Case law citations - two provisions for the same offence

PLD 2001 Khi 283 Comparison of the provisions of the Customs Act &CNSA.  Read section 72 of CNSA. CNSA being the law that creates special court and punishes a specific offence of Narcotics
Reference is made to 1995 SCMR 626 regarding prosecution of two offences by Courts of able jurisdiction

Much Ado About Article 6

By Yasser Latif Hamdani

In the course of the Memogate scandal, a lot has been written and said by shrilled-voiced commentators on the application of Article 6 of the Constitution of 1973. To me this comes as a surprise because there is no way that anyone who has read Article 6 can imagine that it can be applied in any form to the Memogate scandal.

What does Article 6 aforesaid say? It reads:

“High treason. (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts to hold in abeyance or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason. (2) Any person aiding and abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of high treason. (2-A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any Court including the Supreme Court and a High Court. (3) Majlis-e-Shura (Parliament) shall by law provide for the punishment of persons found guilty of high treason.”

My Arguments before His Lordship Umar Ata Bandial in PTA-Blackberry Case 28.11.11

          In the Honourable Lahore High Court at Lahore

                             Yasser Latif Hamdani v. PTA and one other

______________________________________________________________________

Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973

______________________________________________________________________

ARGUMENTS

RESPECTFULLY SUBMITTED:

1. Article 19 of the Constitution of the Islamic Republic of Pakistan, 1973, reads :

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.

Submission:

1. Possible restrictions on freedom of speech, constitutional or unconstitutional, may be divided into two categories : 

a.       Restraints on freedom of speech and expression prior to an exercise of the same.

b.      Restraints on freedom of speech and expression after the exercise of the same.

The narrowest view of freedom of speech and expression is that of William Blackstone. In his commentaries on freedom of expression, Sir William Blackstone took the view that the terms freedom of speech, expression and press were aimed at liberating the individual from fetters of the first kind. In chapter XI of his famed Commentaries on laws of England, Sir William lays down his view:

Supreme Court dismisses Pakistan Govt's review petition in NRO

This is what happens when you hire someone like Dr. Babar Awan to plead your case.

PTI | 01:11 PM,Nov 25,2011

From Rezaul H Laskar Islamabad, Nov 25 (PTI) Pakistan's Supreme Court today rejected a government petition seeking a review of its order that struck down a controversial graft amnesty for politicians, setting the stage for possible reopening of corruption cases against top leaders like President Asif Ali Zardari. A 17-judge bench of the apex court headed by Chief Justice Iftikhar Chaudhry dismissed the government's petition which had sought a review of its December 2009 ruling declaring as unconstitutional the National Reconciliation Ordinance (NRO) passed by former President Pervez Musharraf granting amnesty to politicians accused of corruption. The bench said in a short order that it was of the considered view that no case was made out for a review. The court directed authorities to comply with its earlier detailed order on the issue in letter and spirit without any delay. It had heard the case for five days before dismissing the government's petition. Former Law Minister Babar Awan, a close aide of Zardari, had appeared in court as the government's counsel. On December 16, 2009, the Supreme Court had struck down the NRO, which was passed in October 2007 by Musharraf as part of a secret understanding with slain former premier Benazir Bhutto. The secret deal had allowed Musharraf, who was also army chief, to remain in power by contesting Presidential polls while still in uniform. (More)

Action Defined

1.      The Concise Oxford Dictionary of Current English; Oxford at the Claredon Press

a’ction n. & v.t. …7. v.t. bring a legal action against.

2.      Black’s Law Dictionary  (Fifth Edition); West Publishing Co.

 Page 26

Action. Conduct, behavior; something done; the condition of acting; an act or a series of acts.

Term in its usual legal sense means a suit brought in a court; a formal complaint within the jurisdiction of a court of law. Pathman Const. Co. v. Knox County Hospital Ass’n, Ind. App. 326 N.E.2D 844, 853.

