Maulvi Siraj Ul Haq Law Chambers

05/04/2024

Alhamdulillah!!
Roll Signing as an Advocate Supreme Court of Pakistan

06/03/2024

06/04/2023

آج بروز جمعرات جناب جسٹس شاہد جمیل خان لاہور ہائی کورٹ نے تاریخ رقم کرتے ہوئے 7E انکم ٹیکس آرڈیننس 2001 کو غیر قانونی اور آئین سے متصادم قرار دے کر "محمد عثمان گل بنام فیڈریشن آف پاکستان" سمیت 1200 سے زائد درخواستوں کے حق میں فیصلہ سناتے ہوئے قرار دیا کہ وفاقی حکومت نے آئین کے شیڈول 4 انٹری 50 کی خلاف ورزی کی ہے جس کے تحت اٹھارویں ترمیم کے بعد صرف صوبائی حکومت کو اختیار حاصل ہے کہ وہ غیر منقولہ جائیداد پر ٹیکس لگا سکتی ہے جب کہ وفاقی حکومت نے فنانس ایکٹ 2022 میں ڈھائی کروڑ سے زائد غیر منقولہ جائیداد رکھنے والے پر ایک فیصد غیر قانونی ٹیکس لگا دیا تھا۔

13/10/2022

*ہتک عزت (Defamation) پر لاہور ہائیکورٹ کا نہایت معلوماتی فیصلہ*
*2022 LHC 3762*

It is settled principle of law that defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of the society generally or tends to make them shun or avoid him. Defamation accordingly takes the forum of two separate torts i.e. libel and slander. There is no cavil to the proposition that libel is actionable per se and injury to reputation will be presumed. However, whether the case is one of libel or slander, the following elements must be proved by the claimant:-

a. the imputation must be defamatory;
b. it must identify or refer to the claimant;
c. it must be published/communicated to at least one person other than the claimant.
Defamation is defined under Section 03 of the Ordinance, 2002.
The main ingredient constituting defamation is publication of defamatory statement in widely circulated newspaper or spoken in a large gathering. For constituting defamation:-
(a) The allegations levelled against the plaintiff should be false, baseless and unfounded
(b) The wordings used and the allegations levelled, in on the face of it, should have been defamatory derogatory nature;
(c) Such allegations should have been published in widely circulated newspapers or spoken in a large gathering;
(d) The said publications made or wordings used should have been with malice without any reasonable cause and justification;
(e) The allegations should have been directly attributed to the plaintiff by specifically mentioning his name;
Publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed as defined in section 04 of the Ordinance, 2002.
The defences available to the appellants provided in section 05 of the Ordinance, 2002, as under: In defamation proceedings a person has a defence if he shows that–
a) he was not the author, editor, publisher or printer of the statement complained of;
b) the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith;
c) it is based on truth and was made for the public good;
d) assent was given for the publication by the plaintiff;
e) offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;
f) an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;
g) the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and
h) the matter is converted by absolute or qualified privilege.
It app ears that damages are defined under three headings; 1) compensatory, 2) general & 3) aggravated. Compensatory damages themselves can be divided into general and special. If plaintiff, who wins a defamation action is entitled to an award of general damages, compensating him for the injury to his reputation and feelings by being proportionate to the damage which the plaintiff has suffered and nothing greater than what is necessary to provide adequate compensation and to reestablish his reputation. Now the qu estion arises is to weigh the quantum of damages for such loss caused to him by such wrongful act. General damages normally pertain to mental torture and agony sustained through derogatory/defamatory statement. Since, there is no yardstick to gage such dam ages in monitory terms, therefore, while assessing damages on account of such inconvenience, the Courts apply a rule of thumb by exercising its inherent jurisdiction for granting general damages on a case to case basis, whereas, special damages are defined as the actual but not necessarily the result of the injury complained of. While awarding special damages, it is to be kept in mind that the person claiming special damages has to prove each item of loss with reference to the evidence brought on record. Th is may also include out of pocket expenses and loss of earnings incurred down to the date of trial and is generally capable of substantially exact calculation. The burden in such situation, like in all cases, is on the shoulder of the plaintiff to prove th e magnitude of such suffering.
The defamation of any person or citizen through spoken or written words or any other means of communication lowers the dignity of a man fully guaranteed by the Constitution, if anyone commits an act of malice by defaming any person, would be guilty under the Constitution. No one can plead the unbridled right of expression. Who would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same has to be dealt with under the law.

