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 FORTNIGHTLY CASE LAW BULLETIN
(15-04-2021 t0 30-04-2021)

A Summary of Latest Judgments Delivered by the Constitutional Courts of Local

and Foreign Jurisdictions on Crucial Legal Issues
Prepared & Published by the Research Centre Lahore High Court

JUDGMENTS OF INTEREST

No Area of Law Subject Court Page

Civil Consequences of failure to implead

1. Procedure legal heirs Lahore High 1
Code
Court
Principles of force majeure and the
2 Contract Act doctrine of frustration 1

Stop-time rule about a permanent

Supreme Court
3. CIVIL Immigration resident not seeking admission to 2
of U.S
the U.S.
Determination of
Lahore High
4. LDA Rules Commercialization fee under LDA 3
Court
rules
Vires of Food Safety officer’s power
Punjab Food Supreme Court
5. to seal any premises under the 4
Authority Act of Pakistan
PFA, 2011
Ingress into a building without
6. search warrants under CNSA 5
Lahore High
Cr.P.C
Considerations for post arrest bail Court
7. 5

Release of vehicle seized for

8. CRIMINAL Customs carrying contraband Sindh High Court 6

Appreciation of evidence based on

9. extra-judicial confession 6
Lahore High
Q.S.O Examination in chief without cross Court
10 examination 8

Regular inquiry, when there is Supreme Court 9

11. admitted absence of Pakistan
Criterion to determine back Sindh High Court 9
SERVICE benefits
12.
 Banking Pre-determination of wilful 10
13. default in financial matters by the
appellate court
Banking court’s power to sell un- 11
14. mortgaged property in execution Lahore high
Court
Consumer Consumer Court lacks jurisdiction 11
SPECIAL
15. protection regarding facilities in housing
LAWS
society
Income Tax Exemption from the applicability 12
16. of section 235 of the Income Tax
Ordinance
Provisional attachment of the Supreme Court 13
17. property of a tax payer of India

SELECTED ARTICLES

Right to die with dignity: an evolution of Indian

1. 14
Jurisprudence by K.Ramakanth Reddy
Rethinking Post-Divorce Maintenance: An alternative for the empowerment of
2. 15
muslim women in Bangladesh by Md. Jobair alam* toufiqul islam
3. Analysis of lie detector tests in criminal law by Akashdeep Singh 15

4. Qualified Immunity and Federalism: By Aaron Nielson & Christopher J. Walker 15

How Can the Methodology of Feminist Judgment Writing Improve Gender-
5. 16
Sensitivity in International Criminal Law? by Kathryn Gooding
 1
1. Lahore High Court
Mst. Parveen Akhtar, etc. v Noor Muhammad, etc.
Civil Revision No.21651 of 2021
Mr. Justice Mirza Viqas Rauf
https://sys.lhc.gov.pk/appjudgments/2021LHC926.pdf

Facts: Petitioners, the legal heirs of one of the respondents against whom decree in a suit
for possession was passed by first appellate court, filed application under section
12(2) CPC on the ground that their father/respondent died during pendency of
appeal but they were not impleaded as party thereafter, so decree be set aside.
However, the application was dismissed.
Issue: Whether a decree can be set aside under section 12(2) CPC on the ground that
during pendency of appeal, one of the respondents died but the present
respondents did not bring this fact into attention of the court present petitioners
were not made party to the appeal?
Analysis: Order XXII of the Code of Civil Procedure (CPC) deals with the death, marriage
and insolvency of parties pending proceedings. Rule 4 provides the procedure in
case of death of one or several defendants or sole defendant. By virtue of Rule 11,
Order XXII has been made applicable to the appeals mutatis mutandis. From the
analysis of the above referred provisions of law it becomes crystal clear that in
case of death of one of the respondents in the appeal, if the right to sue survives
against the surviving respondents, non-implement of legal representative of
deceased respondent would have no adverse bearing on the merits of the appeal.
Application under Section 12(2) of CPC was highly misconceived and ill-
founded, even at the face of it as it does not come within the purview of Section
12(2) of CPC. The petitioners should have availed remedy under Order XXII Rule
9(2)of CPC but even then if we treat the application of the petitioners under the
said provision of law that too was not maintainable
Conclusion: In case of death of one of the respondents in the appeal, if the right to sue survives
against the surviving respondents, non-implement of legal representative of
deceased respondent would have no adverse bearing on the merits of the appeal
and a decree cannot be set aside under section 12(2) CPC on that ground.

2. Lahore High Court

Abdul Waheed v Additional District Judge
Writ Petition No. 1854 of 2021
Mr. Justice Tariq Saleem Sheikh
https://sys.lhc.gov.pk/appjudgments/2021LHC901.pdf

Facts: The Petitioner who was awarded a contract for running the Sarai (hostelry) at the
Nishtar Hospital, Multan invoked doctrine of frustration pleading commercial
impracticability of contract and claimed compensation by way of remission of
monthly charges i.e. for the lockdown period during Covid-19 or for extension of
contract for a proportionate time.
Issue: (i) Interplay between the principles of force majeure and the doctrine of
frustration?

