PLJ 2021 Islamabad 23
Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 7 & 17(a)(4)--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of maintenance allowance and suit for recovery of dower--Suit for maintenance was partially decreed and suit for recovery of dower was dismissed--Petitioner was jobless--Contribution for payment of school fees of minors--Working lady--Financial capability--Question of--Whether course adopted by Family Judge and affirmed by appellate Court qua fixation of maintenance, to be paid by petitioner/father in accordance with evidence on record besides law on subject--Witness admitted that during cohabitation, petitioner had been contributing to some extent in terms of maintenance out of his income; that she is serving in BPS-11 with monthly salary of Rs. 27,000/-; that she is also doing private job and earning Rs. 30,000/- per month; that she has no knowledge as to whether petitioner is currently jobless; that at time of Nikah her Rukhsti had not taken place and that petitioner had been contributing for payment of school fees of minors during Abadi--Respondent No. 3 in her statement has not given details or even remote hint whereby financial status of petitioner could be ascertained while on other hand a suggestion was also put to her that petitioner is jobless--In such an eventuality, when legitimate source of income of petitioner is shrouded in mystery and it is established that Respondent No. 3, is a working lady, had been contributing towards maintenance parallel to petitioner, awarded maintenance appears to be excessive and in contravention of financial capability of petitioner particularly, when there is nothing on record regarding his financial capability--Amount so fixed thus warrants modification--It was incumbent upon Courts to determine income of father for which recourse in terms of sub-section 4 of Section 17 (A) of West Pakistan Family Courts Act, 1964 can be adopted which is meant to facilitate Court to determine financial position of father--Petition was allowed.
PLJ 2021 Lahore 56
[Multan Banch, Multan]
Present: Jawad Hassan, J
TANVEER CHISHTI--Petitioner
versus
CITY POLICE OFFICER and others--Respondents
W.P. No. 4276 of 2020, decided on 19.03.2020.
Punjab Overseas Commission Act, 2014 (XX of 2014)--
----Ss. 4, 6 & 7--Constitution of Pakistan, 1973, Art. 199--Recovery of amount--Settlement deed--Civil dispute--Powers of commissioner--Maintainability--Challenge to--Commissioner, accordingly, is empowered to only transmit a complaint received from an Overseas Pakistani to a Government Agency for redressal, or to refer any complaint of an Overseas Pakistani to Ombudsman for further necessary action in accordance with law--Govt. Agencies have summoned Petitioner, who is a private person, without there being any criminal case registered against him, in order to determine a civil dispute between parties--Such actions on behalf of Govt. Agencies are patently in excess of their powers--It is an established principle of law that Overseas Pakistanis, no matter wherever they may be, are subject to same protection of law as of every other Pakistani without any discrimination--It contemplates that equal is not preferential and thus Overseas Pakistanis are not given any preference for resolutions of disputes by Govt. Agencies--If there is any dispute between parties over transaction of money, they may avail remedy under Civil Procedure Code, 1908 (the “C.P.C.”) before Civil Court which is Court of ultimate jurisdiction and is empowered to deal with such like matters--Since instant matter relates to civil dispute, Respondent No. 7 may put into operation jurisdiction of Court of competent Civil jurisdiction for redressal of his grievance by filing a suit with all relevant material/documents and producing evidence in support of his assertion so as to substantiate his claim--Respondent No. 7 has only stated in his complaint that he is a British national having a British Passport without uttering anything about his permanent or temporary residence for a definite period in United Kingdom, which is sine qua non for attracting jurisdiction for an ‘Overseas Pakistani’--As far as objection of law officer regarding maintainability of this writ petition is concerned, under Art. 4 of Constitution of Islamic Republic of Pakistan, 1973, petitioner has an inalienable right to enjoy protection of law and to be treated in accordance with law and has every right to knock door of this Court if this inalienable right is denied to him--This writ petition is disposed of with a direction that complaint of Respondent No. 7 will be decided by Commission, after hearing all concerned including Petitioner, strictly in accordance with law/Act, keeping in view above observations of this Court, including discussion on law points, through a speaking order, within four weeks from receipt of certified copy of this order--Commission shall also determine whether Respondent No. 7 is an Overseas Pakistani and whether dispute in hand is a third party dispute or dispute relating to Govt. Agencies--Petition was disposed of.
