QUARTERLY CASE LAW UPDATE

ONLINE EDITION

VOLUME-III, ISSUE-II
(MAY TO AUGUST 2022)

PUBLISHED BY: LEGAL RESEARCH CELL,

HIGH COURT OF SINDH, KARACHI
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QUARTERLY CASE LAW REPORT

(01-05-2022 TO 31-08-2022)

A SUMMARY OF THE LATEST JUDGMENTS DELIVERED BY THE

CONSTITUTIONAL COURTS ON CRUCIAL LEGAL ISSUES

JUDGMENTS OF INTEREST

SR.NO. COURT SUBJECT AREA OF PAGE

LAW NO.

1 What are the objectives of the Protection

against Harassment of Women at the
Workplace Act 2010? What are the Harassment of 06
Constitutional foundations of rights to Women at the
‘gender equality’ and ‘safe working Workplace
Supreme environment’, meaning and scope of the
Court of right to ‘dignity’?
Pakistan
2 Whether a convict for the remaining
period of his conviction can be released at
the appellate stage on probation under the Criminal Law 07
Probation of Offenders Ordinance, 1960
(‘the Ordinance’) and the Rules?

3 Whether an unofficial/un-notified list of

Journals with no legal effect can be set Constitutional 09
aside? Law
4 Whether a registered voter of Ward No.8
is ineligible to contest the election as a
candidate from either Wards No.2 or 4 as Election Law 09
Sindh High per Section 35 (1) (c) of the Sindh Local
Court Government Act 2013?
5 Whether, on facts and circumstances of
the case learned, Appellate Tribunal
Inland Revenue (ATIR) was justified to Tax Law 10
allow adjustment of more than 90% of
input against output in all twelve months
despite noncompliance to Section

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8B(2)(i) of Sales Tax Act, 1990, which

requires furnishing of statutory auditor’s
certificate.
Whether, on the facts and circumstances
of the case, subsection (2) & (3) of
Section 8B Sales Tax Act, 1990 gives the
manner and time frame for adjustment or
refund of the amount not allowed for
adjustment under subsection (1) of
section 8. Whether the tribunal, as well as
the Commissioner Inland Revenue
(Appeals) CIR (A), is, empowered to
ignore the systems and procedures
designed under the law in any
circumstances?

6 Whether the Court of Special Judge,

Customs, Taxation, Anit-Smuggling and
Sindh High Money-Laundering, Karachi has the Income Tax &
Court jurisdiction to proceed with matters Anti Money 12
falling under Sections 192, 192A, and 203 Laundering law
of the Income Tax Ordinance, 2001 read
with Sections 3, 4, 8, 20, 21, 22 of the
Anti-Money Laundering Act, 2010
(AMLA)
7 Whether the Respondents rightly applied
values of the imported goods as existing
on the date of the Bill of Lading instead Tax Law 14
of the date of Registered Bank Contracts
to impose customs duties and allied
taxes?

8 Whether any change that takes place

pursuant to a decree stands nullified,
when an application under section 12(2) Civil Law 16
of the Civil Procedure Code is allowed?

9 Whether the question of grant of pre-

arrest bail to the petitioner in Reference
No.23/2020 was considered and decided Criminal Law 18

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conclusively by a learned Division Bench

of this Court in C.P. No.D-6040/2019?
What is the effect of the order of dismissal
of C.P. No.D-6040/2019 on the present
petition?

10 Whether the court was justified in

returning the applications under the
Succession Act, 1925 under Order VII Civil Law 21
Rule 10 CPC of predecessors-in-interest
of the co-owners?

11 Where an order under section 174 Cr.P.C.

passed by a magistrate in the capacity of
link/in charge and attained finality;
subsequently, the Magistrate having Criminal Law 23
Sindh High jurisdiction can pass a fresh order on a
Court second application filed by a stranger for
disinterring the dead body?
12 Whether an employee who has been
superseded once; can be considered for Service Law 24
promotion.
13 Whether writ jurisdiction was the proper
forum to seek regularization of third- Constitutional 26
party employees in an admittedly listed Law
public limited company?
14 Whether, as per clause 47B of Part IV of
the Second Schedule read with section 53
of Income Tax Ordinance 2001 in the
absence of a Certificate of exemption Tax Law 27
under section 159 of Income Tax
Ordinance 2001, the applicant/Taxpayer
is liable to the recovery of Tax under
section 161 of Income Tax Ordinance
2001?
15 Whether a co-owner is not entitled to
mesne profit, where neither the
defendants dispossessed the plaintiff nor 28
enjoyed illegal possession of the father’s Civil Law
property rather, they are the owner of the

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said property, being legal heirs of the

deceased?
16 Whether non-examination of the witness
who brought the property/contraband for Criminal Law 30
chemical examination and non-
production of malkhana entry cut the
chain of evidence to prove the case
against the appellant in terms of safe
custody?
17 Is there any particular format for
recording a dying declaration, and what Criminal Law 31
are the main requirements?
18 Whether the claims of Plaintiff with
Civil Law 32
Sindh High regard to his service/retirement benefits
Court and dues can be adjudicated upon in suit?
19 Is there a bar in taking cognizance under
the Illegal Dispossession Act, 2005, when Criminal Law 34
the offences committed by the accused
persons fall under two different
enactments, i.e., one under the Pakistan
Penal Code and another under the Illegal
Dispossession Act, 2005?
20 Whether the impugned order dated
26.05.2022, which is for temporary
custody of the minor under section 12 of Family Law 35
the Guardians and Wards Act, 1890, is
appealable under section 14(1) of the
Family Courts Act, 1964?

21 Whether a writ petition is maintainable Constitutional

against Private Hindu Panchayat? Law 36

SELECTED ARTICLES
1 ADOPTION AMONGST HINDU AND Federal Law
MUSLIM: A COMPARATIVE STUDY Journal 37
PAKISTAN IN PAKISTAN PERSPECTIVE (Federal Judicial
Academy)

2 A COMPREHENSIVE STUDY OF SBLR 2022 38

PAKISTAN POWER OF ATTORNEY Article-53

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3 UNITED COURTS AND ARTIFICIAL International 38

STATES Association for
INTELLIGENCE
OF Court
Administration
AMERICA
4 UNITED E-JUSTICE IN SWITZERLAND AND International 39
STATES Association for
BRAZIL: PATHS AND
OF Court
EXPERIENCES Administration
AMERICA

DISCLAIMER 39

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Supreme Court of Pakistan

01. Supreme Court of Pakistan

Uzma Naveed Chaudhary, etc. (in CP-1655/2019),
Ather Farook Buttar (in CP-1347/2019) Vs. Federation of Pakistan, etc.
Civil Petitions No.1347 & 1655 of 2019
Mr. Justice Umar Ata Bandial (Chief Justice)
Mr. Justice Syed Mansoor Ali Shah
https://www.supremecourt.gov.pk/downloads_judgements/c.p._1347_2019.pdf

Facts: PTV's five female anchorpersons filed a complaint against the Controller in Incharge
of the PTV News Centre Islamabad under the Protection against Harassment of
Women at Workplace Act, 2010. The allegation includes that the accused individually
at their workplace molested and harassed them by winking at and making indecent
gestures. The Federal Ombudsman held the respondent liable for harassing the
petitioners and, by allowing the complaint, imposed upon him the minor penalties of
censure and payment of compensation of Rs. 250,000. In a representation against the
order of the Federal Ombudsman, the President of Pakistan modified and converted
the punishment of the respondent into that of a major penalty of removal from service.
The Islamabad High Court partially accepted the writ petition of the respondents and
set aside the order of the President.

Issues: What are the objectives of the Protection against Harassment of Women at the
Workplace Act 2010? What are the Constitutional foundations of rights to ‘gender
equality’ and ‘safe working environment’, meaning and scope of the right to ‘dignity’?

Analysis: The scope of the Protection against Harassment of Women at the Workplace
(Amendment) Act 2022 ("Amendment Act") has been widened. The Act has added in
the definition of "employee" the informal workers without a contract, freelancers,
domestic workers, trainees, apprentices, students, performers, artists, sportspersons,
etc. The Amendment Act has also redefined the expression "harassment" and included
therein "discrimination on the basis of gender". The Act provides for a right to a safe
working environment for all genders including male, female and transgender, free of
harassment, abuse and intimidation. NHC: Any act of harassment that affects the free
choice to enter and continue any lawful profession or occupation would amount to
threatening the safety of the working environment. Dignity is an inherent and
inseparable right of a human being and has thus been guaranteed by our Constitution
as a fundamental right that is not subject to any qualification, restriction or regulation.
The universal value of human dignity provides that "all human beings are born free
and equal in dignity and rights". It shuns patriarchy, misogyny and the age-old archaic

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and dogmatic social norms, and nurtures constitutional ideals of liberty, equality and
social justice.

Conclusion: Our lives begin to end the day we become silent about things that matter." In this case,
a few brave women decided to break the silence by coming forward to speak up about
the sexual harassment they faced at their workplace, praying that the perpetrator would
be taken to task. The High Court has wrongly interfered with and set aside the
President's order. The respondent has meanwhile retired from service and stays mostly
out of the country (currently, in Canada). We convert his punishment from removal
from service' into 'compulsory retirement' along with payment of Rs.500,000/as
compensation to be paid by him to each of the petitioners. The amount of
compensation shall be recovered from arrears of pay (if any), pension emoluments or
any other source (property) of the respondent as per Section 4(i)(d) of the Act.

2. Supreme Court of Pakistan

Abdul Rasheed Vs. The State & Others
Criminal Petition No. 1667 of 2021
Mr. Justice Qazi Faez Isa
Mr. Justice Syed Mansoor Ali Shah
https://www.supremecourt.gov.pk/downloads_judgements/crl.p._1667_2021.pdf

Facts: The case against the petitioner established thus was convicted by the Trial Court for
three years rigorous imprisonment (R.I) with a fine in default one month further simple
imprisonment (S.I). the appellate court maintained the same, but High Court reduced
it to one year(R.I) with same fine and default punishment. The petitioner appealed
before Supreme Court.

Issues: Whether a convict for the remaining period of his conviction can be released at the
appellate stage on probation under the Probation of Offenders Ordinance, 1960 (‘the
Ordinance’) and the Rules?

Analysis: Section 5 of the Ordinance permits a convict to be released on probation. And, under
section 3(2) of the Ordinance this power can also be exercised in appeal and revision,
and, may also be exercised by Supreme Court by virtue of Article 187 of the
Constitution of the Islamic Republic of Pakistan read with Order XXXIII Rule 6 of
the Supreme Court Rules, 1980 (respectively ‘the Constitution and ‘the Rules’).

