Some more Pakistani Case Law - Miscellaneous

RIGHTS OF LICENSEES

2010 CLC 625 @ 628

Prima facie, legal right of the Petitioner under the licence agreement is of a limited nature as a licensee. The transitory nature of such a right is explained in Zaidi Enterprises v. C.C.A. PLD 1999 Kar. 181.

Confirmation or rescission of a freezing order under Narcotics Law

2009 PCr.LJ 254

Page 257

As is clear from the provision itself, the paramount consideration for the purpose of confirming or rescinding the freezing of the assets will be the existence or otherwise of reasonable grounds for believing the accused guilty of the offence.

Useful case law on revisional jurisdiction of the High Courts Sec.115 of Civil Procedure Code

1.                  On Maintainability: An interim order which changes the nature and affects the rights of parties is covered within the scope of the phrase “Case Decided”

a.       2009 YLR 51 @ 55

b.      2006 SCMR  21 @ 23 and 24

c.       2007 MLD 177 @ 180 and 181

d.      PLD 1964 Lahore 101 @ 107 and 108

e.       AIR 1948 Nagpur 258

2.                   Lease:  Lease is a transfer of interest in property

a.       PLD 1964 SC 106 @ 110

b.      2005 CLD 1982 @ 1989

Under 53-A of Transfer of Property Act, 1882.

c.       PLD 1969 Karachi 474

Letter Patents Appeal/ Intra Court Appeal, Interlocutory Orders and Original Civil Jurisdiction

1996 SCMR 1209 @ 1210

Feeling aggrieved thereby, the Petitioner filed Intra Court Appeal which was dismissed vide impugned order on the short ground of non maintainability. The High Court was of the view that Intra Court Appeal was not competent against an interim order passed by the learned single judge during the hearing of a constitution Petition.

2001 YLR 1239 @ 1240

S. 3 --- Intra Court Appeal --- Interim order passed in a constitutional Petition had been assailed in Intra Court Appeal which was not maintainable --- even otherwise the impugned order being in accordance with law Intra Court Appeal was dismissed accordingly.

Policy decisions, Classification, Contracts and Judicial Review

A.    POLICY DECISIONS:

PLD 2007 SC 642: See pages 672(N) and 674(s) for the balance between contractual rights, obligation, interests of the community at large and over-riding necessity.

1978 SCMR 327: At Page 329: “It was further held that in such cases the emphasis is on policy and any discretion vesting in the authorities is directed towards attaining the policy’s objectives.”

1986 SCMR 680: At Page 682: “Government has the right of laying down policy and if it chooses to do so and there is no law on the subject it offends, it is not the right of any Court to throw it out, other than to hold, in any genuine case, that the same is unreasonable or arbitrary.”

PLD 1973 SC 49: See generally for scope of judicial review, trichotomy of powers in our constitutional scheme.

Persecution of Ahmadis in the Islamic Republic

The basic premise on which we won ourselves Pakistan was that a permanent majority cannot and should not dominate a permanent minority on account of numeric strength. Yet contrary to that founding logic, Pakistan is today legally a totalitarian fundamentalist theocracy

A fresh round of hate has been unleashed against the hapless Ahmediyya community once again. A young woman has been expelled from her university for daring to stand up to hate speech against her community on campus in Lahore. In Rawalpindi, ignorant and boorish mobs have been agitating to close down an Ahmedi ‘place of worship’ for being ‘unconstitutional’. In other words, practising their own faith in their own space is deemed unconstitutional by a mob that has probably never opened the constitution. All the while this community goes on praying and fasting for Pakistan, where a majority continues to persecute them for believing differently.

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

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 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

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).

Legal Minds of Pakistan

Book recommendation: Before Memory Fades - An Autobiography


By Yasser Latif Hamdani

Any legal scholar picking up jurisprudence in Pakistan would be under the impression that Pakistan and India never separated. The reliance Pakistani jurists, judges and lawyers place on Indian judgements and case law is phenomenal. Indian precedents are not just persuasive – as in the case of English judgements and some American ones – but are given the status of near-law. This is hardly surprising, of course, given that most of the laws in Pakistan and India predate independence and very few, if any, have been updated in Pakistan. What is definite, however, is that Indian jurists and lawyers are certainly far superior as a whole when it comes to expounding law.