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Monthly Case Law Update

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Monthly Case Law Update MONTHLY CASE LAW UPDATE Vol. 1, No.9 June-July, 2013 ________________________________________________________________ Contents Page CONSTITUTION 1) Maulana Abdul Haque vs. Govt. of Constitution 1 Balochistan etc. (PLD 2013 S.C. 641) Civil Procedure Code 3 Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, Criminal Procedure Code 3 JJ. The Apex Court elucidated the meaning and scope Election Laws 4 of the phrase "Sovereignty of State" by stating that the concept of sovereignty meant supreme authority in a political community. A sovereign Family Laws 4 State was often described as one that was free and independent. In its internal affairs it had undivided jurisdiction over all persons and Financial Institutions (R.O.F) property within its territory. It claimed the right to Ordinance 4 regulate its economic life without regard for its neighbours and to increase its armaments without limit. No other nation might rightfully interfere in Service Laws 5 its domestic affairs. In its external relations, it claimed the right to enforce its own conception of Tax Laws 6 rights and to declare war. In political theory, the ultimate authority of the State in the decision- making process and in the maintenance of order Transfer of Property Act 6 was called sovereignty. Its supreme and independent power was exercised in the domestic and foreign policy. It is precisely the State's Trade Marks Ordinance 6 powers that ensured the State's authority and thus its sovereignty. A State's domestic sovereignty was closely linked with its independence from foreign powers. Page | 1 LAHORE HIGH COURT RESEARCH CENTRE PUBLICATION, 2013 2) Nadeem Ahmed Advocate vs. Practice/convention that the senior most Judge Federation of Pakistan of the High Court, in the absence of any concrete and valid reason had to be appointed (2013 SCMR 1062) as the Chief Justice of the High Court was esteemed, honoured and also had the approval Khilji Arif Hussain, Tariq Parvez, of the Supreme Court. Ejaz Afzal Khan, Gulzar Ahmed and Sh. Azmat Saeed, JJ 3) Ch. Nisar Ali Khan vs. Federation of Pakistan It has been held that failure of most senior Judge of Islamabad High Court to attend the (PLD 2013 S.C. 568) meeting of the Judicial Commission would not vitiate the proceedings of the Commission. Tassaduq Hussain Jillani, Anwar Article 175-A(14) of the Constitution clearly Zaheer Jamali, Asif Saeed Khan provided that no action or decision taken by the Khosa, Amir Hani Muslim and Commission or Committee would be invalid or Muhammad Athar Saeed, JJ. called in question only on the ground of the existence of a vacancy therein or of the absence It has been observed in the case that suggestion of any Member from any meeting thereof. or recommendation made by the Supreme Court in its judgment though entitled to due Moreover that the President of Pakistan could respect, deference and consideration, did not not determine the seniority of Judges of the travel beyond a suggestion or a High Courts. According to the established recommendation and it did not by itself assume practice and yardstick for determining seniority the status of law. amongst the Judges of a High Court, elevated on the same day, was seniority in age except in the case of Judges from service whose inter se 4) Malik Nawab Sher vs. Ch. Muneer seniority remained intact even on their Ahmad etc. elevation irrespective of their age. (2013 SCMR 1035) Where nomination sent to the President for appointment in terms of Art.175-A of the Nasir-ul-Mulk, Amir Hani Muslim Constitution was against the Constitution and and Muhammad Athar Saeed, JJ. the law, a deadlock would inevitably be the consequence as the President could neither It was observed in this case, inter alia, return the nomination to the source it had jurisdiction of High Court in writ of quo originated from or processed through nor could warranto was primarily inquisitorial and not he appoint the person, thus nominated. Only adversarial and thus the court could undertake way out of such a deadlock would be recourse such inquiry as it might deem necessary in the to an advisory or adjudicatory jurisdiction of the facts and circumstances of the case, including Supreme Court. If the Supreme Court upheld examination of the entire record and such the opinion of the President, the Commission exercise could even be done suo motu. should initiate proceedings denovo in accordance with the opinion of the Court, but if the opinion of the President was not upheld by the Court, he should appoint the person so nominated. Page | 2 LAHORE HIGH COURT RESEARCH CENTRE PUBLICATION, 2013 CIVIL PROCEDURE CODE 5) Muhammad Nawaz vs. Muhammad 7) Rizwan Ali vs. The State Baran Khan (PLJ 2013 SC 762) (2013 SCMR 1300) Asif