28/07/2022

Updates;

That yesterday the *Executive Body of High Court Bar Association Rawalpindi* has filed a writ petition no. 2148/22 through Secretary General in High Court and challenged the sales tax illegally imposed on lawyers on their chamber's electricity bills.

Today i-e (28-07-22)
The Honorable High Court has graciously allowed the writ petition and declared the acts of FBR and other respondents being illegal.

07/05/2022

Pakistan Defence Officers' Housing Authority etc. vs. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707)

In this judgment court, while dealing with cases of number of employees of different statutory corporations and autonomous bodies, applied “function test” to bring forth the real character of these organizations and after discussing relevant cases on the subject laid down following principles of general application: The principles of law which can be deduced from the foregoing survey of the precedent case-law can be summarized as under:--
(i) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or efficacious remedy can be enforced through writ jurisdiction.
(ii) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'.
(iii) In all the public employments created by the Statutory bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings.
(iv) Where the action of a statutory authority in a service matter is in disregard of the procedural requirements and is violative of the principles of natural justice, it can be interfered with in writ jurisdiction.
(v) That the Removal from Service (Special Powers) Ordinance, 2000 has an overriding effect and after its promulgation (27th of May, 2000), all the disciplinary proceedings which had been initiated under the said Ordinance and any order passed or action taken in disregard to the said law would be amenable to writ jurisdiction of the High Court under Article 199 of the Constitution. In this judgment august court has also laid down five rules for resolution of conflict of judicial opinion and has elaborated the role of judge in this regard as follow: In an attempt to resolve a conflict of judicial opinion, this Court must keep in mind: first the purpose of law the Court is called upon to interpret; second that law is a living organism which adapts to societal change and sometimes change in law precedes the former; third the ambit of court's jurisdiction and its limitations as defined in the Constitution; fourth the Court must be consistent i.e. in similar situations/ cases, the judicial opinion will be similar; fifth though the Supreme Court is not bound by the principle of stare decisis, but the departure from the precedent should be well reasoned, proper and in accordance with the established principles of law. A Judge's role is to interpret the law and to correct its mistakes. The twin role of a developer in law and an earnest interpreter of legislation, though challenging, is in accord with the role the Supreme Court has in the constitutional scheme as also consistent with society's perceptions of the role of judiciary in a liberal democracy….

25/04/2022

2019 C L C 1787
[Sindh]
Before Nadeem Akhtar, J

Mst. NOOR AFSHAN----Petitioner
Versus
MUHAMMAD GHALIB and 3 others----Respondents

C.P. No. S-285 of 2017 and C.M.A. No.8620 of 2017, decided on 19th February, 2019.

Guardians and Wards Act (VIII of 1890)---

----S.25---Custody of minor---Welfare of minor---Re-marriage of mother---Visitation---Conduct of father---Non-payment of maintenance allowance---Effect---Petitioner/mother assailed the order of Appellate Court whereby permanent custody of minor was given to the father/respondent---Appellate Court had granted the permanent custody of minor to the father on the sole ground that the mother had remarried and was now living with her second husband---Validity---Held; such ground could have been applied had the subject minor been a girl---No other justifiable reason was assigned by the Appellate Court for granting permanent custody of a male minor of tender age to his father---Observation of Family Court regarding the conduct of father being negligent and mala fide, was apparent in view of his continuous absence at the time of visitation ordered by the Family Court, impounding and blocking of his CNIC by Family Court and issuance of his non-bailable warrants by the Judicial Magistrate---Father had not complied with the decree of maintenance passed by Family Court in favour of the subject minor---Grant of permanent custody of minor to respondent/father was not in the interest and welfare of the minor---Respondent was, however, granted right of visitation, subject to certain conditions---Constitutional petition was allowed, in circumstances.

19/04/2022

Supreme Court of Pakistan

Muhammad Siddique v. Senior Executive Vice President, PTCL
Civil Appeal No. 1477 of 2019
Mr. Justice Gulzar Ahmed, CJ, Mr. Justice Mazhar Alam Khan Miankhel,
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi

Facts:
The pay of petitioner was Rs. 8070/- but in oral evidence he stated it to be 7605/-.
Issue: Which piece of evidence will be given preference, whether oral or documentary?