The legal and formal demand of one’s right from another person or party made and insisted on in a court of justice.  An ordinary proceeding in a court of justice by which one party prosecutes another for enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public prevention of a wrong or the punishment of a public offense. It includes all the formal proceedings in a court of justice attendant upon the demand of the right and its enforcement or denial by the court.

(Emphasis added throughout)

3.      Corpus Juris Secundum, A Contemporary Statement of American Law; West Publishing Co.

Volume 1A Page 304

…

b. Elements and Characteristics of Action

To constitute an action, ordinarily, there must be a legal proceeding in a court of justice by a plaintiff against a defendant, for a breach of primary duty owed by defendant with regard to a primary right possessed by a plaintiff.

…

Page 305

In court. The term “action” is restricted to proceedings in a court of justice, and does not include non-judicial proceedings, such as the acts of a notary in taking and certifying an acknowledgement and this rule applies although the proceeding is before a court, but in a case in which the court does not act in a judicial capacity.

(Emphasis added throughout)

4.      Wharton’s Law Lexicon (Fourteenth Edition) By A.S. Oppe; Stevens and Sons Limited- Sweet and Maxwell Limited Law publishers 1957

Page 22

Action, conduct, something done; also the form prescribed by Law for the recovery of onbe’s due, or the lawful demand of one’s right.  Bracton (Bk. 3, cap.1) defines it:-Actio nihil aliud est quam jus prosequendi in judicio quod alicui debetur  (An action is nothing less than the right of suing in a court of justice for which is due to someone.) Actions are divided into criminal and civil; criminal actions are more properly called prosecutions, and perhaps actions penal, to recover some penalty under statute, are properly criminal actions. There were formerly three classes of actions in England; personal actions, in which the plaintiff sought to recover a debt or damages from the defendant; real actions, in which he sought to establish his right to possession of land.

(Emphasis added)

5.      Halsbury’s Laws of England (Third Edition); Butterworths

Vol I Para.1

An ‘action’ according to the legal meaning of the term is a proceeding by which one party seeks in a Court of justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be the ‘legal demand of a right,’ or ‘the mode of pursuing a right to judgment’.  It implies the existence of parties, of an alleged right, of an alleged infringement of thereof (either actual or threatened) and of a court having the power to enforce such a right. In its wider meaning the term includes both civil and criminal proceedings; it was frequently so used by old writers.

(Emphasis added)

6.      Words and Phrases (Permanent Edition); West Publishing Co. 

Volume 2 Page 25

…

A suit in nature of a creditor’s bill was an “action”. Citizens Savings & Trust Co. v. Burkhart, 26 Ohio Dec. 599, 12 Ohio N.P., N.S., 449.

An “action” in ordinary use, is simply a legal demand of one’s right.  Jones Law Petition (Cleveland), 22 Ohio Dec. 599, 12 N.P., N.S., 619. 

…

The word “action” in the act of 1876 is not to be taken in a technical sense, as corresponding with civil action under the Code of Civil Procedure, but rather as signifiying additional proceedings in the original action, authorized for the purpose of reviving a judgment. The application of the term “action” to a proceeding will not make it a “civil action”, under the Code of Procedure unless it has the same attributes and functions. Bartol v. Eckert , 33 N.E. 294, 297, 50, Ohio St. 31, 29 Wkly. Law Bull. 148

(Emphasis added)

7.      Words and Phrases, Legally Defined (Second Edition) Edited by John B. Saunders; Butterworths 1969

Page 33

ACTION

An “action”, according to the legal meaning of the term, is a proceeding by which one party seeks in a court of justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be said to be the “legal demand of a right” or “the mode of pursuing a right of judgment.” It implies the existence of parties, of an alleged right, of an alleged infringement thereof (either actual or threatened), and of a court having power to enforce such right. In its wider meaning the term includes both civil and criminal proceedings. … It is however generally used in a more restricted or popular sense as denoting a civil action commenced by writ or plaint.