FORTNIGHTLY CASE LAW BULLETIN

 2
(ii) What is distinction between License and Lease?
(iii) Whether section 56 of the Contract Act 1872 or principles of Force Majeure
are applicable on special laws i.e. Easement Act 1882 and Transfer of Property
Act 1882?
Analysis: The provisions relevant to the principle of force majeure and the doctrine of
frustration in Pakistan are sections 32 and 56 of the Contract Act, 1872. Section
32 is applicable where the contract itself contains an express or implied force
majeure clause for contingencies on whose happening the contract cannot be
carried out and prescribes its consequences. If there was no such provision in the
contract/agreement or it did not apply, then the party could have recourse to
section 56 which laid the doctrine of Frustration. Moreover it was also eloquently
put that commercial impracticability or frustration should not provide a means of
escape from a contract less profitable than anticipated. Moving on the court while
deciphering the nuance between lease (Transfer of Property Act) and license
(Easement Act) observed that the relationship between the parties is determined
from the contents of their agreement rather than the phraseology used. The most
important factor that distinguishes a lease from a license was that in the former
there was a transfer of interest in immovable property while in the latter such
element was excluded albeit the right to exclusive possession was an important
consideration. In the case in hand it was held that as it was not a lease, section
62(f) of the Easements Act rather than section 108(e) of the TPA would apply.
Being a special law it also excluded section 56 of the Contract Act.
Conclusion: The party could only have recourse to sec.56 i.e. doctrine of frustration where
there is an express provision regarding force majeure.
In lease there is a transfer of interest in immovable property, while in lease it is
not the sole consideration.
Petitioner’s case does not fall in the ambit of ‘lease’ but is a license and for him to
invoke ‘frustration’ recourse could only lie under sec. 62(f) of the Easements Act
instead of sec.108 (e) of TPA and being a special law it also excluded section 56
of the Contract Act.

3. Supreme Court of the United States

Barton v. Barr, 590 U.S. __ (2020)
https://www.supremecourt.gov/opinions/19pdf/18-725_f2bh.pdf
https://ballotpedia.org/

Facts: Andre Barton, a Jamaican national, entered the U.S. in 1989 and became a lawful
permanent resident in 1992. In 1996, Barton was convicted of several criminal
charges. In 2007 and 2008, he was convicted of additional criminal charges. The
U.S. Department of Homeland Security charged Barton as deportable. Barton
challenged the charges for removal. The U.S. government argued Barton's crimes
made him "inadmissible" under s. 1182(a)(2). Barton argued that as an already-
admitted lawful permanent resident, he could not be rendered inadmissible. An
immigration judge ruled in favor of the government. On appeal, the Board of
Immigration Appeals agreed with the immigration judge. On further appeal, the

FORTNIGHTLY CASE LAW BULLETIN

 3
11th Circuit upheld the immigration judge and the Board of Immigration Appeals'
rulings.
Issue: Whether a lawfully admitted permanent resident who is not seeking admission to
the United States can be "rendered inadmissible" for the purposes of the stop-time
rule, 8 U.S.C. s. 1229b(d)(l)?
Analysis: The ruling upheld a decision by the Eleventh Circuit Court of Appeals that green
card holders could be rendered "inadmissible" to the United States for an offense
after the initial seven years of residence under the Reed Amendment. Justice Brett
Kavanaugh, writing the majority opinion, ruled that DHS could deport Barton
stating "the immigration laws enacted by Congress do not allow cancellation of
removal when a lawful permanent resident has amassed a criminal record of this
kind." Further opining that “Removal of a lawful permanent resident from the
United States is a wrenching process, especially in light of the consequences for
family members. Removal is particularly difficult when it involves someone such
as Barton who has spent most of his life in the United States. Congress made a
choice, however, to authorize removal of noncitizens even lawful permanent
residents, who have committed certain serious crimes. And Congress also made a
choice to categorically preclude cancellation of removal for noncitizens who have
substantial criminal records. Congress may of course amend the law at any time.
In the meantime, the Court is constrained to apply the law as enacted by
Congress”. In a dissenting opinion, Justice Sonia Sotomayor argued that as
Barton had already been admitted, the Government must prove he is deportable
rather than just inadmissible.
Conclusion: In a 5-4 ruling, the court affirmed the decision of the United States Court of
Appeals for the 11th Circuit, holding that for purposes of cancellation-of-removal
eligibility, s. 1182(a)(2) offense committed during the initial seven years of
residence does not need to be one of the offenses of removal.

