Republic of Ireland who is the genetic mother of twins

A woman in the Republic of Ireland who is the genetic mother of twins has won a legal battle to be declared their legal mother. Authorities had previously refused to list the woman as genetic mother on the twin’s birth certificates. But sitting at the High Court of Ireland in Dublin, Mr Justice Henry Abbott ruled that the woman was the children’s legal mother and both she and the children were entitled to a legal declaration to that effect. The judge declared that the previous assumption under Irish law that the birth mother was automatically the legal mother was no longer valid in the era of in-vitro fertilisation. He said: “To achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents, the feasible inquiry in relation to maternity ought to be made on a genetic basis and on being proven, the genetic mother should be registered as the mother.” In English law, by contrast, the Human Fertilisation and Embryology Act 2008 specifies that the surrogate mother is always the legal mother of the child

Foreign Judgments Example

The petitioner has prayed for the following relief

Through this constitutional petition, the petitioner has prayed for the following relief (s) :-

(a)               To direct the official respondent No.1 and 2 to stop causing harassment to the petitioner and his family and do not prevent them from going and working at their land and do not extend illegal help to the private respondents.

(b)               To direct D.P.O Kashmore to ensure protection of life and liberty of petitioner,  and his family

            Notices were issued to the respondents, as well as A.A.G. Comments have been filed by the respondents No. 1, 2 & 7; in which it is stated that, legal protection will be provided to the petitioner, if and when needed; no harassment whatsoever has been caused to the petitioner or his relatives, nor harassment will be cause in future. Learned State Counsel states that official respondents shall act strictly in accordance with law.

            In these circumstances, learned Counsel for the petitioner is satisfied from such statement, and does not press this petition more, and it is disposed of in accordance with law.

Constt. Petition No.  S-  1209 of 2011.

Conditional order for visitation of minor

Conditional order for visitation of minor subject to submission of surety bond. Right of father to see his children could not be curtailed by imposing condition of submission of sureties every time he had to meet his own children. 

If an order was passed by any court or tribunal in violation of law and without authority the same could be questioned by an aggrieved person by invoking constitutional jurisdiction of High Court.

2014 CLC 1168

Consequences and pressurizing her for divorce from her husband

Learned counsel submits that the
petitioner is wedded wife of Muhammad Yasin who married on 15.12.2007, the Nikahnama of which has been placed on record. She appeared before the Ilaqa Magistrate, Ahmedpur Sharqia, district Bahawalpur, Punjab, on 27.12.2007 and stated before the court that on 26.12.2007 when she was in the house of her husband in Muhalla Abbasia Muhammad Khalid, Muhammad Riaz and Wali Muhammad duly armed entered into her husband’s house and threatened that they will take to task for performing Nikah. In the meantime Munir Ahmed and Abdullah rescued her and her husband. While leaving the house, the said culprits further threatened her that they will teach lesson. She clearly told them that she has married with Muhammad Yasin with her own freewill and she is happy with him. Consequently, she requested them not to take any action against her, her husband and his parents. Since she was under threat, she and her husband left and came to village Malano near Dad Leghari, taluka Daharki, district Ghotki where they are residing now. She stated that she is very happy with her husband Muhammad Yasin and they are living together as husband and wife within prescribed limits of Almighty Allah. The respondent No.2 to 5 at the instance of respondent No.1 are still threatening her and her husband for dire consequences and pressurizing her for divorce from her husband. The learned counsel further submits that Ali Sher, the father-in-law of the petitioner has also been illegally detained by respondent No.1 at the instance of respondents Nos.2 to 5.

       Learned State counsel assures that the fundamental rights of the petitioner, her husband and her father-in-law will be protected in accordance with law. He further submits that the SHO and other Law Enforcing Agency would be directed not to harass the petitioner, her husband and her father-in-law and proper protection will be provided to the wedded couple. He further submits that if the father-in-law is detained illegally, he would suggest this court to depute Judicial Magistrate concerned to conduct raid and recover the detainee. In case he is found illegally detained, the action be taken against the concerned police officials and other involved private persons. On such assurance of the learned State counsel, the learned counsel for the petitioner does not press this petition. The petition is disposed of in the above terms.