(Emphasis added)

8.      The English and Empire Digest  (1979 reissue); London Butterworth & Co (Publishers) Limited

Ref may be drawn to Volume 1(1) Page 3-83

Of particular interest would be Part III Who may Sue and be Sued page 48

9.      K.J. Aiyar’s Judicial Dictionary (Thirteenth Edition); Butterworths India

Page 30

Action is “a generic term and means a litigation in a civil Court for the recovery of an individual right or redress of an individual wrong inclusive, in its proper sense of suits by the Crown.”  [8 AC 353]

It is “a legal proceeding, whereby a person demands his rights which may be denied or infringed, and claims to have those rights enforced and to have his wrongs redressed”. [Per Devar J, in ILR 33 Bom 509]

…

Page 31

A penal (action): Aims at some penalty or punishment by the party used, be it corporal or pecuniary. In general, the term ‘penal action’ implies only an action brought for the recovery of the penalties by statute, and denotes what is called a popular or more usually, a qui tam action.

A criminal (action): Or prosecutions are of a public nature and affect the whole community. They are litigated in the name of the King (or President) against one or more individuals accused of a crime.

10.  The Free Dictionary Online; http://www.thefreedictionary.com/action

action

…

12. Law A judicial proceeding whose purpose is to obtain relief at the hands of a court.

Source: The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved.

…

action

…

6. (Law) Law

a.  a legal proceeding brought by one party against another, seeking redress of a wrong or recovery of what is due; lawsuit

b.  the right to bring such a proceeding

Source: Collins English Dictionary – Complete and Unabridged © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003

…

action - institute legal proceedings against; file a suit against; "He was warned that the district attorney would process him"; "She actioned the company for discrimination"

sue, litigate, process

challenge - issue a challenge to; "Fischer challenged Spassky to a match"

expedite - process fast and efficiently; "I will try to expedite the matter"

litigate - engage in legal proceedings

Pakistani Case Law:

11.  M/s. Bengal Wool House V. Stand Insurance Co.;  1989 CLC 839

Page 847

“An ‘action’ according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of Justice to enforce some right against, or to restrain the commission of some wrong by another party. More concisely it may be said to be ‘the legal demand of right’, or ‘the mode of pursuing a right to judgment’...”

“The word ‘action’ means any proceeding by which a claim, complaint or proceeding for obtaining relief is filed before any court.”

12.  M/s  Alexander.G. Tsavliris versus M V Rice Traders;  1985 CLC 1355

Page 1360

 “In my view the word action means any process by which jurisdiction of the Court is invoked and process of law is set in motion or interrupted. It has a wide meaning and used in a generic sense to include law suit, application, petition or resorting to any proceedings in a Court of Law for the enforcement of any right or claim entertained in law. Having understood the general meaning of the word ‘action’ it is to be considered in what sense it has been in the Ordinance.

Page 1361

Word ‘action’ in S.3(2) (i)  (in “Admiralty Jurisdiction of High Courts Ordinance XLII of 1980”) refers to suit, application, petition or any proceeding by which a party invokes jurisdiction of Admiralty Court or sets in motion process of law or intervenes in proceedings for obtaining relief or making any claim in respect of causes, questions and matters which fall within the admiralty jurisdiction of Court provided in Ordinance, 1980”

Pakistani Case Law on Locus Standi

                                                       

        By Yasser Latif Hamdani

1.      Attaullah Khan Malik v. Federation PLD 2010 SC 605

(Lahore High Court before Syed Mansoor Ali Shah and Muhammad Yawar Ali, JJ)

Para 16

Any citizen or person (part of the public) has "sufficient Interest" and is, therefore, an aggrieved person under Article 199 of the Constitution, if public property is being acquired, held, used, or disposed of by public functionaries in violation of the law. Public functionaries as trustees of the people, cannot have any personal interest in any public property, therefore if there is any abuse of trust or violation of law, it qualifies any member of the general public as an "aggrieved person" with the right to' invoke the constitutional jurisdiction of this Court, subject to fulfilling other requirements of Article 199.

