Tort under Banking Jurisdiction (Financial Institutions (Recovery of Finances) Ordinance 2001 (“FIO”))

2009 C L D 49 on Pages 52-53

[Karachi]

Before Mrs. Qaiser Iqbal and Arshad Siraj, JJ

M. NUJEEBULLAH QURESHI---Appellant

Versus

Messrs CITI BANK N.A.---Respondent

On Pages 52-53

We are of the considered view that Credit Card falls within the term of finance, the case of the appellant is based on torturous liability arising out of act and omissions of State Bank of Pakistan by placing his name on Data Check List, therefore, banking Court has no jurisdiction over a tort case based upon the damages.

2. 2007 C L D 457 on Para 6

[Lahore]

Before Maulvi Anwarul Haq and Syed Asghar Haider, JJ

Messrs ASMAR TEXTILE MILLS (PVT.) LTD. through Chief Executive ---Appellant

Versus

ASKARI COMMERCIAL BANK LTD. Through Manager and another----Respondents

6. So far as the claim for damages is concerned, it is in the plaint itself that the same is being claimed on account of defamation. It is by now well settled that a claim in tort is not within the jurisdiction of Banking Court. However, we do find that so far as suit- pertaining to recovery of damages is concerned, the learned Judge Banking Court after holding that it had no jurisdiction ought to have ordered return of the plaint. 

7. This RFA accordingly is disposed of in the manner that while upholding the findings recorded by the learned Judge Banking Court in the impugned judgment and decree, we order that the plaint inasmuch as it pertains to recovery of damages on account of defamation, shall be returned to the appellant for presentation before a Court of competent jurisdiction.

Judgments for Section 26 of the General Clauses Act 1897

I.                  Supreme Court of Pakistan

1.      Muhammad Noor v. Member Board of Revenue; PLD 1985 SC 335

In this case the petitioner had been tried and convicted under Section 302 of the PPC for murder. The Deputy Commissioner presiding over the Criminal Tribunal constituted under Criminal Law (Special Provisions) Ordinance II had sentenced him to 14 years rigorous imprisonment. The petitioner appealed this before the Commissioner Makran Division who was also hearing the confirmation reference for the aforesaid conviction. Commissioner accepted the reference and dismissed the said appeal. The petitioner then filed a revision petition before Member Board of Revenue, which was also dismissed at which time Mr. Noor moved the High Court through a Constitutional Petition taking the ground that his case was triable under Sections 15 and 17(4) of the Offence against Property (Enforcement of Hadd) Ordinance 1979 as Harabba and not under the aforesaid Criminal Law Ordinance II. It is pertinent to mention here that the police had submitted another challan under the aforesaid Property (Enforcement of Hadd) Ordinance and Section 393 of the PPC. Held that Section 403 of the Criminal Procedure Code 1898 (“Cr.PC”) and Section 26 of the GCA provide that “if an act or omission constitutes offence/offences under two or more enactments, then the offender though can be prosecuted under either or any of those enactments, but cannot be punished twice for the same offence.“ (See third last paragraph on Page 340).

Suo Standards: The key to the Supreme Court’s success

COURTESY DAWN

Waris Husain

The Supreme Court of Pakistan – File Photo

A visiting delegation from the International Commission of Jurists criticised Pakistan’s Court for exercising suo motu excessively, stating that judicial interventions were seen by some as the court exercising “undue influence.” A representative for the Supreme Court rejected the claim as being based on faulty information, because the rules for suo motu are laid out in Article 184(3) of the Constitution and in case law. However, learned experts inside the country including Asma Jahangir, have asked the court to create a legal standard for the use of suo motu. Though suo motu has been used to remedy several of the nation’s major issues, its practice cannot continue until a legal standard is developed that takes into account all the potential negative aspects of its use.

Classification continued

Classification: Powers of the Government/Legislature to create and protect classes in conformity with the stated objective:

                                                           

1.       Independent Newspapers Corporation (Pvt) Limited v. Chairman Fourth Wage Award 1999 SCMR 1533

We are conscious that the purpose of Newspaper Employees (Conditions of Service) Act,, 1973, is the betterment of the financial condition of the persons employed in the Newspaper Establishment and it should receive beneficent construction but in an interpretative effort to pragmatize this piece of legislation and treat a particular benefit as wages and then fix the rate thereof, the       Wage Board cannot travel beyond the spectrum of  the impact of its decision on the Newspaper Industry, ignore the factors envisaged by section 10 of the Act, which is not exhaustive in character and determinative of all the relevant considerations p regulating the fixation of wages. The Board has to act objectively and not subjectively. We are, therefore, unable to accept grant of so large a width to the powers of the Board to brand such a benefit as wages.

Lawyering the law: A rebuttal

It seems that some people are more interested in their own agendas and axes to grind than any real discussion on history or facts. The context of this ninth pillar of wisdom is an article by by Urooj Zia in Pakistan Today.

1973 Constitution is theocratic in form and substance

By Yasser Latif Hamdani (courtesy Daily Times)

While there is no consensus on whether Pakistan was envisaged as an Islamic or a secular state, there is remarkable consensus that Pakistan was not meant by the founding fathers to be a theocracy. Indeed, most Pakistanis insist that Pakistan was not envisaged as and is not a theocratic state but as a modern Islamic democratic state.

Ehteram-e-Ramadan Ordinance is unIslamic and unconstitutional

COMMENT: There is no compulsion in religion —Yasser Latif Hamdani

A thousand years before the age of enlightenment and before the idea of religious toleration took root in the west, the Holy Quran said, “There is no compulsion in religion” (2:256).

It is often forgotten, when we speak of Islam, that Islam’s approach was reformist. For example, the punishment for stoning to death for adultery existed long before Islam but Islam set the bar for evidence so high that it became virtually impossible for anyone to be stoned for adultery. For slavery, Islam created obligations on slave owners in terms of treatment of slaves and encouraged slaves to be mandatorily freed on the flimsiest excuse. Similarly, Islam strictly regulated the prevalent practice of polygamy by limiting it and further setting a standard for equal treatment that is hard to achieve.

Now our mullahs have forsaken substance and adopted form. Whereas Islam sought to civilise a tribal society, our mullahs’ take is to tribalise all civilisation. Where Islam sought to regulate polygamy and eradicate its social evil, our mullahs’ take is that marrying more than once is a necessary part of faith — ironically a Mormon idea. Whereas Islam humanised and rationalised existing customs and tribal traditions such as rajm (stoning) by introducing strict proof, our mullahs want to de-humanise all laws and while Islam spoke of equality of all mankind and religious freedom at a time when these concepts were unheard of, our mullahs want to end equality and religious freedom in the information age.

The closest precedent for Ehteram-e-Ramzan Ordinance comes not from Islam but from Christian fundamentalists in the Midwest who had enacted the ‘Blue Laws’ that forbade selling of non-essentials on Sunday out of respect for the Christian Sabbath