Ch Ghulam Sajjad Law Associate

24/05/2022

Imported govt na Manzoor

17/04/2022

2022 SCMR 815
Medical allowance for pensioners---Employee of Pakistan Railways allowed move over to BS-16 claiming benefit of Medical allowance for BS-15 employees on the basis that his substantive grade at time of his retirement was BS-15---Held, that respondent-employee had opted for move-over to BS-16 in which he chose to retire and was granted pension on the basis of last drawn pay of BS-16 and Medical allowance of 20% of the pension permissible to those in BPS-16---Medical allowance was payable on the pension drawn---In view of the fact that the respondent admittedly drew pension calculated on the basis of his last drawn pay which was that of BS-16, he was correctly paid Medical allowance @ 20% of the pension drawn---Respondent was actually claiming two benefits; while on the one hand he was drawing pension calculated on the basis of his last drawn pay in BS-16 and on the other hand he claimed benefit of a higher Medical allowance at the rate of 25% of pension payable to persons retiring in BS-15, which is contrary to the plain language of the relevant Office Memorandum---Appeal was allowed, and impugned judgment of Service Tribunal allowing respondent Medical allowance of 25% of the pension was set aside.

17/04/2022

2022 CLC 775
From perusal of Section 36 of the Pakistan Medical Commission Act, it is abundantly clear that while sub-section (1) thereof embodies an ouster clause that ousts jurisdiction of any other court to take cognizance of any offence or matter under the Act to which jurisdiction of the Medical Tribunal extends, sub-section (2) thereof confers original jurisdiction upon the Medical Tribunal to provide remedies of a complaint or claim to any person aggrieved by an act which is an offence under the Act. Needless to observe here that the original jurisdiction conferred under Section 36(2) of the Act provides remedies to an aggrieved person on criminal as well as civil sides i.e. a criminal complaint and a civil claim in relation to an act which constitutes an offence under the Act.

It is apparent from the plain reading of Section 37(1) of the Act that it confers appellate jurisdiction upon the Medical Tribunal in contradistinction to the original jurisdiction visualized under Section 36 of the Act. The remedy of appeal under that Section is available to any aggrieved person including an employee of the Commission. The word “person” has not been defined in the Act, however, it has been judicially defined by the Hon’ble Supreme Court of Pakistan in the case of Executive Engineer, Central Civil Division Pak. PWD Quetta versus Abdul Aziz and others (PLD 1996 SC 610) to mean a human being or a legal person. Such remedy is available against any order or direction of the Commission including the Council, Authority or Disciplinary Committee under any provision of the Act or Rules or Regulations. Limitation of thirty days from the date of communication of the impugned order or direction is also provided in the said Section. It is, therefore, abundantly clear that original and appellate jurisdictions of the Medical Tribunal under Section 36(2) and 37(1) of the Act are independent of each other and argument of the learned counsel for the petitioner that the aforementioned provisions cannot be read and given effect in isolation from each other, is apparently without force. 8. Legislature is competent to exclude jurisdiction of a court, however, there exists a presumption against the ouster of jurisdiction. Any law or statutory provision which denied access to courts was to be construed strictly. Ouster of jurisdiction must either be explicitly expressed or clearly implied and is not to be readily inferred. Language used by the legislature in this regard ought to show express and unequivocal manifestation of legislative intent to exclude jurisdiction of the courts. If language of an ouster clause is so clear and unmistakable that it left no doubt as to intention of the legislature in ousting jurisdiction in all circumstances, then the same should be given effect. If an ouster of jurisdiction clause is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.
As regards scope of Section 36(1) of the Act, suffice it to say that the ouster of jurisdiction therein is confined to taking of cognizance of any offence or matter under the Act to which the jurisdiction of the Medical Tribunal extends i.e. the matters falling within the original and the appellate jurisdiction of the Medical Tribunal under the Act. Needless to observe here that conferring of jurisdiction under the Act does not control, curtail or restrict the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to entertain and decide a constitutional challenge qua vires of any provision of the Act, Rules or Regulations made thereunder. 10. The remedies provided under Sections 36 and 37 of the Act are meant to be efficacious in view of constitution of the Medical Tribunal. Such Tribunal constituted under the Medical Tribunal Act, 2020 consists of the Chairman who has been a Judge of the High Court appointed on nomination by the Chief Justice of Pakistan and other members half of whom are to be Judges of the High Court and remaining half to be technical members with suitable professional qualifications and experience in the medical fields.

