. The learned trial court has rightly turned
https://peshawarhighcourt.gov.pk/PHCCMS//judg down the request of the appellant to which no
ments/Cr-A-No-1180-P-of-2021.pdf exception can be taken, however, keeping in mind
the love and affection of the parents, we deem it
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appropriate and in the interest of justice to provide It is a settled principle of law that paramount
a visitation right to the child to stay with his parents consideration for the custody of a minor is the
on each off day in the week. welfare and well-being of the child and other
8. Accordingly, this appeal stands dismissed with considerations are subordinate. According to the
the observation that parents of child Obaid Ullah Courts, the welfare of the minor means a child's
shall be entitled to visit and see him in "Zamung health, education, physical, mental and
Kor" on any day of the week inside the Institution, psychological development. Admittedly, the
whereas, they would be entitled to his custody for petitioner and respondents are inimical towards
shifting him to home on Saturday of each week each other. As per the available record, the
after his school timing and shall be bound to return custody of the minor went to the respondents
him to the Institution on coming Monday before when he was one year of age. The most disturbing
9.00 A.M. provided the petitioner furnishes a bail feature and fact upon which this court is required
bond in the sum of rupees one lac with one surety to make observation is that his statement was
in the like amount to the satisfaction of the learned tutored as in his statement he has charged his
Child Protection Court. father, the petitioner, for the murder of his mother.
The question arises as to who put in to the child's
Abdul Ghaffar Versus Shoukaat
mind that his mother was killed by the petitioner.
Such statement of the minor at this age clearly
https://peshawarhighcourt.gov.pk/PHCCMS//judg indicates that he is being brought up in an hostile
ments/WP860-P2022.pdf environment where respondents are sowing seeds
of enmity and hatred in the mind of minor against
Custody of Minor his father which will not only result in imminent
and long lasting mental and psychological harm
Musarrat Hilali, J. and trauma to the minor child but will also be
3. Decision on question of welfare of a minor
detrimental for the upbringing of the child. This
child has to be considered on its own merit in the
aspect of the matter hints towards the criminal
background of relevant facts and circumstances
intention on the part of the respondents as instead
and other decided cases can hardly serve as
of making the minor good member of the society,
binding precedent in so far as the factual aspects
they are destroying his personality and, therefore,
of the cases are concerned. As has been
it will be disastrous for the child to stay at his
mentioned in the preceding para, the custody of
uncles' house any longer.
the minor was refused to his biological father on
the ground that in his statement before the learned
For the sake of custody of minor's physical, mental
Judge, the minor himself charged his father for the
health, education and psychological development, it
murder of his mother and that the respondents
is important that the custody of the minor
were financially better as one of the uncles of the
Muhammad Hilal should be restored to the
minor was in Dubai and was paying for the
petitioner, who is biological father and the natural
education of the minor and also that mere
guardian of the minor. No doubt, choice of a minor
acquittal in murder case would not entitle the
is a factor to be taken into consideration but it
petitioner for custody of the minor.
cannot be made a decisive factor in matters relating
to custody of minors as is seen from the record, the
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facts of the instant case are different from those august Apex Court reported in 2022 SCMR 1231
cases where the consent of the minor has to be wherein the aspect that it is mandatory to examine
considered while deciding issue of custody of the person who either conveyed the sale
minor as in the instant case, the minor has been information to the person who informed the pre-
influenced by the respondents to make a particular emptor or from the conversation in between those
choice and, therefore, he is not in a position to form two persons who had learnt about the sale which
intelligent preference. was further communicated to the pre-emptor, must
Accordingly, in view of the above, this court is be examined.
of the view that welfare of the minor 7. This is the dire need as to maintain chain of
Muhammad Hilal lies with his father, the source of information as to the fact of sale from the
petitioner, and the courts below by giving his very first person who has the direct knowledge or
custody to respondent No. 2 have gone into pass on the same to the person who lastly informed
wrong premises and when so the petition is the pre-emptor must be complete. It is utmost
allowed, accordingly, the judgments of both the necessary that only complete chain of source of
courts below are set aside and as a consequence information of the sale can account for essential
thereof by allowing the petition of the elements of talb-e-Muwathibat which are the time,
petitioner, custody of minor (respondent No.3) date and place when the pre-emptor obtain the first
is granted/handed over to the petitioner. information of the sale and the immediate
declaration of his intention by the pre-emptor to
Sardar Muhammad Khan VS Rais Khan Afridi exercise his right of pre-emption there and then on
obtaining such information. The making of talb-e-
https://peshawarhighcourt.gov.pk/PHCCMS//judgm Mawathibat shall not be based on hearsay evidence
ents/CR370-17.23.12.220001.pdf of a witness as there would be scepticism that such
information has been given in order to only fulfill
Requirement of Talb-e- Muwathibat in Pre- the requirement of talb-e-Muwathibat. The veracity
emption cases. and truthfulness of the witness of talb-e-
MOIIAMMAD IBRAHIM KHAN, J. Muwathibat shall be of prime consideration.
