Oral Agreement

.         Oral agreement to sell

                   2016 SCMR 1925

                   2019 CLC Note 46

Oral agreement was to be pleaded in the suit with full details i.e. specific date, time and place of agreement between the parties and witnesses of the same as well as earnest money paid under the said agreement.

  Suit Of Contract on Basis of Oral Agreement/contract, decreed.*

    Sec.12 SRA, Art. 103 QSO 1984, Sec. 5, Contract Act 1872.

2019_YLR_223*

2016_YLR_100_Sindh*

*2014_SCMR_1217*

*2002_SCMR_326*

*2012_MLD_1873*

*2011_SCMR_1009*

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              2020 M L D 1230

                    [Peshawar]

(a) Transfer of Property Act (IV of 1882)-----Ss. 9, 53-A & 54---Oral agreement to sell---Transaction with Pardanasheen lady---Requirements--- Burden of proof---Procedure--- Oral agreement to sell---Limitation---Commencement of.

     Predecessor-in-interest of plaintiffs remained alive for twenty six years after execution of alleged oral agreement to sell but he never claimed the ownership of suit property nor approached the Court of law. Present suit had been filed after thirty three years from the alleged agreement to sell. Plaintiffs were not vigilant in asserting their right by filing the present suit. Nothing was on record that plaintiffs had performed any overt act to keep the agreement to sell alive. Alleged oral agreement to sell had expired in circumstances. Witnesses produced on behalf of plaintiffs had failed to state the exact date and time of alleged oral agreement to sell. Executant of alleged agreement to sell was Pardanasheen lady and her identity had not been established during evidence of plaintiffs. Burden of proof to establish oral sale was on the plaintiffs who had failed to discharge the same. No family member of executant of agreement to sell was present at the time of its execution. Every precaution should have been taken to ensure that the pardanashin person who was produced before the witnesses was actually the purported vendor. Plaintiffs had failed to establish the oral sale, payment of sale consideration and identity of parda observing lady. Vendee to prove sale deed on behalf of Pardanasheen was required to establish that lady had comprehended the terms and conditions of sale transaction. Plaintiffs should have proved that lady was accompanied by her close relative having no clash of interest and sale transaction was completed before witnesses and sale consideration was fixed and paid to her and she was aware of the piece of land being sold to vendee. Absence of duress, protest, lack of misunderstanding or want of comprehension would not itself be the proof of understanding of the executant. Evidence should have been brought on record that documents were read over and explained to the executant. Where writing for transfer of tangible immovable property was necessary then same should be made in writing and not orally. When transfer of tangible immovable property of valuing one hundred rupees and upward was made then it could be made only by a registered instrument. Where no document was available even then evidence should be produced to satisfy the Court that there existed a contract so that Court might ascertain with reasonable certainty as to what were its terms. Defendant for the protection of section 53-A of Transfer of Property Act, 1882 should be willing to perform the terms of contract as required. Where burden of proof had not been discharged then Section 53-A of Transfer of Property Act, 1882 would not apply in the matter. Oral agreement to sell was required to be documented in the revenue record through mutation within a reasonable time. Limitation to enforce oral agreement to sell would start from the date of refusal but in absence of any such refusal too it was duty of beneficiary to make efforts to safeguard his right. If no such efforts were made then after lapse of three years the beneficiary of oral sale would be barred by the law of limitation to file suit for specific performance. No date of refusal on the part of defendant to enforce alleged oral agreement had been mentioned in the plaint in the present case. Plaintiffs should have filed suit within limitation even if there was no refusal on the part of defendants. Neither mis-reading or non-reading of evidence nor any error in concurrent findings had been pointed out in the impugned judgments passed by the Courts below. Revision was dismissed in limine, in circumstances.

       Ainuddin and others v. Abdullah and another 2019 SCMR 880; Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR 2080; Mst. Nishata v. Muslim Khan alias Musali and others PLD 2011 Pesh. 23; Bakhtiar v. Nasrullah and 12 others 2015 CLC 385; Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165; Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 and Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 677 rel.

(b) Administration of justice---

----Law favours vigilant and not the indolent.

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: 2020 Y L R 2398

[Lahore (Multan Bench)]

Specific Relief Act (I of 1877)---

---S. 12---Suit for specific performance of agreement to sell---Oral agreement---Interested witness---Non-availability of independent advice to an infirm lady---Effect---Suit for specific performance of oral agreement to sell filed by petitioner was concurrently dismissed by the Trial Court and Appellate Court---Validity---Petitioner was required to specifically state in the plaint the time, date and place where the agreement was executed and the name of witnesses in whose presence the said transaction was agreed between the parties---Plaint did not reveal as to when and where the agreement was entered between the parties---First witness was the husband of petitioner while the other was the friend of her husband, therefore, both were interested witnesses---Petitioner had failed to establish as to how a huge amount of partial payment was paid by her to the deceased-lady (respondent) and where she had kept the said amount---Petitioner had failed to explain as to what was the need and what independent advice was available to the deceased lady for making such a transaction in favour of her sister and that too orally and in the absence of any independent witness--- Petitioner could not substantiate her claim for specific performance of the oral agreement and the judgments passed by courts below dismissing her suit concurrently were well founded and warranted no interference by High Court---Revision petition was dismissed.

            Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.

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: Oral agreement / Supreme Court Judgments

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2010  SCMR  988     SUPREME-COURT 

Side Appellant : RASOOL BAKHSH NAICH 

Side Opponent : Syed RASOOL BAKHSH SHAH 

Ss. 8 & 27(b)---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Two rival suits in field in respect of suit-land, one by prior vendee alleging written agreement to sell in his favour and delivery of its possession, and other by subsequent vendee alleging oral agreement to sell in his favour---Prior vendee in support of written agreement examined vendor, scribe and attesting witnesses thereof and produced Khasra Girdawri regarding his possession over suit-land---Validity---Vendor as witness had affirmed to have entered into written agreement to sell with prior vendee and received sale consideration---Subsequent vendee during cross-examination could not create any dent in credibility of vendor---Prior vendee had proved delivery of possession by producing Khasra Girdawri and examining witnesses---Prior vendee by producing such evidence had discharged initial cries to prove execution of agreement and delivery of possession indicating his lien over suit-land-Subsequent vendee had neither pleaded nor proved in affirmative lack of knowledge or notice of such prior written agreement nor had alleged same to be fake---Nothing on record to show that subsequent vendee had made any enquiry regarding such prior written agreement or lien over suit­-land---Factum of possession of prior vendee over suit-land was sufficient notice to subsequent vendee that there was a prior lien and charge thereon---Suit filed by prior vendee was decreed and that filed by subsequent vendee was dismissed in circumstances.