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A convict may be placed under the supervision of a probation officer (for a period of
one year to three years) provided he executes a bond stipulating that he shall not
commit any offence, shall keep the peace and be of good behaviour, and must abide
by any other condition of his probation, failing which he shall appear and receive
sentence if called upon to do so during the period of his probation.
The preconditions permitting the making of a probation order with regard to the
petitioner are met. The petitioner is a young man and, does not have a criminal record.
“The object of punishing an offender is the prevention of offences or reformation of
the offender. Punishment would be a greater evil, if instead of reforming an offender,
it is likely to harm the offender to repetition of crime with the possibility of irreparable
injury to him. The provisions of the Probation of Offenders Ordinance are, thus,
intended to enable the Court to carry out the object of reformation and give the
accused person a chance of reformation which he would lose by being incarcerated
in prison.’
Fatuwwah is the spiritual ethical concept of chivalry, mercy, altruism, and generosity.
A probation order that mandates community service benefits the offender, the
community, and the state. It saves the cost of keeping a convict imprisoned and it
prevents the overcrowding of prisons. Islamic Sharia’s, which includes analogous
precedents from Islamic jurisprudence, is a legally acceptable method of statutory
interpretation. By doing community service, the prisoner makes up for his wrongdoing
and stays away from people he shouldn't be around. Unpaid community service may
also instill a sense of social responsibility and personal accomplishment in the convict.
The ordinance does not preclude incorporating unpaid community service into a
probation order. The goal of the law is to turn a convicted criminal into an honest,
hardworking, and law-abiding citizen.

Conclusion: Yes, a convict can be released under the condition stipulated under Section 5(2) of the
Ordinance at appellate forum. Any condition may be imposed 'for rehabilitating him
as an honest, industrious, and law-abiding citizen'. If the convict agrees not to commit
any crime during his probation, he agrees to pay the fine to the complainant. He also
agrees to remain on probation for a period of one year doing unpaid community service
of one hundred hours, monitored by the Parks and Horticulture Authority.
Consequently, the sentence and fine, and sentence in default of fine, are set aside.

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Sindh High Court, Karachi

3. Muhammad Sadiq Ali Khan Vs. Fed. of Pakistan and Others

Const. P. 3875/2022 (D.B.)
Mr. Justice Ahmed Ali M. Shaikh (Chief Justice)
Mr. Justice Yousuf Ali Sayeed
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxMzgwY2Ztcy1kYzgz

Facts: The Petitioner professes to be an Associate Professor (BPS-20) in the Department of

Computer Science at the University of Karachi (the “University”), and has invoked
the jurisdiction of this Court under Article 199 seeking to challenge an unofficial list
of Journals said to have been prepared by the Board of Advanced Studies & Research
(the “BASR”) in the year 2021, as well as the reliance allegedly being placed thereon
by the University in reckoning the eligibility of candidates for purpose of recruitment
to the posts of Professor, Associate Professor, Assistant Professor and Lecturer (the
“Subject Posts”), as advertised via publication in newspapers on 13.02.2019, rather
than official list of Recognized Journals earlier prepared by the BASR and notified in
the year 2015.

Issue: Whether an unofficial/un-notified list of Journals with no legal effect can be set aside?

Analysis: …Having considered the matter, it is apparent from the very case set up by the
Petitioner that the alleged list of 2021 is admittedly unofficial/unnotified, hence is
devoid of any legal effect. As such, the same does not attract judicial intervention
requiring it to be set aside….

Conclusion: …Needless to say, if any recruitment were actually made in contravention of the
eligibility criteria, whether that may be, the action would be open to challenge through
appropriate proceedings at that stage. However, under the given circumstances, no
cause for issuance of a writ presently stands made out and the Petition, being
misconceived, stands dismissed accordingly.

4. Sindh High Court, Karachi

Shafiq ur Rehman Khanbati Vs. The Returning Officer & Ors
Const. P. 4361/2022 (D.B.)
Mr. Justice Ahmed Ali M. Shaikh (Chief Justice)
Mr. Justice Yousuf Ali Sayeed
https://caselaw.shc.gov.pk/caselaw/view-file/MTY5ODg1Y2Ztcy1kYzgz

Facts: The Petitioner has invoked the jurisdiction of this Court under Article 199 of the
Constitution so as to impugn a Letter dated 15.07.2022 issued by the District
Returning Officer/Regional Election Commissioner, Thatta, to the Returning Officer,
MC Thatta & UC No.06 to UC 10 (the “Impugned Letter”) on the ground that it denies

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his right to contest the forthcoming Local Government Election for the seat of
Member, Municipal Committee Thatta, from Ward No.2.

Issue: Whether a registered voter of Ward No.8 is ineligible to contest the election as a
candidate from either Wards Nos.2 or 4 as per Section 35 (1) (c) of the Sindh Local
Government Act 2013?

Analysis: …Having gone through those Orders as well as the Memos of both the Appeals after
having verified the same directly from the Appellate forum via the office of the
Member Inspection Team-II of this Court, we have satisfied ourselves that the former
matter was in respect of Ward No. 2 and the latter in respect of Ward No.4, with the
acceptance of the Petitioner’s nomination from both Wards being challenged on the
same ground - that he was not a registered voter of either of the Wards but was instead
a registered voter of Ward No.8, therefore did not fulfill the qualification criterion in
terms of Section 35(1)(c) of the SLGA. As both the Appeals were allowed on that very
ground with the nomination paper in question being rejected in each case, it is manifest
that the reference to Ward No.4 in the relevant introductory paragraph of the respective
Orders made in both the Appeals was obviously a typographical error and did not
afford any valid basis for the Petitioner or the Returning Officer to contend or portray
that the nomination from Ward No.2 continued to subsist. Needless to say, such an
interpretation beggars belief, and when the Appellate Orders are viewed in their true
light it is evident that the very substratum of the Petitioner’s case stands completely
shorn away. The Petitioner’s failure to mention the appellate proceedings in the memo
of Petition or file the documents relating thereto is also a matter of concern as it reflects
and indicates that the approach to this Court has been made with unclean hands…

Conclusion. …In view of the foregoing and keeping in view the conduct of the Petitioner, as noted
in paragraph 8 above, the Petition stands dismissed with costs of Rs.25,000/- to be
deposited by the Petitioner towards the High Court Clinic within seven (7) days of
announcement of this Order, with receipt to be submitted in the office.

5. High Court of Sindh, Karachi.

Commissioner IR, Zone-IV Vs. M/s. Hamdam Paper Corporation (Pvt) Ltd.
Spl. STRA No.2500 of 2015
Mr. Justice Irfan Saadat Khan (Author)
Mrs. Justice Rashida Asad
https://caselaw.shc.gov.pk/caselaw/view-file/MTY5Nzc2Y2Ztcy1kYzgz
Facts: Briefly stated the facts of the case are that the Respondent was served with the show
cause notice to pay a sum of Rs.11,035,206/- out of total output tax of
Rs.110,352,061/- under section 8B of the Sales Tax Act, 1990 (hereinafter referred to
as the Act) as according to the Department the Respondent was not excluded from the
purview of the said Section, as provided under SRO 647(1)2007 dated 27.06.2007. In

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response to the said notice, the Respondent filed a reply to the concerned Deputy
Commissioner (hereinafter referred to as the DC) agitating that though they have
claimed input tax to the extent of 90% of the output tax, however, the same is
permissible under Section 8B of the Act, and the balance amount, if any, was available
to them by way of adjustment or refund as the case may be, hence they have not
committed any default and the action is illegal, which needs to be vacated. The
concerned DC considered the said reply of the Respondent however, did not agree
with the same and vide order dated 08.03.2012, bearing assessment order
No.3/92/2012, directed the Respondent to pay sales tax amounting to Rs.11,586,966/-
, alongwith default surcharge under Section 11(2), 34 and 36(1) of the Act. The
Department also imposed penalty upon the Respondent under the provision of Section
33 of the Act.

Issues: i) Whether, on facts and circumstances of the case learned, Appellate Tribunal Inland
Revenue (ATIR) was justified to allow adjustment of more than 90% of input against
output in all twelve months despite noncompliance to Section 8B(2)(i) of Sales Tax
Act, 1990, which requires furnishing of statutory auditor’s certificate.

ii) Whether, on the facts and circumstances of the case, subsection (2) & (3) of section
8B Sales Tax Act, 1990 gives the manner and time frame for adjustment or refund of
the amount not allowed for adjustment under subsection (1) of section 8. Whether the
tribunal, as well as the Commissioner Inland Revenue (Appeals) CIR (A), is,
empowered to ignore the systems and procedures designed under the law in any
circumstances?

Analysis: …On examination of Section 8B of the Act, though the above proposition of law
categorically restricts adjustment to the extent of 90% only, on the other hand grants
certain exclusions also. The CIR (A) and the ATIR while dealing with the matter have
categorically observed that the action of the Respondent in making adjustment has not
caused any loss to the exchequer and moreover the Department has failed to point out
that otherwise the registered person was not entitled for adjustment of the input tax of
the remaining 10% amount in case of 90% adjustment as the Respondent, being a
registered taxpayer, was legally entitled in case of non-adjustment of the excess
amount to adjust the same at the end of the financial year, which demonstrates that
even in the case of 100% adjustment by the respondent at the end of the financial year
the position would have remained the same as in such situation there would not have
been a refund arisen in favour of the Respondent.
...We agree with the contention raised by Mr. Aqeel Ahmed Khan that such lapse on
the part of the Respondent could be termed as technical / procedural mistake as by
doing such act no gain was obtained by them as had there been adjustment of 90%

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only a right of refund of the Respondent would arise at the end of the financial year,
which clearly denotes that the exchequer has got its due share by way of adjustment
either in case of 90% adjustment in that very tax period or in case of 100% tax
adjustment resulting a refund at the end of the financial year in favour of the taxpayer
in case of carry forward of the tax adjustment for the relevant tax periods. In a
somewhat similar situation Lahore High Court in the decisions referred supra and in
the decision given in the case of Commissioner Inland Revenue ..Vs.. M/s. Malik
Enterprise (2021 PTD 945) has observed that by way of 90% adjustment no loss of
revenue has been caused and therefore decided the matter in favour of the Respondent.
In the instant matter also the CIR (A) and the ATIR both have reached to the
conclusion that no loss of revenue since have been caused therefore, have rejected the
stance of the Department…

Conclusion: …We therefore, keeping in view what has been discussed above and the decisions of
the Lahore High Court have come to the conclusion that the ATIR has passed the order
which does not require any interference on our part. We therefore, uphold the same by
reframing the question and answering the same in affirmative i.e. in favour of the
Respondent and against the Department.
“Whether under the facts and circumstances of the case the ATIR
was justified in observing that adjustment of more than 90% of
the input tax against output tax as provided under Section 8B of
the Act has not caused any revenue loss to the exchequer and was
a mere procedural lapse on the part of the Respondent”.
…The instant STRA stands disposed of in the above terms.

6. High Court of Sindh, Karachi.

Bursshane LPG (Pakistan) Ltd., & others Vs Federation of Pakistan through
Secretary / Chairman Revenue Division/ Federal Board of Revenue & others
Constitutional Petition No.D-5162 of 2020
Mr. Justice Irfan Saadat Khan (Author)
Mr. Justice Mahmood A. Khan
https://caselaw.shc.gov.pk/caselaw/view-file/MTY4ODI2Y2Ztcy1kYzgz
Facts: Briefly stated the facts of the case are that the petitioner No.1 is a listed public limited
company, duly registered with the Stock Exchange. The petitioners No.2, 3 and 4 are
its directors. That a complaint bearing No.945/2020 dated 31.08.2020 (hereinafter
referred to as Complaint) was filed under Sections 192, 192A and 203 of the Income
Tax Ordinance, 2001 (hereinafter referred to as Ordinance 2001) read with Sections
3, 4, 8 20, 21, 22 of the Anti-Money Laundering Act, 2010 (hereinafter referred to as
AMLA). Thereafter the respondent No.2 took cognizance of the said complaint in
Case No.192/2020 against the petitioners, under the above referred provisions of law.