17/04/2022

2022 CLC 675
Every Muslim is presumed to be of Sunni faith unless proved otherwise however none of these judgments would mention any provision of law or the reason upon which this presumption is drawn.
Intrigued by the above presumption and in order to see wherefrom this presumption is drawn, this Court has gone through judgments reported as Pathana v. Mst. Wasai and another (PLD 1965 S.C. 134), Mst. Sardar Bibi v. Muhammad Bakhsh and others (PLD 1954 Lahore 480), Shirin Bai v. Muhammad Ali and others (PLD 1970 Karachi 450), Hussain v. Mansoor Ali and others. (PLD 1977 Karachi 320), Muhammad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others, (1979 CLC 48), Zainul Hassan Mian and others v. Mst. Khuwand Naka and others (1998 MLD 1857), Mst. Fatima (deceased) through L.Rs. and another v. Lal Khan and 19 others (PLJ 2001 Lahore 91), Akbarally A. Adamji Peerbhoy and others v. Mahomedally Adamji Peerbhoy and others (A.I.R. 1932 Bombay 356) Moosa Seethi v. Mariyakutty (A.I.R. 1954 T.C. 432) (Vol. 41, C.N. 148) and Mt. Iqbal Begum v. Mt. Syed Begum (1933) 140 I.C. 829 .
In all the above judgments reference has been made that in the subcontinent it is presumed that a Muslim is of Sunni faith unless proved otherwise however none of them refer to any provision of law or a research upon which this presumption has been drawn. It was only in the judgment titled Pathana v. Mst. Wasai and another mentioned supra a passing reference is made to section 28 of the Muhammadan Law.

A bare perusal of section 28 of the Muhammadan Law would show that it does not refer to any presumption upon which this could be ascertained or held that in subcontinent it is presumed that every Muslim is of Sunni faith unless proved otherwise.
For a while if this is presumed that section 28 ibid can be interpreted in such a manner, it has to be determined that what is the status and binding effect of the provisions of Muhammadan Law. It has been held in Messrs Najaat Welfare Foundation through General Secretary v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 4 others (PLD 2021 Federal Shariat Court 1) that Muhammadan Law by D.F.Mullah is a reference book and is not a statue having binding force. In these circumstances, Muhammadan Law can only be consulted as a reference book and cannot be termed to be statutory law having binding effect, upon which any presumption can be drawn against a person.

Since it was alleged by the petitioners that the deceased was of Sunni faith and the impugned mutation has fraudulently been sanctioned in favour of respondent Nos.1 and 2 on the ground that deceased was of Shia faith, therefore under Article 119 of the Qanun-e-Shahadat Order 1984 being a particular fact, the initial onus to prove was on the petitioners, which in the case in hand, they have failed to discharge as no cogent and unequivocal evidence has been produced by then.

It is settled proposition of law that a party, who alleges a fact has to prove his case himself and cannot thrive on the lacunas left by the opposite party.

It shall not be out of place to mention here that when a person dies and his succession opens, his estate will be divided according to his faith and personal law and not according to the faith of the successors.

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16/04/2022

سوشل میڈیا پر سپریم کورٹ پاکستان اور چیف آف آرمی سٹاف کے خلاف نازیبا الفاظ استعمال کرنے والے ملزم کی ضمانت خارج
احتیاط کریں۔ آپ کی چند الفاظ آپکی آزادی کے لئے خطرہ بن سکتی ہے۔

16/04/2022

2000 Y L R 295


[Lahore]



Before Maulvi Anwarul Haq, J



ISMAIL ‑‑‑Applicant



versus



MEMBER. BOARD OF REVENUE,



PUNJAB, LAHORE and 13 others‑‑‑Respondents



Writ Petition No.7155 of 1999, decided on 21st October, 1999.