2009  SCMR  451     SUPREME-COURT 

Side Appellant : Mst. REHMU 

Side Opponent : Mst. AMINA BIBI 

S. 12---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of oral agreement to sell---Plaintiff had failed to produce trustworthy, cogent and independent evidence to prove payment of the earnest money and that she was willing and ready to perform her part of agreement---High Court, after legally appreciating the evidence on record and taking into consideration every aspect of the case, had rightly affirmed the findings of the first Appellate Court---Plaintiff could not point out any misreading or non-reading of evidence on record justifying interference by Supreme Court in the judgment---No legal infirmity having been found in the impugned judgments sufficient to reverse the concurrent findings arrived at by both the Appellate Courts, Supreme Court dismissed petition for leave to appeal.

2005  SCMR  766     SUPREME-COURT

Side Appellant : KHURRAM SHAFI 

Side Opponent : Mst. INAYAT BIBI 

--S. 550---Specific Relief Act (I of 1877), Ss.12 & 54---Custody of vehicle on Superdari---Police intercepted vehicle from petitioner---Suit filed by petitioner was dismissed, wherein he had prayed that vehicle be not taken from him---Petitioner sought Superdari of vehicle on the ground that he had purchased same through oral agreement from respondent owner---Magistrate granted Superdari of vehicle to petitioner, which order was upheld by Revisional Court, but was set aside by High Court in Constitutional petition---Validity---Civil Judge while dismissing suit observed that petitioner had not produced any agreement to sell to have been made between parties with regard to vehicle; and as question of title was in dispute, suit for permanent injunction was not maintainable, rather he should have filed suit for specific performance of agreement---Petitioner had not challenged such judgment before any higher forum, which had attained finality---Petitioner had not brought a single document worth consideration on record as to substantiate his claim---Impugned order did not suffer from any illegality or legal infirmity warranting interference---Supreme Court dismissed petition and refused leave to appeal in circumstances.

Laches & Inheritance

 

  Doctrine, Laches. 

          2020 M L D 1211

            [Lahore (Multan Bench)]

a) Inheritance----

-Laches, doctrine of---Applicability---Contention of plaintiffs was that their predecessor-in-interest had been deprived from inheritance ---Suit was decreed concurrently---Validity---Predecessor-in-interest of plaintiffs remained alive for more than twenty five years but she did not initiate any legal proceedings to seek her inherited estate---Law aids the vigilant and not the indolent---Doctrine of laches was applicable in the present case---Plaintiffs had lost enforcement of their right due to lapse of ninety three years and a number of mutations had been attested ever since---Limitation could be ignored when matter was with regard to inheritance---Party should have approached the Court and take recourse to legal remedies with due diligence---When suit had been filed by legal heirs of the right-holder after his/her death then law of limitation would apply---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Revision was allowed, in circumstances.

       Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi PLD 1990 SC 1; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Mst. Shehla Naz through Special Attorney v. Jawaid and 2 others 2010 CLC 1086 and Bashir Ahmad Khan and others v. Ghulam Sadar-ud-Din Khan and others 2012 CLC 699 ref.

       Aftab Iqbal Khan Khichi and another v. Messrs United Distributers Pakistan Ltd. Karachi 1999 SCMR 1326; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145; S.M. Afzal ul Rehman v. Federation of Pakistan and others 2005 SCMR 1322; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Luqman and others v. Gul Muhammad 1984 SCMR 63; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Shero v. Muhammad Ramzan and 2 others 2006 YLR 2632; Nasrullah Khan and 4 others v. Nazir Begum and others 2012 YLR 2613; Shah Jahan v. Mst. Sadu Bibi 2016; YLR Note 6; Bagh Ali v. Ahmad Yar and others 2016 CLC Note 76; Atta Muhammad through L.Rs. and others v. Muhammad Khan and others 2018 MLD 1524 and Kausar Ali and another v. Javed Anjum and 6 others 2018 CLC 1930 rel.

(b) Administration of justice---

   * Law aids the vigilant and not the indolent.

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                2014 SCMR 801 

challenge of Inheritance by sister after 50 years

Sister filing suit challenging said mutation after a laps of 50 years-- Limitation--Through inheritance brother became owner of 2/3rd of the property, while sister became 1/3rd of the property by the operation of law and not by any mutation. Mutation was meant to record legal entitlement of the brother and sister. If the mutation was erroneously made in favor of the brother (only) , such mutation would not create title of the brother (only), such mutation would not create title in favor of the brother in accordance with the law . Suit filed by the sister is not time barred.

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: Muhammad Shamim through Legal Heirs vs. Mst. Nisar Fatima through Legal Heirsand others 2010 SCMR 18, Noor Muhammad (decd.) through L.Rs vs. Jan Muhammad (deceased) through L.Rs etc PLJ 2015 SC 831

Registered document vs oral evidence

 

2004  SCMR  530    

 

Side Appellant : MUSHTAQ AHMAD 

Side Opponent : MUHAMMAD SAEED 

----S.12---Registration Act (XVI of 1908), S.48---Specific. performance of agreement to sell---Principle of---

Preference of registered document over oral agreement--- Applicability ---Possession of suit-land was handed over to plaintiff in execution of oral agreement of sale--Subsequently the owner of the suit-land executed registered sale-deed in favour of defendants on the basis of another agreement of sale in their favour---Suit filed by the plaintiff was dismissed by the Trial Court but Appellate Court allowed the appeal and decreed the suit in favour of the plaintiff---Judgment and decree passed by the Appellate Court were maintained by High Court in exercise of revisional jurisdiction---Plea raised by the defendants was that the agreement of sale in favour of the plaintiff was unregistered document which could , not be termed as agreement of sale, while the agreement in their favour was a registered document, therefore, the document in favour of the plaintiff could not be enforced---Validity---Appellate Court and High Court, after taking into consideration the terms of the document in favour of the plaintiff and the evidence produced by the parties, recorded a finding of fact that it was an agreement of sale, therefore, the same could be enforced as such to seek specific performance thereof ---Vendee under unregistered document or agreement was delivered possession, the principle that registered document would take preference over unregistered document would not be applicable in view of S.48 of Registration Act, 1908--Defendants, in their written statement had admitted that possession of the land had been delivered to the plaintiff under the agreement of sale, therefore, no benefit could be claimed under S.48 of Registration Act, 1908, on the ground that agreement in favour of the defendants was a registered document---Execution of sale-deed in favour of defendants by the owner, after execution of the agreement of sale in favour of the plaintiff, could not in any manner detract from the rights of the plaintiff under law as holder of prior agreement of sale vis-a-vis the saledeed specific performance thereof---Findings of fact recorded by the Appellate Court and affirmed by - the High Court had not been shown to be suffering from any legal infirmity such as misreading or non-reading of any material piece of evidence---Appeal was dismissed.

Non-Registration of FIR

 Watch Also

   

  Non-Registration of FIR 

Remedy.....

 1.Place complaint to the District Police Officer (DPO) or Capital City Police Officer. 

2-If grievance sustans, complain to the Deputy Inspector General (DIG) of police. 

3- Complaint in writing and by post may be sent to the DPO, CCPO, DIG. 