[Pp. 66, 67, 69, 70 & 72] E, F, G, H, I, J, K & L
Words & Phrases--
----Emigrant--Someone who leaves his or her country for any reason with intent to establish a permanent residence elsewhere.--Emigration--Act of leaving a country with intent not to return and to reside elsewhere--Emigration is usually defined as voluntary removal of an individual from his home State with intention to residing abroad--However, not all emigration is voluntary; there sometimes exists forced emigration; even mass emigration--Emigration may also be due to flight for political reasons or expulsion--One then speaks of refugees or exiles--Immigrate--To come to dwell or settle; to move into a country where one is not a native for purpose of permanent residence--Immigration--“Act of entering a country with intention of settling there permanently.”
[P. 62] B
Black’s Law Dictionary 11th Edition
Words & Phrases--
----Emigrant--An “emigrant” is one who emigrates or quits one country or region to settle in another; one who quits his country for any lawful reason, with a design to settle elsewhere, and takes his family with him--Emigrate--To “emigrate” is to remove from one country or state to another for purposes of residence--Immigrant--“Immigrant” as used in immigration law included every alien coming to country either to reside permanently or for temporary purposes. [P. 63] C
Words and Phrases Volume 14-A and 20 Permanent Edition
Words & Phrases--
----Connected with foreign countries, especially those separated from your country by sea or ocean. [P. 63] D
Oxford Advanced Learner Dictionary New 8th Edition
Punjab Overseas Commission Act, 2014 (XX of 2014)--
----S. 2(i)--Overseas Pakistani--Person can be characterized as Overseas Pakistani who has (i) origin of this country and is (ii) either permanently or (iii) temporarily settled outside Pakistan for purposes of (iv) employment, (v) carrying on a business or vocation and for any other purpose with (vi) intention to stay outside Pakistan for an unspecified period. [P. 59] A
PLJ 2021 Lahore 42
Present: Muhammad Ameer Bhatti, J.
SAHIBZADA SYED IMRAN HAIDER--Petitioner
versus
CHAIRMAN EXECUTIVE COMMITTEE, PUNJAB BAR COUNCIL and others--Respondents
W.P. No. 69001 of 2020, decided on 29.12.2020.
Legal Practitioners and Bar Council Rules, 1973--
----R. 175.I--Constitution of Pakistan, 1973, Art. 199--Constitution of election board--Challenge to--I do not find any illegality or irregularity in the order passed by the Chairman Executive Committee, Punjab Bar Council--Petition was dismissed.
[P. 43] A
Nemo for Petitioner.
Mr. Saqib Haroon Chishti, Assistant Advocate General.
Syed Farhad Ali Shah, Chairman Executive Committee, Punjab Bar Council.
Mr. Ashraf Rahi, Secretary, Punjab Bar Council.
Order
In pursuance of verbal order of this Court passed in the earlier part of the day, Syed Farhad Ali Shah, Chairman Executive Committee, Punjab Bar Council has entered appearance and submits
that the Board constituted by him reflecting from order dated 22.12.2020 is in accordance with Rule 175-I of Pakistan Legal Practitioners and Bar Councils Rules, 1976 and there is no illegality in the Constitution of that Board as alleged by the learned counsel for the petitioner, who is absent at this moment.
2. In view of the above, I do not find any illegality or irregularity in the order passed by the Chairman Executive Committee, Punjab Bar Council, hence this petition has no force and is dismissed.
(Y.A.) Petition dismissed
PLJ 2021 Lahore 40
Present: Muzamil Akhtar Shabir, J.
JABRAN MUSTAFA--Petitioner
versus
JUDGE FAMILY COURT etc.--Respondents
W.P. No. 69574 of 2020, decided on 1.1.2021.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Attorney of judgment debtor--Execution proceedings--Non-service of warrants of arrest of judgment debtor--Issuance of arrest warrants of petitioner--Application for cancellation of warrants--Dismissed--Issuance of non-bailable warrants--Maintainability--Challenge to--It is observed that it is not a case wherein warrants of arrest have been simplicitor issued against petitioner for this Court to treat same as an interlocutory order to look into its legality rather in present case vide impugned order executing Court while dismissing petitioner’s application for cancellation of warrants of arrest, issued against him, has refused to recall its earlier order by application of its mind to facts of matter pending before it. [P. 41] A
Family Courts Act, 1964--
----S. 14--Objection petition--Final decision--Appealable order--A “decision given” on afore referred application/objection petition of petitioner against execution of decree, hence, amounts to a final decision, therefore, said order is appealable before appellate Court in terms of Section 14 of Family Courts Act, 1964. [P. 41] B
Mirza Kazim Ali Baig, Advocate for Petitioner.
Mr. Adeel Ahmad Kamran, Assistant Attorney General and Sardar Qasim Hassan Khan, AAG.
M/s. Nasrullah Khan Babar, Ch. Muhammad Shahid Iqbal, Ch. Muhammad Naseer and Faisal Anwar Minhas, Advocates. (Amici curiae).