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In the instant petition, the petitioners have not only challenged the said complaint and
its proceedings but also the jurisdiction of the respondent No.2 in proceeding with the
matter.

Issues: Whether the Court of Special Judge, Customs, Taxation, Anit-Smuggling and Money-
Laundering, Karachi has the jurisdiction to proceed with matters falling under
Sections 192, 192A, and 203 of the Income Tax Ordinance, 2001 read with Sections
3, 4, 8, 20, 21, 22 of the Anti-Money Laundering Act, 2010 (AMLA)

Analysis: …The AMLA provides prevention of money laundering. The Court which deals with
the money laundering has been defined under Section 20 of AMLA, reproduced supra,
which defines that the Court of Session established under the Code of Criminal
Procedure, within its territorial jurisdiction, shall adjudicate upon the offences
punishable under the Act with the exceptions that where the predicate offence is
triable by any Court other than the Court of Session, the offence of money laundering
and all matters connected therewith shall be tried by the Court trying the predicate
offence. The term predicate offence has been defined under Section 2(xxvi) of AMLA,
as per which predicate offence means an offence specified in Schedule-I of the Act
(AMLA). If Schedule-I of AMLA is examined, it would become evident that the
matters falling under Sections 192, 192(a), 194 and 199 of the Ordinance 2001 are
considered to be the predicate offences, meaning thereby that Anti-Money Laundering
Court has the jurisdiction to deal with the matters concerning predicate offences and
the above referred Sections of the Ordinance 2001 also fall within the ambit of
predicate offences. If the term proceeds of crime, as defined under Section 2(xxviii)
of AMLA, is examined it would be seen that the properties derived or obtained directly
or indirectly by any person from the commission of predicate offence would be
considered as proceeds of crime. The offences of money laundering have been defined
under Section 3 supra, which categorically provides that a person shall be guilty of
offence of money laundering, if the person acquires etc. a property by way of proceeds
of crime. This shows that Section 3 of AMLA has a direct nexus with acquiring etc.
of the property by way of proceeds of crime and in such type of situation the said
offence is triable under Section 20 of AMLA by the Court defined under the said
Section.
...The above discussion would reveal that in the cases where a predicate offence has
been committed or any property has been acquired etc. by way of proceeds of crime,
the same is triable by the Court as defined under Section 20 of AMLA. Now if the
facts of the present matter are examined, it would reveal that a complaint dated
20.05.2020 was received by the Directorate of Intelligence and Investigation Karachi
against the petitioners with regard to tax evasion and money laundering and
embezzlement of funds and fraudulent transfer of company’s funds to personal
accounts by the management of the company. Needless to explain that under

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Schedule-I of AMLA, where predicate offence has been defined, it has been
mentioned that the matters of tax evasion as enumerated under Sections 192, 192A,
194 and 199 of the Ordinance 2001 squarely fall under the definition of predicate
offences triable by the competent Court as defined under Section 20 of AMLA. We
will not make any comment with regard to the fact that whether the properties acquired
etc. or other allegations with regard to embezzlement of funds or fraudulent transfer
could be considered as proceeds of crime or not as the said matter is subjudice before
the Court of Special Judge, Customs, Taxation, Anti-Smuggling and Money-
Laundering, Karachi…
…The record further shows that vide Notification dated 14.05.2016 an amendment
was made in the Schedule of AMLA and after Section-XII, Section XIIA was added
whereby the provisions of Sections 192, 192A, 194 and 199 were added in the
definition of predicate offence. The record also reveals that before proceeding against
the petitioners all the formalities were completed by the concerned Directorate with
regard to appointment of Investigating Officers, referring the matter to the concerned
Court, appointment of District & Sessions Judge as Judge of Special Court Customs,
Taxations, Anti-Smuggling and Money-Laundering for the province of Sindh. The
record further reveals that the SROs and the Notifications, as pointed out by Mr. Qazi,
do not show any lack of jurisdiction or wrongful assumption of jurisdiction by the
concerned Directorate or non-fulfillment of any legal obligation with regard to
assumption of jurisdiction either by the concerned Collectorate or by the concerned
Judge. In our view AMLA is quite clear in this behalf dealing with the matters with
regard to anti-money laundering, proceeds of crime and other matters with regard
predicate offence as provided under the said law.

Conclusion: …The upshot of the above discussion is that we do not find any jurisdictional defect
or wrongful assumption of jurisdiction by the concerned Court so as to whittle down
the proceedings emanating from the complaint. The instant petition thus is found to
be not maintainable, which stands dismissed along with the listed application(s), if
any, with no order as to costs. Needless to state that all the averments made in the
instant petition with regard to jurisdiction of the Trial Court etc. and other grounds
agitated in the instant petition, either with regard to tax evasion, proceeds of crime or
that of predicate offence, would remain available to the petitioners to be agitated
before the Trial Court, who would conclude the trial through a speaking and well
reasoned order, strictly in accordance with law, after providing ample opportunity of
hearing to the petitioners…
7. High Court of Sindh, Karachi.
M/s. Zakwan Steel & others Vs the Federation of Pakistan & others
C.P. No.D-7101 of 2021
Mohsin Raza Vs Federation of Pakistan & others
C.P. No.D-1641 of 2022

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Mr. Justice Irfan Saadat Khan

Mr. Justice Zulfiqar Ahmad Khan
https://caselaw.shc.gov.pk/caselaw/view-file/MTY4Njc2Y2Ztcy1kYzgz
Facts: Briefly stated, petitioners imported Prime Quality Steel Products and Hot Rolled Steel
Strips in Coil form. It manifests from the pleadings of the petitioners that the
respondent Collectorates applied London Metal Bulletin (LMB) prices as existed on
the date of Bill of Lading instead of the date of Registered Bank Contracts, owing to
which, the petitioners had to pay duties and taxes at an exorbitant rate, hence the
petitioners have impugned such methodology here.

Issues: Whether the Respondents rightly applied values of the imported goods as existing on
the date of the Bill of Lading versus the date of Registered Bank Contracts to impose
customs duties and allied taxes.

Analysis: …Firstly and foremost, the primary method of determining the customs value under
Section 25A is the “transaction value”, i.e., the price actually paid or payable for the
imported goods. The words “actually paid or payable” are important to keep in mind
and the fact that only if the transaction value cannot be determined, then any
subsequent methods are to be applied sequentially, in the order set forth in the Act…
…Verba cum effectu accipienda sunt is a judicial maxim that means that words must
be interpreted so as to have effect.12 Every word and every provision is to be given
effect and none should be ignored so as to needlessly be given another interpretation
that causes it to duplicate another provision or to have no consequence.13 Redundancy
could not be attributed to legislation14 and words cannot be considered meaningless,
else they would not have been used15...
…Residual effect of the above discussion is that in our humble view LMB (on the date
of LC) was not the right way to determine the valuation of the goods thus interpretation
of Section 25 of Customs Act, 1969 vis-à-vis reliance on the London Metal Bulletin
was not compliance of Section 25 of Customs Act, 1969 hence Custom
Collectorates/Respondents have coercively applied LMB prices from the date of Bill
of Lading instead of the date of Registered Bank Contracts which is also a mode of
payment recognized by the State Bank of Pakistan…

Conclusion: …In view of the foregoing, these petitions are allowed. The assessment made by the
Custom Collectorates/respondents from the Bill of Lading through LMB instead of
date of Bank Registered Contract is set aside as being ultra virus to Section 25A and
is declared to be without legal effect. The petitioners’ consignment are therefore to be
valued on the declared value via the Bank Registered Contract and an importer is only
liable to pay duty, taxes et cetera on such basis. Excessive pricing is anti-productive
as it fuels inflation as well as depletion of foreign reserves. If the petitioners availed
the interim relief to ex-bond the goods/consignments, then the security furnished by

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them stands discharged. The amount deposited with the Nazir are to be returned
forthwith subject to proper verification and confirmation.
8. High Court of Sindh, Karachi
Syed Abdul Rehman Vs.Mst. Naheed Hussain and others.
C. P. No.D-6359/2018 & C.P. No.D-8593/2017
Mr. Justice Syed Hasan Azhar Rizvi
Mr. Justice Arshad Hussain Khan
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxODM1Y2Ztcy1kYzgz
Facts: Briefly, the facts giving rise to the above petitions are that the petitioner [in both the
petitions] has purchased a property bearing Flat No.604, 6th Floor, measuring 1168
Sq. Ft. in the building known as AMBER PLAZA, constructed on Plot No.110, Survey
No.213, BlockA, Sindhi Muslim Cooperative Housing Society, Jamshed Town,
Karachi, East [subject property] from respondent No.2 [Mst. Zaibun Nisa] through
sale deed dated 27.08.2015 against payment of Rs.29,00,000/- [Rupees Twenty Nine
Lacs Only] and physical possession of the property was also handed over to the
petitioner on the very same date.
It is stated that respondent No.2 had acquired the subject property through sale deed
dated 30.04.2015, executed by Nazir of District & Sessions Court, Karachi, in
Execution No.19 of 2013 in compliance of order dated 26.09.2014, decree dated
18.09.2013, passed in Civil Suit No.1444 of 2012.
It has been stated that the petitioner was enjoying lawful physical possession of the
property, however, without issuing any notice to the petitioner, learned Senior Civil
Judge-IV, Karachi-East [Trial Court] passed an order dated 08.12.2017 [impugned
herein] allowing the application under Section 12(2) CPC filed by respondent No.1
[Mst. Naheed Hussain] and on the same date i.e. 08.12.2017, issued the writ of
possession with the police aid and on the very date the bailiff and the police with the
collusion of respondent No.1 forcibly dispossessed the petitioner from the subject
property.
It is further stated that the petitioner also filed an application under section 12(2) Civil
Proceedure Code before learned Trial Court for recalling of order dated 08.12.2017,
which was obtained by respondent No.1 by playing fraud and misrepresentation but
learned Trial Court by its order dated 13.01.2018 [impugned herein], dismissed the
said application against which the petitioner filed Civil Revision Application
No.14/2018, which was also dismissed by learned VIth Additional District & Sessions
Judge, Karachi-East in a mechanical manner by its order dated 14.05.2018. The
petitioner has impugned all three above orders in these petitions.

Issues: Whether any change that takes place pursuant to a decree stands nullified, when an
application under section 12(2) of the Civil Procedure Code is allowed?