4. Lahore High Court

Sikandar Mahmood v. LDA
W.P. No. 187944/2018
Mr. JusticeAsim Hafeez
https://sys.lhc.gov.pk/appjudgments/2021LHC881.pdf

Facts: Petitioner through the constitutional petition challenged commercialization fee

assessed on his property by LDA.
Issue: Whether commercialization fee under the LDA rules is to be calculated on the
basis of commercial value of land without valuing the structure/building
constructed upon it?
Analysis: Submissions that commercialization fee has to be computed at prescribed rate on
the basis of commercial value of the land exclusively, without valuing the
structure or building are bordering absurdity. It is evidently clear upon reading of
rule 31(1) of Rules, 2014 that temporary commercialization is allowable, subject
to fulfilment of conditions, both qua the land and property – the reference to
expression property in this case is meaningful. Buildings/structures raised upon

FORTNIGHTLY CASE LAW BULLETIN

 4
the land underneath, forms an integral part of the land when examined in terms of
the definition of land in section 3(o) of the Lahore Development Authority Act,
1975. Moreover the term ‘immovable property’ is defined in section 2 (31) of the
General Clauses Act 1956, which defines that immovable property shall include
land, benefits to arise out of land, and things attached to the earth. That definition
is by and large similar to the definition of Land in LDA Act, 1975, which
suggests that structure raised / building constructed formed part of the land, which
cumulatively constitute an immovable property. Hence, it’s legal to ascertain
commercial value of the land, in totality, inclusive of any structure / building
thereupon.
Conclusion: The value of the land, inclusive of any structure / building thereupon, is to be
considered for the calculation of commercialization fee commercial.

5. Supreme Court of Pakistan

M/s. Lung Fung Chinese Restaurant v Punjab Food Authority,
C.P.1331-L/2017
Mr. Justice Manzoor Ahmad Malik, Mr. Justice Syed Mansoor Ali
Shah, Mr. Justice Amin-ud-Din Khan
https://www.supremecourt.gov.pk/downloads_judgements/c.p._1331_l_2017.pdf

Facts: Allegedly invoking powers under section 13 (1) (c) of the Punjab Food Authority
Act, 2011(the Act) Food Safety Officer (FSO)sealed a restaurant. Later on the
said restaurant was de-sealed and it was served with an improvement notice under
section 16 of the Act.
Issue: Whether the powers of FSO under section 13 (1) (c) of the Act are ultra vires to
the Constitution?
Analysis: No ground or any other legislative guideline has been given under section 13(1)
(c) of the Act that permits or empowers the FSO to exercise his discretion and
invoke the power of sealing. Section 13(1) (c) simply states that FSO can seal any
premises where he believes any food is prepared etc. Section 13(1) (c) does not
provide when the sealing powers can be invoked. Further, the act of “sealing” is
not supported by a remedial mechanism as in the case of seizure of food.
Therefore, there is no legal remedy available to a food operator or food business
after the premises have been sealed. There is also no provision for de-sealing
under the Act…The power of sealing in the hands of the FSO can easily be
applied arbitrarily which cannot be permitted under our constitutional scheme, as
any such act would offend fundamental rights under Articles 18, 23 and 25 of the
Constitution. The power of sealing of premises by the FSO, in its present form, is
therefore ex facie discriminatory.
Conclusion: The power of the FSO to “seal any premises” under section 13(1) (c) is
unconstitutional and illegal, hence struck down.

FORTNIGHTLY CASE LAW BULLETIN

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6. Lahore High Court
Saqib Ramzan v. The State
Criminal Appeal No.485 of 2016
Mr. Justice Ch. Abdul Aziz, Mr. Justice Muhammad Sajid Mehmood Sethi,
https://sys.lhc.gov.pk/appjudgments/2021LHC872.pdf

Facts: Appellant was convicted and sentenced for getting 504 grams of Charas
recovered from his house.
Issue: Under what circumstances ingress into a building for recovery of narcotics
without a search warrant can be made by the investigating officer?
Analysis: The language of section 21 of CNSA is explicit and leaves no room for discussion
that as general rule to the effect that ingress into a building is to be made for the
recovery of narcotics after obtaining a search warrant, more importantly by a
police officer not below the rank of Sub-Inspector. The requirement of obtaining
search warrant can only be relaxed if there is an apprehension that afflux of time
in having recourse to the court will provide an opportunity of escape and removal
of narcotics to accused.
Conclusion: Apprehension of escape of accused and removal of narcotics are the only
circumstances when requirement of getting a search warrant before entering a
building can be relaxed.

7. Lahore High Court

Rehan Shehzad v The State
Crl. Misc. No.356-B of 2021
Mr. Justice Ch. Abdul Aziz
https://sys.lhc.gov.pk/appjudgments/2021LHC868.pdf

Facts: Petitioner seeks post arrest bail in a case involving charges of domestic violence
whereby he allegedly beat his wife and caused fracture on the cheekbone below.
Issue: What material is to be considered by the court at a time of grant of post arrest
bail?
Analysis: In offences that fall within the prohibitory clause, the concession of post arrest
bail is to be withheld, if reasonable grounds exist for believing that the accused
has been guilty of such an offence. In order to ascertain the presence of
reasonable grounds, the court has to make tentative assessment from the following
material:-
(i) nature of accusation embodied in FIR;
(ii) statements of the witnesses recorded u/s 161 CrPC;
(iii) medical evidence; &
(iv) other incriminating material collected during the course of investigation.
Conclusion: Accusations of FIR, statements of witnesses, medical evidence and other
incriminating material collected during investigation are to be considered for
tentative assessment by the court at the time of grant of post arrest bail. Petition
was finally dismissed.

