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Pak Legal Database is happy to announce its collaboration with the Islamabad High Court Bar Association. Users can now access 10 free lifetime accounts accessible free of cost in the library of IHC. Additionally Bar members can now avail 10% discount on all subscription packages. We extend our sincere gratitude to Mr. Shafqat Abbas Tarrar, Secretary, and the President, along with the esteemed cabinet of the Islamabad Bar Association, for their support and help to make this possible.

Pak Legal Database is happy to announce its collaboration with the Islamabad High Court Bar Association. Users can now access 10 free lifetime accounts accessible free of cost in the library of IHC. Additionally Bar members can now avail 10% discount on all subscription packages. We extend our sincere gratitude to Mr. Shafqat Abbas Tarrar, Secretary, and the President, along with the esteemed cabinet of the Islamabad Bar Association, for their support and help to make this possible.

On 20/11/2024, The Supreme Court of Pakistan held that the Islamabad High Court had exceeded its jurisdiction by addressing matters beyond the scope of the prayers raised in the petitions. The High Court’s decisions to strike down the Revised Policy and suspend allotments were declared unconstitutional. The High Court declared the Revised Policy unconstitutional without it being formally challenged in the petitions. The Supreme Court reaffirmed that the High Courts lack suo motu jurisdiction, as consistently held in cases like Abdullah Jumani v. Province of Sindh (2024 SCMR 1258) furthermore, Justice Ayesha A Malik emphasised that Courts must confine their judgments to issues raised by the parties and avoid intruding into the executive's domain of policymaking. --- Citation: 2024 SCP 386 ----- Violation of Natural Justice: Article 10A guarantees fair trial and due process, including the right to be heard. Affected parties, including retired employees, Drive II members, and judicial officers who benefited from the Revised Policy, were not given an opportunity to present their case. This violated the principle of audi alteram partem. ------ Judicial Overreach: The High Court’s focus on the Revised Policy exceeded the scope of the petitions, which primarily dealt with plot allotments and the criteria for allotment. By addressing issues not raised by the parties, the High Court engaged in judicial overreach, infringing upon the principle of separation of powers. ------- Misapplication of Revised Policy: The Revised Policy was introduced after the hearings had concluded, and the High Court reserved judgment on November 22, 2021. The policy aimed to comply with the Noman Ahmad Judgment but was struck down without giving the federal government or FGEHA an opportunity to explain its rationale. ----- Violation of Separation of Powers: Courts must confine their judgments to issues raised by the parties and avoid intruding into the executive's domain of policymaking. The Supreme Court emphasized that judicial review is limited to addressing grievances formally brought before the court. The Supreme Court set aside the Islamabad High Court’s impugned judgments and orders, declaring them to have been issued beyond its constitutional mandate. The cases were remanded to the High Court for fresh adjudication, directing it to decide the matters within 90 days. ------- Citations/Precedents: Bashir Ahmad v. Federal Government of Pakistan (PLD 2018 Islamabad 68): Requirements for land acquisition. Abdullah Jumani v. Province of Sindh (2024 SCMR 1258): Held that High Courts do not have suo motu jurisdiction. Taufiq Asif v. General (Retd.) Pervez Musharraf (PLD 2024 SC 610): Stressed that courts cannot grant reliefs not sought in the petitions. Akhtar Abbas v. Nayyar Hussain (1982 SCMR 549): Confirmed that writ proceedings must be confined to the prayers made in the petition. www.paklegaldatabase.com

On 13th of November 2024, the Lahore High Court held that the limitation for setting aside ex parte proceedings is governed by Article 181 of the Limitation Act, 1908, prescribing a three-year period, not the 30-day period under Article 164 applicable to ex parte decrees. The Court emphasized that procedural technicalities should not preclude substantive justice, and defendants retain the right to participate in proceedings upon showing sufficient cause. The impugned orders of the lower courts were declared illegal, and the applications to set aside ex parte proceedings were allowed. Citation: 2024 LHC 5176. ----- Issues: 1) What is the applicable limitation period for filing an application to set aside ex parte proceedings? 2) Do the petitioners have a valid reason for their absenteeism during the trial proceedings? 3) Was the dismissal of the applications based on legal and procedural correctness? ----- Holding/Reasoning/Outcome: ----- Limitation Period: The appellate court clarified that there is no specific provision in the Limitation Act, 1908, addressing the limitation period for applications to set aside ex parte proceedings. The residuary Article 181 of the Limitation Act, 1908, which provides a 3-year limitation period from when the right to sue accrues, applies to such applications. The courts below incorrectly applied a 30-day limitation period, which pertains only to ex parte decrees (Article 164). ---- Right to Participate: Even if a defendant is declared ex parte, they retain the right to join the proceedings at any stage and file an appropriate application for setting aside ex parte orders. Courts have broad discretion to set aside ex parte orders if good cause for absenteeism is shown. Denying the petitioners this opportunity contravenes principles of natural justice and procedural fairness. ------ Outcome: The appellate court held that the applications were wrongly dismissed as time-barred. The pending nature of the trial and the involvement of valuable rights justified the setting aside of the ex parte proceedings to allow the petitioners to contest actively. The writ petition was allowed. The orders of the Civil Judge and Additional District Judge, Samundri, were set aside. The applications for setting aside ex parte proceedings were allowed, restoring the petitioners to their pre-ex parte status. ------ Citations/Precedents: Messrs Rehman Weaving Factory v. Industrial Development Bank of Pakistan (PLD 1981 Supreme Court 21) Muhammad Ramzan v. Malik Rehmat Ullah and others (2014 MLD 451) Police Department through Deputy Inspector-General of Police and another v. Javid Israr and 7 others (1992 SCMR 1009) Muhammad Yousuf Bhindi and others v. Messrs A.G.E. & Sons (Pvt.) Ltd. and others (PLD 2024 Supreme Court 864) Rana Karamat v. Farhan Haider and 6 others (2024 CLC 563)