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Analysis: …It is also well settled that nobody can transfer a better title, then that he himself
possesses. In the present case Zaibun Nisa herself had no right and title in the suit
property, she could have not alienated the same to the present petitioner. In this respect
reliance is placed on the case of Abdul Hameed through L.Rs. and others v.
Shamsuddin and Others [PLD 2008 SC 140]…

…Insofar as the claim of the petitioner that he is a bonafide purchaser, is concerned,

suffice to state that when an application under section 12(2) of the Civil Procedure
Code is granted and decree is set aside then every change that had taken place pursuant
to such decree also stand nullified. On the basis of such decree if title in favour of any
person was created, then it also falls to the ground, the moment the decree is set aside.
Therefore, while allowing the application filed under section 12(2) of the Civil
Procedure Code court could not only be setting aside an order, judgment or decree but
at the same time would also be nullifying every change that has taken place on account
of such order, judgment or decree. A party may have got the order, judgment or decree
executed in his favour from the court which order, judgment or decree is subsequently
set aside under the provisions of section 12(2) of the Civil Procedure Code. In such
eventuality, the parties have to be relegated to the position where they were before
such order, judgment or decree was passed. This is logical consequence of grant of
application under section 12(2) of the Civil Procedure Code…

…Insofar as the possession of the property is concerned, from the record it appears
that admittedly the physical possession of the subject property was taken over from
respondent No.1 pursuant to the judgment and decree obtained through fraud and
misrepresentation, who was residing in the subject property since long as such upon
nullifying the decree the parties have to be relegated to the position where they were
before such judgment and decree was passed. In other words, it is nothing but the fall
out effect of nullifying the order, judgment or decree under the provisions of section
12 (2) CPC. Reliance in this regard can be placed on the case of Al-Meezan Investment
Management Company Ltd. and 2 others v. WAPDA First Sukuk Company Limited ,
Lahore and others [2017 PLD SC 1]…

Conclusion: …The upshot of the above discussion is that the judgments impugned in the present
proceedings passed by learned courts below are well reasoned and speaking orders, as
such, does not warrant any interference by this Court. Consequently, the writ petitions
being devoid of merit are dismissed.

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9. High Court of Sindh, Karachi.

Aijaz Hussain Jakhrani Vs National Accountability Bureau and Director
General (Sukkur) NAB, through Mr. Mujeeb-ur-Rehman Soomro, Special
Prosecutor NAB a/w I.O. Mujtaba Khan, Deputy Director NAB.
Constitutional Petition No. D – 1528 of 2020
Mr. Justice Nazar Akbar
Mr. Justice Muhammad Faisal Kamal Alam
Mr. Justice Nadeem Akhtar, (Referee Judge)
https://caselaw.shc.gov.pk/caselaw/view-file/MTY5NjIzY2Ztcy1kYzgz
Facts: …This constitutional petition filed by the petitioner Aijaz Hussain Jakhrani seeking
pre-arrest bail in Reference No.23/2020 filed against him by the respondents / National
Accountability Bureau (NAB) was heard by a learned Division Bench of this Court
composed of Mr. Justice Nazar Akbar (as he then was) and my learned brother Mr.
Justice Muhammad Faisal Kamal Alam. Vide order dated 22.03.2021, Nazar Akbar,
J. confirmed the interim pre-arrest bail granted to the petitioner on 15.12.2020 subject
to his depositing the entire amount of the liability alleged against him in the aforesaid
Reference; however, Muhammad Faisal Kamal Alam, J. dismissed the petition and
recalled the interim pre-arrest bail granted to the petitioner. In view of the difference
in the opinion of the learned Judges, the matter was placed before the Hon’ble Chief
Justice of this Court who was pleased to nominate me as the Referee Judge to resolve
the difference.
…The facts of the case have been meticulously stated in the order passed by Nazar
Akbar, J., therefore, they need not be repeated here. However, it is necessary to state
the facts that are relevant for resolving the difference in the opinion of the learned
members of the Division Bench. On 24.09.2019, the present petitioner filed C.P. No.
D-6040/2019 against NAB at the Principal Seat of this Court at Karachi praying, inter
alia, that NAB be restrained from arresting him in any hidden inquiry or investigation
including the investigation pertaining to the Provincial Highways Jacobabad and
Education Works Department, and in Reference No.10/2019 wherein he was not
arrayed as an accused, or in the alternate, prearrest bail be granted to him. An ad-
interim order was passed in the said petition on 24.09.2019 by a learned Division
Bench of this Court that he shall not be arrested till the next date of hearing. Vide short
order dated 17.12.2020 followed by reasons dated 19.12.2020, C. P. No. D-6040/2019
filed by the petitioner was dismissed by a learned Division Bench of this Court. The
said dismissal of his above petition was not challenged by the petitioner before the
Hon’ble Supreme Court. He, however, filed a review application on 02.01.2021 before
the learned Division Bench seeking review of the said order of dismissal, which
application was dismissed on 15.01.2021. Against the dismissal of his review

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application, he filed C.P.L.A. No.176/2021 before the Hon’ble Supreme Court on

23.01.2021, but withdrew the same on 10.03.2021.
…Meanwhile, Interim Reference No.23/2020 was filed by NAB on 13.11.2020, and
on 09.12.2020 a notice for appearance in the said Reference was issued to the
petitioner by the Accountability Court at Sukkur. The petitioner filed the instant
petition on 15.12.2020 before the Sukkur Bench of this Court seeking pre-arrest bail
in Reference No.23/2020. Interim pre-arrest bail was granted to him on the same day.
However, at the time of final hearing of the petition, the conclusion drawn by each of
the learned members of the Division Bench hearing this petition was at variance as
noted above, that is, Nazar Akbar, J. confirmed the interim pre-arrest bail granted to
the petitioner subject to his depositing the entire amount of the liability alleged against
him in Reference No.23/2020, whereas, Muhammad Faisal Kamal Alam, J. dismissed
the petition and recalled the interim pre-arrest bail granted to the petitioner.

Issues: 1. Whether the question of grant of pre-arrest bail to the petitioner in Reference
No.23/2020 was considered and decided conclusively by a learned Division Bench of
this Court in C.P. No.D-6040/2019?
2. What is the effect of the order of dismissal of C.P. No.D-6040/2019 on the present
petition?

Analysis: …It is well-settled that the Referee Judge does not have the jurisdiction to hear or
decide the whole case as the whole case is not before him, and his jurisdiction is
limited to the extent of resolving the difference between the learned members of the
Division Bench who continue to retain the jurisdiction over the matter ; and, it is the
duty of the Referee Judge to remit his opinion to the learned Division Bench for
disposal of the case by announcing the final order / judgment based on the majority
opinion, including the divided opinions of the original members of the Division Bench
and the opinion of the third / Referee Judge. The above view is fortified by the
authoritative pronouncement of the Hon’ble Supreme Court in Muhammad Sayyar
V/S Vice-Chancellor, University of Peshawar and others, PLD 1974 SC 257---
…It is an admitted position that in his C.P. No.D-6040/2019 the petitioner had prayed
that NAB be restrained from arresting him in any hidden inquiry or investigation, or
in the alternate, pre-arrest bail be granted to him. It is a matter of record that Reference
No.23/2020 was placed on record in the proceedings of C.P. No.D-6040/2019, but the
petitioner did not raise any objection that the said Reference was not the subject matter
of C.P. No.D-6040/2019 or was the subject matter of another petition (the instant
petition) wherein he was granted ad-interim pre-arrest bail. A perusal of the order of
dismissal of C.P. No.D-6040/2019 shows that in the said petition the petitioner himself
had requested the learned Division Bench to grant him the concession of pre-arrest
bail in Reference No.23/2020 as an alternate relief. The said order of dismissal further

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shows that Reference No.23/2020 was not only discussed and examined in C.P. No.D-
6040/2019 by the learned Division Bench, but specific findings in respect thereof were
also recorded, that is, the relevant evidence in the shape of documents was available
on record that vouched for the accusations and prima facie connected the petitioner
with the offence alleged against him, and that the petitioner was not entitled to any of
the reliefs sought by him in C.P.No.D-6040/2019 or the extraordinary concession of
prearrest bail in Reference No.23/2020 in view of prima facie evidence against him.
Such specific findings by the learned Division Bench clearly show that the question
of grant of pre-arrest bail to the petitioner in Reference No.23/2020 was decided
against him in C.P. No.D-6040/2019. This view finds further support from the fact
that the Review Application filed by the petitioner on the ground that the merits of
Reference No.23/2020 were not considered while declining him pre-arrest bail in the
said Reference and dismissing his C.P. No.D-6040/2019, was also dismissed by the
learned Division Bench by holding that the evidence available against the petitioner
in Reference No.23/2020 and relevant documents supporting such accusation and
connecting the petitioner prima facie with the alleged offence had been tentatively
discussed while declining him pre-arrest bail in the said Reference. The point No.1 is,
therefore, answered in the above terms…
…It is significant to note that the petitioner did not challenge before the Hon’ble
Supreme Court the dismissal of his C.P. No.D-6040/2019 and or rejection of his pre-
arrest bail therein, and C.P.L.A. No.176/2021 filed by him before the Hon’ble
Supreme Court against the dismissal of his Review Application was withdrawn by
him. Thus, the orders of the dismissal of his C.P. No.D-6040/2019, rejection of his
pre-arrest bail in Reference No.23/2020 and dismissal of his Review Application
attained finality long ago for all legal intent and purposes. Accordingly, the point No.2
is answered in these terms. It was for the petitioner to challenge the order of the
rejection of his pre-arrest bail in Reference No.23/2020 passed in C.P. No.D6040/2019
before the Hon’ble Supreme Court, which he admittedly did not. The questions
whether the pre-arrest bail in Reference No.23/2020 could be declined to him in C.P.
No.D-6040/2019 and or whether the order of rejection of his pre-arrest bail in the said
Reference passed in C.P. No.D-6040/2019 was sustainable or not, could be decided
only by the Hon’ble Supreme Court. Needless to say, such questions could not be
agitated before or decided by the learned Division Bench of this Court hearing the
instant petition as the said learned Division Bench could not sit in appeal against the
order passed by another learned Division Bench of this Court…

Conclusion: …In the light of the discussion in the preceding paragraph, I respectfully disagree with
the conclusion drawn by Nazar Akbar, J. that the observations given by the learned
Division Bench of this Court in relation to Reference No.23/2020 while dismissing
C.P. No.D-6040/2019 could not have any bearing on the instant petition or that the
dismissal of C.P. No.D-6040/2019 was not an impediment in the relief of pre-arrest
bail sought by the petitioner in the instant petition. In view of my opinion on the points

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in difference, I agree with the view taken by Muhammad Faisal Kamal Alam, J. that
the instant petition is liable to be dismissed.
…The matter shall now have to be placed before the learned Division Bench for
announcing the final order based on the majority opinion. Since one of the learned
members of the Division Bench viz. Nazar Akbar, J. is not available due to his
retirement, let the matter be placed before the Hon’ble Chief Justice for constituting a
Division Bench for announcement of the final order.