       Law Enforcing Agency including respondent No.1 are directed not to create harassment to the wedded couple and petitioner’s father-in-law at the instance of respondents Nos.2 to 5.

       The Judicial Magistrate having jurisdiction is directed to conduct raid at Police Station to ascertain as to whether Ali Sher Joyo, father-in-law of the petitioner is illegally detained by the respondent No.1 and if found illegal detained, he be released and for further legal action this court be informed accordingly. A copy of this order be supplied to the learned A.A.G/State counsel for compliance.

 C.P.No.S-120  of  2008

SUO MOTU CASE NO. 24 OF 2010 AND HUMAN RIGHTS CASES

An eight-member bench, headed by the Hon’able Chief Justice of Pakistan, while hearing Suo Motu and Human Rights cases regarding corruption in Hajj arrangements in 2010, took notice of the matter of re-employment of one Syed Javed Ali Bukhari, a Police Officer, as Additional Director General FIA, vide Notification dated 21-1-2011; and of some other Police officers on contract basis. The Supreme Court was informed by the then Director (Law) FIA that the appointment of the said Syed Javed Ali Bukhari was in violation of Section 3(2) read with sections 4 and 5(2) of the Federal Investigation Agency Act, 1974.
The Supreme Court observed that the said police officers were re-employed in total disregard of the provisions of Section 14 of the Civil Servants Act, 1973, as well as the instructions contained in Esta Code in Volume-l, Edition 2007, under the heading "Re-Employment" and the judgments of the superior courts. It was further observed that for establishing rule of law and constitutionalism, adherence to the relevant provisions of law in letter and spirit was necessary. Otherwise, it would not be possible to ensure the effective running of the machinery of the police department. The Supreme Court held that such re-employments tantamount to blocking the promotion of deserving officers of the forces. The Supreme Court observed that in order to achieve good governance, the same principle should be followed and strictly applied in all other departments as well.

Recording evidence of complainant and the material witnesses.

 Learned counsel  for the applicant/accused after arguing  the matter   at some length  has requested  that  if the direction  is given  to the learned trial Court to record evidence of complainant  and his material witnesses within a specified time, then he would be  satisfied  and will not press this application.  The perusal  of the case papers  shows that the applicant accused  has not approached the competent Court of law for grant of relief  and has directly  approached this Court.  I am of the opinion that application at this stage  filed  directly before   this  Court,  can not be entertained without first approaching  the competent Court of law.  The request of the learned counsel for withdrawal of the applicant is allowed.   Learned trial Court is directed to record  the evidence  of complainant and his material  witnesses against the accused within three months after receipt of this order without fail.  The applicant  will be  at liberty to seek relief  from the learned trial Court after recording evidence of complainant  and the material  witnesses.

 Cr. Misc. Appln.  NO:  92 of 2008.

Important Cases Decided by the Supreme Court

PAKISTAN TELECOMMUNICATION COMPANY LTD. THROUGH CHAIRMAN VERSUS IQBAL NASIR AND OTHERS (P L D 2011 SUPREME COURT 132)