Date of hearing: 1.1.2021.
PLJ 2021 Islamabad 23Present: Fiaz Ahmad Anjum Jandran, J.MUHAMMAD SHAKIR--PetitionerversusADDITIONAL DISTRICT JUDGE, ISLAMABAD-WEST, etc.--RespondentsW.P. No. 867 of 2020, decided on 20.11.2020.
Order
Through this constitutional petition, the petitioner, who is the brother and was attorney of the judgment debtor (Ghulam Murtaza) in the family suit filed by Respondent Nos. 2 to 5/decree holders, has called in question orders dated 21.10.2020 and 09.12.2020 respectively, whereby due to non-service of warrants of arrest of the judgment debtor, at the request of the decree holders/respondents, warrants of arrest of the present petitioner in execution proceedings of decree passed by the Judge Family Court have been issued and the application of the petitioner for cancellation of warrants of arrest against him has been dismissed and he has been summoned through non-bailable warrants to appear in said Court on 04.01.2021.
2. It is contended by the learned counsel for the petitioner that as the petitioner was neither a judgment debtor nor stood as surety or guarantor for him, therefore, issuance of warrants of his arrest, initiating recovery proceedings against him were not justified.
3. It is observed that it is not a case wherein warrants of arrest have been simplicitor issued against the petitioner for this Court to treat the same as an interlocutory order to look into its legality rather in the present case vide impugned order dated 09.12.2020 the learned executing Court while dismissing the petitioner’s application for cancellation of warrants of arrest, issued against him, has refused to recall its earlier order dated 21.10.2020 by application of its mind to the facts of the matter pending before it and placing reliance on judgment of the Supreme Court reported as Muhammad Pervez vs. Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352), which in the opinion of this Court is a “decision given” on the afore referred application/objection petition of the petitioner against execution of decree, hence, amounts to a final decision, therefore, the said order is appealable before the appellate Court in terms of Section 14 of the
Family Courts Act, 1964. Reliance in this behalf may also be placed on the judgment reported as Rahim Bukhsh vs. Mst. Shehzadi and others (2018 CLC 1789), wherein it has been held that dismissal of an objection petition is an appealable order.
4. As regards the question whether the facts of the petitioner’s case are distinguishable from the facts in the afore referred reported case (2004 SCMR 1352) is concerned, the same can be taken into consideration by the appellate Court, in case any appeal is filed before it.
5. For what has been discussed above, in view of availability of alternate remedy, this petition is dismissed as premature and not maintainable. However, the petitioner, if advised, is at liberty to approach the appropriate forum for redress of his grievance.
(M.M.R.) Petition dismissed
PLJ 2021 Lahore 30 (DB)
Present: Ch. Mushtaq Ahmad and Farooq Haider, JJ.
Ch. MUHAMMAD ANWAR--Petitioner
versus
JUDGE ACCOUNTABILITY COURT and others--Respondents
W.P. No. 246 of 2021, decided on 6.1.2021.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 540 & 561-A--Constitution of Pakistan, 1973, Art. 199--Application for recalling of order--Dismissed--Recalling of witnesses--Right to challenge--Veracity of evidence--Filing of lacuna--Challenge to--It has been noticed that evidence, which has been allowed to be brought on record of case through orders (mentioned above), is otherwise essential for just decision of case and accused party certainly has right to challenge veracity of said piece of evidence by way of cross-examination--Contention of counsel for petitioner that right/benefit accrued in favour of accused has been taken away through impugned orders, is concerned, same does not hold water for prime reason that such approach may be adopted in civil lis but not in criminal case where approach of Court must be inquisitorial in nature--When trial Court has clearly observed that evidence “summoned through impugned order” is necessary for just decision of case, then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party becomes irrelevant and it becomes mandatory for Court to summon and examine such evidence--It has been found that trial Court while observing that “evidence” is not newly created rather already available, otherwise relevant and is necessary for just decision of case, has rightly allowed same to come on record through impugned orders particularly when accused party has been allowed to cross-examine same; therefore, both impugned orders passed by learned Judge, Accountability Court No. IV, Lahore, are perfectly valid, well-reasoned and quite in accordance with “law, peculiar facts and circumstances” of case; hence, need no interference--Petition was dismissed.
PLJ 2021 Lahore 25
[Rawalpindi Bench Rawalpindi]
Present: Sadiq Mahmud Khurram, J.
NOSHEEBA NAZEER--Petitioner
versus
SAJJAD AHMED and 2 others--Respondents
W.P. No. 3228 of 2020, decided on 11.1.2021.