10. High Court of Sindh, Karachi.

Abdul Kader & Others Vs. The Court of Xth Additional District Judge South
Karachi and others.
Misc. Appeal Nos. S – 27 to 36 of 2021
Mr. Justice Nadeem Akhtar
https://caselaw.shc.gov.pk/caselaw/view-file/MTY4OTM0Y2Ztcy1kYzgz
Facts: ...The relevant facts of the case are that the predecessors-in-interest of the appellants
were the co-owners of the immovable property bearing Survey No. 4-H, Survey Sheet
No. K-16, measuring 1025 sq. yds., situated in Layari Quarters, Karachi (the subject
property). The applications were filed by the appellants for the grant of the Letters of
Administration in their favour in respect of the following shares left in the subject
property by their late predecessors-in-interest (the deceased)…
…It was the case of the appellants before the learned Trial Court that the deceased
were the co-owners of the subject property to the extent of their above mentioned
shares. All the legal heirs of the deceased, except the present respondents 2 and 3, had
no objection to the grant of the applications filed by the appellants. However, the
present respondents 2 and 3, who are also co-owners of the subject property, filed
objections. The learned Trial Court called a report from the Incharge of the Central
Record that revealed that there are thirteen (13) coowners of the subject property. The
learned Trial Court also called a report from the Mukhtiarkar concerned regarding the
valuation of the subject property that revealed that the lease thereof had expired in the
year 1995, and due to this reason the same had been forfeited by the Government of
Sindh. The said report further revealed that the market value of the subject property
was Rs.17,000,000.00 to Rs.17,500,000.00. In view of the report submitted by the
Mukhtiarkar, the applications were returned by the learned Trial Court to the
appellants under Order VII Rule 10 CPC for presentation before the Court having the
pecuniary jurisdiction in the matter...

Issues: Whether the court was justified in returning the applications under the Succession Act,
1925 under Order VII Rule 10 CPC of predecessors-in-interest of the co-owners?

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Analysis: …Perusal of the impugned orders shows that the applications were not returned on the
grounds that there was a dispute between the co-owners of the subject property with
regard to their ownership / share therein, or that a litigation is pending between some
of the parties, or that the subject property is owned by a partnership firm. In fact, none
of these grounds was considered or discussed in the impugned orders. The sole ground
on which the applications have been returned under Order VII Rule 10 CPC is that the
learned Trial Court did not have the pecuniary jurisdiction as the valuation of the entire
subject property was found to be more than the maximum limit of its pecuniary
jurisdiction. It is not the case of any of the respondents, nor was it held in the impugned
orders by the learned Trial Court, that the valuation of even the individual share of the
deceased was more than the upper limit of the pecuniary jurisdiction of the learned
Trial Court…
…It is an admitted position that the appellants had filed separate applications and not
a joint application, and the entire subject property was not the subject matter of any of
the applications as the appellants had sought the Letters of Administration only in
respect of the share left by each of the deceased. As every deceased had a separate and
distinct share in the subject property falling within the pecuniary jurisdiction of the
learned Trial Court, each of their respective legal representatives was entitled to file a
separate application, particularly when there is no bar in law that separate applications
in respect of separate and distinct shares or portions in the same property cannot be
filed. Accordingly, separate applications could be filed before the Court having the
pecuniary jurisdiction to the extent of the said share of each of the deceased. The case
of Zafeer Gul (supra) cited and relied upon by learned counsel for the appellants
supports this view. The relevant portion of the cited authority is reproduced below for
ease of convenience and ready reference :
“3. To expound the legal position in relation to the valuation of a
suit for partition and separate possession for the purpose of
jurisdiction, it will be pertinent to mention here that every co-sharer
in the immovable property is legally deemed to be in its joint
possession to the extent of his undivided share. Therefore, in a suit
of such nature, law permits him tentative valuation of his share in
the immovable property as specified in the plaint for the purpose of
pecuniary jurisdiction, which is subject to final determination by the
Court; till then the valuation shown in the plaint is to be deemed as
proper value of the suit property for the purpose of availing the
remedy of appeal qua determining the forum of appeal. For further
guidance see: Ajiruddin Moudal and another v. Rahman Fakir and
others (PLD 1961 SC 349).” (emphasis added)
…In view of the above-cited authority, the learned Trial Court ought not to have
returned the applications. Accordingly, the impugned orders, being not sustainable in
law, cannot be allowed to remain in the field. Regarding the contention of respondents
2 and 3 that the shares of some of the co-owners in the subject property are disputed,

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needless to say, in such situations, the applications filed in the testamentary and
intestate jurisdiction are converted into Suits whereafter the dispute is decided on
merits after recording of evidence. The questions whether the subject property belongs
to a partnership firm or whether the appellants had any locus standi to file the
applications, were not agitated at the time of passing of the impugned order nor are
they the subject matter of the present appeals…
Conclusion: …In the above circumstances, the impugned orders are hereby set aside and the
applications are remanded to the learned Trial Court with the direction to decide the
objections filed therein by all the objectors, including the present respondents 2 and 3,
within a period of sixty (60) days on merits and after providing opportunity of hearing
to all the parties ; and, if after hearing the parties the learned Trial Court comes to the
conclusion that the dispute between the parties is of such a nature that the same cannot
be decided summarily or without evidence, the applications may be converted into
Suits. In such an event, as they will be Suits of Administration and the entire subject
property will have to be administered, the learned Trial Court will be at liberty to
consider the question of the pecuniary jurisdiction afresh. Let this order be
communicated forthwith to the learned Trial Court for compliance…
11. High Court of Sindh, Karachi.
Jamal Shaikh son of Bilal Shaikh Vs. IIIrd Adj Khi Central & Others
Cr. Misc. Appln No.446 of 2022.
Mr. Justice Salahuddin Panhwar
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxMTk5Y2Ztcy1kYzgz

Facts: Through instant Criminal Misc. Application, the applicant has impugned the order
dated 16.08.2022 passed by the Additional Sessions Judge-II Karachi East, whereby;
the order dated 18-06-2022, passed by the Civil Judge & Judicial Magistrate-XX
Karachi East directing the Secretary Health to constitute a Medical Board and fix the
date of exhumation of the dead body of deceased Dr. Aamir Liaquat Hussain was set
aside…

Issues: Where an order was passed by a magistrate in the capacity of link/in charge under
section 174 Cr.P.C. which attained finality. Can the Magistrate having jurisdiction
pass a fresh order on a second application filed by a stranger for disinterring the dead
body?

Analysis: …As mentioned above that; on the application of the legal heirs of Dr. Aamir Liaquat
Hussain, the Magistrate concerned vide order dated 10-06- 2022 allowed burial of the
dead body. Prior to passing that order the proceedings under section 174 Cr.PC were
observed, the dead body was externally examined by the medical officer, such medico-
legal certificate was issued and then the dead body was handed over to the legal heirs
for burial. Surprisingly the present applicant did not appear to raise objection or shown
his apprehension regarding the unnatural death of the deceased. The order dated 10-

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06-2022 passed by the Incharge/ Link/ Vacation Magistrate in the capacity of

concerned Magistrate under the provisions of 173 Cr.PC, which provides Power of
Magistrate to agree/disagree with summary police report. Thereafter the present
applicant filed an application under section 174/176 (2) Cr.PC before the same Court,
who passed the earlier order dated 10-06-2022, for disinterment of the body of the
deceased which application was allowed vide order dated 18-06-2022, hence the
Judicial Magistrate-XX Karachi East while entertaining and adjudicating upon the
application of the present applicant travelled beyond his jurisdiction because after
passing the order dated 10-06- 2022, which was never challenged by any party, the
Judicial Magistrate-XX Karachi East had become “functus officio”, the legal
definition is provided that “of no further legal authority or legal effect”. Besides this
the application by the present applicant was “Coram non-judice” [ before a Judge
not competent or without jurisdiction]…

…In case of Damsaz v. Assistant Mukhtiarkar Revenue/Special Judicial Magistrate

and 2 other (2010 MLD 1681), it has been held that “It is consistent view of the
Superior Courts that exhumation of dead body could be ordered on the request or
information of even a stranger for the purpose to know the actual cause of death so
that criminal machinery be sent into motion” However, in this case, the Applicant
has failed to show “Reasonable Suspicion” or a single
“Circumstance”, which may require the Magistrate to exercise powers under Section
176(2), of the Criminal Procedure Code, 1898. In any event, Islam accords great
respect to the dead body of a Muslim, as such exhumation without any justification is
a sin in Islam. In the case of Zaffar Iqbal alias Kaka v. Additional Sessions Judge
and 3 others (2005 PCr.LJ 736), it was observed that being Muslim, we have to
respect a dead body and its disinterment could only be allowed against serious
accusation.

Conclusion: Under these circumstances, the impugned order passed by the learned Additional
Sessions Judge-II Karachi is well-reasoned and needs no interference by this Court,
which is hereby maintained.

12. High Court of Sindh, Karachi.

Aijaz Ali Pathan Vs. Fed. of Pakistan & Ors
Const. P. 2946/2020 (D.B.)
Mr. Justice Muhammad Junaid Ghaffar
Mr. Justice Agha Faisal
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxNTcxY2Ztcy1kYzgz

Facts: …All Petitioners are Civil Servants working in different Grades with the Government
of Pakistan and had filed these petitions seeking various reliefs including challenge to
SRO 1493(I)/2019 dated 05.12.2019, whereby, a procedure was introduced for
compulsory retirement of Civil Servants who had been superseded twice; however,

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for the present purposes, after rescindment of the said SRO, the only controversy left
is in respect of interpretation of Rule 10(5) of the Civil Servants Promotion (BPS-18
to BPS-21) Rules, 2019 (“Rules”)…
Issues: Whether An employee who has been superseded once; can be considered for
promotion.

Analysis: ...It is a matter of record that the petitioners are Civil Servants and had been considered
for promotion earlier and were superseded. It is also not in dispute that before expiry
of one year from their last supersession, they were again considered for promotion and
were again superseded. It is the second suppression which is under challenge before
us on the ground that until expiry of one year from the earlier suppression, the
petitioner’s case could not have been considered by the CSB; and as a consequence
thereof, their second suppression is illegal. It would be advantageous to refer to Rule
10(5) of the said Rules.The above rule clearly provides that a Civil Servant shall be
considered for promotion again in various situation; however, sub-rule (5) very clearly
states that a Civil Servant once superseded for promotion under Rule 8 ibid (it is also
not in dispute that the petitioners were superseded under Rule 8) shall only be eligible
for reconsideration after he / she earns one more (PER) of one full year. Now from a
bare perusal of the above provision, there appears to be no doubt in our minds, that
this Rule is mandatory in nature and has been incorporated to safeguard the interest of
an employee who has already been superseded to improve his performance and
shortcomings in a year, and thereafter be considered once gain for a promotion. Any
other meaning or interpretation would be absurd including any reliance on Rule 4 ibid,
and Schedule-I thereof. It is settled law that a Schedule cannot override the basic Rule
or Law under which it has been issued or annexed, whereas, if there are two conflicting
provisions in law; then it is the duty of the Court to interpret them in such a manner
so as to reconcile them and make them consistent with each other in order to ensure
that none of them is rendered redundant1. It is nowhere provided in this Rule that as
to when a meeting of CSB shall be convened for considering promotion of an officer
who has been superseded in the immediate past CSB. That is catered in Rule 10(5)
which as noted hereinabove is very clear and explicit having attached with it no rider
at all…

Conclusion: …In view of hereinabove facts and circumstances of this case, all these Petitions are
allowed to the extent that the Petitioners second supersession within a span of one year
is held to be in violation of Rule 10(5) of the Rules in question, and accordingly, the
second supersession of the petitioners are hereby set aside. The Petitions are allowed
in the above terms, whereas, the Petitioners shall be considered for next promotion in
accordance with the above observations and the Rule(s) in question in the next
scheduled meeting of CSB.