6. It is an admitted fact that the information
regarding the sale was communicated while two 2022 PCrLJ 1690
persons came to the business place of the said
witness Javed Khan informer; however, their names Doctor Khan Versus the State
have not been disclosed neither by the said Javed
Jurisdiction of High Court to entertain bail in
Khan nor any question in this regard was put to him case where appeal against the Judgment of a
that who actually were those persons. According to High Court is pending before the Hon`ble
the case law reported in PLD 2015 SC 69 the pre- Supreme Court.
emption suit was mainly dismissed on the ground
ISHTIAO IBRAHIM, J.
that persons who had conveyed information 6. This Court derives its power to grant bail
regarding sale and price to the brother of the said pending appeal before the Hon'ble Supreme Court
pre-emptor was not produced as a witness, hence, against the judgment of this Court in a criminal
the elements of talb- e-Muwathibat were not case from section 426 (2-B) of the Criminal
proved. yet, there is another latest dictum of the Procedure Code, which reads as follows:
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"426. Suspension of sentence pending appeals-- obtaining special leave from the Supreme Court, he
Release of appellant on bail: (l) (2-B) Where a High could easily request that Court, while granting
Court is satisfied that a convicted person has been special leave to be given appropriate interim relief,
granted special leave to appeal to the Supreme we recommend the omission of the sub-section
Court against any sentence which it has imposed or (2B).
maintained, it may, if it so thinks fit order that
pending the appeal the sentence or order appealed We have also considered the suggestions to amend
against be suspended and, also, if the said person is sub-section 2B enabling the High Court to grant
in confinement, that he be released on bail." interim relief to a person during the interval
7. The section indeed has a chequered history. It got between the date of the dismissal of his appeal by
enacted vide Act No. IV of 1946. Before that, the the High Court and the date of grant of special
High Courts had varying interpretations of the bail leave by the Supreme Court. In our view any such
power pending special leave to appeal. The Privy widening of the scope of the sub-section is neither
Council in Jairam Das V.s King Emperor, A.I.R necessary nor desirable. With the quick means of
1945 PC 94 set at rest the conflicting viewpoints transport available nowadays. it should not be
and concluded that the High Court lacked difficult for a party to approach the Supreme Court
jurisdiction to entertain bail, in case where appeal and obtain appropriate interim relief without delay."
against the judgment of High Court is pending (Emphasis provided)
before the Hon'ble Supreme Court. However, in the Given the above suggestion, the law was amended,
concluding para it suggested conferring such power and now the relevant section of the Indian Criminal
on the High Court. Procedure Code reads as follows:
8. Significantly, while the Privy Council ruled that “389. (1) Pending any appeal by a convicted
the High Court lacked jurisdiction to grant bail, it person, the Appellate Court may, for reasons to be
did not suspend the sentence in any of the cases. recorded by it in writing, order that the execution of
Instead, it referred to Section 401 Cr. PC about the the sentence or order appealed against be suspended
provincial government powers to be exercised in and, also, if he is in confinement, that he be
appropriate case for the ends of justice. released on bail, or on his own bond.
9. After independence of India and Pakistan, being (2) The power conferred by this section on an
alive to the situation, the Indian Law Commission Appellate Court may be exercised also by the High
recommended in forty-first report published in Court in the case of an appeal by a convicted
1969, that the ibid section needs omission from the person to a Court subordinate thereto.
statute. The relevant passage from the law (3) Where the convicted person satisfies the Court
commission report is as follows: by which he is convicted that he intends to present
"Sub-section (2-B) was inserted in 1945' when an appeal, the Court shall,
special leave could be granted only by the Privy (i) Where such person, being on bail, is sentenced
Council which was far away. The Adaptation Order to imprisonment for a term not exceeding three
of 1950 substituted "Supreme Court" for "Privy years, or
Council" without considering whether there is any (ii) Where the offence of which such person has
practical need for the provision. The Supreme Court been convicted is a bailable one, and he is on bail.
is not far away, and when the party has taken the Order that the convicted person be released on bail,
trouble and incurred the necessary expense in unless there are special reasons for refusing bail, for
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such period as it affords sufficient time to present petitioner to approach the Hon’ble Apex Court, we
the appeal and obtain the orders of the Appellate deem it not proper to suspend the sentence awarded
Court under sub-section (1); and the sentence of to the petitioner and confirmed by this Court.
imprisonment shall, so long as he is so released on Hence, the instant Criminal Miscellaneous Petition
bail, be deemed to be suspended. / Bail application under section-426 (28) Cr. PC
(4) When the appellant is ultimately sentenced to filed by the petitioner for suspension of his
imprisonment for a term or to imprisonment for sentence is dismissed.
life, the time during which he is so released shall be
excluded in computing the term for which he is so Irfan Ullah Vs Federation of Pakistan
sentence,"
10. It is clear that the reasons cited in the ibid https://peshawarhighcourt.gov.pk/PHCCMS//judgm
judgment do not apply in the post-independence ents/wp--2838-p2021===.pdf .
period. Similarly, Hon'ble Supreme Court of
Pakistan has taken care of the matter in question Art:25A (Eighteenth Amendment) Right to
while framing its Rules as mandated by Article191 Education Discussed
of the Constitution of Islamic Republic of Pakistan,
1973.