Constitution of Pakistan, 1973--
----Art. 199--Illegal and improper detension of minor--Agreement to hand over custody of minor--Rebuttable presumption--Challenge to--Minor namely Ali Raza has stated that he wanted to live with his mother, petitioner--Prima facie no bond of love and affection exists between minor and his father as he had not lived with his father ever prior to his handing over to him only recently--Questions concerning custody and guardianship of minors cannot be settled by a private compromise or even by arbitration--An agreement of this nature, therefore, cannot be enforced--If an agreement is entered into by a female which appears unconscionable on face of it, there is a rebuttable presumption that agreement was entered into by coercion and undue influence--No effective rebuttal is forthcoming to show as to why petitioner would voluntarily part with her minor son--Hence purported agreement to hand over custody of minor to Respondent No. 1 has no value in eyes of law--This Court finds it proper and in interest and for welfare of minor to hand over custody of minor Ali Raza to his mother, petitioner, with whom he had lived since his birth and bond of love and affection exists between mother and child and at present there does exist no reason to break same. [P. 28] A, B & C
1995 PCr.LJ 307, 1997 MLD 1562, PLD 1970 Karachi 619 ref.
Guardians and Wards Act, 1890 (VIII of 1890)--
----Ss. 4(2), (5), 9(i) & 25--Constitution of Pakistan, 1973, Art. 199--Guardianships & custody--Parental jurisdiction--Direction to--It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of person or property of a minor--Such a person may or may not have custody of a minor--This Court, in exercise of its jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to welfare of minor and to ensure that no harm or damage comes to him physically or emotionally by reason of breakdown of family tie between parents--Custody of minor namely Ali Raza is ordered to be handed over to petitioner--It has been brought to notice of Court that Respondent No. 1 intends to file an application under section 25 of Guardian & Wards Act, 1890--It is, therefore, directed that if and when such an application is filed by Respondent No. 1, Guardian Judge shall decide same strictly in accordance with law and expeditiously, preferably within a period of two months of filing of same--It is also directed that petitioner shall produce minor before Guardian Judge if, as and when directed by said Court so as to allow Sajjad Ahmad, father of minor, to meet with minor--However, Sajjad Ahmad shall not be allowed to take minor out of premises of Court of Guardian Judge--It is also made clear that any such petition filed before Court of Judge Guardian Court shall be decided on its own merits, without being influenced in any manner by any observation made in this order.
PLJ 2021 SC 28
[Appellate Jurisdiction]
Present: Umar Ata Bandial and Sayyed Mazahar Ali Akbar Naqvi, JJ.
MUHAMMAD JAMIL and others--Petitioners
versus
Mst. SAJIDA BIBI and others--Respondents
Civil Petition No. 4690 of 2018, decided on 12.8.2020.
(Against the judgment of the Peshawar High Court, Mingora Bench (Dar ul Qaza) Swat dated 17.10.2018 passed in Writ Petition
No. 319-M/2018).
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----Ss. 6 & 6(5)(a)--Constitution of Pakistan, 1973, Art. 185(3)--Suit for recovery of dower, dowery articles and maintenance allowance--Partially decreed--Filling of separate appeals--Allowed--Case was remanded--Partially decreed after remand proceedings--Appeal--Allowed--Modification in judgment--Petitioner was contracted second marriage without prior permission by first wife--Filling of suit for dissolution of marriage--Decreed--Writ petition--Dismissed--Modification to extent of payment of maintenance allowance-- Challenge to--Section 6 of Muslim Family Laws Ordinance, 1961 prohibits contracting second marriage without previous permission in writing of Arbitration Council--Entire amount of dower fixed at time of marriage whether prompt or deferred is immediately payable on account of second marriage--petitioner No. 1 by entering into second marriage without seeking prior permission either from existing wife i.e. Respondent No. 1 or Arbitration Council, dower even if it is termed as deferred or prompt has become payable without any delay--So far as recovery of maintenance allowance is concerned, counsel for petitioner has failed to point out any good reason qualifying interference into judgment impugned before us--High Court has rightly declined prayer; hence, no other exception is called for. [Pp. 31 & 32] A, C, D & E
Muslim Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 6(5)(a)--Prompt payment of dower--Second marriage without permission of arbitration council--Dower becomes immediately payable--It would be advantageous to reproduce said section:
Polygamy: (1)…….
(2)……..
(3)……..
(4)……..
(5) Any man who contracts another marriage without permission of Arbitration Council shall:-
(a) Pay immediate entire amount of dower whether prompt or deferred, due to existing wife or wives which amount, if not so paid shall be recoverable as arrears of land revenue;
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