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Monthly Case Law Update MONTHLY CASE LAW UPDATE Vol. 1, No.10 August & September, 2013 ________________________________________________________________ CONSTITUTION Contents Page 1) Pakistan Bar Council vs. Federal Government. (2013 SCMR 1651) Constitution 1 Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Criminal Law 2 Ahmed, JJ Election Laws 3 It has been opined by the apex court while entertaining the constitutional petition under Art.184(3) of the Constitution, concerning Family Laws 4 recognition/affiliations of law colleges and universities and raising of standard of legal education in the country, that State was Financial Institutions (R.O.F) responsible for ensuring fundamental right of Ordinance 4 education enshrined in Art.9 read with Arts.25-A and 37 of the Constitution. Land Acquisition Act 4 2) Haji Muhammad Zaman Khan vs. Member BOR Punjab. Pre-Emption Act 5 (2013 SCMR 1595) Service Laws 5 Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ It has been opined, inter alia, High Court in its constitutional jurisdiction could interfere with the Special Event order passed by a Tribunal of competent jurisdiction, however, said exercise had to be confined to examine whether the order passed Indian Supreme Court Judge 6 was in accordance with the law; whether it was a Visits Research Centre case of no evidence; whether the authority acted in bad faith or there was failure to follow the procedure prescribed in law. Page | 1 LAHORE HIGH COURT RESEARCH CENTRE PUBLICATION, 2013 3) Nazar Elahi vs. Govt. of Punjab. CRIMINAL LAW (2013 CLC 1457) 5) Dilawar Hussain vs. The State. Mrs. Ayesha A. Malik, J (2013 SCMR 1582) The petitioner assailed the proclamation wherein a relaxation of age was offered to Iftikhar Muhammad Chaudhry, female candidates but the same relaxation C.J., Ejaz Afzal Khan, Ijaz Ahmed of age was not offered to male candidates. Chaudhry, Gulzar Ahmed and Sh. Hon’ble High Court while dismissing the petition Azmat Saeed, JJ observed as under: Accused was convicted and awarded death “Equal protection of law was guaranteed sentence by Trial Court and the same was under Art.25 of the Constitution, to every maintained by High Court as well as by Supreme citizen and also required that the State Court---Accused sought review of judgment on would undertake action for protection of the plea of incarceration in death cell for women and children---Constitution had eighteen years- Life imprisonment meant itself recognized and created twenty five years rigorous imprisonment---Even classification which needed special under Rule 198(b) of Pakistan Prisons Rules, protection---Any act of government 1978, life imprisonment meant twenty five which aimed to protect women and years rigorous imprisonment---Accused was children was affirmative action and did being incarcerated in death cell for last 17 not offend Art.25(1) of the Constitution--- years, one month and five days and by efflux of Age relaxation for female candidates met time he had also earned remissions for 18 standard of permissible affirmative years, eight months and ten days---Such were action, hence was protected under extenuating circumstances as, in the present Art.25(3) of the Constitution”. case, where the accused did not repeat fire, chose lower part of body, accused and deceased being closely related to each other, 4) Foundation for Fundamental Rights incident having taken place on some abrupt vs. Federation of Pakistan. altercation between them and that incarceration of accused in death cell for a long (PLD 2013 Peshawar 94) period, conversion of sentence from death to Dost Muhammad Khan, C.J. and imprisonment for life would not only be proper Musarrat Hilali, J rather it was in the interest of justice---Accused had not only served out one sentence provided In this judgment court after discussing the issue under S.302(b), P.P.C. but had also suffered of drone attacks in detail passed several agonies of his remaining incarcerated in death directions to GOP and held that if resort to UNO cell for quite long period---Supreme Court does not prove fruitful then GOP shall sever all keeping in view the principle of abundant ties with USA: caution, reviewed its earlier judgment and altered death sentence passed to accused into “In case the US Authorities do not comply imprisonment for life. with the UNO Resolution, whether passed by the Security Council or by the General Assembly of UNO, the No man is above the law and no man is Government of Pakistan shall sever all below it; nor do we ask any man's ties with the USA and as a mark of permission when we ask him to obey it protest shall deny all logistic and other facilities to the USA within Pakistan”. Theodore Roosevelt quotes Page | 2 LAHORE HIGH COURT RESEARCH CENTRE PUBLICATION, 2013 6) Nadeem Ashraf vs. The State. 