Chapter-XXII [ Rule-l1 of the Supreme Court of IJAZ ANWAR, J:
Pakistan Rules, 1980, which reads as under;
7. This Court, under Article 199 of the
"11. Pending the disposal of any appeal under this
Constitution of Islamic Republic of Pakistan, 1973
Order the Court may order that the execution of the
can issue a writ in the form of prohibition or
sentence or order appealed against be stayed on
mandamus only where petition is filed by an
such terms as the Court may think fit."
aggrieved person and seeks direction against a
In several cases, Honorable the Supreme Court of
'person' performing within the territorial jurisdiction
Pakistan suspended the sentence: see for instance,
of this Court, functions in connection with the
Anwarul Huq v National Accountability Bureau,
affairs of the Federation, a Province or a local
(PLD 2009 SC 388), and Sattu Khan v the State,
authority. The word "person" used in Article 199 of
(1988 SCMR 24).
the Constitution has been defined by the Hon'ble
11. But as is clear from the verdict, the preposition
Supreme Court of Pakistan in numerous landmark
was not resolved. Doubtlessly, the High Court
judgments while for the purpose of enforcement of
becomes functus officio after ruling on it. Until and
certain rights of the employees serving under such
unless it can be shown why a petition for the
"persons", the consistent view of the Superior
suspension of the sentence could not be lodged in
Courts is that the "person" against which a writ is to
the first instance before the Honourable Supreme
be issued must be either Government, a body
Court, the High Court's seisin does not revive.
creation of an Act of Parliament or Provincial
12. From the above discussion, when the Hon'ble
Assembly and the rules governing their rights and
Apex Supreme Court has already taken cognizance
obligations must have statutory status in the eyes of
of the matter and while this Court has already
law. The Hon'ble Supreme Court of Pakistan in the
dismissed the appeal and has maintained his
case titled "Pakistan Defense Officers' Housing
conviction recorded by the learned trial court and
Authority and others Vs. Lt. Col. sped Jawaid
when there is no legal impediment in the way of the
Ahmed (2013 SCMR 1707), while commenting
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upon the jurisdiction of the High Court, has the National University of Computer and Emerging
enunciated certain principles of law for Sciences Ordinance, 2000 (hereinafter to be referred
maintainability of a writ petition as follows: - as "the Ordinance"), whereunder, the University has
been created. The relevant para of its preamble is
(i) Violation of Service Rules or Regulations
reproduced: -
framed by the Statutory bodies under the powers
derived from Statutes in absence of any adequate or "Whereas it is in the interest of the country to
efficacious remedy can be enforced through writ establish centers of excellence in the emerging
jurisdiction. disciplines of Science and technology to provide a
strong base for economic growth and human
Where conditions of service of employees of
development and to provide quality education to
a statutory body are not regulated by
talented students".
Rules/Regulations framed under the Statute but only
Rules or Instructions issued for its internal use, any 9. By the very name of the University and the
violation thereof cannot normally be enforced preamble above referred, it appears that it was the
through writ jurisdiction and they would be decision of the Federal Government to establish an
governed by the principle of 'Master and Servant'. Institute/University in the interest and betterment
future of this country. Article 25A of the
(iii) In all the public employments created by the
Constitution of Islamic Republic of Pakistan, 1973
Statutory bodies and governed by the Statutory
was inserted through Constitution (Eighteenth
Rules/Regulations and unless those appointments
Amendment) Act, 2010 (Act No.X of 2010) which
are purely contractual, the principles of natural
provides for right to education. Article 25A has
justice cannot be dispensed with in disciplinary
been added which identifies the education as one of
proceedings.
the fundamental rights of the people. Though, the
(iv) Where the action of a statutory authority in a said Article provides for free and compulsory
service matter is in disregard of the procedural education to all children of the age of 5 to 16,
requirements and is violative of the principles of however, provision of educational facilities is also
natural justice, it can be interfered with in writ the function of the State from Primary to Secondary
jurisdiction. and Higher Level as it is an established fact that
human resource development is key to all successes
(v) That the Removal from Service (Special
and in order to compete with the modern world, the
Powers) Ordinance, 2000 has an overriding effect
youth of this country must be well equipped with
and after its promulgation (27th of May, 2000), all
the skill of self-employability and as such, the
the disciplinary proceedings which had been
Government has to establish such
initiated under the said Ordinance and any order
Institutes/Universities for the purpose of research,
passed or action taken in disregard to the said law
professional or technical training or the promotion
would be amenable to writ jurisdiction of the High
of special studies. We are thus of the considered
Court under Article 199 of the Constitution.