(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑



‑‑‑‑S.161‑‑‑West Pakistan Land Revenue Rules, 1968, R.6‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Case, remanding of‑‑‑Power of Appellate Court/Authority‑‑‑Case of petitioner was remanded by Commissioner‑‑‑Contention of petitioner was that such Authority had no powers of remanding the case in view of R.6‑A of West Pakistan Land Revenue Rules, .1968‑‑‑Validity‑‑‑Provision of R.6‑A of West Pakistan Land Revenue Rules, 1968, was derogatory to the powers of an Appellate Court/Authority authorised under S.161 of West Pakistan Land Revenue Act, 1967, to hear the appeals and as such the same was ultra vires of the provision of the Act‑‑‑Order of Commissioner did not suffer from any jurisdictional or legal defect‑‑‑Constitutional petition was dismissed with cost in circumstances.



PLD 1990 Punjab Statutes 28 and Ghulam Mustafa Khan v. Member, Board of Revenue and others 1996 MLD 954 ref.



(b) Interpretation of statutes‑‑‑



‑‑‑‑ Date of enforcement of statute‑‑‑Act, Rule or other instrument takes effect from the date of its publication in the official Gazette.





Ch. Muhammad Ashraf for Petitioner.



Khadim Nadim Malik, Addl. A.‑G. for Respondents Nos. 1 to 3.



Syed Muhammad Ali Gillani for Respondents Nos.4 to 11 and 13.



Muhammad Siddique Kamyana for Respondent No. 14.



Date of hearing: 21st October, 1999,



JUDGMENT


Mst. Zainab widow of Ahmad deceased held Horse Breeding Tenancy in Chak No.132/16‑L, Tehsil Mian Chanun, District Khanewal. She died issueless on 4‑7‑1973 and consequently the tenancy came to an end. Several persons were recommended for allotment of tenancy by the District Remount Officer (D.R.O.) and the Collector, Multan vide order, dated 17‑1‑1977 allotted the tenancy to one Lt.‑Co. (R) Syed Fazal Hussain Gillani. Against this order several persons including the petitioner filed appeals. These appeals were allowed by the Commissioner, Multan Division vide order, dated 9‑10‑1977 and the matter was remanded. The District Collector vide order, dated 23‑1‑1980 called for the rec6mmendations of the D.R.O. which was submitted on 13‑4‑1980. Again the Collector allotted the tenancy to the said Syed Fazal Hussain Gillani vide order, dated 29‑7‑1980. Again four appeals were filed. Except the case of Mst. Bibi the remaining three appeals were allowed and the Commissioner remanded the matter vide order, dated 22‑2‑1981. The District Collector again called for a report from the D.R.O. This time the tenancy was allotted to one Noor Muhammad. Five appeals were filed which were dismissed by the Commissioner on 15‑4‑1984. Aggrieved persons filed revision petitions which were disposed of by the Member (Colonies), Board , of Revenue, Punjab vide order, dated 6‑6‑1985 who declared the tenancy to be open and directed that fresh applications be invited. Again the process was started and the D.R.O. recommended four persons vide letter, dated 13‑5‑1986. The said persons were heard. While the proceedings were in progress' 19 more persons made applications to the District Collector, Khanewal. The matter was again referred back to D.R.O. who after hearing. 40 candidates recommended the names of three persons. This time the District Collector allotted the tenancy to the present petitioner vide order, dated 18‑2‑1988. The private respondents filed appeals before the Commissioner who allowed the same and remanded the matter back to District Collector for fresh decision after getting the report of the D.R.O., vide his order, dated 18‑2‑1989. This order was challenged by the petitioner in a revision which was heard by respondent No. l who dismissed the same vide order, dated 2‑6‑1994.



2. The present writ petition came up in limine hearing on 12‑11‑1995 when it was urged on behalf of the petitioner that the Commissioner had no lawful authority to remand the case in view of the provisions of section 163‑A of the Punjab Land Revenue Act, 1967 and Rule 6‑A of the W.P. Land Revenue Rules, 1968. The petition was admitted. Notices were issued to the respondents. On 15‑2‑1996 learned counsel for the respondents brought it to the notice of the Court that there is no such provision of law as such section 163‑A of the Punjab Land Revenue Act, 1967. Thereafter, the case was continuously adjourned because of the absence of the learned counsel for the petitioner. On 22‑4‑1996 the learned counsel for the petitioner admitted that section 163‑A does not form part of the Punjab Land Revenue Act, 1967 but it is a provision in the Balochistan Land Revenue Act.