4- Complaint may be made to the District Public Safety and Police Complaints. 

5- A private complaint u/s.200 Cr.Pc. before the area Magistrate having jurisdiction.

6- Petition  u/s. 22 A & 22B Cr. Pc may be filed before Ex - officio justice of peace/ D&SJ, who may direction as per lex lata. 

7- In case non compliance of direction of JOP, Petition may be filed before JOP for compliance of previous order and proceedings u/ a. 155(c)  Police order 2002.

 It is better to file Complaint u/ s. 200 Cr. Pc rather to be registration of FIR by the police. 

Disputes as to Jurisdiction of Police Station

                    * Pursuant to receiving the first information germane to the commission of an offence, it is its responsibility to immediately act and investigate the case. 

If there is a dispute between two the police stations as to their territorial jurisdiction. The police shall  follow the following procedure:

A) Information  shall be entered in the Daily Diary prescribed for this purpose (25-5 of the Police Rules,1934).

B)  Zero FIR Concetp is also there, thst will be sent to the concerned  Police Station. 

C) The SHO recieving the information  of offence will stay on the spot and keep on investigating into the case. The case record in such a case shall remain with the SHO who reaches the spot earlier until the question of jurisdiction has been decided (25-5 of the Police Rules,1934).

D) One of the two police officers is relieved after the determination of area of jurisdiction by senior police officers.

E)The relieving officer shall record a report of all  done in a case diary and sign it, giving the date and hour of his relief.

F) Such case diary shall be handed over to the other police officer, who shall certify thereon that he acknowledges the case to have occurred within his station limits or to be one which he is empowered to investigate, as the case may be (25-6 of the Police Rules, 1934).

G). When a case is transferred from one police station to another, after determination of area ofjurisdiction, the offence registered in the original police station, zero FIR shall be cancelled by the Superintendent of Police and an FIR shall be submitted in the police station in the jurisdiction of which the case occurred (25-7 of the Police Rules. 

Declaratory Suit

 To Learn More.....Click here   

       2020 SCMR 202

       Section 42 Specific Relief Act, (I of 1877) ==== Suit for declaration-- Declaratory decree-- Through a suit filed under S. 42 of the Specific Relief Act, 1877 a declaration could be granted with regard to legal character or the right as to any property; however, no new right could be created an favour of plaintiff by grant of a declaratory decree.

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 2020 CLC 499 Push a ear 

     Section 42 Specific Relief Act (I of 1877) ==== Suit for declaration-- Agreement to sell-- Mere agreement to sell could neither create any title nor any right or interest in suit property-- Declaratory suit filed under S. 42 of Specific Relief Act, 1877 is not maintainable under the law on the strength of oral agreement to sell.

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GIFT. CASE LAWS

 

Case laws on Gift / Tamleek 

            2016 MLD 1535 Lahore

Ingredients---Mutation---Proof of---Procedure---Defendants being beneficiary of disputed gift mutation were bound to prove the transaction of tamleek which might have been settled at some prior point of time of attestation of the same---Donee did not plead any date, time, place and the names of witnesses to explain as to when and where and in whose presence alleged offer to gift out suit property had been made---Donee remained fail to prove the transaction of disputed gift in absence of such details in the written statement---Mutation per se was not a deed of title but it would indicate some previous oral transaction between the parties---Whenever any mutation was challenged then burden would lie on the beneficiary to prove the same as well as original transaction which he was required to fall back upon---Only one witness of mutation of tamleek was produced to prove its valid attestation---Said witness did not depose that donor had ever made any offer to gift out the suit property to the donee and he accepted the said offer in his presence---Transaction could not be declared to have been validly proved in absence of two basic ingredients of gift---Testimony of said witness was not helpful to the beneficiary---Disputed mutation was attested by practicing fraud misrepresentation---Attestation of disputed mutation by two real brothers had created doubt regarding its authenticity---Beneficiary of disputed mutation had failed to produce revenue officials who had entered and attested the same---Revenue officials were the best persons who could prove the valid attestation of tamleek mutation---Best evidence had been withheld by the beneficiaries without showing any justification and inference would be against them---Revenue Officer was bound to conduct the proceedings in a common assembly in the concerned revenue estate to attest the mutation but same was not conducted therein---Beneficiaries of gift had failed to prove ingredients of the same.

2014 MLD 1672 Peshawar

Parties were legal heirs of deceased owner of suit property but plaintiff assailed tamleek mutation attested in favour of defendant---Validity---Defence witness stated that he was marginal witness of tamleek mutation and had correctly thumb impressed the same---Defence witness also deposed that other marginal witness of mutation had also correctly thumb impressed the same and at the time of attestation of mutation in question, the owners were also present and had correctly signed the same---Plaintiff failed to establish her claim by way of producing cogent, confidence inspiring and conclusive evidence.

          2014 CLC 1659 Peshawar

Gift---Ingredients/essentials---Burden of proof Defendants being beneficiary of the tamleek mutation had to prove that property was legally transferred to them---Three ingredients namely offer, acceptance and delivery of possession were the litmus test to ascertain the validity of a tamleek or gift transaction---No evidence of delivery of possession was adduced---Mutation per se was not sufficient to prove the factum of gift unless actual transaction thereof was proved---Mutation was attested in Mauza other than the one where suit land was situated---Revenue Officer sanctioning the mutation had not been produced as witness to prove the genuineness of the transaction.

      2014 YLR 2053 Lahore

Gift/tamleek --Proof--- Ingredients--- Sanction of mutation---Procedure---Plaintiff assailed mutations of gift/tamleek s in favour of defendants on the basis of forgery and fraud---Trial Court decreed the suit in favour of the plaintiff and Lower Appellate Court dismissed the appeal of the defendants---Concurrent findings of facts---Validity---Every mutation entry was to be recorded in presence of the person whose right had been acquired and that if said person had been identified by two respectable persons; Signature/thumb impressions of identifying witnesses shall also be obtained by the revenue officer on register of mutation---If at the time of sanction of mutations, the parties had not appeared, that would shatter the entire case of defendants---To prove valid gift/ tamleek three ingredients viz. offer, acceptance and handing over of possession were sine qua non---Defendants in their written statements had not provided necessary details as to where and how the transactions of gift/tamleek had taken place; there was no detail about the offer of sale or payment of consideration nor was there any detail as to how donor had made an offer of gift to the donees/defendants and as to when donees had accepted that offer and how the physical possession was given to the donees---Defendants/beneficiaries failed to establish the transaction of sale and tamleek respectively---Beneficiaries had to prove the factum of tamleek in their favour especially in the circumstances where some of the legal heirs had been deprived from their lawful right of inheritance.

          PLD 2013 Lahore 498 

                      (J. Shujat Ali Khan)

Definition of “Tamleek” :  

Hon’able Court hold that the term tamleek has not been defined anywhere but according to the verdicts of Superior Courts the same is considered as one of the kind of gift and it is equated with the term ‘family settlement’.