opinion that providing venues to the youth of this
8. In the instant case, the petitioner claims that country for higher education in all fields and
his rights to employment in the respondent- industrialization is one of the core functions of the
University have been violated. To ascertain the State and thus can be conveniently termed as the
status of the respondent University, we may refer to University is functioning within the affairs of the
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Federal Government. Reference can be made to the Governors" consists of the following members: -
case titled "Fiaqat
a) Rector who shall be the Chairperson of the
Hussain and others Vs. Federation o/ Pakistan Board;
through Secretary. Planning & Development b) one retired judge of the Supreme Court of
Pakistan or a High Court, to be nominated by the
Division, Islamabad and others (PLD 2012 SC 224)
Foundation;
10. In terms of Section 9 of "the Ordinance", the c) Chairman, University Grants Commission,
President of Pakistan shall be the "Patron" of the or his nominee not below the rank of an officer
of Basic Pay Scale 20;
University; similarly, under Section 8 of 'The
d) one vice-chancellor of a university to be
Ordinance", the Chancellor of the University is to nominated by the Foundation;
be appointed by the Patron on the recommendation e) Secretary, Ministry of Education, or his
of the Foundation; while "Foundation" has been nominee not below the rank of an officer of
defined under Section 2(h) of "the Ordinance" as Basic Pay Scale
"Foundation for advancement of Science and f) one Dean to be nominated by the Board of
Technology (FAST)". Under Section 12 of "the Trustees in consultation with the Rector;
g) three persons, prominent in the field of their
Ordinance", the "Board of Trustees" is constituted
specialization because of their experience and
which consists of the following members: - achievements, to be nominated by the Board of
i. The Chancellor who shall be its Trustees; and
Chairperson; h) Registrar of the University shall act as
ii. Chairman, University Grants Commission or Secretary of the Board".
his nominee not below the rank of an officer of 12. It has also been provided in the powers and
Basic Pay Scale 20; functions of the Board in Section 15(b) and (c) of
iii. a retired judge of the Supreme Court of
"the Ordinance" "to make rules and regulations" and
Pakistan or a High Court;
iv. a retired vice-chancellor or an eminent "to prepare or have prepared and revised from time-
scholar; to-time rules and regulations for the efficient and
v. two eminent scientists; effective operation of the University"
vi. two nominees of the Foundation;
vii. Rector; 13. Thus, in terms of Section 15(b) and (c) of
viii. one nominee of the Board; and "the Ordinance", the Board of Governors are
ix. Secretary, Ministry of Education. empowered to make rules and regulations and to
prepare or have prepared and revised from time-to-
11. Similarly, under Section 13 of "the
time rules and regulations for the efficient and
Ordinance", "Powers and functions of the Board of
effective operation of the University which will be
Trustees" are provided which has, besides the other
then placed before the Board of Trustees which has
functions, also the powers and functions "to approve
under Section 13(c) of "the Ordinance" the powers
the draft statutes proposed by the Board of
and functions "to approve the draft statutes
Governors"; while Section 14 of "the Ordinance"
proposed by the Board of Governors".
provides for the constitution of the "Board of
Governors" who will be having the general 14. In the case of "Pakistan Defense Officers'
supervision and control of the administrative, Housing Authority and others (2013 SCMR 1707),
academic and financial affairs and the power to lay it is one of the principles enunciated from the case
down the policies of the University. The "Board of law for the maintainability of the writ petition that
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"violation of service rules or regulations framed by they were gazette and laid before the National
the statutory bodies under the powers derived from Assembly in terms of section 31 of the [PIAC] Act".
statutes in the absence of any adequate or This finding of the apex Court was, in turn, based
efficacious remedy can be enforced through writ on the case titled Raziuddin v. Chairman, PIAC
jurisdiction". (PLD 1992 SC 531). In short, the reason for holding
that the regulations in question were not statutory
15. The Hon'ble Supreme Court of Pakistan in
was that the requirements of sections 30 and 31 of
the case titled “Masood Ahmad Bhatti and others
the PIAC Act had not been complied with.