Saeed Khan Khosa & Ahmad Anwar Zaheer Jamali, Ijaz Chaudhary, JJ. AhmadChaudhry and Muhammad Ather Saeed, JJ. Three successive bail petitions filed by the petitioner were withdrawn by him and the last In this case, the august Supreme Court of petition was dismissed by the Hon’ble High Pakistan upheld the order of learned High Court Court on the basis of the principle laid down in where the suit of the plaintiff was dismissed as the afore mentioned case of Amir Masih. The not proved. The pleadings were silent about the august Supreme Court allowed the petition date, time and place of agreement to sell and while setting aside the order of the Hon’ble also no mention of marginal witnesses were High Court and ordered for its decision a-fresh made in the pleadings. The august Court by the High Court. The august Court while observed: allowing the petition observed as under: A perusal of the plaint reveals that “In the peculiar circumstances of the the appellant/plaintiff while case we have found the consensus asserting his claim regarding between the parties to be justified execution of alleged oral agreement because the merits of the petitioner’s in between the appellant and case for bail had never been attended respondent neither mentioned the to by the Lahore High Court, Multan date of striking off the bargain nor Bench, Multan in the orders passed the witnesses in whose presence by (sic) in all the three successive the said oral agreement to sell was applications filed by the petitioner for arrived at between the parties. the said relief and every time such application was allowed to be withdrawn the withdrawal so sought CRIMINAL PROCEDURE CODE and allowed was nothing but withdrawal simpliciter. This petition 6) Amir Masih vs. The State is, therefore, converted into an appeal and the same is allowed, the (2013 SCMR 1059) impugned order passed by the Lahore High Court, Multan Bench, Multan on Anwar Zaheer Jamali, Ijaz Ahmed 19-06-2013 is set aside, Criminal Chaudhry and Muhammad Ather Miscellaneous No.2084-B of 2013 Saeed, JJ. shall be deemed to be pending before the said Court and the same shall be Where earlier (first) bail application was decided afresh after attending to the dismissed as withdrawn, the second bail merits of the petitioner’s case for application could only be filed on any fresh bail”. ground and not on the same grounds which were available at the time of disposal of earlier bail application. Page | 3 LAHORE HIGH COURT RESEARCH CENTRE PUBLICATION, 2013 ELECTION LAWS 8) Abdul Ghafoor Lehri vs. Returning 10) Wagma vs. Pervez Khan Officer etc. (2013 YLR 1903) (2013 SCMR 1271) Rooh-ul-Amin Khan and Syed Iftikhar Muhammad Chaudhry, Afsar Shah, JJ. C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ. Dower amount was paid by husband to the In this case the Apex Court discussed, inter alia, petitioner through her father, however, same the scope of Articles 63 and 62 of the was deposited in the Bank account of her Constitution and opined that in Art.63 of the father. Thus, the Court held: Constitution there were certain disqualifications which were of temporary nature and a person disqualified under Art. 63 of the Constitution “Controversy was between the could become qualified after lapse of certain daughter and father and husband could period, whereas, the requirements of Art.62 of not be held responsible---Family Court the Constitution were of permanent nature and had no jurisdiction and the matter was a person had to fulfil certain qualifications / within the domain of civil court.” conditions to become eligible to be elected or chosen as a member of Majlis-e-Shoora (Parliament), otherwise, he was not eligible to be a member. Further observing that Article 62 FINANCIAL INSTITUTIONS of the Constitution did not provide any period (RECOVERY OF FINANCE) after which a person, who was declared ORDINANCE disqualified under the said Article, could be eligible to contest the elections of the Parliament. -Such a person could not (at any 11) Muhammad Nawaz vs. Zarai time in the future) become qualified by efflux of Taraqiati Bank Limited time. (2013 CLD 1390) FAMILY LAWS 9) Mst. Ayesha Shaheen vs. Khalid Abdus Sattar Asghar and Malik Mehmood etc. Shahzad Ahmad Khan, JJ. (2013 SCMR 1049) The Financial Institutions (Recovery of Finance) Nasir-ul-Mulk, Sarmad Jalal Ordinance itself does not furnish any procedure Osmany and Amir Hani Muslim, JJ. with regard to scrutiny of plaint, therefore, in the light of the provisions of section 7(2) of the Ordinance, procedure laid down under Order Where decree for delivery of gold or its market VII, rule 11 CPC is applicable to the plaints value was granted the value should be lodged before the Banking Court. determined with reference to the date of payment, as only then the decree could become fully satisfied.
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