On 30th of October 2024, the Lahore High Court held that a marriage under Fiqh-e-Jafria canbe dissolved by a Family Court through khula without the husband’s consent or the performanceof "Seeghas." The Court reaffirmed that under Section 10(5) of the Family Courts Act, 1964, khulais a legitimate right of a wife if reconciliation fails, irrespective of sectarian personal laws. Thepetitioner’s argument for adherence to Fiqh-e-Jafria requirements was dismissed, emphasizingthat statutory law and Islamic principles prevail. The Court clarified that the Federal ShariatCourt's annulment of Section 10(5) was not effective during the case. The petition challenging thedissolution of marriage was dismissed as devoid of merit. Citation: 2024 LHC 5108

On 6th of November 2024, the Supreme Court of Pakistan held that the provisos under section 45B(2) of the Sales Tax Act are directory, not mandatory, thus, a decision rendered beyond the timeframe does not invalidate the appeal proceedings. Justice Syed Mansoor Ali Shah stated that "The purpose of statutory timelines for appeals is to guide the Commissioner (Appeals) towards timely adjudication, not to penalize the taxpayer by nullifying their appeal if the timeframe lapses.” Background: This case concerns the interpretation of the first and second provisos of section 45B(2) of the Sales Tax Act, 1990, regarding the time limit for the Commissioner (Appeals) to decide appeals. The initial judgment under review declared these provisos mandatory, invalidating any decision made beyond the 180-day period. The tax department petitioned for a review, arguing that a mandatory interpretation unfairly deprives taxpayers and the department of a fair decision, thereby hindering appeal rights. ---- Issues: 1) Are the first and second provisos of section 45B(2) of the Sales Tax Act, 1990, to be interpreted as mandatory or directory? 2) Does exceeding the statutory timeframe of 180 days nullify the Commissioner (Appeals)’ decision? ----- Holding/Reasoning/Outcome: Holding by Justice Syed Mansoor Ali Shah: The Court, by majority, held that the provisos under section 45B(2) are directory, not mandatory, thus, a decision rendered beyond the timeframe does not invalidate the appeal proceedings. "The purpose of statutory timelines for appeals is to guide the Commissioner (Appeals) towards timely adjudication, not to penalize the taxpayer by nullifying their appeal if the timeframe lapses." Justice Mansoor Ali Shah emphasized the distinction between original and appellate adjudication, citing that appellate rights stem from fundamental rights under Articles 4 and 10-A of the Constitution, warranting a lenient directory interpretation to safeguard these rights. ----- Dissent by Justice Ayesha A. Malik: Justice Malik disagreed, advocating a mandatory interpretation due to statutory provisions. She argued that the Tribunal and High Court failed to consider adjournments taken by the taxpayer, impacting the calculation of the timeframe. Outcome: The case was remanded to the Tribunal for adjudication on merits, treating the statutory timeframe as directory. By a 2-1 majority, the Court allowed the review petition in part. ----- Citations/Precedents: Mujahid Soap and Chemical Industries (Pvt) Ltd v. Customs Appellate Tribunal (2019 SCMR 1735) Super Asia (2017 SCMR 1427) A.J. Traders (Civil Appeal Nos. 354 to 356 of 2020, dated 12.12.2022) WAK Limited v. Collector Central Excise and Sale Tax (2018 SCMR 1474) Citation: 2024 SCP 377