Vs Federation of Pakistan through Secretary, M/o
Information Technology and Telecommunication 16. The observations in the case of Tanweer-ur
and others (2012 SCMR 152)” while distinguishing Rehman supra have necessitated an examination of
its earlier judgment pertaining to the status of sections 30 and 31 of the PIAC Act to see if these
statutory rules i.e. Pakistan International Airlines provisions have any parallel or relevance in the
Corporation and others Vs. Tanweer-ur-Rehman present appeals. It is quite clear from the PIAC Act
and others (PLD 2010 SC 667), held as under: - that in order for the regulations to have statutory
force, it was necessary that the same be framed
Since the judgment of the High Court is
"with the previous sanction of the Central
based on the case of Tanweer-ur-Rehman supra, it
Government". Additionally, under section 31 of the
firstly is to be seen if indeed the principle of law
PIAC Act, the regulations were required to be
enunciated therein supports the conclusion in the
gazetted and laid before the National Assembly. It is
impugned judgment. Para 18 of the cited precedent
only because these contentious regulations had not
is of particular relevance in this context. It sets out
been framed with the previous sanction of the
the circumstances which led to the Court's finding
Central Government and had not been published in
that the regulations which were under consideration
the official Gazette, that the Court came to the
in the said case could not be treated as being
conclusion the regulations were not statutory in
statutory in nature. The test laid down for deciding
nature. It follows from the cited judgment that if in
if the regulations were in fact statutory, was stated
fact the regulations had fulfilled the requirements of
with great clarity. These regulations had been
sections 30 and 31 of the PIAC Act, there would
framed by the Board of Directors of the Pakistan
have been no dispute or contention as to the
International Airlines Corporation ('PIAC') under
statutory status of the said regulations. The
the PIAC Act 1956. It was observed by the Court
circumstances of the present appeals (considered
that "if the relationship between the [PIAC] and its
below) are very different from the facts Tanweer-ur-
employees is regulated by statutory provisions and
Rehman 's case".
if there is any breach of such provisions, an
employee may maintain an action for 17. In the instant case too, we find that the HR
reinstatement". It was further observed that "the Manual placed on file was framed in accordance
PIAC has regulations which have been framed by with the procedure prescribed under "the
the Board of Directors of the PIAC pursuant to the Ordinance", which nowhere has provided for
power contained in section 30 of the [PIAC] Act; framing of the rules by the Government or its
however, there is nothing on record to indicate that placement before the Federal Government; as such,
these regulations have been framed with the it is held that the rules, framed by the Board of
previous sanction of the Central Government or that
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Governors and duly approved by the Board of the petitioner while applying to other departments in
Trustees, have the statutory status. future. It is pertinent to mention here that from the
comments, it can be gathered that the allegations
18. The judgments of the Single Bench of the
against the petitioner pertain to bypassing a channel
Hon'ble Islamabad High Court, Islamabad passed in
in the matter of correspondence and nowhere, it has
the cases titled "Ms. Tauheed Sohail Vs. National
been alleged that the interest of the University, at
University of Computer and Emerging Sciences
any stage, has been compromised. Even otherwise
FAST House, Islamabad and others (W.P.
when there were allegations of any kind against the
No.1012/2016 decided on 13.042016) and Ms.
petitioner, the respondent-University was required
Sidra Irshad Vs Dr. Amir Muhammad and others P.
to have allowed him proper opportunity to defend
No. 27100 2015 decided on 04.02.2016)” are
himself.
distinguishable as it has relied upon the judgment of
the apex Court in Tanweer-ur Rehman case and as 20. In the case titled the Punjab Health
referred to above, probably the judgment of the Department, Lahore and others Vs. Riaz-ul Haq
Hon'ble Supreme Court of Pakistan reported as (1997 SCMR 1552)". the apex Court, while relying
"Masood Ahmad Bhatti and others Vs. Federation upon different judgments of the Hon'ble Supreme
of Pakistan through Secretary, M/o Information Court of Pakistan, held that "terminating the
Technology and Telecommunication and others services of a probationer on the ground of
(2012 SCMR 152)". was not brought into the notice unsatisfactory work will not amount to dismissal or
of the Hon'ble Court, wherein, the apex Court has removal (rom service: however, if such employee is
clarified the effect of Tanweer-ur-Rehman case on to be terminated on account of certain allegations,
the status of the Rules. then even if such employment is contractual, pet
holding proper departmental proceedings would be
19. Now coming to the merit of the case, the
mandatory".
record transpires that petitioner was initially
appointed vide Office Order dated 02.07.2020 as 21. In view of the above, we find that the
Manager (Admin & Finance) and was duly petitioner has not been treated in accordance with
confirmed after satisfactory completing his law and being a confirmed employee, he has been
probationary period vide Office Order dated condemned unheard. Accordingly, the impugned
08.022021. The order terminating the services of the termination order dated 25.06.2021 is set-aside and
petitioner dated 25.062021 under the subject the petitioner is reinstated in service, allowing the
"service no more required" is though argued to be in respondent-University to proceed afresh against the
terms of the initial appointment letter dated petitioner strictly in accordance with law if they are
02.07.2020, according to which, in case of so advised. It is further clarified that the question of
confirmation of his services, his services can be back wages and benefits of the petitioner shall be
liable to be terminated on one month notice or decided by the respondent-University after the
payment of one month salary in lieu thereof, outcome of any such departmental proceedings, if
however, in the instant mater, the reason given as so conducted.