According to BLD : ‘Family settlement’ means an agreement between members of a family settling the distribution of family property among them …… an arrangement / agreement between heirs of a deceased person by which they agree on distribution on management of estate without administration by court having jurisdiction of such administration proceedings.

Definition of “Gift/Hiba” : 

By D.F. Mulla :- (i)- Hiba/Gift means Transfer of property, made immediately, and without consideration, by one person to another , accepted by or on behalf of that other person.

(ii)- Hiba means transfer of right of property in substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid.

According to BLD :-   A voluntary transfer of property to another made gratuitously and without consideration.

Meaning of Gift hold by Hon’able Court : A voluntary transfer of something to another, without any consideration, irrespective of the fact as to whether the donor or donee has any relation with each other or not. 

Distinction of Tamleek and Gift :

In gift the donor can transfer property to anyone else, but in tamleek the condition precedent is the the same should be amongst the family members/legal heirs only.

PLD 2013 Lahore 333

6"tamleek "---Meanings---"tamleek " would mean assignment of ownership---"tamleek " being a kind of gift in favour of expected legal heir.

2013 CLC 499 Lahore    

(J. Shujat Ali Khan)

To prove valid gift/tamleek three ingredients viz offer, acceptance and handing over of possession were sine qua non but according to revenue record neither name of defendants had been incorporated in the record as owner nor they were in possession of suit-land---

Process of attestation of mutation was completed at residence of Tehsildar (Revenue Officer) concerned which was violation of S.42 of West Pakistan Land Revenue Act, 1967---

Entries in Revenue Record in the shape of mutations were not conclusive proof of ownership until and unless transaction on the basis whereof the same were attested was fully established from evidence.

Limitation---Effect of Plea of fraud--- When mutation challenged in suit, otherwise proved to be result of fraud and forgery, question of limitation cannot be pressed into service to put use as a shield. Relied on 1987 SCMR 1543

2012 CLC 1651 Lahore

Gift/tamleek through mutation---Proof---Beneficiary of tamleek transaction would be bound to prove first event of tamleek prior to attestation of its mutation---Mere attestation of such mutation would not be sufficient.

     2010 CLC 837 Lahore

Gift, cancellation of---Courts below considering the factum that mutation of tamleek was sanctioned in favour of the defendant when he was a minor, dismissed the suit filed by the plaintiff---Courts below also gave due weightage to the statement of Halqa Patwari and concluded that he was an independent witness---After scrutinizing the entire evidence on record, it was concluded that defendant had successfully proved the factum of appearance of the plaintiff before the revenue hierarchy for attestation of mutation of tamleek ---Courts below had further observed that there was valid offer and acceptance; and as the tamleek was made in favour of minor son, there was no need for transfer of possession.

EVM

ELECTRIC  VOTING  MACHINE (EVM) 

ISLAMABAD, April 4 (APP): The million-dollar question of whether Pakistan opts for electronic voting, or continues with traditional methods, hangs in balance for the time being, while work on an Electronic Voting Machine (EVM) continues at a rapid pace.

   Over the years the governments in the past have been reluctant to go for transparent voting systems, owing to obvious reasons, however, the government of Pakistan Tehreek-e-Insaaf, proved to be different, as it champions a cause, which traditional political systems despise.

 Prime Minister Imran Khan in November last year announced his government’s intention to introduce electronic voting to ensure free and fair general elections. In his address to the nation, he said all parties including the PTI, Pakistan Muslim League – Nawaz (PML-N) and Pakistan Peoples Party (PPP) had levelled allegations of the 2013 elections being rigged and said the allegation was repeated again in 2018.

 He vowed that his party would get approval from the parliament for electronic voting. He said the EVM, would not only enable millions of Pakistanis abroad to vote in elections but modern technology will make the election process transparent.

  “The EVM will counter the voter fraud claims made after losing the polls”, Imran Khan said.

Work on the EVM was initiated over a decade ago in the country but the equipment could not be used due to the reluctance of previous regimes. The National Institute of Electronics (NIE) upgraded the old equipment to make it compatible with modern communication systems. The NIE moved swiftly as the Minister for Science and Technology, Chaudhry Fawad Hussain was keen to see it up and running.

     Trials for the equipment are being done under practical conditions to ensure no repeat of the failure of the Results Transmission System (RTS), which was part of the Election Results Management system for the 2018 general elections.

The indigenous technology has been developed by the experts of NIE as per international standards by ensuring accuracy, reliability and security.

  Director-General NIE, Abdul Majeed Soomro, said the first version of EVM was developed in the year 2015 after the Election Commission of Pakistan (ECP) decided to use this technology for conducting elections and floated a tender for its production.

      The NIE participated in the tender along with international companies but the decision could not be made at that time. Since then, NIE had been working on this technology on its own by incorporating the latest features in it as per modern requirements.

      The Minister for Science and Technology, Chaudhry Fawad Hussain recently formed a committee to hold further consultations to improve this technology so as to use it for the next elections.

       Electronic Voting Machine made by the National Institute of ElectronicsElectronic Voting Machine made by the National Institute of ElectronicsThe EVM, which on a first glance looks like a very crude contraption, comprises of three main components (machines) including a Ballot box that can print the ballot paper and keep its record secretly, a Vote Casting Unit that has electronic symbols and a Control Unit which will be used by ECP to operate the equipment and get the results.

   Since the technology had been developed keeping in view the importance of data security and accuracy of election results, the results gathered through EVM can be double-checked and verified through ballot paper printed within the machine to eliminate chances of rigging.

  The NIE plans to improve on the design, with the full backing of Chaudhry Fawad Hussain, who since becoming the Minister has been actively pursuing various products of the institute and helping out in commercialization, while maintaining coordination with other departments.

   Ballot Box Machine that prints out a receipt and also maintains record

Ballot Box Machine that prints out a receipt and also maintains record

Vote Casting Unit has symbols of all contesting parties - Voters can press a button of their choice to cast the vote

Vote Casting Unit has symbols of all contesting parties – Voters can press a button of their choice to cast the vote

Control Unit of EVM

Control Unit of EVM

Former Secretary of ECP, Kanwar Muhammad Dilshad said the project of EVM was under-consideration in ECP for the last 15 years but could not be implemented due to the unwillingness of the previous governments.

Since he was serving in the ECP, a lot of work on EVM was done but could not be carried forward due to the lack of seriousness of the then government.  “EVM is the best solution to curb the electoral fraud and irregularities,” he believes.

   He said biometric logging of voters was very essential to verify their thumb impressions, and they can then move to the polling booth to cast vote by pressing a button on the electronic symbol,  which he said would eliminate the chance of rigging and tempering of ballot paper and Form-45.

Kanwar Dilshad was of the view that ECP will agree on using this machine only after the legislation and constitutional amendment which can be initiated by any political party.

      Meanwhile, Pakistan Tehreek-e-Insaf leader, Kanwal Shauzab said India is the largest country in terms of population as compared to Pakistan and if India can adopt EVM technology for elections why not Pakistan?