PTCL had introduced a scheme for its employees known as "Voluntary Separation Scheme", whereby, apart from other benefits which an employee was entitled to get, he was also entitled to receive early retirement benefits provided he had rendered a minimum of 20 years of service. Some of the employees, who applied for the benefit of VSS, were denied the same on the ground that they did not possess the requisite qualifying length of service, whereas, others were terminated from service. They approached the concerned High Court through Constitution/Writ Petitions against the termination of their service, and/or denial of the benefit of the voluntary separation scheme introduced by the appellant. The High Courts allowed the Petitions and directed the PTCL to extend the benefit of VSS to the said employees as well; and the termination orders made by the PTCL or by the Foundation were declared void.
PTCL approached the Supreme Court by means of civil petitions wherein leave was granted to consider, inter alia, the contentions that writ in the matter could not be issued to the PTCL as it was not performing functions in connection with the affairs of the Government; and even if it was assumed to be performing such functions, still the subject matter of the impugned judgment was not connected with the affairs of the Government, and further whether the rules framed by the PTCL were statutory or not.
It was argued that the appellant PTCL was not a person performing functions in connection with the affairs of the Federation within the meaning of Article 199(5)
of the Constitution and the matters dealing with the officers and servants of PTCL, which vested in the EIP, were not functions in connection with the affairs of the Federation.
The court observed that in Muhammad Zahid's case, it was held that the employees of the erstwhile T&T Department transferred to the Corporation [PTC] under the relevant provisions of the Act of 1991 and later/on succeeded by the PTCL, discharging their functions and duties in the International Gateway Exchange as Operators were inducted permanently or regularized subsequently under the rules necessarily related to one of the affairs of the Federation within the purview of provisions of Article 199 of the Constitution. Hence, similar duties and functions in the International Gateway Exchange being discharged by the private respondents as Operators could not be distinguished to say that the same did not relate to the affairs of the Federation though conferred upon the Corporation [PTC], and finally upon PTCL; that PTCL fell within the connotations of the word ‘person’ as defined in clause (5) of the Article 199 of the Constitution; accordingly, the grievance of the private respondents was amenable to the writ jurisdiction of the High Court. However, it was observed that the status of the private respondents, be that of a ‘worker’ or a ‘civil servant’ or a ‘contact employee’ had no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them.
It was further observed that the learned counsel for the respondents, though they placed on record a copy of the Pakistan Telecommunication Corporation Service Regulations, 1996, framed under section 20 of the Act of 1991, failed to show whether the said Regulations were duly notified in the official Gazette, However, even if such Regulations were duly made, they were not holding the field after the repeal of the Act of 1991 under which the said Regulations were made. Further, as per Regulation 1.02 thereof, the said Regulations would not apply to a person employed on contract or on work-charged basis or who is paid from contingencies; they would be governed by the principle of ‘Master and Servant. Applying the principles of law, the Court held that in the absence of statutory rules, writ petitions filed by the employees of the PTCL were not maintainable. Resultantly, the appeals filed by PTCL were allowed and the judgments/orders impugned therein were set aside while the appeals filed by the employees were dismissed.

Subordinate police official should cause any harassment to the petitioner or any one else.


IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constt. Petition No.  203 of 2008.

1.                  For orders on office objection (A).
2.                  For Katcha Peshi.

29.04.2008.

                        In this case notice was issued to the S.P Investigation Dadu who is respondent No. 2 in this case.  He has filed statement, wherein he has denied all the allegations made against him in the petition and in concluding paragraph of his statement he has mentioned as under: -

                        “It is submitted that the undersigned/ respondent No. 2 ensures that investigation will be get carried out fairly, impartially and honestly and also sincere efforts be made to apprehend the accused.  However this office has no objection if investigation be made through any senior officer. Moreover this office ensures that no harassment be caused to the petitioner and no action be taken beyond the law and any action if taken will be strictly in accordance with the law.  The undersigned/ respondent No. 2 further ensure to act strictly in accordance with the law. In view of the above submission it is respectfully prayed that this Hon’ble Court may kindly be pleased to dismiss the petition filed with malafide intentions, in the interest of justice.”

                        Similarly, the D.P.O Dadu, who is respondent No.3 in this case has stated that he will take care that no subordinate police official should cause any harassment to the petitioner or any one else.

                        SIO/ ASI Syed Gambal Shah who is respondent No. 1, has filed a long statement, the relevant paragraph is reproduced hereunder:  -

                        “That since the investigation of the case is under process and during which the statements of the witnesses under section161 Cr.P.C. have been recorded, the efforts for arresting the required accused are being taken sincerely and even the petitioner has never been harassed by the answering respondent. It is further submitted that the case is under investigation and as son as the investigation is completed, the charge under section 173 Cr.P.C. would be submitted before the competent court.”