'unsatisfactory performance' after his confirmation
22. This writ petition is allowed in the above
becomes redundant, as the very termination order
terms.
carries a stigma in the shape of "unsatisfactory
performance" which ultimately would be hurdle for Fazl-e-Khaliq vs. Dr. Neloofar Yousafzai
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https://peshawarhighcourt.gov.pk/PHCCMS/ vs. Abid Hussain and others" (PLD 2009 SC

/judgments/CR-140.2021-06.10.2022-.pdf 419), wherein, it was observed that bad "faith"
and "fraud" are synonymous. Fraud is an
Application/Requirement of S.12(2) CPC
intrinsic, collateral act, which violates the most
Withdrawal of appeal by the counsel without solemn proceedings of Courts o justice.
authorization and consent of the principal falls 13. Black's Law Dictionary Ninth Edition
within the ambit of fraud, misrepresentation and defines the word "Fraud" as under:
collusion as it gives undue advantage to the "A knowing misrepresentation of the truth or
opposite party. concealment of a material fact to induce another to
SHAKEEL AHMAD, J. act to his or her detriment Fraud is usually, a tort,
10. Before proceeding further, it is appropriate but in some cases (esp, when the conduct is
to know the meaning of the words 'fraud" or willfully it may be a crime. Also termed intentional
"misrepresentation" used in section 12(2) CPC in fraud. A misrepresentation made recklessly without
the light of the judgments of the superior Courts in belief in its truth to induce another person to act A
Pakistan. In the case reported as "Mst. Izat Begum tort arising from a knowing misrepresentation,
and another vs. Kadir Bux" (PLD 1959 Karachi concealment of material fact, or reckless
221) fraud was defined as under: misrepresentation made to induce another to act to
his or her detriment Unconscionable dealing; esp,
"Every representation made to a Court which is in contract law, the unfair use of the power arising
deliberately false amounts to a fraud and would out of the parties' relative positions and resulting in
vitiate a decree”. an unconscionable bargain"
14. Now turning to misrepresentation, the
11. In this context, reference may also be Hon'ble Supreme Court of Pakistan in its most
made to the case reported as "Allah Wasaya celebrated judgment “Lahore Development
and 5 others vs. Irshad Ahmad and 4 others" Authority vs. Firdous steel Mills (Pvt) Ltd" (2010
(1992 SCMR 2184), wherein, it was held as SCMR 1097), after consulting Blacks' Law
under: dictionary held as under:
"Any manifestation by words or other conduct by
"Whenever a person intentionally deceives one person to another that under the circumstances,
another with the motive having some illegal gain amounts to an assertion not in accordance with the
or advantage for with the purpose of putting the facts. An untrue statement of fact an incorrect or
person so deceived or cheated in wrongful loss false representation. That which, if accepted, leads
and or disadvantage, he is said to have the mind to an apprehension of a condition other
committed fraud. It means and includes, inter and different from that which exists. Colloquially it
alia, the suggestion, as a fact, of that which is is understood to mean a statement made to deceive
not true, by one who does not believe it to be or mislead'
true, or the active concealment off act by one
having knowledge or belief of the fact" 15. For the purpose of sub-section (2) of section
12 of the CPC, the plea of collusion is as good as
12. In this behalf further reliance can be the plea of fraud as held in the case reported as
placed on the case reported as "Khadim Hussain
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"Zafqrullah and 3 others vs. Civil Judge. Hafizabad malafidely having hands with the defendant.
and 3 others" (PLD 1984 Lahore 396). According to her, on 05.05.2020, she sent text
16. In ordinary common parlance, collusion is message to her advocate informing him that he is
defined as a secret combination, conspiracy, or no more her counsel as she has lost trust in him.
concert of action between two or more persons for
21. It is an admitted fact that the respondent filed
fraudulent or deceitful purposes.
her appeal by appointing him as her counsel and
17. In the case reported as "Munir Ahmad Khan
his act of withdrawal was without her consent and
vs. Sameeullah Khan and 7 others" (1986 CLC
authorization, which gave undue advantage to the
2655), it was observed that:
petitioner and he became the sole beneficiary on
"The collusion, no doubt, is a species of fraud. The
the withdrawal of appeal.