2.      Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 1999 SCMR 288 

(Note: this case elsewhere is also good for doctrine of laches)

Para 12

Adverting to the question of locus standi of the appellants, we may observe that the Clifton beach is a place in Karachi, which is not only visited by the Karachi-cites, but generally people who are on short visit either from other parts of the country or from abroad also visit Clifton beach as it is a well established place of public recreation since before the partition of India. The title of the memo. of appeal indicates that most of the appellants reside in close proximity of the Park and, therefore, it cannot be urged that they have no locus standi to file the above Constitution petition. In our view, because of the location of the Park as highlighted hereinabove even a resident of a distant area like Layari Quarters could have filed the above Constitution Petition.

3.       MUHAMMAD AKRAM vs. GOVERNMENT OF PAKISTAN 1999 C L C 745

Para 3

Mr. K.M. Nadeem learned counsel for the petitioners has impugned the decision of the respondent No.2 to award these licences to the respondent No.3 on a number of grounds. It is inter alia contended that such action is intended to deprive the petitioners of their legitimate right of livelihood and carrying on a lawful business and conferring the monopoly on the respondent No.3 in awarding licences… Moreover, the award of such licence/contract without inviting public offers amounted to abuse of discretion conferred upon public authority by law.

Para 5

 We regret, we cannot approve the method of awarding such contracts by way of State largesse. Periods of three years and five years cannot by any stretch of imagination be considered to be a period for working out an A arrangement on experimental basis. It has been vehemently contended on behalf of the petitioners that through inviting public offers, the respondent No.2 could have received twice as much of the amount required to be paid by the respondent No.3. In the circumstances, particularly keeping in view the tenure of the contract, we are constrained to infer that the power entered into the contract by the respondent No.2, which is a public body has not been exercised honestly fairly and in the public interest. It is settled law by now, that the exercise of such power is amenable to judicial review. Learned counsel for the respondent No.3 has not argued anything to justify the award of the contract in his clients favour. In the circumstances, we are constrained to allow this petition to the extent that the two contracts, dated 23‑2‑1997 are declared to be against the public policy and public interest and the respondent No.2 is directed to invite Public offers for award of such contracts if it is considered expedient to do so, or continued with the earlier method of granting of permits with effect from 28^th February, 1999.

4.       MUHAMMAD IRSHAD Vs. TEHSIL MUNICIPAL ADMINISTRATION 2006 C L C 1902

Para 4

4… however, according to Mr. Chughtai as the petitioner did not participate in auction and that a concluded contract has come into existence between respondents, therefore, the petitioner is estopped from challenging the disputed auction and also this Court while sitting in constitutional jurisdiction is precluded from going into vires of disputed auction on the ground of violation of above mentioned rules.

Para 6

 So far as the contention of learned counsel for respondents that in the presence of concluded contract this Court has got no jurisdiction to interfere in the matter is concerned, the law declared by Honourable Supreme Court of Pakistan in the case Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCMR 280 and Messrs Airport Support Services' v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 are the answers, which lay down that no sanctity is attached to a concluded contract which is neither transparent nor has been made keeping in view the overall interest of the leasing body and that the contract entered into by the public exchequer is always open to judicial review on the touchstone of reasonableness, fair play, natural justice, equality and non-discrimination. Since the very auction was held in violation of the rules mentioned above, therefore, mere fact that as a result of the said auction a concluded contract has come into existence, would neither mean that this Court is deprived of its constitutional jurisdiction, of judicial review to look into the very object of such contract but this Court while silting in constitutional jurisdiction is always to see that public functionaries act fairly, honestly and in a transparent manner, as held by the Honourable Supreme Court of Pakistan in unreported judgment passed in C.Ps. Nos.2404, 2405 and 2406 of 2004 Atta Muhammad v. Government of Punjab and others reiterating its earlier view in Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCMR 280.