8) Raja Rab Nawaz vs. Federation of Pakistan. (2013 SCMR 1538) (2013 SCMR 1629) Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and The dictum laid down in Ameer Zeb case (PLD Gulzar Ahmed, JJ 2012 S.C 380) is not applicable in bail matters. The August Court while dismissing the bail The apex court has commented upon the petition has observed as under: importance of local/municipal government elections by stating that the establishment of Admittedly the trial has yet to commence democratic institutions at the grass root level and it would be rather presumptuous on was basic requirement for the welfare of the the part of the petitioner to infer that the society. Broad masses of people were to be prosecution would lead evidence only to genuinely associated with the management of the extent of the weight to which their affairs and encouraged to work for their reference has been made by petitioner's own welfare. Essentially, the institutions at learned counsel. It is always open for the local/grass root level protected the human parties and in this case for the dignity of common man to which he was prosecution to lead further evidence and entitled. Further observed that the Local to request the court that it be allowed to Government or Municipal Government was a send the entire narcotics allegedly form of public administration, which in a recovered from the petitioner for majority of contexts, existed as the lowest tier chemical analysis. of administration within a given state or district. ELECTION LAWS 9) Muhammad Yaqoob Sheikh vs. Election Tribunal. (2013 CLC 1512) 7) Allah Dino Khan Bhayo vs. E.C.P. (2013 SCMR 1655) Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Iftikhar Muhammad Chaudhry, Akbar Naqvi, JJ C.J., Ijaz Ahmed Chaudhry and Sh. Azmat Saeed, JJ In this case court determined the application of Article 63 of the Constitution of Pakistan when It has been observed, inter alia, regarding default is not directly by a natural person but qualification to be Member of Parliament same was through the medium of juristic (Majlis-e-Shoora) in terms of Art. 62(1)(f) of the person: Constitution, the framers of the Constitution “The purpose behind the above Article had chosen not to prescribe any period of time is to disqualify a candidate aspiring for through the flux whereof or any act or omission a seat in the Parliament if he is a loan through which such qualification could be defaulter or has got his loan written acquired if a candidate or a member had been off, ….. It will be restricting the above held not to possess the same. However, if a constitutional disqualification if it person was held not be qualified in terms of were to only cover situations where Art.62 (1) (f) of the Constitution, such absence the aspiring candidate has obtained of qualification in law would haunt him forever. Page | 3 LAHORE HIGH COURT RESEARCH CENTRE PUBLICATION, 2013 loan as a natural person under his The bank assailed this oder of single bench own name and disregard the loans through I.C.A, which was dismissed by the obtained by the candidate through Hon’ble division bench in limine and it was held the vehicle of his business. The “veil of that: the incorporation” …. Can be lifted to determine whether the petitioner is “It is an established principle of the major beneficiary of the loan interpretation of statutes that in obtained by the corporate entity”. case of a special law and a general law on the same subject which if standing alone would include the FAMILY LAWS same matter and conflict with the special law, it is the special law 10) Mst. Saeed Javed vs. Javed Iqbal. which will prevail since it evinces the legislative intent more (PLD 2013 Peshawar 88) objectively and specifically then the general law. The intent Rooh-ul-Amin Khan and Malik to legislate Section 20(4) of the Manzoor Hussain, JJ Ordinance ibid and Section 489-F PPC being altogether different Suit for dissolution of marriage by wife on should not be intermingled. In ground of infertility of husband- Neither Islam view of the above legal position nor Dissolution of Muslim Marriages Act, 1939 the arguments of learned counsel recognized such ground for dissolution of for appellant that Bank in its own marriage as fertility or infertility or other prerogative was not debarred from incapacitation for being beyond control of getting criminal case registered human being and an act of nature---Marriage in under Section 489-F PPC to redress case of infertility of husband could be dissolved its grievance through speedy either by him by giving Talaq to wife or by her remedy of his choice is devoid of through "Khula".
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