This technology is being used across the world including Europe and the United States where the elections are mostly undisputed. This is why their democracy has been flourishing.

   She said Pakistan should adopt this technology to ensure the accuracy of election results through reduced human interference and to avoid any dispute.

      Voting machines have been used since 1910 in the United States of America, where mechanical lever-operated machines, were used to select the candidate of choice. However, these have given way to newer touch screen machines, used in some of the States in the 2020 US election.

 While the NIE is testing its machine, the Election Commission of Pakistan also experimented with another system for e-voting. Prime Minister Imran Khan was given a demonstration of an upgraded model of the electronic voting machine prepared by the Research and Development department of the Comsats University and the National Institute of Electronics on wednesday.

  Prime Minister Imran Khan said introduction of electronic voting machine was critical for ensuring a transparent, safe and impartial voting process in the country and was imperative for the national and democratic interests of the country.

Whatever final shape these machines take in the days ahead, the future of electronic voting seems to be imminent and would ensure a free and fair election. The use of such machines in the future will go a long way in not only strengthening democracy but also put an end to the bickering, and allegations of rigging that not only mars the entire process but also undermines national development

Bail and Pandemic

2021 P Cr. L J 513

Criminal Procedure Code (V of 1898)---

---S. 497---Bail, grant of--

-Pandemic situation---Safety concerns of prisoners---Accused persons were confined in jail and there was extraordinary situation arisen due to COVID-19---Effect---Policy was framed by Federal Government and there were intolerable living conditions in over-crowed Central Prison, (Rawalpindi)---There was gravity of risk posed by Novel COVID-19, to safety concerns of prisons and their right to life---High Court directed Chief Commissioner and Inspector General of Police of Capital Territory to constitute a joint committee to scrutinize each case and release in each would be subject to satisfaction of that Committee---High Court admitted all those accused persons to bail who were alleged to have been involved in offences falling under non-prohibitory clause of S. 497, Cr.P.C.---Petition allowed accordingly.

Roznamcha Police

      

              PL D 2021 Lahore 105

(a) Police Rules, 1934---

----R. 22.4 (as amended)---Roznamcha waqiati---Maintenance of hard copy---Scope---Wisdom underlying the maintaining of manual roznamcha is to rule out the possibility of any fabrication which can easily be incorporated in the soft copy, hence, in all eventualities soft copy can never be a substitute of manual register maintained in terms of previous practice in vogue---Careful perusal of the amendment made in R. 22.4 divulges that maintaining of manual roznamcha has not been prohibited rather it delineates that in addition to hard copy, soft copy (electronic copy) of the registers shall be prepared---High Court issued direction to Inspector General of police to immediately issue directions to the police hierarchy throughout the Province to keep maintaining manual roznamcha waqiati as per previous practice---Electronic copy of the same as introduced through amendment would continue simultaneously.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of narcotics---Bail, grant of---Scope---Accused was alleged to have been found in possession of narcotics---Contention of accused was that two different FIRs were registered at the same police station within a span of ten minutes---First FIR was against her husband with regard to recovery of narcotic substance in front of his house while the other FIR was registered against the accused narrating the story that the charas was recovered from her and venue of recovery was mentioned as backside of the same house---Possibility of maneuvering false case implicating the accused in the case at the hands of complainant/local police could not be ruled out---Accused was a woman folk who was stated to be previous non-convict and behind the bars since the date of her arrest---Investigation being complete, person of the accused was no more required for further investigation---Sufficient grounds existed to

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FIR

 Importance of FIR. 

1.It sets the process of criminal justice in motion.

2.The police starts investigation thereafter in Cognizable cases u/s. 155 Cr.Pc

3.Investigation in non- cognizable case ,after permission of the area magistrate u/s.156Cr.Pc.

Relevant Fact.21, 22, 23, 25, 49, 50 of Qanoon-e-Shahadat Order 1984.

* Who can lodge an FIR?

1.Anyone having knowledge or information germane to the commission of a cognizable offence. 

2. The victim of the crime may be informer and lodge FIR.

3. A police officer  having knowledge or information of a cognizable offence can file an FIR. 

3 . Any person seen the offence being committed.

Investigation is dispensed, when:

1. The case is not serious in nature;

2. The police feel that there is not enough ground to investigate;

3. The police resources are already busy in investigating more serious offences.

However,

          * The police must record the reasons for not conducting an investigation .   

                     * It must be reported to the Magistrate u/s.157 CR.Pc,1898).

Procedure for lodging an FIR. 

1.S.154 CR. Pc The procedure of filing  FIR. 

2.Information of commission of cognizable offence may be oral or written. 

3.The police must write it down.

4. The police is bound to read over to the informant.

5. The informant will sign it verifying the information given by you. 

6. People who cannot read or write must put their left thumb impression thereon. 

7.Always ask for a copy of the FIR, if the police do not give it to you.

8. It is your right to get a copy of FIR free of cost.

     NEVER:-

1. File a false complaint or give wrong information to the police. 

2.You can be prosecuted   for giving false information .(Section 182 of the PPC,1860).

3. Exaggerate or distort facts.

4.Make vague  statements.

5. Refuse to sign your statement of FIR ,you can be prosecuted under section 180.PPC 1860.

6.  Lodge a false charge of offence with intent to injure a person you can be prosecuted under section 211 of Pakistan Penal Code, 1860.

Watch also:-

Zero FIR

https://youtu.be/EK_Z-Pr3ci-

Investigation.. 

https://youtu.be/kBpeQp4Uw2w

Cheque Dishonored

    Cheque Dishonored 

                   Section 489-F .PPC. 

           Essential ingredients:-

 (i) the  cheque was  duly  issued,  

(ii) it  was  issued  with  dishonest                     intention.  

(iii)  it  was  issued  towards  repayment  of :-

           √ a  loan  or  

          √ fulfilment of  an  obligation,  and  

(iv)  it  was  dishonoured  on  presentation.    

          •Absence  of  even  one  of  these  elements  would  take  the  case  out  of the  ambit  of Section  489-F PPC.

Ref:-2020 YLR 2064

Part Performance of Contract

 

       

          Part Performance of Contract.

                        Law:- S. 13 SRA, 1877.

   ** Notwithstanding section 56 of the Contract Act,

 1.The subject of contract has partially ceased to exist .

 2- Whole contract is impossible of performance. 

  3.The whole subject must be existing at its date, 

4. The incapable of performance portion Ceased to exist at the time of the performance. 

Illustrations 

(a) A contracts to sell a house to B for a lakh of taka. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money. 

(b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B's life. The day after the contract has been made, B is thrown 

from his horse and killed. B's representative may be compelled to pay the purchase-money.

 (a) A contracts to sell a house to B for a lakh of taka. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money. 

(b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B's life. The day after the contract has been made, B is thrown from his horse and killed. B's representative may be compelled to pay the purchase-money. 