Para 7 

For what has been discussed above, this writ petition is allowed, all the proceedings from publication of' advertisement till the date of auction of disputed contract, are declared as without lawful authority. Resultantly, the T.M.A., Lodhran would initiate fresh proceedings for holding fresh auction by giving publication in newspaper, mentioning the reserve price, calling for deposit of 2% earnest money and also by strictly following the other requirements of the relevant Rules, within two weeks from today.

8.      MUSHTAQ ALI vs. GOVERNMENT OF SINDH P L D 1998 Karachi 416

Having come to the conclusion that relief may be granted in this petition, we would now proceed to examine the question of maintainability of the petition itself. It has been urged from the side of the respondents that the D petition is not maintainable because the petitioner has no locus standi and because it is for mala fide reasons that the petition has been brought…Be that as it may, there is a plethora of case-law from our own jurisdiction as also from other jurisdictions which would seem to sustain the petition, having been filed pro bono publico. In public interest litigation of this character all that has to be seen is public interest and public advantage. Strict rules and technicalities have no room in such matters. A good deal of laxity and an equal amount of indulgence is permissible in such matters directed solely to achieve public good.

9.      ZAHIR ENTERPRISES vs. GOVERNMENT OF BALOCHISTAN 1999 M L D 3112

It is well-known by the time, that to invoke the Constitutional jurisdiction under Article 199 of the Constitution, it is necessary that petitioner must show a vested right to claim discretionary relief. This condition of being an aggrieved person, stands fulfilled, particularly in the matter, which involves public interest litigation, if it has been established that the petitioner is an interested person and the object of invoking the jurisdiction is not to claim relief, essentially in his favour, but only to show that by means of an administrative action, unlawful proceedings have been drawn, which are required to be rectified by exercising judicial review. As it has been noted hereinabove, in the instant case, the petitioner not only has shown his interest in t seeking relief from the Court, that Administrative Department must provide equal opportunity to all the Traders, Suppliers, interested in the business of supply wheat, but has also proved with the help of record, maintained by the department that on a large scale, illegalities and irregularities, have been committed in the Food Department, to favour the respondent No. 3, by entering into a deal of purchase of wheat, which he allegedly imported from outside the country, although for this purpose, as far as the department is concerned, it has not shown its inclination, at any stage, to the wheat supplier Agencies, i.e. MINFAL, PASSCO or any other source, that it is not possible to procure wheat, therefore, it has become necessary to purchase wheat from respondent No. 3.

Pakistani Case Law on Foreign Arbitral Awards

1.        Eckhardt & Co., vs. Mohammed Hanif, PLD 1993 SC 42 (Towards the end of Justice Ajmal Mian’s opinion)

 “that unless there are compelling reasons, arbitration clause should be honoured as generally the other party to such an arbitration clause is a foreign party.  Section 34 of the Arbitration while dealing with an application in relation to a foreign arbitration clause the Court’s approach should be dynamic. With the development and growth of International Trade and Commerce and due to modernization of communication transport system in the world, the contracts containing such an arbitration clause are very common now a days. The rule that the Court should not lightly release the parties from their bargains, that follows form the sanctity which the Court attaches to contracts must be applied with more vigor to the contract containing a foreign arbitration clause. We should not over look the fact that any breach of a terms of such a contract to which a foreign company or person is a party, will tarnish the image of Pakistan in the comity of nations…”

The Road to hell

By Yasser Latif Hamdani

Thanks to Pakistan Telecommunication Authority (PTA), we are now a pornography-free society. Now our young boys and girls will grow up to be good Muslims unhindered by the evil temptations that the internet provided, especially boys. This is precisely what Pakistan needed — lots more testosterone and not outlet. We are now dynamite-like and on a very short fuse. Soon the whole world will know that we are all ticking time bombs. The porn-free Pakistanis will be a formidable force but for what? That bit we have not determined yet.