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8. Sindh High Court
Collector, MCC Hyderabad vs. Faiz Muhammad & Another
SCRA 11 of 2020 and CP D 296 of 2020
Muhammad Junaid Ghaffar, J. Agha Faisal, J.
http://43.245.130.98:8056/caselaw/view-file/MTUwOTA4Y2Ztcy1kYzgz

Facts: A bus was intercepted on the highway and a search thereof led to the discovery of
a specially designed concealed cavity, containing foreign origin smuggled
cigarettes (“Contraband”). Pursuant to a show-cause notice, Contraband and the
Bus were confiscated. While recording the admission of the appellant that the Bus
did in fact have a concealed cavity wherefrom the Contraband was recovered, the
Collector Appeals rejected the appeal. However, in appeal, learned appellate
tribunal while relying on SRO 499(I)/2009 dated 13.06.2009 orderedfor release of
the Bus against payment of fine equal to twenty percent of ascertained customs
value. The present reference application has assailed the Impugned Judgment;
whereas, the petition seeks implementation thereof.
Issue: Whether in the present facts and circumstances the Bus could be released per the
SRO?
Analysis: learned Appellate Tribunal did not consider the import of the admitted existence
of a concealed cavity in the Bus wherefrom the Contraband was recovered; did
not weigh the factum that the tampering of the chassis of the Bus could not be
dispelled by the claimant of the Bus either in the original adjudication
proceedings or the proceedings before the Collector Appeals; and proceeded to
predicate its decision on the absence of reference to the forensic report in the
show cause notice. SRO expressly excludes smuggled items and conveyances
carrying smuggled items from the purview of the relief granted therein. In view of
the admitted factum that the Bus was found carrying smuggled Contraband in
false / concealed cavities, no case has been made out before us to justify the
extension of the benefit of the SRO in the said facts.
Conclusion: Question framed above was answered in the negative. Impugned Judgment held in
dissonance with the law. The reference application was allowed.

9. Lahore High Court

Shafique Ahmad v The State etc.
Criminal Appeal No.1308 of 2013 [2021 LHC 672]
Mr. Justice Tariq Saleem Sheikh, Mr. Justice Anwaarul Haq Pannun
https://sys.lhc.gov.pk/appjudgments/2021LHC672.pdf
Facts: During the course of patrolling, complainant (Inspector) and his squad saw
six terrorists riding on three motorcycles, who attacked the contingent
deployed at the bay with automatic weapons raising slogans of Allah-o-
Akbar. As a result of their indiscriminate firing, four police officials were
killed at the spot while one miraculously escaped. On seeing the police
patrol vehicle, the terrorists sped away. Two accused persons were
challaned. Through their respective statements recorded under section 342
Cr.P.Cthe accused persons professed innocence and maintained that it was

FORTNIGHTLY CASE LAW BULLETIN

 7
a high profile case and the real culprits were not traceable; hence the
Complainant and his colleagues falsely implicated them to show their
efficiency. On conclusion of the trial, the learned Judge Anti-Terrorism
Court acquitted one accused but convicted and sentenced the other
(appellant) on the basis of his extra-judicial confession; hence this appeal
under section 25 of the Anti-Terrorism Act, 1997.
Issue: Whether an accused may be convicted on the sole basis of extra-judicial
confession; without evidence to prove that why he preferred to ventilate
his suffocating conscience?
Analysis: The extra-judicial confession must be received with utmost caution. There
are three essentials to believe an extra-judicial confession: firstly, that the
extra-judicial confession was in fact made; secondly, that it was made
voluntarily; and thirdly, that it was truly made. While referring plethora of
case law, the Hon’ble Court has mentioned as many as thirteen principles
laid down in different times by the Hon’ble Courts in Pakistan about
appraisal of evidence based on extra-Judicial confession. Few of them are
referred here in a very brief manner:
 It can be used against an accused only when it comes from
unimpeachable sources.
 It must be corroborated in material particulars through trustworthy
evidence.
 Conviction on capital charge cannot be recorded in its basis alone.
 No doubt the phenomenon of confession is not altogether unknown but
being a human conduct, it has to be visualized and appreciated purely
consequent upon a human conduct.
 The status of the person before whom the extra judicial confession is
made must be kept in view.
 Evidence of witnesses before whom accused made extra-judicial
confession would not be worth reliance when witnesses exhibited
unnatural and inhuman conduct after accused had made confession to
them.
 The Court should also look at the time lag between the occurrence and
the confession and determine whether the confession was at all
necessary.
 Joint confession cannot be used against either of them.
 Confession made to a police officer is to be ignored even if it was
made in the immediate presence of a Magistrate.
 The Hon’ble Court also referred case cited as AIR 2012 SC 2435 of
Indian Supreme Court, wherein after thorough analysis of various
judgments following principles were laid down:
(i) It should be made voluntarily and should be truthful.
(ii) It should inspire confidence.