Analysis:
There is a well-known dicta that ‘a man can tell a lie but a document cannot’. If a
person has or has been bestowed some legal right and he omitted to claim such legal
right through oral assertion but the best documentary evidence of which the case in its nature is susceptible is found in his favour then the documentary evidence in
favour of a person should be given credence.
Conclusion: Documentary evidence shall be given credence over the oral account of a witness.

19/04/2022

Raja Azhar Hayat v. Additional District Judge/ Gas Utility Court & others
W.P. No.19738 of 2021
Mr. Justice Muhammad Sajid Mehmood Sethi

Facts:
In a civil suit for recovery by SNGPL, the civil court proceeded ex-parte against
the petitioner and recorded evidence. Subsequently, the matter was transferred to
the Additional District Judge/Gas Utility Court, who ex parte decreed the suit.
Thereafter, the application moved by the petitioner for setting aside ex parte
proceedings and decree, was dismissed.

Issue:
i) Whether it is necessary to examine the process server before making the order
for substituted service?

ii) Whether the transferee court is required to issue notice to a party against whom
ex parte proceedings were already made by the transferor court?

Analysis:
i) In terms of Order V Rule 19 C.P.C., the Court was required to examine the
Process Server on oath, make further inquiry in the matter and declare that the
summons were duly served, but it is not discernible from record that any such
exercise was undertaken by learned Trial Court, rather it straightaway ordered
publication in the newspaper. Therefore, it was not a proper service within
contemplation of Order V Rules 19 & 20, C.P.C.

ii) On transfer, Gas Utility Court did not issue any fresh process for appearance of
the petitioner and did not record evidence by itself, rather proceeded to pass decree
on the basis of proceedings undertaken and evidence recorded by the Civil Court.
Needless to say that Gas Utility Court was obliged under the law to issue
process/notice to petitioner to impart him information that the case had been
transferred to it and in absence of such notice, petitioner was well within his rights
to plead lack of knowledge regarding Court in which he had to appear. The ex parte
proceedings already made against petitioner do not deprive him of a right to receive
notice on transfer of suit.
Conclusion: i) Examination of the process server is compulsory before making order for
substituted service or further proceedings.

ii) Transferee Court should issue notice to a party even against whom ex parte
proceedings have already been made to give that party intimation that the case has
been transferred to it

06/04/2022

P L D 2012 Supreme Court 774

Arts. 63(2), 69, 204(2) & 184(3)---Contempt of Court Ordinance (V of 2003), Ss. 3 & 5---Constitutional petitions under Art.184(3) of the Constitution challenging the National Assembly Speaker's ruling by which she refused to send a reference against the Prime Minister to the Election Commission seeking his disqualification on the basis of his conviction by the Supreme Court in the contempt of court case---Function of the Speaker under Art.63(2) of the Constitution---Scope---Ruling of the Speaker under Art.63(2) of the Constitution---Nature---Such ruling of the Speaker could be subject to judicial review/ scrutiny---Scope---Contentions of the Prime Minister were that the jurisdiction of the Supreme Court was barred under Art.69(1) of the Constitution because the Speaker was the Member of Parliament, therefore, her ruling fell within the ambit of internal proceedings and the Court had no jurisdiction to interfere with the same; that the Supreme Court had no role to play in the matter of disqualification of a member of the Parliament, which was to be decided either by the Speaker of the National Assembly or eventually by the Election Commission; that the Speaker of the National Assembly was not bound by the judgment of the Supreme Court, and that the Constitution itself had specifically empowered the Speaker to decide the question of disqualification of a member of the Parliament, therefore, the decision of the Speaker was sui generis and adjudicatory in nature---Validity---Under Art.63(2) the Speaker's function was not part of the parliamentary process and he/she performed the administrative task of determining whether a question of disqualification had arisen and if in doing so he/she went beyond the constitutional remit, misapplied the applicable law or misused discretion, then his/her decision would be reviewable---Article 69 would not provide such a ruling any immunity from judicial review---Ruling of the Speaker in the matter of referring a case to the Election Commission under Art.63(2) of the Constitution wherein a question of disqualification of a Member of the Parliament had arisen, or where the Speaker decided that no such question had arisen, was amenable to the jurisdiction of the superior courts---Ruling of the Speaker, in the present case, was open to judicial scrutiny by the superior Courts by virtue of Art.69 of the Constitution because it did not fall within the "proceedings" of the Majlis-e-Shoora (Parliament) or conduct of business of the Parliament within the contemplation of Art.69 of the Constitution.