“Islamic Secularism”?

 By Yasser Latif Hamdani

Reformulating the Ground Rules

The definition of modernity expressed in political science terms is a system of state and society whereby social justice is aspired to, freedom of belief, ideology and conscience is fully protected and where rule of law reigns supreme.  As the Islamic World increasingly finds itself confronted with modernity in these terms, there are two responses that have been recorded  as two opposing currents – first response is to accept modernity without any discounting for Islamic principles or any attempt to reconcile the Islamic identity of the Muslims world -wide and the second response is to reject it so completely that the room for negotiation between this response and modernity ceases to exist.  Both these responses ignore one basic fundamental contention that most Muslims have i.e. Islamic principles are universal in so much as that they can be adapted to the time and age through the internal process of Ijtehad. Therefore the standoff between Islam and modernity that seems to preoccupy the intelligentsia of the Islamic world need not be a zero-sum game. Indeed there is enough room to incorporate the fundamental perimeters of modernity within an Islamicate culture without compromising either.

New York Times' editorial on State Rights argument in the Health Care Reform debate

Editorial

Health Care and the States

Published: November 22, 2011

In reviewing the constitutionality of health care reform, the Supreme Court said it would consider the legality of the Medicaid expansion included in the reform law. The question seems narrow, but it could have significant implications for redefining Congress’s spending power.

The only appellate court that even addressed this question, the United States Court of Appeals for the 11th Circuit, rejected the constitutional challenge. Having taken up the question, the Supreme Court should affirm that ruling. It would be a serious mistake for the court to use this case to restrict Congress’s authority by placing any additional requirements for the commitment of federal money.

The Constitution’s spending clause gives Congress the power to pay debts and “provide for the common defense and general welfare” of the country. In 1987, the Supreme Court held that when Congress provides money to a state, it has broad power to require states to meet conditions related to the money — as long as the spending serves the general welfare and meets other restrictions.

New York Times on the gap between theoretical learning and practical application

What They Don’t Teach Law Students: Lawyering

Laura Pedrick for The New York Times

Drinker Biddle & Reath, a Philadelphia firm, trains its new associates to be lawyers. Here, Matthew McDonald, a partner, passes out instructions.

By DAVID SEGAL

Published: November 19, 2011

PHILADELPHIA — The lesson today — the ins and outs of closing a deal — seems lifted from Corporate Lawyering 101.

Josh Anderson for The New York Times

Updating is needed, says Edward Rubin, ex-dean of Vanderbilt Law.

A Possible New Curriculum

What do corporate clients wish associates were taught in law school?

• A better understanding of modern litigation practice, which is about gathering facts and knowing how to settle a case.
• Greater familiarity with transactions law, including how to draft, evaluate and challenge a contract.
• Deeper knowledge of regulatory law and the ability to respond to a regulatory inquiry or enforcement action.
• Basic corporate legal skills, like how to perform due diligence.
• Writing skills. Partners at law firms say they spend a lot of time improving the writing of their first- and second-year associates.
• A stronger grasp of the evolving economics of legal practice, which will rely less on leveraging the time of new associates and more on entrepreneurship.

Pakistani case law on CrPC's applicability on Special Laws

Abid Saeed v. The State 2002 P Cr. LJ 1818

Where a statute has created a special offence and lays down a special procedure for investigation and trial of such offence, it is that procedure that must be followed and not the ordinary procedure.  Page 1826.

Perusal of provisions of the Customs Act and CrPC would show that that Sections 161, 162, 163 and 185-A contain similar provisions as contained in CrPC for regulating arrest, search , report, remand, enquiry, charge sheet as well as taking of the cognizance of the offence under the Act. When a special enactment contains procedural provisions in respect of such matters, the provisions of Cr.PC  in terms of Section 5(2) of CrPC will not be applicable. Page 1841

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).