                        Inspite of all this assurance given by the police officers the learned counsel for the petitioner insists upon transfer of the investigation. The grievance of the learned counsel is that Investigating Officer has not recorded statements under section 161 Cr.P.C. of his witnesses, namely, Iqbal and Muhammad Mithal. The I.O is directed to record the statements of these two witnesses within three days and submit the challan in court within one week. Petition stands disposed of.

Important Cases Decided by the Supreme Court

MIR MUHAMMAD IDRIS AND OTHERS VERSUS FEDERATION OF PAKISTAN THROUGH SECRETARY, MINISTRTY OF FINANCE AND OTHERS

 (P L D 2011 SUPREME COURT 213)

In the instant Constitution Petition, the petitioners had challenged the validity of the reappointment of one Syed Ali Raza, respondent No 3, as President of the National Bank of Pakistan (NBP) for the fifth time. The petitioners alleged that Respondent No.3 was initially appointed as President for a period of three years w.e.f 1-7-2000. Thereafter, he was reappointed w.e.f 1-7-2003, for yet another period of three years w.e.f. 1-7-2006; and for a further period of one year w.e.f. 1-7-2009; following which he was again appointed for another year w.e-f. 1-7-2010 vide notification dated 10-4-2010. The petitioners alleged that Respondent No. 3 was holding the said lucrative post illegally and unlawfully.
The pivotal question falling for determination by the Supreme Court was whether section 11(3)(d) of the Banks (Nationalization) Act 1974, as amended by the Banks (Nationalization), (Amendment) Act, 1997, relating to the appointment of Chairman, President and members of the NBP Board, could have been amended by the Finance Act, 2007 [Money Bill] passed in terms of Articles 73 and 75 of the Constitution.
In the judgment authored by the Honourable Chief Justice of Pakistan, it was observed that as per Article 73(2) of the Constitution a Bill or anendment was to be deemed a Money Bill if it contained provisions dealing with all or any of the matters enumerated in clauses (a) to (g) of Paragraph 2 of the said Article. That the subject matter of amendment of section 11(3)(d) of the Act of 1974 was not covered by the term ‘Money Bill’. Therefore, the reappointment of Chairman, the President and other members of the Board of NBP did not fall within the ambit of clauses (a) to (g) of Art 73(2). That the amendment in question could not have been introduced in clause (d) of subsection (3) of section 11 of the Act of 1974 by way of Finance Act, 2007, as it did not fulfil the requirement envisaged by Article 70 of the Constitution, i.e. of approval by two houses of parliament.


The Supreme Court relied upon the case of Sindh High Court Bar Association versus Federation of Pakistan(PLD 2009 SC 879), wherein it was held that the amendment in the Supreme Court (Number of Judges) Act, 1997, effected by the Finance Act, 2008, was unconstitutional and illegal. Resultantly, certain Judges of the Supreme Court were made to relinquish office. Based on the same analogy, the Supreme Court observed that if the appointments of Judges were effected on account of a similar defect in legislation, the appointment of Respondent No.3, who, too, was appointed under an unconstitutional and illegal amendment could be protected. Therefore, the amendment made in section 11(3)(d) of the Act of 1974 by the Finance Act, 2007, was declared unconstitutional and illegal, and Respondent No.3 was directed to relinquish his office as President NBP with immediate effect.

decided under Guardian & Wards Act

GUARDIAN & WARDS ACT, 1895
The question of jurisdiction, whether to be decided under Guardian & Wards Act or West Pakistan Family Courts Act (XXXV Of 1964) and Rules of 1965 thereto.

PLD 2012 S.C 66

2001 SCMR 2000 distinguished

Sec.12 &25 read with sec.491 Cr.P.C

Sec.12 &25 read with sec.491 Cr.P.C
-    Jurisdiction of criminal court u/s 491 Cr.P.C. is not ousted on account of provisions of section 12, 25 of Guardian & Wards Act. Criminal court have jurisdiction where custody has been illegally removed from lawful custody.
PLD 1995 SC 633
1988 SCMR 1891
PLD 1969 SC 187
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