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13. High Court of Sindh, Karachi

Muhammad Umair & Others vs. Federation of Pakistan & Others
CP D 5333 of 2018
Mr. Justice Muhammad Junaid Ghaffar,
Mr. Justice Agha Faisal
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxNTg3Y2Ztcy1kYzgz
Facts: …the petitioners were/are employees inter alia of the company’s franchisees, vendors,
service providers and third-party contractors and are entitled to regularization
primarily on account of efflux of time. It was insisted that any contractual employee,
even if not directly engaged, was entitled to regularization if more than one year had
passed. It was also averred that even though the respondent company was devoid of
any statutory rules, however, this Court ought to assume/exercise jurisdiction since
the Government owned some of the shareholdings therein…

Issues: Whether writ jurisdiction was the proper forum to seek regularization of third-party
employees in an admittedly listed public limited company?

Analysis: …It is a general principle of law that in the absence of statutory rules of service a writ
petition, in service matters, ought not to be entertained. In so far as the issue of
functions of the state is concerned, the same was explained by the Supreme Court in
the PIAC case and reiterated recently in the Pakistan Olympics Association case.
While eschewing a voluminous repetition of the law illumined, it would suffice to
observe that no case has been set forth before us to suggest that the respondent
company was performing functions connected with the affairs of the state involving
exercise of sovereign power.
Serious questions of fact have been raised with respect to the status of the petitioners
and it was argued that a significant number of them had not been substantiated to even
be employees of the relevant third party respondents. The Supreme Court was seized
of a similar matter, pertaining to regularization of alleged third party employees, in
Sohaib Iftikhar,7 wherein it was held that such disputed questions of fact going to the
root of the matter were not open to determination by the High Court in writ
jurisdiction.
The law with respect to regularization is well settled. The august Supreme Court has
maintained that no claim for regularization was merited on mere efflux of time. The
primary argument of the petitioners, claiming regularization by purported efflux of
time, is conclusively dispelled by this edict.
It has also been held that there was no vested right to seek regularization in absence
of any pertinent law, rules or policy. The Courts have deprecated the tendency of
temporary employees to invoke the writ jurisdiction seeking regularization as it has
been illumined that their relationship is governed by the principles of master and

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servant. The Supreme Court in Sher Aman has catalogued the contemporary law
pertaining to regularization and maintained that regularization requires the backing of
law, rules or policy and in the absence thereof no claim in such regard ought to be
entertained…

Conclusion: In view hereof, we find these petitions to be misconceived, hence, the same were
dismissed, along with pending application/s,…

14. High Court of Sindh, Karachi

M/s Telenor Micro Finance Bank Ltd Vs. Commissioner Inland Revenue
I.T.R. A. No.327 of 2019 I.T.R. A. No.328 of 2019 I.T.R. A. No.28 of 2020
Mr. Justice Muhammad Iqbal Kalhoro
https://caselaw.shc.gov.pk/caselaw/view-file/MTY2NDMyY2Ztcy1kYzgz
Facts: …Applicant, a limited company engaged in the business of banking having branches
in different parts of the country, being withholding agent was obligated to deduct tax
at source under section 151 of the Income Tax Ordinance, 2001 (the Ordinance, 2001)
on payments of profit on debts. It was served with notices under section 176 of the
Ordinance, 2001 requiring it to submit details/documents in respect of tax deducted
and deposited along-with Challan of payment for the years 2012, 2014 and 2015. As
applicant failed to comply with was served with showcause notices under section
161(A)/205 of the Ordinance, 2001 on 20.07.2017 which it duly replied.
Notwithstanding, Orders under section 161/205 of the Ordinance, 2001 were passed
against the applicant. For the year 2012 total tax and penalty was worked out at
Rs.11,255,173/-, for 2014 at Rs.933314, and for 2015 at Rs3039677/- which the
applicant was directed to make good of. The applicant however challenged the Orders
in appeals before the Commissioner Inland Revenue Karachi, who upheld the same
spurring the applicant to file income tax appeals for each tax year separately before
the Appellate Tribunal Inland Revenue of Pakistan Karachi Bench Karachi have been
dismissed through impugned Orders, hence these references.

Issues: Whether, as per clause 47B of Part IV of the Second Schedule read with section 53 of
Income Tax Ordinance 2001 in the absence of a Certificate of exemption under section
159 of Income Tax Ordinance 2001, the applicant/Taxpayer is liable to the recovery
of Tax under section 161 of Income Tax Ordinance 2001?
Analysis: In the case of Meezan Islamic Fund and others Vs. D.G (WHT) FBR and others (2016
PTD 1204) what has been observed and decided, reproduced herein under, is equally
true and applicable mutatis mutandis in the case in hand.

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From the above discussion, it is evident that the concession granted under Clause 47B
of Part IV to the Second Schedule of the Income Tax Ordinance, 2001 cannot be out-
rightly availed by the withholdee from the withholder on account of the bar contained
in Section 159(2) unless the withholdee presents a valid exemption certificate issued
to him under Section 159(1) of Income Tax Ordinance, 2001. There appears to be a
sound logic behind this procedural requirement as the person who want to seek benefit
under Clause 47B may be such person who is not entitled to the benefit or in the past
may have been so entitled but for some reason had lost his entitlement. Therefore, it
has been made mandatory for him under Section 159(2) to first demonstrate to the
withholder that he holds a valid exemption certificate. In Clause 47B of Part IV to the
Second Schedule of the Income Tax Ordinance, 2001 mere mention that the provisions
of Sections 150,151 and 233 shall not apply to certain category of persons does not
mean that to avail such concession the provisions of Section 159 have been made
inapplicable. On the contrary requirement of obtaining exemption certificate has been
made mandatory under Section 159(2) for all payments that fall within the ambit of
Division III of Part V of Chapter X of under chapter XII of the Income Tax Ordinance
and Sections 150, 151 and 233 are part of said chapters. In the circumstances, the
challenge to the impugned circular dated 12.05.2015 fails. All these 280 petitions are
dismissed”.

Conclusion: As can be seen, above discussion and reasons articulated in support of findings
comprehensively cover and reply adequately the question of law framed here. The
question is therefore replied and decided in favour of the department and against the
applicant. It is held that the concession envisaged under clause 47B of Part IV of the
Second Schedule of the Ordinance, 2001 cannot be availed by withholdee out-rightly
and directly from the withholder on account of bar contained in section 159(2) unless
the withholding person has a valid exemption certificate issued to him under section
159(1) of the Ordinance, 2001. A copy of this decision may be sent under the seal of
this Court and the signature of the Registrar to the learned Appellate Tribunal Inland
Revenue, as required per section 133(5) of the Income Tax Act, 2001. Office is
directed to place a copy hereof in each connected references.

15. High Court of Sindh, Karachi.

Gul Bano Vs. Shahnaz Bano & Others
Suit 318/2016 (S.B.)
Mr. Justice Zulfiqar Ahmad Khan
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxMzc4Y2Ztcy1kYzgz
Facts: …the plaintiff Gul Bano grieves that she is one of the daughters of late Abdul Shakoor
Khan who died in the year 1991 leaving five sons and three daughters (including her),
as well as an immovable property bearing house No.A-323, Block-I, North

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Nazimabad, Karachi (“said property”). It is alleged in the plaint that soon after the
death of her father, the defendant No. 1 to 3 occupied the said property, while the
original documents of the said property remained in the possession of the defendant
No.1. It is asserted by the plaintiff that the defendants were not paying her share and
they were bent upon selling the said property depriving the plaintiff from her valuable
inheritance rights, hence the plaintiff reached this Court with the prayers that the
defendants be directed to give away her share, she also has prayed that mesne profit
also be paid to her for the period the said house was enjoyed by the defendants after
the death of her father…

Issues: Whether a co-owner is not entitled to mesne profit, where neither the defendants
dispossessed the plaintiff nor enjoyed illegal possession of the father’s property rather,
they are the owner of the said property, being legal heirs of the deceased?

Analysis: …It gleans from appraisal of the foregoing that the tenancy agreements introduced on
record by the plaintiff’s attorney does not germane to the said property. But this is not
the claim of the plaintiff. The moot plea of the defendants is that they are not enjoying
any benefits from the said property rather they are residing in it being legal heirs of
late Abdul Shakoor Khan. Contention of learned counsel for the defendant that the
plaintiff being co-owner cannot claim mesne profit is not substantiated by any law. As
stated earlier, a person who claims mesne profit, he has to show that he is owner of
the property and that the defendants are in wrongful possession, thereof, therefore in
my humble view for all intent and purposes, even a co-owner (who may be related to
the claimant) may be in wrongful possession of a property if he occupies the subject
property to the exclusion of the other rightful co-owner(s). In such a case the co-owner
in possession to the exclusion of other co-owner will however be held liable to the
extent of his unauthorized or hostile occupation possession or enjoyment thereof to
the extent of the share of the claimant. Once a person establishes and court comes to
the conclusion that the person was entitled to any right or share in the property and he
is being deprived of such right or share in the property by the other person, then even
the partial owner who is out of possession or enjoyment becomes entitled to claim
those profits actually received by the person in unlawful possession or enjoyment of
such part thereof as the case may be…

Conclusion: …In view of the rationale and deliberation contained hereinabove, the forgoing
discussion justifies that the decree should be apportioned under order XX Rule 12
CPC in the manner that the Defendants are liable to pay a sum of Rs. 411,682.98/-
(rupees four hundred, eleven thousand, six hundred eighty two and ninety eight paisa)
to the Plaintiff as mesne profit as of the date of the judgment, however, parties are left
to bear their own costs.

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16. High Court of Sindh, Karachi.

Muhammad Shafi son of Faizullah Vs. The State
Criminal Jail Appeal No. 506 of 2021
Mr. Justice Mohammad Karim Khan Agha
Mr. Justice Zulfiqar Ali Sangi
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxMjQ5Y2Ztcy1kYzgz
Facts: …The facts of the prosecution case as per FIR are that on 15.12.2020 at about 0930
hours at service road Super Highway near 5-Star CNG Scheme No.33 a police party
headed by SIP Sikander Ali Soomro of PS SSHIA apprehended the accused namely
Muhammad Shafi and recovered from his possession one plastic sack from the
Rickshaw he was driving and found 25 packets of Cannabis (Chars) of different size
wrapped with yellow colored solution tape total weight 2.30 kilo and 900 grams in the
presence of mashirs, hence the instant FIR was registered.

Issues: Whether non-examination of the witness who brought the property/contraband for
chemical examination and non-production of malkhana entry cut the chain of evidence
to prove the case against the appellant in terms of safe custody?