Price Control Act

               PRICE CONTROL ACT. 

 

       THE PUNJAB PREVENTION OF                        HOARDING ACT 2020

                         (Act XV of 2020)

C O N T E N T S

SECTIONS            HEADINGS                                                                                 

        1.      Short title, extent and commencement.

           2.      Definitions.

           3.      Offence of hoarding.

           4.      Power to search for and seizure of article.

           5.      Power to auction seized articles.

           6.      Cognizance of offence and arrest without warrant.

           7.      Offences by corporations etc.

           8.      Power to try offences summarily.

          9.      Appeal.

         10.    Reward for informers.

           11.    Information and declarations.

          12.    Offences in respect of false reporting and failure to disclose information.

           13.    Protection of action taken under the Act.

           14.    Action in aid of an officer.

            15.    Power to make rules.

            16.    Act to override other laws.

           17.    Power to amend Schedule.

           18.    Repeal.

                    SCHEDULE

   THE PUNJAB PREVENTION OF                                HOARDING ACT 2020

                    ACT XV OF 2020

                   11th August 2020

An Act to provide for the prevention of hoarding in respect of certain articles.

    It is expedient to provide for the prevention of hoarding in respect of scheduled articles in an emergent situation resulting from the outbreak of the Corona virus pandemic (COVID-19) and for matters connected therewith and ancillary thereto.Events of hoarding contribute to adversities, in geometric progression, to the people at large, especially in circumstances of partial or complete lock-down.

   Be it enacted by Provincial Assembly of the Punjab as follows:

1.         Short title, extent and commencement.– (1) This Act may be cited as the Punjab Prevention of Hoarding Act 2020.

(2)       It extends to whole of the Punjab.

(3)       It shall come into force at once.

2.         Definitions.– In this Act:

(a)                “article” means any of the articles specified in the Schedule to this Act;

(b)               “Code” means the Code of Criminal Procedure, 1898 (V of 1898);

(c)                "dealer" means any person, trader, partnership firm, whether registered or unregistered, an association or body of persons or individuals, or a company, or their agents carrying on the business of purchasing, selling or stocking of any article and includes a manufacturer, producer, packager, importer, exporter, wholesaler or retailer of such article;

(d)               “Government” means Government of the Punjab;

(e)                “hoard” or “hoarding”:

(i)         means stocking or storing anything in excess of the maximum quantity of articles allowed to be held in stock or storage, in the manner as may be prescribed; or

(ii)        where no maximum quantity of an article is prescribed under sub-clause (i), “hoard” or “hoarding” shall mean stocking or accumulation of articles without offering such articles for sale, despite there being a demand by consumers;

(f)                “officer” means a Deputy Commissioner as defined under the Punjab Civil Administration Act 2017 (III of 2017) or such other officer as may be authorized by a Deputy Commissioner in this behalf; and

(g)               “prescribed” means prescribed by rules made under this Act.

3.         Offence of hoarding.– (1) Any dealer who is found to hoard any article shall be guilty of an offence punishable with simple imprisonment up to three years and fine equivalent to fifty percent of the value of the articles involved in the case.

(2)        The value of articles for the purposes of subsection (1) shall be determined in the manner as may be prescribed.

4.         Power to search for and seizure of article.– (1) When an officer has reasonable grounds to suspect, either upon information from anyone or on his own, that there has been a contravention of any of the provisions of this Act, he may, after recording in writing the grounds of his suspicion, enter and search, without any warrant, any place where a dealer keeps, or is for the time being keeping, any article, accounts, registers or any other related items or things.

(2)        Upon entry in and search of a premises under subsection (1), if articles are found at such premises in contravention of any of the provisions of this Act, the officer shall immediately seize the same and prepare a detailed report of the articles and other relevant material found during the search.

(3)        The provisions of the Code shall not be applicable on search and seizure under this Act.

5.         Power to auction seized articles.– (1) Notwithstanding anything contained in any other law for the time being in force and in addition to the prosecution under this Act, the officer may sell the articles seized under section 4, by auction in the manner as may be prescribed. 

(2)        The proceeds collected under subsection (1) shall be deposited in a profit bearing bank account in the National Bank of Pakistan, and if:

(a)        the accused person whose articles are auctioned is acquitted of an offence under section 3, the deposited amount along with the profit shall be released to the said accused; or

(b)        the accused person whose articles are auctioned is convicted of an offence under section 3, the deposited amount along with the profit shall be released into the Government exchequer.

6.         Cognizance of offence and arrest without warrant.– (1) Notwithstanding anything contained in the Code, all offences punishable under this Act shall be cognizable and non-bailable.(

2)        The Special Magistrate under section 8 shall take cognizance of an offence under this Act, upon written information by the officer.(

3)        An officer may arrest any person without warrant against whom there is credible information that he has committed an offence under this Act.

7.         Offences by corporations etc.– If an offence under this Act is committed by a company or body corporate or a partnership firm or other association or body of persons or individuals, every director, partner, manager, secretary, member or other officer, the principal, primary or beneficial owner or agents thereof shall, unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention and shall be liable to punishment under this Act.

8.         Power to try offences summarily.– (1) Notwithstanding anything contained in section 260 of the Code, offences punishable under this Act shall be tried by a Special Magistrate appointed under section 14A of the Code in a summary manner as provided in sections 262 to 265 of the Code:P

Provided that subsection (2) of section 262 of the Code shall not apply to the trials of offences under subsection (1).

(2)        The trial under this Act shall be concluded within thirty days.

9.         Appeal.– (1) A person aggrieved by an order of conviction and sentence under this Act may file an appeal before a District and Sessions Judge of the concerned District within thirty days of the said order.

(2)        An appeal under subsection (1) shall be disposed of within thirty days.

10.       Reward for informers.– Any person who provides an information to an officer with regard to any act of hoarding, which results in a conviction and release of funds into the Government exchequer, shall be entitled to an award equivalent to ten percent of the amount released to the Government exchequer in such manner as may be prescribed.

11.       Information and declarations.– (1) Every dealer shall provide to the concerned officer, such information regarding production, import, export, purchase, stock, sale or distribution of any of the articles as the officer may, by an order in writing, require.

(2)        The officer may direct the owner or manufacturer of articles or owner and management of godowns or storage places or their agents to declare stocks of any particular item, owned or managed by them at their premises, at any point in time or at such periodical intervals as he may deem fit.

(3)        The declaration to be made under subsection (2), shall include the quantity of stock, its value, date of purchase, copies of procurement invoices in any given time frame, along with details of any sale or sale agreements.

(4)        The officer may verify the stock as well as the books or documents in respect of the stock, purchase or sale, at any time, in respect of articles.

(5)        While carrying out the verification of stock in terms of subsection (4) or upon receipt of any information from whatever source, the officer may require the dealer, owner or manager of a godown or storage place to furnish the details of persons, shops, firms or companies, etc. from whom the purchases have been made and to whom the sales have been or are to be made.