3. Learned counsel for the petitioner contends that the order of the Commissioner is bad as it is violative of Rule 6‑A of the West Pakistan Land Revenue Rules, 1968. Learned Law Officer and the learned counsel appearing for the respondents argued that the order of the learned Commissioner is not contrary to any provision of law.



4. I have gone through the certified copies of the various orders appended with the writ petition. The right of appeal against the order of a Collector has been conferred by section 161 of the Punjab Land Revenue Act, 1967. Section 161(1)(b) of the Punjab Land Revenue Act, 1967 is to be read with section 162 of the said Act which prescribes the period of limitation for filing of appeals and. section 167 which provides that the matter of computation of limitation shall be governed by Limitation Act, 1908. Section 165 vests a Court hearing an appeal with powers to stay the proceedings or ex*****on. No prohibition in express words or even in implied terms is spelt out from section 161, which is a provision conferring a substantive right of appeal against the order of the Collector to the Commissioner, as to the powers of the Appellate Court to set aside the decree or order under appeal and to remand the case. The section itself also does not spell out that the power vested in the Appellate Authorities has to be exercised in accordance with rules. Rule 6‑A of the West Pakistan Land Revenue Rules, 1968, of course, prohibits the Commissioner of the Collector from remanding the case. In my opinion the said Rule 6‑A is derogatory of the powers of Appellate Court/Authority authorised under section 161 of the parent Act to hear the appeals and as such is ultra vires. I may note here that in the Province of Balochistan also the said power of remand has been taken away but the same has been so taken away by the Legislature by amending the Parent Act i.e., the Balochistan Land Revenue Act, 1967.



5. Notwithstanding the above legal position I find that Rule 6‑A was notified in the Gazette of Punjab on21‑4‑1990. (Reference be made to PLD 1990 Punjab Statutes 28). The impugned order was passed by the Commissioner on 18‑9‑1989. Even if it be assumed that the said Rule is intra vires, the order of the Commissioner cannot be said to be violative of the said Rule for the simple reason that the Rule was not in existence and had not taken effect when the order was passed. Learned counsel for the petitioner contends that the notification was drafted on 12‑9‑1989 adding the said Rule and the order of Commissioner was passed on a later date i.e., 18‑9‑1989, and the same is illegal being in violation of the said Rule. I am afraid the argument is frivolous as well as baseless. Under the provisions of the Federal as well as the Provincial General Clauses Acts, an Act, Rule or other instrument takes effect from the date of its publication and publication means publication in the official Gazette. There is, thus, no question of the impugned order, dated 18‑9‑1989 of the Commissioner being violative of the said Rule 6‑A.



6. The learned Law Officer and the learned counsel for the respondents have drawn my attention to the proceedings before respondent No. 1. I find that neither in the grounds of revision which are Annexure C to the writ petition nor during the course of hearing whereafter the order, dated 2‑6‑1994 (Annexure‑D) was passed, the said objection was raised. Mr. Muhammad Siddique Kamyana, Advocate has cited the case of Ghulam Mustafa Khan v. Member, Board of Revenue and others (1996 MLD 954) where this Court refused to entertain a similar objection upon finding that the same was not raised before the Board of Revenue in revision against the order of Commissioner.



7. Thus, from whatever angle seen the order of the learned Commissioner does not suffer from any jurisdictional or legal defect. In any event the respondent No. 1, who is authorised to make a remand even in the presence of Rule 6‑A has upheld the order of the learned Commissioner by observing:



"In my opinion the Commissioner has rightly remanded the case so that the merits of both the parties may be thrashed out fully."



8. In view of the above discussion I find that the present writ petition itself is frivolous and has been filed by the petitioner who is clinging to the land illegally to prolong the illegal possession. Consequently, I dismiss this writ petition imposing costs of Rs. 10,000 on the petitioner.



Q.M.H./M.A.K./1‑123/L



Petition dismissed.

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11/03/2020

14/05/2019

ان وکلاء کا ریکارڈ پنجاب بار کونسل سے گم ہو گیا ہے ان کو صاحبان کو پرسنلی بلایا گیا ہے

14/05/2019

سول جج کے لئے کتابیں