Analysis: …It is observed that mere heinousness of the charge and recovery of huge quantity of
the alleged contraband is no ground to convict accused. The prosecution is under a
bounden responsibility to drive home the charge by proving each limb of its case that
essentially included the production of the witness, tasked with the responsibility of
transmitting the samples to the office of Chemical Examiner. Failure is devastatingly
appalling, with unredeemable consequences that cast away the entire case. In the case,
in hand, the property was sent to the Chemical Analyzer through a letter dated: Nil by
PW-3 Inspector Manzoor Ali the investigation officer who took the property from
police station to chemical examiner which is silent and even the report of chemical
examiner is silent in this regard. Only it is mentioned that the property was received
through the letter of Inspector Manzoor Ali, a presumption can be drawn that the
prosecution failed to produce that witness who brought the property/contraband for
chemical examination, and its failure cut the chain of evidence to prove the case
against the appellant in terms of safe custody especially as no malkhana entry was
produced or head of the malkhana examined. In other words the prosecution has not
proved the safe transmission of the property to the chemical examiner, which creates
serious doubt in its case. The complainant handed over the contraband to the
investigation officer on 15-12-2020 and the same was sent for chemical examination
on 16-12-2020 but where it was for such a period the prosecution has failed to explain.
Thus the prosecution has also failed to prove safe custody of the contraband…

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Conclusion: …We are of the view that the prosecution has failed to prove the case against the
appellant beyond a reasonable doubt by producing reliable, trustworthy and
confidence, inspiring evidence. Therefore, we allow the instant appeal, set-aside the
impugned judgment dated 07-08-2021, passed by the learned Model Criminal Trial
Court/ 1st Additional District and Session Judge, Malir, Karachi in Session Case No.
172 of 2021 arising out of FIR No.970 of 2020, P.S Site Supper Highway for offence
under section 6/9 (c) CNS Act, 1997, and acquit the appellant Muhammad Shafi s/o
Faizullah from the charges by extending him the benefit of the doubt. He shall be
released forthwith if not required in any other custody case…

17. High Court of Sindh, Karachi.

Nadir Ali @ Bahar & others Vs. The State
Criminal Appeal No. 50 of 2021 and confirmation Case No. 10/2021
Mr. Justice Mohammad Karim Khan Agha
Mr. Justice Zulfiqar Ali Sangi
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxMTU2Y2Ztcy1kYzgz

Facts: The brief facts of the prosecution case appearing in the FIR are that on 09.01.2020 at
2300 hours complainant Dost Ali reported at P.S. that he resides at Dunba Goth when
on 09.01.2020 at about 1630 hours he was at his home when his nephew Sohail
disclosed him that his son Zohaib who was working in Pakola Company was returning
after closing hours when at Katcha Road near Naddi Dunba Goth, accused persons
Babar, Zaman and Wali Muhammad who were armed with hatchets and knives
inflicted injuries upon Zohaib, who has been taken to Baqai Hospital on the
motorcycle by Sohail and Munawar and while going there, one person in the car gave
them lift till Baqai Hospital where his son died on account of injuries and his post
mortem was conducted in Jinnah Hospital and now he has reported the matter against
the above named accused persons.
Issues: Is there any particular format for recording a dying declaration, and what are the main
requirements?

Analysis: …There seems to be no particular format for a dying declaration and the main
requirement appears to be that it is made without influence which we find to be in this
case as it was made before two independent persons by the deceased when he was
alive and was in full senses. The dying declaration thus, in our view, fulfills all the
requirements of law and we find that it is admissible and can be relied upon. In this
respect reliance is placed on Majeed v. State (2010 SCMR 55)…

Conclusion: …Considering the above facts and the circumstances of this case, we are of the view
that this is not a case which warrants the death sentence but is a case which warrants
the alternate sentence for Cr. Appeal No.50/2021 & Conf. Case No.10/2021 14
murder. We therefore dismiss this appeal, uphold the conviction of the appellants and

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alter their sentence from death to life imprisonment under section 302 (b) PPC and
they are also liable to pay the compensation of Rs.10,000,00/ each to the legal heirs of
the deceased under section 544-A Cr. P.C and in case of default they shall further
undergo S.I for 06 months more. The benefit of section 382-B Cr.P.C is also extended
to the appellants and any remission applicable under the law. The confirmation
reference made by the Trial Court is answered in the negative…

18. High Court of Sindh, Karachi.

Zafar Ahmed versus Associates Press of Pakistan and others
Suit No. 614 of 2003
Mr. Justice Muhammad Faisal Kamal Alam
https://caselaw.shc.gov.pk/caselaw/view-file/MTcwNDk1Y2Ztcy1kYzgz

Facts: …Plaintiff joined Defendant No.1 in the year 1967 and in due course rose to the
position of Bureau Chief Sindh, but under the conspiracy (purportedly) Defendant
No.1 issued a Letter of Retirement to Plaintiff, retiring him from 05.03.1998, which
was challenged by the Plaintiff in this Court in Suit No.150 of 1998 and initially was
granted interim relief, which was challenged by Defendant No.1 in the High Court
Appeal No.60 of 1998 and the case was remanded with the directions to pass fresh
order. However, in the intervening period after insertion of Section 2-A in the Service
Tribunal Act, 1973, inter alia, empowering the Federal Service Tribunal to hear
matters of employees of statutory bodies, the suit was dismissed with the observation
that Plaintiff would be at liberty to invoke the jurisdiction of Federal Service Tribunal
for redressal of his grievances. Being unsuccessful before the Federal Service Tribunal
(“FST”), the Service Appeal No.1981 of K-1998 was dismissed with the directions
that Defendant No.1 should complete the retirement papers of the Plaintiff enabling
him to get his pensionary benefits including provident fund within a period of two
months. Although, this decision was challenged before the Honourable Supreme
Court, but without any success. Further contended that since Federal Service Tribunal
did not have any power to execute the judgment, therefore, present Lis is filed;
acknowledged that while filing the present proceeding, Plaintiff only received a
cheque of about one third of the provident fund and not the full and final service /
retirement dues…

Issues: Whether the claims of Plaintiff with regard to his service/retirement benefits and dues
can be adjudicated upon in suit?

Analysis: …Decision given by the learned FST in the above Appeal filed by present Plaintiff
has been perused. The said Appeal was preferred against the Order dated 03.12.1997,
whereby, the Plaintiff was ordered to retire from service with effect from 06.03.1998;

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thus, as far as the present claim of Plaintiff with regard to his service / retirement
benefits and dues is concerned, the same was not adjudicated upon in the said Service
Appeal, hence, Section 11 of CPC [principle of res judicata] is not attracted to the facts
of present case. Even otherwise, the present suit is not barred by any of the provisions
of law and is maintainable. Issues No.1 and 2 with regard to the maintainability are
answered accordingly and in favour of Plaintiff…
…The Defendants have illegally deprived the Plaintiff from the benefits of enhanced
pension since 01.07.2000. Defendants should have considered the service rendered by
Plaintiff to the Organization; he has given his prime years of life to Defendants No.1
and in all fairness deserves a fair treatment from Defendant No1…
…undisputedly, terms of service of Plaintiff is governed by The Newspaper
Employees (Conditions of Service) Act, 1973; which is a beneficial piece of
legislation and is to be liberally construed. Once the Wage Board has given a Decision
[supra] as envisaged in the above Statute, then the benefit of enhanced rate of Pension
should have been extended to Plaintiff, unless, it was expressly mentioned in the above
Decison that determination about the enhancement of Pension is to be applied to those
employees of APP who retired after 1-07-2000; but, no such observation is mentioned.
Consequently, Plaintiff is entitled for this enhanced pension of 70 percent from
01.07.2000; since, Defendant No.1 has been paying a lesser amount of pension, that
is, @ 42.5% to Plaintiff, instead of 70%, therefore, this shortfall being arrears of
pensionable amount of past years is to be paid to the Plaintiff by Defendant No.1.
Therefore, Issue No.4 is answered in negative with regard to the entitlement of
provident fund and gratuity, but, in the affirmative for the claim of pension…
…Plaintiff has claimed special damages, which cannot be awarded in the absence of
tangible evidence and positive evidence, which the Plainitff is unable to bring on
record. However, in this regard the settled rule is that it is discretion of the Court to
grant general damages, taking into the account the facts of a Case. As discussed in the
foregoing paragraphs, since Defendants have illegally deprived the Plaintiff from the
payment of enhanced rate of pension, thus caused him continuous monetary loss,
besides mental anguish; consequently, in the circumstances, the Plaintiff is also
entitled for a sum of Rs.500,000/- towards general damages…

Conclusion: …Suit is partly decreed in the above terms, that is, that Defendant No.1 being the
Employer of Plaintiff is liable to pay arrears of pension from 01.07.2000 till date;
Plaintiff is entitled for pension at the rate of 70 percent as determined herein-above [in
the 7th Wage Board Decision] and a sum of Rs.500,000/- towards general damages,
payable by Defendant No.1…

19. High Court of Sindh, Karachi.

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 Page 34 of 39

Muhammad Murad Bhutto versus Lal Bux and others

Criminal Revision S-57 of 2021
Mr. Justice Muhammad Saleem Jessar
https://caselaw.shc.gov.pk/caselaw/view-file/MTcxMjkzY2Ztcy1kYzgz

Facts: …the applicant filed Direct complaint No.81/2021 under section 3 & 5 of Illegal
Dispossession Act, 2005, as the land of the complainant is in illegal possession of the
accused. It was further stated that accused Lal Bux and others asked the applicant to
sell the above said 03-00 acres land to them but the applicant/complainant refused to
do so, whereupon they became annoyed. On 26.11.2017 the applicant with his brothers
namely Abdul Hameed and Muhammad Ayoub went on their land when at about 1200
hours noon, they saw and identified that accused Lal Bux armed with lathi, Aslam
armed with pistol, Abdul Kareem armed with hatchet, Sikandar armed with lathi,
Abdul Sami Armed with lathi and Muhammad Younis armed with lathi had occupied
the land and were in process of ploughing/cultivating with their Al-Ghazi Tractor
which was driven by accused Muhammad Younis, whereupon, the complainant party
restrained them upon which the accused Lal Bux instigated to accused Aslam not to
spare and kill them. On his instigation, accused Aslam made straight fire from his
pistol upon the complainant party but complainant party saved themselves by falling
on ground, thereafter the complainant party ran away from there due to fear and save
their lives. On the same day i.e. 26.11.2017,complainant along with PW went to PS
for registration of case and got registered FIR No.67/2017 at PS Wasti Jewan Shah at
about 1500 hours under section 324/114/447/148/149/147 PPC. After usual
investigation the IO submitted challan before competent Court of law but learned Trial
Court acquitted the accused, thereafter the applicant filed acquittal appeal before this
Court.
Issues: Is there a bar in taking cognizance under the Illegal Dispossession Act, 2005 when the
offences committed by the accused persons fall under two different enactments i.e.
one under the Pakistan Penal Code and another under the Illegal Dispossession Act,
2005?