On 28th of October 2024, Lahore High Court ruled that “earning of livelihood abroad” constitutes an incapacity under Section 540A of the Code of Criminal Procedure, allowing exemption from personal appearance in court. Justice Muhammad Amjad Rafiq held that the phrase “incapable of remaining before the court” includes situations where an accused is working abroad, thereby justifying exemption from attending court in person. The court’s decision underscores the need for flexibility in applying Section 540A, especially when the accused can participate via modern technology like video conferencing, ensuring court proceedings continue without necessitating physical presence. --- Issues: --- 1) Does the “earning of livelihood abroad” qualify as an incapacity to remain before the court under Section 540A of the Code of Criminal Procedure? --- 2) Can modern technological means, like video link, substitute the physical presence of an accused in court proceedings? ------- Holding/Reasoning/Outcome: The court upheld the order of the Additional Sessions Judge, interpreting Section 540A as an enabling provision that allows flexibility for an accused to be exempted if genuinely incapacitated, including cases where they are earning a livelihood abroad. The court also suggested that technological alternatives like video links could be used to facilitate the presence of the accused when physical attendance is not feasible, promoting access to justice and fair trial principles under Articles 9 and 10A of the Constitution. --- Quote "The words used in section 540A of the Code ‘incapable of remaining before the Court’ supports the idea [of exemption], and the learned counsel for the respondent has rightly pointed out the legal position as settled through case laws … that incapacity does include ‘earning livelihood abroad.’'' ----- Citations/Precedents: Haji Aurangzeb vs. Mushtaq Ahmad and another (PLD 2004 SC 160) Muhammad Nawaz vs. The State and another (2015 PCr.LJ 58 Lahore) Aftab Ahmad vs. The State through Assistant Advocate-General, Rawalkot (2019 PCr.LJ 267 Shariat Court AJ&K) Muhammad Latif vs. Zaheer Iqbal and another (2020 MLD 160 AJ&K High Court) Intizar Hussain and another vs. Amjad Hussain and another (2023 PCr.LJ 596 Islamabad) Raja Pervez Ashraf vs. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others (PLD 2020 Islamabad 24) Sajjad Akbar vs. The State through Advocate General Khyber Pakhtunkhwa, Peshawar and 3 others (2022 MLD 1325 Peshawar) Muhammad Hanif vs. The State, etc. (PLJ 2023 Cr.C 412) Meera Shafi vs. Ali Zafar (PLD 2023 SC 211) Khawaja Anwer Majid vs. NAB through Chairman NAB and another (PLD 2020 SC 635) Imran Ahmad Khan Niazi vs. Special Judge (Anti-Terrorism Court), Lahore and 3 others (PLD 2024 Lahore 486) Munawar Hussain and another vs. The State (2020 PCr.LJ 1184) Muhammad Israr vs. The State and another (PLD 2021 Peshawar 105) Citation: 2024 LHC 4993

On 6th of November 2024, the Lahore High Court held that If an accused is declared a proclaimed offender due to non-appearance in court, this status can be revoked if the accused later surrenders voluntarily. According to Section 75 of the Code of Criminal Procedure (Cr.P.C.), the court has the authority to cancel arrest warrants or proclamations issued for securing the accused’s presence, as these are procedural steps, not final judgments under Section 369 Cr.P.C. In this case, the court emphasized that once the accused surrenders, the trial court may, for valid and compelling reasons, recall the proclamation to ensure the case proceeds fairly and in line with due process. Title: Muhammad Hussain Vs The State etc Citation: 2024 LHC 4966 --- Background: The appellant, Muhammad Hussain, was facing trial under the Control of Narcotic Substances Act, 1997. After failing to appear in court on October 9, 2024, he was declared a proclaimed offender, and his surety bond was forfeited. The court directed the police to record his name as a proclaimed offender. Subsequently, he filed an application to recall this order, marking his attendance in court. The trial court dismissed this application on October 14, 2024, stating that it could only be reviewed by the High Court. The appellant then appealed to the High Court, requesting a review of the trial court’s decisions. ---- Issues: 1) Can a court recall an order declaring a person a proclaimed offender if the accused voluntarily surrenders? 2) Does a proclamation order qualify as a final judgment under Section 369 Cr.P.C.? ---- Holding/Reasoning/Outcome: The Lahore High Court set aside the trial court’s order from October 14, 2024, and remanded the matter, noting that the purpose of summons, warrants, and proclamations is solely to bring the accused before the court for trial proceedings. The court held that the proclamation of a proclaimed offender is an interim order, not a final judgment under Section 369 Cr.P.C., and can be recalled based on valid reasons once the accused surrenders. The High Court emphasized that if the appellant surrenders by the specified date, the trial court should reconsider the recall application based on its merits. If the appellant fails to appear, the proclaimed offender status will remain, and the trial court’s original order will stand. --- Citations/Precedents: PLD 1978 Supreme Court Section 75 Cr.P.C. - Authority of the court to cancel arrest warrants and proclamation. www.paklegaldatabase.com

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