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(iii) It attains greater credibility and evidentiary value, if it is
supported by a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(iv) It should not suffer from any material discrepancies and
inherent improbabilities.
(v) It has to be proved like any other fact and in accordance
with law.
In present case if the appellant confessed his guilt five days earlier to
the recording of supplementary statement by the complainant, then
why the complainant was not aware about this very fact? Apparently
there was no palpable reason for the appellant to make an extra-
judicial confession before prosecution witnesses. There is no evidence
that the accused approached them to ventilate his suffocating
conscience or was in a morass and needed their help. More importantly
acquittal of co-accused had also not been challenged. The Appellant
could not be convicted on the same evidence.
Conclusion: Appeal was allowed and the appellant was acquitted for not proving of charge
based on extra-judicial confession.
10. Lahore High Court
Abid Ali V. State
Crl. Appeal No.312-J of 2019
Mr. Jusice Muhammad Waheed Khan, Mr. Justice Farooq Haider
https://sys.lhc.gov.pk/appjudgments/2021LHC751.pdf

Fact: This is an appeal against judgment of conviction in case registered under Section
9 (c) of the Control of Narcotic Substances Act, 1997. During the trial
examination-in-chief of complainant was recorded and his cross-examination was
reserved but subsequently he did not make himself available for cross-
examination though efforts were made to procure his attendance.
Issue: i) Whether the examination in chief of witness without cross examination,
due to his non availability, acquires status of a “legal statement”?
ii) Whether accused can be convicted without proving “safe custody” of case
property?
Analysis: i) The statements of witnesses would include examination-in-chief, the
cross-examination, if the accused intends to do so or re-examination if the
prosecution wants to avail that opportunity. In the present case, the appellants
wanted to cross-examine the witness but he did not appear before the Court
therefore, in such circumstances without cross examination, the statements of
witness cannot be regarded as complete statements within the meaning of Article
133 of Qanun-e-Shahadat Order, therefore, the said statements, without cross-
examination, cannot be termed as legal statements.
ii) It is well settled that if safe custody of allegedly recovered substance/ case
property has not been proved in narcotic cases, there is no need to discuss other
merits of the case and it straightaway leads to the acquittal of the accused.

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Conclusion: i) The examination in chief of witness without cross examination, due to his
non availability, does not acquire status of a “legal statement.
ii) The accused cannot be convicted without proving “safe custody” of case
property.

11. Supreme Court of Pakistan

Secretary Elementary & Secondary Education Department, Government of
KPK v Noor-ul-Amin,
CIVIL APPEAL NO. 985 OF 2020
Mr. Justice Gulzar Ahmed, C.J. Mr. Justice Ijazul Ahsan Mr. Justice
Sayyed Mazahar Ali Akbar Naqvi
https://www.supremecourt.gov.pk/downloads_judgements/c.a._985_2020.pdf

Facts: Respondent was granted ex-Pakistan leave. As the respondent did not report to the
duty on expiry of his ex-Pakistan leave, he was issued show-cause notice. He did
not report for duty despite issuance of notice in the newspaper, therefore, he was
removed from service.
Issue: Whether holding of regular inquiry is necessary in view of admitted absence from
duty?
Analysis: So far as the question of regular inquiry is concerned, we note that the very fact of
respondent remaining absent is not a disputed fact and thus there was no occasion
for holding a regular inquiry in the matter.
Conclusion: Holding of regular inquiry is not necessary in view of admitted absence from
duty.

12. Sindh High Court

Ghulam MurtazaAbbasi vs. National Bank of Pakistan
Constitutional Petition No. D –5657 of 2019 [2021 SHC 304]
Mr. Justice Muhammad Shafi Siddiqui, Mr. Justice Adnan-ul-Karim
Memon
https://eastlaw.pk/cases/Ghulam-Murtaza-AbbasiVSNational-Bank-
of.Mzk4MjIy

Facts: Petitioner, the employee of a Bank was prosecuted in an inquiry and his
services were dispensed with on the ground of misconduct by treating the
period of his suspension from service as a punishment. He sought
reinstatement of his service with all back benefits.
Issue: Whether in the absence of specific assertion of having remained un-
employed, the petitioner was entitled to the back benefits?
Analysis: About the back benefits, there are two basic principles; (a) that back
benefits do not automatically follow the order of reinstatement where the
order of dismissal or removal has been set aside; and (b) as regards the
matter of onus of proof in cases where a workman 'is entitled to receive
the back benefits it lies on the employer to show that the workman was not
gainfully employed during the period of the workman was deprived of
service till the date of his reinstatement thereto, subject to the proviso that

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the workman has asserted at least orally, in the first instance, that he was
(not) gainfully employed elsewhere. On his mere statement to this effect,
the onus falls on the employer to show that he was so gainfully employed.
The reason is that back benefits are to be paid to the workman, not as a
punishment to the employer for illegally removing him but to compensate
him for his remaining jobless on account of being illegally removing him
from service.
Conclusion: In the absence of specific assertion of having remained un-employed, the
petitioner was not entitled to the back benefits.