Analysis: In this connection, it may be observed that the proceedings under the Pakistan Penal
Code and that under Illegal Dispossession Act, 2005 are totally different from each
other. It may be observed that Illegal Dispossession Act, 2005 is a special legislation,
having been enacted in order to protect the lawful owners and occupiers of immovable
properties from their Illgal or forcible Dispossession therefrom by the land grabbers.
The object and spirit of the said legislation was to curb the Activities of land grabbers.
It may also be observed that an ordinary criminal Court trying the cases against the
accused persons for the offences under the Pakistan Penal Code have no
authority/jurisdiction to restore the possession of a person who has been illegally
dispossessed by the culprits. Such Courts can merely award sentence for committing
an offence of trespass into the property of any person. Contrary to this, under the
provisions of Illegal Dispossession Act, 2005 the Court taking cognizance under the

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said Act is fully competent and authorized to put a person into possession of the land
in dispute if it comes to the conclusion that such person had been illegally dispossessed
from the property in his occupation/possession…

Conclusion: …The upshot of above discussion is that instant Revision Application is hereby
allowed. Consequently the impugned order dated 12.06.2021 passed by learned
Additional Sessions Judge/MCTC Ubauro in Direct Complaint No. 81 of 2020 is
hereby set aside. Resultantly, the complaint filed by applicant before Trial Court shall
be deemed to be pending. Accordingly, the matter is remanded to the Trial Court with
direction to take cognizance in the matter and proceed with the trial and afford
opportunity to both the parties to lead their evidence and after appreciation of such
evidence decide the case strictly in accordance with the law…

20. High Court of Sindh, Karachi

Mst. Kiran Yazdani Daughter of Syed Ather Yazdani
through M/s. Hassaan Sabir, Salman Sabir and Sana Abid, Advocates.
Constitution Petition No. S – 550 of 2022
Mr. Justice Adnan Iqbal Chaudhry
https://caselaw.shc.gov.pk/caselaw/view-file/MTY4NjQwY2Ztcy1kYzgz
Facts: …The order impugned by way of this petition has allowed temporary custody of the
minor to the father from 01.07.2022 to 25.07.2022 during the summer vacation of the
minor…
Issues: Whether the impugned order dated 26.05.2022, which is for temporary custody of the
minor under section 12 of the Guardians and Wards Act, 1890, is appealable under
section 14(1) of the Family Courts Act, 1964?
Analysis: …The appeal provided under section 14(1) of the Family Courts Act, 1964 is against
“a decision given or a decree passed by a Family Court”. The question is whether an
order for temporary custody passed under section 12 of the Guardians and Wards Act,
1890 can be equated with “a decision given” within the meaning of section 14(1) of
the Family Courts Act, or whether such an order is “an interim order” within the
meaning of section 14(3) of the Family Courts Act…
In my view, the words “temporary custody” in section 12 of the Guardians and Wards
Act do not ipso facto translate to “an interim order”. The terms of the order itself will
determine whether that is “an interim order” within the meaning of section 14(3) of
the Family Courts Act, or “a decision” within the meaning of section 14(1) thereof. In
my view, where the order granting temporary custody is final in itself and there
remains nothing else to be ordered for the purposes of that temporary custody, such
an order will be “a decision” within the meaning of section 14(1) of the Family Courts
Act, and hence appealable thereunder. A similar view was taken in the cases of Eram
Raza versus Mutaqi Muhammad Ali (2018 MLD 727), Tassadaq Nawaz versus
Masood Iqbal Usmani (PLD 2018 Lahore 830), and Yasmin Zafar versus Muhammad
Anwar Khan (PLD 1989 Lahore 38)…

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Conclusion: …The order is final in itself as nothing remains to be ordered for the purposes of
affirming that temporary custody. Therefore, the impugned order is not an interim
order but “a decision” within the meaning of section 14(1) of the Family Courts Act,
1964 and appealable thereunder. Since the remedy of an appeal is available, a writ
petition is not maintainable. Same is dismissed…

21. High Court of Sindh, Circuit Court, Larkana

Leela Kalpna Devi Hindu versus Secretary Minority, Government of Sindh
and others
Const. Petition No. D- 712 of 2022
Mr. Justice Abdul Mobeen Lakho
https://caselaw.shc.gov.pk/caselaw/view-file/MTY5NDk5Y2Ztcy1kYzgz

Facts: …Petitioner…has filed this petition with the following prayers:-

a) To declare that, the election schedule 2023-2025 issued by respondent
No.3 and list of members without including the name of petitioner and
other female members of community is illegal, without legal justification,
therefore, liable to be set-aside.
b) direct the respondent No.3 to revive the list while including the name of
petitioner and other female members of community as per order dated
24.12.2020 and to conduct the fresh election on revised list.
c) direct the respondent No.3 to issue nomination to petitioner to contest
the election of Hindu Community / Punchayat Larkana…
Issues: Whether a writ petition is maintainable against Private Hindu Panchayat?

Analysis: …Hindu Panchayat, Larkana is not a 'person' in terms of Article 199(5) supra,
therefore no writ of Certiorari or Mandamus can be issued against its office holders,
in terms of Article 199(1) (a) supra. Hindu Panchayat, Larkana has no status of a
public body; therefore, Hindu Panchayat is not a person exercising functions in
connection with the affairs of Federation / Province and Local Authority in terms of
Article 199(1)(a)(i) and (ii) of the Constitution…
Conclusion: …In the light of the above facts and circumstances of the case, this petition is not
maintainable and is hereby dismissed along with the pending application(s) with no
order as to costs. However, the petitioner, if yet subsists grievance against the
respondents, may avail her remedy under law.

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LIST OF ARTICLES

1. ADOPTION AMONGST HINDU AND MUSLIM: A COMPARATIVE

STUDY IN PAKISTAN PERSPECTIVE.
By: Asghar Ali Mahar, Civil Judge, Research officer at Legal Research Cell
Sindh High Court Karachi.

Published by:
Federal Law Journal (Federal Judicial Academy)
https://www.researchgate.net/publication/363468906_Child_Adoption_amongst
_Hindu_and_Muslim-_A_comparative_study
The adoption differs with guardianship. The Guardians and Wards Act, 1890 of 1890
allows for adoption to be done in the guise of guardianship. The guardian of a
person/custodian (e.g., mother or friend) has no financial duty to support the
child/ward out of his or her own pocket in guardianship. The true or natural father will
be responsible for the child's upkeep. Nonetheless, under section 22 of the
aforementioned Act, the guardian of the individual might be charged with the
child's/ward's care.

According to Pakistani law, prospective adoptive parents may not be appointed

guardians of Muslim children, and Non-Christen may not be assigned guardians of
Christen children, however, a Non-Muslim could not be given custody of a deserted
or parentless child or a child whose parentage was not known from an orphanage, or
otherwise, Child born in non-Muslim family, could be adopted by a Muslim and his
custody was to be regulated according to Pakistani law. Unless there is evidence to the
contrary, a child abandoned at an orphanage is assumed to be a Muslim. Adoption is,
in general, a communal concern because it lacks official legislation. But outside of the
family courts, people frequently choose informal adoptions based on their beliefs.
However, in Western nations, such informal adoptions do not meet the standards for
giving an adopted kid an immigration visa. As a result, prospective adoptive parents
must follow their own country's immigration laws as well as the restrictions of
Pakistan's colonial Guardians and Wards Act of 1890.

The purpose of this research is to respond to the following questions: What if a Hindu
family wants to adopt a parentless child abandoned somewhere or a Muslim new-born
baby? Is guardianship a viable alternative to adoption? What are the differences
between Islamic and secure law in terms of the adoption concept? With the objective
of highlighting the pressing need for the appropriate statute to identify the adoption
which has been invoked informally, which could prejudice the not only rights but life
at stake of infants.

Law Quarterly Report (May – August, 2022)

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For this comparative study under the qualitative methodology, the legal rulings,
jurists', and religious scholars' opinions have been sought for this purpose; now,
surveys or interviews are being conducted.

2. A COMPREHENSIVE STUDY OF POWER OF ATTORNEY

By: Mr. Imtiaz Ali Shah, Ex-Civil Judge & Judicial Magistrate/Research Officer
(Legal Research Cell) High Court of Sindh Karachi
Published by:
S B L R 2022 Article 53
https://academia.edu/resource/work/83243993
A power of attorney (known in Urdu as "Mukhtar Nama") is a legally binding
document authorizing someone to manage a person's property, medical, or financial
affairs. It is commonly used when a person cannot manage his affairs due to his
absence, disability, incapacity, or infirmity; it allows an agent to make decisions on
behalf of the principal. It empowers the agent to decide the principal's affairs. Power
of attorney can be revoked/canceled by the principal, exclusive of the situation, when
it creates an interest in the favour of an agent. However, it becomes null and void when
its purpose is accomplished, or else the person who executes it or the agent dies.
Nonetheless, instructions for managing assets and affairs after death are listed in the
last will or living trust.
In the case of Syed Adnan Ashraf, the High Court of Sindh has defined the 'power of
attorney' comprehensively and coherently; it was asserted that "A power of attorney
is a written authorization by virtue of which the principal assigns to a person as his
agent and confers upon him the authority to perform specified acts on his behalf; thus,
the primary purpose of the instrument of this nature is to assign the authority of the
principal to another person as his agent".

3. COURTS AND ARTIFICIAL INTELLIGENCE

Author: A.D. (Dory) Reiling

https://www.iacajournal.org/articles/10.36745/ijca.343/

This article explores the use of artificial intelligence (AI) in courts of law. AI raises
any number of questions for courts and judges. Importantly, what can AI do for the
administration of justice, and what does that require? Complexity reduction is at the
heart of court processes, irrespective of subject matter. Not all court work is complex
custom work and routine processes have different requirements from complex
customised work of the courts. It follows, that forms of information technology,
including artificial intelligence, are also not the same for all cases. Which form of AI
has already proven itself for these different processes? The work of courts and judges
is governed by the standards of proper procedure, including Article 6 of the European

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Convention on Human Rights, so what does this mean for those working with AI? The
Council of Europe has developed the Ethical Principles for the use of AI in the
administration of justice. Can legal information be made more usable for AI?

4. E-JUSTICE IN SWITZERLAND AND BRAZIL: PATHS AND EXPERIENCES

Authors: Marcos Sousa, Daniel Kettiger, and Andreas Lienhard

https://www.iacajournal.org/articles/10.36745/ijca.368/
The main aim of this contribution is to explore the experiences and strategies used to adopt e-
justice innovations and compare the similarities and differences between Swiss and Brazilian
courts of justice. In Switzerland, the object was the project entitled Justitia 4.0, a one-stop-
shop portal of justice in the country. In Brazil, the object was the electronic judicial process –
PJE, considered the main e-justice system in the country. The research is qualitative and
descriptive. Forty-seven in-depth interviews with semi-structured scripts were conducted with
judges, information technology managers and judicial managers in Switzerland and Brazil. In
Switzerland the data were collected in courts of first and second instances in seven cantons
and in the Swiss Federal Supreme Court. In Brazil, interviews were conducted in first and
second instances courts of justice in seven states and in the Federal Regional Court of the First
Region. The results highlight the main drivers, hinders, impacts and outcomes of the adoption
of e-justice in both countries as well as the similarities and differences found.

Disclaimer
Care and caution have been taken in preparing and publishing
this Quarterly Case Law Update. Where required, the text has
been moderated, edited, and re-arranged. The contents
available in this Quarterly Case Law Update are just for
information. Users are advised to explore and consult original
text before applying or referring to it.

Law Quarterly Report (May – August, 2022)