12.       Offences in respect of false reporting and failure to disclose information.– Any dealer or owner of a godown or a storage place or their management or agent, who fails to provide information or gives fake or false information with regard to any of the items or details under section 11, or provides information of contracts, agreements or arrangements found to be fake or false, or is otherwise found to be involved in speculative dealings or market manipulation, creating artificial, false or misleading appearance with respect to the price of, or market for, the articles, shall be guilty of an offence punishable with simple imprisonment up to three years and fine up to rupees one million. 

13.       Protection of action taken under the Act.– (1) No suit, prosecution or other legal proceedings shall lie against any person for anything done in good faith under this Act.

(2)        Except as provided in this Act, no suit or other legal proceedings shall lie to challenge any proceedings under this Act on any ground.

14.       Action in aid of an officer.– In giving effect to the provisions of this Act, an officer, where he deems fit, may seek the aid of law enforcement agencies.

15.       Power to make rules.– The Government may, by notification in the official Gazette, make rules to carry out the purpose of this Act.

16.       Act to override other laws.– The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.

17.       Power to amend Schedule.– The Government may, by notification in official Gazette, amend the Schedule so as to add or omit from it any entry.

18.       Repeal. The Punjab Prevention of Hoarding Ordinance 2020 (VI of 2020) is hereby repealed.

          SCHEDULE

                      (See section 2)

1.               Tea

2.               White sugar

3.               Milk

4.               Powdered Milk

5.               Milk food for infants

6.               Edible Oils, hydrogenated or otherwise

7.               Aerated water, fruit juices and squashes

8.               Salt

9.               Potatoes

10.           Onion

11.           Pulses all sorts

12.           Fish all sorts

13.           Beef

14.           Mutton

15.           Eggs

16.           Gur

17.           Spices and vegetable

18.           Red Chilies

19.           Drugs and Medicines

20.           Kerosene Oil

21.           Matches

22.           Coal

23.           Chemical Fertilizers all sorts

24.           Poultry Food

25.           Cement

26.           Phutti (seed cotton)

27.           Cotton (Lint)

28.           Cotton Seed all sorts

29.           Wool, shoddy or raw

30.           Caustic Soda

31.           Soda Ash

32.           Paddy

33.           Pesticides.

34.           Meat on Hoof

35.           Wheat Flour all sorts

36.           Surgical Gloves

37.           Face Masks

38.           N95 Masks

39.           Sanitizers

40.           Surface Cleaning Products

41.           Isopropyl Alcohol.

1.This Act was passed by the Punjab Assembly on 15 July 2020; assented to by the Governor of the Punjab on 28 July 2020; and was published in the Punjab Gazette (Extraordinary), dated 11 August 2020; pages 561-564.

Appointment of Judges

 Appointment of Judges

The appointment of judges has remained a point of contention amongst the bar councils and judiciary for over a decade

---

ISLAMABAD:

Despite involvement of all relevant stakeholders, the incumbent process of superior court judges appointments have remained under question for the last one decade. The new procedure of judges appointments were introduced through 18th constitutional amendment wherein Article 175 A of constitution was inserted in 2010. Two constitutional bodies namely Judicial Commission of Pakistan (JCP) and Parliamentary Committee on Judges Appointment were formed.

The Chief Justice of Pakistan (CJP) is chairman of JCP. Other four senior Supreme Court judges are also members of the commission. A retired Supreme Court Judge, Attorney General for Pakistan (AGP), Federal Law Minister are representatives of the Pakistan Bar Council and are also the members of the commission.

In case of appointments or confirmation of high courts judges, respective high court chief justice, senior puisne judge, respective provincial law minister, provincial bar council representative are also included as members of the commission.

The CJP, in his capacity as chairman of JCP, summons the meeting of commission to consider appointment or elevation and confirmation of any judge. The Parliament Committee on Judges Appointment comprises eight members wherein four belong to the National Assembly and four are senators. There is also equal representation of government as well as opposition in the Parliamentary Committee.

Soon after the passage of the 18th constitutional amendment, the superior bars challenged the new procedure regarding the appointment of judges in the Supreme Court. The superior bars led by Hamid Khan Group (a professional lawyers group) contended that the new process regarding judges appointments is against the independence of judiciary.

In October 2010, a 17-judge full court led by former CJP Iftikhar Muhammad Chaudhry referred the matter to the parliament with certain proposals in the procedure of judges appointment. The full court in its short order had proposed that instead of two most senior Judges of the Supreme Court being part of the Judicial Commission, the number should be increased to four most senior judges. Likewise the court noted that when a recommendation has been made by the Judicial Commission for the appointment of a candidate as a judge, and such recommendation is not agreed to or agreeable by the Committee of the Parliamentarians as per the majority of three fourths of its members, the Committee shall give very sound reasons and shall refer the matter back to the Judicial Commission for reconsideration. The Judicial Commission, upon considering the reasons if again reiterates the recommendation, it shall be final and the president shall make the appointment accordingly. The short order stated that the proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained.

However, the parliament agreed to include the Supreme Court proposals in the procedure through the 19th constitutional amendment and thus, the superior judiciary started the appointment of judges through this new procedure.

During former CJP Chaudhry’s tenure, executive and superior bars raised serious questions over the judges appointment through this new process. Superior judiciary itself framed JCP rules 2010 wherein CJP was given unfattered discretionary powers regarding appointment of judges. Similarly, senior lawyers contended that the Supreme Court in Muneer Bhatti case had made the Parliamentary Committee on Judges Appointment ineffective.

Despite giving dissenting opinions by law minister, AGP, bars representatives, majority members of JCP - who belonged to the judiciary - approved nominations for judges during ex CJP Iftikhar’s tenure.

Likewise, there is an allegation that during the tenure of ex CJP Iftikhar, the competency factor was overlooked and judges were appointed on the basis of favouritism and nepotism. Likewise, those who played an active role during the lawyers movement, were given a preference in the appointment process. There is also the perception that those lawyers who were at the forefront during the movement were also then able to choose to appoint as their juniors and chamber fellows.

On the other hand, superior judiciary had refused to reconsider the names of former judges who were ousted through the July 31, 2009 judgment. Though very competent judges were removed through that verdict wherein November 3, 2007 emergency and Provisional Constitutional Order were declared as unconstitutional.

One section of lawyers assert that if there is an issue of competency in the superior courts judges, then ex CJP Iftikhar Muhammad Chaudhry is responsible for that. However, many lawyers believe that during the former CJP’s tenure, the integrity of the nominees was prioritised in order to avoid any scenario where undue pressure from the military establishment to manipulate judicial proceedings in high profile cases may occur.

When opinions of the law minister, AGP and bars representatives were not given weightage in the appointment process, they announced a boycott of the JCP meetings. They insisted that the JCP rules 2010 should be amended to end discretionary powers of CJP in the process of the judges appointment. Their boycott was continued through to the end of the Pakistan Peoples Party government tenure.