13. Lahore High Court

Misbahud Din Zaigham& others v Federal Investigation Agency & others
W.P No.68772 of 2019
Mr. Justice Shahid Karim
https://sys.lhc.gov.pk/appjudgments/2021LHC941.pdf

Facts: The financial institutions in their complaints alleged the commission of an offence
envisaged by section 2(g) (i) of willful default as defined in the Financial
Institution (Recovery of Finances) Ordinance, 2001 whereupon F.I.A issued
notice to petitioners. A Full Bench of Lahore High Court has already held in its
judgment reported as Mian Ayaz Anwar and others v. State Bank of Pakistan and
others (2019 CLD 375) that the determination of default as a civil liability must
precede a notice regarding the commission of the offence of willful default under
Section 2(g)(i) as this related to civil liability of default and must be determined
by a court of competent jurisdiction which would conclude that there was an
obligation to pay the amount in default and would trigger the offence of willful
default in such cases.
Issue: Whether determination of the civil liability would include a determination to be
made by the appellate court as well?
Analysis: The intention of the Hon’ble Judges as expressed in Mian Ayaz Anwar case has to
be ascertained by considering the precedent’s words, context and purpose and on
this basis interpretative role will be assumed by this Court…Although, the learned
Judge, speaking for the Full Bench did not elaborate (since the issue did not arise
squarely before the Court),…. laying down the rule regarding pre-determination
of civil liability of default in Mian Ayaz Anwar the learned Judges clearly meant
that not only the determination must be made by court of first instance but by one
appellate court as well…The view that the appellate procedure must conceivably
be part of the determination of civil liability is based on two principles entrenched
in our jurisprudence. The first is drawn from an established line of respectable
authority that an appeal is a continuation of the original suit and opens up the case
for rehearing on error and facts, both. And the second is the critical importance of
constitutional criminal law which protects and preserves the right of a person to
due process of law in all criminal prosecutions.
Conclusion: In laying down the rule regarding pre-determination of civil liability of default in
Mian Ayaz Anwar case the Hon’ble Judges clearly meant that not only the

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determination of the civil liability must be made by court of first instance but by
appellate court as well.

14. Lahore High Court

Mohammad Wajid Murshid and another v Silk Bank Limited
Execution First Appeal No.11 of 2019
Mr. Justice Ch. Muhammad Iqbal, Mr. Justice Jawad Hassan
https://sys.lhc.gov.pk/appjudgments/2021LHC977.pdf

Facts: Property of one of the appellants’/judgment debtors in a Banking suit, which was
not specifically mortgaged in favor of the financial institution, was also included
and put into auction by the Banking Court, while executing the decree and
application for correction of properties under execution to this extent, was also
dismissed.
Issue: Whether a property belonging to judgment debtor but was not actually mortgaged
in favor of the Bank for availing financial facilities, can be put to auction for
satisfaction of the Banking Court decree under Financial Institutions Recovery of
Finance Ordinance, 2001?
Analysis: Under the Ordinance, in a case where execution of decree is not undertaken by the
financial institution itself and sought its execution through the intervention of the
Court, the Court which passed the decree is transformed into a Court of execution
fully equipped and empowered to adopt any mode for the purposes of execution
as provided under Section 19 of the Ordinance with the sole purpose and object to
get the decree fully satisfied. An equitable mortgage stand created despite lapse of
codified formalities, if the essential ingredients are met with i.e., existence of
debt, delivery of title, intention that the same be accepted and retained as security
for the debt so secured. In the instant case, all three requirements are in
affirmative and perusal of impugned order also reflects that the learned Banking
Court dismissed the application of the Appellants for correction of while giving
considerable weightage to the point of execution of equitable mortgage in favor of
Respondent and mere evasive denial to said assertion by the Appellants in their
leave to defend.
Conclusion: The Banking Court, while executing the decree, which has attained finality up to
the High Court, was competent to take measures for complete satisfaction of the
decree including auction of property of a judgment debtor which was not actually
mortgaged.

15. Lahore High Court

Yasir Chaudhry v Faisalabad Development Authority
FAONO.74 of 2015
Mr. Justice Mirza Viqas Rauf
https://sys.lhc.gov.pk/appjudgments/2021LHC920.pdf

Facts: The appellant purchased a plot advertised by the respondent and paid considerable
amount in installment as consideration to them but the respondent failed to
provide necessary facilities at the site. The appellant brought the claim before

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Consumer Court under section 25 of the Punjab Consumer Protection Act, 2005,
however, the same was dismissed by the court on account of lack of jurisdiction.
Issue: Whether Consumer Court has got jurisdiction to entertain claim against the
development authority for non-provision of necessary facilities at a housing
scheme?
Analysis: The term “product” defined in Section 2(j) of the Act is mainly derived from
movable property and land is specifically excluded from the “goods” under the
Sale of Goods Act, 1930. Though word “immovable” also finds reference in
Section 2(j) of the “Act, 2005” but it is clearly restricted to “product”. The joint
analysis of Section 2(j) of “Act, 2005” and Section 2(7) of the Sale of Goods Act,
1930 leads to an irresistible conclusion that land cannot be termed as a “product”.
The appellant has never hired any services for a consideration rather he had
purchased plots from the respondents in lieu of a consideration. The term and
conditions of allotment/purchase matured into an agreement inter se appellant and
respondents. Thus in case of violation of contract the appellant may ask for
specific performance of contract or damages if there is breach of contract on the
part of respondents through a suit before the Civil Court.
Conclusion: Consumer Court is not vested with the jurisdiction to entertain the claim regarding
non provision of necessary facilities in a housing scheme since land cannot be
termed as product and the Consumer Court is also bereft of any jurisdiction to
pass a direction in the form of mandamus.