collusion in Judicial proceedings is a secret
agreement between the two persons that one should 22. After considering the material on record, I am
institute a suit against the order in order to obtain of the view that all the essential ingredients of
the decision of a judicial tribunal for some sinister collusions are proved in the present case, wherein,
purpose". the verdict of the learned trial Court dated
18. It is by now settled that fraud cannot be 13.02.2020 in favour of the petitioner remained
directly proved, it has to be inferred from the intact due to withdrawal of appeal by the counsel of
surrounding circumstances. It is also well settled the respondent unilaterally and making a false
law that fraud vitiates the most solemn proceedings statement in the petition that he is under instruction
as held by the superior Courts of Pakistan in the of her client to withdraw the same and withdrawal
following judicial pronouncements. Lal Din and application was accepted by the learned Court
another vs. Muhammad Ibrahim (1993 SCMR 710) below in violation of ground realities, existed on the
(ii) Commissioner. Lahore vs. Raja Mohammad spot. As discussed above, this fact alone is
Fazil Khan and others (PLD 1975 SC 331) and(iii) sufficient to establish that petitioner is a beneficiary
Talib Hussain and others vs. Member. Board qf and secured order of withdrawal in connivance with
Revenue and others (2003 SCMR 549). her counsel. In this behalf, reference may be made
to the case reported as "Messrs Walia Steel
From the contents of the petition filed under section Industries PLC v. Messrs SAGA Shipping and
12(2) of the C.P.C. Trading Corporation Ltd. and others" (PLD 2019
before the learned appeal Court, it is discerned Sindh 22)
that allegation of the respondent was that her
23. Before parting with the judgment, it is
counsel withdrew the appeal filed by her without
observed that duties of the Muslims and their
authorization and consent and the act of
conduct in assisting the Court to do justice are
withdrawal by her counsel namely Zafar Ayub,
also reflected in the various Ayat of the Holy
Advocate is fraudulent, result of collusion and
Quran. The Hon'ble Supreme Court of Pakistan,
misrepresentation, and concealment of fact. In her
keeping in view the principles enunciated in
statement recorded before the Court as PW-1, the
Surah Al-Nisa IV Ayat No.135 while discussing
respondent deposed that she had not authorized
the duties of counsel to the Court of law and
her said counsel to withdraw the appeal, during
procedure in the case reported as "Shukar Din v.
pendency of appeal. She left for USA and in her
absence, he withdrew her appeal fraudulently and
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Inamullah and another" (PLD 1992 SC 67) suit is more than rupees fifty million it should be
observed as under: transferred to the respective District Judge, who has
the pecuniary jurisdiction under Section 6(b) of the
"All the parties and their counsel were bound to Act, 2020.
assist the Court in pursuance of the rule of good
conduct in the Court; namely, when seeking 14. Moving on to the crucial issue which is raised in
justice do justice". this appeal by the appellants. It is the contention of
the appellants that since amendment made in
24. In the facts and circumstances of this case, Section 6 of the CPC through Section 3 of Act,
the doctrine of ubi jus ibi remedium was rightly 2020 relates to a forum, therefore, it has
pressed into service to hold that the order of retrospective effect whereas it is the case of
withdrawal of appeal of the respondent by her respondents that since all the proceedings which
counsel was without authorization and consent were pending before the Civil Court were protected
and the same is the result of fraud, through saving clause provided under Section 19 of
misrepresentation and collusion with the Act, 2020, therefore, this amendment is not
petitioner. I find no illegality, irregularity or applicable to the present case. The law is by now
jurisdictional defect in the impugned judgment; settled that all laws are prospective in nature law
therefore, it will be just and proper to maintain unless provided otherwise by the lawmakers. The
the same. exception to the said rule is the amendment in
25. In this view of the matter, I find no merit in the procedural law, which may operate retrospectively
civil revision in hand, which is accordingly for the obvious reasons the no person has a vested
dismissed with no order as to costs. right in any procedural law. The question of
applicability of law with retrospective effect has
Mst. Naseem Ishaq and others Versus Khizar been dealt with by this Court in the case of Gul
Hayat and others. Hassan and Co. vs. Allied Bank of Pakistan (1996
SCMR 237) wherein after examining plethora of
case law, Mr. Justice Saleem Akhtar, as he then
https://peshawarhighcourt.gov.pk/PHCCMS//judgm was, observed that Statute providing change of
ents/FAO158P2021-pecuniary-jurisdiction.pdf forum, pecuniary or otherwise, is procedural in
nature and has retrospective effect unless contrary is
provided expressly or impliedly or it effects the
Statute providing change of forum: Effect
existing rights or causes injustice or prejudice. The
whether prospective or retrospective?
relevant para from the said judgment is reproduced
ARSHAD ALI, J. herein below: -
Amendment through Section 3 of the Act, 2020, “7. It is well-settled principle of interpretation of
whereby Section 6 of the CPC was substituted, statute that where a statute affects a substantive
whereby the pecuniary jurisdiction of Civil Court right, it operates prospectively unless “by express
viz-e-viz the District judge has been determined has enactment or necessary indictment” retrospective
a retrospective effect and the requirement of law is operation has been given. (Muhammad Ishaq V.
that any matter which was pending before the Civil State PLD 1956 SC (Pak) 256 and State v.
Court where the value of the subject-matter of the Muhammad Jamil (PLD 1965 SC 681). This
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principle was affirmed in Abdul Rehman v of Pak. (PLD 1988 SC 391) and Yusuf Ali Khan v.