The bars also remained critical of the appointment of judges during tenure of former CJPs Nasir ul Mulk, Anwar Zaheer Jamali and Asif Saeed Khosa. Special committees to consider proposed amendments within the JCP rules 2010 were also formed by former CJs but they yielded no results.

Ex Pakistan Bar Council Vice Chairman Abid Saqi, whose views on the matter have remained consisted throughout, also recently stated that the JCP should not become a judges’ consortium.

In September last year, Pakistan Bar Council organised an all political parties conference to discuss the issues regarding the appointment of superior courts judges. All major political parties leadership except Pakistan Tehreek-e-Insaf endorsed the superior bars concerns regarding appointment of judges through the present procedure.

Every stakeholder should play an honest role in ensuring transparency in judges appointment. The demands from the different bar associations that there should be meaningful consultations with their representatives before initiating names for the appointment of judges is legitimate. Firstly, superior bars should review their role in the process. Instead of recommending nominees on merit, the representatives of bars always prefer to flout names on the basis of nepotism. Whenever their recommended persons are accomodated during the appointment process, then they do not question the judges appointment process. This monumental flaw in the selection process needs to be rectified urgently in order to improve the function of judiciary proceedings in the country.

Similarly, there is also a debate going on as to whether the Supreme Court judges should hold informal meetings with respective high court chief justice before initiation of names in the JCP. One opinion is that there is no harm in the informal consultation between respective high court CJ and SC judges for finalising nominees for high court judges. However, top judges should recommend names to the respective high court chief justice on merit rather than on favouritism or nepotism. Likewise, there is need to amend the JCP rules to allow every member of the commission to propose names to high court CJ for consideration.

On the other hand, one section of lawyers is strongly objecting the practice of informal consultation for finalising the names. They say that it is the sole perogative of high court CJ and senior puisne judge to finalise the names for high court judges. Recently, ex LHC judge Ibaad ur Rehman Lodhi, in his speech, also questioned the role of SC judges in the selection of names for judges.

In this regard, the chief justice respective high court should initiate names after considering every aspect. He should avoid to propose names on the basis of his association or cast of any lawyer. In view of JCP, CJP in his capacity as chairman is empowered to form sub commitees comprising three to four JCP members to reconsider names proposed by high court CJ in the commission. The sub committee should submit its fundings during the commission meeting.

With the passage of times, the Parliamentary Committee on Judges Appointment has started to play an active role in judges appointments. After the Muneer Bhatti case judgment in 2012, the commitee members were disappointed as the court had minimised their role in the appointment process. Even the commitee decisions were overturned by the high courts through judicial orders.

Several proposals also came under consideration as to how the committee's powers could be secured. Moreover, the commitee members even staged protests and decided not to hold meetings to consider JCP members.

It is learnt that couple of years ago, the superior judiciary decided that the JCP will not reconsider the names, which would not be approved by the commitee. Same is being witnessed, when the commission did not reconsider one nominee for the judge of Peshawar High Court after rejection of his name by the Parliamentary Committee on Judges Appointment.

Similarly, in November 2019, the committee amended its rules wherein it was stated that interviews of nominees should be conducted before their approval.

Ex PBC Vice Chairman Abid Saqi said ‘politically opinionated’ lawyers should be considered for the appointment of superior courts’ judges. He contended that there is no neutral judge.

He urged the parliamentary committee to prepare a questionnaire to gauge the ‘intellectual commitment’ of the nominee with the constitution, on which he will take oath as a new judge, adding that the same practice is happening all over the world during the process of the judges’ appointments.

He said ‘democratically sensitive’ judges should be appointed in the superior courts. Senior lawyers also urged the committee to ask nominees during interviews how much they are concerned about democratic institutions. Lawyer Asad Rahim Khan said, "We must remember that our judiciary self regulates and appoints judges owing to a history of executive abuse, when judges were whimsically removed by military rulers, and just as whimsically appointed by civilian premiers purely on basis of political affiliation." According to him, there is no harm in our parliamentarians playing a more proactive role in scrutinising judicial appointments, as long as it is in the light of our current constitutional arrangement. “Judicial candidates being interviewed by the parliamentary committee members that may lack the requisite knowledge of the law, judicial procedure, or recent precedent would not be a step in the right direction," he said.

Appointment process improved during incumbent CJP tenure

During his tenure, CJP Gulzar, in his capacity as Chairman of the Judicial Commission of Pakistan (JCP), allowed meetings to review judges appointments to be much more transparent. His approach in this regard drew much appreciation from the lawyers as well. Even members of the commission confirmed that every JCP member is being allowed to express his opinion during the meeting for the last couple of years. “You can't imagine how JCP members deliberate on each name during the meeting,” one member of the commission revealed.

He believes that credit goes to incumbent CJP who provided friendly environment during the meeting. In the past, there was a practice that JCP members, who belonged to judiciary, had already taken decision before the start of the commission meeting. However, now every aspect is being discussed during the commission meeting.

Last year, the JCP decided not to entertain unsigned agencies’ reports in the process of appointment and confirmation of the superior court judges. The commission also resolved that it would not consider the agencies’ reports that lack supportive material to substantiate their findings. However, it is resolved that the government representatives – the AGP and the law minister – may summon agencies’ reports for their own consideration but would not entertain them until they are duly signed by concerned officials and supportive material to substantiate the claims attached with them.

In view of that decision, the AGP and the law minister are not barred from summoning unsigned agencies’ reports and they may form an opinion on their basis. Earlier, the AGP used to write to different agencies summoning their reports regarding nominees and the same were placed before the JCP. Now, if the reports are unsigned, they will not be placed before the commission.

Superior bars appreciate the JCP decision which will minimise the role of security establishment in the judges appointment process. They believed that it was a significant development after Justice Qazi Faez Isa’s case wherein the SC judge and superior bars accused agencies of conducting surveillance of judges.

It is being witnessed that Justice Qazi Faez Isa being member of the JCP is openly giving dissenting opinions during the meeting. His input in the appointment process is being appreciated by the bars representatives.

The last of couple of years, debate has also been ongoing on the elevation of judges to the Supreme Court. One section of lawyers want that judges should be elevated to the apex court on the basis of seniority. Last four SC judges were elevated against the principle of seniority. Even their appointment as Supreme Court judges were challenged by late ex PHC CJ Waqar Ahmad Seth. His petition is still pending in the apex court. On the other hand, a big section of lawyers believes that seniority should not be criteria in the elevation of judges to the supreme court. Integrity and competency should also be considered for elevation. They assert that it is the best legal minds of the country that should perform in the top court of country.

Likewise, it is matter of concern that female lawyers are not being considered for the appointment of superior courts judges. No female judge has so far elevated to the Supreme Court. Similarly, no lawyer from a minority community is being considered for the appointment. However, it is expected that the present CJP, as chairman of the JCP, will consider these aspects in the appointment of new judges.