16. Lahore High Court

Majeed Fabrics (Pvt) Ltd, etc. v. Federation of Pakistan through Ministry of
Energy, etc.
Intra Court Appeal No.33117/2020.
Mr. Jusice Shahid Jamil Khan, Mr. Justice Asim Hafeez
https://sys.lhc.gov.pk/appjudgments/2021LHC961.pdf

Fact: Appellants are taxpayers, who claim that being registered with the Sales Tax as
exporters or manufacturers in one of the industrial sectors identified under clause
66, they are exempted from the applicability of section 235 of the Income Tax
Ordinance.
Issue: i) Whether the exemption from the operations of section 235 of the
Ordinance is available, per-se?
ii) Whether exemption certificate is required to be procured on monthly basis
or once granted same shall be valid unless such registration is suspended or
cancelled?
iii) Whether appellants are exempted from the operation of section 235
without exemption certificate?
Analysis: i) It is clearly discernible that exemption from the operations of section 235
of the Ordinance is not available per-se merely by operation of law but claimable
only upon compliance of conditions specified in clause 66. It is essential that such
compliant status is verifiable, at all material times. It goes without saying that
registration with the sales tax as exporter or manufacturer, in one of the industries

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specified in clause 66, is condition-precedent for claiming exemption from
operability of clause 66
ii) Under Sub-section (2) of section 159 used expression ‘unless there is in force a
certificate issued under sub-section (1) of section 159 relating to the collection or
deduction of such tax’, which rationally convey that as long as certificate is in
force, DISCO’s are obligated to act comply with the mandate of the Certificate.
Hence, certificate procured under sub-section (1) of section 159 of the Ordinance
shall remain valid / in force, unless factum of inactive status, suspension or
cancellation of registration, as the case may be, is communicated by the
Commissioner concerned to the relevant DISCO’s.
iii) The appellants are exempted from the operation of section 235 of the
Ordinance upon fulfillment of the conditions prescribed in terms of clause 66,
provided such fulfillment is evidenced / affirmed by certificate, issued in terms of
sub-section (1) of section 159 of the Ordinance, and not otherwise.
Conclusion: i) The exemption from the operations of section 235 of the Ordinance is not
per-se available.
ii) The exemption certificate is not required to be produced on monthly basis
and the same shall be valid unless such registration is suspended or cancelled.
iii) The appellants are not exempted from the operation of section 235 without
exemption certificate.

17. Supreme Court of India

Civil Appeal No 1155 of 2021
M/s Radha Krishan Industries v. State of Himachal Pradesh &Ors.
https://main.sci.gov.in/supremecourt/2021/1775/1775_2021_36_1502_27668_Jud
gement_20-Apr-2021.pdf
Facts: Appellant has challenged the orders of Joint Commission by which property of
appellant was attached u/s 83 of the Himachal Pradesh Goods and Service Tax
Act, 2017and Rule 159 of Himachal Pradesh Goods and Service Tax Rules, 2017.
His Writ was dismissed by HC being not maintainable in the presence of alternate
remedy of appeal.
Issue: Whether Joint Commissioner had fulfilled all the pre-requisites of passing such
punitive order and was justified to order provisional attachment of property?
Analysis: The language of the statute has to be interpreted bearing in mind that it is a taxing
statute which comes up for interpretation. The provision must be construed on its
plain terms.
The language of the statute indicates first, the necessity of the formation of
opinion by the Commissioner; second, the formation of opinion before ordering a
provisional attachment; third the existence of opinion that it is necessary so to do
for the purpose of protecting the interest of the government revenue; fourth, the
issuance of an order in writing for the attachment of any property of the taxable
person; and fifth, the observance by the Commissioner of the provisions contained
in the rules in regard to the manner of attachment. Each of these components of
the statute is integral to a valid exercise of power.

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By utilizing the expression "it is necessary so to do" the legislature has evinced
intent that an attachment is authorized not merely because it is expedient to do so
(or profitable or practicable for the revenue to do so) but because it is necessary
to do so in order to protect interest of the government revenue. Necessity
postulates that the interest of the revenue can be protected only by a provisional
attachment without which the interest of the revenue would stand defeated.
Such provisions are not intended to authorize Joint Commissioners to make
preemptive strikes on the property of the assessee, merely because property is
available for being attached.
These expressions in regard to both the purpose and necessity of provisional
attachment implicate the doctrine of proportionality. Proportionality mandates the
existence of a proximate or live link between the need for the attachment and the
purpose which it is intended to secure.
Rule 159(5) contemplates two safeguards to the person whose property is
attached. Firstly, it permits such a person to submit objections to the order of
attachment on the ground that the property was or is not liable for attachment.
Secondly, Rule 159(5) posits an opportunity of being heard. Both requirements
are cumulative. The Commissioner's understanding that an opportunity of being
heard was at the discretion of the Commissioner is therefore flawed and contrary
to the provisions of Rule 159(5). There has, hence, been a fundamental breach of
the principles of natural justice.
Conclusion: Order passed by the Joint Commissioner does not indicate any basis for formation
of the opinion that the levy of a provisional attachment was necessary to protect
the interest of the government revenue and procedure adopted by him was also
against the statutory requirement. Appeal was allowed and order of provision
attachment was set aside.