Settlement Commissioner (PLD 1966 SC 362). Hongkong and Shanghai Banking Corporation,
However, statute, which is procedural in nature, Karachi (1994 SCMR 1007). From the principle
operates retrospectively unless it affects an existing enunciated in aforesaid judgments it emerges that
right on the date of promulgation or causes statute providing change of forum pecuniary or
injustice or prejudice the substantive right. In otherwise is procedural in nature has retrospective
Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC effect unless contrary is provided expressly or
187). Same principle was re-affirmed and it was impliedly or it affects the existing right or causes
observed: - “The next question, therefore, that injustice or prejudice”. Muhammad Shabbir and
arises for consideration is as to what are matters of another vs. Quaid-e-Azam University through Vice-
procedure. It is obvious that matters relating to the Chancellor, Islamabad and others (2022 SCMR
remedy, the mode of trial, the manner of taking 487).
evidence and forms of action are all matters
15. Similarly, in the case of Bashir vs. Wazir Ali
relating to procedure. Crawford too takes the view
(1987 SCR 978), the Apex Court has held that the
that questions relating to jurisdiction over a cause
change of forum during the pendency of appeal
of action, venue, parties pleadings and rules of
would operate retrospectively in the following
evidence also pertain to procedure, provided the
words: - “Before us the learned counsel for the
burden of proof is not shifted. Thus, a statute
appellant raised the same objection as before the
purporting to transfer jurisdiction over certain
High Court. It was, however, pointed out to him that
causes of action may operate retrospectively. This is
the relevant provision of the amending Act V of
what is meant by saying that a chance of forum by a
1986 had merely changed the forum in which the
law is retrospective being a matter of procedure
appeal was to be heard and did not affect any
only. Nevertheless, it must be pointed out that if in
vested right of appeal and that, as held by this
this case process any existing rights are affected or
Court in Adnan Afzal vs. Capt. Sher Afzal PLD
the giving of retroactive operation cause
1969 SC 187, such amendments are merely
inconvenience or injustice, then the Courts will not
procedural in nature and are, therefore, operative
even in the case of a procedural statute, favour an
retrospectively”.
interpretation giving retrospective effect of the
statute. On the other hand, if the new procedural Thus, I have no doubt in my mind that amendment
statute is of such a character that its retroactive through Section 3 of the Act, 2020, whereby
application will tend to promote justice without any Section 6 of the CPC was substituted, whereby the
consequential embarrassment or detriment to any of pecuniary jurisdiction of Civil Court viz-e-viz the
the parties concerned, the Courts would favourably District judge has been determined has a
incline towards giving effect to such procedural retrospective effect and the requirement of law is
statutes retroactively”. that any matter which was pending before the Civil
Court where the value of the subject-matter of the
Similar law has also been laid down in Ch. Safdar
suit is more than rupees fifty million it should be
Ali v. Malik Ikram Elahi and another (1969 SCMR
transferred to the respective District Judge, who has
166) and Muhammad Abdullah v. Imdad Ali (1972
the pecuniary jurisdiction under Section 6(b) of the
SCMR 173), which was followed in Bashir v. Wazir
Act, 2020.
Ali (1987 SCMR 978), Mst. Nighat Yasmin v. N.B.

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Muhammad Saeed and others v. Haidar Ali and of the Deputy Commissioner to whom the
others. application was made. The contents of the
application categorically reflect that the imputations
were not independent, rather, the main issue
https://peshawarhighcourt.gov.pk/PHCCMS//judgm
ents/Cr.A-278-M-of-2019.pdf between the parties was over the enjoyment of
drinking and irrigation water and the use of
Shamilat land. Moreover, there is nothing on the
The use of certain imputations against a person record that the application was put in the public
in an application before an executive authority domain through publication.
for looking into certain issues, such as drinking
water, irrigation and Shamilat land in a village,
would not be defamation.

Dr. Khurshid Iqbal, J.

7. It appears that the respondents actually wanted to
LEGAL RESEARCH CENTER
press into service the factual aspect of the
PESHAWAR HIGH COURT
controversy between them and the appellants in
their application addressed to the Deputy Contact: 091-9210117
Commissioner, Swat. In other words, as the inquiry Email: [email protected]
report notes their intention of harming the
appellants could not be gathered from the contents Note: Please read the original full judgments
of the application of the respondents. It appears that before referring them to for any purpose.
the respondents made imputation for protection of
their own interest and the application being on
behalf of the residents of the village, the imputation
appears to have been made for the public good.
Moreover, the appellants failed to show as to what
action, particularly in respect of the imputation has
been initiated against them by the Deputy
Commissioner, Swat. In short, the imputations
whatsoever were leveled in connection with the
dispute over irrigation and drinking water and use
of Shamilat land. According to eight exceptions to
section 499, PPC, an accusation made in good faith
against any person to lawful authorities does not
constitute defamation. Similarly, as noted above, an
accusation in good faith for protection of the
interest of the person making it or of any other
person or for the public good also do not constitute
the offence of defamation. The issues of irrigation
and drinking water and the use of Shamilat land
including the protected forest, pertain to the duties
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