LIST OF ARTICLES

1. MANUPATRA
https://www.manupatrafast.com/articles/ArticleSearch.aspx?c=4&subject=Jurisprude
nce
Right to die with dignity: an evolution of Indian Jurisprudence by K.Ramakanth
Reddy
The Hon’ble Supreme Court has recently in Common Cause v. Union of
India and another1 held that right to die with dignity is a fundamental
right which has led to legalizing passive euthanasia and a living will.
Though, guidelines have also been framed by the apex court in this
regard. The Chief Justice of India who headed the constitutional bench
has set a new evolution in Indian Jurisprudence which has ruled to give
right to an individual to die in his terminally ill condition. It is a new
evolution in context of Indian. Jurisprudence as it also permits to smooth
the process of the death when there is no hope of recovery and the person
is in consistent vegetative condition.

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2. BANGLADESH JOURNAL OF LAW

http://www.biliabd.org/article%20law/Vol-15/Jobair%20Alam.pdf
Rethinking Post-Divorce Maintenance: An alternative for the empowerment of
muslim women in Bangladesh by Md. Jobairalam* toufiqul Islam
The current scholastic understanding and dominant judicial articulations-
based on the classical interpretation of Islamic law demonstrate that
women are only entitled to three months of spousal support during their
religiously prescribed waiting period. The apex court of Bangladesh long
back in 1999 in the famous Hefzur Rahman case not only provided its
verdict in the same tune but also made a distinction between maintenance
and Maa’ta, where the latter was settled as a consolatory gift. However,
apart from the religious aspects, the issues of post-divorce maintenance
and Maa’ta have a broader socio-political and economic connotation.
Thus, the objective of this study is to examine whether the post-divorce
maintenance and the support may work as an alternative for the
empowerment of Muslim Women in Bangladesh.

3. INTERNATIONAL JOURNAL OF LAW

http://www.lawjournals.org/archives/2021/vol7/issue1
Analysis of lie detector tests in criminal law by Akashdeep Singh
In order to overcome this problem, in the criminal justice system, there
are lie detector tests that can be used. These tests are of three types-
Polygraph, Narcoanalysis, Brain-Mapping (BEAP). Each of these tests
uses a different mechanism to evaluate different aspects of the human
body to tell dishonesty from honesty. Lie detector tests have been
particularly helpful as they help in limiting or eradicating third degree
methods in investigations and protecting the human rights of all citizens.
Unfortunately, these tests have not managed to garner too much support
due to certain technical issues and admissibility problems but researchers
and scholars have ascertained a 95-98% success rate of these tests. This
paper seeks to analyse the use of lie detectors in criminal law.

4. GEORGETOWN LAW JOURNAL

https://www.law.georgetown.edu/georgetown-law-journal/wp-
content/uploads/sites/26/2021/01/Nielson_Walker_Qualified-Immunity-and-
Federalism.pdf
Qualified Immunity and Federalism
Aaron Nielson & Christopher J. Walker
Qualified immunity is increasingly controversial. But the debate about it is
also surprisingly incomplete. For too long, both qualified immunity’s
critics and defenders have overlooked the doctrine’s federalism
dimensions. Yet federalism is at the core of qualified immunity in at least
three respects. First, many of the reasons the U.S. Supreme Court has
proffered for qualified immunity best sound in protecting the states’

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 16
sovereign interests in recruiting competent officers and providing
incentives for those officers to faithfully enforce state law. Second, the
states have embraced indemnification policies premised on the existence
of federal qualified immunity. Third, working against the backdrop of
federal qualified immunity, state and local governments are engaged in
robust policy experimentation about the optimal balance between
deterrence and overdeterrence in their state law liability schemes, thus
exhibiting the “laboratories of democracy” benefits of federalism.

5. LSE LAW REVIEW

https://lawreview.lse.ac.uk/articles/abstract/79/
How Can the Methodology of Feminist Judgment Writing Improve Gender-
Sensitivity in International Criminal Law? by Kathryn Gooding
This paper seeks to demonstrate the utility of the application of feminist
judging methodologies to judgments and decisions from international
criminal law mechanisms, with a specific focus on sexual and gender-
based crimes, as a means to improve gender-sensitivity in international
criminal judicial decision-making. Through an analysis of feminist
judgments and feminist dissenting opinions from the UK, US and
International Criminal Court, the main hallmarks of feminist judging are
identified. The author uses the hallmarks of feminist judging to create her
own Feminist Judgment based on a decision from the Prosecutor v
Ongwen case before the International Criminal Court, to display the
indeterminacy of judicial decision-making in international criminal law
and to demonstrate how greater gender-sensitivity can be achieved at the
International Criminal Court through feminist judicial reasoning.

FORTNIGHTLY CASE LAW BULLETIN